State v. Chemlen , 165 Conn. App. 791 ( 2016 )

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STATE OF CONNECTICUT v. KEITH CHEMLEN
(AC 37429)
Lavine, Alvord and Prescott, Js.
Argued March 14—officially released May 31, 2016
(Appeal from Superior Court, judicial district of
Waterbury, geographical area number four, Crawford,
J.)
Jodi Zils Gagne, for the appellant (defendant).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Marc G. Ramia, senior assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Keith Chemlen,
appeals from the judgment of conviction, rendered after
a jury trial, of forgery in the second degree in violation
of General Statutes § 53a-139 (a) (3), and larceny in the
third degree in violation of General Statutes § 53a-124
(a) (2). The defendant subsequently pleaded guilty to
being a persistent serious felony offender in violation
of General Statutes § 53a-40 (c), as charged in a part B
information. On appeal, the defendant claims that (1)
the trial court improperly excluded extrinsic evidence
to impeach a state’s witness; (2) his constitutional rights
to due process and a fair trial were violated by the
prosecutor’s failure to correct the false testimony of a
state’s witness; and (3) the court improperly denied
his motion for a judgment of acquittal on the basis of
insufficiency of the evidence. We affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts. Daniel Brenes is the owner and sole officer of
Global International, Inc., which is registered in Con-
necticut under the name of National Credit Masters.
National Credit Masters performs credit repair services,
including reviewing a client’s credit report, analyzing
any negative information contained therein, and devel-
oping a plan to remove any negative information.
National Credit Masters does not negotiate or settle
debt obligations to creditors.
Brenes met the defendant in 2005 or 2006 at a busi-
ness meeting. Subsequent to that initial encounter,
Brenes and the defendant crossed paths at bars and in
the surrounding area. Although Brenes’ knowledge of
the defendant was limited—he only knew the defen-
dant’s first name—he came to believe that the defendant
was a great salesman. Thus, when the defendant applied
for an open sales associate position at National Credit
Masters in December, 2012, Brenes offered him an
interview.
During the interview, Brenes asked the defendant for
identification so that he could perform a background
check. The defendant provided Brenes with a state
issued identification card on which was the name ‘‘Keith
David.’’ Brenes made a copy of the identification card
and then returned it to the defendant. Brenes subse-
quently hired the defendant, whom he believed to be
Keith David. The defendant began working at National
Credit Masters in February, 2013. Brenes gave the defen-
dant a training manual and instructed him that the com-
pany e-mail account was the only e-mail account to be
used to contact clients. Brenes also told the defendant
that clients could not pay their fees in cash and that
he was not to settle debt obligations with creditors.
In June or July, 2013, several people began stopping
by National Credit Masters’ office and claiming that
they were clients, although Brenes had no knowledge
of them. In one instance, Brenes received a telephone
call from Michelle Garcia, who claimed to be a client
of National Credit Masters. Garcia told Brenes that the
defendant had arranged for Robert Nichols, an attorney
and Brenes’ landlord, to represent her on a debt-defense
case. Brenes arranged a meeting between himself, Gar-
cia, and Nichols, during which Nichols informed her
that he never had represented any of National Credit
Masters’ clients and had not agreed to represent her.
By the date of the meeting between Brenes, Garcia,
and Nichols, the defendant had stopped coming into
work and claimed to have a stomach virus. As time
went on, the defendant failed to return Brenes’ tele-
phone calls, and Brenes began to call clients to confer
on the status of their credit repairs. Through these calls,
Brenes discovered that the defendant had violated com-
pany procedures by charging clients for debt negotia-
tion and settlement, and by offering legal advice. Brenes
terminated the defendant’s employment and notified
the police of these revelations.
Detective Randy Watts of the Waterbury Police
Department spoke with Brenes, Garcia, and nine other
people who had been clients of the defendant. Through
these interviews, it came to light that the defendant, in
contravention of company policy, had accepted pay-
ments from clients, which National Credit Masters
never received, in cash and through PayPal in his name.
In exchange for these payments, the defendant had
promised clients that he would negotiate and settle
their debts and would remove negative information
from their credit reports. Such promises often were not
kept. In some instances, clients paid the defendant in
cash or through a PayPal account linked to the defen-
dant’s personal e-mail to remove negative information
from their credit reports. The defendant sent these cli-
ents fake credit reports from a personal e-mail address,
showing that their credit scores had been improved,
but, in actuality, their credit reports remained the same.
In other instances, clients paid the defendant in cash
to settle their debts. The defendant told these clients
that the debts had been settled and paid, but, in actual-
ity, the defendant never negotiated the debt amounts
or paid the creditors. Additionally, all of the clients
knew the defendant as ‘‘Keith’’ or ‘‘Keith David.’’ The
defendant’s real name was not ‘‘Keith David’’ but, rather,
was ‘‘Keith David Chemlen.’’
On August 13, 2014, in an amended long form informa-
tion, the defendant was charged with two counts of
forgery in the second degree in violation of § 53a-139
(a) (3),1 and one count of larceny in the third degree
in violation of § 53a-124 (a) (2).2 In the amended infor-
mation, the state alleged that the defendant committed
forgery in the second degree by altering a state issued
identification card with the intent to defraud and
deceive Brenes, and by possessing a state issued identi-
fication card that he knew to be altered with the intent
to deceive Brenes. The state further alleged that the
defendant committed larceny in the third degree by
wrongfully obtaining money from clients by false prom-
ises to repair credit scores and settle debts.
On August 19, 2014, a jury found the defendant guilty
of all three counts. He subsequently pleaded guilty to
being a persistent serious felony offender in violation
of § 53a-40 (c), pursuant to a part B information. On
October 10, 2014, at sentencing, the court vacated the
verdict on the second count3 of forgery in the second
degree and imposed a total effective sentence of fifteen
years of incarceration, execution suspended after seven
years, followed by five years of probation with special
conditions. This appeal followed. Additional facts will
be set forth as required.
I
The defendant first claims that the court improperly
excluded extrinsic evidence that would have impeached
Brenes by contradicting his statement that he did not
know the defendant’s last name at the time that he
hired him. Specifically, he argues that he should have
been allowed to impeach Brenes’ testimony with extrin-
sic evidence of prior inconsistent statements because
it related to a noncollateral matter, namely, whether he
had the intent to deceive Brenes, as required to prove
forgery in the second degree, if Brenes knew his last
name at the time he hired him. The state responds
that the court properly excluded the evidence at issue
because it was unreliable, lacked authenticity, and
would have confused the jury. We agree with the state.
The following additional facts and procedural history
are relevant to this claim. At trial, Brenes testified for
the state that although he had met the defendant as
early as 2005 or 2006, he did not know that the defen-
dant’s last name was ‘‘Chemlen’’ at the time that he
hired him. Rather, he believed, on the basis of the identi-
fication card shown to him by the defendant, that the
defendant’s last name was ‘‘David.’’
