State v. Reed ( 2022 )

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STATE OF CONNECTICUT v. DORAINE REED
(AC 42509)
Elgo, Moll and Lavery, Js.
Syllabus
Convicted of the crimes of larceny in the first degree, attempt to commit
larceny in the first degree, larceny in the second degree and conspiracy
to commit larceny in the first degree in connection with certain financial
transactions involving an elderly victim, the defendant appealed to this
court. The defendant was hired as an in-home aide for the victim, and
increasingly involved herself in the victim’s life. A few months after the
defendant was hired, the pastor of the defendant’s church was granted
power of attorney over the victim, and from that point forward the
victim’s banking activity began to diverge from several long-standing
patterns. Increasing sums of money were being withdrawn from the
victim’s bank accounts and used by the defendant to pay for her various
personal expenses. Following a trial, the jury returned a verdict of guilty
of all four counts against the defendant. Held:
1. The defendant could not prevail on her claim that the trial court improperly
instructed the jury as to the wrongfulness element of the offense of
larceny, the charge to the jury having adequately conveyed the appro-
priate levels of intent for both taking and retaining property in accor-
dance with State v. Saez (115 Conn. App. 295), which outlined the state’s
obligation to show that the defendant acted with the subjective desire
or knowledge that her actions constituted stealing: the court’s charge
to the jury, when considered as a whole and in light of the penal code’s
definition of larceny, was sufficient to adequately guide the jury; more-
over, the language in the court’s charge linking the requirement that
the state must prove the defendant intended to permanently deprive
the owner of his property with the requirement that the state must
prove that the defendant took the property with an unlawful purpose
adequately conveyed the requirement that the defendant must have
intended to take the property wrongfully, such that the jury properly
was apprised of the elements of larceny and the bar that the state had
to meet with respect to the specific intent requirement in order to convict
the defendant.
2. The defendant could not prevail on her claim that the jury instructions
provided by the trial court granted the jury impermissibly broad latitude
in considering the possibility of the victim’s mental incapacity, that
contention not being supported by the plain language of the court’s
instructions: the jury was informed that, even if it concluded that the
victim was mentally incapacitated in any way, the instructions did not
mandate a conclusion that the victim could not and did not consent to
the defendant’s taking of the property, and, by instructing the jury that
it ‘‘may’’ determine that the victim’s mental incapacity prevented him
from consenting to the taking of his property, the charge permitted the
jury to exercise its discretion and consider whether the evidence before
it supported such a finding; moreover, the jury charge clarified that
an owner’s inability to consent must be paired with the defendant’s
awareness of that inability in order to satisfy the wrongfulness require-
ment of larceny, and the charge contained sufficient safeguards against
the jurors improperly drawing conclusions as to the wrongfulness of
the defendant’s conduct.
Argued September 13, 2021—officially released January 11, 2022
Procedural History
Substitute information charging the defendant with
the crimes of larceny in the first degree, attempt to
commit larceny in the first degree, larceny in the second
degree, and conspiracy to commit larceny in the first
degree, brought to the Superior Court in the judicial
district of Fairfield and tried to the jury before E. Rich-
ards, J.; verdict and judgment of guilty, from which the
defendant appealed to this court. Affirmed.
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, and Howard S. Stein, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Doraine Reed, appeals from
the judgment of conviction, rendered following a jury
trial, of larceny in the first degree in violation of General
Statutes §§ 53a-119 and 53a-122 (a) (2), attempt to com-
mit larceny in the first degree in violation of General
Statutes §§ 53a-49 (a) (2), 53a-119, and 53a-122 (a) (3),
larceny in the second degree in violation of General
Statutes §§ 53a-119 (1) and (2) and 53a-123 (a) (5), and
conspiracy to commit larceny in the first degree in
violation of General Statutes §§ 53a-48, 53a-119, and
53a-122 (a) (2). On appeal, the defendant raises two
claims of instructional error. First, the defendant
asserts that the trial court failed to instruct the jury
that the specific intent requirement for any taking or
appropriation of property in the charge of larceny must
also apply to the ‘‘wrongfulness’’ element of the offense.
The defendant also claims that the court improperly
instructed the jury regarding the victim’s possible men-
tal incapacity and his ability to consent to the transfer
of his property to the defendant. We affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts on the basis of the evidence presented at trial.
