State v. Griffin

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STATE OF CONNECTICUT v. MADELINE GRIFFIN
(AC 40555)
Sheldon, Keller and Lavery, Js.
Syllabus
Convicted of the crimes of arson in the first degree, conspiracy to commit
arson in the first degree and insurance fraud, the defendant appealed,
claiming that the evidence was insufficient support her conviction and
that the trial court improperly denied her motion to suppress certain
pretrial and in-court identifications of her that were made by witnesses
to the fire. The defendant’s conviction resulted from an arson at her
mother’s home after which the defendant’s mother filed a homeowner’s
insurance claim for damage to her home. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion to suppress the identifications of her that were made to the
police and in court by witnesses to the fire; the photographic arrays
that the police administered to the witnesses were not unduly suggestive,
as the defendant did not appear to be substantially different in age or
appearance from the other women in the arrays and did not appear to
be highlighted, even though she was smiling slightly in her photograph,
her claim that there was an increased risk that the witnesses would
select her photograph because the photographs were administered
simultaneously instead of sequentially was unavailing and not borne out
by appellate precedent, and this court having concluded that the arrays
and procedures employed in administering them were not unconstitu-
tionally suggestive, it was not necessary to address the defendant’s claim
that the identifications were unreliable, and her claim regarding the
suppression of the in-court identifications, having been premised entirely
on her claims that the pretrial identifications of her were suggestive
and unreliable, also failed.
2. The defendant could not prevail on her claim that the evidence was
insufficient to support her conviction of arson in the first degree and
conspiracy to commit arson in the first degree, which was based on her
assertion that there was no evidence that she started the fire with the
intent to collect insurance proceeds related to the homeowner policy;
a reasonable jury could have inferred from the circumstantial evidence
that the defendant’s conduct was part of a plan to defraud and that she
possessed the requisite intent when she started the fire, as the evidence
supported a finding that her mother filed an insurance claim for the
property damage, that the defendant, prior to lighting the fire, stowed
valuables that belonged to her and her mother in her car, and that her
mother packed items in her own car and made arrangements to be away
from her home when the defendant started the fire, and the defendant’s
claim that the evidence was insufficient to establish that she possessed
the requisite mens rea to support the conspiracy conviction was unavail-
ing, as there was sufficient evidence to support the inference that she
possessed the requisite intent to commit the arson.
3. The defendant’s conviction of insurance fraud as to her mother’s fraudu-
lent insurance claim could not stand, as there was no evidence that the
defendant participated in the making or preparation of any statement
that was provided to her mother’s home insurer; the plain and unambigu-
ous terms of the insurance fraud statute (§ 53a-215 [a] [2]) require evi-
dence that the defendant engaged in conduct related to the making or
preparing of the insurance claim, and the same evidence that supported
her arson conviction could not be used to uphold her insurance fraud
conviction, as that evidence, which supported an inference that the
defendant intended to defraud when she started the fire, did not reason-
ably support the inference that she engaged in the making or preparation
of the actual statement given to the insurance company.
Argued April 25—officially released September 11, 2018
Procedural History
Substitute information charging the defendant with
two counts of the crime of insurance fraud, and with
the crimes of arson in the first degree and conspiracy
to commit arson in the first degree, brought to the
Superior Court in the judicial district of Fairfield and
tried to the jury before Pavia, J.; thereafter, the court
denied the defendant’s motion to suppress certain evi-
dence; verdict and judgment of guilty, from which the
defendant appealed. Reversed in part; judgment
directed; further proceedings.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and David R. Applegate, assistant state’s attor-
ney, for the appellee (state).
Opinion
KELLER, J. The defendant, Madeline Griffin, appeals
from the judgment of conviction, rendered after a jury
trial, of one count each of the crimes of arson in the
first degree in violation of General Statutes §§ 53a-100,
53a-111 (a) (3) and 53a-8 (a); conspiracy to commit
arson in the first degree in violation of General Statutes
§§ 53a-48 (a), 53a-100 and 53a-111 (a) (3); insurance
fraud in violation of General Statutes § 53a-215 (a) (1);
and insurance fraud in violation of General Statutes
§ 53a-215 (a) (2). On appeal, the defendant claims that
(1) the trial court improperly denied her motion to
suppress the pretrial and in-court identifications of her
because they were the result of unnecessarily sugges-
tive photographic arrays, and (2) the state presented
insufficient evidence to convict her of arson, conspiracy
to commit arson, and the insurance fraud charge per-
taining to the homeowner’s insurance policy of her
mother. We agree with the defendant’s second claim
as it pertains to the insurance fraud count and, accord-
ingly, reverse in part the trial court’s judgment. We
otherwise affirm the judgment.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. At about 2:45 p.m. on May 28, 2011, the defen-
dant set fire to her mother’s house in Stratford. Neigh-
bors, including Carmen Febles, Juan Febles, and Karen
Wakeley, heard an explosion and saw flames coming
from the house. The defendant appeared among the
neighbors, barefoot, claiming that she had been mowing
the lawn when the fire started. At least one of the
neighbors was familiar with the defendant. The defen-
dant, who spoke English and Spanish, identified herself
as the homeowner’s daughter, and then used Carmen
Febles’ cell phone to call her mother’s cell phone and
asked the person on the other line, ‘‘Where are you?’’
