State v. Hayward

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STATE OF CONNECTICUT v. MARK HAYWARD
(AC 36257)
Lavine, Mullins and Mihalakos, Js.
Argued September 7—officially released December 20, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Blawie, J.)
Matthew C. Eagan, assigned counsel, with whom
were Michael S. Taylor, assigned counsel, and, on the
brief, James P. Sexton, assigned counsel, for the appel-
lant (defendant).
Adam E. Mattei, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Cornelius P. Kelly, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
MIHALAKOS, J. The defendant, Mark Hayward,
appeals from the judgment of conviction, rendered after
a jury trial, of larceny in the first degree in violation of
General Statutes §§ 53a-119 and 53a-122 (a) (2). On
appeal, the defendant claims that there was insufficient
evidence to prove beyond a reasonable doubt that he
intended to permanently deprive the victim of his prop-
erty. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The victim, Ronald Runk, met the defendant in
September, 2008. After the victim told the defendant
that he had written two books and recorded music,
the defendant claimed that he was in the business of
marketing and distributing books like those of the vic-
tim and that he was interested in selling records. Conse-
quently, the defendant and the victim entered into a
written agreement whereby the defendant agreed to
market one of the victim’s books. The defendant also
became involved in selling the victim’s record.
In December, 2008, the defendant and the victim dis-
cussed the defendant’s limited liability company, Mark
I Group, which was in the business of marketing corpo-
rate gifts. Following these discussions, the victim
agreed to invest $34,000 in the Mark I Group.
Shortly thereafter, the defendant met with the presi-
dent of Steiner Direct, a nationwide sports memorabilia
company. In September, 2009, after developing a proto-
type of a keychain filled with dirt from Yankee Stadium,
the defendant and Steiner Direct entered into a formal
agreement for the manufacturing and selling of key-
chains. The defendant informed the victim of the
agreement.
Beginning in February, 2009, the defendant began to
ask the victim for money beyond the $34,000 invest-
ment.1 In an e-mail dated February 12, 2009, the defen-
dant asked the victim for $2500 to market the victim’s
book. The victim wired $2500 to the defendant’s Mark
I Group account. In an e-mail dated February 19, 2009,
the defendant asked the victim for $6500, which he
claimed was needed to pay backdated taxes on his
Barclays Bank account containing over $1.2 million and
to pay for airfare so that the defendant could travel to
London to access the funds. The defendant stated that
the $6500 loan would be a repayable loan against the
Barclays Bank funds. The victim wired $6500 to the
Mark I Group account. In an e-mail dated February 25,
2009, the defendant asked the victim for $3200, claiming
that the bank gave the defendant the wrong details and
that the amount needed to pay the taxes was $6700.
The victim wired $3200 to the Mark I Group account.
Sometime after the February 25, 2009 e-mail, the
defendant showed the victim a letter purporting to be
from Carl Hynes, the Premier Operations Director of
International Accounts at Barclays Bank. Dated April
4, 2009, the letter stated that the Barclays Bank account
contained $1,223,000 and that an advance of $30,000
was to be wired to the Mark I Group account on May
2, 2009.
On April 11, 2009, the defendant informed the victim
that he needed $2750 because the defendant had miscal-
culated the mold cost of the keychains, and, therefore,
he was short $2750. The defendant stated that he would
give the victim a check for $2750, dated May 3, 2009,
when he expected the $30,000 from his Barclays Bank
account to clear. The victim wired $2750 to the Mark
I Group account. On April 16, 2009, the defendant asked
the victim for $3850, stating that the defendant had not
accounted for the gift box for the keychains. The victim
wired $3850 to the Mark I Group account. On April 23,
2009, the defendant asked the victim for $6000, stating
that he needed the money to start promoting the key-
chains and to eat until funds arrived. The defendant
also promised the victim a further 5 percent in the
keychain deal because of the support the victim had
given him. The victim wired $6000 to the Mark I
Group account.
Sometime before May 7, 2009, the victim asked the
defendant for collateral for the money lent. In response,
the defendant gave the victim a pearl necklace, five
paintings, and a clock. A jeweler appraised the pearl
necklace at $1200. Although not appraised, the paintings
were examined by an employee of a New York City
gallery and were determined to be worth approximately
$2000. Sotheby’s, Inc. determined that the clock, which
the defendant stated was from Prince Juan Carlos of
Germany and potentially quite valuable, was worthless.
