State v. Seeley

 STATE OF CONNECTICUT v. JAMES SEELEY
(SC 19790)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Syllabus
Convicted of the crime of forgery in the second degree, the defendant
appealed. The defendant, who had been responsible for the dally opera-
tions of a company, M Co., sought to purchase a vehicle in the name
of the company. Because the defendant did not wholly own M Co., the
dealership selling the vehicle required a certified resolution signed by
at least two different corporate officers. The defendant subsequently
sent a certified resolution to the dealership purporting to contain the
signature of a second corporate officer, B, through a fax machine located
in the home of the defendant’s father. Following a review of corporate
bank records, B discovered certain unauthorized charges connected to
the dealership. During a subsequent meeting of M Co.’s shareholders,
the defendant referred to the purchase as a mistake and was visibly
upset. B then pursued a criminal complaint against the defendant, claim-
ing that B’s signature was forged on the certified resolution. Following
presentation of the state’s case-in-chief during a trial to the court, the
defendant filed a motion for a judgment of acquittal, which the court
denied. Following the defendant’s presentation of his case and the close
of evidence, the trial court found the defendant guilty and rendered
judgment of conviction. On appeal, the defendant claimed, inter alia,
that this court should exercise its supervisory authority over the adminis-
tration of justice to abandon the waiver rule, which provides that a
criminal defendant may secure appellate review of a trial court’s denial
of a motion for a judgment of acquittal following the state’s case-in-
chief only by forgoing the right to put on evidence, in the context of
bench trials. The defendant also claimed, in the alternative, that the
state’s evidence was insufficient to support his conviction. Held:
1. This court declined to consider whether to abandon the waiver rule in
the context of bench trials, the evidence presented by the state during
its case-in-chief having been sufficient to establish the defendant’s guilt
beyond a reasonable doubt.
2. The state’s evidence was sufficient to support the defendant’s conviction
of forgery in the second degree: the state presented sufficient evidence
to prove beyond a reasonable doubt that the defendant forged B’s signa-
ture on the certified resolution in light of, inter alia, B’s repeated denial
of authorship of the signature in question, testimony from the state’s
handwriting experts, the fact that only the defendant stood to benefit
from the forged signature, and the defendant’s demeanor when con-
fronted at the meeting of M Co.’s shareholders; moreover, the state
presented sufficient evidence to establish that the defendant acted with
an intent to deceive the dealership, the defendant having been aware
of the requirement of a second signature and having faxed the certified
resolution rather than delivering it to the dealership in person to circum-
vent the dealership’s policy of requiring in person proof of identification
for business purchases.
Argued January 26—officially released June 27, 2017
Procedural History
Substitute information charging the defendant with
the crime of forgery in the second degree, brought to
the Superior Court in the judicial district of Danbury
geographical area number three, and tried to the court,
Russo, J., which denied the defendant’s motion for a
judgment of acquittal and rendered judgment of guilty,
from which the defendant appealed. Affirmed.
Norman A. Pattis, with whom were Christopher La
Tronica and, on the brief, Kevin Smith, for the appel-
lant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom were Deborah P. Mabbett, senior assistant state’s
attorney, and, on the brief, Stephen J. Sedensky III,
state’s attorney, for the appellee (state).
Opinion
ROBINSON, J. The principal issue in this appeal is
whether, in a trial to the court, the state presented
sufficient evidence in its case-in-chief to support the
conviction of the defendant, James Seeley, of forgery
in the second degree in violation of General Statutes
§ 53a-139 (a) (1)1 in connection with a document cre-
ated to facilitate the purchase of a vehicle on behalf of
a corporation.2 In challenging the sufficiency of the
evidence presented, the defendant claims that we
should exercise our supervisory authority over the
administration of justice to abandon the waiver rule3
in the context of court trials, and review the trial court’s
denial of his motion for judgment of acquittal following
the state’s case-in-chief, despite the fact that he elected
to introduce evidence of his own. We need not reach
the defendant’s claim regarding the waiver rule because
we conclude that there was sufficient evidence in the
state’s case-in-chief to support the defendant’s convic-
tion. Accordingly, we affirm the judgment of the trial
court.
