State v. Spikes

• Decision Date: 16 December 2008
• Docket Number: No. 27547.,27547.
• Citation: 961 A.2d 426,111 Conn.App. 543
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Milton SPIKES.

961 A.2d 426

111 Conn.App. 543

STATE of Connecticut v. Milton SPIKES.

No. 27547.

Appellate Court of Connecticut.

Argued May 29, 2008.

Decided December 16, 2008.

Ruth Daniella Weissman, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Mary Rose Palmese, supervisory assistant state's attorney, for the appellee (state).

McLACHLAN, LAVINE and McDONALD, Js.

McDONALD, J.

The defendant, Milton Spikes, appeals from the judgments of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103(a), and larceny in the second degree in violation of General Statutes §§ 53a-123(a)(2) and 53a-119 based on a February 19, 2005 incident, and of attempt to commit burglary in the second degree in violation of General Statutes §§ 53a-102(a)(2) and 53a-49(a)(2), burglary in the second degree in violation of General Statutes § 53a-102(a)(2), and criminal mischief in the second degree in violation of General Statutes § 53a-116(a)(1) based on a February 23, 2005 incident. The charges against the defendant were for crimes that occurred at 291 Church Street, Wethersfield. On appeal, the defendant claims that (1) the evidence presented at trial was insufficient to support the convictions of larceny in the second degree, burglary in the third degree, burglary in the second degree and attempt to commit burglary in the second degree, (2) the trial court instructed the jury improperly on the definition of "value," (3) General Statutes § 53a-121, which defines the word "value" for purposes of Connecticut's larceny offenses, is unconstitutionally vague, (4) the court improperly granted the state's motion to consolidate multiple claims against him and (5) his right to a fair trial was violated because the prosecutor improperly attempted to shift the burden of proof to the defendant. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On February 19, 2005, shortly after 2:30 p.m., the police responded to a call to a residence at 291 Church Street. The owners of the residence, Sean Stearley and Kristen Stearley, reported as missing from their home more than $5000 worth of jewelry and $1100 in cash. The Stearleys had left their home about 11:30 a.m., locked their door and returned home about 2:30 p.m. to find their property missing.

At about the time of the theft, between 11:30 a.m. and 2:30 p.m., the defendant had been seen several times in the immediate vicinity of 291 Church Street. Approximately one hour before being dispatched to the scene, Officer Thomas Mitney of the Wethersfield police department observed a man walking on Church Street, whom he later identified as the defendant. The defendant was wearing a hooded sweatshirt and dirty, light tan work pants. Mitney also observed the defendant a second time when Mitney was driving to 291 Church Street. Then the defendant was walking near the intersection of the Silas Deane Highway and Church Street. Gary Buyak, a United States Postal Service carrier, also had observed the defendant that day standing outside 291 Church Street sometime between 2 p.m. and 2:30 p.m.

Four days later, on the morning of February 23, 2005, Sean Stearley again called the police to report suspicious footprints in his backyard. Snow had fallen the night before, and the prints led to several possible points of entry to his house. After arriving at 291 Church Street, Officer Tammy Austin of the Wethersfield police department observed that the footprints in the snow contained the brand name "Lugz." She also observed that one of the outside windows that led to the Stearleys' basement had been removed and that the left window pane was smashed. The footprints also led to a screened in porch. The screen had been pushed in from the outside, and there were similar footwear impressions on the floor inside the screened in area.

At approximately the same time, Officer Anthony DeMonte of the Wethersfield police department observed the defendant stumbling in the road near the intersection of Morrison Avenue and Tifton Road, about two blocks from 291 Church Street. DeMonte stopped to speak to the defendant. The defendant provided conflicting stories regarding the location from which he was coming. While DeMonte was speaking with the defendant, he heard a radio transmission regarding suspicious footprints. DeMonte then observed that the defendant was wearing a pair of black boots, which displayed the "Lugz" brand logo in the middle of the sole. During his discussion with the defendant, DeMonte learned that the defendant had on his person several pieces of jewelry. Called to the scene, Sergeant Delroy Warmington of the Wethersfield police department observed that the defendant's clothing matched that of a description of a suspect in the February 19 burglary. Warmington then transported the jewelry found on the defendant's person to 291 Church Street where the Stearleys identified it as some of the items that were taken from their home on February 19. Four pieces of the Stearleys' jewelry were not recovered from the defendant. At this time, the defendant was arrested.

Before trial, the court granted the state's motion to consolidate for trial the charges arising from the February 19 and February 23 incidents. Thereafter, the jury found the defendant guilty on all five counts. At sentencing, the court merged the charges of burglary in the second degree and attempt to commit burglary in the second degree, as to the February 23 incident, and sentenced the defendant to a total effective term of seventeen years imprisonment, followed by three years of special parole. This appeal followed.

I

The defendant asserts that the evidence presented at trial was insufficient to support his convictions of larceny in the second degree, burglary in the third degree, burglary in the second degree and attempt to commit burglary in the second degree.

"The standard of review we apply to a claim of insufficient evidence is well established. . . . [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Ramirez, 107 Conn.App. 51, 62, 943 A.2d 1138, cert. granted on other grounds, 287 Conn. 915, 950 A.2d 1290 (2008). "In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference." (Internal quotation marks omitted.) State v. Leggett, 94 Conn. App. 392, 398, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006).

A

The defendant claims that there was insufficient evidence to support his conviction of larceny in the second degree as to the incident on February 19, 2005. The defendant argues that there was insufficient evidence from which the jury could have found that the value of the property that was stolen from 291 Church Street on February 19, 2005, was more than $5000. We disagree.

"A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and . . . (2) the value of the property . . . exceeds five thousand dollars. . . ." General Statutes § 53a-123(a). General Statutes § 53a-121(a)(1) provides in relevant part that "value means the market value of the property . . . at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property . . . within a reasonable time after the crime."

In support of his claim, the defendant argues that both Kristen Stearley and a representative of the Stearleys' insurance carrier testified only as to the replacement cost of the unrecovered jewelry. The defendant argues further that the relevant value to use in determining the value of jewelry is the fair market value. The defendant therefore concludes that the state failed to meet its burden of proof because it failed to elicit sufficient information as to the market value of used jewelry. We disagree.

In this case, the state put into evidence a list of all the stolen items with a figure for each piece of stolen jewelry, which the Stearleys gave to the police on February 19. The figures listed represented to the best of the Stearleys' recollection the original purchase price of the stolen jewelry at a total of $5250.

The state also put in evidence a written claim filed by the Stearleys with their insurance carrier for the unrecovered jewelry. A representative of the Stearleys' insurance company testified that the company valued the four items that were not recovered from the defendant at $3689.85. See State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985). The Stearleys also testified they had purchased those items for approximately $1850 in 1987, 1991, 1992 and 1994. As instructed by their insurance company, the Stearleys testified that they searched the Internet to find similar jewelry and its price as comparable sales. The Stearleys concluded, on the basis of their research, that both the actual cash value and the replacement cost of the four nonrecovered items was $3689.85.

It is well established that an owner of property is competent to testify as to the value of his or her property. State v. Baker, 182 Conn. 52, 60, 437 A.2d 843 (1980). This rule reflects the common experience that owners are familiar with their property and know what it is worth. Id. Whether an owner's testimony as to the market value provides sufficient information to support a jury verdict depends...