On May 7, 2009, the defendant asked the victim for
$7000, stating that he needed the funds for a business
trip. The defendant also stated that he would cover the
amount loaned as soon as he returned from his trip.
The victim wired $7000 into the defendant’s personal
bank account. On the same day as the e-mail, the defen-
dant purported to receive a second letter from Hynes
at Barclays Bank. The letter stated that the $30,000
transfer from the Barclays Bank account was delayed.
The defendant showed the victim the letter.
On June 9, 2009, the defendant asked the victim for
$3600, stating that he needed the money to close the
Barclays Bank account. The defendant also stated that
this would be the last loan for which he would ask, and
that he was aware of his obligation to the victim and
would repay him. The victim wired $3600 into the defen-
dant’s personal bank account. On July 20, 2009, the
defendant asked the victim for $7500, stating that he
needed the money for working capital. In this e-mail,
the defendant also reassured the victim that he would
bring a Barclays Bank check for 35,000 sterling, the
equivalent of $57,750. The victim wired $7500 to an
account for Field of Dreams, LLC, of which the defen-
dant was the chief operating officer. Thereafter, the
defendant gave the victim a check for 35,000 British
pounds, dated August 8, 2009, on Barclays Bank station-
ary. In addition, the defendant showed the victim
another letter from Barclays Bank, dated July 17, 2009,
stating that the defendant could access the funds.
The victim lent the defendant a total of $50,100. By
late November, 2009, the victim had become suspicious
and called Barclays Bank in London. He was put in
touch with the bank’s fraud investigation group, which
determined that Barclays Bank never sent the three
letters and that Hynes did not author them.2 Moreover,
Barclays Bank determined that the check for 35,000
British pounds was not genuine. The victim told the
defendant that he had learned that the letters were
false.
The victim attempted to collect on the loan of $50,100;
on more than one occasion, the defendant agreed to
repay part of the loan by a certain date, but the defen-
dant never made any payment. On February 4, 2010,
the defendant proposed a three stage repayment plan
starting on March 5, 2010, but, again, no payment was
made. Yet, in February, 2010, the defendant, through
Field of Dreams, LLC, purchased $13,750 worth of key-
chains. At the end of 2010, after not receiving any repay-
ment, the victim went to the Fairfield Police
Department.
The defendant was arrested on January 14, 2012, and
charged with larceny in the first degree in violation of
§§ 53a-1193 and 53a-122 (a) (2),4 and forgery in the third
degree in violation of General Statutes § 53a-140.5 With
regard to the larceny charge, the defendant was charged
specifically on the theories of obtaining property by
false pretenses6 and obtaining property by false prom-
ise.7 Following a jury trial, the defendant was convicted
of larceny in the first degree. The trial court sentenced
the defendant to seven years incarceration, execution
suspended after eighteen months, followed by five years
of probation. In addition, the court ordered the defen-
dant to pay the victim restitution in the amount of
$50,100, $4975 of which was due within ten days of the
order, and the remaining $45,125 of which was to be
paid in monthly installments during the probation
period. Additional facts will be set forth as necessary.
The defendant claims that there was insufficient evi-
dence to support his conviction of larceny in the first
degree. Specifically, he contends that, although he
fraudulently obtained $50,100 from the victim, the jury
lacked sufficient evidence to find beyond a reasonable
doubt that the defendant intended to deprive the victim
of his money permanently.8 In support of his argument,
the defendant points to the state’s failure to offer evi-
dence that he did not use the money to advance a
legitimate business venture and that he did not intend
to pay the victim back from the profits generated by
the business. We disagree.
We first set forth our standard of review and the
relevant law. ‘‘The standard of review employed in a
sufficiency of the evidence claim is well settled. [W]e
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. . . . This court can-
not substitute its own judgment for that of the jury if
there is sufficient evidence to support the jury’s verdict.
. . . In conducting our review, we are mindful that the
finding of facts, the gauging of witness credibility and
the choosing among competing inferences are functions
within the exclusive province of the jury, and, therefore,
we must afford those determinations great deference.
. . .