On cross-examination, Brenes testified that he had a
post office box, but he had not authorized the defendant
or DK Management, LLC, a limited liability company of
which the defendant was the agent, to use it. Defense
counsel showed Brenes two documents, which were
marked for identification purposes only, in an attempt
to establish that the defendant and Brenes had been in
business together as early as 2008. The first document,
defense exhibit A, was the articles of organization for
DK Management, LLC. The articles of organization pur-
ported to show that both the defendant, whose full
name was listed, and Brenes were members of DK Man-
agement, LLC, on March 24, 2008. The document, how-
ever, was signed only by the defendant, and Brenes
testified that he had never been a member of DK Man-
agement, LLC. The defendant did not offer the articles
of organization into evidence as a full exhibit.
The second document, defense exhibit B, consisted
of two applications for a post office box. On one of the
post office box applications, dated January 29, 2008,
both DK Management, LLC, and Brenes’ name
appeared. Brenes testified that he did not place DK
Management, LLC, on the 2008 application. Only
Brenes’ name appeared on the second post office box
application, dated February 13, 2009. The defense did
not ask Brenes whether he filled out either post office
box application or whether his handwriting was con-
tained on either application. The defendant did not offer
the two applications into evidence as a full exhibit at
this time.
After the state rested, the defendant attempted, in an
often confusing fashion,4 to establish that Brenes knew
the defendant’s correct last name at the time that he
hired him. According to the defendant, if Brenes knew
his last name, he could not have intended to deceive
Brenes by providing him with an identification card
containing an alias, as required to prove forgery in the
second degree. The defendant sought to establish this
fact by offering the testimony of Paul Bianca, a postmas-
ter, and, through him, several documents relating to
Brenes’ post office box. The state initially objected to
the admission of the documents on the grounds of rele-
vancy and the inadmissibility of extrinsic evidence to
impeach a witness. In an attempt to lay a foundation
as to the admissibility of the documents, the defendant
offered the testimony of Bianca outside the presence
of the jury.
The documents that the defense sought to offer into
evidence were marked for identification only as defense
exhibits G, H, I, J, K (exhibits).5 Defense exhibit G is
identical to defense exhibit B. Defense exhibit J is only
the 2008 application to open a post office box. The 2008
application states that the post office box is assigned
to DK Management, LLC, and was applied for by Brenes.
It is allegedly signed by Brenes.
Defense exhibit K is the 2009 application for a post
office box. The 2009 application states that the post
office box is assigned to Brenes and was applied for
by Brenes. It purports to be signed by Brenes. The
signature on the 2009 post office box application is
drastically different from the signature on the 2008 post
office box application.
When questioned concerning the two different post
office box applications, Bianca testified that he was not
the clerk who handled either application, and he could
assume only that the 2009 application was actually an
application to change the lock on the post office box,
not an application to open a new post office box. Bianca,
however, conceded that nothing in exhibit K supported
this assumption or established who filled out the appli-
cation or signed it. Bianca also stated that an application
to open a post office box has two pages, and both the
2008 post office box application and the 2009 post office
box application were missing their second page.
Defense exhibit H is the second page of an electronic
document from the United States Postal Service that
lists additional names that have access to a particular
post office box. The names listed are Keith Chemlen,
Brenes Industries Group, DK Management, LLC, and
National Credit Masters. The document does not indi-
cate with which post office box the information is asso-
ciated. It does indicate, however, that it is the second
of two pages, and the first page was not provided.
Defense exhibit I is a handwritten note that was in
a post office file concerning Brenes’ post office box.
The handwritten note states that Keith Chemlen is not
permitted access to Brenes’ post office box. The note
is not dated, and the parties agreed that it was not
written by Brenes. Bianca assumed, without firsthand
knowledge, that it was written by a clerk.
Brenes never testified on direct or cross-examination
that he had signed either post office box application
or had the lock changed on his post office box. Addition-
ally, Brenes was never shown or questioned about the
handwritten note in his post office file or the electronic
document from the United States Postal Service. During
the defendant’s attempt to have these documents admit-
ted into evidence, however, the defendant argued that
the 2008 post office box application, which listed DK
Management, LLC, as the assignee of the post office
box, could be linked to the articles of organization for
DK Management, LLC, which listed both Brenes and
the defendant by full name as members, and, thus,
established that Brenes knew the defendant’s last name
before he hired him.
Throughout the defendant’s lengthy attempt to have
these exhibits admitted into evidence, the state made
numerous objections and arguments concerning the
inadmissibility of the exhibits. The state noted multiple
authenticity concerns with the exhibits. For example,
Bianca testified that he had no knowledge or documen-
tation that could establish who filled out the 2008 and
2009 post office box applications or when the handwrit-
ten note was added to Brenes’ post office file. Both
post office box applications were missing their second
page. There was no evidence that the signatures on the
post office box applications belonged to Brenes. The
electronic printout from the United States Postal Ser-
vice, defense exhibit H, contained no information link-
ing it to Brenes’ post office box.
The state further argued that even if the applications
were authentic, there was no evidence admitted in the
record that linked DK Management, LLC, to both the
defendant and Brenes. Although DK Management, LLC,
is listed on the 2008 post office box application, the
defendant’s name is not. The only document that links
DK Management, LLC, to the defendant is the articles
of organization (defense exhibit A), which was never
offered by the defendant as a full exhibit and was only
signed by the defendant, and, thus, does not prove that
Brenes and the defendant were both associated with
DK Management, LLC.
The court sustained the state’s objection to the admis-
sion of the exhibits. Although the court agreed with the
defendant’s argument that the court had discretion to
admit extrinsic evidence of a prior inconsistent state-
ment pursuant to Connecticut Code of Evidence § 6-10,
it, nevertheless, held that the exhibits were inadmissible
because they were too confusing and lacked authentic-
ity and reliability. The court based its holding on the
fact that there were ‘‘too many gaps, too many question
marks, too may assumptions that would have to be
made to reach a conclusion’’ that Brenes knew the
defendant’s last name in 2008.
We begin by setting forth our standard of review.
‘‘[I]t is well settled that the trial court’s evidentiary
rulings are entitled to great deference. . . . The trial
court is given broad latitude in ruling on the admissibil-
ity of evidence, and we will not disturb such a ruling
unless it is shown that the ruling amounted to an abuse
of discretion. . . . When reviewing a decision to deter-
mine whether the trial court has abused its discretion,
we make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion.’’ (Citation omitted; inter-
nal quotation marks omitted.) Chief Information Offi-
cer v. Computers Plus Center, Inc., 310 Conn. 60, 97–98,
74 A.3d 1242 (2013).
As an initial matter, we address the defendant’s con-
tention that the exhibits were extrinsic evidence of prior
inconsistent statements.6 To be admissible as extrinsic
evidence of a prior inconsistent statement under § 6-
10 of the Connecticut Code of Evidence,7 the proffered
evidence must be a prior statement made by the witness
that contradicts something that the witness has testified
to at trial. See State v. Ward, 83 Conn. App. 377, 393–94,
849 A.2d 860, cert. denied, 271 Conn. 902, 859 A.2d
566 (2004). Our Supreme Court ‘‘[has] stated that [t]he
impeachment of a witness by extrinsic evidence [of a
prior inconsistent statement pursuant to § 6-10 of the
Connecticut Code of Evidence] is somewhat limited.
