State v. Scielzo

¶1The defendant was charged in an amended information with the crime of larceny in the second degree by receiving and disposing of stolen goods with a value in excess of $500. See General Statutes (Rev. to 1977) §§ 53a-123 (a) (2),1 53a-119 (8).2 He was found guilty as charged after a trial to the jury. This appeal followed.

¶2On appeal, the defendant claims that (1) the state failed to prove that he knew or believed that the property he received was probably stolen; (2) the state failed to adduce evidence that the value of the property received by him exceeded $500; and (3) he was afforded ineffective assistance of counsel at the time of trial.

¶3In view of the direct and circumstantial evidence before the jury, they could have reasonably concluded that the state had satisfied its burden of proving the defendant’s guilt under the amended information of larceny by receiving stolen property as that is defined by General Statutes § 53a-119 (8).

¶4Viewing the evidence in the light most favorable to sustaining the verdict, the jury could have found the following facts: On July 6, 1977, the Milford-Orange YMCA purchased a new “Boston Whaler” (Whaler) boat from the Olson Marine Company3 for $1550. This *193boat was 14 feet long, fully equipped, and included a 1975 Evinrude outboard motor. It had previously been registered with the Connecticut department of motor vehicles by Olson Marine and assigned the registration number CT369X. The YMCA kept the Whaler at the Milford Harbor Marina in Milford.

¶5On August 1, 1977, the director of the YMCA complained to the Milford police department that the Whaler had been stolen from its slip at the Milford Harbor Marina. It was stolen by the state’s witness Larry Brackett, who had pled guilty to larceny in the second degree for that larceny sometime prior to the defendant’s trial.4 When he stole it, Brackett took the boat by water to the backyard of his Milford home.5 When he got it to his backyard he “started taking it apart” and he took off “everything that wasn’t tied down.” He took off or removed the motor, gas tanks, engine mounting, controls, wiring, throttle, shift, ignition, electrical wiring, gas cable, throttle cable, motor harness, battery and battery box, steering cables, pullies and lights. In addition, he removed an identification number plate on the outside of the boat which was held on by bolts or rivets. He also observed the numbers “396” on the bow of the stolen Whaler. He put putty in the area where he had removed the number from the outside of the boat. The same number was also embossed inside the hull in the back of the boat; he filled or covered it with putty.

¶6After Brackett had stripped the boat, he tried to sink it6 in the swamp behind his backyard. The boat, *194however, did not sink. While most of it was submerged at high tide, at low tide it just sat in the mud. After a time, Brackett dragged it out of the swamp, bottom side down, over rough ground to his backyard.

¶7Sometime thereafter in August, 1977, David Williams7 visited his friend Brackett at the latter’s house. While there, he saw the Whaler on a trailer and had a conversation with Brackett about the boat. As a result of that conversation, Williams showed the boat to the defendant a few days later while it was still in Brackett’s yard. At that time Williams told him that the boat “was an insurance fraud,” that it was a-few months old and that “it was a little bit hot.” The defendant was interested in taking it and Williams told the defendant he wanted about $500. Williams believed the defendant told him he would pay $300 for it.8 About a week or two later after the defendant removed the Whaler and the trailer from Brackett’s yard, Williams went to see the defendant and asked him if he had any money for the boat. The defendant told him to come back “about a week later.” The second time Williams went back to see the defendant, the latter told him it was the YMCA’s boat and also asked Williams why he had not told him it was the YMCA’s boat. The defendant told him he had gotten rid of the*boat in New York. Williams testified that he had told the defendant the boat was stolen. Williams received $100 from the defendant for the boat.

¶8After the Whaler and the trailer had disappeared from his backyard, Brackett asked Williams where the trailer was and requested that he get it back. Williams told him that someone from the Marine Engine Ser*195vice had picked up the boat and the trailer. Brackett went to the Marine Engine Service, which was owned and operated by the defendant, and inquired of the defendant about the trailer. The defendant told him “they had to get rid of it.”