Approximately thirty minutes later, two unidentified
individuals drove to the scene, picked up the defendant,
and drove away.
Meanwhile, emergency personnel arrived at the scene
to extinguish the fire and investigate its origins. They
determined that the fire was started intentionally
through the use of gasoline as an accelerant. A K-9
unit alerted to several areas of the house where an
accelerant was used, and a partially melted gasoline
container was found in the house. At about the same
time, a tracking K-9 searched the neighborhood.
Another neighbor, Debra Hirth, who had not witnessed
the fire, alerted an officer to a pair of sandals smelling
of gasoline that appeared to have been thrown onto
her property. The sandals were then presented to the
other K-9 unit, which alerted to the sandals as con-
taining accelerants.
The defendant returned to the scene while police
were still there and voluntarily provided a written state-
ment to police. She claimed to have been at her home
in Danbury during the fire, but had left her car parked
in her mother’s garage. The following items were found
inside her car: a cell phone; two televisions; trophies;
frozen and canned food; a safe containing multiple valu-
ables and documents, including the mother’s marriage
license and jewelry; and a pocketbook containing the
defendant’s passport, multiple identification cards, and
multiple social security cards.
The defendant later filed an insurance claim with
Esurance for damage to her car. The defendant’s mother
filed an insurance claim with Homesite Insurance Com-
pany (Homesite) for damage to the house.
Carmen Febles and Juan Febles met with police on
May 31, 2011, and gave statements concerning their
encounter with the defendant on the day of the fire.
Stratford police separately administered photographic
arrays to Carmen Febles and Juan Febles. Both identi-
fied the defendant as the woman they encountered at
the fire scene. Wakeley likewise gave a statement to
police, and also identified the defendant in a photo-
graphic array as the woman she talked to at the fire
scene.
In an amended information, the state charged the
defendant with arson in the first degree as a principal
and an accessory, conspiracy to commit arson in the
first degree, and two counts of insurance fraud. Prior
to trial, the defendant filed a motion to suppress the
pretrial identifications made by the Febleses and
Wakeley, and sought to prevent them from making in-
court identifications. The court denied the motion.
After a jury trial, the defendant was convicted on all
counts. The defendant was sentenced to a total effective
term of twenty years of incarceration, execution sus-
pended after twelve years, and five years of probation.
One of the conditions of the defendant’s probation was
that she pay $337,000 in restitution to the insurer of
her mother’s home, Homesite Insurance Company. This
appeal followed.
I
The defendant first claims that the court improperly
denied her motion to suppress identifications made by
the Febleses and Wakeley. Specifically, the defendant
argues that the identification procedure used by police
was suggestive and unreliable, and, therefore, the trial
court should have suppressed the pretrial and in-court
identifications of the defendant by these witnesses. We
are not persuaded.
The following additional facts are relevant to the
present claim. As we stated previously in this opinion,
prior to trial, the defendant filed a motion to suppress
evidence of pretrial identifications made by Carmen
Febles, Juan Febles, and Wakeley. Additionally, she
asked the court to prevent these witnesses from making
in-court identifications. On October 29, 2015, the court
held a hearing on the defendant’s motion at which it
heard testimony from two Stratford police officers,
Edward Leary and Lawrence Overby, and a Milford
police officer, Bruce Carney.1 All three witnesses were
shown arrays consisting of the same eight photographs
appearing on a single sheet of paper, although the
arrangement of the photographs in each array was dif-
ferent. The cover sheet attached to each array was
identical, each cover sheet reflected the witness’ sworn
statement that he or she had identified the person he
or she had encountered at the fire scene, and each cover
sheet contained instructions that had been initialed by
each witness.2
Leary testified in relevant part that he administered
the photographic array to Carmen Febles. He lacked a
recollection of the circumstances surrounding the
array, but, relying on the array and the cover sheet
attached to it, he testified that he had administered
the array to Carmen Febles, that he followed standard
police procedures for administering the array, and that
Carmen Febles had identified the defendant. He testi-
fied that it would have been the normal practice for
the Stratford police to have had two officers present
during the administration of the array. Moreover, Leary
testified that standard police procedure would entail
his reading the instructions on the cover sheet to the
witness and having the witness sign his or her initials
next to each instruction. He stated his belief that this
procedure was followed with Carmen Febles because
the cover sheet attached to the array reflected the wit-
ness’ initials next to each instruction set forth thereon,
and his signature appeared on the cover sheet, indicat-
ing that the witness swore before him that she under-
stood the instructions and had identified the person
selected from the array as the person she had encoun-
tered at the fire scene. Leary testified that the standard
instructions indicated that a suspect may or may not
be depicted in the array. Leary asserted that he would
have followed protocol in administering the array and
would not have directed Carmen Febles to choose any
particular photograph. Leary also testified that Carmen
Febles indicated her understanding of the instructions,
and had selected the defendant’s photograph from those
appearing in the array by circling the defendant’s photo-
graph and signing her name near it.
