State v. Thompson

305 Conn. 806

48 A.3d 640

STATE of Connecticut

v.Brushaun THOMPSON.

No. 18670.

Supreme Court of Connecticut.

Argued Feb. 8, 2012.

Decided Aug. 7, 2012.

Jodi Zils Gagne, special public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael A. DeJoseph, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

McLACHLAN, J.

The sole issue in this certified appeal is whether the Appellate Court properly concluded that “the impropriety in the jury instruction for larceny in the first degree was harmless beyond a reasonable doubt.” State v. Thompson, 298 Conn. 906, 3 A.3d 73 (2010). The defendant, Brushaun Thompson, appeals from the judgment of the Appellate Court affirming, inter alia,¹ his conviction of two counts of larceny in the first degree by false pretenses in violation of General Statutes (Rev. to 2005) § 53a–122 (a)(2),² and General Statutes § 53a–119 (2).³State v. Thompson, 122 Conn.App. 20, 22, 996 A.2d 1218 (2010). The parties agree that the Appellate Court properly concluded that the trial court improperly failed to instruct the jury that, before it could aggregate the value of the property from each individual theft to determine whether the state had satisfied its burden to prove that the defendant had stolen property valued at more than $10,000—an element of the offense of larceny in the first degree—the jury first had to determine whether the state had satisfied its burden of proving that the aggregated property was stolen pursuant to “one scheme or course of conduct.” General Statutes § 53a–121 (b). The defendant argues that the Appellate Court improperly concluded that the improper instruction was harmless beyond a reasonable doubt. In response, the state contends that the error was harmless because the defendant did not contest the issue and the evidence so overwhelmingly supported the determination that the individual thefts were part of a single scheme or course of conduct that no reasonable jury could have concluded otherwise. We agree with the state and affirm the judgment of the Appellate Court.

The Appellate Court opinion set forth the following relevant factual and procedural background. “In September, 2005, John Spalding, owner of ABC Moving, was hired by Decorator's Warehouse in Norwalk to deliver a couch and love seat to the defendant at 557 Atlantic Street in Bridgeport. When Spalding made the delivery he met the defendant for the first time. The defendant introduced himself as a ‘caretaker for a doctor’ who orders ‘a lot of stuff.’ The defendant inquired of Spalding as to whether he would like to start picking up deliveries for ‘us.’ The defendant explained that ‘we're doing construction and because at the time we'd like to do some business with you because our current delivery service isn't working out.’ The defendant told Spalding that he worked for ‘Dr. Rosenblatt’ and at another time for ‘Mr. Murray.’ ⁴ Spalding gave the defendant his business card. The defendant agreed to pay Spalding $100 for each delivery.

“On September 16, 2005, Betsy Nosara Conway, assistant manager of the Coach store in Westport, received a telephone call from a man who identified himself as Larry Rosenblatt. Rosenblatt wanted to place an order for merchandise he had seen in a catalogue. He ordered a number of items totaling $2534.76 ⁵ and charged them to an American Express account belonging to Elizabeth Pocsik, who did not make the purchase or authorize anyone else to do so. Rosenblatt told Conway that he would have a man by the name of John Spalding come to get the items. Rosenblatt represented that Spalding was a courier who often picked up things for Rosenblatt.

“In the meantime, the defendant had called Spalding and asked him to make a pickup at Coach in Westport. The defendant informed Spalding that Rosenblatt was throwing a party and did not have time to buy his wife a gift, so he sent Spalding to pick it up. When Spalding arrived at Coach, some of the associates helped him put the bags of merchandise in his truck. Spalding met the defendant in the parking lot of a Waldbaum's supermarket at the corner of North and Park Avenues in Bridgeport where the defendant took possession of the merchandise and paid Spalding $100.

“On September 17, 2005, Conway took another telephone call from the man who again identified himself as Rosenblatt. According to Rosenblatt, his family enjoyed the gifts, and he wanted to purchase more merchandise. These items totaled $2700.88, and Rosenblatt gave Conway a credit card number, but not the one he had used the day before. On September 21, 2005, the same so-called Rosenblatt called Coach twice and placed two additional orders with Conway. His first purchase on that day totaled $2789.92 and was charged to an American Express account belonging to Catherine Saldinger and Pierre Saldinger. Neither one of the Saldingers had authorized the use of their account for the purchase. Minutes after making the first call, the caller, identifying himself as Rosenblatt, yet again called Coach and ordered a diamond watch worth $2117.88. To purchase the watch, Rosenblatt used an American Express account belonging to Ronald Schectman, who had not authorized the use of the account for the purchase.

