State v. Sweet ( 2022 )

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STATE OF CONNECTICUT v. DEREK R. SWEET
(AC 44427)
Alvord, Cradle and Suarez, Js.
Syllabus
Convicted, after a jury trial, of the crimes of larceny in the third degree and
identify theft in the third degree, and, under a part B information, on a
plea of guilty, of being a persistent serious felony offender, the defendant
appealed to this court. The defendant stole a wallet, belonging to his
father, M, and used the credit cards, a debit card and his father’s driver’s
license contained within to make several purchases from various stores,
totaling in excess of $2000. On appeal, the defendant claimed, inter
alia, that the evidence was insufficient to prove that the defendant had
appropriated in excess of $2000 from M to himself and that certain
documentary evidence was improperly admitted in violation of the defen-
dant’s constitutional right to confrontation and the rule against hear-
say. Held:
1. The defendant could not prevail on his claim that, because the state
presented evidence that M suffered only a loss of credit through the
defendant’s use of the stolen credit cards and that the state failed to
prove that credit is money, the evidence was insufficient to prove that the
defendant appropriated in excess of $2000 from M to himself: contrary
to the defendant’s assumption that the state’s theory of the case at trial
with respect to the use of the credit cards was that the defendant stole
money, the state’s theory of the case was that the defendant stole credit
from M, and it was sufficient to present evidence of the transactions,
the credit card statements posting the transactions and M’s efforts to
remove those transactions from his credit card statements, and the
record clearly demonstrated that the defendant used M’s credit cards
to purchase items without authorization to do so, those items were
charged to M, and M’s credit card issuers billed him for those charges,
and the defendant failed to provide other facts that the state could have
produced to prove that unauthorized use of a credit card results in a
taking of credit; moreover, although the credit card issuers eventually
did not hold M responsible for the debt that the defendant incurred,
the defendant’s actions resulted in a reduction of M’s available credit
at the time of the unauthorized purchases; furthermore, although M’s
loss of credit was not permanent, it did not mean that his credit was
not stolen.
2. The defendant could not prevail on his unpreserved claim that both a
property report, created by the investigating police officer that detailed
the fraudulent transactions made by the defendant, and M’s statement to
the police, constituted testimonial hearsay that was improperly admitted
into evidence in violation of his sixth amendment right to confrontation,
as the record clearly demonstrated that defense counsel waived any
objection to the admission of the property report and M’s statement.
3. The defendant could not prevail on his unpreserved claim that letters
from two card issuers regarding the fraudulent charges, which were
admitted into evidence as past recollections recorded under a provision
(§ 8-3 (6)) of the Connecticut Code of Evidence, constituted testimonial
hearsay that was admitted in violation of his sixth amendment right to
confrontation, as any error in admitting these letters was harmless
beyond a reasonable doubt; these letters were admitted to show that
the fraudulent charges occurred and that M reported that he was not
involved in those transactions, and, contrary to the defendant’s claim
that the other exhibits were all evidence of the same facts and, therefore,
the letters were corroborative, the record demonstrated that the letters
were cumulative.
4. The defendant could not prevail on his unpreserved claim that two state-
ments from M’s credit card issuers were improperly admitted as past
recollections recorded under § 8-3 (6) of the Connecticut Code of Evi-
dence, on the ground that the information contained therein was never
personally known to M, through whom the statements were presented,
as any such error did not substantially affect the verdict; the record
demonstrated that M’s statement to the police established the dates and
values of the fraudulent transactions and, therefore, the statements,
admitted only to prove those values, were merely cumulative, the testi-
mony of M and the investigating police officer regarding the charges
established the amounts listed on the property report and in M’s state-
ment to the police, and, accordingly, the two statements were not needed
to corroborate the information presented.
Argued April 12—officially released August 30, 2022
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of larceny in the
third degree and identify theft in the third degree, and,
in the second part, with being a persistent serious felony
offender, brought to the Superior Court in the judicial
district of New Britain, geographical area number fif-
teen, where the first part of the information was tried
to the jury before Oliver, J.; verdict of guilty; thereafter,
the defendant was presented to the court, Oliver, J.,
on a plea of guilty to the second part of the information;
judgment of guilty in accordance with the verdict and
plea, from which the defendant appealed to this court.
Affirmed.
Adele V. Patterson, former senior assistant public
defender, for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Brian W. Preleski, former
state’s attorney, and David Clifton, senior assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Derek R. Sweet, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of larceny in the third degree in
violation of General Statutes § 53a-124 (a) (2),1 and one
count of identity theft in the third degree in violation
of General Statutes § 53a-129d (a).2 On appeal, the
defendant claims that (1) there was insufficient evi-
dence to sustain the jury’s verdict of guilty of larceny
in the third degree and (2) the court erred in admitting
certain hearsay evidence. We disagree and, accordingly,
affirm the judgment of conviction.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of this appeal. On or about November 19,
2017, the defendant took a wallet, belonging to his
father, Martin Sweet (Martin), which contained a Peo-
ple’s United Bank debit card, an American Express
credit card, a Chase credit card, an Old Navy credit
card, a Home Depot credit card,3 a Social Security card,
and a driver’s license. On November 19, the defendant
used the cards to make a variety of purchases at local
stores, including Walmart, Stop and Shop, and Family
Dollar. The purchases totaled $2373.94.4 On or around
December 28, 2017, the defendant made three pur-
chases, totaling $2628.91, using Martin’s Home Depot
credit card in three separate transactions at a West
Hartford Home Depot.5 Martin reported the theft of the
wallet and the subsequent fraudulent charges to the
card issuers, and, after taking the several steps required
to dispute the charges, he did not have to pay any of
the fraudulent charges.