The record reveals the following relevant facts and
procedural history. In 2009, the defendant and Joshua
Bennett formed a company, Miller & Stone, Inc., for
the purpose of manufacturing and selling dietary sup-
plements. By May, 2010, the shareholders of Miller &
Stone, Inc., were the defendant, Bennett, Sandra Scott,
E. Duane Meyer, and Sean Macpherson. The defendant
ran the daily operations of Miller & Stone, Inc., while
Bennett developed and designed its products. Although
the other shareholders did not actively participate in
management, their consent was required prior to any
substantial expenditure of funds. Despite the efforts of
the defendant and Bennett, Miller & Stone, Inc., never
became profitable and was valued at less than $100,000.
In June, 2010, the defendant went to BMW of Ridge-
field (dealership) to purchase a vehicle in the name of
Miller & Stone, Inc. In order to do so, the defendant was
required to submit his driver’s license and numerous
documents to the dealership, including a ‘‘Certified Res-
olution for Business Entity’’ (certified resolution),
which is the document at issue in the present case.
Because the defendant sought to purchase a vehicle in
the name of Miller & Stone, Inc., a company he did not
wholly own, the dealership required a certified resolu-
tion signed by at least two different corporate officers.
Generally, the dealership required the parties signing a
certified resolution to provide identification upon sub-
mission. The certified resolution in the present case,
however, was sent through a fax machine located at
the home of the defendant’s father, Ian Seeley, and the
dealership did not subsequently request identification.
On June 28, 2010, the defendant completed the sale in
the name of Miller & Stone, Inc., and took possession
of a BMW M6 automobile (automobile).
Shortly thereafter, Bennett began receiving calls from
customers who were interested in products from
Miller & Stone, Inc., but who complained that the defen-
dant was not following through on orders. A subsequent
review of corporate bank records, which previously had
been sent to the defendant’s home, revealed certain
unauthorized charges and checks sent to the dealership.
After seeing these expenditures, Bennett and Sandra
Scott’s husband, Andrew Scott, drove to the dealership,
where they discovered that the automobile had been
purchased in the name of Miller & Stone, Inc. They
informed the dealership that the purchase was unau-
thorized.
Bennett, Andrew Scott, Macpherson, Meyer, and the
defendant subsequently met to discuss the unautho-
rized expenditures. During this meeting, the defendant
was ‘‘[v]ery upset,’’ ‘‘crying,’’ and ‘‘apologetic,’’ and
referred to the purchase of the automobile as ‘‘a mistake
. . . .’’ The defendant was told that he needed either
to return the automobile or list himself on the title. The
defendant agreed and, on the following day, returned
the automobile to the dealership. The automobile was
subsequently resold at auction for $18,000 less than the
amount owed by Miller & Stone, Inc., on the loan.
In early 2011, Bennett met with George Bryce, a detec-
tive with the Bethel Police Department, to review poten-
tial evidence in connection with the defendant’s
purchase of the automobile in the name of Miller &
Stone, Inc. Convinced that one of the three signatures
that appeared on the certified resolution purported to
be but was not actually his, Bennett pursued a crimi-
nal complaint.
The state charged the defendant with forgery in the
second degree in violation of § 53a-139 (a) (1). The case
was subsequently tried to the court, Russo, J. Following
the presentation of the state’s case-in-chief, the defen-
dant filed a motion seeking a judgment of acquittal,
which was denied. Following the presentation of evi-
dence by the defendant, the court found the defendant
guilty as charged. The court subsequently rendered a
corresponding judgment of conviction and sentenced
the defendant to five years incarceration, execution
suspended, and three years probation with special con-
ditions. This appeal followed.