Overby testified at the suppression hearing that he
took part in administering the photographic array to
Juan Febles. Overby testified that although another
police officer, Jeff Nattrass, had administered the array
to Juan Febles, he nonetheless ‘‘notarized’’ Juan Febles’
statement that appears on the cover sheet of the array
that the photograph he had selected was that of the
person he had observed at the fire scene. Overby testi-
fied that, in accordance with standard police procedure,
the cover sheet of the array reflects that Juan Febles
had initialed next to each of the standard array instruc-
tions, one of which stated that ‘‘[t]he person you saw
may or not be in the photograph.’’ Moreover, the array
reflected that Juan Febles circled the defendant’s photo-
graph in the array and signed his name near the photo-
graph. The cover sheet reflects the defendant’s
signature as well as Overby’s signature, as evidence
that Febles had made a sworn statement to him con-
cerning the array.
Carney testified that, at the request of the Stratford
police, he constructed the arrays shown to the Febleses.
He was provided the defendant’s name and date of birth.
Carney retrieved the driver’s license photograph of the
defendant that the Milford police already had in their
possession, and he searched for photographs in Mil-
ford’s police database that depicted females who were
similar in age, race, and facial features to the defendant.
Carney then changed the defendant’s photograph to
black and white, so that its background matched the
backgrounds in the seven other photographs in the
array consisting of mug shots in the Milford police
database.
At the hearing, the defendant argued that the array
was unduly suggestive. She argued that only one other
woman in the array appeared to be of the defendant’s
age, that the witnesses were shown the photographs
simultaneously as opposed to sequentially, that the
defendant’s photograph stood out because she was
smiling, and that, in composing the array, Carney did
not obtain photographs by relying on physical features
identified by the witnesses, but instead relied on the
driver’s license photograph alone to select the other
photographs.
The state countered in relevant part that the array
contained eight different photographs, that the defen-
dant’s photograph was not highlighted, that the wit-
nesses were instructed that a suspect might not be in the
array, and that the witnesses were not shown multiple
arrays with the defendant’s photograph appearing in
each array. Also, although Carney used a photograph
of the defendant that depicted her without curly hair,
contrary to the description of the suspect by the wit-
nesses, the state argued that all three witnesses were
instructed that ‘‘persons in the photos may not look
exactly like they did on the date of the incident . . . .’’
The court, noting that ‘‘the defendant ha[d] the bur-
den of proving that the identification[s] resulted from an
unconstitutional procedure,’’ found that the defendant
failed to prove that the arrays were suggestive. The
court rejected the defendant’s arguments that the array
had highlighted the defendant and relied on the police
officers’ testimony concerning the procedures
employed. The court stated that it did not agree with
the defendant that her age and appearance were sub-
stantially different from those of the other persons
depicted in the array. The court, therefore, denied the
motion to suppress.
At trial, Carmen Febles, Juan Febles, and Wakeley
testified about the manner in which they selected the
defendant in photographic arrays that the police had
administered to them prior to the time of trial, and the
completed arrays were presented in evidence. Each of
these witnesses testified that the police had provided
them with instructions and that they had identified the
person that they had encountered at the scene of the
fire. Moreover, each of these witnesses made an in-
court identification of the defendant.
‘‘In determining whether identification procedures
violate a defendant’s due process rights, the required
inquiry is made on an ad hoc basis and is two-pronged:
first, it must be determined whether the identification
procedure was unnecessarily suggestive; and second,
if it is found to have been so, it must be determined
whether the identification was nevertheless reliable
based on examination of the totality of the circum-
stances. . . .