Following an investigation, the defendant was
arrested and charged, by way of a substitute informa-
tion, with one count of larceny in the third degree in
violation of § 53a-124 (a) (2), and one count of identity
theft in the third degree in violation of § 53a-129d (a).
After one day of evidence, the state rested, and the
defendant filed a motion for judgment of acquittal,
which the court, Oliver, J., denied.6 On January 23,
2020, the jury found the defendant guilty on both counts.
The defendant then pleaded guilty to a part B informa-
tion, which charged him as a persistent serious felony
offender in violation of General Statutes § 53a-40 (c).7
Following the verdict, the defendant renewed his
motion for judgment of acquittal, which was also
denied. On August 17, 2020, the court sentenced the
defendant to a total effective sentence of ten years
of incarceration, execution suspended after forty-two
months, followed by five years of probation. This appeal
followed.
I
The defendant’s first claim on appeal is that the evi-
dence was insufficient to prove that he appropriated
in excess of $2000 from Martin to himself. Although
the defendant admits that ‘‘the jury reasonably could
find that the state proved its theory that the defendant
stole his father’s credit cards and used them to make
unauthorized purchases,’’ he contends that there was
no ‘‘evidence or law to support its contention that using
the [credit] cards took money from Martin.’’ Specifi-
cally, the defendant asserts that ‘‘[t]he state’s articula-
tion of its theory of the crime to the trial court and to
the jury assumed that the use of a person’s credit card
results in taking his money, but no evidence was offered
to support that factual premise.’’ In sum, the defendant’s
argument is that the state’s theory of the case with
respect to the credit cards was that the defendant stole
money from Martin and, therefore, because the evi-
dence made clear that Martin ultimately only suffered
a loss of credit, the state further had to prove that credit
is money. In response, the state argues that its theory
of the case at trial with respect to the credit cards
was that the defendant stole credit from Martin and,
therefore, it was sufficient to present evidence of the
transactions, the credit card statements posting the
transactions, and Martin’s efforts to remove those trans-
actions from his credit card statements to establish that
the defendant took credit worth more than $2000 from
Martin. We agree with the state.8
The following procedural history is relevant to our
resolution of this claim. In count one of the operative
long form information, the state charged the defendant
with larceny in the third degree in violation of § 53a-
124 (a) (2), alleging as follows: ‘‘on or about diverse
dates between November 19, 2017, and December 28,
2017, beginning in the town of Newington and continu-
ing throughout the state, the defendant . . . with intent
to deprive another of property and appropriate the same
to himself and a third person, did wrongfully take,
obtain, and withhold such property from its owner, the
value of which exceeds two thousand dollars, to wit:
the defendant did wrongfully appropriate in excess of
$2000 from Martin Sweet to himself.’’
At trial, Martin testified that, once he realized his
wallet was missing, he reported that issue to his credit
card issuers. He further testified that, upon reporting
the missing cards, he was informed that the cards were
being used. Accordingly, he cancelled his credit cards
and reported the situation to the Newington Police
Department. He also testified about the credit card bills
he received listing charges he did not make and the
process through which he reported the fraudulent trans-
actions to the card issuers. During Martin’s testimony,
the state introduced into evidence credit card state-
ments that listed the various disputed charges and let-
ters from the credit card issuers that detailed the
reported fraudulent charges.9
Officer Reza Abbassi of the Newington Police Depart-
ment testified about his investigation into the matter.
He testified that Martin filled out a lost/stolen property
report (property report) listing all of the charges made
to his credit cards10 following the theft of his wallet,
along with the times and locations of each transaction,
and the property report was entered into evidence as
a full exhibit.11 Officer Abbassi testified that he used
the property report to follow up with the stores to
investigate who had made the various charges. Officer
Abbassi also testified that, after viewing surveillance
video, reviewing receipts, and meeting with Martin, he
was able to confirm that the defendant had made the
charges that Martin had reported as fraudulent.
In closing arguments, the prosecutor emphasized the
timing of the larceny, asserting that there were ‘‘[nine-
teen] charges in just under [thirteen] hours. Over $2300
taken in that [thirteen] hours. . . . That tells you that
the defendant is trying to rack up as much money as
he can before those cards get cancelled. He wants to
get the value while he can.’’ The prosecutor then
addressed the fact that Martin never had to pay for
the defendant’s charges: ‘‘Now the defense asked some
questions about the bank covering [Martin’s] loss. . . .
