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State v. Mazzetta

Court of Appeals of Connecticut

May 8, 1990

STATE of Connecticut
v.
Marie G. MAZZETTA.

Argued Oct. 3, 1989.

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Lauren Weisfeld, Asst. Public Defender, for appellant (defendant).

Vincent J. Dooley, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Juliett Crawford, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and SPALLONE and EDWARD Y. O'CONNELL, JJ.

[21 Conn.App. 432] SPALLONE, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of larceny in the third degree in violation of General Statutes § 53a-124(a)(1). [1] She claims that the trial court erred (1) in convicting her without sufficient evidence of guilt, (2) in denying her various requests for discovery, adequate notice and continuances, and (3) in improperly commenting on the evidence in its jury instructions. We find no error.

The jury reasonably could have found the following facts. From September 12, 1985, to January 8, 1986, the defendant was employed by a chain of newsstands as the manager of its New Haven store. She usually opened the store on weekdays and occasionally closed [21 Conn.App. 433] the store in the evenings. As part of her duties, she operated the cash register, reviewed and coordinated the daily register tapes and summary sales reports, and made bank deposits of cash.

Although December is the chain's busiest month, the gross receipts for December, 1985, from the New Haven store were unexpectedly low. After investigating this anomaly, the chain's bookkeeper reported to the general manager, David Elden, that the summary sales reports from the New Haven store exhibited gaps in the sequential numbering of sales transactions and daily sales totals. These gaps could have resulted only from a manipulation of the cash register tapes at the start or close of daily business. Individual sales had been rung up on the cash register but the leading or trailing record of transactions had been removed from the register's paper rolls. The cash receipts from these transactions were presumably also missing.

On January 8, 1986, Elden called the defendant and informed her that he wished to discuss "problems" with the cash register tapes. The defendant opened the store the next morning but left early, claiming that she had injured her back. For four days she refused to take telephone calls from Elden or store employees, and Elden finally reported his information

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to the police. The defendant was subsequently arrested, tried and convicted of the crime of larceny in the third degree for an embezzlement occurring between November 7 and December 27, 1985. This appeal followed.

I

The defendant first claims that she was convicted on evidence insufficient to establish that she was the embezzler or that the amount of the loss exceeded $1000. We disagree. The standard of review with respect to a sufficiency of the evidence claim has been stated countless times. The issue " 'is whether the [jury] [21 Conn.App. 434] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.' State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981)." State v. Steinmann, 20 Conn.App. 599, 602-603, 569 A.2d 557 (1990). The evidence must be viewed in the light most favorable to sustaining the verdict. State v. Kelly, 208 Conn. 365, 386, 545 A.2d 1048 (1988); State v. Ruth, 16 Conn.App. 148, 153-54, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).

Although this case was wholly dependent on circumstantial evidence, such evidence is as probative as direct evidence; State v. Kelly, supra; and was sufficient to convict the defendant. The jury reasonably could have concluded [21 Conn.App. 435] that the defendant had the best opportunity to commit the crime because she was the store's manager and was, as a rule, the only employee who worked alone in the shop. See State v. Villano, 176 Conn. 301, 303, 407 A.2d 969 (1978) (opportunity is probative on issue of identity); State v. Bettini, 11 Conn.App. 684, 688, 528 A.2d 1180, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987). Elden and a store employee testified that Before anyone explained the process, the defendant exhibited knowledge of how the register tapes had been manipulated. As manager, the defendant was responsible for checking the daily summary sales records but she did not report the disparities between sales volume and cash receipts nor did she report the missing transaction numbers. While a suspect's knowledge that a crime has been committed does not ordinarily justify an inference of guilt; State v. Villano, supra, 176 Conn. at 303-304, 407 A.2d 969; the defendant's failure to report such discrepancies, coupled with her knowledge of how the thefts were concealed, justified an inference that she committed this crime. Finally, the jury reasonably could have concluded that the defendant's abrupt departure from the store on the morning Elden was to ask about the register tapes and her avoidance of further contact was evidence of guilt. See State v. Thomas, 205 Conn. 279, 286-87, 533 A.2d 553 (1987) (consciousness of guilt manifested by sudden reluctance to communicate with victim's family).

There was also sufficient evidence from which the jury reasonably could conclude that the value of the loss exceeded $1000. Evidence was introduced that the victim was reimbursed by its insurance company for a loss of $3256.87. See State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985) (insurance proceeds are probative of the value of stolen property). Elden testified that there were 1563 missing transactions and that the average sale per transaction was $2.24. The defendant's expert acknowledged that the method used to calculate this average sale figure was an acceptable accounting practice. The defendant now argues that this proof of loss must be discounted because the calculation averaged sales statistics from November 1, 1985, through January 6, 1986, and therefore included a sixteen day period outside the time period alleged in the information. The defendant's implication, however, that the average sale per transaction figure would be lower if the sixteen day period was excluded, is unsupported. The jury reasonably could have reached the opposite conclusion, inferring that postChristmas daily receipts would be sharply lower and would have therefore decreased the average dollar per sale figure. The jury was instructed, in accordance with the defendant's

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request, that the value element of the crime must be proved for the period between November 7 and December 27, 1985. The loss exceeded $1000 if the jury accepted that as few as one third of the missing transactions, at $2.24 per transaction, occurred within this period.

[21 Conn.App. 436] The inference that the loss exceeded $1000 is further supported by the evidence of the missing daily summary totals because the thefts were concealed by removing from the register tapes records of both the individual transactions and the summary totals. Elden testified that there were thirty-three summary totals missing during the fifty-one day period charged. Upon all the evidence presented, the jury, which is presumed to use its common sense in deliberations; State v. Ruth, supra, 16 Conn.App. at 154, 547 A.2d 548; could reasonably have concluded that a sufficient number of transactions fell within the period charged and that the loss exceeded $1000.

II

In her second claim of error, the defendant argues that adverse trial court rulings hampered the preparation of her defense. [2] The following facts are relevant to this claim.

On March 26, 1986, the defendant entered a plea of not guilty to a short form information alleging a larceny in the second degree, occurring on or about October 12, 1985. [3] She filed a motion on May 8, 1986, for a bill of particulars seeking, inter alia, to know the date and time of the offense. On November 3, 1986, the day that jury voir dire began, the state filed a long form information pursuant to Practice Book ยง 833, encompassing the specifications of the bill of particulars and [21 Conn.App. 437] charging the defendant with larceny in the second degree for losses exceeding $5000 occurring between October 12, 1985, and January 10, 1986. On the next afternoon, ...


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