The victim, Arthur Devack, was an elderly widower
who had been dealing with several health problems
in the years leading up to his interactions with the
defendant. Following a period of treatment for bladder
cancer in 2009, the victim fell at his home and subse-
quently spent time in a rehabilitation facility. Upon his
discharge from that facility, the victim’s daughter, Cathy
Devack,1 spent several months living with the victim
and serving as his caregiver. In February, 2010, Cathy
hired the defendant as an in-home aide for her father.2
Over the next several months, the defendant increas-
ingly involved herself in the victim’s life. This included
instances of the defendant’s friends and family visiting
the victim’s home, even at times when the defendant
was not present. The defendant also appeared without
warning at a restaurant where the victim and Cathy
were dining.
On April 9, 2010, Cathy and the victim’s grandson
visited the victim at his home to discuss implementing
a power of attorney. The defendant arrived during the
meeting, joined the conversation, and then suggested
to the victim that his family would ‘‘put [him] into a
home’’ or ‘‘put [him] away’’ if the power of attorney
came to pass. The victim became agitated and insisted
that his family leave the residence. Cathy had no further
contact with the victim prior to his death on June 21,
2010.3
Shortly after the April 9, 2010 altercation, Robert
Genevicz, the pastor of the defendant’s church, was
granted power of attorney over the victim.4 From this
point forward, the victim’s banking activity began to
diverge from several long-standing patterns. On April
12, 2010, the victim’s three accounts at the Sikorsky
Credit Union (credit union) were closed, and new
checking and savings accounts were opened up at the
credit union. In June, 2010, an existing reverse mortgage
on the victim’s house was converted into a lump sum
payout of $226,040.10.
At trial, Michele Paige, a forensic fraud examiner
affiliated with the state’s attorney’s office, testified that
the victim ‘‘was a very modest guy’’ who ‘‘didn’t spend
frivolously.’’ Yet, in the course of the two months
between when Genevicz obtained power of attorney
and the victim’s death, increasing sums of money were
withdrawn from the victim’s accounts. These outlays
then were used by the defendant to pay for new furni-
ture, maintenance and upkeep on her own properties,
and outstanding legal fees. Notably, on June 15, 2010,
six days before the victim’s death, the victim purchased
a 2003 Hummer H2 motor vehicle. Two days later, Gene-
vicz, acting through the power of attorney, sold the
vehicle to the defendant. Although Genevicz signed a
receipt indicating that the defendant had paid the victim
ten dollars less than the original purchase price for the
vehicle, no such funds were ever deposited into any of
the victim’s accounts.
Following investigations by the Trumbull Police
Department and the forensic fraud examiner of the
Office of the State’s Attorney, the defendant was
arrested on February 26, 2015, and charged with larceny
in the first degree and conspiracy to commit larceny
in the first degree. The state filed an amended substitute
information on September 18, 2018, charging the defen-
dant with attempt to commit larceny in the first degree
and larceny in the second degree, in addition to the
two charges set forth in the initial information.5
The evidentiary portion of the trial commenced on
September 25, 2018, and continued through October 17,
2018. The jury then returned a verdict of guilty of all
four counts and the court sentenced the defendant to
a total of twenty years of incarceration, execution sus-
pended after nine years, followed by five years of proba-
tion. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The defendant first claims that the court improperly
instructed the jury as to the wrongfulness element of
the offense of larceny. The defendant specifically
argues that the court’s charge to the jury failed to
instruct that in order for the defendant to be convicted
of larceny, she must have been found to intend specifi-
cally that the taking and appropriation of property be
wrongful. We disagree.
The following additional facts are relevant to this
claim. On October 4, 2018, the defendant filed an
amended set of preliminary requests to charge. With
respect to the intent element of larceny, the defendant
requested the following additional language: ‘‘I have
instructed you that for each count of the information,
the state has the burden of proving beyond a reasonable
doubt that in regard to any property taken, or attempted
to be taken, the defendant must have acted with the
specific intent to deprive the owner of the property or
to appropriate it to herself or a third person. In addition
to that requirement, the state must also prove beyond
a reasonable doubt that the defendant specifically
intended to do so ‘wrongfully.’ You will recall that I
have instructed you that the word ‘wrongfully’ as used
in the larceny statutes means that the property must
have been taken without legal justification or excuse. It
is not enough for the state to prove beyond a reasonable
doubt that a person intentionally took property of
another and that the taking was wrongful. A person
who takes another’s property under a mistaken belief
that such taking is not wrongful does not possess the
intent required for a conviction of larceny. The state
must also prove beyond a reasonable doubt that the
defendant had the intent, or conscious objective to take
the property ‘wrongfully,’ as I have defined that term
for you.’’ (Emphasis added.) In support of her request,
the defendant cited to General Statutes §§ 53a-5, 53a-6
(a) (1), and 53a-119, as well as State v. Saez, 115 Conn.
