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STATE OF CONNECTICUT v. TYWAN EDWARDS
(AC 42327)
Lavine, Alexander and Flynn, Js.*
Syllabus
Convicted, after a jury trial, of the crime of larceny in the second degree,
the defendant appealed to this court. The defendant’s conviction
stemmed from his alleged reception of stolen property in the form of
one Rolex watch, taken from the victims, D and S, during a break-in of
their home by the defendant’s brother. During the break-in, three Rolex
watches were stolen, valued by D at $11,000, $5000 and $16,000. Over
the defendant’s objection, the trial court admitted a portion of a police
detective’s testimony regarding a surveillance video that showed the
defendant, in a business that provided jewelry appraisals, in possession
of one of the Rolex watches. The defendant claimed, inter alia, that the
evidence was insufficient to support a finding that the value of the watch
in his possession was more than $10,000 or that he knew the watch
was stolen as required by statute (§ 53a-123). Held:
1. The evidence was sufficient to support the defendant’s conviction of
larceny in the second degree:
a. There was sufficient evidence that the value of the property was more
than $10,000 as required by § 53a-123 (a) (2): although D testified that
one of the stolen watches had been worth only $5000, his description
of that watch did not include diamonds, and D testified that the watch
seen with the defendant in the surveillance video was his diamond
Rolex, recognizable by its dial and condition, which he had valued at
$16,000, a clerk on the surveillance video examined the watch and
confirmed the authenticity of diamonds on it to be genuine, and the
jury was entitled to weigh the credibility of conflicting evidence that S
had valued all three watches below $10,000, and, thus, the jury could
have found that the defendant possessed the $16,000 watch; moreover,
the state established that D owned the watch and D’s testimony as to
the value of his watch was sufficient to put the question of value before
the jury, which was entitled to weigh that evidence in finding the value
of the property.
b. Sufficient evidence existed for the jury to find that the defendant
knew the property was stolen; the jury’s decision to find the defendant
not guilty of various other crimes with which he had been charged by
the state did not preclude the inference that the defendant likely knew
the property was stolen, as there was testimony that the watch the
defendant possessed days after the break-in was stolen, the defendant
made inconsistent statements to the police as to how he had obtained
the watch, there was evidence that the defendant’s brother had been
identified by the victims as a suspect in the break-in, had been connected
to the stolen watches and had been found in possession of D’s stolen
documents, and the defendant made an unsolicited reference to the
police regarding identifications of the suspects made through Facebook
that suggested the defendant was aware of the circumstances of the
break-in.
2. The defendant could not prevail on his claim that the trial court erred in
admitting evidence of the police detective’s testimony regarding the
surveillance video over his objection, even if improper, as he failed to
show that the admission caused him harm; the challenged testimony
was cumulative of D’s testimony in which he identified the Rolex as his
from the surveillance video, which the defendant did not challenge.
3. The trial court did not abuse its discretion in excluding certain impeachment evidence by prohibiting the defendant from cross-examining S on
the topic of her drug related arrest subsequent to the break-in: S testified
that she had a criminal history and had sold drugs from her home but
that she stopped selling pills after the break-in, and the court denied
defense counsel’s request to cross-examine S regarding the underlying
facts of her arrest months after the break-in during which she had been
found with a large quantity of cash and pills on her person, as she
was ultimately convicted of illegal storage, not sale, of narcotics, that
conviction did not tend to prove that she had lied about ceasing to sell
controlled substances, and impeaching S on this issue would be an
overly speculative collateral inquiry requiring impermissible extrinsic
evidence; moreover, the court gave the defendant wide latitude to
impeach S through other means.
4. The defendant’s claim that the trial court committed structural error by
using a certain phrase in its jury instruction concerning reasonable
doubt was unavailing; our Supreme Court repeatedly has upheld the use
of instructions employing the very language challenged by the defendant,
and this court, as an intermediate appellate court, was bound by that
controlling precedent.
Argued September 21, 2020—officially released January 26, 2021
Procedural History
Substitute information charging the defendant with
the crimes of burglary in the first degree, robbery in
the first degree, conspiracy to commit larceny in the
first degree, assault in the second degree and larceny
in the second degree, brought to the Superior Court in
the judicial district of New Haven, geographical area
number twenty-three, and tried to the jury before B.
Fischer, J.; verdict of guilty of larceny in the second
degree; thereafter, the court, B. Fischer, J., denied the
defendant’s motion for a judgment of acquittal and rendered judgment in accordance with the verdict, from
which the defendant appealed to this court. Affirmed.
Jeremiah Donovan, assigned counsel, for the appellant (defendant).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Karen M. Roberg, assistant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Tywan Edwards, appeals
from the judgment of conviction, rendered after a trial
to a jury, of larceny in the second degree in violation
of General Statutes § 53a-123 (a) (2). On appeal, the
defendant claims that (1) the evidence was insufficient
to convict him of larceny in the second degree because
the jury could not reasonably have found that (a) he
possessed stolen property of a value greater than
$10,000 or (b) he knew the property in his possession
was stolen, (2) the trial court improperly admitted into
evidence the testimony that the victim had identified
items in a video exhibit as his, in violation of the rule
against hearsay, (3) the trial court improperly prevented
the defendant from cross-examining a witness concerning her alleged drug dealing subsequent to the crime
with which he was charged, and (4) the trial court
erroneously instructed the jury concerning reasonable
doubt. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, are relevant to this appeal. Samantha Frank
(Samantha)1 generated income by working from her
New Haven home as a psychic and by illegally selling
pills for which a prescription was required. One of her
customers was Dijon Edwards, the wife of the defendant’s brother, Terrance Edwards. On January 20, 2017,
Dijon Edwards, accompanied by a man named Marcel,
purchased pills from Samantha.2 Later that night, two
men broke into the Franks’ home, disturbing Samantha,
her husband David Frank (David), and two relatives
who were staying with them. One of the men wore a
mask covering the lower portion of his face. The intruders threatened them at knifepoint and stabbed David
in the arm. The men took Samantha’s purse and David’s
wallet and left. The purse contained car keys, jewelry,
and, notably, three expensive watches: a Rolex Daytona
watch and two Rolex Datejust watches, which are at
the center of this appeal.