Not only must the inconsistent statements be relevant
and of such a kind as would affect the credibility of
the witness . . . but generally a foundation should be
laid at the time of cross-examination.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Chief Informa-
tion Officer v. Computers Plus Center, Inc., supra, 310
Conn. 118. To be relevant, the inconsistent statement
must relate to a noncollateral matter, otherwise the
statement must be excluded. See State v. Diaz, 237
Conn. 518, 548, 679 A.2d 902 (1996) (extrinsic evidence
is not admissible to impeach witness ‘‘by contradicting
his or her testimony as to collateral matters, that is,
matters that are not directly relevant and material to the
merits of the case’’ [internal quotation marks omitted]);
State v. Dudley, 68 Conn. App. 405, 419, 791 A.2d 661(‘‘[a] matter is not collateral if it is relevant to a material
issue in the case apart from its tendency to contradict
the witness’’ [internal quotation marks omitted]), cert.
denied, 260 Conn. 916, 797 A.2d 515 (2002). Even if
these requirements are met, the admission of extrinsic
evidence to impeach is within the court’s broad discre-
tion. See State v. Dudley, supra, 419; State v. Smith, 46
Conn. App. 285, 295, 699 A.2d 250, cert. denied, 243
Conn. 930, 701 A.2d 662 (1997).
In seeking their admission, the defendant appeared
to characterize the exhibits at trial as prior inconsistent
statements, i.e., impeachment evidence, to refute
Brenes’ prior testimony that he did not know the defen-
dant’s last name. On the basis of the defendant’s offer,
the court ruled on the admissibility of the exhibits on
the ground that they were extrinsic evidence of prior
inconsistent statements under § 6-10 (c) of the Connect-
icut Code of Evidence. The court implicitly found that
the exhibits were prior inconsistent statements on a
noncollateral issue,8 and, thus, the court proceeded on
the assumption that it was within its discretion to admit
them. See State v. Dudley, supra, 68 Conn. App. 419(court had broad discretion to admit extrinsic evidence
of prior inconsistent statement). The court specifically
stated that it was exercising its discretion to exclude the
exhibits because they lacked authenticity and reliability
and would have confused the jury.
Not all of the exhibits, however, can be construed
properly as prior statements by Brenes that contradict
his testimony at trial. The only exhibit that arguably
contains evidence of a prior inconsistent statement
made by Brenes is the 2008 post office box application
because it states that Brenes applied for a post office
box for the use of DK Management, LLC. If true, this
statement tends to establish that Brenes was associated
with DK Management, LLC, in 2008. Brenes, however,
testified that he had no connection to DK Management,
LLC. Thus, the two statements contradict each other.
The other exhibits contain no such potentially incon-
sistent statements made by Brenes. The 2009 post office
box application contains no statement by Brenes that
establishes that he was associated with DK Manage-
ment, LLC, or knew the defendant’s last name at that
time. Although the articles of organization, the hand-
written note in Brenes’ post office file, and the elec-
tronic record from the United States Postal Service
contain both the defendant’s full name and Brenes’
name, they are not even purportedly signed by Brenes
and, thus, cannot be classified, without more, as prior
statements made by Brenes. Although not evidence of
prior inconsistent statements, these exhibits are argua-
bly relevant nonetheless to a material issue, namely,
whether the defendant had the intent to deceive Brenes
as required by § 53a-139 (a) (3) if he thought that Brenes
knew his name when he provided Brenes with the
altered identification card. See Conn. Code Evid. § 4-1.9
The fact that some of the exhibits are not prior incon-
sistent statements, however, does not entirely dispose
of our review of the trial court’s decision to exclude
the exhibits on the basis of confusion and lack of
authenticity. In exercising its broad discretion to admit
evidence, whether categorized as extrinsic evidence of
a prior inconsistent statement or simply as evidence
relevant to a material issue, the court may exclude
evidence if its probative value is outweighed by other
considerations. For example, relevant evidence may be
excluded if its probative value is outweighed by the
confusion it would cause. See Conn. Code Evid. § 4-3;10
Ancheff v. Hartford Hospital, 260 Conn. 785, 804, 799
A.2d 1067 (2002) (‘‘[s]ection 4-3 . . . recognizes the
court’s authority to exclude relevant evidence when
its probative value is outweighed by factors such as
confusion of the issues or misleading the jury’’ [internal
quotation marks omitted]). ‘‘As we have stated, [o]ne
of the chief roles of the trial judge is to see that there
is no misunderstanding of a witness’s testimony. The
judge has a duty to comprehend what a witness says
as much as it is his duty to see that the witness commu-
nicates with the jury in an intelligible manner. A trial
judge can do this in a fair and unbiased way. His attempt
to do so should not be a basis [for] error. Where the
testimony is confusing or not altogether clear the
alleged jeopardy to one side caused by the clarification
of a witness’s statement is certainly outweighed by the
desirability of factual understanding. The trial judge
should strive toward verdicts of fact rather than verdicts
of confusion.’’ (Internal quotation marks omitted.) Far-
rell v. St. Vincent’s Hospital, 203 Conn. 554, 563–64,
525 A.2d 954 (1987).
Furthermore, in determining whether to admit into
evidence a writing, the court may consider the authen-
ticity of the evidence. Pursuant to § 9-1 of the Connecti-
cut Code of Evidence,11 ‘‘[a]uthentication is . . . a
necessary preliminary to the introduction of most writ-
ings in evidence . . . . In general, a writing may be
authenticated by a number of methods, including direct
testimony or circumstantial evidence. . . . Both courts
and commentators have noted that the showing of
authenticity is not on a par with the more technical
evidentiary rules that govern admissibility, such as hear-
say exceptions, competency and privilege. . . .
Rather, there need only be a prima facie showing of
authenticity to the court. . . . Once a prima facie
showing of authorship is made to the court, the evi-
dence, as long as it is otherwise admissible, goes to the
jury, which ultimately will determine its authenticity.
. . . The requirement of authentication . . . is satis-
fied by evidence sufficient to support a finding that the
offered evidence is what its proponent claims it to be.’’
(Internal quotation marks omitted.) State v. Cooke, 89
Conn. App. 530, 548, 874 A.2d 805, cert. denied, 275
Conn. 911, 882 A.2d 677 (2005). One manner by which
a document can be authenticated is by proof that the
document is signed and the signature is verified either
by the signer, a witness to the signing, or comparison
to the alleged signer’s known signature. See Shulman
v. Shulman, 150 Conn. 651, 657, 193 A.2d 525 (1963);
Tyler v. Todd, 36 Conn. 218, 222 (1869).
Although not all of the exhibits that the defendant
sought to admit are characterized properly as evidence
of prior inconsistent statements, the essence of the
defendant’s argument in favor of admitting the exhibits
is unaffected. The defendant argues that the exhibits
should have been admitted into evidence because they
were relevant to whether he had the intent to deceive
Brenes, as required to prove forgery in the second
degree. According to the defendant, if Brenes knew his
last name at the time that he hired him, Brenes could
not be deceived by the altered identification card.
Contrary to the defendant’s contention, the exhibits
have little to no probative value concerning whether
he had the requisite intent to deceive Brenes. The defen-
dant contends that the exhibits establish that he did
not intend to deceive Brenes because Brenes could not
be deceived if he already knew the defendant’s name.
