State v. Thorne

• Citation: 204 Conn.App. 249,253 A.3d 1021
• Decision Date: 04 May 2021
• Docket Number: AC 43120
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Maxine THORNE

204 Conn.App. 249

253 A.3d 1021

STATE of Connecticut

v.Maxine THORNE

AC 43120

Appellate Court of Connecticut.

Argued February 8, 2021

Officially released May 4, 2021

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Linda F. Currie, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, executive assistant state's attorney, and Mirella Giambalvo, senior assistant state's attorney, for the appellee (state).

Bright, C. J., and Elgo and Alexander, Js.

ALEXANDER, J.

The defendant, Maxine Thorne,¹ appeals from the judgment of conviction, rendered after a jury trial, of six counts of wilful failure to pay sales tax in violation of General Statutes § 12-428 (1). On appeal, the defendant claims that (1) there was insufficient evidence to support her conviction and (2) the trial court's jury instruction substantially misled the jury. We reverse in part and affirm in part the judgment of the trial court.

The jury reasonably could have found the following facts on the basis of the evidence presented at trial. In October, 1999, Robert C. Thorne, the defendant's husband (husband), applied to the Department of Revenue Services (department) for a tax registration number for

his tree work and landscaping business as a sole proprietorship. Sometime later, the defendant filed an application for the organization of a domestic limited liability company known as Bob Thorne Tree & Landscaping, LLC, with the Secretary of the State and registered the LLC with the department. The defendant, however, did not register the LLC for sales tax remittance as required. The sole proprietorship and the LLC were being operated simultaneously. Andrea Closson, a department tax enforcement special agent, testified, on the basis of her training and experience, that a new registration for sales tax remittance often is not filed to avoid § 12-428 (1) responsibilities² and to avoid paying taxes.

In March, 2012, the defendant and her husband opened a business checking account at Wells Fargo Bank, N.A. (Wells Fargo). The couple completed a four page application, stating that the name on the account was "Robert Thorne [doing business as] Bob Thorne Tree & Landscaping," the name of the business was "Bob Thorne Tree & Landscaping," the type of business was "[s]ole [p]roprietor," and the date the business originally was established was May 8, 2008. The defendant and her husband were the authorized signatories on the account, and their signatures appear on the application. The husband was listed as the "[o]wner/[k]ey [i]ndividual." Thereafter, the defendant entered information pertaining to the Wells Fargo account into the department's taxpayer service center account that she had created for the sole proprietorship. The tax payments that were made to the department were drawn on checks from the Wells Fargo account.³

On or about April 16, 2016, the defendant filed five untimely sales and use tax returns with the department, identifying the business entity as "Robert Thorne." She signed the returns as the owner. The documents filed by the defendant identified five periods for which sales tax was owed,⁴ but the department never received payment of the taxes.

In January, 2017, Closson was assigned to investigate the sole proprietorship of Robert Thorne. During her investigation, Closson reviewed multiple sales tax returns that the defendant had signed as the owner of the business known as "Robert Thorne." On October 3, 2017, Closson and David Stephens, a department tax enforcement special agent, visited the defendant and her husband at their home. At that time, Closson asked the couple who was responsible for paying taxes on behalf of the business. The defendant's husband pointed to the defendant and stated, "She is." The defendant remained silent but did not deny her husband's representation. The defendant stated to Closson and Stephens that her husband's original business was closed and that she had registered a new business entity called Bob Thorne Tree & Landscaping, LLC, with the department.

On the basis of her subsequent investigation, Closson determined that the original business had never been closed and that the new business called Bob Thorne Tree & Landscaping, LLC, was not registered with the department to pay sales tax. Closson consulted the website for the department taxpayer service center and learned that the defendant was the administrator for the business known as "Robert C. Thorne." The website also

contained information regarding the Wells Fargo account. Closson subpoenaed the financial records for the Wells Fargo account. Pursuant to her investigation, Closson concluded that the defendant was the person responsible for paying the sales tax for the business known as Robert C. Thorne.