On appeal, the defendant asks us to exercise our
supervisory powers over the administration of justice
to hold the waiver rule inapplicable to court trials, and
to consider his claim that the trial court improperly
denied his motion for judgment of acquittal at the close
of the state’s case-in-chief. In the alternative, the defen-
dant claims that the evidence, considered in its entirety,
was insufficient to find him guilty of forgery in the
second degree. Additional relevant facts and procedural
history will be set forth as necessary.
I
We initially address the defendant’s request that we
abandon the waiver rule in the context of court trials.4
‘‘The so-called waiver rule provides that, when a motion
for [a judgment of] acquittal at the close of the state’s
case is denied, a defendant may not secure appellate
review of the trial court’s ruling without [forgoing] the
right to put on evidence in his or her own behalf. The
defendant’s sole remedy is to remain silent and, if con-
victed, to seek reversal of the conviction because of
insufficiency of the state’s evidence. If the defendant
elects to introduce evidence, the appellate review
encompasses the evidence in toto.’’ (Internal quotation
marks omitted.) State v. Perkins, 271 Conn. 218, 220,
856 A.2d 917 (2004); see also State v. Papandrea, 302
Conn. 340, 350 and n.5, 26 A.3d 75 (2011); State v. Rutan,
194 Conn. 438, 440, 479 A.2d 1209 (1984).
We need not, however, presently consider abandon-
ing the waiver rule in the context of court trials because,
‘‘[b]ased on a review of the state’s evidence only, the
state ha[s] proven beyond a reasonable doubt that the
defendant was guilty of [the crime charged]. On its
merits, the defendant’s claim is a challenge to the suffi-
ciency of the evidence at the end of the state’s case.
Our review of the state’s evidence is limited to . . .
whether [a finder of fact] could have reasonably con-
cluded, upon the facts established and the inferences
reasonably drawn therefrom, that the cumulative effect
of the evidence established guilt beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v.
Calonico, 256 Conn. 135, 139–40, 770 A.2d 454 (2001);
see also State v. Perkins, supra, 271 Conn. 230 and
n.12. Accordingly, we leave for another day the issue
of whether we should abandon the waiver rule in the
context of court trials.
II
We turn next to the defendant’s claims regarding
the sufficiency of the state’s evidence. The defendant
claims that the evidence was insufficient to support
a conviction of forgery in the second degree for two
reasons. First, he contends that the state failed to pre-
sent evidence from which a fact finder reasonably could
have concluded that the defendant forged the signature,
namely, because the handwriting evidence was incon-
clusive and did not establish beyond a reasonable doubt
that the defendant committed a forgery. Second, he
claims that the state presented insufficient evidence
from which a fact finder could have concluded that the
defendant forged with intent to deceive. We address
each of these claims in turn.
‘‘The standard of review [that] we [ordinarily] apply
to a claim of insufficient evidence is well established.
In reviewing the sufficiency of the evidence to support
a criminal conviction we apply a two-part test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences 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.
. . . In evaluating evidence, the trier of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The trier may draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical. . . . This does not require
that each subordinate conclusion established by or
inferred from the evidence, or even from other infer-
ences, be proved beyond a reasonable doubt . . .
because this court has held that a [fact finder’s] factual
inferences that support a guilty verdict need only be
reasonable. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
trier, would have resulted in an acquittal. . . . [I]n
[our] process of review, it does not diminish the proba-
tive 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 [that] establishes guilt in
a case involving substantial circumstantial evidence.’’
(Internal quotation marks omitted.) State v. Taylor, 306
Conn. 426, 431–32, 50 A.3d 862 (2012); cf. State v. Bal-
buena, 168 Conn. App. 194, 199, 144 A.3d 540 (standard
of appellate review applicable to denial of motion for
judgment of acquittal), cert. denied, 323 Conn. 936, 151
A.3d 384 (2016).