The Franks (victims) called the police, and David
went to the hospital. The victims later spoke to Detectives Kealyn Nivakoff and her partner, members of the
New Haven Police Department. The victims gave statements and identified the defendant and his brother as
the intruders.
The police undertook surveillance of Terrance
Edwards’ residence. On January 23, 2017, Nivakoff
interviewed Terrance Edwards and Dijon Edwards. At
the conclusion of Terrance Edwards’ interview, Nivakoff searched his wallet and found a driver’s license
and Social Security card belonging to David. The police
made contact with the defendant that day, at which
time they searched him with his consent and found a
business card from the American Diamond Exchange
on his person. The police subsequently searched Ter-
rance Edwards’ residence and recovered jewelry and
a Rolex Daytona. The victims identified the items the
police found in the residence as theirs, which they had
last seen on the night of the break-in. A search of Dijon
Edwards’ phone revealed a photograph of a Rolex
watch. When David was shown a printout of the photograph from Dijon Edwards’ phone, he identified his
stolen property, writing ‘‘Yes, that’s my [Rolex] Daytona
watch 5-16-18’’ on the photograph.
Nivakoff went to the American Diamond Exchange
and spoke to a clerk, Kathleen Kirker, who had interacted with the defendant. Nivakoff viewed a surveillance video of the defendant’s visit. The video depicted
the defendant showing Rolex watches to Kirker and
asking about an appraisal to establish the value of one
of the watches and to confirm the authenticity of the
diamonds on it.
An arrest warrant for the defendant was issued in
February, 2017. The defendant was located in Arizona
and arrested in November, 2017. He was charged with
burglary in the first degree, robbery in the first degree,
conspiracy to commit larceny in the first degree, assault
in the second degree, and larceny in the second degree.
At trial, the state offered the photograph of the Daytona watch found in Dijon Edwards’ phone into evidence. The defendant did not object. David identified
the handwriting on the photograph as his own and again
identified the Daytona watch in the photograph as his.
The Daytona watch itself was admitted into evidence.
In his testimony, David also identified one of the
watches in the American Diamond Exchange surveillance video as his Rolex Datejust. Neither of the two
stolen Datejust watches was recovered by the police.
On June 19, 2018, the jury found the defendant guilty
of larceny in the second degree by receiving stolen
property, but found the defendant not guilty of the other
charges. The court accepted the jury’s verdict and
imposed a total effective sentence of eight years of
incarceration. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the state presented
insufficient evidence to prove beyond a reasonable
doubt that the value of the stolen property in his possession exceeded $10,000, or that he knew that one of the
watches in his possession had been stolen. We disagree.
The standard of review for such claims is well established. ‘‘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 combination with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Williams, 200 Conn. App. 427, 447,
238 A.3d 797, cert. denied,
335 Conn. 974,
240 A.3d
676 (2020).
The following additional facts inform our analysis.
On the afternoon before the break-in, Samantha sold
Percocet pills to Dijon Edwards. Marcel was present
during the transaction. In order to complete the transaction, Samantha retrieved the pills from her purse, and
while she did this, the contents of her purse were visible
to Dijon Edwards and Marcel. During the break-in that
night, the intruders threatened the victims with knives,
yelling, ‘‘Where’s the purse?’’ The intruders ultimately
departed with Samantha’s purse. Following the break-in, she told police that her purse contained three Rolex
watches valued at $6000, $4000, and $8500.
Samantha suspected one of the intruders was related
to Dijon Edwards. Dijon Edwards was a frequent customer of Samantha, and Dijon’s husband, Terrance
Edwards, had sold Samantha cocaine in the past. The
day after the break-in, the victims contacted Marcel in
the hope that he could provide more information about
the intruders. Marcel shared with the victims several
Facebook photographs of individuals whom he believed
may have been involved in the break-in. These Facebook photographs depicted the defendant and his
brother. Believing the individuals in the Facebook photographs were the intruders, the victims shared their
suspicions with Nivakoff on January 22, 2017. The victims went to the police department to give statements,
at which time they were shown photographic arrays.
Both victims identified the defendant and his brother
Terrance Edwards as the intruders from their recollection of the event.
The police detained the defendant near his brother’s
residence. The police found a business card from American Diamond Exchange on the defendant’s person. On
the business card were the words ‘‘Rolex Watch
Appraisal $250 Call for Apt.’’ Nivakoff interviewed the
defendant after the police detained him. The defendant
stated to her that he was not on good terms with his
brother but planned to meet him for drinks that day.