¶9The state’s witness, Alfred L. Fernald, had been employed by the Olson Marine Company for thirty years and was the service manager in July, 1977. He knew the defendant who was a former employee of that company. Fernald testified that the Whaler had a serial number on it, which is the Coast Guard identification number and is fastened to the aluminum plate on the Whaler which is riveted to the fiberglass hull. On the basis of his experience in the boat business, he testified that the significance of that serial number was that “it is similar to the identification number on an automobile. That’s the identification number of it.” It indicates the serial number, the year it was built and the boat manufacturer. As a boat dealer he would “check to make sure that number was affixed.” In addition, there is another identification number on the rear of the boat inside the center of the transom just below where the motor attaches to the back of the boat. That was the Whaler’s identification number “which just has meaning to the factory itself.” When Ronald Hart, the person to whom the defendant sold the boat, purchased it on September 11, 1977, there was no identification number on the boat.9

¶10On September 23, 1977, Robert Slattery, the investigating state trooper, examined the boat that Hart had purchased from the defendant. He had previously contacted the Boston Whaler Company in Massachusetts and he was looking for identification numbers on that boat. In this regard, he looked in the *196area below the engine mount.10 Slattery removed the Johnson sticker from this location and he found “an area underneath the sticker which had been ground down.” He found no serial number in that location. His investigation also disclosed an area on the rear of the boat “with four small holes which appeared to have been filled in with a putty-like or some substance.” He never found “any serial numbers on the entire boat.”

¶11On the basis of the foregoing evidence we must reject the defendant’s claim that he neither knew nor believed that the property he received was probably stolen. “‘We have repeatedly stated the test which this court employs to determine whether the evidence is sufficient to sustain a verdict: “ ‘[T]he issue is whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt ....’” State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 479 (1980), quoting State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978). . . . “[T]he evidence presented at the trial must be given a construction most favorable to sustaining the jury’s verdict.” State v. Jackson, supra, 262; see State v. Nemeth, supra;State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). Each essential element of the crime charged must be established by proof beyond a reasonable doubt, “ ‘and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort *197to speculation and conjecture.’ ” State v. Gaynor, supra, 503; State v. Festo, supra, 259.’ State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot ‘constitutionally stand,’ as it is violative of due process under the fourteenth amendment. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982).” (Footnote omitted.) State v. Haddad, 189 Conn. 383, 387-88, 456 A.2d 316 (1983). The Jackson court took pains to point out that the inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt “does not require a court to ‘ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt.’ ” (Emphasis in original.) (Citation omitted.) Jackson v. Virginia, supra, 318-19. The court then said: “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee *198the fundamental protection of due process of law.” (Emphasis in original.) (Footnotes omitted.) Jackson v. Virginia, supra, 319; see United States v. Eden, 659 F.2d 1376, 1382 (9th Cir. 1981), cert. denied, 455 U.S. 949, 102 S. Ct. 1450, 71 L. Ed. 2d 663 (1982).

¶12The defendant argues that although he may have been found to have known that the Whaler was “an insurance fraud” and although he was told that it was a “little hot,”11 these facts do not suffice to prove him guilty of receiving stolen goods. Even if we were inclined to agree that these two circumstances in isolation were not sufficient, there was the additional evidence we have earlier set out. We recognize that “an error of judgment in failing to realize the stolen character of the goods is not the equivalent of guilty knowledge.” State v. Appletree, 35 Conn. Sup. 531, 533, 394 A.2d 744 (1977), citing State v. Newman, 127 Conn. 398, 401, 17 A.2d 774 (1940). Moreover, “[ajctual knowledge that the property has been stolen is. necessary, but the trier ‘would not be justified in finding knowledge unless the facts referred to were such that a reasonable man—the accused as a reasonable man—should have inferred and gathered from them *199knowledge that the goods were stolen.’ State v. Weiner, 84 Conn. 411, 418, [80 A. 198 (1911)].” State v. Appletree, supra, 534. We conclude that there was sufficient evidence before the jury to enable them reasonably to find that the state had proven the defendant guilty of receiving stolen goods as defined by General Statutes § 53a-119 (8).