That is legally irrelevant to your inquiry here.12 What
we do in criminal law is we punish conduct based upon
the time that it occurs. We look at what the defendant
did, not six months from now, not years from now to
see who’s left holding the bag; when he made those
charges, it’s Martin Sweet on the hook. Martin Sweet
owes that money to the credit card [issuers]. When the
defendant makes those charges, he doesn’t know the
credit card [issuers] are going to do the right thing and
reimburse him. If they decided not to, Martin Sweet is
the one with the debt. When he makes those charges,
it’s Martin Sweet, that’s whose money he’s taking.’’
(Footnote added.) The prosecutor then referred to the
credit card statements and argued that those charges
represented the value of the credit taken from Martin.
In closing arguments, defense counsel stated, inter
alia, that ‘‘[t]he state has to prove that there was prop-
erty taken from [Martin] and with intent to deprive him
of it. What is that property? When was [it] taken? Why
was it deprived? So I’ll ask you to consider those things
when you go in to deliberate.’’ In rebuttal, the prosecu-
tor again emphasized the timing of the larceny, stating,
‘‘[a]gain, it’s the time, the conduct at the time those
cards are swiped. We don’t look six months down the
line to see who ends up holding the bag. The banks did
the right thing here, that doesn’t matter, Martin Sweet
could have been out the money, and at that time, the
defendant made those charges Martin Sweet was out
that money.’’
We begin by setting forth the well established stan-
dard of review for claims of insufficient evidence.13 ‘‘In
reviewing the sufficiency of the evidence to support a
criminal conviction we apply a [two part] test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.
. . . We note that the [finder of fact] must find every
element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense, [but]
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt. . . . If it is reasonable and logical for the [finder
of fact] to conclude that a basic fact or an inferred fact
is true, the [finder of fact] is permitted to consider the
fact proven and may consider it in combination with
other proven facts in determining whether the cumula-
tive effect of all the evidence proves the defendant
guilty of all the elements of the crime charged beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Edwards, 202 Conn. App. 384, 389–90, 245 A.3d
866, cert. denied, 336 Conn. 920, 246 A.3d 3 (2021). ‘‘On
appeal, we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
[trier’s] verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Tony O., 211 Conn. App. 496, 509,
272 A.3d 659, cert. denied, 343 Conn. 921, 275 A.3d
214 (2022).
The following legal principles guide our analysis. Sec-
tion 53a-124 (a) (2) provides: ‘‘A person is guilty of
larceny in the third degree when he commits larceny,
as defined in [§] 53a-119, and . . . the value of the
property or services 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. . . .’’ Gen-
eral Statutes § 53a-118 (a) (1) defines property as ‘‘any
money, personal property, real property, thing in action,
evidence of debt or contract, or article of value of any
kind.’’ ‘‘[T]he essential elements of larceny are: (1) the
wrongful taking or carrying away of the . . . property
of another; (2) the existence of a felonious intent in
the taker to deprive the owner of [the property] perma-
nently; and (3) the lack of consent of the owner.’’ (Inter-
nal quotation marks omitted.) State v. Adams, 327 Conn.
297, 305–306, 173 A.3d 943 (2017).
The defendant argues that the state was required to
prove that credit is money but failed to present evidence
that credit is money; this argument is premised on an
assumption that the state’s theory of the case with
respect to the use of the credit cards was that the
defendant stole money. The state, however, correctly
points out that the theory it presented at trial was that
the defendant stole credit when he used Martin’s credit
cards and that, therefore, there is no evidentiary missing
link—it properly proved that the defendant stole
credit.14 After review of the substitute information,15 the
state’s evidence, and the prosecutor’s closing argu-
ments, it is clear that, with respect to the defendant’s
use of Martin’s credit cards, the state sought to prove
that the defendant took property in the form of credit
valued at more than $2000 from Martin on November
19 and December 28, 2017.16 As the defendant aptly
summarized in his principal appellate brief, ‘‘[t]he
state’s theory was that a taking from Martin occurred
when his credit accounts were used to make unautho-
rized purchases from merchants totaling over $2000.
The state expressly did not attempt to prove that the
defendant’s [use of Martin’s credit cards] actually cost
Martin any money.’’ The state did not attempt to offer
such proof because it presented evidence that the defen-
dant took property in the form of credit when he made
purchases with Martin’s credit cards.17 Therefore, the
state did not need to show that credit is money, it
needed only to present evidence that the defendant
took property in the form of credit.18
Further, after considering the evidence in the light
most favorable to sustaining the jury’s verdict, we con-
clude that there was sufficient evidence presented for
the jury to find that the defendant took credit totaling
in excess of $2000 from Martin. The state presented
evidence that established that the defendant took Mar-
tin’s credit cards and used them without his consent.
The state also presented evidence that the defendant’s
unauthorized purchases resulted in excess of $2000
being charged to Martin’s credit accounts.
Responding to the state’s position, the defendant
argues that, ‘‘even if credit is property, the law does
not deem every unauthorized use of a credit card to be
a criminal taking without proof of that result . . . . It
is not enough for a prosecutor to say that every use of
a credit card imposes a financial obligation on the card
owner: that is an assertion of fact essential to the state’s
case which it had to prove, with evidence, in order to
convict in this case.’’
