State v. Yurch, 12708
| Decision Date | 03 April 1995 |
| Docket Number | No. 12708,12708 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. John YURCH. |
James M. Ralls, Asst. State's Atty., with whom, on the brief, were John Connelly, State's Atty., and Robin A. Lipsky, Asst. State's Atty., for appellee (state).
Before LANDAU, HEIMAN and SPEAR, JJ.
The defendant, John Yurch, appeals from the judgment of conviction, rendered after a trial to the court, of two counts of forgery in the third degree in violation of General Statutes § 53a-140, 1 and from the judgment finding him in violation of probation pursuant to General Statutes § 53a-32. 2 The defendant The trial court found the following facts. 3 In early 1991, the defendant and Karl Skoog met and discussed the possibility of having the defendant build a house for Skoog. On or about April 3, 1991, they settled on a proposal that included the purchase of lot five, Upper Grassy Hill Road in Woodbury. The defendant agreed to present an offer to purchase to the owner of the lot, John Filchak, and, on April 5, Skoog gave the defendant an $1800 deposit for the land purchase. 4 The defendant thereafter presented Skoog with a copy of the offer to purchase, which was ostensibly signed by John Filchak and dated April 10, 1991.
claims that the trial court (1) improperly convicted him on the first count of forgery in the third degree in that (a) forgery in the third degree is not a lesser included offense of forgery in the second degree, (b) there was insufficient evidence that the alleged contract, if completed, was capable of transferring property, and (c) an intent to injure, not simply an intent to deceive, is required to prove a violation of the statute, (2) improperly convicted him on the second count of forgery in the third degree in that (a) an intent to injure, not merely to deceive, is required under the statute and (b) the state failed to prove an intent to defraud, and (3) improperly imposed a total term of probation that was in excess of the five year statutory limit.
After Skoog encountered difficulty securing a mortgage, he and the defendant agreed to have the contract for the lot purchase made in the defendant's name. On May 20, the defendant requested an additional deposit of $1712, which Skoog agreed to provide on the condition that the amount be held in escrow by either his attorney or the defendant's attorney. The defendant advised Skoog that Robert Cartoceti would be his attorney and Skoog issued a check to Cartoceti, as trustee. Upon receipt of the check, the defendant signed Cartoceti's name on the check and deposited it into his personal account.
In June, 1991, Skoog contacted the Drakely Agency concerning the agreement between the defendant and Filchak to purchase lot five. He was informed that no contract existed. Skoog confronted the defendant and requested the return of his deposits, in response to which the defendant gave Skoog a check in the amount of $2150. When Cartoceti was contacted by Skoog's attorney regarding the balance in escrow, Cartoceti informed him that he had no knowledge of any deposit and had never represented the defendant.
On July 8, the defendant returned the remaining $1712 to Skoog. On that same day, the defendant went, upon request by the police, to the Southbury police station, where he was advised of his Miranda rights and voluntarily admitted to signing Cartoceti's name to the check and signing Filchak's name to the offer to purchase.
The defendant was subsequently charged with forgery in the second degree, forgery in the third degree and attempted larceny in the fourth degree. He was also charged with a violation of probation. At the close of the state's case, the court, acting on the defendant's motion for judgment of acquittal, acquitted Following trial, the court found the defendant guilty of both counts of forgery in the third degree, as well as violation of probation. The court committed him to the custody of the commissioner of correction to serve concurrent sentences of six months each for the counts of forgery, those sentences to be served concurrently with a sentence of one year for the violation of probation, execution suspended after six months, with two years probation. This appeal followed.
the defendant of forgery in the second degree, but permitted the state to proceed on the first count on the lesser included offense of forgery in the third degree. The court also acquitted the defendant of attempted larceny
The defendant first claims that the trial court improperly convicted him on the first count of the lesser included offense of forgery in the third degree. 5 He proffers three arguments to support this claim, which we address seriatim.
The defendant asserts that his conviction on the first count was improper because forgery in the third degree is not a lesser included offense of forgery in the second degree. Practice Book § 883 6 permits the trial court, when granting a judgment of acquittal as to a principal offense, to deny a motion for acquittal as to any lesser included offense if the evidence would reasonably permit a finding of guilty. The defendant contends that the language of § 883 presupposes the legal existence of the lesser included offense. Consequently, he argues, when the trial court granted his motion for judgment of acquittal as to forgery in the second degree, it could not have properly allowed the prosecution to proceed on forgery in the third degree, as the latter offense is not a lesser included offense of the former.
The defendant raises this claim for the first time on appeal. At trial, in his motion for judgment of acquittal at the close of the state's case, he argued that there was insufficient evidence to permit a finding of guilty of forgery in the third degree as a lesser included offense of the first count. He did not, however, argue that forgery in the third degree is not a lesser included offense of forgery in the second degree. " 'This court will not review issues of law that are raised for the first time on appeal.' " State v. Beliveau, 36 Conn.App. 228, 242, 650 A.2d 591 (1994), quoting State v. Harvey, 27 Conn.App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); see Practice Book § 4185. Accordingly, we decline to review this claim.
The defendant next argues that his conviction on the first count was improper because the state failed to prove what it alleged in the information, that is, that the defendant falsely made a contract that, if completed, would create and transfer a legal right to property.
The defendant's argument is relevant to the question of whether he could properly be convicted of forgery in the second degree. The trial court, however, acquitted the defendant of that offense and convicted him only of forgery in the third degree. Consequently, the state, to secure a conviction, needed to prove only the elements of forgery in the A conviction of forgery in the third degree requires proof that, "with intent to defraud, deceive or injure another," a person falsely made, completed or altered a written instrument, or issued or possessed any written instrument which he knew to be forged. General Statutes § 53a-140. A "written instrument" is defined as "any instrument or article containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information ... which is capable of being used to the advantage or disadvantage of some person." General Statutes § 53a-137(1).
third degree and not those of forgery in the second degree. 7
Thus, the state was required to prove only that the defendant falsely made a written instrument, not a contract that if completed would create and transfer a legal right to property. His argument, then, that the state failed to establish the elements of forgery in the second degree is irrelevant to his claim that he was improperly convicted of forgery in the third degree.
In the third part of his first claim, the defendant argues that forgery requires an intent to injure, not merely an intent to deceive, and that there was insufficient evidence of any intent to injure. He contends that an intent to injure is a necessary element of forgery because the intent to deceive written into the statute includes within it an injurious purpose. Thus, he posits, an intent to deceive devoid of an intent to injure is not enough to sustain a forgery conviction. Because the trial court failed to find an intent to injure, 8 the defendant claims that his forgery conviction was improper. We disagree.
In interpreting the specific intent element of § 53a-140, we must adhere to (Citations omitted; internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). Also, General Statutes § 1-1(a) mandates that "[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language...." 9
A conviction of forgery, in all three degrees, requires the state to prove an "intent to defraud, deceive or injure another." See General Statutes...
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