¶13The dissent declares that Williams, who was one of the state’s witnesses, “changed” his statement. Whether he “changed” his statement or not and, if so, how that weighed with the jury in evaluating all his testimony was for the trial jury who actually saw, heard and sized up Williams as they did any other witness. See, e.g., State v. Hoyeson, 154 Conn. 302, 305, 224 A.2d 735 (1966); State v. Coulombe, 143 Conn. 604, 608, 124 A.2d 518 (1956). That was the same trial jury who also saw Williams when he said he felt threatened and afraid of the defendant when the latter came to see him sometime after the theft and before trial. See Frankovitch v. Burton, 185 Conn. 14, 22, 440 A.2d 254 (1981). It is difficult, therefore, if we employ the required standard of review, to agree that the evidence before the jury could not reasonably support the verdict of guilty. It is recognized that under the Jackson standard “credibility choices are solely within the province of the jury, and we must accept whatever choice supports the jury’s verdict.” United States v. Wuagneux, 683 F.2d 1343, 1358 (11th Cir. 1982); see United States v. Hewitt, 663 F.2d 1381, 1384 (11th Cir. 1981). This jury, therefore, could have reasonably found this defendant guilty.

¶14Because the defendant was charged under General Statutes (Rev. to 1977) § 53a-123 (a) (2), the state was required to adduce sufficient evidence to justify the finding by the trier that the value of the property received by the defendant exceeded $500. The defend*200ant claims that there was no evidence that the value of the boat he received exceeded $500. This claim of insufficiency of the evidence goes to an essential element of the crime charged. The state argues that after considering the facts presented and the reasonable inferences therefrom, the jury could, without resort to speculation and conjecture, have found that the state sustained its burden of proving the element of value as alleged in the amended information.

¶15The state argues in its brief and before us that the value generally to be ascribed to stolen property is its value at the time of taking. In argument before us, it urged that value should be determined as of the time of the original theft by Brackett. While claiming that the purchase price is a relevant consideration, it concedes that depreciation is also to be considered. In this regard, it maintains that although the purchase price of $1550 paid for the Whaler by the YMCA on July 6, 1977, was “subject to 20-30% depreciation within 2-3 months,” the value of the property still exceeded $500. It goes on to say that value at the time of disposition was $1450. The state’s alternative position is that even were we to adopt the defendant’s argument that his liability is limited to the value of the property at the time of the transfer to him, there was evidence that “he was able to use the stolen property to provide a motor boat for a willing purchaser at a price of $1,450.00.” We cannot accept any of the state’s claims that it proved value in excess of $500.

¶16In this state the degree of larceny and the severity of the punishment vary by statute according to the value of the property which is the subject of the crime. See generally State v. Baker, 182 Conn. 52, 61-62, 437 A.2d 843 (1980). General Statutes (Rev. to 1977) § 53a-123 provides: “(a) A person is guilty of larceny in the second degree when: . . . (2) the value of the prop*201erty or service exceeds five hundred dollars . . . .” General Statutes (Rev. to 1977) § 53a-119 (8) defines larceny by receiving stolen property as follows: “A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner. ...” General Statutes § 53a-121 (a) provides: “[T]he value of property . . . shall be ascertained as follows: (1) . . . 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. . . .”

¶17Pursuant to these statutes, we must reject the state’s claim that the defendant could be convicted on the basis of the value of the Whaler at the time it was originally stolen by Brackett. The defendant could only have committed the crime with which he was charged when he received, retained or disposed of the Whaler. He did not commit any crime at the time Brackett originally stole it. Therefore, the state’s claim that the guilty verdict returned by the jury should be sustained requires that we address whether it proved, as required, that the defendant received, retained or disposed of stolen property in excess of $500. The state did not do so. We agree with the defendant that the evidence was clearly insufficient on this essential element of the crime charged.