Whether Brenes was in fact deceived, however, is not
an element of forgery in the second degree in violation
of § 53a-139 (a) (3). See State v. Dickman, 119 Conn.
App. 581, 588–89, 989 A.2d 613, cert. denied, 295 Conn.
923, 991 A.2d 569 (2010); part III A of this opinion. The
belief of the victim is immaterial under § 53a-139 (a)
(3); the only intent that matters is the intent of the
defendant. State v. Dickman, supra, 589.
To the extent that the defendant argues that the
exhibits establish that he did not have the intent to
deceive Brenes because he believed that Brenes knew
his last name when he hired him, the exhibits have
minimal probative value. Even if Brenes knew the
defendant’s last name and placed it on the electronic
record and the handwritten note as early as 2008, there
is no evidence that the defendant knew at the time he
presented the altered identification card to Brenes that
Brenes had done so. No additional evidence was offered
by the defendant to buttress the reliability of the exhib-
its or to relate them to the defendant’s alleged under-
standing that Brenes knew his last name when he
hired him.
Even assuming that the exhibits have probative value,
the trial court found such value to be undermined by
the exhibits’ lack of authenticity and their potential to
confuse the jury, and, thus, excluded them. See Ancheff
v. Hartford Hospital, supra, 260 Conn. 804 (relevant
evidence may be excluded). Significant questions
regarding the authenticity of the exhibits exist. Import-
antly, Brenes was never questioned concerning whether
he had filled out and signed the 2008 and 2009 post
office box applications. Moreover, the second pages of
both applications were missing. Postmaster Bianca’s
testimony regarding the existence of and contrast
between the two applications admittedly was based on
assumption and speculation. The clerks who processed
the applications did not testify, and there was no evi-
dence to establish when the handwritten note was
placed in Brenes’ file. There was no other document
offered by the defendant that linked Brenes, DK Man-
agement, LLC, and the defendant’s full name.
Moreover, it is unclear how the exhibits all fit
together, and their probative value regarding whether
Brenes knew the defendant’s last name prior to hiring
him is low. The defendant attempted to piece multiple
documents together like a complex jigsaw puzzle in
order to establish that Brenes knew the defendant’s last
name in 2008. For the pieces of this puzzle to fit together
as the defendant contends, however, too many assump-
tions, speculation, and logical leaps were required, none
of which were supported by evidence actually offered
or admitted at trial. Additionally, the defendant’s con-
fusing attempts to link these incomplete, unauthenti-
cated documents together naturally affected the court’s
exercise of its discretion to exclude them. Just as ‘‘[t]he
judge [has] a duty to comprehend what a witness says,’’
the court in this case had a duty to comprehend the
information contained in the exhibits to ensure that
their admission would not confuse the jury. (Internal
quotation marks omitted.) Farrell v. St. Vincent’s Hos-
pital, supra, 203 Conn. 563.
In sum, the court did not abuse its discretion by
determining that even if the exhibits had some probative
value, the documents remained inadmissible because
of their lack of authenticity and their likelihood to con-
fuse the jury. Accordingly, we conclude that the court
did not improperly exclude them.
II
The defendant next claims that his due process right
to a fair trial was violated by the state’s failure to correct
the false testimony of a state’s witness that the state
knew to be false. He specifically contends that the state
knew that Brenes was aware of the defendant’s last
name prior to hiring him because the state knew about
the exhibits relating to Brenes’ post office box.
Although the defendant concedes that he did not pre-
serve this claim properly at trial, he seeks review under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015).12 For the reasons that follow,
we find the record inadequate to review this claim.
The following additional facts are relevant to this
claim. During the defendant’s attempt to establish the
admissibility of the exhibits concerning Brenes’ post
office box, the court asked the defendant when he had
become aware of the exhibits. The defendant responded
that he had secured some of the documents prior to
Brenes’ testimony but not all of them. The prosecutor
disagreed, stating that he had obtained all of the exhibits
at issue from a postal inspector and had given copies
of the exhibits to the defendant prior to the start of
trial. The court then asked the prosecutor: ‘‘[I]s it your
representation that you were in possession of [the
exhibits], and a question was asked [to Brenes] and [his]
testimony contradicted what was in [the exhibit]?’’13 The
prosecutor stated that he had questioned Brenes about
the exhibits and that Brenes had told him that he had
no connection to DK Management, LLC, and was not
aware of the handwritten note in his file at the post
office. The prosecutor also argued that he believed that
Brenes testified truthfully and that the exhibits did not
contradict his testimony because their authenticity
never was established—specifically, Brenes never testi-
fied that he signed the post office box applications, the
post office box applications were missing pages, and
only the defendant signed the articles of organization.
The rules governing our evaluation of a claim that a
prosecutor failed to correct false or misleading testi-
mony are derived from those first set forth by the United
States Supreme Court in Brady v. Maryland, 373 U.S.
83, 86–87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). ‘‘In
Brady . . . the United States Supreme Court held that
the prosecution’s failure to disclose a codefendant’s
statement that exculpated the defendant after the defen-
dant had specifically requested that statement consti-
tuted a violation of the defendant’s due process right
under the fourteenth amendment. [T]he suppression by
the prosecution of evidence favorable to an accused
upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.’’ (Foot-
note omitted; internal quotation marks omitted.) State
v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied,
469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).
‘‘In order to prove a Brady violation, the defendant
must show: (1) that the prosecution suppressed evi-
dence after a request by the defense; (2) that the evi-
dence was favorable to the defense; and (3) that the
evidence was material.’’ State v. Simms, 201 Conn. 395,
405, 518 A.2d 35 (1986).
Brady and its progeny have been extended to include
circumstances in which the state knowingly uses per-
jured testimony to obtain a conviction. United States
v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed.
2d 342 (1976). As our Supreme Court has stated, ‘‘the
knowing presentation of false evidence by the state is
incompatible with the rudimentary demands of justice.
. . . Furthermore, due process is similarly offended if
the state, although not soliciting false evidence, allows
it to go uncorrected when it appears. . . . Regardless
of the lack of intent to lie on the part of the witness
. . . the prosecutor [must] apprise the court when he
knows that his witness is giving testimony that is sub-
stantially misleading. . . . A new trial is required if the
false testimony could . . . in any reasonable likelihood
have affected the judgment of the jury.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Satch-
well, 244 Conn. 547, 560–61, 710 A.2d 1348 (1998).
With these legal principles in mind, we turn to
whether this claim is reviewable under Golding. ‘‘The
first two [prongs of Golding] involve a determination
of whether the claim is reviewable . . . .’’ (Internal
quotation marks omitted.) State v. Peeler, 271 Conn.
338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845,
126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). Under the first
prong of Golding, for the record to be adequate for
review, the record must contain sufficient facts to estab-
lish that a violation of constitutional magnitude has
occurred. State v. Brunetti, 279 Conn. 39, 55–56, 901
A.2d 1 (2006) (‘‘we will not address an unpreserved
constitutional claim [i]f the facts revealed by the record
are insufficient, unclear or ambiguous as to whether a
constitutional violation has occurred’’ [internal quota-
tion marks omitted]), cert. denied, 549 U.S. 1212, 127
S. Ct. 1328, 167 L. Ed. 2d 85 (2007). We conclude that the
defendant’s claim fails under the first prong of Golding
because the record is inadequate for review on the
ground that it contains no factual findings by the court
as to whether Brenes testified falsely and, if he did,
whether the state knew about it. Moreover, in the
absence of any such factual findings by the trial court,
the facts in the record are insufficient, unclear, and
ambiguous as to whether a Brady violation has
occurred.