‘‘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, [as] we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond 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.’’ (Citation omitted; internal quotation marks
omitted.) State v. Sam, 98 Conn. App. 13, 32–34, 907 A.2d
99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006).
‘‘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.’’ General
Statutes § 53a-119. ‘‘To ‘deprive’ another of property
means (A) to withhold it or cause it to be withheld
from him permanently or for so extended a period or
under such circumstances that the major portion of its
economic value or benefit is lost to him, or (B) to
dispose of the property in such a manner or under such
circumstances as to render it unlikely that an owner
will recover such property.’’ General Statutes § 53a-
118 (3).
‘‘Connecticut courts have interpreted the essential
elements of larceny as (1) the wrongful taking or car-
rying away of the personal property of another; (2) the
existence of a felonious intent in the taker to deprive
the owner of [the property] permanently; and (3) the
lack of consent of the owner. . . . Because larceny is
a specific intent crime, the state must show that the
defendant acted with the subjective desire or knowl-
edge that his actions constituted stealing. . . . Larceny
involves both taking and retaining. The criminal intent
involved in larceny relates to both aspects. The taking
must be wrongful, that is, without color of right or
excuse for the act . . . and without the knowing con-
sent of the owner. . . . The requisite intent for reten-
tion is permanency.’’ (Internal quotation marks
omitted.) State v. Flowers, 161 Conn. App. 747, 752, 129
A.3d 157 (2015), cert. denied, 320 Conn. 917, 131 A.3d
1154 (2016). ‘‘Intent may be inferred by the fact finder
from the conduct of the defendant.’’ State v. Kimber,
48 Conn. App. 234, 240, 709 A.2d 570, cert. denied, 245
Conn. 902, 719 A.2d 1164 (1998).
In the present case, our review of the record in the
light most favorable to sustaining the verdict discloses
that sufficient evidence existed from which the jury
could have found beyond a reasonable doubt that the
defendant committed larceny in the first degree. Specifi-
cally, the record reveals sufficient circumstantial evi-
dence that, taken together, strongly supports the finding
that the defendant acted with the requisite intent to
deprive the victim of his property permanently. The
defendant admitted that he fraudulently obtained the
money from the victim, stating that he ‘‘used deceptive
means to secure funds from [the victim].’’ Such decep-
tive means included presenting the victim with three
false letters from Barclays Bank. These letters indicated
that an account at the bank had a balance of $1,223,000.
The account, however, did not have any money, but
rather had a negative balance due to the fact that the
defendant never made any deposits and never paid the
maintenance fees charged to the account.9
The defendant argues that the falsity of the letters
confirms only that his finances were not what he said
they were, but that they do not touch on his intent. The
jury, however, is entitled to bring its common sense
and experience into the courtroom. See State v. Flow-
ers, supra, 161 Conn. App. 757. The jury reasonably and
logically could have concluded that, by falsely indicat-
ing through the letters that he had substantial funds,
the defendant suggested that he could and would repay
the victim, and, therefore, convinced the victim to trans-
fer money. In light of this pattern of deception, the jury
reasonably could have found that the defendant gained
control of the victim’s money with the intent to deprive
the victim of it permanently.
Moreover, the defendant never repaid the victim any
of the $50,100, despite the victim’s requests. See State
v. Kimber, supra, 48 Conn. App. 240–41 (withdrawing
money from account without permission and ignoring
requests to return money is sufficient evidence from
which jury could infer that defendant never intended
to repay money). Outside of some collateral and a
worthless check for 35,000 British pounds, the defen-
dant only spoke of repayment, and mere words are
insufficient to support the claim that the defendant
actually intended to repay the victim. See State v. Tor-
res, 111 Conn. App. 575, 587–88, 960 A.2d 573 (2008),
cert. denied, 290 Conn. 907, 964 A.2d 543 (2009) (volun-
tarily offering to repay forged check is not sufficient
for jury reasonably to find that defendant acted in
good faith).
Furthermore, after the defendant had accrued a loan
with the victim and promised repayment, the defendant,
through Field of Dreams, LLC, paid $13,750 for key-
chains. Despite having the means to make such a sub-
stantial purchase, the defendant did not attempt any
repayment to the victim. In fact, the victim still had not
been repaid any part of the $50,100 at the time of trial,
which occurred three and one-half years after the victim
confronted the defendant about the false letters and
demanded repayment. See State v. Pulley, 46 Conn.