The defendant explained to Nivakoff that he had
acquired the American Diamond Exchange card during
a visit to the store concerning a Michael Kors watch he
was wearing. When speaking to Nivakoff, the defendant
also made a vague reference to ‘‘people being able to
identify people from Facebook,’’ which Nivakoff
found odd.3
Nivakoff visited American Diamond Exchange and
obtained an audiovisual surveillance video depicting
the defendant and another man entering the store.4 The
second man handed the defendant two watches, which
he handed to the clerk, Kirker. One of the watches had
a broken band and was referred to by the defendant
as a Rolex. The other watch contained what appeared
to be diamonds. The defendant stated to Kirker that
his Rolex was broken. Kirker responded that David
Schnee, another employee, might be able to look at it
when he was in, as he was the ‘‘only one who knows
about Rolexes.’’ The defendant then asked her if the
store had a diamond checker, showing her the second
watch. He indicated that he wanted to make sure the
diamonds were real, commenting that there were a lot
of diamonds on the watch. Kirker took the watch into
a back room to look at the diamonds. When she
emerged, she and the defendant discussed appraising
the watch’s value. She asked the defendant if he planned
to sell the watch, to which he replied in the negative.
He asked her if she had tested all the diamonds, and
she assured him that the ones she had looked at were
definitely real. She gave the defendant a card and stated
that the fee for ‘‘the Rolex watch appraisal [would be]
$250’’ and he needed to call for an appointment. The
police did not recover either of the watches depicted
in the video.
Following his November, 2017 arrest in Arizona, the
defendant gave a statement to Nivakoff in which he
stated that his brother Terrance Edwards had given him
a Rolex watch in payment of a debt and that he had
taken it to American Diamond Exchange for appraisal.
This statement contradicted his previous statement in
which he had stated that he had obtained the American
Diamond Exchange card with respect to a Michael Kors
watch appraisal.
In a long form information, the state charged the
defendant with, inter alia, larceny in the second degree
and charged that ‘‘at the city of New Haven, on or about
January 23, 2017, at approximately 3:45 p.m., in the area
of 1280 Whalley Avenue [American Diamond
Exchange], the said [defendant] received or retained
stolen property knowing that it had probably been stolen or believing that it had probably been stolen, and the
value of the property exceeded [$10,000], said conduct
being in violation of sections 53a-119 (8) and 53a-123
(a) (2) of the Connecticut General Statutes.’’
At trial, Schnee testified that American Diamond
Exchange provided ‘‘jewelry appraisals’’ on Rolex
watches to determine valuation. According to Schnee,
Rolex watches are a particularly desirable brand of
watch, and the presence of gems on a watch increases
the value ‘‘depending on the quality.’’ He confirmed that
the handwriting on the American Diamond Exchange
card was Kirker’s. David testified that in the video he
recognized ‘‘one of my watches, the—the diamond
Datejust. Or the Datejust, yes, one of the Rolex
watches.’’ He recognized it ‘‘by the video and knowing
that it’s—it was mine.’’ When asked if there was anything particular about it that he observed, he referenced
the condition and the dial.
David also testified as to the value of the watches.
According to him, the watches in Samantha’s purse
were a Rolex Daytona worth $11,000, a Rolex Datejust
worth $5000, and a second Rolex Datejust worth
$16,000. He described the first Datejust watch, valued at
$5000, as ‘‘a black—one had black face, oyster perpetual
and oyster band, late 80’s model . . . stainless.’’ As for
the second Rolex Datejust, it was worth $16,000, but
David did not describe it in detail.
The defendant moved for a judgment of acquittal at
the close of the state’s case-in-chief and following closing arguments. The court denied both motions. After
the court charged the jury, the jury returned a verdict
of guilty of the charge of larceny in the second degree.
The defendant filed a written motion for a judgment
of acquittal on July 9, 2018, in which he argued that
there was insufficient evidence to conclude that he
‘‘knew that the watches he displayed at [American]
Diamond Exchange were stolen or probably had been
stolen,’’ and that there was insufficient evidence to conclude either that (a) property meeting the statutory
value of $10,000 was identified, or (b) David’s testimony
concerning value was sufficiently reliable. The court
denied the motion.
A
The defendant first claims that there was insufficient
evidence as to the value of the watches to support
his conviction. Section 53a-123 (a) provides in relevant
part: ‘‘A person is guilty of larceny in the second degree
when he commits larceny, as defined in section 53a-
119, and . . . (2) the value of the property or service
exceeds ten thousand dollars . . . .’’ The defendant’s
first claim of insufficiency of the evidence challenges
the second element, that the value of the property
exceeded $10,000. He raises two points. First, in charging him with larceny by possession of stolen property
at American Diamond Exchange, the state relied on
David’s identification of one of the two watches in the
surveillance video as one of the stolen watches. He
argues that because David identified only a single Datejust, the jury lacked sufficient evidence from which it
could have determined that David was referring to the
Rolex Datejust watch worth $16,000, as opposed to the
Rolex Datejust watch worth only $5000. Consequently,
he contends that the jury lacked sufficient evidence to
find that he possessed stolen property worth more than
$10,000. Second, he argues that, even if the jury concluded David had identified the watch in the video as
the $16,000 watch, the jury could not find the value of
that watch to be $16,000 solely on the basis of David’s
testimony. We reject both claims.
1
With respect to the defendant’s claim that the jury
could not have determined beyond a reasonable doubt
which of the two watches David identified in the video,
we conclude that there was sufficient evidence from
which the jury reasonably could have found that David
identified a watch worth more than $10,000.