On the basis of facts similar to those in the present
case, our Supreme Court in State v. Brunetti, supra,279 Conn. 42–43, declined to review a constitutional
claim on the ground that the record was inadequate for
review under the first prong of Golding. In Brunetti,
the defendant’s mother declined to sign a consent to
search form that would allow the police to search the
family home, but the defendant’s father signed the con-
sent to search form. Id., 42. At a hearing on a motion
to suppress the evidence obtained during the search of
the family home, the defendant argued only that the
search was unlawful because the father’s consent to
the search had been coerced. Id., 48–49.
On appeal, the defendant claimed for the first time
that there was no consent to search the home because
his mother’s refusal to sign the consent to search form,
which had been admitted into evidence at the suppres-
sion hearing, established that she had refused to con-
sent to the search. Id., 52–53. In declining to review the
defendant’s Golding claim, the court found that the
record lacked a critical factual finding by the trial court
regarding consent to search because the refusal to sign
a consent to search form is not necessarily the equiva-
lent to refusing consent to search. Id., 56. Our Supreme
Court concluded that permitting Golding review of this
unpreserved claim would be unfair to the state because
the state was never put on notice that it was required
to establish that the mother had consented to the
search. Id., 59. Because the state was not granted the
opportunity to present evidence that the mother con-
sented to the search and the trial court did not make
a finding as to whether she did so, our Supreme Court
held that, pursuant to the first prong of Golding, the
record was inadequate to review the defendant’s unpre-
served claim.
In the present case, because the defendant failed to
raise this claim at trial, the record is silent with respect
to two factual predicates necessary to establish his
claim on appeal, namely, that Brenes testified falsely
and the state knew or should have known that Brenes
testified falsely. The defendant never sought any deter-
mination from the trial court that Brenes testified falsely
and the state knew or should have known about it.
Additionally, because the defendant did not pursue a
Brady claim at trial, the state never was put on notice
that it was required to present evidence regarding
whether Brenes testified falsely and, if he did, whether
the state knew his testimony was false. See State v.
Polanco, 165 Conn. App. 563, 575–76, A.3d
(2016) (holding record inadequate for review under first
prong of Golding if state not put on notice of claim
made on appeal, and, thus, not given opportunity to put
on evidence regarding claim because record did not
contain adequate facts and state prejudiced by lack of
notice). The defendant, nonetheless, contends that the
record contains evidence—the excluded exhibits con-
cerning Brenes’ post office box—that supports his
assertion, and he merely asks this court to draw a rea-
sonable inference from that evidence. In essence, the
defendant is asking this court to supplant the role of
the jury or the trial court and find facts by weighing
evidence and drawing inferences therefrom.
‘‘We, as a reviewing court, [however] cannot find
facts, nor, in the first instance, draw conclusions of
facts from primary facts found . . . .’’ (Internal quota-
tion marks omitted.) State v. Kelly, 95 Conn. App. 31,
37, 895 A.2d 801 (2006). Because it is the function of
the trial court, not this court, to make factual findings;
see State v. Satchwell, supra, 244 Conn. 562; the defen-
dant was required to seek a determination from the
trial court of his fact-based claim that the state failed
to correct testimony that it knew to be false. Because
the defendant never did so, the record contains no find-
ings to support his assertion. Because such findings are
required to establish the defendant’s Brady violation
claim, we conclude that the defendant’s claim fails
under the first prong of Golding, and, thus, we decline
to review it.
III
The defendant’s final claim on appeal is that because
the evidence was insufficient to support his conviction
of forgery in the second degree in violation of § 53a-
139 (a) (3) and larceny in the third degree in violation
of § 53a-124 (a) (2), the court improperly denied his
motion for a judgment of acquittal. Concerning his con-
viction of forgery in the second degree, the defendant
contends that there was insufficient evidence to estab-
lish that he intended to deceive Brenes and that he
altered a state issued identification card. Concerning his
conviction of larceny in the third degree, the defendant
contends that there was insufficient evidence in the
record to establish that a theft had occurred. We are
not persuaded.
‘‘It is well settled that a defendant who asserts an
insufficiency of the evidence claim bears an arduous
burden. . . . [F]or the purposes of sufficiency review
. . . we review the sufficiency of the evidence as the
case was tried . . . . [A] claim of insufficiency of the
evidence must be tested by reviewing no less than, and
no more than, the evidence introduced at trial. . . . In
reviewing a sufficiency of the evidence claim, 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 [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt . . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict. . . .
‘‘[T]he jury 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 rea-
sonable and logical for the jury to conclude that a basic
fact or an inferred fact is true, the jury is permitted to
consider the fact proven and may consider it in combi-
nation 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. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact . . . but the cumulative impact of
a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . . In
evaluating evidence, the [jury] is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts estab-
lished by the evidence [that] it deems to be reasonable
and logical. . . .
‘‘[O]n appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty.’’ (Citations omitted; internal
quotation marks omitted.) State v. VanDeusen, 160
Conn. App. 815, 822–23, 126 A.3d 604, cert. denied, 320
Conn. 903, 127 A.3d 187 (2015). In viewing the evidence,
‘‘[i]f [inadmissible] evidence is received without objec-
tion, it becomes part of the evidence in the case, and
is usable as proof to the extent of the rational persuasive
power it may have. The fact that it was inadmissible
does not prevent its use as proof so far as it has proba-
tive value. . . . [T]herefore . . . appellate review of
the sufficiency of the evidence . . . properly includes
hearsay evidence even if such evidence was admitted
despite a purportedly valid objection. Claims of eviden-
tiary insufficiency in criminal cases are always
addressed independently of claims of evidentiary
error.’’ (Internal quotation marks omitted.) State v.
Eubanks, 133 Conn. App. 105, 113–14, 33 A.3d 876, cert.
denied, 304 Conn. 902, 37 A.3d 745 (2012).
A
The defendant claims that there was insufficient evi-
dence to establish all the elements of forgery in the
second degree in violation of § 53a-139 (a) (3), specifi-
cally, that he intended to deceive Brenes and that he
altered an identification card. The state responds that
the defendant relies upon evidence not admitted at trial
to support his argument that he did not have the requi-
site intent, and that the evidence admitted at trial sup-
ports the jury’s finding of intent and that he altered an
identification card. We agree with the state.
The following additional facts and procedural history
are relevant to resolve this claim. At the time that Brenes
interviewed the defendant for the open sales associate
position at National Credit Masters, the defendant pro-
vided Brenes with an identification card bearing the
name ‘‘Keith David.’’ Brenes made a photocopy of the
identification card (photocopy) and then returned it to
the defendant.