The defendant does not make clear, however, how
the state failed to present proof of theft of credit. As
discussed herein, the state presented evidence that the
defendant used Martin’s credit cards to purchase items
without authorization to do so, that those items were
charged to Martin, and that Martin’s credit card issuers
billed him for the defendant’s charges. The defendant
fails to provide other facts the state could have pro-
duced to prove that unauthorized use of a credit card
results in a taking of credit. It is common knowledge
that the holder of a credit card has a certain amount
of credit, with which they may purchase goods and
services. As the credit card holder makes purchases
with that credit, the amount of available credit is
reduced. Common sense dictates that when another
takes credit without authorization, the credit holder has
less credit available and has therefore lost something
of value. See State v. Henderson, 47 Conn. App. 542,
554, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d
829 (1998) (‘‘[I]t is a reasonable and logical inference
for a juror to conclude that a card referred to as a credit
card enables one to receive things on credit. It is an
abiding principle of jurisprudence that common sense
does not take flight when one enters a courtroom.’’
(Footnote omitted; internal quotation marks omitted.));
see also State v. Otto, 305 Conn. 51, 70 n.17, 43 A.3d
629 (2012) (‘‘[i]n deciding cases . . . [j]urors are not
expected to lay aside matters of common knowledge
or their own observations and experiences, but rather,
to apply them to the facts as presented to arrive at an
intelligent and correct conclusion’’ (internal quotation
marks omitted)).
The fact that the credit card issuers eventually did
not hold him responsible for the debt that the defendant
incurred does not alter the fact that the defendant’s
actions resulted in a reduction of Martin’s available
credit at the time of the unauthorized purchases. In
fact, Martin testified that when he contacted the credit
card issuers they informed him that several transactions
had gone through and that, subsequently, he had to
take several steps to ensure that he ultimately was not
responsible for the defendant’s charges. The fact that
‘‘everything was written off’’ does not mean that Mar-
tin’s credit was not stolen, even though the loss was
not permanent.
In light of the foregoing, we reject the defendant’s
claim that the evidence was insufficient to prove that
the defendant took property valued in excess of $2000
from Martin.
II
The defendant next argues the court improperly
admitted into evidence certain documents in violation
of the defendant’s constitutional right to confrontation
and the rule against hearsay. We disagree.
A
We first address the defendant’s claim that certain
documents were admitted into evidence in violation
of his sixth amendment right to confrontation. Those
documents include the property report that Martin filled
out and gave to Officer Abbassi, a letter from People’s
United Bank regarding the fraudulent charges on that
card (People’s letter), a letter from Chase Bank Card
Services regarding the fraudulent charges on that card
(Chase letter), and a statement that Martin gave to the
police regarding the second round of charges at Home
Depot in December, 2017 (statement).
The defendant concedes that this claim was not pre-
served and, consequently, requests review pursuant to
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015). Under Golding, ‘‘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 demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt.’’ (Emphasis in original;
footnote omitted.) State v. Golding, supra, 213 Conn.
239–40. ‘‘The first two [prongs of Golding] involve a
determination of whether the claim is reviewable; the
second two . . . involve a determination of whether
the defendant may prevail.’’ (Internal quotation marks
omitted.) State v. Tyus, 342 Conn. 784, 803, 272 A.3d 132(2022). ‘‘[T]he inability to meet any one prong requires
a determination that the defendant’s claim must fail.
. . . The appellate tribunal is free, therefore, to respond
to the defendant’s claim by focusing on whichever con-
dition is most relevant in the particular circumstances.’’
(Citation omitted; internal quotation marks omitted.)
State v. Soto, 175 Conn. App. 739, 755, 168 A.3d 605,
cert. denied, 327 Conn. 970, 173 A.3d 953 (2017).
On appeal, the state argues, inter alia, that (1) the
defendant waived any sixth amendment claim concern-
ing both the property report and the statement Martin
gave to the police, and, therefore, with respect to these
exhibits, the defendant’s claim fails under the third
prong of Golding, and (2) any error in admitting the
People’s letter and the Chase letter was harmless, and,
therefore, with respect to these exhibits, the defen-
dant’s claim fails Golding’s fourth prong. We agree with
the state.
1
We first address the property report and the state-
ment that Martin gave to the police. The defendant
argues that these two exhibits were admitted in viola-
tion of his sixth amendment right to confrontation
because the two documents were ‘‘made under circum-
stances which would lead an objective witness reason-
ably to believe that the [documents] would be available
for use at a later trial by available entities, which the
defendant had no opportunity to confront.’’ The state
responds that the defendant’s claim is waived with
respect to these two exhibits because defense counsel
affirmatively stated that there was ‘‘no objection’’ to
either exhibit when each was offered as a full exhibit.
We agree with the state and, therefore, conclude that
the defendant’s claim fails Golding’s third prong.
The following additional procedural history is rele-
vant to our analysis of this claim. When the state offered
the property report as a full exhibit, defense counsel
conducted a brief voir dire of the witness through which
the exhibit was offered. During the voir dire, the prose-
cutor objected to the line of questioning as going beyond
the scope of voir dire, and the court stated in agreement
that ‘‘[t]his is voir dire [of] the document as [opposed]
to cross, counsel.’’ Defense counsel then concluded
questioning, stating: ‘‘Very good, Your Honor. No objec-
tion with that.’’ Similarly, when the state offered Mar-
tin’s statement as a full exhibit, defense counsel con-
ducted a brief voir dire of the witness and informed
the court that there was ‘‘no objection’’ to the exhibit.