‘‘In the seminal case of Neil v. Biggers, [409 U.S. 188,
93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)], the [United States]
Supreme Court explained the overarching concern that
courts face when assessing a challenged identification
procedure: It is . . . apparent that the primary evil to
be avoided is a very substantial likelihood of irreparable
misidentification. . . . It is the likelihood of misidenti-
fication which violates a defendant’s rights to due pro-
cess . . . . Id., 198, quoting Simmons v. United States,
[390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)].
As courts apply the two-pronged test to determine if
a particular identification procedure is so suggestive
and unreliable as to require suppression, they always
should weigh the relevant factors against this standard.
In other words, an out-of-court eyewitness identifica-
tion should be excluded on the basis of the procedure
used to elicit that identification only if the court is
convinced that the procedure was so suggestive and
otherwise unreliable as to give rise to a very substantial
likelihood of irreparable misidentification. See Sim-
mons v. United States, supra, 384.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
State v. Marquez, 291 Conn. 122, 141–42, 967 A.2d 56,
cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d
163 (2009).
‘‘[A] claim of an unnecessarily suggestive pretrial
identification procedure is a mixed question of law and
fact [subject to plenary review]. With respect to our
review of the facts . . . because the issue of the sug-
gestiveness of a photographic array implicates the
defendant’s constitutional right to due process, we
undertake a scrupulous examination of the record to
ascertain whether the findings are supported by sub-
stantial evidence.’’ (Internal quotation marks omitted.)
Id., 137.
‘‘[W]e will reverse the trial court’s ruling [on evi-
dence] only where there is an abuse of discretion or
where an injustice has occurred . . . and we will
indulge in every reasonable presumption in favor of the
trial court’s ruling. . . . Because the inquiry into
whether [identification evidence] should be suppressed
contemplates a series of factbound determinations,
which a trial court is far better equipped than this court
to make, we will not disturb the findings of the trial
court as to subordinate facts unless the record reveals
clear and manifest error.’’ (Internal quotation marks
omitted.) State v. Salmond, 179 Conn. App. 605, 616,
180 A.3d 979, cert. denied, 328 Conn. 936, 183 A.3d
1175 (2018).
‘‘The critical question . . . is what makes a particu-
lar identification procedure ‘suggestive’ enough to
require the court to proceed to the second prong and
to consider the overall reliability of the identification.
. . . There are . . . two factors that courts have con-
sidered in analyzing photographic identification proce-
dures for improper suggestiveness. The first factor
concerns the composition of the photographic array
itself. In this regard, courts have analyzed whether the
photographs used were selected or displayed in such
a manner as to emphasize or highlight the individual
whom the police believe is the suspect. See, e.g., State
v. Williams, [203 Conn. 159, 176, 523 A.2d 1284 (1987)]
(multiple photographs of same individual in same or
subsequent photographic arrays possibly suggestive
‘when, in the context of the entire array, the recurrence
unnecessarily emphasizes the defendant’s photo-
graph’); State v. Fullwood, [193 Conn. 238, 247, 476 A.2d
550 (1984)] (to be unnecessarily suggestive, variations
in array photographs must highlight defendant to point
that it affects witness’ selection); State v. Gold, 180
Conn. 619, 656, 431 A.2d 501 (‘[when] a feature is placed
on the defendant’s photograph in order to make the
picture conform to the witness’ description of the crimi-
nal he or she had seen, the identification proceeding
has been held to have been rendered highly suggestive’),
cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d
148 (1980); see also United States v. DeCologero, [530
F.3d 36, 62 (1st Cir.)] (at first step in two-pronged test,
court ‘consider[s] whether the photo[graphic] array
included, as far as was practicable, a reasonable number
of persons similar in appearance to the suspect’) [cert.
denied, 555 U.S. 1005, 129 S. Ct. 513, 172 L. Ed. 2d 376,
cert. denied, 555 U.S. 1039, 129 S. Ct. 615, 172 L. Ed.
2d 469 (2008)]; United States v. Rattler, 475 F.3d 408,
413 (D.C. Cir. 2007) (court must ‘examine the suggesti-
vity of irregularities between the subjects in the array’).
‘‘The second factor, which is related to the first but
conceptually broader, requires the court to examine
the actions of law enforcement personnel to determine
whether the witness’ attention was directed to a suspect
because of police conduct. . . . In considering this
[factor, the court should] look to the effects of the
circumstances of the pretrial identification, not whether
law enforcement officers intended to prejudice the
defendant. . . . It stands to reason that police officers
administering a photographic identification procedure
have the potential to taint the process by drawing the
witness’ attention to a particular suspect. This could
occur either through the construction of the array itself
or through physical or verbal cues provided by an offi-
cer. See, e.g., State v. Fullwood, supra, 193 Conn. 248
(irregularity in defendant’s photograph not suggestive
because it did not ‘signal to the witnesses that the defen-
dant was the person whom the police believed to be
the perpetrator of the robbery’); see also Simmons v.