At trial, Brenes testified that prior to interviewing
the defendant, he did not know the defendant’s last
name and that after the interview, he believed the defen-
dant’s last name to be ‘‘David.’’ Brenes further testified
that he did not alter the identification card or the photo-
copy in any way. The state offered the photocopy into
evidence. The photocopy was admitted as a full exhibit
without objection by the defendant. The photocopy
shows that the identification card was issued on April
17, 2002, and expired on July 17, 2006.
Also admitted into evidence as a full exhibit without
objection was a printout of an electronic record (elec-
tronic record) from the Department of Motor Vehicles
(department) that establishes that the defendant was
issued an identification card on April 17, 2002, and
that it expired on July 17, 2006, but the name on the
identification card was ‘‘Keith D Chemlen.’’ Mary Grazi-
osa-Norton, an analyst with the document integrity unit
at the department, testified that the photocopy and the
electronic record were comparable except for the
last name.
To convict the defendant of forgery in the second
degree, the state had to prove beyond a reasonable
doubt that: ‘‘with intent to defraud, deceive or injure
another, he falsely [made], complete[d] or alter[ed] a
written instrument . . . which is or purports to be,
or which is calculated to become or represent if com-
pleted . . . (3) a written instrument officially issued
or created by a public office, public servant or govern-
mental instrumentality . . . .’’ (Emphasis added.) Gen-
eral Statutes § 53a-139 (a).
The defendant first argues that there is insufficient
evidence to establish that he altered the identification
card. Specifically, he contends that because the state
offered only a photocopy of the allegedly altered identi-
fication card, rather than the actual identification card
itself, the record lacks sufficient evidence to establish
that he altered the identification card. He further con-
tends that Brenes altered the photocopy. The state
responds that because the defendant did not object to
the admission of the photocopy, it was admitted into
evidence as a full exhibit and could be used for the
substantive purpose of establishing that the defendant
altered the identification card. We agree with the state.
As defined by General Statutes § 53a-137 (6), ‘‘[a]
person ‘falsely alters’ a written instrument when (A)
such person, without the authority of any person enti-
tled to grant it, changes a written instrument, whether
it be in complete or incomplete form, by means of
erasure, obliteration, deletion, insertion of new matter
or transposition of matter or in any other manner, so
that such instrument in its thus altered form appears
or purports to be in all respects an authentic creation
of or fully authorized by its ostensible maker or
drawer . . . .’’
In determining the sufficiency of the evidence, we
may consider no more and no less than the evidence
admitted at trial. If ‘‘evidence is received without objec-
tion, it becomes part of the evidence in the case, and
is usable as proof to the extent of the rational persuasive
power it may have.’’ (Internal quotation marks omitted.)
State v. Eubanks, supra, 133 Conn. App. 113. In the
present case, the defendant did not object to the admis-
sion of the photocopy into evidence, nor did he object to
the admission of the electronic record. Both documents
were admitted without limitation and the jury weighed
them as it deemed appropriate.14 The jury also reason-
ably may have credited Brenes’ testimony that he did
not alter the identification card or the photocopy. The
weight to afford evidence is within the exclusive pur-
view of the trier of fact, and we must defer to the jury’s
credibility assessment. See State v. Smith, supra, 46
Conn. App. 296–97. On the basis of the testimony and
evidence admitted into evidence at trial, the jury reason-
ably could have concluded that (1) the photocopy was
a true and correct original of the identification card
presented to Brenes by the defendant; (2) the identifica-
tion card presented to Brenes had been altered because
it had a different last name than the identification card
issued by the department; and (3) the defendant had
the identification card in his possession, thereby giving
him the opportunity and motive to alter it. Thus, the
jury further reasonably could have concluded that the
defendant altered the identification card.
The defendant next argues that the evidence in the
record is insufficient to establish that he had the intent
to defraud or deceive Brenes. Specifically, the defen-
dant contends that Brenes knew his last name prior
to interviewing him, and, thus, Brenes could not be
deceived by the altered license. The state responds that
no evidence was admitted at trial to support the defen-
dant’s contention, and, even if Brenes knew the defen-
dant’s last name when he interviewed him, Brenes’
knowledge of that fact is immaterial to the defendant’s
intent. We agree with the state.
‘‘It is well settled . . . that the question of intent is
purely a question of fact. . . . The state of mind of one
accused of a crime is often the most significant and, at
the same time, the most elusive element of the crime
charged. . . . Because it is practically impossible to
know what someone is thinking or intending at any
given moment, absent an outright declaration of intent,
a person’s state of mind is usually proven by circumstan-
tial evidence. . . . Intent may be and usually is inferred
from conduct. . . . [W]hether such an inference
should be drawn is properly a question for the jury to
decide. . . . Intent may be inferred from circumstan-
tial evidence such as the events leading to and immedi-
ately following the incident, and the jury may infer that
the defendant intended the natural consequences of his
actions.’’ (Citation omitted; internal quotation marks
omitted.) State v. Dickman, supra, 119 Conn. App. 588.
‘‘It is important to note that the specific intent ele-
ment of the forgery statute is satisfied by an intent to
defraud as well as an intent to deceive. The ordinary
meaning of the phrase ‘to deceive’ is ‘to cause to believe
the false. . . . Deceive indicates an inculcating of one
so that he takes the false as true, the unreal as existent,
the spurious as genuine . . . . In contrast, ‘to defraud’
means ‘to take or withhold from (one) some possession,
right, or interest by calculated misstatement or perver-
sion of truth, trickery, or other deception.’ ’’ (Citations
omitted.) State v. Yurch, 37 Conn. App. 72, 80–81, 654
A.2d 1246, appeal dismissed, 235 Conn. 469, 667 A.2d
797 (1995).
The defendant’s argument fails for two reasons. First,
§ 53a-139, like General Statutes § 53a-140, does not
address the state of mind of the victim of forgery in
the second degree. In other words, whether the victim
was in fact deceived is not an element of the offense.
State v. Dickman, supra, 119 Conn. App. 589. ‘‘The
statute sets forth the elements of the crime, including
the intent of the accused. Whether an accused, in this
case the defendant, was successful in an attempt to
deceive is not the issue.’’ Id. Thus, whether Brenes
knew the defendant’s last name is immaterial to the
defendant’s intent. The defendant argues that the jury
reasonably could have inferred that because Brenes
knew his last name at the time that Brenes hired him,
the defendant could not have intended to deceive
Brenes. The jury, however, reasonably could have
inferred from the evidence in the record that the defen-
dant would not have presented Brenes with an altered
identification card if he thought that Brenes knew his
last name. The jury reasonably could have inferred that
because the defendant provided Brenes with an altered
identification card with a fake last name, he intended
to deceive Brenes.
Second, the evidence that the defendant relies upon
to establish that he did not intend to deceive Brenes—
the exhibits concerning Brenes’ post office box—were
not admitted into evidence. In evaluating a sufficiency
of the evidence claim, we can review no more and no
less evidence than that which was admitted at trial. See
State v. VanDeusen, supra, 160 Conn. App. 822. Other
than the excluded exhibits concerning Brenes’ post
office box, the defendant refers us to no evidence that
was admitted at trial that may establish that he did
not intend to deceive Brenes because he believed that
Brenes knew his last name at the time he interviewed
him. Accordingly, the jury reasonably concluded that
the defendant intended to deceive Brenes.
