State v. Sweet

• Decision Date: 30 August 2022
• Docket Number: AC 44427
• Citation: 214 Conn.App. 679,280 A.3d 1243
• Parties: STATE of Connecticut v. Derek R. SWEET
• Court: Connecticut Court of Appeals

214 Conn.App. 679
280 A.3d 1243

STATE of Connecticut
v.
Derek R. SWEET

AC 44427

Appellate Court of Connecticut.

Argued April 12, 2022
Officially released August 30, 2022

280 A.3d 1247

Adele V. Patterson, former senior assistant public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Brian W. Preleski, former state's attorney, and David Clifton, senior assistant state's attorney, for the appellee (state).

Alvord, Cradle and Suarez, Js.

ALVORD, J.

The defendant, Derek R. Sweet, appeals from the judgment of conviction, rendered after a jury trial, of one count of larceny in the third degree in violation of General Statutes § 53a-124 (a) (2),¹ and one count

280 A.3d 1248

of identity theft in the third degree in violation of General Statutes § 53a-129d (a).² On appeal, the

defendant claims that (1) there was insufficient evidence to sustain the jury's verdict of guilty of larceny in the third degree and (2) the court erred in admitting certain hearsay evidence. We disagree and, accordingly, affirm the judgment of conviction.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. On or about November 19, 2017, the defendant took a wallet, belonging to his father, Martin Sweet (Martin), which contained a People's United Bank debit card, an American Express credit card, a Chase credit card, an Old Navy credit card, a Home Depot credit card,³ a Social Security card, and a driver's license. On November 19, the defendant used the cards to make a variety of purchases at local stores, including Walmart, Stop and Shop, and Family Dollar. The purchases totaled $2373.94.⁴ On or around December 28, 2017, the defendant made three purchases, totaling $2628.91, using Martin's Home Depot credit card in three separate transactions at a West Hartford Home Depot.⁵ Martin reported the theft of the

wallet and the subsequent fraudulent charges to the card issuers, and, after taking the several steps required to dispute the charges, he did not have to pay any of the fraudulent charges.

Following an investigation, the defendant was arrested and charged, by way of a substitute information, with one count of

280 A.3d 1249

larceny in the third degree in violation of § 53a-124 (a) (2), and one count of identity theft in the third degree in violation of § 53a-129d (a). After one day of evidence, the state rested, and the defendant filed a motion for judgment of acquittal, which the court, Oliver , J. , denied.⁶ On January 23, 2020, the jury found the defendant guilty on both counts. The defendant then pleaded guilty to a part B information, which charged him as a persistent serious felony offender in violation of General Statutes § 53a-40 (c).⁷

Following the verdict, the defendant renewed his motion for judgment of acquittal, which was also denied. On August 17, 2020, the court sentenced the defendant to a total effective sentence of ten years of incarceration, execution suspended after forty-two months, followed by five years of probation. This appeal followed.

I

The defendant's first claim on appeal is that the evidence was insufficient to prove that he appropriated in excess of $2000 from Martin to himself. Although the defendant admits that "the jury reasonably could find that the state proved its theory that the defendant stole his father's credit cards and used them to make unauthorized purchases," he contends that there was no "evidence or law to support its contention that using the [credit] cards took money from Martin." Specifically, the defendant asserts that "[t]he state's articulation of its theory of the crime to the trial court and to the jury assumed that the use of a person's credit card results in taking his money, but no evidence was offered to support that factual premise." In sum, the defendant's argument is that the state's theory of the case with respect to the credit cards was that the defendant stole money from Martin and, therefore, because the evidence made clear that Martin ultimately only suffered a loss of credit, the state further had to prove that credit is money. In response, the state argues that its theory of the case at trial with respect to the credit cards was that the defendant stole credit from Martin and, therefore, it was sufficient to present evidence of the transactions, the credit card statements posting the transactions, and Martin's efforts to remove those transactions from his credit card statements to establish that the defendant took credit worth more than $2000 from Martin. We agree with the state.⁸

280 A.3d 1250

The following procedural history is relevant to our resolution of this claim. In count one of the operative long form information, the state charged the defendant with larceny in the third degree in violation of § 53a-124 (a) (2), alleging as follows: "on or about diverse dates between November 19, 2017, and December 28, 2017, beginning in the town of Newington and continuing throughout the state, the defendant ... with intent to deprive another of property and appropriate the same to himself and a third person, did wrongfully take, obtain, and withhold such property from its owner, the value of which exceeds two thousand dollars, to wit: the defendant did wrongfully appropriate in excess of $2000 from Martin Sweet to himself."

At trial, Martin testified that, once he realized his wallet was missing, he reported that issue to his credit card issuers. He further testified that, upon reporting the missing cards, he was informed that the cards were being used. Accordingly, he cancelled his credit cards and reported the situation to the Newington Police Department. He also testified about the credit card bills he received listing charges he did not make and the process through which he reported the fraudulent transactions to the card issuers. During Martin's testimony, the state introduced into evidence credit card statements that listed the various disputed charges and letters from the credit card issuers that detailed the reported fraudulent charges.⁹

Officer Reza Abbassi of the Newington Police Department testified about his investigation into the matter.

He testified that Martin filled out a lost/stolen property report (property report) listing all of the charges made to his credit cards¹⁰ following the theft of his wallet, along with the times and locations of each transaction, and the property report was entered into evidence as a full exhibit.¹¹ Officer Abbassi testified that he used the property report to follow up with the stores to investigate who had made the various charges. Officer Abbassi also testified that, after viewing surveillance video, reviewing receipts, and meeting with Martin, he was able to confirm that the defendant had made the charges that Martin had reported as fraudulent.

In closing arguments, the prosecutor emphasized the timing of the larceny, asserting that there were "[nineteen] charges in just under [thirteen] hours. Over $2300 taken in that [thirteen] hours. ... That tells you that the defendant is trying to rack up as much money as he can before those cards get cancelled. He wants to get the value while he can." The prosecutor then addressed the fact that Martin never had to pay for the defendant's charges: "Now the defense asked some questions about the bank covering [Martin's] loss. ... That is legally irrelevant to your inquiry here.¹² What we do in criminal

280 A.3d 1251

law is we punish conduct based upon the time that it occurs. We look at what the defendant did, not six months from now, not years from now to see who's left holding the bag; when he made those

charges, it's Martin Sweet on the hook. Martin Sweet owes that money to the credit card [issuers]. When the defendant makes those charges, he doesn't know the credit card [issuers] are going to do the right thing and reimburse him. If they decided not to, Martin Sweet is the one with the debt. When he makes those charges, it's Martin Sweet, that's whose money he's taking." (Footnote added.) The prosecutor then referred to the credit card statements and argued that those charges represented the value of the credit taken from Martin.

In closing arguments, defense counsel stated, inter alia, that "[t]he state has to prove that there was property taken from [Martin] and with intent to deprive him of it. What is that property? When was [it] taken? Why was it deprived? So I'll ask you to consider those things when you go in to deliberate." In rebuttal, the prosecutor again emphasized the timing of the larceny, stating, "[a]gain, it's the time, the conduct at the time those cards are swiped. We don't look six months down the line to see who ends up holding the bag. The banks did the right thing here, that doesn't matter, Martin Sweet could have been out the money, and at that time, the defendant made those charges Martin Sweet was out that money."

We begin by setting forth the well established standard of review for claims of insufficient evidence.¹³ "In reviewing the sufficiency of the evidence to support a criminal conviction we 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in...