‘‘It is well settled that a criminal defendant may waive
rights guaranteed to him under the constitution. . . .
[T]he definition of a valid waiver of a constitutional
right . . . [is] the intentional relinquishment or aban-
donment of a known right. . . . When a party consents
to or expresses satisfaction with an issue at trial, claims
arising from that issue are deemed waived and may not
be reviewed on appeal. . . . Additionally, it is well set-
tled that defense counsel may waive a defendant’s sixth
amendment right to confrontation.’’ (Citations omitted;
internal quotation marks omitted.) State v. Luna, 208
Conn. App. 45, 68–69, 262 A.3d 942, cert. denied, 340
Conn. 917, 266 A.3d 146 (2021); see also State v. Castro,
200 Conn. App. 450, 457–58, 238 A.3d 813, cert. denied,
335 Conn. 983, 242 A.3d 105 (2020). We note also that
‘‘waiver of a fundamental right may not be presumed
from a silent record.’’ State v. Smith, 289 Conn. 598,
621, 960 A.2d 993 (2008).
‘‘[A] constitutional claim that has been waived does
not satisfy the third prong of the Golding test because,
in such circumstances, we simply cannot conclude that
injustice [has been] done to either party . . . or that
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial . . . . To
reach a contrary conclusion would result in an ambush
of the trial court by permitting the defendant to raise
a claim on appeal that his or her counsel expressly had
abandoned in the trial court.’’ (Internal quotation marks
omitted.) State v. Luna, supra, 208 Conn. App. 70.
In Luna, defense counsel had no objection to marking
a contested exhibit for identification and, when the
state offered the exhibit in full, objected to the evidence
only on the basis that it was more prejudicial than
probative and specifically stated that there were no
further objections to the exhibit. Id., 69. On appeal, the
defendant claimed that the evidence was admitted in
violation of his sixth amendment right to confrontation.
Id., 67. Given the nature of defense counsel’s state-
ments, the court concluded that there had been ‘‘a valid,
express waiver of the defendant’s sixth amendment
confrontation clause claim.’’ (Internal quotation marks
omitted.) Id., 69–70. Therefore, the defendant’s claim
failed under the third prong of Golding. Id., 70.
Additionally, in State v. Castro, supra, 200 Conn. App.
462, this court determined that defense counsel
expressly waived the defendant’s right to confront the
author of an exhibit because defense counsel indicated
‘‘that he had ‘absolutely no objection’ to the admission
of the [exhibit], or to [a witness] testifying to the con-
tents of [the exhibit].’’
In the present case, it is clear from the record that
defense counsel waived any objection to the admission
of the property report and Martin’s statement. The
record indicates that defense counsel noted that he had
‘‘no objection’’ to both the property report and Martin’s
statement. These statements are similar to those made
in State v. Luna, supra, 208 Conn. App. 69, and State
v. Castro, supra, 200 Conn. App. 462, as defense counsel
expressly stated, after voir dire, that he had no objection
to the admission of the property report and statement
as full exhibits. Therefore, defense counsel’s statements
‘‘constituted a valid, express waiver of the defendant’s
sixth amendment confrontation clause claim.’’19 See id.Consequently, with respect to the property report and
Martin’s statement to the police, Golding’s third prong
is not satisfied.
2
We next address the defendant’s claim that the Peo-
ple’s letter and the Chase letter constituted testimonial
hearsay that was admitted in violation of his sixth
amendment right to confrontation. The defendant
argues that ‘‘[t]he formality of these documents . . .
reasonably would lead the declarants to believe that
their statements would be used in a subsequent prose-
cution’’ and, therefore, their admittance violated his
sixth amendment right to confrontation. The state
argues, inter alia, that ‘‘any error in admitting [these
exhibits] would be harmless beyond a reasonable doubt
because they are cumulative to [the property report
and Martin’s statement to the police].’’ We agree with
the state.
The defendant raises a claim under the sixth amend-
ment and the record is adequate to review whether
or not the admission of the evidence was harmful.20
Accordingly, we turn to Golding’s fourth prong. On
review, we conclude that the state has sustained its
burden of demonstrating that any claimed error was
harmless beyond a reasonable doubt. ‘‘[Our Supreme]
Court has long recognized that a violation of the defen-
dant’s right to confront witnesses is subject to harmless
error analysis . . . . In undertaking this analysis, the
test for determining whether a constitutional [error] is
harmless . . . is whether it appears beyond a reason-
able doubt that the [error] complained of did not con-
tribute to the verdict obtained. . . . In addition, [w]hen
an [evidentiary] impropriety is of constitutional propor-
tions, the state bears the burden of proving that the
error was harmless beyond a reasonable doubt. . . .