App. 414, 418, 699 A.2d 1042 (1997) (‘‘[t]he conduct of
the defendant subsequent to [receipt of money from
victim] may be taken into consideration by the jury in
determining [whether] the defendant had the intent to
steal when he received the money from victim’’). The
jury, therefore, reasonably could have found, on the
basis of the defendant’s pattern of deceitful conduct
and the defendant’s lack of effort to repay the victim
within three and one-half years, that the defendant
intended to deprive the victim of his property perma-
nently.
The defendant further argues, however, that the
record indicates that he would repay the victim once
the business was successful and profitable. To support
his claim, the defendant relies on e-mail communica-
tions from the victim to the defendant and on the vic-
tim’s testimony. Although the evidence indicates that
the victim supported the defendant’s efforts to make
the business successful, these encouraging statements
do not indicate that the defendant intended to repay
the money. See State v. Vars, 154 Conn. 255, 261, 224
A.2d 744 (1966) (‘‘the offense is larceny if the owner
of goods parts with the possession only, for a particular
purpose, and the person who receives the possession
avowedly for that purpose has a fraudulent intention
to make use of it as the means of converting the goods
to his own use, and does so convert them, for in such
case the fraud supplies the place of the trespass in the
taking’’ [internal quotation marks omitted]). Rather, the
statements indicate only that the victim fell prey to the
defendant’s deception. The jury reasonably could have
found that the defendant’s empty promises to the victim
were further circumstantial evidence supporting the
conclusion that the defendant did not intend to repay
the victim.10
We conclude that the evidence, viewed in its entirety,
suggests that a jury reasonably could have found that
the defendant intended to deprive the victim of
$50,100 permanently.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The $34,000 investment was distinct from the subsequent $50,100 loaned
to the defendant. The investment was not the basis for the larceny and is
not at issue in this appeal.
2
It was further determined that Hynes was an employee of Barclays Bank,
but that the position of Premier Operations Director of International Affairs
ascribed to Hynes in the letters did not exist.
3
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. . . .’’
4
General Statutes § 53a-122 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the first degree when he commits larceny, as defined
in section 53a-119, and . . . (2) the value of the property or service exceeds
twenty thousand dollars . . . .’’
We note that when the defendant began to engage in the conduct that
led to his conviction, the threshold for larceny in the first degree was $10,000.
Public Acts 2009, No. 09-138, § 1 (a) increased the threshold to $20,000. This
statutory change is not at issue in this appeal.
5
On May 14, 2012, the defendant filed a motion to dismiss the count of
forgery in the third degree on the ground that the statute of limitations had
passed. The court granted the motion to dismiss.
6
General Statutes § 53a-119 (2) provides in relevant part: ‘‘A person obtains
property by false pretenses when, by any false token, pretense or device,
he obtains from another any property, with intent to defraud him or any
other person.’’
7
General Statutes § 53a-119 (3) provides in relevant part: ‘‘A person obtains
property by false promise when, pursuant to a scheme to defraud, he obtains
property of another by means of a representation, express or implied, that
he . . . will in the future engage in particular conduct, and when he does
not intend to engage in such conduct . . . .’’
8
The defendant does not contest that the jury reasonably could have found
that the state met its burden as to the first and third elements of larceny.
9
With regard to the Barclays Bank account, the victim testified that the
defendant told him that, before he moved to Connecticut, he owned a
clothing store in London. The store had cash only sales on Saturdays, and
he accumulated over $1.2 million, which he deposited in a Barclays Bank
account. The defendant, however, had forgotten about the money until he
found old bank statements in the attic of his Connecticut home. Moreover,
due to back dated taxes, the funds were temporarily unavailable. Actually,
the defendant opened an account at Barclays Bank but never made any
deposits, and the account had a negative balance because of monthly mainte-
nance fees being charged.
10
The state also argues, as an alternative ground for affirmance, that the
element of intent can be met by an unchallenged theory of intent to appro-
priate pursuant to § 53a-118 (a) (4), which does not require permanency.
In light of our conclusion that the jury reasonably could have found the
defendant had the requisite intent to deprive the victim of his property
permanently, we need not address this alternative ground for affirmance.