To establish that a person is guilty of forgery in the
second degree in violation of § 53a-139 (a), the state
must prove that the defendant (1) forged a written
instrument or issues or possesses a forged instrument
knowing it to be forged, and (2) did so with the intent
to deceive another. See, e.g., State v. DeCaro, 252 Conn.
229, 240–41, 745 A.2d 900 (2000); State v. Etienne, 103
Conn. App. 544, 558, 930 A.2d 726 (2007); State v. Hen-
derson, 47 Conn. App. 542, 551, 706 A.2d 480, cert.
denied, 244 Conn. 908, 713 A.2d 829 (1998).
A
We begin with the defendant’s claim that the evidence
was insufficient with respect to the act element of forg-
ery in the second degree, namely, that he forged a writ-
ten instrument or ‘‘possesse[d] any written instrument
which he knows to be forged . . . .’’ General Statutes
§ 53a-139 (a). The defendant contends that the state’s
evidence with respect to this element was inconclusive,
at best, in that (1) the sum of the two experts’ testimony
cannot be said to have reasonably contributed to a
finding of guilt, (2) Bennett’s testimony was purely spec-
ulative, and (3) the employees of the dealership could
not testify about how the documents had been prepared
or signed, rendering their testimony inconclusive as to
his guilt. In response, the state contends that the fact
finder reasonably could have concluded that Bennett’s
signature was forged in light of the testimony from
Bennett, Bryce, and the state’s two handwriting experts.
The state also claims that the fact finder reasonably
could have concluded that it was the defendant who
forged Bennett’s signature. We agree with the state and
conclude that there was sufficient evidence to prove
beyond a reasonable doubt that the defendant forged
Bennett’s signature on the certified resolution.
First, the fact finder reasonably could have concluded
that the third signature on the certified resolution that
purported to belong to Bennett was forged in light of
the testimony from Bennett, Bryce, and the state’s hand-
writing experts. During Bennett’s testimony, he categor-
ically denied that the third signature was his.
Specifically, although Bennett conceded that it was pos-
sible that two of the signatures on the certified resolu-
tion were his because he often signed documents for the
defendant under a time constraint without first reading
them, when asked, Bennett repeatedly denied author-
ship of the third signature on the certified resolution.
In its decision, the trial court credited Bennett as
remaining consistent, with a demeanor that was
emphatic when he stated that the signature under per-
sonal guarantor was not his and that he did not remem-
ber signing it.
Second, Bryce, the lead police investigator with
respect to the allegations against the defendant, testi-
fied. During the investigation, Bryce called Bennett to
ask him about the certified resolution that contained
his purported signatures. Bryce testified that Bennett
stated that ‘‘he did not recall ever signing any paperwork
putting that purchase on the company.’’ As to that con-
versation, Bryce testified that he ‘‘believe[d] that [Ben-
nett] did not knowingly have anything to do with the
purchase of the [automobile] in the company’s name.’’
Further, Bryce met with Bennett and showed him the
signatures on the certified resolution. Although Bennett
did not recall providing any of the signatures, he specifi-
cally pointed to the third signature and stated that it
definitely was not his.
Third, the state’s two handwriting experts testified
that the third signature on the document did not match
the handwriting provided on Bennett’s exemplars. The
first expert, Greg Kettering, reviewed the signatures
contained in the certified resolution. He did so by com-
paring the signatures to handwriting exemplars pro-
vided by Bennett. When examining the faxed copy,
Kettering was unable to determine whether the third
signature belonged to Bennett because it had been ren-
dered illegible by the fax process. Once granted access
to the original document, Kettering concluded, how-
ever, that the first two signatures shared a common
authorship, but the third signature did not share a com-
mon authorship with the other two signatures. He also
determined that the third signature did not share a
common authorship with Bennett’s exemplars, whereas
the first two did. Finally, Lisa Ragaza, a forensic exam-
iner responsible for the technical review of Kettering’s
work, reached the same conclusions as had Kettering.
