State v. Waterman

• Decision Date: 13 May 1986
• Docket Number: No. 3267,3267
• Citation: 509 A.2d 518,7 Conn.App. 326
• Parties: STATE of Connecticut v. H. Earl WATERMAN, Jr.
• Court: Connecticut Court of Appeals

Page 518

509 A.2d 518

7 Conn.App. 326

STATE of Connecticut v. H. Earl WATERMAN, Jr.

No. 3267.

Appellate Court of Connecticut.

Argued Jan. 10, 1986.

Decided May 13, 1986.

James A. Wade, with whom were Sylvia Kemp-Orino and Stephen Richards, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom were Kevin T. Kane, Assistant State's Atty., and on brief, Austin J. McGuigan, former Chief State's Atty., Paul E. Murray, Asst. State's Atty., and Peter Timmons and Paul A. Audley, Legal Interns, for appellee (State).

Before DUPONT, C.J., and BORDEN and BIELUCH, JJ.

DUPONT, Chief Judge.

The defendant was found guilty by a jury of the crime of larceny in the first degree, by defrauding a public community, in violation of General Statutes §§ 53a-122(a)(4) and 53a-119(6)(3). He was fined $10,000 and sentenced to a five year prison term, execution suspended, with five years probation. A special condition of the defendant's probation was payment of $38,500 in restitution to the town of Suffield.

In appealing from that judgment of conviction, the defendant's basic claims of error are that the trial court erred: (1) in denying his motions to dismiss based on the state's failure to charge him with a criminal offense; (2) in denying his motions for a new trial and in arrest of judgment because the statutes under which he was charged were applied ex post facto and were unconstitutionally vague; (3) in denying his motion for judgment of acquittal because the evidence was insufficient to support the jury's verdict; (4) in admitting evidence of a business entry in the absence of proof that it was accurate; (5) in denying his motion for a new trial because of the state's use of information obtained from a grand jury proceeding; (6) in admitting testimony to show his consciousness of guilt; (7) in requiring him to make restitution to the town in the amount of $38,500; and (8) in charging the jury regarding the defendant's interest in the outcome of the proceeding.

From 1977 to January, 1983, the defendant was the first selectman for the town of Suffield, and he also served as the town's superintendent of highways. As superintendent of highways, he was responsible for winter sanding and summer oiling and sanding of town roads. The fraud with which the defendant was charged involved the purchase and delivery of sand in connection with maintaining the roads during the period of time commencing in August, 1982, and continuing to January 18, 1983. The jury could reasonably have found certain facts.

The Dale Trucking Company was a business which the defendant formed with a partner, Dale Adams, in the winter of 1982. The company was formed for the purpose of hauling sand for the town of Suffield from the Westfield Sand and Gravel Company located in Westfield, Massachusetts, to Suffield. It did not engage in any other activity. Dale Adams, who worked on the defendant's farm, had an eighth grade education and could not read or write very well. The defendant handled all of the company's business. Dale Trucking had no office, no secretary and no bank account. The defendant deposited checks made out to the company in his personal bank accounts.

In the summer of 1982, without the requisite approval of Suffield's board of finance, the defendant began buying sand from Westfield Sand and Gravel and hauling it to the town in a truck owned by Dale Trucking. Subsequently, the defendant told the board of finance that Dale Trucking had agreed to lease its truck to the town for the purpose of hauling sand, and the board agreed to furnish a driver and insurance for the truck and to pay for the truck's maintenance. No records were kept to monitor the town's receipt of the sand other than "trip tickets" received from Westfield Sand and Gravel. These tickets measured the amount of sand taken by noting the difference between the weight of the truck before and after loading. The tickets were received by the driver of the truck who would turn them in to either the town highway department foreman or the defendant after every trip. The Westfield Sand and Gravel tickets were never presented to any other town officials. The defendant did not present them either but, instead, prepared fictitious tickets and received requisition forms from the town for payment to Dale Trucking on the basis of these fictitious tickets. All trip tickets and bills presented to the town for payment were prepared by the defendant who cashed the town's checks payable to Dale Trucking and put the money into his personal accounts.