App. 295, 302, 972 A.2d 277, cert. denied, 293 Conn. 909,
978 A.2d 1113 (2009).6 The defendant also described,
as a factual basis underlying the request, ‘‘[e]xpected
evidence pertaining to appropriation of the property of
[the victim].’’
The court’s eventual charge to the jury instructed in
relevant part that ‘‘a person commits larceny with intent
to . . . deprive another of property or to appropriate
that property to himself or a third person’’ when ‘‘he
wrongfully takes, obtains, or withholds such property
from an owner. The state must prove that the property
was taken with the specific intention of depriving the
owner . . . of it or appropriating it to himself or to
some third person. To intend to deprive another of
property means, insofar as it applies here, intending
to withhold it or cause it to be withheld from him
permanently or for so long a time or under such circum-
stances that the major portion of its economic value
or benefit is lost to him.’’ The court further charged: ‘‘I
remind you that the burden of proving intent beyond
a reasonable doubt is on the state. It is essential that
the state must prove beyond a reasonable doubt that
the person who took the property had the unlawful
purpose, that is, to permanently deprive the owner of
it, or the intention in his or her mind at the time an
attempt to take the property was made. The state must
also show the attempted taking was wrongful. Larceny
includes any wrongful taking of property away from
the possession or control of the person entitled to it,
including taking by force. The word wrongfully as used
in the statute means that the property must have been
taken without legal justification or excuse, color of
right, or consent of the owner. When property is
obtained with the knowing consent of the owner, the
taking is not wrongful.’’
The defendant objected to the court’s instruction
before and after the court delivered its charge to the
jury. On October 18, 2018, the defendant moved for a
new trial due to the court’s alleged failure to properly
instruct the jury on the intent requirement as it per-
tained to the wrongfulness element of larceny. The
court denied that motion before sentencing the defen-
dant on December 12, 2018.
‘‘We review the defendant’s claim of instructional
impropriety pursuant to the following standard of
review. The pertinent test is whether the charge, read
in its entirety, fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . Thus, [t]he
whole charge must be considered from the standpoint
of its effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error. . . . Accordingly, [i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we
must consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury.’’ (Internal quotation
marks omitted.) State v. Lavigne, 307 Conn. 592, 599–
600, 57 A.3d 332 (2012).
‘‘[T]he essential elements of larceny are: (1) the
wrongful taking or carrying away of the personal prop-
erty of another; (2) the existence of a felonious intent
in the taker to deprive the owner of [the property]
permanently; and (3) the lack of consent of the owner.’’
(Internal quotation marks omitted.) State v. Adams,
327 Conn. 297, 305–306, 173 A.3d 943 (2017). ‘‘Because
larceny is a specific intent crime, the state must show
that the defendant acted with the subjective desire or
knowledge that his actions constituted stealing. . . .
Larceny involves both taking and retaining. The crimi-
nal intent involved in larceny relates to both aspects.
The taking must be wrongful, that is, without color of
right or excuse for the act . . . and without the know-
ing consent of the owner. . . . The requisite intent for
retention is permanency.’’ (Internal quotation marks
omitted.) State v. Saez, supra, 115 Conn. App. 302.
In asserting that the specific intent requirement for
any taking or appropriation of property in the charge
of larceny must also apply to the ‘‘wrongfulness’’ ele-
ment of the offense, the defendant relies on Saez. She
essentially argues that the court’s instruction improp-
erly obviated the state’s obligation under Saez to ‘‘show
that the defendant acted with the subjective desire or
knowledge that his actions constituted stealing.’’ Id. We
disagree. The charge to the jury adequately conveyed
the appropriate levels of intent for both taking and
retaining property in accordance with Saez. Moreover,
nothing in Saez extends this requirement to mandate
language linking specific intent and wrongfulness. We
are convinced that the court’s charge to the jury, when
considered as a whole and in light of the penal code’s
definition of larceny, was sufficient to adequately guide
the jury.