This court has held in a number of cases that when
there is independent overwhelming evidence of guilt,
a constitutional error would be rendered harmless
beyond a reasonable doubt. . . . [W]e must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . If the evidence may have had
a tendency to influence the judgment of the jury, it
cannot be considered harmless. . . . That determina-
tion must be made in light of the entire record [including
the strength of the state’s case without the evidence
admitted in error]. . . . Additional factors that we have
considered in determining whether an error is harmless
in a particular case include the importance of the chal-
lenged evidence to the prosecution’s case, whether it is
cumulative, the extent of cross-examination permitted,
and the presence or absence of corroborating or contra-
dicting evidence or testimony.’’ (Citations omitted;
internal quotation marks omitted.) State v. Edwards,
334 Conn. 688, 706–707, 224 A.3d 504 (2020).
We must determine, then, whether the state has dem-
onstrated beyond a reasonable doubt that the introduc-
tion of the People’s letter and the Chase letter contrib-
uted to the defendant’s conviction. The credit card
issuers prepared the letters in response to Martin’s
reports to those issuers that various charges made on
the accounts were fraudulent. The People’s letter listed
the charges from November 19 to that account that
Martin reported as fraudulent and included an affidavit
for Martin to sign verifying that he did not make the
listed charges. The Chase letter also listed the charges
from November 19 that Martin reported as fraudulent
and provided that, following investigation, Martin
would not be responsible for the fraudulent charges.
Both exhibits were admitted, over defense counsel’s
objections, as past recollections recorded.21
In addition to these exhibits, the state admitted the
property report that Martin completed and gave to Offi-
cer Abbassi. The property report, admitted without
objection, lists every purchase the defendant made on
November 19 and includes the time of each purchase.
Martin testified that he completed the property report
after his initial meeting with Officer Abbassi in order
to help with the investigation. He testified that he called
each card issuer, asked for each charge made since his
wallet went missing, and wrote down the information
provided. The charges listed on the People’s letter and
the Chase letter are all listed on the property report.
At trial, Officer Abbassi testified as to the details of
his investigation. First, he visited each of the stores
listed on the property report to verify the charges. He
was able to verify many of the charges listed on the
property report. In addition, he reviewed surveillance
video of the defendant making the purchases. Further,
Martin testified at length that he initially was charged
for the listed transactions, that he never made those
transactions, and that he did not give the defendant
authorization to engage in those transactions.
On consideration of the property report22 and the
supporting witness’ testimony, we determine that the
People’s letter and the Chase letter were cumulative of
the other evidence presented at trial. These letters were
admitted to show that the charges occurred and that
Martin reported that he was not involved in those trans-
actions. The other exhibits, Martin’s testimony, and
Officer Abbassi’s testimony, however, were all evidence
of the same facts. Although the defendant asserts that
this makes the letters corroborative rather than cumula-
tive, the record shows otherwise. Therefore, we con-
clude that any error in admitting the letters was harm-
less beyond a reasonable doubt, and this claim fails
Golding’s fourth prong.
B
Finally, we review the defendant’s claim that a state-
ment from Martin’s Old Navy credit card (Old Navy
statement) and a statement from Martin’s Home Depot
credit card (Home Depot statement) were improperly
admitted as past recollections recorded under § 8-3 (6)
of the Connecticut Code of Evidence. Specifically, he
argues, as he did at trial, that the information contained
in these exhibits was never personally known to Martin,
the witness through whom the exhibits were presented,
and, therefore, could not be admitted into evidence as
past recollections recorded. The state argues, inter alia,
that, even if these exhibits were admitted in error, the
defendant cannot show harm because the information
listed in the exhibits, namely, the various charges made
to Martin’s cards during the period of time in which
the defendant had the cards, was also listed in Martin’s
property report and statement to the police. In res-
ponse, the defendant argues that these exhibits were
‘‘corroborative, rather than merely cumulative’’ of the
information in the property report and Martin’s state-
ment to the police. We agree with the state that admis-
sion of the exhibits was harmless, and, therefore, we
need not determine whether the court erred in admit-
ting them.23
‘‘[W]hether [an improper evidentiary ruling that is not
constitutional in nature] is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the [improperly admitted] evidence on the
trier of fact and the result of the trial. . . . [T]he proper
standard for determining whether an erroneous eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict. . . .
When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. (Citation omitted;
internal quotation marks omitted.) State v. Urbanowski,
163 Conn. App. 377, 407, 136 A.3d 236 (2016), aff’d, 327
Conn. 169, 172 A.3d 201 (2017).
On review, we cannot conclude that the jury’s verdict
was substantially swayed by the admission of the Old
Navy statement and the Home Depot statement. The
Old Navy statement listed two transactions from
November 19, and Martin testified that he did not make
those charges. The charges listed on the Old Navy state-
ment also were listed on the property report. Similarly,
the Home Depot statement listed three charges, one
from December 26 and two from December 28, and
Martin again testified that he did not make those trans-
actions.
In addition to these exhibits, which are the subject
of this claim, the state submitted the property report
Martin completed, discussed in detail in part II A 2 of
this opinion, and Martin’s statement to the police.24 The
statement, which was admitted without objection,
detailed the defendant’s second round of fraudulent
charges in December, 2017. The statement lists three
charges on December 28, 2017, to Martin’s Home Depot
credit card.25 The charges listed are the same as those
listed on the Home Depot statement. Martin testified
about the charges made to his Home Depot credit card
after he had canceled his stolen cards and about how
he learned of the defendant’s conduct after receiving
a bill for purchases he never made. Martin testified that
he then met with Officer Abbassi and provided the
statement regarding those additional charges on Janu-
ary 27, 2018. Officer Abbassi testified that he confirmed
the Home Depot purchases by obtaining receipts and
surveillance footage of the defendant making the pur-
chases from the store.