United States, supra, 390 U.S. 385 (‘[t]here is no evi-
dence to indicate that the witnesses were told anything
about the progress of the investigation, or that the [law
enforcement] agents in any other way suggested which
persons in the pictures were under suspicion’); State
v. Ledbetter, 185 Conn. 607, 612, 441 A.2d 595 (1981)
(no basis for claiming that ‘display itself was suggestive
or that [the administering officer] was suggestive in any
respect in the selection process’); State v. Gold, supra,
180 Conn. 656 (‘[a] procedure is unfair which suggests
in advance of identification by the witness the identity
of the person suspected by the police’ . . .)’’. (Citation
omitted; footnote omitted.) State v. Marquez, supra,
291 Conn. 142–44.
Our Supreme Court also stressed ‘‘that this is not a
‘best practices’ test. In other words, the test does not
require a court to engage in a relative value judgment
of various possible identification techniques and settle
on the one that it believes bears the least risk of mistake,
a decision that would be prone to being revised or
second-guessed as the scientific debate evolves and
new studies become available. See, e.g., State v. Nunez,
93 Conn. App. 818, 832, 890 A.2d 636 (2006) (‘[t]he
question . . . is not whether a double-blind, sequential
identification procedure is less suggestive than the tra-
ditional procedures . . . but . . . whether the tradi-
tional procedures are unnecessarily suggestive under
[the] constitution’), cert. denied, 278 Conn. 914, 899
A.2d 621, cert. denied, 549 U.S. 906, 127 S. Ct. 236, 166
L. Ed. 2d 186 (2006); see also State v. Fullwood, supra,
193 Conn. 244 (‘[i]t has been generally recognized that
the presentation of several photographs to witnesses,
including that of the suspect . . . is by itself a nonsug-
gestive and constitutionally acceptable practice, in the
absence of any unfairness or other impropriety in the
conduct of the exhibit’ . . .). Nor does this test require
law enforcement personnel to alter their procedures
every time a fresh scientific study suggests that a new
identification procedure might lead to more reliable
results. Moreover, although our analysis focuses princi-
pally on two key functional aspects of the eyewitness
identification process, we stress that it is the entire
procedure, viewed in light of the factual circumstances
of the individual case, that must be examined to deter-
mine if a particular identification is tainted by unneces-
sary suggestiveness. The individual components of a
procedure cannot be examined piecemeal but must be
placed in their broader context to ascertain whether
the procedure is so suggestive that it requires the court
to consider the reliability of the identification itself
in order to determine whether it ultimately should be
suppressed.’’ (Emphasis in original; footnote omitted.)
State v. Marquez, supra, 291 Conn. 145–46.
‘‘In evaluating the suggestiveness of a photographic
array, a court should look to both the photographs
themselves and the manner in which they were pre-
sented to the identifying witness. . . . We consider the
following nonexhaustive factors in analyzing a photo-
graphic array for unnecessary suggestiveness: (1) the
degree of likeness shared by the individuals pictured
. . . (2) the number of photographs included in the
array . . . (3) whether the suspect’s photograph prom-
inently was displayed or otherwise was highlighted in
an impermissible manner . . . (4) whether the eyewit-
ness had been told that the array includes a photograph
of a known suspect . . . (5) whether the eyewitness
had been presented with multiple arrays in which the
photograph of one suspect recurred repeatedly . . .
and (6) whether a second eyewitness was present dur-
ing the presentation of the array. . . . It is important
to note, however, that [p]hotographs will often have
distinguishing features. The question . . . is not
whether the defendant’s photograph could be distin-
guished from the other photographs . . . but whether
the distinction made it unnecessarily suggestive.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
161.
We conclude that the photographic arrays adminis-
tered to the witnesses were not suggestive. First, we
address the defendant’s arguments that the arrays were
composed in such a manner that they unfairly high-
lighted her. The court considered the defendant’s argu-
ment that she appeared to be a different age than the
majority of the people in the array. The court, however,
found that the defendant did not appear ‘‘to be substan-
tially different in age or appearance from the other
individuals who are in the array. . . . [T]he array was
made in black and white so as not to highlight the
defendant . . . .’’ The defendant also argues that her
photograph in the array is the only photograph that
depicts someone smiling. To be unnecessarily sugges-
tive, a variation must highlight the defendant to the
point that it affected the witnesses’ selection of the
defendant. See State v. Fullwood, supra, 193 Conn. 247;
see also State v. Marquez, supra, 291 Conn. 143. After
our own scrupulous review of the array, we are not
persuaded that the defendant looks so different from
the other women in the array so as to make the array
unduly suggestive. Some, but not all, of the photographs
in the arrays depict females with what may be described
as neutral facial expressions. In her photograph, the
defendant appears to be smiling slightly but, similar to
the appearance of the other females depicted in the
array, her teeth are not visible. Our careful examination
of the arrays does not lead us to conclude that the
defendant appears to be highlighted in the array or that
she was dissimilar to the other females depicted therein.