In this regard, we find particularly instructive our
earlier decision in State v. Flowers, 69 Conn. App. 57,
797 A.2d 1122, cert. denied, 260 Conn. 929, 798 A.2d
972 (2002). In Flowers, the defendant was charged with
robbery in the first degree, for which larceny is a predi-
cate offense. Id., 67–68. On appeal, the defendant
claimed that the trial court erred in failing to provide
the exact statutory definition of larceny in its charge
to the jury. Id., 67. Although this court described the
instructions as ‘‘imperfect, or technically incomplete,’’ it
nevertheless concluded that the instructions adequately
‘‘conveyed the essential characteristics of larceny’’ to
the jury. Id., 70–71.
Although the trial court in the present case did not
adopt the precise language requested by the defendant,
the court instructed: ‘‘I remind you that the burden of
proving intent beyond a reasonable doubt is on the
state. It is essential that the state must prove beyond
a reasonable doubt that the person who took the prop-
erty had the unlawful purpose, that is, to permanently
deprive the owner of it, or the intention in his or her
mind at the time an attempt to take the property was
made. The state must also show the attempted taking
was wrongful. Larceny includes any wrongful taking
of property away from the possession or control of the
person entitled to it, including taking by force. The
word wrongfully as used in the statute means that the
property must have been taken without legal justifica-
tion or excuse, color of right, or consent of the owner.’’
(Emphasis added.) In our view, this language linking (1)
the requirement that the state must prove the defendant
intended to permanently deprive the owner of his prop-
erty with (2) the requirement that the state must prove
that the defendant took the property with an unlawful
purpose adequately conveyed the requirement that the
defendant must have intended to take the property
wrongfully. In light of that language, we are convinced
that the jury properly was apprised of the elements of
larceny and the bar that the state had to meet with
respect to the specific intent requirement in order to
convict the defendant.
We also agree with the state that, in essence, the
defendant’s request to charge on the issue of intent
amounted to no more than a denial of the requisite
intent. This court has held that ‘‘a denial of the intent
to wrongfully withhold [property] . . . is not a legally
recognized defense’’; (citation omitted) State v. Kurrus,
137 Conn. App. 604, 612, 49 A.3d 260, cert. denied, 307
Conn. 923, 55 A.3d 566 (2012); and, accordingly, does
not merit a specific charge to that effect. We, therefore,
reject the defendant’s claim.
II
The defendant next argues that the jury instructions
provided by the court granted the jury impermissibly
broad latitude in considering the possibility of the vic-
tim’s mental incapacity. We agree with the state that
the defendant’s contention is not supported by the plain
language of the instruction.
The relevant portion of the court’s charge to the jury
stated: ‘‘When property is obtained with the knowing
consent of the owner, the taking is not wrongful. A
person acts knowingly with respect to his or her con-
duct when he or she is aware of the nature of the
conduct. However, the owner’s mental incapacity, if
any, may be considered by you as evidence of an inabil-
ity to knowingly consent to the defendant’s obtaining
the property. When the defendant is aware of the own-
er’s inability to knowingly consent, the obtaining of the
property would be nonconsensual and wrongful. If you
find that the complainant did not knowingly consent
to the defendant’s obtaining the property and the defen-
dant was aware of his inability to knowingly consent,
the obtaining of the property would be nonconsensual
and wrongful. These are questions of fact for you to
decide. You may consider all the evidence presented
and give to it whatever credibility and weight you deem
is appropriate in accordance with my instructions.’’ At
the close of trial, the defendant took exception to this
portion of the charge on the ground that the charge
wrongly ‘‘equate[d] mental incapacity in any degree
with an inability to knowingly consent to someone tak-
ing the property,’’7 which the court noted. The defendant
took a postcharge exception on similar grounds.