In his testimony, David identified his diamond Rolex
Datejust in the video.5 He stated that he recognized the
watch ‘‘by the video and knowing that it’s . . . mine,’’
and explained that he had observed the watch’s ‘‘dial’’
and ‘‘condition’’ in the video. When describing the items
stolen from him, David testified that the $5000 Datejust
watch was stainless with a black face and oyster band,
but he did not reference diamonds. By contrast, the
watch that Kirker looked at in the back room had ‘‘a
lot of diamonds’’ on it. The jury thus could have drawn
the inference that the ‘‘diamond Datejust’’ David identified was not the $5000 watch with the black face and
oyster band, but the more expensive $16,000 watch.6
Additionally, Schnee testified that diamonds will
increase the value of a Rolex watch. The jury had a
basis to infer that the watch David identified was the
more expensive of the two given that it had ‘‘a lot of
diamonds,’’ some of which Kirker had examined and
confirmed to be genuine, while the other was not
described as containing diamonds. ‘‘[A] jury may draw
whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and
logical.’’ (Internal quotation marks omitted.) State v.
Rhodes, Conn , , A.3d (2020).
The defendant points out that Samantha told the
police that her purse contained Rolex watches with
values of $6000, $4000, and $8500—values below
$10,000. This, however, goes to the weight and credibility of the evidence, not its sufficiency. ‘‘When there is
conflicting evidence . . . it is the exclusive province of
the . . . trier of fact, to weigh the conflicting evidence,
determine the credibility of witnesses and determine
whether to accept some, all or none of a witness’ testimony. . . . Questions of whether to believe or to disbelieve a competent witness are beyond our review. As
a reviewing court, we may not retry the case . . . .’’
(Internal quotation marks omitted.) State v. Williams,
supra,
200 Conn. App. 448. Giving the evidence the most
favorable construction toward sustaining the jury’s verdict, we conclude that the evidence was sufficient for
the jury to find that David identified the $16,000
Rolex watch.
2
The defendant next contends that, even if the evidence was sufficient to conclude beyond a reasonable
doubt that David identified a watch with a value
exceeding $10,000, his testimony alone was insufficient
for the jury to find the value of the watch. He argues
that David’s single sentence testimony that the watch
was worth $16,000 was insufficient to satisfy the statutory value element because ‘‘there was no evidence
by an appraiser, by a seller of similar items, by an
independent owner or collector of Datejusts . . . no
documentary evidence: no catalogues, invoices,
Internet searches, price tags. . . . [David] gave no
background information concerning his acquisition of
the Datejusts . . . . Nor did he provide any basis for
his belief as to how much they were ‘worth’—or even
what he meant by ‘worth.’ ’’ The defendant reasons that
it is not clear that David was referring to the ‘‘market
value’’ of the watch at that time.7 The defendant’s
claim fails.
‘‘The determination of value is a question for the trier
of fact.’’ State v. Collette, 199 Conn. 308, 314,
507 A.2d
99 (1986). ‘‘A reviewing court will not disturb the trier’s
determination if, 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.’’ (Internal quotation
marks omitted.) State v. Felder,
95 Conn. App. 248, 261,
897 A.2d 614, cert. denied,
279 Conn. 905,
901 A.2d
1226 (2006).
‘‘Under the law in Connecticut, it is well settled that
an owner may testify as to the value of his or her
property.’’ State v. Sherman,
127 Conn. App. 377, 393,
13 A.3d 1138 (2011), cert. denied,
330 Conn. 936,
195
A.3d 385 (2018). In Sherman, this court explained that
‘‘[a]n owner may estimate the worth of his or her property, and the jury must consider the weight of the owner’s testimony. . . . The state does not need to prove
the value of property with exactitude. . . . The state
is required only to lay a foundation which will enable
the trier [of fact] to make a fair and reasonable estimate.
. . . Whether an owner’s testimony as to the . . .
value provides sufficient information to support a jury
verdict depends on the circumstances of each case.’’
(Citations omitted; internal quotation marks omitted.)
Id.
The defendant attempts to distinguish Sherman by
pointing out that in that case the owner testified as to
‘‘value,’’ not ‘‘worth,’’ and the jury could examine the
stolen jewelry itself as an exhibit, while here, the Datej-
usts were not in evidence.8 As the state correctly points
out, ‘‘value’’ and ‘‘worth’’ are typically synonymous
terms in our case law. See State v.
Sherman, supra,
127
Conn. App. 393 (using terms interchangeably). The state
is also correct that the owner’s testimony is sufficient
and the property need not be available for the jury to
inspect. In Sherman, this court rejected the claim that
‘‘any testimony provided by the owner regarding the
value of his or her property is incompetent unless the
state also provides some sort of factual foundation in
support of the testimony.’’
Id.
On the contrary, the owner’s testimony on its own
may be considered by the trier of fact. Our Supreme
Court has ruled that ‘‘the competence of the witness
to testify to the value of property may be established
by demonstrating that the witness owns the property
in question.’’ State v. Baker,
182 Conn. 52, 60,
437 A.2d
843 (1980); see also State v.
Felder, supra,
95 Conn.
App. 262 (‘‘[the victim’s] testimony with regard to the
value of his vehicle was sufficient to satisfy the statutory
element that the value of the motor vehicle was in
excess of $10,000, and [the victim] was competent to
testify as to the value of his property’’). Here, the state
established that David owned the watch. His testimony
was sufficient to put the question of value before the
jury, and the jury was entitled to weigh that evidence
accordingly.
B
The defendant next argues that whatever the value
of the watches may have been, there was insufficient
evidence to establish beyond a reasonable doubt that
he actually knew either one of the watches in his possession at American Diamond Exchange was stolen. He
argues that the jury’s finding of not guilty of four of the
counts with which he was charged established that he
was not one of the intruders, that there was no evidence
that he knew of the break-in, that he could assume
his brother had received the watch in exchange for
controlled substances consistent with his account to
Nivakoff, and that his conduct at American Diamond
Exchange was consistent with honest activity. We do
not agree.