Given this record, we cannot conclude that the defen-
dant has sustained his burden of showing harm. Martin’s
statement to the police established the dates and values
of the fraudulent transactions on the Home Depot card,
and, therefore, the Home Depot statement, admitted
only to prove those values, was merely cumulative.
Further, the property report established the dates and
values of the fraudulent transactions on the Old Navy
card. In addition, Martin’s and Officer Abbassi’s testi-
mony regarding the charges and the investigation estab-
lished the amounts listed on the property report and
in Martin’s statement—the statements were not needed
to corroborate the information. In other words, given
the other evidence that was before the jury, we have
fair assurance that, even if the court improperly admit-
ted these exhibits, any such error did not substantially
affect the verdict. Accordingly, the defendant cannot
prevail on this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-124 provides in relevant part: ‘‘(a) A person is
guilty of larceny in the third degree when he commits larceny, as defined
in [§] 53a-119, and . . . (2) the value of the property or service exceeds
two thousand dollars . . . .’’
General Statues § 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. . . .’’
2
General Statutes § 53a-129d (a) provides: ‘‘A person is guilty of identity
theft in the third degree when such person commits identity theft, as defined
in [§] 53a-129a.’’
General Statutes § 53a-129a provides: ‘‘(a) A person commits identity
theft when such person knowingly uses personal identifying information of
another person to obtain or attempt to obtain money, credit, goods, services,
property or medical information without the consent of such other person.
‘‘(b) As used in this section, ‘personal identifying information’ means any
name, number or other information that may be used, alone or in conjunction
with any other information, to identify a specific individual including, but
not limited to, such individual’s name, date of birth, mother’s maiden name,
motor vehicle operator’s license number, Social Security number, employee
identification number, employer or taxpayer identification number, alien
registration number, government passport number, health insurance identifi-
cation number, demand deposit account number, savings account number,
credit card number, debit card number or unique biometric data such as
fingerprint, voice print, retina or iris image, or unique physical representa-
tion.’’
3
A ‘‘dispute claim request’’ from People’s United Bank regarding the fraud-
ulent charges asked Martin whether ‘‘[his] Debit Card or ATM Card’’ was
or was not in his possession at the time of the disputed transactions. Further,
Martin testified that his ‘‘debit card’’ was in his wallet when the wallet went
missing. See part II A 2 of this opinion. Thus, in this opinion we refer to
the People’s United Bank card as a debit card. We refer to the People’s
United Bank debit card, the American Express credit card, the Old Navy
credit card, and the Home Depot credit collectively as cards and to the
issuers of those cards as card issuers. When we refer to credit cards and
credit card issuers, we are not referencing the People’s United Bank
debit card.
4
Of the $2373.94 total, $377.93 applied to Martin’s People’s United Bank
debit card.
5
Martin testified at trial that he had cancelled all of his credit cards
following the first round of fraudulent charges on November 19 and was
surprised when his Home Depot credit card bill included additional charges
that he had not made. He further testified that ‘‘[t]he Home Depot when I
called them up because I’m like how could you possibly let more charges
go up? Because I cancelled the card and that’s when they told me, well, we
also just accept driver’s licenses to make charges.’’
6
The defendant argued in support of his motion for judgment of acquittal
that ‘‘the state is required to prove that [the defendant] had appropriated
property from Mr. Martin Sweet valued at over $2000. Although the state
did introduce some evidence of transactions that took place, it looks like
those transactions were all related to losses by the Home Depot, losses by
other businesses, but no losses over $2000 to Mr. [Martin] Sweet directly.’’
The defendant relied on the fact that Martin’s credit card issuers did not
ultimately bill him for the fraudulent charges. The state responded that it
‘‘[did] not need to prove [that] the ultimate loss rested on Mr. Martin Sweet,
simply that when the defendant made those charges, he was taking that
property from Martin Sweet, in that, using his credit cards.’’ The court
determined that the state had presented evidence that could support both
a theory that the defendant took Martin’s credit and a theory that the
defendant took the items purchased with the credit cards, to which Martin
had a superior property right.
7
General Statutes § 53a-40 (c) provides in relevant part: ‘‘A persistent
serious felony offender is a person who (1) stands convicted of a felony,
and (2) has been, prior to the commission of the present felony, convicted
of and imprisoned under an imposed term of more than one year or of
death, in this state or in any other state or in a federal correctional institution,
for a crime. . . .’’
8
The defendant takes issue only with the sufficiency of the evidence with
respect to his use of Martin’s credit cards. He makes no argument that
the state produced insufficient evidence to prove that the defendant took
something from Martin when he used his debit card. Therefore, our review
of this claim relates only to the state’s theory of the case with respect to
the use of Martin’s credit cards and the sufficiency of the evidence to prove
that the defendant took Martin’s credit.
9
These exhibits, and others, are the subject of the defendant’s second
claim. See part II of this opinion.
10
The property report also included a list of purchases made using Martin’s
People’s United Bank debit card.