¶18First, we cannot accept the state’s claim that it proved that the value of the Whaler exceeded $500 when the defendant received it from Williams. The evidence simply does not justify any such finding. Value, under § 53a-121, means market value at the time *202and place of the crime or if that cannot be “satisfactorily ascertained,” the cost of replacement within a reasonable time after the crime. The state did not prove either. The admitted original purchase price of the Whaler of $1550 does not satisfy that burden because the defendant did not “receive” a new Whaler. We have set out at some length the thorough stripping of the Whaler effected by Brackett, the actual thief, as well as its treatment and condition thereafter prior to its reception by the defendant. The state goes on to refer to Fernald’s testimony that in August or September, 1977, the worth of the Whaler would be “roughly 20 percent less than ($1,550)” which would still be in excess of $500. It should be added that Femald’s “roughly 20 percent less” figure was explicitly conditioned upon its being “in good condition.”12 Its condition had changed in at least two respects. First, it was no longer equipped as it was when sold for $1550. Second, the actual Whaler received by the defendant was, from the testimony and the photographs in evidence, not at all in the condition it was when purchased—nor for that matter when Brackett stole it. While market or replacement value at the time of actual theft may be relevant for grading the offense of larceny, it must be recognized that “[t]he criminal reception of stolen goods may occur at a time far removed from the original taking . . . and they may be in a substantially changed condition.” State v. Spraggin, 71 Wis. 2d 604, 620, 239 N.W.2d 297 (1976). While the statute involved in United States v. Evans, 446 F.2d 998 (8th Cir. 1971), was different, we favor that court’s “practical view that a receiver’s penalty must be measured by the value of the property which is received or possessed.” Id., 1001. *203“Value in the context of receiving stolen property is usually considered to mean ‘fair market value’ at the time of reception.” State v. Spraggin, supra.

¶19In People v. Harold, 22 N.Y.2d 443, 239 N.E.2d 727 (1968), the time frame was much more constricted than in the case at bar. The New York Court of Appeals held that the original purchase price of a pump of $124 was insufficient evidence of its value to sustain a grand larceny conviction when it was stolen five days after purchase from a job scene where the original purchase price was the only evidence of value. The pump was stolen after the plumbers, who had commenced installing it, gave up doing so after they had bent the copper tubing, “pushed up” the gauge and “nicked” the pump in several spots. The court said allowance had to be made for the fact that the pump was no longer new. See also People v. Liquori, 24 App. Div. 2d 456, 260 N.Y.S.2d 409 (1965). In a similar context, the court in Spencer v. State, 217 So.2d 331 (Fla. App. 1968), reversed a conviction of grand larceny of electrical wire stolen from a power pole. In Spencer, evidence was that the theft of the wire in question, which was strung on power poles, cost ninety cents per foot including transportation and installation. The state was required to prove that the property stolen was worth in excess of $100. In holding that the state had not done so, the Spencercourt said: “The thing stolen was not the installed wire, but was the wire after it had been severed and dropped to the ground. ... It is our conclusion that the cost of the wire in place is not the criterion of value authorized by the statute.” Id., 332.

¶20The same lack of evidence of the necessary value to justify a finding of larceny in the second degree that exists when the defendant actually received the stolen property persists thereafter during the retention of the criminal possession of the Whaler through its disposi*204tion by the defendant to Hart for $1450. Although it is a fair inference that the defendant was able to “use” the Whaler while it was in his possession so as to sell it to Hart for $1450, the state’s claim that that evidence proves the Whaler’s value itself to be over $500 is specious. Actually, the evidence is that the defendant sold Hart not only the Whaler (presumably quite operable),13 but also a 40 horsepower Johnson motor and a boat trailer. The defendant had worked on the boat after he received it; how much it was increased in value is not disclosed by the evidence. It is true that Williams testified that he got $100 from the defendant, but the Whaler and a trailer were taken from Brackett’s backyard after the discussion between the defendant and Williams. The trailer, which did not belong to Brackett, was not returned and there is no evidence that that was the trailer sold to Hart. The evidence of value of the property received, i.e., the Whaler, retained and disposed of was such that the jury could not find its value to be in excess of $500 except on speculation or conjecture. The state did not maintain its burden on this essential element of the crime charged. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978).