Thus, our examination of the arrays does not lead us
to conclude that the court erred in finding that the
photographs used were not so dissimilar that they ren-
dered the arrays suggestive.3
The defendant also argues that there was an
increased risk that the witnesses would select the defen-
dant’s photograph because the photographs were
administered simultaneously instead of sequentially.4
In State v. Marquez, supra, 291 Conn. 156, our Supreme
Court opined that ‘‘this continues to be an issue particu-
larly ill suited to generic, bright line rules,’’ and that
‘‘[d]ue process does not require the suppression of a
photographic identification that is not the product of
a double-blind, sequential procedure.’’ (Internal quota-
tion marks omitted.) The defendant, quoting from State
v. Guilbert, 306 Conn. 218, 238, 49 A.3d 705 (2012),
argues that ‘‘identifications are likely to be less reliable
in the absence of a double-blind, sequential identifica-
tion procedure . . . .’’5
There are two problems with the defendant’s argu-
ment. As this court noted in State v. Grant, 154 Conn.
App. 293, 311, 112 A.3d 175 (2014), cert. denied, 315
Conn. 928, 109 A.3d 923 (2015), ‘‘[t]he principal issue
before the court in Guilbert was not whether any partic-
ular identification procedures are constitutionally man-
dated, but whether courts are obligated to admit under
specified circumstances qualified expert testimony con-
cerning the fallibility of eyewitness identification under
State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en
banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140
L. Ed. 2d 645 (1998), to aid juries in their evaluation of
identification evidence.’’ The second problem is that
the quotation from Guilbert that the defendant cites,
by its very terms, pertains to reliability, not sugges-
tiveness. Therefore, the defendant’s argument that the
police officers’ use of simultaneous photographic arrays
was suggestive is not borne out by our appellate
precedent.
Considering the totality of the circumstances after
our scrupulous review, the photographic arrays and the
procedures employed in administering them were not
unconstitutionally suggestive.6 Therefore, we do not
address the defendant’s claim regarding reliability. See
State v. Outing, 298 Conn. 34, 56, 3 A.3d 1 (2010) (our
Supreme Court ‘‘consistently has declined to consider
the reliability of the identification if [it concludes] that
the procedure was not unnecessarily suggestive’’), cert.
denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d
316 (2011). Additionally, because the defendant’s claim
regarding suppression of the witnesses’ in-court identi-
fications is entirely premised on her claim that the pre-
trial identifications were suggestive and unreliable, it,
too, must fail. Thus, the court did not abuse its discre-
tion in denying the motion to suppress.
II
The defendant also claims that the state failed to
meet its burden of proof on the elements of three of
the crimes of which she was convicted, namely, that
the state failed to meet its burden of proof on the arson
charge, the conspiracy to commit arson charge, and
the insurance fraud charge pertaining to her mother’s
insurance claim for the home.7 Specifically, the defen-
dant contends that there was no evidence that she was
connected to the homeowner’s insurance claim or in
any way benefited from it. The defendant also argues
that the state bore the burden of proving that she
intended to collect insurance proceeds in order to con-
vict her of the arson and conspiracy to commit arson
counts, and failed to present sufficient evidence in this
regard. We agree with the defendant that the state failed
to present sufficient evidence to prove that she commit-
ted insurance fraud, but disagree that, in order to be
convicted of arson or conspiracy to commit arson, she
must have intended to benefit from any insurance
proceeds.
The defendant seeks review of her claims of insuffi-
cient evidence under the doctrine of 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); however, ‘‘any defendant found guilty on the
basis of insufficient evidence has been deprived of a
constitutional right, and would therefore necessarily
meet the four prongs of Golding . . . . [Thus] we
review an unpreserved sufficiency of the evidence claim
as though it had been preserved.’’ (Internal quotation
marks omitted.) State v. Josephs, 328 Conn. 21, 35 n.11,
176 A.3d 542 (2018).
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency 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 con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant 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 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 combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘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 multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . 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 evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v. Led-
better, 275 Conn. 534, 542–43, 881 A.2d 290 (2005), cert.
denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537
(2006), overruled in part on other grounds by State v.
Harris, 330 Conn. 91, 131, A.3d (2018).