General Statutes § 53a-119 defines larceny by receiving stolen property in relevant 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
. . . (8) Receiving stolen property. 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.
. . .’’ The defendant disputes the sufficiency of the evi-
dence to establish the statutory knowledge element.
The jury’s decision to find the defendant not guilty
of four of the counts, charging burglary in the first
degree, robbery in the first degree, conspiracy to commit larceny in the first degree, and assault in the second
degree, does not preclude an inference that, even if the
defendant had not participated in the January 20, 2017
events at the victims’ home, he still knew the property
was probably stolen. ‘‘[An] inference may be drawn if
the circumstances are such that a reasonable man of
honest intentions, in the situation of the defendant,
would have concluded that the property was stolen.’’
(Internal quotation marks omitted.) State v. Nunes, 58
Conn. App. 296, 301,
752 A.2d 93, cert. denied,
254 Conn.
944,
762 A.2d 906 (2000). ‘‘[P]ossession of recently stolen property raises a permissible inference of criminal
connection with the property, and if no explanation is
forthcoming, the inference of criminal connection may
be as a principal in the theft, or as a receiver under the
receiving statute, depending upon the other facts and
circumstances which may be proven.’’ (Internal quotation marks omitted.) State v. Foster,
45 Conn. App. 369,
376,
696 A.2d 1003, cert. denied,
243 Conn. 904,
701
A.2d 335 (1997).
The jury heard David testify that the watch the defendant possessed at American Diamond Exchange mere
days after the break-in was one of the stolen watches.
Our review of the evidence, undertaken in a light most
favorable to sustaining the verdict, reveals sufficient
evidence on which the jury could have relied in concluding the defendant knew that the watch was stolen.
The defendant told the police initially that he had
received the American Diamond Exchange card during
a visit that concerned his Michael Kors watch. Kirker’s
handwriting on the card referenced a Rolex, however,
and the defendant later told Nivakoff that he had
received a Rolex watch from his brother in satisfaction
of a debt. The defendant argues that the jury lacked a
basis to refute his claim that he received the watch
from his brother as payment without knowledge that
it was stolen. The jury did not have to accept either of
the defendant’s explanations. Rather, the jury could
have found that the defendant was not credible in light
of the state’s evidence of his inconsistent statements
to the police and in light of the other evidence produced
at trial.9 The jury heard evidence that the victims identified Terrance Edwards, that the police connected the
stolen watches to Terrance Edwards, and that Terrance
Edwards was found in possession of David’s documents. The jury could have understood the defendant’s
unsolicited reference to Nivakoff regarding Facebook
identifications as suggesting that he knew the circumstances of the break-in, given how the victims identified
the purported suspects through Facebook. On the basis
of this evidence, construing all inferences in favor of
upholding the verdict, we conclude there was sufficient
evidence for the jury to find that the defendant’s brother
was involved in the break-in, and to thus find that the
defendant’s explanation to the police for possessing the
watch was not truthful.
II
The defendant next claims on appeal that the trial
court erred by admitting into evidence a portion of
Nivakoff’s testimony regarding the surveillance video
over his objection, in violation of the rule against hearsay. This is a close issue, but irrespective of whether
the testimony is viewed as impermissible hearsay or
not, we conclude that the trial court’s admission of the
testimony was harmless.
The following additional facts inform our analysis.
David testified at trial that he was shown a surveillance
video by Nivakoff at the police station. As previously
stated in this opinion, he testified that he recognized
‘‘one of the watches’’ in that video—specifically, a diamond Rolex Datejust—as belonging to him. Nivakoff
later testified at trial. During Nivakoff’s testimony, the
surveillance video from American Diamond Exchange
was admitted into evidence and played to the jury. The
defendant’s hearsay claim concerns the state’s direct
examination of Nivakoff, objection by defense counsel,
and the court’s ruling, which occurred during the following colloquy:
‘‘[The Prosecutor]: Now, after you viewed this video,
did you show it to anybody else?
‘‘[The Witness]: I showed it to David Frank.
‘‘[The Prosecutor]: And when you showed it to David
Frank was he able to identify items in that—in that
video as his?
‘‘[The Witness]: Ye—
‘‘[Defense Counsel]: Objection. Hearsay.
‘‘The Court: What’s your claim on that?
‘‘[Defense Counsel]: Asking—
‘‘The Court: And hearsay, in other words, what David
Frank identified.
‘‘[Defense Counsel]: Yeah.
‘‘The Court: Yeah. What’s your claim on that?
‘‘[The Prosecutor]: I’m just asking yes or no, did
that happen?
‘‘The Court: I’m going—I’ll allow yes or no.
‘‘[The Witness]: Yeah.
‘‘The Court: Go ahead.
‘‘[The Witness]: I’m sorry. Yes, he did.’’
Following Nivakoff’s testimony, defense counsel did
not object to, or move to strike, the answer.10
We see no need to discuss in detail our analysis of
the relevant legal principles and applicable standard of
review, given our resolution of this issue. ‘‘Our standard
of review for evidentiary claims is well settled. To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of the [Connecticut] Code of
Evidence, our standard of review is plenary.’’ (Internal
quotation marks omitted.) State v. Michael T., 194 Conn.
App. 598, 611,
222 A.3d 105 (2019), cert. denied,
335
Conn. 982, A.3d (2020).
The defendant argues that Nivakoff’s testimony,
answering ‘‘[y]es, he did’’ to the question of whether
David had identified items in the video as his, was
inadmissible hearsay. He claims that the testimony was
offered for its truth, i.e., for the proposition that David
asserted items in the video were his. The state argues
that it elicited Nivakoff’s testimony merely to clarify
and to explain the process of Nivakoff’s investigation.