On review, we defer to the fact finder’s assessment
of a witness’ character and demeanor. See, e.g., State
v. Trine, 236 Conn. 216, 227, 673 A.2d 1098 (1996). Here,
the trial court, sitting as the finder of fact, credited the
emphatic and consistent nature of Bennett’s testimony
that the third signature was not his. Accordingly, from
these facts, the trial court reasonably found that, with
respect to the question of authenticity of Bennett’s sig-
nature, the state had ‘‘easily carried its burden of prov-
ing beyond a reasonable doubt that someone other than
. . . Bennett affixed the name Josh Bennett to the bot-
tom of the [document].’’
An ample amount of circumstantial evidence also
supported the trial court’s finding that it was the defen-
dant who had forged Bennett’s signature, namely, testi-
mony provided by Bennett, Katherine Ann Boehn and
Cynthia Cardinal-Palanzo, employees of the dealership,
and Ian Seeley. ‘‘When evaluating the sufficiency of the
evidence, [t]here is no distinction between direct and
circumstantial evidence so far as probative force is
concerned . . . . Indeed, [c]ircumstantial evidence
. . . may be more certain, satisfying and persuasive
than direct evidence. . . . Therefore, the probative
force of the evidence is not diminished because it con-
sists, in whole or in part, of circumstantial evidence
rather than direct evidence.’’ (Citation omitted; internal
quotation marks omitted.) State v. Balbuena, supra, 168
Conn. App. 200; see, e.g., State v. Jackson, 257 Conn.
198, 206, 777 A.2d 591 (2001). First, the defendant drove
the automobile and was listed as the designated driver
of the automobile on the document at issue. Thus, it
was only the defendant who stood to benefit from the
forged signature. Also, Bennett testified about the meet-
ing at which the defendant was confronted about the
unauthorized purchase of the automobile. Bennett
described the defendant, as ‘‘upset,’’ ‘‘crying,’’ and
‘‘apologetic,’’ during this meeting and testified that the
defendant referred to the purchase as a ‘‘mistake
. . . .’’ From this, the fact finder reasonably could have
inferred a consciousness of guilt and concluded that
the defendant was responsible for the forgery. Second,
Boehn and Cardinal-Palanzo testified that a second sig-
nature on the certified resolution was necessary to com-
plete the purchase transaction so that the defendant
could purchase a vehicle. They also noted the dealer-
ship’s policy of alerting a customer to missing signa-
tures on its documents, from which the trial court
reasonably could have inferred that the defendant was
aware that a second signature was needed on the docu-
ments to complete the purchase. Third, Ian Seeley testi-
fied that the fax number on the certified resolution
faxed to the dealership matched the fax number from
the machine at his home, a location at which the defen-
dant frequently worked. Viewing this circumstantial evi-
dence in the light most favorable to sustaining the
court’s finding of guilt; see, e.g., State v. Taylor, supra,
306 Conn. 432; we conclude that the fact finder reason-
ably could have inferred that it was the defendant who
had forged Bennett’s signature on the certified resolu-
tion, which he faxed to the dealership.
B
Having determined that the trial court reasonably
could have found beyond a reasonable doubt that the
defendant had forged the signature on the certified reso-
lution, we turn to the defendant’s claim with respect
to the second element, namely, that the state failed
to prove beyond a reasonable doubt that he forged
Bennett’s signature with the intent to deceive. Distin-
guishing State v. Dickman, 119 Conn. App. 581, 989
A.2d 613, cert. denied, 295 Conn. 923, 991 A.2d 569
(2010), the defendant claims that that the record does
not contain sufficient evidence to allow the finder of
fact to infer the requisite specific intent to sustain a
conviction of forgery in the second degree. In response,
the state contends that the fact finder reasonably could
have found that the defendant acted with the intent
to deceive the dealership in forging Bennett’s name.