In sum, the evidence in the record is sufficient to
support the jury’s reasonable conclusion that the defen-
dant altered the identification card and intended to
deceive Brenes. Accordingly, we conclude that, viewing
the evidence in the light most favorable to sustaining
the verdict, the jury reasonably concluded that the
cumulative force of the evidence established the defen-
dant’s guilt of forgery in the second degree in violation
of § 53a-139 (a) (3) beyond a reasonable doubt.
B
The defendant next claims that the evidence was
insufficient to establish all the elements of larceny in
the third degree in violation of § 53a-124 (a) (2). Specifi-
cally, he argues that there is no evidence to support
the jury’s finding that he stole money from Damien
Dawes, Edwin Garcia, or David Brown.15 He contends
that both Dawes and Edwin Garcia paid a fee to National
Credit Masters and that their credit was fixed by
National Credit Masters. As for Brown, the defendant
contends that Brown paid the fee to National Credit
Masters, and subsequently requested that his money be
returned prior to the defendant’s having an opportunity
to work on the case. Although not explicitly stated,
the defendant’s argument on appeal encompasses the
argument that he made at trial in support of his motion
for a judgment of acquittal. At trial, he argued that
because he was an employee of National Credit Masters
at the time that he accepted the money from the clients,
the money that he allegedly stole was the property of
National Credit Masters, not the clients, and, thus, he
did not steal from Dawes, Edwin Garcia, or Brown.
The jury reasonably could have found the following
additional facts. Dawes paid the defendant $220 in cash
in exchange for the defendant’s promise to remove neg-
ative information on his wife’s credit report in order
for Dawes and his wife to qualify for a mortgage to buy
a house. The defendant had told Dawes that it could
take sixty to ninety days to repair his wife’s credit score.
After sixty days, Dawes contacted the defendant and
was told that his wife’s credit had been repaired. Dawes
and his wife proceeded to apply for a mortgage but did
not qualify because nothing had been done to fix his
wife’s credit score and it remained too low to qualify.
Because Dawes and his wife were not able to get a
mortgage in time, they could not close on the property
that they had contracted to purchase. Dawes met with
Brenes to discuss the defendant’s actions, and Brenes
offered to repair his wife’s credit free of charge. Brenes
did not receive the $220 fee that Dawes paid to the
defendant.
The defendant had told Brown that he would repair
Brown’s credit and would negotiate settlements on spe-
cific debts in exchange for a fee of $375. Brown paid
the defendant the $375 fee through PayPal to an account
for Sky Agency, which was associated with an e-mail
address of kchemlen@gmail.com. The defendant
informed Brown that it could be a couple of weeks to
a couple of months before he would see results. The
defendant later told Brown that he had reduced through
negotiations a debt that Brown owed to Bolton Veteri-
nary Clinic from $575 to $82, and instructed Brown to
pay the defendant the $82 through PayPal to the Sky
Agency account in order that the defendant could pay
Bolton Veterinary Clinic. Brown paid the defendant $82
through PayPal. The defendant similarly told Brown
that he had settled a debt owed to AT&T for $37, and
instructed Brown to send him the money through Pay-
Pal, which Brown did.
Brown subsequently received a telephone call from
Brenes, notifying him that the defendant had accepted
money from clients without doing the work or turning
over the payments to National Credit Masters. After
this telephone call concluded, Brown called the defen-
dant, but there was no answer. Brown then contacted
Bolton Veterinary Clinic, which informed him that his
debt never had been settled, nor paid. Brown proceeded
to obtain a copy of his credit report and discovered that
none of his debts had been removed. Brown contacted
PayPal and requested, and received, a refund of all the
funds that he had paid to the defendant. Brenes did not
receive the funds that Brown paid to the defendant.
Edwin Garcia paid the defendant $275 in cash in
exchange for the defendant to repair his credit, particu-
larly to dispute three negative instances listed on his
credit report. After paying the defendant, Edwin Garcia
waited for an update from the defendant. When Edwin
Garcia did not hear from the defendant, he left voice-
mail messages for him. Edwin Garcia obtained a copy
of his credit report and discovered that his credit had
not been repaired. Edwin Garcia then contacted Brenes.
Brenes had not received the $275 fee that Edwin Garcia
paid to the defendant but offered to repair Edwin Gar-
cia’s credit without charge.
‘‘A person is guilty of larceny in the third degree when
he commits larceny, as defined in section 53a-119, and
. . . (2) the value of the property or service exceeds
two thousand dollars . . . .’’ General Statutes § 53a-
124 (a). Pursuant to § 53a-119: ‘‘A person commits lar-
ceny 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 lim-
ited to, obtaining property by false promises. ‘‘A person
obtains property by false promise when, pursuant to a
scheme to defraud, he obtains property of another by
means of a representation, express or implied, that he
or a third person will in the future engage in particular
conduct, and when he does not intend to engage in
such conduct or does not believe that the third person
intends to engage in such conduct. In any prosecution
for larceny based upon a false promise, the defendant’s
intention or belief that the promise would not be per-
formed may not be established by or inferred from
the fact alone that such promise was not performed.’’
General Statutes § 53a-119 (3).
‘‘Our courts have interpreted the essential elements
of larceny as (1) the wrongful taking or carrying away
of the personal property 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 con-
sent of the owner.’’ (Internal quotation marks omitted.)
State v. Friend, 159 Conn. App. 285, 294, 122 A.3d 740,
cert. denied, 319 Conn. 954, 125 A.3d 533 (2015). ‘‘An
‘owner’ means any person who has a right to possession
superior to that of a taker, obtainer or withholder.’’
General Statutes § 53a-118 (a) (5).
The defendant does not dispute whether he had the
requisite intent to deprive an owner of property.
Instead, he disputes only whether a theft in fact
occurred because, according to his claim, the alleged
victims received in kind services in exchange for their
payment of funds. Specifically, he contends that in all
three instances, a fee was paid to National Credit Mas-
ters and that National Credit Masters repaired each
client’s credit report. Concerning Dawes and Edwin
Garcia, he contends that they paid National Credit Mas-
ters a fee to fix their credit scores and National Credit
Masters fixed their credit scores, and, thus, no theft
occurred. Concerning Brown, he contends that Brown
paid National Credit Masters a fee to fix his credit score
but because he was not willing to wait a few months
for the defendant to do the work, he requested and
received a refund of this fee, and, thus, no theft
occurred.
The evidence in the record supports the jury’s finding
that the defendant engaged in a scheme to defraud
clients by promising, although never intending to do
so, that he would repair their credit scores and settle
debts in exchange for a fee. From the evidence in the
record, the jury reasonably could have found that the
defendant lied to Dawes, Edwin Garcia, and Brown
about repairing their credit scores for the purpose of
wrongfully taking funds from them. The jury further
reasonably could have found that the defendant did not
give these funds over to National Credit Masters, but
kept these funds for himself, and, thus, intended to
deprive Dawes, Edwin Garcia, and Brown of their funds
permanently without their consent. Although Dawes,
Edwin Garcia, and Brown paid the fees to the defendant
with the expectation that the fees would be paid to
National Credit Masters, the defendant’s employer did
not receive these fees.