The state contends that it sought only a yes or no answer
and did not attempt to elicit the identity of the items
in the video.
For the purpose of resolving this claim, we will
assume, without deciding, that the trial court improperly admitted hearsay through Nivakoff’s testimony.11
We thus turn to the question of whether the admission of
Nivakoff’s challenged testimony amounted to harmful
error. Examining the evidence here, we cannot conclude, with a fair assurance, that the testimony substantially affected the jury’s verdict, and we, therefore,
determine that any error was harmless.
‘‘When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . We have
concluded that a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict. . . . We
previously have considered a number of factors in
determining whether a defendant has been harmed by
the admission or exclusion of particular evidence.
Whether such error is harmless in a particular case
depends [on] a number of factors, such as the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Considering these various factors, we have
declared that the proper standard for determining
whether an erroneous evidentiary ruling is harmless
should be whether the jury’s verdict was substantially
swayed by the error.’’ (Internal quotation marks omitted.) State v. Johnson, 171 Conn. App. 328, 338,
157
A.3d 120 (2017).
In the present case, the state argues that the hearsay
testimony was harmless error because the state had
previously elicited the substantive facts at issue from
David and did not need Nivakoff’s testimony to prove
that the items belonged to him. We agree. Nivakoff’s
testimony, to which the defendant objects, was cumulative of David’s testimony in which he identified a Rolex
watch in the video as being his. Nivakoff’s testimony
established only that David had identified items as his,
which the jury had heard from David himself. See State
v. Kerr, 120 Conn. App. 203, 215–16,
991 A.2d 605 (defendant not harmed by hearsay statements of two witnesses, where testimony of one was ‘‘largely parallel’’
of other witness’ testimony and other was cumulative),
cert. denied,
296 Conn. 907,
992 A.2d 1136 (2010).
The defendant argues that the error was harmful
because Nivakoff’s testimony referenced ‘‘items,’’ while
David testified only that a single item in the video—a
Rolex Datejust watch—belonged to him. He argues that
due to uncertainty as to which of the two Datejust
watches David’s identification applied to, which comprises his first insufficiency of the evidence claim, the
state needed to rely on Nivakoff’s testimony that David
identified ‘‘items’’ in the plural in order to establish that
the defendant possessed stolen property exceeding a
value of $10,000. Because we conclude in part I of this
opinion that the evidence was sufficient for the jury to
conclude that David identified a stolen watch with a
value exceeding $10,000, we reject the defendant’s
claim of harm. Thus, because the defendant did not
challenge the admissibility of David’s testimony on this
point, we conclude he was not harmed by Nivakoff’s testimony.
III
The defendant next claims that the trial court abused
its discretion by prohibiting him from cross-examining
Samantha about her drug dealing subsequent to the
break-in. We do not agree that the court abused its
discretion in declining to permit cross-examination on
what we view as a collateral matter.
The following additional facts inform our analysis.
Before Samantha testified, the court heard argument
on the state’s motion in limine to preclude certain evidence of her criminal history. She testified that she had
felony and misdemeanor convictions. The court limited
the defendant’s examination regarding these convictions to general terms without specific references to the
offenses involved. Several of her convictions concerned
illegal storage and possession of narcotics. In her subsequent testimony, she confirmed her criminal history
and admitted that she had sold drugs from her home,
including to Dijon Edwards and Marcel. She also admitted that she had purchased cocaine from Terrance
Edwards and admitted on both direct and cross-exami-
nation that she had lied to the police during the investigation regarding her drug dealing. She also testified that
she stopped selling pills after the break-in because it
was dangerous.
Defense counsel asked the court, outside the presence of the jury, to allow him to cross-examine Samantha concerning her arrest on July 5, 2017, which led to
her conviction in November, 2017, of illegal storage of
narcotics. Defense counsel argued that because Samantha had been found with a large quantity of pills and
cash on her person,12 it was suggestive of continued
drug dealing and cast doubt on the veracity of her previous testimony that she had stopped selling drugs after
the break-in. The prosecutor argued in response that
this line of inquiry was a collateral issue because the
witness had been convicted only of illegal storage of
narcotics, and that litigating it would require bringing
in a police officer for an ‘‘expert opinion on possession
with intent to sell.’’ The court allowed defense counsel
to cross-examine Samantha outside the presence of the
jury. She testified that the pills with which she had been
found in July, 2017, were for her own use. The court
ultimately ruled that the defense could not cross-examine her on the underlying facts of the July, 2017 arrest,
on the basis of her testimony that she had ceased selling
pills and the fact that she had been convicted only
of possession.13 On cross-examination before the jury,
Samantha admitted that she sold pills to Marcel the day
after she was interviewed by the police concerning the
break-in, in order to recoup money that she had lost.
She stated that this ‘‘must’ve slipped [her] mind’’ during
her previous testimony, and insisted that this was the
last sale she had conducted.
The defendant argues that he should have been permitted to cross-examine Samantha on the facts of her
July, 2017 arrest in order to impeach her previous testimony by suggesting that she had lied about ceasing to
sell drugs after her sale to Marcel. He contends that
the intended cross-examination regarding Samantha’s
arrest was offered to prove that she had lied under
oath, rather than to use the conviction itself, and thus
fell outside the ambit of § 4-5 of the Connecticut Code
of Evidence.14 We do not agree.
We begin our analysis by setting forth the relevant
legal principles and applicable standard of review.