A
We first address the defendant’s claim that there was
insufficient evidence to convict her of arson. Specifi-
cally, the defendant argues that her conviction should
be vacated because ‘‘there was no evidence that [the]
defendant intended to collect insurance proceeds from
damages to the home.’’ We disagree.
General Statutes § 53a-111 (a) provides in relevant
part: ‘‘A person is guilty of arson in the first degree
when, with intent to destroy or damage a building, as
defined insection 53a-100,8 he starts a fire or causes an
explosion, and . . . (3) such fire or explosion was
caused for the purpose of collecting insurance proceeds
for the resultant loss . . . .’’ (Footnote added.) Thus,
to obtain a conviction, the state needed to prove beyond
a reasonable doubt that the defendant (1) started the
fire (2) to destroy her mother’s home (3) with the ‘‘intent
to defraud’’ an insurance company. State v. Woodson,
227 Conn. 1, 9, 629 A.2d 386 (1993). The defendant does
not challenge the fact that the state presented evidence
that she started the fire or that the fire was intended
to destroy her mother’s home. Instead, the defendant
argues that there was no evidence that she had she
started the fire with the intent of collecting insurance
proceeds related to the homeowner policy.
The defendant must have the specific intent to
defraud in order to be guilty pursuant to § 53a-111 (a)
(3). State v. Joyce, 243 Conn. 282, 298–99, 705 A.2d 181
(1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140
L. Ed. 2d 674 (1998). Specific intent is usually proven
by circumstantial evidence. State v. Williams, 169 Conn.
322, 334, 363 A.2d 72 (1975). Our Supreme Court has
recognized that ‘‘intent is often inferred from conduct
. . . and from the cumulative effect of the circumstan-
tial evidence and the rational inferences drawn there-
from. . . . [A]ny such inference cannot be based on
possibilities, surmise or conjecture. . . . It is axiom-
atic, therefore, that [a]ny [inference] drawn must be
rational and founded [on] the evidence.’’ (Internal quo-
tation marks omitted.) State v. Hedge, 297 Conn. 621,
657–58, 1 A.3d 1051 (2010).
The record supports a rational inference that the
defendant acted with the specific intent to defraud
because of evidence that the defendant and her mother
acted in concert before, on the day of, and after the fire.
The evidence supported the finding that the defendant’s
mother filed an insurance claim for the property damage
caused by her daughter. Prior to lighting the fire, the
defendant stowed valuables belonging to both her and
her mother in the trunk of her car. There was also
evidence that the defendant’s mother packed items in
her own car and made arrangements to be away from
her home when the defendant started the fire. This
culmination of the circumstantial evidence could lead
a reasonable jury to infer that the defendant did not
start the fire simply to destroy her mother’s home, but
that the defendant’s conduct was part of a plan to
defraud and that she possessed the requisite intent
when she started the fire.
The defendant also challenges her conspiracy convic-
tion on the limited ground that the evidence was insuffi-
cient to establish that she possessed the requisite mens
rea for the underlying crime. Because of our conclusion
that the defendant acted with an intent to defraud, how-
ever, there is sufficient evidence to support the infer-
ence that the defendant possessed the requisite intent
to commit the arson.
B
We finally address the defendant’s claim that there
was insufficient evidence that she violated § 53a-215
(a) (2). Specifically, she argues that the insurance fraud
statute required the state to prove that she assisted or
conspired with another to make or prepare a statement
in connection with her mother’s fraudulent insurance
claim and that the state presented no evidence in this
regard. We agree with the defendant.
Section 53a-215 (a) provides in relevant part: ‘‘A per-
son is guilty of insurance fraud when the person, with
the intent to injure, defraud or deceive any insurance
company . . . (2) assists, abets, solicits, or conspires
with another to prepare or make any written or oral
statement that is intended to be presented to any insur-
ance company in connection with, or in support of, any
application for any policy of insurance or any claim for
payment or other benefit pursuant to such policy of
insurance, knowing that such statement contains any
false, incomplete, or misleading information concerning
any fact or thing material to such application or claim
for the purposes of defrauding such insurance com-
pany.’’ (Emphasis added.)
As there is no precedent from this court or our
Supreme Court interpreting the meaning of § 53a-215
(a) (2), our resolution of this portion of the defendant’s
claim becomes an issue of statutory interpretation. ‘‘The
process of statutory interpretation involves the determi-
nation of the meaning of the statutory language as
applied to the facts of the case . . . . When construing
a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case . . . . In seeking
to determine that meaning . . . [General Statutes] § 1-
2z directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ (Footnote omitted; internal quotation
marks omitted.) State v. Leak, 297 Conn. 524, 532–33,
998 A.2d 1182 (2010). ‘‘Issues of statutory construction
raise questions of law, over which we exercise plenary
review.’’ (Internal quotation marks omitted.) State v.
