State v. Gansel

 STATE OF CONNECTICUT v. HEATHER GANSEL
(AC 39427)
DiPentima, C. J., and Lavine and Flynn, Js.
Syllabus
Convicted of the crime of larceny in the first degree by embezzlement,
the defendant appealed to this court. The defendant, who owned two
businesses, helped her grandparents, L and M, to manage their household
finances and personal needs. After L died, M gave the defendant power
of attorney to be her agent. After M sold her house and moved in with
her son, the defendant’s uncle, she deposited the proceeds from the
sale of her house in a bank account that she jointly owned with the
defendant for the purpose of allowing the defendant to have access to
the funds to fulfill her duties as M’s agent and to use the funds for M’s
benefit. Thereafter, the defendant transferred approximately $412,400
from the joint bank account into her personal and business accounts,
and she used more than $20,000 of M’s funds to pay for her own personal
and business expenses. After M learned that a significant amount of her
funds were missing, the defendant’s uncle convened a family meeting
at which the defendant admitted to having taken a portion of the missing
funds and that she was willing to create a repayment plan to reimburse
M. Shortly thereafter, the defendant sent two e-mails to her uncle in
which she again admitted to having taken M’s funds and reconfirmed
her commitment to devising a repayment plan. The defendant also wrote
a letter to M in which she promised to repay her the missing funds. On
appeal, the defendant claimed that the trial court improperly admitted
the inculpatory e-mails into evidence because they were not properly
authenticated. Held that the defendant failed to show that the admission
into evidence of the e-mails was harmful; even if the trial court abused
its discretion by admitting the inculpatory e-mails into evidence, any
error was harmless, as the e-mails were cumulative of other properly
admitted evidence that independently provided a basis for the defen-
dant’s conviction, including the testimony of the defendant’s uncle at
trial that the defendant unequivocally admitted at the family meeting
that she unlawfully had taken M’s money, and the letter that the defen-
dant wrote to M in which she had promised to repay her the missing
funds.
Argued April 17—officially released July 11, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, White, J.)
Procedural History
Substitute information charging the defendant with
the crime of larceny in the first degree, brought to
the Superior Court in the judicial district of Stamford-
Norwalk and tried to the court, White, J.; judgment
of guilty, from which the defendant appealed to this
court. Affirmed.
John R. Williams, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were, David Cohen, former state’s
attorney, James Bernardi, supervisory assistant state’s
attorney, and Joseph C. Valdes, senior assistant state’s
attorney, for the appellee (state).
Opinion
PER CURIAM. The defendant, Heather Gansel,
appeals from the judgment of conviction, following a
trial to the court, of larceny in the first degree by embez-
zlement in an amount more than $20,000 in violation
of General Statutes §§ 53a-119 (1), 53a-121 (b), and 53a-
122 (a) (2). The defendant claims that the court abused
its discretion by admitting into evidence certain inculpa-
tory e-mails because they were not properly authenti-
cated. Because we conclude that an evidentiary error,
if any, was harmless, we affirm the judgment of the
trial court.
The following facts, which were found by the court
in its oral memorandum of decision,1 and procedural
history are relevant to our resolution of the defendant’s
appeal. The defendant, who was a chiropractor and,
for two years, the sole owner of two businesses, lived
with her grandparents, Lou Sabini and Marietta Sabini,
in her grandparents’ house located in Stamford. Her
grandparents had two children: the defendant’s mother,
Marilyn Gansel, and the defendant’s uncle, Louis Sabini.
The defendant helped her grandparents manage their
household accounts and personal needs. On May 13,
2010, after Lou Sabini had died, Marietta Sabini gave
the defendant written power of attorney to act as her
agent. Marietta Sabini then sold the Stamford house
and moved in with Louis Sabini. The defendant lived
elsewhere but continued to manage Marietta Sabini’s
finances and personal needs.
On June 22, 2010, Marietta Sabini received approxi-
mately $592,539 in proceeds from the sale of her house.
She deposited the money in a bank account she jointly
held with the defendant (Wachovia account). All of the
money deposited in the Wachovia account belonged
solely to Marietta Sabini, and she only deposited the
money in the Wachovia account so that the defendant
could access the funds to fulfil her duties as Marietta
Sabini’s agent and to use the funds for Marietta Sabini’s
benefit. The two also jointly held a second bank account
(ING Direct account). In addition, the defendant had
her own personal account and two separate accounts
for each of her businesses.
On June 24, 2010, the defendant withdrew $262,720
from the Wachovia account and deposited it into the
ING Direct account. Between June 22, 2010 and October
17, 2012, the date of Marietta Sabini’s death, the defen-
dant transferred approximately $412,400 from the
Wachovia account and the ING Direct account into her
personal and business accounts. In addition, she used
more than $20,000 of Marietta Sabini’s money to pay
for her own personal and business expenses, such as
catering, family matters, real estate, groceries, gasoline,
and student debt.