‘‘Upon review of a trial court’s decision, we will set
aside an evidentiary ruling only when there has been
a clear abuse of discretion. . . . The trial court has
wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very
reasonable presumption should be made in favor of the
correctness of the court’s ruling in determining whether
there has been an abuse of discretion.’’ (Internal quotation marks omitted.) State v. Bermudez, 195 Conn. App.
780, 806,
228 A.3d 96, cert. granted on other grounds,
335 Conn. 908,
227 A.3d 521 (2020). ‘‘[I]t is well settled
that [a] court . . . [may] exclude . . . evidence [that]
has only slight relevance due to . . . its tendency to
inject a collateral issue into the trial. . . . An issue is
collateral if it is not relevant to a material issue in the
case apart from its tendency to contradict the witness.
. . . This is so even when the evidence involves
untruthfulness and could be used to impeach a witness’
credibility.’’ (Citations omitted, emphasis in original;
internal quotation marks omitted.) State v. Annulli,
309
Conn. 482, 493,
71 A.3d 530 (2013).
Section 6-7 (b) of the Connecticut Code of Evidence
provides in relevant part: ‘‘Evidence that a witness has
been convicted of a crime may be introduced by . . .
(1) examination of the witness as to the conviction
. . . .’’ The underlying facts of the conviction may not
be used to impeach the witness. See State v. Denby,
198 Conn. 23, 30,
501 A.2d 1206 (1985), cert. denied,
475 U.S. 1097,
106 S. Ct. 1497,
89 L. Ed. 2d 898 (1986).
‘‘If the crime for which the witness was convicted is
admissible on the merits of the case, however, the facts
surrounding the crime are admissible to the extent they
are relevant to a material issue in the case.’’ E. Prescott,
Tait’s Handbook of Connecticut Evidence (6th Ed.
2019) § 6.29.8 (a), p. 401, citing State v.
Denby, supra,
30–32.
Here, the crime for which Samantha was convicted, in
the court’s view, was a matter unrelated to the material
issues at trial; rather, it was relevant only to cast doubt
on her credibility before the jury. Samantha’s drug dealings were not a material issue in the trial. See State v.
Annulli, supra, 309 Conn. 494–95 (evidence sought on
cross-examination properly excluded because it was
not related to material issue ‘‘apart from its tendency
to contradict the witness’’ (emphasis omitted; internal
quotation marks omitted)).
Section 6-6 (b) of the Connecticut Code of Evidence
provides that a witness may be cross-examined on specific instances of conduct if probative of truthfulness,
but extrinsic evidence may not be used to prove those
instances. If denied, the examiner must take the witness’ answer. See E. Prescott, supra, § 6.28.5, p. 390. The
court allowed defense counsel to inquire of Samantha
whether she had sold drugs after her sale to Marcel;
she denied it. The court was not required to permit
further examination. See State v. Annulli, supra,
309
Conn. 495.
We agree with the state that allowing cross-examination to demonstrate that Samantha lied about her drug
dealing would result in a ‘‘minitrial of Samantha,’’ which
would require further offers of proof to determine
whether or not she had continued to sell drugs. Such
extrinsic evidence is normally not permitted. ‘‘[E]xtrinsic evidence is not admissible for impeachment on a
collateral matter . . . .’’ (Emphasis in original.) State
v. Annulli, supra, 309 Conn. 497–98; see id., 498 (stating
that ‘‘the introduction of such evidence, if permitted,
would have expended a disproportionate amount of
time in relation to the issue’s probative value’’). Samantha’s conviction of illegal storage of narcotics did not
tend to establish that she lied about ceasing to sell
controlled substances. The court acted well within its
discretion in determining that the defense had ‘‘no evidence’’ that the witness had continued to sell narcotics
and that impeaching her on this point would be an
overly speculative collateral inquiry necessitating
impermissible extrinsic evidence.
Moreover, the court gave the defendant wide latitude
to impeach Samantha through other avenues, such as
the fact that she had been convicted of multiple felonies,
that she had bought and sold drugs, and that she first
testified that she ceased selling drugs after the break-in before subsequently admitting to one additional sale
to Marcel following the break-in. As the court stated,
the jury was equipped to assess the credibility of Samantha’s testimony that the pills she was found with were
for personal use and that she had not continued to sell
them. The court did not abuse its discretion in limiting
the defendant’s cross-examination of Samantha.
IV
The defendant’s final claim on appeal is that the trial
court committed ‘‘structural error’’ in its jury instruction
regarding reasonable doubt.15 The defendant specifically objected to the court’s charge, ‘‘It is such a doubt
as, in the serious affairs that concern you, you would
heed; that is, such a doubt as would cause reasonable
men and women to hesitate to act upon it in matters
of importance.’’16 He claims that the inclusion of the
words ‘‘upon it’’ in the court’s jury instruction ‘‘renders
the instruction nonsensical’’ because it then ‘‘means
almost the opposite of what it should.’’ The defendant
cannot prevail on the merits. As we stated in State v.
Holley, 174 Conn. App. 488,
167 A.3d 1000, cert. denied,
327 Conn. 907,
170 A.3d 3 (2017), cert. denied, U.S.
, 138 S. Ct. 1012,
200 L. Ed. 2d 275 (2018), in which
the same model jury instruction was used, ‘‘our
Supreme Court repeatedly has upheld the use of instructions that utilized the very language the defendant challenges. . . . [A]s an intermediate court of appeal, we
are unable to overrule, reevaluate, or reexamine controlling precedent of our Supreme Court. . . . As our
Supreme Court has stated: [O]nce this court has finally
determined an issue, for a lower court to reanalyze and
revisit that issue is an improper and fruitless endeavor.
