State v. Nunes

58 Conn. App. 296

752 A.2d 93

STATE OF CONNECTICUT v. JOAO NUNES

(AC 18808)

Appellate Court of Connecticut.

Argued February 16, 2000.

Officially released June 20, 2000.

Foti, Landau and Stoughton, Js. Kent Drager, senior assistant public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and David Zagaja, assistant state's attorney, for the appellee (state).

Opinion

STOUGHTON, J.

The defendant, Joao Nunes, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-124.¹ On appeal, the defendant claims that (1) the evidence was insufficient to prove that he knew or should have known that the property was stolen, (2) the evidence was insufficient to prove value, (3) the court improperly excluded certain evidence, (4) the court improperly admitted certain evidence and (5) the court improperly instructed the jury as to the law of reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts from the evidence adduced during the trial. In January, 1994, Air One, Inc. (Air One), operated an aircraft service business in a terminal building and hangar located at Brainard Field in Hartford. Air One also rented office space to a number of tenants, one of whom was the defendant, a Hartford police officer² who operated a flight school at Brainard Field at that time. The Air One customer service desk was in the lobby of the terminal, and the manager's office was in a room behind the counter. The defendant's office was on the second floor of the terminal.

On January 30, 1994, Peter Halpin, the general manager of Air One, was informed that the company's airto-ground radio and case, which had been kept in a locked cabinet behind the service desk, were missing. The radio was a 720 channel Dittel-German FSG-50 transceiver (radio). Halpin observed marks on the cabinet indicating that the door had been forced open. He also noticed that the antenna wire had been cut. He reported the matter to the Hartford police and later informed Lieutenant David Kenary that the radio and case had been stolen. Halpin knew Kenary because Kenary was a student at the defendant's flight school and a frequent visitor at the airport. Halpin described the stolen radio to Kenary, and Kenary obtained a copy of the police report.

On March 11, 1994, Kenary and another police officer executed a search warrant on an unrelated matter at the defendant's residence in Meriden. In the basement of the house, Kenary saw a radio that matched the description of the stolen radio. He seized the radio and, on the way back to police headquarters, stopped at Brainard Field to show it to Halpin. Halpin identified it as the radio stolen from the Air One service desk.

At trial, Steven Christino, an avionics expert who had worked on the radio, identified the radio seized from the defendant's residence as the radio that had been stolen from the Air One service desk. Christino, who was experienced in appraising avionics equipment, placed the value of the stolen radio and case at $2200. Christino based his appraisal on the condition of the radio at that time. He set as the value the price that would be paid for the same radio in a similar condition. He used the Aviation Electronics Association Guide, a worldwide publication, and a catalog published by EDMO Distributors, Inc., as references.

I

The defendant's first claim is that there was insufficient evidence for the jury to have inferred that he knew or should have known that the radio found in his basement had been stolen. The defendant testified that he had bought the radio for $250 from a man who used to hang around the airport but whom he had not seen since the transaction was completed.

When we review a sufficiency of evidence claim, we employ a two part test. We first construe the evidence in the light most favorable to sustaining the verdict. We then 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." (Internal quotation marks omitted.) State v. Potts, 55 Conn. App. 469, 471, 739 A.2d 1280, cert. denied, 252 Conn. 905, 743 A.2d 616 (1999). In reviewing the defendant's challenge, the relevant inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original; internal quotation marks omitted.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

There was ample evidence from which the jury reasonably could have inferred that the defendant knew or should have known that the radio was stolen. His own testimony was that he looked into the value of the radio and, believing that it was worth $750 to $800, paid $250 for it. The price the defendant allegedly paid was far below Christino's estimated value and the defendant's own estimate. An inference that the defendant should have known that the radio had been stolen might have been drawn from that fact if the jury accepted the defendant's claim that he bought the radio. The radio was found in the basement of the defendant's house shortly after it was stolen. It would not easily have been seen by others in that location, and the jury could have inferred that he kept it there because it had been stolen. The antenna wire on the radio had been cut, which would naturally tend to arouse suspicion. Finally, the jury heard evidence that employees at Air One had locked the defendant out of his office and that there had been a dispute between the defendant and Air One.

"A rational person will believe what he regards as probable and disbelieve what he regards as improbable." (Internal quotation marks omitted.) State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984). "Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen." State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961). We conclude that the evidence presented to the jury and the inferences that reasonably might have been drawn therefrom were sufficient to establish beyond a reasonable doubt that the defendant knew or should have known that the radio found in his basement had been stolen.

II

The defendant next claims that there was insufficient evidence to prove that the market value of the stolen radio exceeded $1000. In testing the sufficiency of the evidence claim, we employ the test enunciated previously in this opinion.

The defendant claims that the only evidence presented regarding the value of the radio was the testimony of Christino and that Christino testified as to the replacement value of the radio rather than the market value of the radio.³ The defendant further claims, relying on General Statutes § 53a-121 (a) (1),⁴ that the state could not properly rely on replacement value unless and until the state claimed and proved that the market value of the radio was not satisfactorily ascertainable.

Section 53a-124 provides, in part, that a person is guilty of larceny in the third degree when he commits larceny and the value of the property exceeds $1000. Section 53a-121 provides, in part, that the value of property is the market value of the property at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement within a reasonable time after the crime. "Market value has been defined as the price that would in all probability ... result from fair negotiations, where the seller is willing to sell and the buyer desires to buy." (Internal quotation marks omitted.) State v. Collette, 199 Conn. 308, 313, 507 A.2d 99 (1986). "The determination of value is a question for the trier of fact." Id., 314.

Christino testified that in January or February, 1994, he appraised the value of the radio at $2200. In arriving at this appraisal value, Christino relied primarily on two reference guides, the Aviation Electronics Association Guide and a catalog published by EDMO Distributors, Inc. The $2200 appraisal figure was for a used radio. Christino further testified that he did not determine a value on the basis of that particular radio; rather, he based the value on that of another radio of a similar condition.⁵

We conclude, contrary to the claim of the defendant, that Christino's testimony gave the jury a reasonable basis on which it could find that the market value of the radio exceeded $1000. In State v. Collette, supra, 199 Conn. 314-15, the defendants claimed, as the defendant claims in the present case, that the witness who testified as to value employed a replacement value rather than a market value standard. The expert witness in Collette, an experienced professional jeweler and appraiser, testified that he based his appraisal on a "`[c]omparison to what merchandise costs, and whether it's used and how much depreciation it has.'" Id., 315. The witness further testified that the appraisal was based on what he thought he could get as a fair price and that these estimates were based on the retail value of the items. Id. Reviewing the witness' testimony as a whole, the court concluded that the jury reasonably could have found that he appraised the items at market value. Id. Similarly, in State v. Perez, 5 Conn. App. 129, 132, 497 A.2d 82 (1985), the state's expert witness, a gemologist, testified as to the fair market value of stolen items. On cross-examination, the witness testified that "this was replacement value not as new, but the cost of going...