To find that the defendant did not steal their money
because Brenes offered to repair their credit without
charge would reward the defendant for Brenes’
attempts to right the wrong that the defendant caused.
Additionally, the refund that Brown received from Pay-
Pal does not negate the fact that the defendant stole
money from him. If we accepted the defendant’s logic,
any time a defendant committed credit card fraud and
the victim received a refund from his or her bank, the
defendant would be alleviated of criminal responsi-
bility.
To the extent that the defendant’s argument also
implicitly includes the argument that he made at trial
in support for his motion for a judgment of acquittal—
that the owner of the stolen funds was National Credit
Masters and not the clients—we similarly are not per-
suaded. According to the defendant, once the clients
handed the money over to the defendant, National
Credit Masters owned it and, thus, the defendant stole
from his employer, not Dawes, Edwin Garcia, and
Brown. This logic, however, would allow the defendant
to benefit from his false promises and lies. The state
must establish only that the defendant wrongfully
caused the transfer of the property from the owner to
the defendant. See State v. Friend, supra, 159 Conn.
App. 294. In this case, the defendant did this by falsely
representing to Dawes, Edwin Garcia, and Brown that
he would fix their credit scores in exchange for certain
fees. The defendant conducted his scheme out of his
employer’s office, adding apparent legitimacy to it.
Using his employer, however, as a means to deceive
people to pay money does not lessen the fact that he
stole money from Dawes, Edwin Garcia, and Brown.
Although National Credit Masters has been victimized
as well by the defendant’s actions, it was Dawes, Edwin
Garcia, and Brown from whom the defendant stole
money.
In sum, after reviewing the record before us, the jury
reasonably found that the defendant wrongfully took
property from Dawes, Edwin Garcia, and Brown with-
out their consent. Accordingly, in viewing the evidence
in the light most favorable to sustaining the verdict, we
conclude that the jury reasonably concluded that the
cumulative force of the evidence established the defen-
dant’s guilt of larceny in the third degree in violation
of § 53a-124 (a) (2) beyond a reasonable doubt.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-139 (a) provides in relevant part: ‘‘A person is
guilty of forgery in the second degree when, with intent to defraud, deceive
or injure another, he falsely makes, completes or alters a written instrument
or issues or possesses any written instrument which he knows to be forged,
which is or purports to be, or which is calculated to become or represent
if completed . . . (3) a written instrument officially issued or created by
a public office, public servant or governmental instrumentality . . . .’’
(Emphasis added.)
2
General Statutes § 53a-124 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the third degree when he commits larceny, as defined
in section 53a-119, and . . . (2) the value of the property or service exceeds
two thousand dollars . . . .’’
General Statutes § 53a-119 provides 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. . . .’’
3
On the basis of double jeopardy, the court vacated the verdict on the
second count of forgery in the second degree, which alleged that the defen-
dant possessed a state issued identification card that he knew to be forged.
4
The trial court stated that it was confused by the presentation of the
exhibits.
5
Defense exhibit G, which is identical to defense exhibit B, is a single
page document that has two different post office box applications on it.
Each application is approximately one-half page in length. Because the two
applications have different dates and are separate applications, the court
had the document divided so each application was its own exhibit. The
January 29, 2008 application became defense exhibit J, and the February
13, 2009 application became defense exhibit K.
6
We note that the defendant’s appellate brief does not address specifically
which exhibits were excluded improperly, but rather he contends more
generally that he was prevented from impeaching Brenes. Although the
defendant’s brief is unclear, we assume that this claim is directed at each
of the exhibits that the defendant offered concerning Brenes’ post office
box, and address each in turn.
7
Section 6-10 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Prior inconsistent statements generally. The credibility of a witness
may be impeached by evidence of a prior inconsistent statement made by
the witness. . . .
‘‘(c) Extrinsic evidence of prior inconsistent statement of witness. If a
prior inconsistent statement made by a witness is shown to or if the contents
of the statement are disclosed to the witness at the time the witness testifies,
and if the witness admits to making the statement, extrinsic evidence of
the statement is inadmissible, except in the discretion of the court. If a prior
inconsistent statement made by a witness is not shown to or if the contents
of the statement are not disclosed to the witness at the time the witness
testifies, extrinsic evidence of the statement is inadmissible, except in the
discretion of the court.’’
8
The court apparently found that the exhibits related to a noncollateral
matter because if it had concluded that the exhibits related to a collateral
matter, it would have likely excluded them on that basis. State v. Diaz,
supra, 237 Conn. 548.
9
Section 4-1 of the Connecticut Code of Evidence provides: ‘‘ ‘Relevant
evidence’ means evidence having any tendency to make the existence of
any fact that is material to the determination of the proceedings more
probable or less probable than it would be without the evidence.’’
10
Section 4-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘Relevant evidence may be excluded if its probative value is outweighed
by . . . confusion of the issues . . . .’’
11
Section 9-1 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Requirement of authentication. The requirement of authentication
as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the offered evidence is what its proponent claims
it to be. . . .’’
12
‘‘Under Golding review, as modified in In re Yasiel R., supra, 317 Conn.
781, a defendant can prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond a
reasonable doubt.’’ (Emphasis in original; internal quotation marks omitted.)
State v. D’Amato, 163 Conn. App. 536, 543 n.9, A.3d , cert. denied,
321 Conn. 909, A.3d (2016).
13
Although the court questioned the prosecutor about the possibility that
he knew that Brenes testified falsely, this colloquy did not preserve the
defendant’s Brady claim on appeal. The defendant did not pursue the court’s
inquiry further, raise the issue of a potential Brady violation, or cite to any
relevant legal authority concerning a Brady violation during trial. Further-
more, the issue was never raised postjudgment, and, therefore, the court
never made a finding as to whether Brenes lied and whether the state knew
his testimony was false.
14
We note that if we required the state to offer into evidence the altered
identification card in order to prove forgery in the second degree, we would
reward defendants who destroy or hide evidence.
15
The defendant does not challenge on appeal the sufficiency of the evi-
dence in support of the jury’s finding that he stole money from Michelle
Garcia or Craig Kozloski. From the evidence presented at trial, the jury
reasonably could have found that the defendant told Michelle Garcia that
he had negotiated one of her debts with a creditor and that the debt would
be removed from her credit report if she paid him $1141.50 in cash so that
he could pay the creditor. Michelle Garcia gave the defendant $1142 in cash,
which neither the creditor nor National Credit Masters received. Not only
did the creditor never receive the money, but the defendant never negotiated
the debt because the creditor removed the debt when it discovered that the
social security number associated with the debt did not match Michelle
Garcia’s social security number.
The jury also reasonably could have found that Kozloski paid the defendant
$300 in cash to remove a bankruptcy and other negative information from
his credit report. The defendant sent e-mails from a personal e-mail account
to Kozloski with fake credit reports that stated that his credit score was
improving. Once the defendant reported that all the negative information
was removed from the credit report, Kozloski applied for a credit card and
was denied because his credit score had remained the same, and the negative
information and bankruptcy were listed still on his credit report. National
Credit Masters did not receive the $300 that Kozloski paid to the defendant.