Accordingly, since our Supreme Court already has
determined that the challenged description of reasonable doubt is not improper, we cannot conclude to the
contrary.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.)
Id., 494–95. This court is
bound by these precedents.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Samantha identified herself as ‘‘Samantha Rose DeMetro’’ when she was
sworn in to testify, but she subsequently answered to the name ‘‘Mrs. Frank’’
during her testimony. For clarity, we will refer to her in this opinion as
Samantha Frank.
2
Samantha and her husband David Frank both testified that they did not
know Marcel’s last name.
3
Nivakoff testified at trial that she ‘‘thought it was kind of odd that he
would have brought it up.’’
4
The defendant concedes in his brief that he is pictured in the video.
5
To the extent that the brand of the second watch in the video, which
Kirker inspected, is disputed, the jury could have found that it was a Rolex.
The defendant contends in his brief that the second watch’s brand was
unidentified. Kirker, however, referred to the second watch as a Rolex.
6
The defendant also contended at oral argument before us that the diamonds were a red herring because when David explained how he knew the
watch was his, he referenced the ‘‘condition’’ and the ‘‘dial,’’ but did not
mention diamonds. This vague description does not preclude a reasonable
inference that the watch stolen from David had diamonds on it, particularly
given that the jury heard David identify the watch as his ‘‘diamond Datejust’’
immediately prior.
7
The defendant also contends that the court’s jury instruction on larceny,
that ‘‘[t]he third element is that the property had a value that exceeded
$10,000,’’ was unclear on what ‘‘value’’ actually meant because the court
did not define it for the jury. To the extent that this raises an instructional
error claim, we agree with the state that such a claim is not reviewable,
because the defendant did not object to this part of the instruction at trial.
See State v. Kitchens, 299 Conn. 447, 482–83,
10 A.3d 942 (2011) (acceptance
of jury instructions without objection waives constitutional claim of instructional error on appeal).
8
Although the watch itself was not in evidence, the jury was able to see
the watches depicted in the surveillance video. The state could not very
well offer a watch in evidence that had been stolen and not recovered.
9
The defendant’s arguments that his trip to American Diamond Exchange
and behavior within the store were ‘‘not the kind of secretive activity
expected of a purveyor of stolen property’’ are irrelevant because these
arguments go to the weight of the evidence. The jury was free to weigh the
state’s evidence and the nature of the defendant’s activity as described in
his statements to the detective in reaching its verdict, and it was not required
to infer what the defendant suggests.
10
The defendant argues that the question elicited hearsay but, because
there was no objection or motion to strike the answer, we question whether
the issue is properly preserved for review. ‘‘It is usually the case that when
. . . the answer to [a] question contains inadmissible material, an objection
made upon the answer is seasonable . . . . The proper form of such an
objection is a motion to strike the answer.’’ (Citations omitted; internal
quotation marks omitted.) State v. Gonzalez, 75 Conn. App. 364, 374,
815
A.2d 1261 (2003), rev’d on other grounds,
272 Conn. 515,
864 A.2d 847 (2005).
We need not decide this issue of preservation, however, because we conclude
that admission of Nivakoff’s testimony was harmless error, if any.
11
We note that the state’s offer of David’s identification has relevance
both to the sequence of events in the investigation and to the truth of the
matter asserted. Following the presentation of the video to the jury, the
state asked Nivakoff whether David had identified items in the video as his.
Of some concern is the fact that in essence, Nivakoff’s ‘‘yes’’ response could
be construed as testimony that David asserted his ownership of the items
to her. The state’s question could be construed as an attempt to elicit
testimony of such an assertion.
12
Samantha testified that she had 148 Alprazolam pills, 40 Risperdal pills,
82 acetaminophen and hydrocodone pills, and 125 TEVA diazepam pills, as
well as $1600 in cash.
13
The court ruled as follows: ‘‘She testified, and the jury is going to assess
her credibility, counsel, that she hasn’t sold pills since January 20, 2017,
the date of this incident. She has indicated in this offer of proof that the
pills that she purchased . . . were for her own personal use over the course
of time . . . and that’s her testimony . . . from what’s in front of me now
. . . I’m not going to allow a challenge to the—your claimed underlying
facts of her arrest . . . she has admitted to the felony there, but again it’s
not a sale, it’s a possession case.’’
14
Section 4-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) . . . Evidence of other crimes, wrongs or acts of a person is
inadmissible to prove the bad character, propensity, or criminal tendencies
of that person except as provided . . . .
‘‘(c) . . . Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to
prove intent, identity, malice, motive, common plan or scheme, absence of
mistake or accident, knowledge, a system of criminal activity, or an element
of the crime, or to corroborate crucial prosecution testimony.’’
15
‘‘Structural errors’’ have been defined as ‘‘fundamental defects in the
trial mechanism that affect the entire framework within which the trial
proceeds, rather than simply an error in the trial process itself.’’ (Internal
quotation marks omitted.) State v. Vines, 71 Conn. App. 751, 758,
804 A.2d
877 (2002), aff’d,
268 Conn. 239,
842 A.2d 1086 (2004). The defendant claims
that the jury instruction in this case was deficient and thus constitutes
structural error under Sullivan v. Louisiana,
508 U.S. 275,
113 S. Ct. 2078,
124
L. Ed. 2d 182 (1993). See
id., 278–82 (holding that constitutionally deficient
reasonable doubt instruction requires reversal).
16
The language in question is taken from the model criminal jury instructions on the Judicial Branch website. See ConnecticutCriminal Jury Instructions 2.2-3 (November 20, 2017), available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited January 18, 2021).