“From September 16 through 21, 2005, the defendant placed four orders with Coach in Westport, charged $10,203.44 to credit card accounts belonging to other persons and asked Spalding each day to pick up the merchandise at Coach and deliver it to him at the Waldbaum's parking lot in Bridgeport. Each time Spalding delivered the merchandise from Coach, the defendant paid him the agreed upon fee of $100. Among the items purchased from Coach, in this fashion, was a water buffalo billfold wallet.

“From September 16 through 22, 2005, the defendant asked Spalding to make six deliveries of merchandise from Lowe's in Newington to a garage below an apartment at 557 Atlantic Street in Bridgeport. The value of the merchandise delivered that week totaled $37,558.55.⁶ The defendant paid Spalding $400 for each Lowe's delivery, including one purchase valued at $278.... The defendant obtained the merchandise by using credit card accounts belonging to, among others, Bruce Angus, John Murray, Michael Morrissey, Estelle Nisson and Susan Seath.⁷ None of those persons made a purchase at Lowe's in Newington and did not authorize the defendant to do so.

“Each time Spalding delivered the Lowe's merchandise to 557 Atlantic Street in Bridgeport, the defendant was waiting for him. The defendant again represented to Spalding that he was the caretaker for Rosenblatt, a contractor. According to Spalding, the defendant explained that ‘they were going to pick them up the next day because they didn't want them on the job site, you know, because they wanted to install them the next day. That's what he told me.’

“On September 23, 2005, Donna Corra, manager of Coach in Westport, received a telephone call from a person complaining of an unauthorized charge on her credit card account. Corra subsequently notified the Westport police. Corra informed Conway of the call, as well. On September 26, 2006, Conway took a telephone call at Coach from someone identifying himself as attorney Gary Hertzberg, who placed a telephone order and used a credit card account number to make the purchase. When Conway processed the order, the credit card information was declined. Conway telephoned the Westport police, who went to the Coach store. When Spalding arrived at the store,⁸ the police explained to him that a stolen credit card was used to place the order. Coach employees gave Spalding empty shopping bags, and Detective John Rocke accompanied Spalding in his pickup truck to the Waldbaum's parking lot in Bridgeport.

“Spalding and Rocke waited in the parking lot for the defendant to arrive. When the defendant drove up next to Spalding's truck, Spalding identified him to Rocke as the man who had hired him to deliver merchandise from Coach and Lowe's. Rocke got out of the truck carrying a shopping bag filled with empty Coach boxes. The defendant got out of the vehicle that he was driving and met Rocke. Rocke asked the defendant if the packages were his, and the defendant responded affirmatively. Rocke asked the defendant if he wanted the receipt, and the defendant said, ‘yes.’ Rocke reached into the bag as if to retrieve the receipt but pulled out a weapon and arrested the defendant. There was a passenger in the defendant's vehicle, Francis Beethoven, and the defendant indicated to Rocke that Beethoven was not involved. When Rocke searched the defendant, he found a Coach water buffalo double billfold wallet similar to the one that the man who identified himself as Rosenblatt had purchased on September 17, 2005. The wallet contained $110 in currency and two credit cards in the name of Tamika Creer, who resided at 557 Atlantic Street.

“Following the defendant's arrest, he was released on a $25,000 bond, but he failed to report for his scheduled court date on January 11, 2006. Subsequently, a warrant was issued for his arrest. The defendant was taken into custody again on February 25, 2006.” (Citation omitted.) State v. Thompson, supra, 122 Conn.App. at 23–28, 996 A.2d 1218. Following a jury trial, the defendant was convicted of two counts of larceny in the first degree by false pretenses in violation of §§ 53a–122 and 53a–119, ⁹ and one count of failure to appear in the first degree in violation of General Statutes § 53a–172 (a).¹⁰ The defendant appealed from the judgment of conviction to the Appellate Court and that court affirmed the judgment. Id. at 22, 996 A.2d 1218. This appeal followed.

Preliminarily, we observe that the defendant concedes that his challenge to the jury charge is unpreserved and therefore he seeks review pursuant to State v. Golding, 213 Conn....