In August, 2012, Marietta Sabini tried to use her
Wachovia debit card at a nail salon, but her card was
declined because it had been cancelled. Louis Sabini
and Marietta Sabini subsequently went to Wachovia
bank and learned that a significant amount of Marietta
Sabini’s money was missing. On August 22, 2012, Louis
Sabini held a family meeting to determine what had
happened to the missing money. Six people—Louis
Sabini, Louis Sabini’s wife, the defendant, Marietta
Sabini, Marilyn Gansel, and Marilyn Gansel’s husband—
attended the meeting. During the meeting, Louis Sabini
accused the defendant of stealing $110,000 from Mari-
etta Sabini. She responded: ‘‘yes,’’ and ‘‘I realize that
Louis [Sabini],’’ but then stated that she had only taken
$109,000 and that she was willing to create a repayment
plan to reimburse Marietta Sabini.
Shortly thereafter, the defendant sent Louis Sabini
two e-mails from her business e-mail address, both of
which contained incriminating information against her,
including that she regretted ‘‘removing’’ Marietta
Sabini’s money from her accounts and that she was
working with an attorney to devise an affordable repay-
ment plan. The defendant claims that these e-mails were
improperly admitted into evidence. On September 21,
2012, the defendant wrote a letter to Marietta Sabini,
promising to repay her $283,000. She also wrote, ‘‘[i]n
this correspondence to you I want to make you aware
of my efforts to make things right,’’ ‘‘[p]lease be aware
that I want to make every effort possible to return all
funds to you in an organized, efficient, and consistent
manner,’’ and, ‘‘I am terribly sorry for my actions and
for the pain all of this has caused you. I hope one day
you might be able to forgive me.’’
The defendant was arrested on November 29, 2012.
She waived her right to a jury trial, and on October 29,
2015, the court found the defendant guilty of larceny
in the first degree by embezzlement in an amount more
than $20,000. The court found that the state had proved
all of the elements of larceny in the first degree by
embezzlement and stated, ‘‘[the defendant] had the spe-
cific intent to appropriate [Marietta Sabini’s property]
to herself or her businesses . . . .’’ The court sen-
tenced the defendant to ten years incarceration, execu-
tion suspended after three years, and five years of
probation. This appeal followed. Additional facts will
be set forth as necessary.
On appeal, the defendant claims that the court abused
its discretion by admitting into evidence the inculpatory
e-mails she had sent to Louis Sabini. She argues that
the state failed to properly authenticate the e-mails as
being written and sent her because it relied solely on
Louis Sabini’s testimony to prove their authenticity. She
contends that because the court expressly relied on the
defendant’s admissions in the e-mails to support its
judgment, their admission was not harmless. We dis-
agree that the defendant established harm and, there-
fore, need not decide whether the court abused its
discretion.
‘‘[W]hen an improper evidentiary ruling is not consti-
tutional in nature, the defendant bears the burden of
demonstrating that the error was harmful. . . . [T]he
proper standard for determining whether an erroneous
evidentiary ruling is harmless should be whether the
[court’s judgment] was substantially swayed by the
error.’’ (Internal quotation marks omitted.) State v.
LeBlanc, 148 Conn. App. 503, 508–509, 84 A.3d 1242,
cert. denied, 311 Conn. 945, 90 A.3d 975 (2014).
Assuming, without deciding, that the court abused
its discretion in admitting the inculpatory e-mails into
evidence, we conclude that the defendant has failed
to show that the error was harmful because the state
presented ample other evidence, apart from the e-mails,
that the defendant unequivocally admitted that she
unlawfully took Marietta Sabini’s money. As noted,
Louis Sabini testified that at the family meeting, which
six family members attended, when he accused the
defendant of stealing $110,000 from Marietta Sabini, the
defendant responded, ‘‘yes,’’ and ‘‘I realize that Louis
[Sabini].’’ She also admitted that she ‘‘had stolen’’ ‘‘only
$109,000’’ and that she ‘‘would come up with some sort
of a plan within the next few days’’ to reimburse Mari-
etta Sabini. Marilyn Gansel, who testified for the defen-
dant, confirmed that this meeting took place. She also
testified that the defendant ‘‘did borrow some money’’
and that she ‘‘promised to pay all of this money back
. . . .’’
In addition, the defendant wrote to Marietta Sabini
in the September 21, 2012 letter that she ‘‘returned a
total of $30,500 to the [Wachovia] account,’’ and ‘‘[t]o
honor my commitment, I will begin to make monthly
installments of $500 starting October 15, 2012. My attor-
ney and I have discussed how these funds will be allo-
cated.’’ She indicated that she would transfer $283,000
into two separate trust funds, one of which ‘‘will hold
your ‘living’ money ($106,000) and the other trust fund
will hold your ‘home healthcare’ money ($177,000).’’
Louis Sabini’s testimony and the letter the defendant
sent to Marietta Sabini were sufficient evidence to sup-
port her conviction. Because the defendant’s admis-
sions in the e-mails were cumulative of other evidence
that properly had been admitted, and which indepen-
dently provided the basis for conviction, we conclude
that the defendant failed to show the admission of the
e-mails was harmful.
The judgment is affirmed.
1
The defendant has failed to provide this court with a record that contains
a signed transcript of the trial court’s oral decision, in accordance with
Practice Book § 64-1. The record does, however, contain the unsigned tran-
script of the October 29, 2015 hearing. On the basis of our review of the
unsigned transcript, we are able to locate the portions of the record that
constitute the court’s orders. Thus, despite the defendant’s failure to abide
by the rules of practice, we will review her claim. See Stechel v. Foster, 125
Conn. App. 441, 445–46, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12
A.3d 572 (2011).