Additionally, the state contends that Dickman supports
the trial court’s ruling. We agree with the state and
conclude that the trial court reasonably could have
concluded that, in forging Bennett’s signature, the
defendant acted with the intent to deceive the dealer-
ship into believing that more than one member of
Miller & Stone, Inc., had consented to his purchase of
the automobile.
‘‘As we frequently have observed, [i]ntent is generally
proven by circumstantial evidence because direct evi-
dence of the accused’s state of mind is rarely available.
. . . Therefore, intent is often inferred from conduct
. . . and from the cumulative effect of the circumstan-
tial evidence and the rational inferences drawn there-
from.’’ (Internal quotation marks omitted.) State v.
Nash, 316 Conn. 651, 672, 114 A.3d 128 (2015).
The record reveals ample circumstantial evidence to
support the fact finder’s conclusion that, by forging
Bennett’s name on the certified resolution, the defen-
dant intended the dealership, as the recipient of the
form, to believe that Bennett had, in fact, signed the
form. First, Boehn testified that it was company policy
that two signatures were required to make a purchase
in the name of a company when an individual does not
own 100 percent of the shares. From this, the fact finder
reasonably could have inferred that the defendant was
aware that a signature from another officer from
Miller & Stone, Inc., was required in order to complete
the purchase of the automobile. Thus, his forgery of
the certified resolution was done with the intent to
deceive the dealership into believing that a second offi-
cer had authorized the purchase of the automobile on
behalf of Miller & Stone, Inc.
We find State v. Dickman, supra, 119 Conn. App. 588,
instructive on this point. In that case, the defendant,
Priscilla C. Dickman, was charged with, inter alia, forg-
ery in the third degree in violation of General Statutes
§ 53a-1405 in connection with altered documents that
were submitted to an insurance company with respect
to a claim filed on behalf of her brother-in-law, for
whom her husband had been appointed conservator.
Id., 582–84. Dickman attempted to obtain information
about her brother-in-law’s insurance claim following an
accident in which he was struck by a motor vehicle.
Id., 583. After the insurance company refused to release
information, Dickman faxed the insurance company a
probate form, which she later admitted that she had
altered by adding her name as a fiduciary and conserva-
tor. Id., 583–84, 587. When that form was insufficient,
Dickman sent a letter of designation purporting to have
been signed by her brother-in-law, authorizing her and
her husband to handle his claim with the insurance
company. Id., 584. Dickman then presented the insur-
ance company with false information regarding her
brother-in-law’s injuries and treatments, causing the
insurance company to believe it had been presented
with a false claim and to pursue criminal proceedings,
in which Dickman was subsequently convicted of one
count of forgery in the third degree. Id., 584–85.
On appeal, Dickman conceded that she had altered
the probate document sent to the insurance company,
but claimed that there was insufficient evidence that
she had done so with the intent to deceive or defraud.
Id., 587. The Appellate Court concluded, however, that
there was sufficient evidence to support the jury’s find-
ing that Dickman had intended to deceive the insurance
company. Id., 588–89. The Appellate Court emphasized
that Dickman sent an altered probate form listing her-
self as her brother-in-law’s conservator only after learn-
ing that a representative of the insurance company,
consistent with corporate policy, would not speak to
her unless authorized by the brother-in-law. Id. From
this fact, the Appellate Court determined that the ‘‘jury
reasonably could have concluded that [Dickman] sent
the altered probate form to [the insurance company]
to circumvent its policy of speaking only to third parties
authorized to speak on behalf of claimants.’’ Id., 589.
The Appellate Court stated further that the jury ‘‘reason-
ably could have inferred that [Dickman] intended [the
insurance company] to believe that she was [her
brother-in-law’s] conservator, and, thus, an [insurance]
representative could discuss his claim with her.
Because [Dickman] was not [her brother-in-law’s] con-
servator, the jury could have concluded, on the basis
of the circumstantial evidence, that [Dickman] intended
to deceive [the insurance company] by causing it to
believe that she was [her brother-in-law’s] conserva-
tor.’’ Id.