Fernando A., 294 Conn. 1, 13, 981 A.2d 427 (2009).
Per the plain and unambiguous terms of § 53a-215
(a) (2), in order to establish guilt, the state must present
evidence that the defendant engaged in conduct related
to the making or preparing of the insurance claim. We
agree with the state that this does not require evidence
of physically filing the claim. We disagree with the
state’s argument, however, that the same evidence that
supports the defendant’s arson conviction can be used
to uphold her insurance fraud conviction. Although this
evidence supports the inference that the defendant
intended to defraud when she started the fire, it does
not reasonably support the inference that she engaged
in the making or preparation of the actual statement
given to Homesite. Ultimately, after a thorough review
of the record, we conclude that there is no evidence
that the defendant participated in the making or prepa-
ration of any statement provided to Homesite. Thus,
the defendant’s conviction under § 53-215 (a) (2) can-
not stand.
The judgment is reversed only with respect to the
defendant’s conviction of insurance fraud under § 53a-
215 (a) (2) and the case is remanded with direction to
render a judgment of acquittal on that charge and to
resentence the defendant on the conviction of arson in
the first degree, conspiracy to commit arson in the first
degree and insurance fraud in violation of § 53a-215 (a)
(3); the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The state did not present testimony from the police officer who adminis-
tered the array to Wakeley. Nonetheless, the array and cover sheet that
were completed by Wakeley and the officer who administered the array to
her were before the court.
2
The instructions provided: (1) ‘‘I will ask you to review a set of photo-
graphs,’’ (2) ‘‘It is important to clear innocent people and to identify the
guilty,’’ (3) ‘‘Persons in the photos may not look exactly as they did on the
date of the incident, because of features like facial or head hair change,’’
(4) ‘‘The person you saw may or may not be in the photograph,’’ and (5)
‘‘The Police will continue to investigate this incident, whether you identify
someone or not.’’
3
The defendant cites to one case from this court and several out-of-state
cases for the proposition that when the constituent photographs of an array
contain individuals with disparate ages than that of the defendant, the array
is suggestive. See State v. Small, 1 Conn. App. 584, 587–88, 474 A.2d 460
(1984); see also United States v. Wade, 388 U.S. 218, 232, 87 S. Ct. 1926, 18
L. Ed. 2d 1149 (1967); United States v. Castro-Caicedo, 775 F.3d 93, 98 (1st
Cir. 2014), cert. denied, U.S. , 135 S. Ct. 1884, 191 L. Ed. 2d 753
(2015); Swicegood v. Alabama, 577 F.2d 1322, 1327–28 (5th Cir. 1978); State
v. Merrill, 22 Ohio App. 3d 119, 122, 489 N.E.2d 1057 (1984). These cases
generally note the actual variations in ages among those persons presented
to a witness (or, at the very least, a finding by the trial court that a suspect
was far older than the others presented). The defendant, however, made
no showing, in the trial court or here, that there was any variation in the
ages of the women in the array, relying exclusively on her argument that
they appear different, which the trial court reasonably did not find.
4
The arrays each contained eight photographs, but ‘‘[t]he police officers’
use of an eight person photographic array is not, in and of itself, impermissi-
bly suggestive.’’ State v. Smith, 107 Conn. App. 666, 674, 946 A.2d 319, cert.
denied, 288 Conn. 902, 952 A.2d 811 (2008).
5
There was never any discussion before the trial court as to whether the
arrays were administered using a double-blind procedure, but testimony
from the suppression hearing indicates that the officer who contacted Carney
was also involved in the administration of the array to Juan Febles. Regard-
less, the defendant has not argued on appeal that the lack of a double-blind
procedure resulted in an unduly suggestive array.
6
Additionally, the evidence presented reflects that the witnesses were all
instructed that the suspect might not appear in the array, each was presented
only with a single array, and each witness was administered the array
separately. Leary testified that he did not attempt to influence the witness’
selection, and each witness separately confirmed at trial that no officer
attempted to influence his or her selection.
7
At oral argument before this court, the defendant indicated that she was
not claiming that there was insufficient evidence to convict her of the
insurance fraud charge pertaining to her car.
8
General Statutes § 53a-100 (a) provides in relevant part: ‘‘(1) ‘Building’
in addition to its ordinary meaning, includes any watercraft, aircraft, trailer,
sleeping car, railroad car or other structure or vehicle or any building with
a valid certificate of occupancy. Where a building consists of separate units,
such as, but not limited to separate apartments, offices or rented rooms,
any unit not occupied by the actor is, in addition to being a part of such
building, a separate building . . . .’’