On appeal, the defendant disagrees with the notion
that ‘‘any’’ mental incapacity could have been consid-
ered by the jury in determining whether the victim had
the ability to consent.8 We first note that, as the state
points out, the jury was informed that, even if it con-
cluded that the victim was mentally incapacitated in
any way, the instructions did not mandate a conclusion
that the victim could not and did not consent to the
defendant’s taking of the property. By instructing the
jury that it ‘‘may’’ determine that mental incapacity on
the part of the victim prevented the victim from con-
senting to the taking of his property, the charge permit-
ted the jury to exercise its discretion and consider
whether the evidence before it supported such a find-
ing.9 In addition, the charge clarified that an inability
to consent must be paired with the defendant’s aware-
ness of said inability in order to satisfy the wrongfulness
requirement of larceny. In this respect, the charge to the
jury contained sufficient safeguards against the jurors
improperly drawing conclusions as to the wrongfulness
of the defendant’s conduct. In light of the foregoing,
we conclude that the defendant has not established
instructional error in the present case.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For purposes of clarity, we refer to the victim’s daughter by her first
name in this opinion.
2
At the time of her placement with the victim, the defendant recently had
been hired by Helping Hands, an agency that provides in-home care for
senior citizens. Shortly after the defendant was assigned to the victim’s
care, the victim manifested his intent to hire the defendant directly. Cathy
informed Helping Hands that the victim would no longer be utilizing the
company’s services. Although the owner of Helping Hands passed this infor-
mation on to the defendant, the defendant did not respond and thereafter
had no further contact with Helping Hands. As a result, the defendant’s
initial criminal background check was never completed by Helping Hands.
3
Following the April 9, 2010 incident, the defendant filed a complaint
against Cathy with the Trumbull Police Department, in which she alleged
that Cathy had assaulted the victim. Cathy was arrested shortly thereafter
and made subject to a protective order that prevented her from having any
contact with the victim. The charges against Cathy were dropped after the
victim’s death.
4
Genevicz’ conduct with respect to the victim was the subject of a separate
criminal proceeding, and the jury in the present case was not privy to any
information concerning that matter.
5
The state also filed two substitute informations on March 18, 2015, and
April 26, 2017. The information dated March 18, 2015, contained no material
changes with respect to the initial information. The information dated April
26, 2017, charged the defendant with attempt to commit larceny in the first
degree and larceny in the second degree in addition to the initial charges
of larceny in the first degree and conspiracy to commit larceny in the
first degree.
6
General Statutes § 53a-5 provides: ‘‘When the commission of an offense
defined in this title, or some element of an offense, requires a particular
mental state, such mental state is ordinarily designated in the statute defining
the offense by use of the terms ‘intentionally’, ‘knowingly’, ‘recklessly’ or
‘criminal negligence’, or by use of terms, such as ‘with intent to defraud’
and ‘knowing it to be false’, describing a specific kind of intent or knowledge.
When one and only one of such terms appears in a statute defining an
offense, it is presumed to apply to every element of the offense unless an
intent to limit its application clearly appears.’’
General Statutes § 53a-6 (a) (1) provides in relevant part: ‘‘A person shall
not be relieved of criminal liability for conduct because he engages in such
conduct under a mistaken belief of fact, unless . . . [s]uch factual mistake
negates the mental state required for the commission of an offense . . . .’’
7
Importantly, the defendant conceded at trial that the victim’s mental
capacity ‘‘[could] be considered on the issue of’’ the ‘‘inability to knowingly
consent to the [transfer of property].’’
8
In particular, the defendant takes issue with the trial court’s reliance on
State v. Calonico, 256 Conn. 135, 770 A.2d 454 (2001), insofar as Calonico
turned on the sufficiency of the evidence in that case (as opposed to the
appropriateness of a jury instruction) and its partial reliance on case law
from other states. We find these distinctions immaterial. The passages the
court cited during its colloquy with defense counsel discuss the intent
required to sustain a conviction of larceny, which does not hinge on the
particular type of error alleged on appeal. See id., 160–63. Additionally,
although the portion of Calonico that discussed mental incapacity did cite
to case law from outside of this state; id., 153–55; it still constitutes binding
authority from the highest court in this state. See State v. Siler, 204 Conn.
App. 171, 178, 253 A.3d 995 (2021) (‘‘[a]s an intermediate appellate tribunal,
this court is not at liberty to modify, reconsider, or overrule the precedent
of our Supreme Court’’).
9
We emphasize that the two claims raised by the defendant in this appeal
concern the propriety of the jury instructions. The defendant has not dis-
puted the sufficiency of the evidence adduced at trial in either her motion
for a new trial or her appeal before this court.