State v. Friend

159 Conn.App. 285

122 A.3d 740

STATE of Connecticut

v.Philip FRIEND.

No. 36097.

Appellate Court of Connecticut.

Argued March 4, 2015.

Decided Aug. 18, 2015.

Paul F. Enzinna, pro hac vice, with whom was Dylan P. Kletter, Hartford, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brian K. Sibley, Sr., and Maxine Wilensky, senior assistant state's attorneys, for the appellee (state).

DiPENTIMA, C.J., and ALVORD and PELLEGRINO, Js.

Opinion

DiPENTIMA, C.J.

The defendant, Philip Friend, appeals from the judgment of conviction, rendered after a jury trial, of twelve counts of larceny of varying degrees: three counts of larceny in the first degree in violation of General Statutes (Rev. to 2007) § 53a–122 (a)(2), two counts of larceny in the second degree in violation of General Statutes (Rev. to 2007) § 53a–123 (a)(2), and seven counts of larceny in the third degree in violation of General Statutes (Rev. to 2007) § 53a–124 (a)(2).¹ These charges arose out of his relationship with Standard Beef Company (SBC) between August, 2007 and February, 2008. On appeal, the defendant claims that: (1) the evidence was insufficient to support his conviction of larceny on all counts; (2) he was deprived of a fair trial by the prosecutor's statements made during the state's closing argument; and (3) he was denied his constitutional right to a speedy trial when the state “failed to bring him to trial until four and a half years after his arrest....” We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On August 2, 2007, the defendant signed an agreement to become a consultant to SBC in New Haven. SBC was owned solely by Henry Bawarsky and was in the business of purchasing meat products from wholesale suppliers and then reselling them to its customers. Under the terms of the agreement, the “specific services” that were to be provided by the defendant to SBC would have to be mutually agreed on by the parties. The defendant would provide his services to SBC as an independent contractor and would be ineligible to receive “any additional compensation or employee benefits that would otherwise accrue to him if he were an employee....” The agreement further provided that the defendant would be reimbursed for his documented out-of-pocket expenses. In consideration for his services, the defendant would receive 25 percent of SBC's net profits estimated weekly.² In addition, the defendant was to “receive an option to purchase, together with Richard Greenfield, all of the outstanding shares” of SBC to be exercised by December 31, 2007.³ The agreement specifically provided that “[a]ll moneys to be paid by [SBC] to third parties” had to be approved in writing by Bawarsky and either the defendant or Greenfield, which could be evidenced by “a check signed by both such parties.”⁴ Finally, the agreement provided that its terms “may not be altered, modified or extended except in writing signed by both parties.”

Prior to the defendant's becoming a consultant to SBC, the company employed approximately twenty people. It was managed primarily by Bawarsky, senior vice president William Dober, and senior accountant/comptroller Fred Auger. Paper documents were created to keep track of the inventory and finances.⁵ The blank company checks were stored in a safe. Only employees in a position of trust had the combination to access the safe.⁶ Prior to any checks being sent out, Auger would match the printed checks with the corresponding invoices and submit them to Dober for verification and signature. Likewise, Dober, who had a corporate credit card, provided Auger with itemized receipts to explain and justify the charges on the account. Although Auger could issue checks, he was not authorized to sign them. Overall, Bawarsky, Dober, and Auger actively were engaged in the running of SBC and remained informed of its day-to-day operations and financial situation.

In August, 2007, SBC was in a poor financial situation; it did not have enough funds to pay its suppliers on time and frequently risked overdrafting its bank account. Nevertheless, SBC remained an attractive acquisition target because it owned approximately a 15 percent stake in New Haven Food Terminal—a real estate asset worth “millions of dollars.”

Once the defendant had assumed his role as a consultant to SBC in August, 2007, he immediately began implementing changes in the way the company had been operating. The old computer software was enhanced by a modern one, providing more timely and accurate information to the sales personnel.⁷ The data from the new system, which became fully operational in October, 2007, fed directly into Greenfield's office in New York, so he could remotely monitor and access SBC accounts. In addition to the new software, Greenfield provided SBC with barcode scanners and label printers to improve efficiency. Greenfield also provided SBC with an $800,000 line of guaranteed trade credit to help ease the company's financial burden.⁸ As a result of these changes, SBC's finances significantly improved; the frequency and amounts of the bank account overdrafts diminished, profit margins improved, and the annual loss of $400,000 began to decrease.

At the time of these changes, Bawarsky was seen with the defendant and introduced him to the company's personnel as someone who would help turn the business around and become the eventual owner of SBC. On August 6, 2007, Bawarsky, who was seventy-nine years old, suffered a broken leg, was hospitalized for more than a month and was unable to participate in the running of SBC. Even after he was able to return to work, Bawarsky would come in only for several hours three or four times a week.

Following Bawarsky's injury, the defendant increased his role in the day-to-day operations of SBC. On September 24, 2007, he fired Auger and assumed the company's accountant/comptroller duties, becoming an employee in addition to his consultant position. Having assumed Auger's position, the defendant gained control over the SBC checkbook, and Dober no longer had control over some checks that were being sent out.

On November 27, 2007, the parties signed an amendment to the original agreement extending the option to purchase SBC to February 28, 2008. Despite the extension, the sale of SBC did not occur. In February, 2008, David Bawarsky, Henry Bawarsky's son, took control of the company and forced the defendant out, removing him from the property with the help of the New Haven police.

A criminal investigation ensued, and the defendant was charged with thirteen counts of larceny.⁹ The jury found the defendant guilty on twelve counts, and the court sentenced him to twelve years incarceration, execution suspended after six years, with five years probation. This appeal followed. Additional facts will be set forth as needed.

ISUFFICIENCY OF EVIDENCE

We begin with the defendant's challenge to the sufficiency of the evidence to support his larceny conviction on twelve counts. “A defendant who asserts an insufficiency of the evidence claim bears an arduous burden.” (Internal quotation marks omitted.)

State v. Rodriguez, 146 Conn.App. 99, 110, 75 A.3d 798, cert. denied, 310 Conn. 948, 80 A.3d 906 (2013). “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 reasonably drawn therefrom the [jury] 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 defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the 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 multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [jury] may draw whatever inferences from the evidence or facts established by the evidence [that] it deems to be reasonable and logical....

“[In addition], [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 [jury], 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 evidence that supports the [jury's] verdict of guilty.” (Internal quotation marks omitted.) State v. Papandrea, 302 Conn. 340, 348–49, 26 A.3d 75 (2011).

As to the law governing the crime of larceny in Connecticut, “[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...