State v. Kurrus

137 Conn.App. 604

49 A.3d 260

STATE of Connecticut

v.Arthur Glen KURRUS.

Nos. 32772, 32773.

Appellate Court of Connecticut.

Argued May 24, 2012.

Decided Aug. 21, 2012.

Richard Emanuel, New Haven, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Devin T. Stilson, supervisory assistant state's attorney, for the appellee (state).

ROBINSON, ESPINOSA and BISHOP, Js.

ROBINSON, J.

The defendant, Arthur Glen Kurrus, appeals from the judgments of conviction rendered after a jury trial of two counts of larceny in the first degree in violation of General Statutes §§ 53a–119 and 53a–122 (a)(3) and one count of forgery in the second degree as an accessory in violation of General Statutes §§ 53a–8 and 53a–139. He claims on appeal that (1) the court erred in refusing his request to charge on the theory of defense of mistake of fact as to all counts, (2) there was insufficient evidence to support a conviction on one of the larceny counts and (3) the prosecutor engaged in impropriety during closing arguments. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In 2003, Steven Cohen owned a 1967 Austin Healey (1967 Healey) that he decided to sell. He contacted the defendant, and they orally agreed that the defendant would sell the vehicle and set the price, but they did not create a written contract or agreement. The next day, the defendant sent a truck to retrieve the vehicle.

From 2003 until 2007, Cohen maintained infrequent contact with the defendant by telephone and e-mail. Beginning in April, 2007, Cohen began e-mailing the defendant more frequently for updates on the sale of the 1967 Healey. In July, 2007, after learning that the defendant had moved his business to California, Cohen contacted the defendant by e-mail to determine where the 1967 Healey was located. In August, 2007, Cohen received a faxed letter from the defendant promising to pay $25,000 for the sale of the vehicle. At some point after receiving the faxed letter from the defendant, Cohen contacted the police to report that the 1967 Healey had been stolen. In September, 2008, Cohen received a check in the amount of $25,000 from the defendant's attorney.

In April, 2005, Michael Torsone purchased a 1967 Jaguar XKE (1967 Jaguar) and registered the vehicle in New York. Later in 2005, Torsone decided to have Donovan Motorcar Services (Donovan) perform restoration work on the vehicle. In June, 2006, Torsone retrieved the car from Donovan prior to the completion of brake and front end work. After unsuccessfully trying to complete the brake work himself, Torsone contacted the defendant. The defendant told him to bring the car to his business, Paradise Garage, in Lime Rock, Connecticut. After dropping off the 1967 Jaguar, Torsone had conversations with the defendant during which Torsone detailed what work he wanted completed as well as whether he wanted to sell the car.

Torsone did not have a written contract with the defendant but had an oral agreement that allowed the defendant to keep the 1967 Jaguar in his showroom and to talk to people about whether they would want to purchase the vehicle. The defendant set up several auctions for the 1967 Jaguar in October, 2006, as well as in March, April and May, 2007.

By May, 2007, the defendant had engaged in what he characterized as a “cash and trade” deal that involved four vehicles: Cohen's 1967 Healey, Torsone's 1967 Jaguar, a 1960 Austin Healey (1960 Healey) owned by a third party and a 1972 Porsche 911 owned by the defendant. The defendant traded Cohen's 1967 Healey for the 1960 Healey, sold the Porsche for $25,000 and sold Torsone's 1967 Jaguar for $68,500 to a couple in New Hampshire, Melvin Flowers and Shirley Flowers. In order to effectuate the sale of the 1967 Jaguar, the defendant instructed an acquaintance, Frank Saffioti, to sign the New York state registration for the 1967 Jaguar over to Paradise Garage and to sign Torsone's name. Torsone spoke to the defendant about the sale of the 1967 Jaguar on June 17, 2007, and contacted the state police to report that his car had been stolen.

In the amended information, the defendant was charged with larceny in the first degree of the 1967 Jaguar in count one, forgery in the second degree as an accessory of the registration document to the 1967 Jaguar in count two and larceny in the first degree of the 1967 Healey in count three. The jury found him guilty on all counts. The court sentenced him to ten years imprisonment, execution suspended after three years, and five years probation with conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly refused his request to instruct the jury concerning the defense of mistake of fact on all three counts.¹ The defendant claims that the failure to include the defendant's charge of mistake of fact, based on General Statutes § 53a–6, ² violated his constitutional rights to present a defense and to a fair trial, as set forth in the fifth, sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut, as there was an evidentiary foundation for the requested instruction as to each count. The state disputes that there was evidentiary support for the requested instruction. We agree with the state.

“We begin with the well established standard of review governing the defendant's challenge to the trial court's jury instruction. Our review of the defendant's claim requires that we examine the [trial] court's entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction.... While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 454–55, 10 A.3d 942 (2011).

“When considering a claim of failure to deliver a requested charge ... [t]he court ... has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding.” (Internal quotation marks omitted.) State v. Woods, 250 Conn. 807, 818, 740 A.2d 371 (1999). “An error in instructions in a criminal case is reversible error when it is shown that it is reasonably possible for errors of constitutional dimension or reasonably probable for nonconstitutional errors that the jury [was] misled.” State v. Mason, 186 Conn. 574, 585–86, 442 A.2d 1335 (1982).

“When a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate.” State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). “[A] defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible....” (Internal quotation marks omitted.) State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). Mistake of fact is a legally permissible defense that has been codified in § 53a–6. See State v. Rouleau, 204 Conn. 240, 250 n. 12, 528 A.2d 343 (1987). Accordingly, “[a]n instruction on mistake of fact is required only when evidence supporting [this] ... defense is placed before a jury.” (Internal quotation marks omitted.) State v. Beltran, 246 Conn. 268, 274, 717 A.2d 168 (1998). Moreover, the court “must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” (Internal quotation marks omitted.) State v. Fuller, supra, at 275, 506 A.2d 556.

“No area of the substantive criminal law has traditionally been surrounded by more confusion than that of ignorance or mistake of fact....” 1 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 5.6(a), p. 394. “In actuality, the basic rule is extremely simple: ignorance or mistake of fact ... is a defense when it negatives the existence of a mental state essential to the crime charged.... Instead of speaking of ignorance or mistake of fact ... as a defense, it would be just as easy to note simply that the defendant cannot be convicted when it is shown that he does not have the mental state required by law for commission of that particular offense.” Id., at p. 395.

Our Supreme Court has stated that “[a] mistake of fact results when one makes an erroneous perception of the facts as they actually exist.... The defense arises only where the defendant misperceives an objective state of existing fact, and does not apply to the defendant's erroneous suppositions as to the unformed intentions of another. A fact is that which has taken place, not something that might or might not take place in the future.” (Citation omitted; internal quotation marks omitted.) State v. Silveira, 198 Conn. 454, 460–61, 503 A.2d 599 (1986). Stated in other words, a mistake of fact “is a misapprehension of a fact which, if true, would have justified the act or omission which is the subject of a criminal prosecution.” 21 Am.Jur.2d 262, Criminal Law § 153 (2008).

A

We first consider the defendant's claim that the court erred in not including in its instructions to the jury a mistake of fact charge as to the larceny counts. We disagree.

In the present case, the state argued that neither Torsone nor Cohen authorized the defendant to execute a cash and trade deal with their vehicles. On the other hand, the defendant's position was that he had express authority to proceed with the cash and trade deal. The defendant testified that he...