¶21In this case, the trial court instructed the jury on the lesser included crimes of larceny down to and including larceny in the fourth degree. The defendant does not claim error as to any portion of the charge. Therefore, the jury’s verdict in this case includes a determination based upon sufficient evidence that all the elements of the lesser included crime of larceny in the fourth degree *205had been proven beyond a reasonable doubt.14 “Since the jury could have explicitly returned such a verdict, the defendant was well aware of [his] potential liability for this crime and would not now be prejudiced by modification of the judgment rendered on the verdict consistent with the above. See State v. Grant, 177 Conn. 140, 146-47, 411 A.2d 917 [1979].” State v. Saracino, 178 Conn. 416, 421, 423 A.2d 102 (1979); see State v. Coston, 182 Conn. 430, 437, 438 A.2d 701 (1980). Such a modification of the judgment is appropriate here.

¶22The defendant’s final claim is that he was denied effective assistance of counsel at trial. It is treated cursorily in the defendant’s brief but he points out that trial counsel was appointed as a special public defender and “entered his appearance only one month before trial.”15 Trial counsel’s motion for a continuance to engage in further investigation and trial preparation was denied. Appellate counsel, in briefing this issue, states that “[a]t this juncture . . . [he] simply would posit that based on facts disclosed by the trial transcript, this is a case which should have culminated in a verdict of not guilty.” The state argues that there is no evidence to support the defendant’s claim of ineffective assistance of counsel at trial as well as no evidence to link this claim with the verdict rendered.

¶23“ ‘It is fundamental that a defendant in a criminal matter is guaranteed the right to the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 344, 83 *206S. Ct. 792, 9 L. Ed. 2d 799 (1963). The right to counsel is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Reece v. Georgia, 350 U.S. 85, 90, 76 S. Ct. 167, 100 L. Ed. 77 (1955); Powell v. Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 77 L. Ed. 158 (1932). “ ‘Defense counsel’s performance must be reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. The defendant’s burden is to show that his counsel’s conduct fell below that standard and that the lack of competency contributed to the conviction.’ ” State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976).’ Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981); see State v. McClain, 171 Conn. 293, 370 A.2d 928 (1976).

¶24“We initially wish to reemphasize that the issue of the adequacy of trial counsel is more properly pursued on a motion for a new trial or on a petition for a writ of habeas corpus, rather than on a direct appeal. See State v. Barber, 173 Conn. 153, 154-55, 376 A.2d 1108 (1977). Absent an evidentiary hearing on this issue, the claim is extremely difficult to review. See Id.” State v. Just, 185 Conn. 339, 370-71, 441 A.2d 98 (1981); see also State v. Mason, 186 Conn. 574, 577-78, 442 A.2d 1335 (1982).

¶25From what is before us, we find no merit to this claim of the defendant. We have already noted the paucity of the factual predicate for this claim in his brief. We do, however, also note that trial counsel’s motion for a continuance involved a contested evidentiary hearing, that he took many objections and exceptions during the trial, that he often cited authority for his claims at trial and that he. conducted extensive examinations of various state’s witnesses both on the voir dire and *207cross-examination. In addition, he filed a number of motions before, during and after trial including moving for election, supplemental discovery, reargument of dismissal, suppression of statements, exclusion of evidence of certain claimed misconduct, and for acquittal and judgment of acquittal. He also filed requests to charge and took exceptions to the court’s instructions to the jury. His motion for judgment of acquittal, which was comprehensive, was premised on the grounds of insufficient evidence including the element of value.

¶26Accordingly, the case is remanded for modification of the judgment in accordance with this opinion and for resentencing on the lesser included offense of larceny in the fourth degree as that statute existed at the time the defendant was arrested and charged in this case.

¶27In this opinion Peters, Parskey and Grillo, Js., concurred.