On or about March 1, 2018, the defendant was arrested pursuant to a warrant. In a six count, amended long form information (information), the state accused the defendant of wilfully having failed to pay state sales tax for six periods in 2015 in violation of § 12-428 (1).⁵ The charges against the defendant were tried to a jury in April, 2019. During the trial, Stephens testified that the person responsible for paying state sales tax "is any individual who has a duty and is required by law to file Connecticut tax returns and pay the tax due," somebody who is financially responsible for the business and who acts like a registered owner in the business. Closson testified that she had determined that the defendant was the financially responsible party for the business Bob Thorne

Tree & Landscaping, LLC, and for the sole proprietorship of Robert Thorne. She made that determination on the basis of statements made by the defendant's husband and the defendant's having signed the Wells Fargo checks sent to the department. The defendant also had signed the sales tax returns as owner, and she is named the administrator on the taxpayer service center account.

In its closing argument, the state argued that the case was about the defendant's "trying to get out of paying sales taxes for the business Bob Thorne Tree & Landscaping." The state urged the jury to find that the defendant was the person responsible for paying sales tax for her husband's business and that she had failed to do so. In her closing argument, the defendant stated that she was not "responsible for anything" and that "no one was there to verify it was actually even [her] signature." The jury found the defendant guilty of each of the six counts of wilful failure to pay sales tax as charged.

On May 6, 2019, the court sentenced the defendant on each of the six counts to four months of incarceration, execution suspended, and two years of probation. The four month sentences were to be served consecutively for a total effective sentence of two years of incarceration, execution suspended, followed by two years of probation. As a special condition of probation, the court ordered the defendant to make restitution in the amount of $4221 within the first fifteen months of probation. Following sentencing, the defendant appealed.

I

The defendant first claims that the state presented insufficient evidence to support her conviction of wilful failure to pay sales tax in violation of § 12-428 (1) as charged in the information. We disagree that there was insufficient evidence to convict the defendant as charged in counts one, two, three, five, and six of the information. We, however, agree that there was insufficient evidence

to convict the defendant as charged in count four. In count four of the information, the state charged the defendant with failure to pay sales tax due on August 31, 2015. On appeal, the defendant claims that the state presented no evidence that she failed to pay sales tax due on August 31, 2015. Our review of the record supports the defendant's claim, and the state concedes that it failed to present any evidence with respect to count four. We, therefore, reverse the defendant's conviction as to count four and remand the case to the trial court with direction to render a judgment of acquittal as to that count and to resentence the defendant.

In the remaining counts of the information, the state charged that "as required by law as the registered owner of business ‘Bob Thorne Tree & Landscaping, LLC’ to pay any tax, [the defendant] wilfully failed to pay such tax at the time required by law" in violation of § 12-428 (1). The defendant argues on appeal that the state introduced fourteen documents into evidence, all of which concerned the business known as "Robert Thorne, sole proprietor, or Robert Thorne [doing business as] Bob Thorne Tree & Landscaping,"⁶ but that it introduced no evidence with regard to sales tax owed by the business Bob Thorne Tree & Landscaping, LLC. The defendant, therefore, claims that there was insufficient evidence by which the jury reasonably and logically could have found that she wilfully failed to pay sales tax as charged.

In response, the state argues that the defendant had sufficient notice of the crimes against which she had to defend regardless of any variance between the information, i.e., the inclusion of LLC , and the evidence adduced at trial that concerned the sole proprietorship as the business entity for which she had a duty to pay sales tax. Significantly, the state notes that the defendant does not claim that the evidence did not establish

that she was the person responsible for paying the sales tax due on behalf of the sole proprietorship or "Robert Thorne [doing business as] Bob Thorne Tree & Landscaping." We agree with the state.

It is well known that a defendant "who asserts an insufficiency of the evidence claim bears an arduous burden." (Internal quotation marks omitted.) State v. Leandry , 161 Conn. App. 379, 383, 127 A.3d 1115, cert. denied, 320 Conn. 912, 128 A.3d 955 (2015). When reviewing a claim of insufficient evidence, an appellate court applies a two part test. See, e.g., State v. Juarez , 179 Conn. App. 588, 595,...