Between August and December of 1982, the trip tickets of Westfield Sand and Gravel showed that 3765.8 cubic yards of sand were sold to the town of Suffield, and that Westfield Sand and Gravel was paid $11,284.30 by Dale Trucking at $3 per cubic yard. The town's records, which were based on the tickets the defendant prepared, showed, however, that Dale Trucking was paid $58,410 for the delivery of 10,622 cubic yards of sand at $5.50 per cubic yard. The trip tickets prepared by the defendant included dates on which no deliveries were made to the town. There were twenty-six more tickets presented to the town by the defendant than there were deliveries.

At trial, the state claimed that the defendant created Dale Trucking as a sham company to enrich himself at the town's expense. Although the defendant denied that the company was a sham, he admitted that he had created false trip tickets, but asserted that no harm was done since the tickets he prepared corresponded to the amount of sand the town actually received. The defendant did not attempt to justify his unorthodox manner of bookkeeping, but contended throughout the trial that the town received exactly what it paid for.

I

The defendant's first two claims of error, regarding the adequacy of the information to charge him with a crime, and the validity of the statutes with which he was charged, are interrelated. The defendant was arrested by warrant and charged in a short form information with larceny in the first degree under General Statutes § 53a-122. In accordance with Practice Book § 833, the state filed a substitute information encompassing the specifications of a bill of particulars requested by the defendant. The substitute information, dated January 10, 1983, ¹ charged that the defendant, "as an officer and agent of a public community, with intent to prejudice it, [did] present and aid in procuring to be allowed fradulent claims against the Town of Suffield on behalf of Dale Trucking, totalling in excess of $38,500, in violation of General Statutes §§ 53a-122(a)(4) and 53-119(6)." On March 14, 1984, the day on which the trial was scheduled to begin, the state moved for and was granted permission to file another substitute information which charged the defendant with presenting and aiding in procuring to be allowed fraudulent claims against the town totalling in excess of $2000 in violation of General Statutes (Rev. to 1981) §§ 53a-122(a)(2) and 53a-119(6). The defendant moved to dismiss this substitute information on the ground that it did not state an offense on which he could stand trial. The trial court denied this motion. On March 19, 1984, the state was granted permission to file yet another substitute information charging the defendant with violating General Statutes (Rev. to 1981) § 53a-122(a)(2), as amended by Public Acts 1981, No. 81-248, § 1, and 53a-119(6)(3), as amended by Public Acts 1981, No. 81-263, § 1, and General Statutes (Rev. to 1983) §§ 53a-122(a)(4) and 53a-119(6)(3). This information referred to all of the public acts leading to the 1983 revision of General Statutes § 53a-122. The trial court denied the defendant's oral motion to dismiss that information.

The defendant claims that the trial court erred in denying his motion to dismiss the March 14, 1984 information because the statutes under which he was charged therein, General Statutes (Rev. to 1981) §§ 53a-122(a)(2) and 53a-119(6), did not encompass the crime of defrauding a public community. General Statutes (Rev. to 1981) § 53a-122 provided in part: "(a) A person is guilty of larceny in the first degree when ... (2) the value of the property or service exceeds two thousand dollars." General Statutes (Rev. to 1981) § 53a-119 provided in part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to ... (6) Defrauding of public community. Any officer or agent of any public community is guilty of defrauding of public community who, with intent to prejudice it, appropriates its property to the use of any person or draws any order upon its treasury or presents or aids in procuring to be allowed any fraudulent claim against such community. For purposes of this section such order or claim shall be deemed to be property." ²

The defendant argues that notwithstanding the fact that General Statutes (Rev. to 1981) § 53a-119(6) defined the crime of defrauding a public community as a form of larceny, the act of defrauding a public community did not become a crime until the passage of Public Acts 1982, No. 82-271, § 1, which took effect on October 1, 1982, and added language to § 53a- 122(a) which specifically referred to defrauding a public community. As amended, the statute provided in part: "A person is guilty of larceny in the first degree when he commits larceny as defined in section 53-119 and ... (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars." Public Acts 1982, No. 82-271, § 1. ³

The defendant maintains that because he was charged in the March 14, 1984 information under the law which existed in 1981, his motion to dismiss should have been granted because it failed to charge him with a crime.

"If the information apprises the...