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State v. Schovanec

Supreme Court of Connecticut

July 18, 2017

STATE OF CONNECTICUT
v.
FRANK SCHOVANEC

          Argued April 4, 2017

         Procedural History

         Substitute, two part information charging the defendant, in the first part, with the crimes of identity theft in the third degree, credit card theft, illegal use of a credit card, and larceny in the sixth degree and, in the second part, with being a persistent larceny offender, brought to the Superior Court in the judicial district of Danbury, geographical area number three, where the first part of the information was tried to the jury before Hon. William J. Lavery, judge trial referee; verdict of guilty; thereafter, the defendant was presented to the court on a plea of guilty, with respect to the second part of the information; judgment in accordance with the verdict and plea, from which the defendant appealed. Affirmed.

          David V. DeRosa, for the appellant (defendant).

          Marcia A. Pillsbury, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sharmese L. Hodge, assistant state's attorney, for the appellee (state).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and D'Auria, Js. [*]

         Syllabus

         Convicted of, inter alia, the crimes of identity theft in the third degree, credit card theft, illegal use of a credit card, and larceny in the sixth degree, the defendant appealed. The victim, who had volunteered to help host a party at her child's school, noticed shortly after returning home that her wallet was missing from her purse. After searching unsuccessfully, the victim discovered certain unauthorized purchases had been made on one of her credit cards. These charges included two purchases at a gas station near the school shortly after the party and various purchases in a nearby city the following day, including a transaction at B Co. The victim subsequently reported that, during the party, the defendant and his wife had lingered around a table where the victim had placed her unzipped purse. U and K, two employees from the gas station who knew the defendant personally, testified at trial that the defendant had purchased gasoline and cigarettes shortly after the party had ended. U testified, in particular, that the defendant had requested a carton of cigarettes and that such a request was unusual because the gas station did not stock cartons. H, a police officer assigned to investigate the victim's complaint, testified that, although a loss prevention officer employed by B Co. had informed him of a video recording showing three unidentified Hispanic males using the victim's credit card the day after the party, H did not conduct any further investigation regarding that purchase. At trial, the defendant requested an instruction on third-party culpability and permission to make a corresponding argument to the jury. The trial court declined to issue that instruction and excluded references to third-party culpability from argument, but permitted defense counsel to refer to H's testimony regarding the video recording and the three unidentified Hispanic males. Following his conviction, the defendant appealed, claiming that the trial court had incorrectly denied his request for a third-party culpability instruction and argument and that, because the charge of larceny in the sixth degree arose out of the same acts as the charges of identity theft in the third degree and illegal use of a credit card, his convictions on these charges violated the constitutional prohibition against double jeopardy.

         Held:

1. The trial court did not abuse its discretion in declining to charge the jury on, or permit arguments regarding, the issue of third-party culpability: in the absence of evidence that the three unidentified Hispanic males were involved in the theft of the victim's wallet or the unauthorized purchases at the gas station, the defendant had failed to establish a direct connection between those individuals and the charged offenses; moreover, in the absence of such a direct connection, the fact that the trial court exercised its discretion in allowing defense counsel to reference H's testimony regarding the video recording did not require the conclusion that the evidence reasonably supported argument or a charge on the issue of third-party culpability.
2. The defendant could not prevail on his unpreserved claim that his convictions of identity theft in the third degree, illegal use of a credit card, and larceny in the sixth degree violated the constitutional prohibition against double jeopardy, the defendant having failed to establish that the charged offenses arose out of the same act or transaction; in light of the theft of the victim's wallet, the various items contained therein, gasoline, and cigarettes, the jury reasonably could have found a separate factual basis for each offense.

          OPINION

          EVELEIGH, J.

         The defendant, Frank Schovanec, appeals from the judgment of conviction, rendered following a jury trial, of identity theft in the third degree in violation of General Statutes § 53a-129d, credit card theft in violation of General Statutes § 53a-128c (a), illegal use of a credit card in violation of General Statutes § 53a-128d (2), and larceny in the sixth degree in violation of General Statutes § 53a-125b.[1] On appeal, the defendant claims that the trial court incorrectly (1) precluded him from arguing third-party culpability and denied his corresponding request for a jury instruction, and (2) sentenced the defendant on the charges of identity theft, illegal use of a credit card, and the lesser included offense of larceny in the sixth degree because these convictions violated the prohibition against double jeopardy contained within the fifth amendment to the United States Constitution.[2] We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, are relevant to this appeal. On October 31, 2013, the victim was the room parent for her child's class at Middle Gate Elementary School (school) in the town of Newtown.[3] That morning, she put her child on the bus and went to work in the city of New Haven, where she worked as an accountant. The victim unlocked the door to her office and worked there until 2:30 p.m. There were no other security measures, such as key cards or badges, required for entrance to her office. After the victim left work, she traveled to the school in order to attend a Halloween party for her child's class. The victim brought bags of supplies for the party and, due to traffic, was running a few minutes late. She entered the classroom, placed her unzipped purse on a table located to the right of the door, and immediately began helping with the children and the party.

         The defendant and his wife, Lori Schovanec, were also at the Halloween party because they had a child in the same classroom. The victim saw the defendant and his wife in the classroom, but was not formally introduced to them. Prior to the party, the victim had never seen the defendant and his wife. At the end of the party, the victim noticed that the defendant and his wife were lingering around the table by the door where she had placed her purse.

         Later that evening, as the victim and her husband were leaving to take their children out trick or treating, the victim discovered that her wallet was not in her purse. She contacted a manager at her place of employment to see if the wallet was either in her office or an adjacent parking lot. The manager did not find the wallet. When she arrived back home after trick or treating, the victim searched her house for the wallet, but did not find it. The victim then checked her accounts online and discovered that someone was making charges on a credit card that had been in her wallet. She called the bank, cancelled the card, and informed the bank that someone was using the card without her permission. The victim then called and cancelled all of the other bank and credit cards that she had in her wallet. The victim's driver's license, a heath savings account credit card, and insurance cards were also in her wallet at the time. The driver's license contained the victim's name and address.

         The victim last remembered having her wallet when she used a credit card at a restaurant in the town of Bethel on October 30, 2013, the night before the Halloween party. She checked at the restaurant, but her wallet was not there.

         The victim then reported her wallet stolen to the Newtown Police Department. Because the victim believed that she had either lost her wallet or that it had been stolen at the restaurant, the Newtown Police Department instructed the victim to contact the Bethel Police Department. The victim then shared documents with the Bethel Police Department showing that the first unauthorized use of her credit cards had taken place at a gas station on South Main Street in Newtown. All of the subsequent unauthorized charges took place at locations in the city of Waterbury.

         The victim was familiar with that particular gas station because it is located near the school. The victim subsequently went to the gas station and spoke to the owner. She requested, and obtained, a copy of the receipt for the transactions in which her credit card had been used. The receipts indicated that her credit card was used on October 31, 2013, at 3:39 p.m. Upon seeing that the time on the receipt was minutes after school had been released that day, the victim began to think that her wallet must have been taken when she was at the school. Thereafter, the victim reported the theft of her ...


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