Similar to Dickman, in the present case, the defen-
dant acted only after being informed that, to purchase
the automobile in the name of Miller & Stone, Inc., a
second signature was required. Thus, as in Dickman,
the fact finder in the present case reasonably could
have concluded that the defendant forged Bennett’s
name and faxed the certified resolution to the dealer-
ship, rather than bringing it in in person, to circumvent
the policy of requiring a second signature with identifi-
cation for business purchases. The fact finder also rea-
sonably could have inferred that the defendant intended
the dealership to believe that Bennett, as an officer of
Miller & Stone, Inc., authorized the purchase of the
automobile so that the dealership would sell a vehicle
to the defendant. Because the signature on the form
was not Bennett’s, the fact finder could have concluded,
on the basis of the circumstantial evidence, that the
defendant intended to deceive the dealership by causing
it to believe that two separate officers from Miller &
Stone, Inc., authorized the purchase of the automobile.
Accordingly, we conclude that, considering only the
evidence presented in the state’s case-in-chief, the state
presented sufficient evidence to support the defen-
dant’s conviction of forgery in the second degree
beyond a reasonable doubt.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Eveleigh,
McDonald, Espinosa and Robinson. Although Justice Palmer was not present
at oral argument, he has read the briefs and appendices, and has listened
to a recording of oral argument prior to participating in this decision.
1
General Statutes § 53a-139 provides in relevant part: ‘‘(a) 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: (1) A deed, will, codicil, contract, assignment, commercial
instrument or other instrument which does or may evidence, create, transfer,
terminate or otherwise affect a legal right, interest, obligation or status
. . . .’’
2
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
3
‘‘The so-called waiver rule provides that, when a motion for [a judgment
of] acquittal at the close of the state’s case is denied, a defendant may not
secure appellate review of the trial court’s ruling without [forgoing] the
right to put on evidence in his or her own behalf. The defendant’s sole
remedy is to remain silent and, if convicted, to seek reversal of the conviction
because of insufficiency of the state’s evidence. If the defendant elects to
introduce evidence, the appellate review encompasses the evidence in toto.’’
(Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 220,
856 A.2d 917 (2004).
4
The defendant acknowledges that this court has upheld the constitution-
ality of the waiver rule and reaffirmed our adherence to it in the context
of jury trials. See State v. Perkins, 271 Conn. 218, 231, 856 A.2d 917 (2004).
Nevertheless, he claims that we should reject the waiver rule in the context
of court trials for two reasons. First, the defendant relies on the fact that,
as observed in State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984),
the denial of a defendant’s motion for judgment of acquittal places the
defendant in a dilemma—he either must maintain his silence and present
no evidence, or expose himself to the waiver rule and present evidence,
such that the judge’s denial of the initial motion for judgment of acquittal
becomes unreviewable. Turning to court trials specifically, the defendant
emphasizes the trial judge’s role as fact finder, and the risk that the judge’s
initial denial of the defendant’s motion for judgment of acquittal may taint
the judge’s final deliberations with respect to the defendant’s guilt. Specifi-
cally, the defendant questions whether a trial judge can disregard his or her
prior decision when deciding the case at the close of all the evidence. In
response, the state contends that the waiver rule remains valid in the context
of court trials because ‘‘there is no reason to believe that a Superior Court
judge cannot decide whether the evidentiary record, considered in its
entirety, supports the defendant’s guilt beyond a reasonable doubt, indepen-
dent from a prior decision that evidence presented during the state’s case-
in-chief, if construed in the light most favorable to the state, could support
each element of the charged crime.’’ The state emphasizes that, ‘‘in this
case, the trial court, in denying the defendant’s motion, frequently acknowl-
edged the different standard applicable to an acquittal motion as compared
to a guilty verdict.’’
5
General Statutes § 53a-140 (a) provides that ‘‘[a] person is guilty of forgery
in the third 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.’’ (Emphasis
added.) The specific intent required here is identical to that of § 53a-139.