11
The property report is also the subject of the defendant’s second claim.
See part II of this opinion.
12
The defendant disputes the state’s position that the card issuers’ cover-
age of the losses is irrelevant. The defendant asserts that the state’s position
was that ‘‘it did not need to prove any loss to Martin.’’ The defendant
misstates the state’s position. The state actually advocated that whether or
not Martin ultimately lost funds was irrelevant because the state had shown
that the defendant took credit from Martin at the time he made the transac-
tions.
13
The defendant advocates that a plenary standard of review applies to
this claim because ‘‘[w]hen the question is whether the criminal statute of
conviction applies on the facts of the case, the question is one of statutory
interpretation . . . .’’ We disagree that the defendant’s claim requires analy-
sis of whether § 53a-124 applies on the facts of this case, and, therefore,
we do not afford his claim plenary review.
14
At trial, the state offered an alternative theory that the items the defen-
dant purchased with Martin’s credit cards constituted the property taken
from Martin because Martin had superior rights to the property as it was
purchased with his credit cards. The court agreed with the state that this
was a viable theory. See footnote 5 of this opinion. On appeal, the state
offers this as an alternative basis to support the jury’s determination of
guilt. Because we conclude that there was sufficient evidence with which
the jury could have determined that the defendant took Martin’s credit, we
need not consider this alternative argument.
15
We note that, ‘‘[g]enerally speaking, the state is limited to proving that
the defendant has committed the offense in substantially the manner
described in the information. . . . Despite this general principle, however,
both this court and our Supreme Court have made clear that [t]he inclusion
in the state’s pleading of additional details concerning the offense does not
make such allegations essential elements of the crime, upon which the jury
must be instructed. . . . Our case law makes clear that the requirement
that the state be limited to proving an offense in substantially the manner
described in the information is meant to assure that the defendant is provided
with sufficient notice of the crimes against which he must defend. As long
as this notice requirement is satisfied, however, the inclusion of additional
details in the charge does not place on the state the obligation to prove
more than the essential elements of the crime.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Vere C., 152 Conn. App. 486, 527, 98 A.3d
884, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014).
16
Although the defendant makes suggestions, interspersed throughout his
appellate briefing, that he does not believe that credit is considered property
for the purposes of § 53a-124 (a) (2), he does not raise such a claim on appeal.
17
We note that the state, in its argument in opposition to the defendant’s
motion for judgment of acquittal, also argued that the defendant, in making
the unauthorized charges, ‘‘was taking that property from Martin Sweet, in
that, using his credit cards.’’ This argument is consistent with the state’s
theory of the case with respect to the defendant’s use of Martin’s credit
cards as the defendant having taken property in the form of credit. See
footnote 5 of this opinion.
18
We acknowledge that the state referred to ‘‘a taking of money’’ at various
points during the trial; however, viewing the state’s presentation of its
case in its totality, the state’s theory was that the defendant took credit
from Martin.
19
The defendant argues that we should not construe defense counsel’s
actions as waiving this claim because ‘‘defense counsel already had repeat-
edly, but unsuccessfully, attempted to exclude the hearsay evidence that
was repeated by [Martin] on [the property report]. The failure to object to
admission of that document when offered through [Officer] Abbassi should
not be construed as an affirmative expression of satisfaction . . . .’’ The
defendant, however, misrepresents the record. Defense counsel did not ‘‘fail
to object’’ to the exhibits, he explicitly stated that there was ‘‘no objection’’
to either exhibit. Therefore, this argument is unavailing.
20
We note that the state argues that the record is not adequate to consider
whether the defendant established a constitutional violation. We need not,
however, resolve this argument as we are able to dispose of this claim on
Golding’s fourth prong.
21
Section 8-3 (6) of the Connecticut Code of Evidence provides that a past
recollection recorded, defined as ‘‘[a] memorandum or record concerning
an event about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, shown to
have been made or adopted by the witness at or about the time of the event
recorded and to reflect that knowledge correctly,’’ is ‘‘not excluded by the
hearsay rule, even though the declarant is available as a witness . . . .’’
22
Although the defendant also claims that this exhibit was admitted in
error, we have already concluded in part II A 1 of this opinion that any
objection to those exhibits has been waived.
23
In addition, the defendant argues that the court erred in admitting the
People’s letter and the Chase letter as past recollections recorded. We
already have determined, however, in part II A 2 of this opinion, that the
admission of the People’s letter and the Chase letter was harmless.
24
Although the defendant also claims that the court improperly admitted
the property report and statement to the police under the past recollection
recorded exception, we have already concluded in part II A 1 of this opinion
that any objection to those exhibits has been waived.
25
We note that the Home Depot statement lists the charges as taking
place on two different dates, December 26 and 28, but the value of each of
the three charges is identical on both documents, with one minor exception
(Martin’s statement lists one transaction as $902.92, while the Home Depot
statement lists it as $902.91). These differences are, however, inconsequen-
tial. First, the transactions that took place on November 19, 2017, totaled
more than $2000, the value necessary to convict the defendant of larceny
in the third degree. Second, the defendant’s purchases from Home Depot
totaled well in excess of $2000, and, therefore, the one cent difference
between the listed amounts is inconsequential.