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State v. Newton

Supreme Court of Connecticut

October 16, 2018

STATE OF CONNECTICUT
v.
ERNEST NEWTON II

          Argued February 28, 2018

         Procedural History

         Substitute information charging the defendant with five counts of the crime of illegal practices in campaign financing, two counts of the crime of larceny in the first degree, and one count of the crime of tampering with a witness, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Dewey, J.; verdict and judgment of guilty of three counts of illegal practices in campaign financing, from which the defendant appealed. Reversed; new trial.

          Mark Rademacher, assistant public defender, for the appellant (defendant).

          Kevin M. Shay, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Michael A. Gailor, executive assistant state's attorney, for the appellee (state).

          Palmer, D'Auria, Mullins, Kahn and Vertefeuille, Js.

          OPINION

          KAHN, J.

         This appeal requires us to determine the appropriate mens rea for the crime of illegal practices in campaign financing. The defendant, Ernest Newton II, appeals from the judgment of conviction, following a jury trial, of three counts of illegal practices in campaign financing in violation of General Statutes §§ 9-622 (7) and 53a-8. The defendant claims that the trial court improperly failed to instruct the jury that, in order to find him guilty of an illegal campaign financing practice in violation of § 9-622 (7), it must find that he acted with specific intent to violate that statute.[1] The state responds that the defendant waived his instructional challenge and, in the alternative, that the trial court properly instructed the jury that the state was required to prove only that the defendant acted with general intent. We conclude that the trial court improperly instructed the jury as to the applicable mens rea for the crime of illegal campaign financing practices. Accordingly, the judgment of the trial court is reversed.

         A brief overview of Connecticut's public campaign financing program provides helpful context for considering the issues presented in this appeal. The website for the State Elections Enforcement Commission (Commission) describes Connecticut's public campaign financing program, the Citizens' Election Program (Program), as ‘‘a voluntary program which provides full public financing to qualified candidates for [s]tatewide offices and the General Assembly. To participate, candidates must agree to abide by certain guidelines, including contribution and expenditure limits and disclosure requirements. This voluntary public campaign financing program was designed to encourage citizen participation and limit the role of private money in the [s]tate of Connecticut's political process.'' State Elections Enforcement Commission, Citizens' Election Program, available at http://www.ct.gov/seec/cwp/view.asp?a= 3548&Q=489606 (last visited October 11, 2018).

         The Program applies to all state elections, including primaries. General Statutes § 9-702 (b). In 2012, the amount of public financing grant money available to a major party candidate who sought the nomination to the office of state senator and who had satisfied all of the Program's prerequisites was $80, 550. General Statutes §§ 9-702 (a) (1) and 9-705 (e) (1) and (h). To qualify for a public financing grant, a candidate for state senator must raise at least $15, 000 in qualifying contributions, including contributions from at least 300 individuals residing in municipalities included in whole or in part in the candidate's district. General Statutes § 9-704 (a) (3). The maximum qualifying contribution or contributions that any individual may make is $100. General Statutes § 9-704 (a) (3) (A). Individuals who make qualifying contributions of more than $50 must fill out a qualifying contribution certification form (contribution card) that certifies the truth and accuracy of certain statutorily required information. General Statutes §§ 9-608 (c) (3) and 9-704 (b). Candidates who participate in the Program agree to accept campaign expenditure limits, and they are prohibited from raising funds other than through qualifying contributions. General Statutes §§ 9-702 (b) and (c) and 9-704.

         The jury could have found the following relevant facts. On January 14, 2012, the defendant registered as a candidate for state senator in the twenty-third district, affiliated with the Democratic party. Because the defendant was ‘‘a major party candidate for nomination to the office of state senator, '' his candidate committee was eligible under the Program for a grant from the citizens' election fund for his primary campaign for the nomination. General Statutes § 9-702 (a) (1). As required by statute, the defendant filed an affidavit of intent to abide by the requirements of the Program. General Statutes § 9-703 (a). In the affidavit of intent, the defendant certified, inter alia, to the following: ‘‘I understand that I am required to comply with the requirements of the Program, including all applicable statutes, regulations and declaratory rulings. I certify that I understand that my failure to abide by the requirements of all applicable statutes and regulations relating to the Program may result in the . . . imposition of penalties [by the Commission], as provided in [c]hapters 155 and 157 of the . . . General Statutes. I certify that I understand that I shall be personally liable for penalties relating to violations of the Program requirements, by myself, my agents, and/or anyone acting under my explicit or implied direction.'' The following notice appears in bold print at the bottom of the certification form signed and initialed by the defendant: ‘‘Making a false statement on this form may subject you to criminal penalties, including, but not limited to, imprisonment, a fine, or both.''

         On July 9, 2012, Loretta Williams, the treasurer for the defendant's candidate committee, filed the defendant's application for a grant from the citizens' election fund under the Program. In the application, the defendant and Williams both certified that the defendant had received the requisite amount of qualifying contributions. On the same day, Williams filed an itemized campaign finance disclosure statement, which reported that the campaign had raised an aggregate amount of $15, 375.

         After Williams filed the defendant's application for the grant along with the supporting documentation, the Commission conducted a routine review of the application to confirm that the defendant had complied with the Program requirements. That review revealed that the defendant had raised only $14, 410 in qualifying contributions, falling $590 short of the amount necessary to qualify for the grant of $80, 550 in public funds. A further review revealed that an additional $100 qualifying contribution had not been counted, and it was determined that the shortfall was actually $490. On July 17, 2012, the defendant was holding a rally at his campaign headquarters. At approximately 4:30 p.m., Williams, who was at the rally, received a telephone call from the Commission informing her of the shortfall and informing her of ways that the campaign could remedy the shortfall and qualify for the grant. When Williams announced the news to the room, the defendant, who had been standing next to her, ‘‘threw his hands up in disgust and walked out.''

         Sometime later that day, Williams discovered $500 in cash on her desk, along with contribution cards certifying that five individuals-Alfredo Serrano, Leeta Reed, Mark Bogues, Vincent Derr and Zena Galberth- had each donated $100 to the campaign. Contrary to the representations on the contribution cards, however, none of the five persons who signed the cards had donated any money at any time to the defendant's campaign. Sometime after Williams announced the campaign's shortfall to the room and before she discovered the cash on her desk, the defendant, either on his own or through the assistance of another, had approached the five signors and instructed them to sign the cards. The defendant assured them that they would not be required to donate money to the campaign. When they were finished signing the cards, they handed them back either to the defendant himself or to someone who was with the defendant.

         The following day, the campaign filed documents showing that, on July 17, 2012, it had received five separate $100 cash contributions made in the names of Serrano, Reed, Bogues, Derr and Galberth. Upon receiving the additional filing, the campaign disclosure and audit unit of the Commission submitted a recommendation that the defendant's grant application be approved. As a result of that approval, the defendant received a grant of $80, 550.[2] The defendant's campaign ultimately expended all of its grant money. The defendant was not elected to office.

         On August 23, 2012, Serrano contacted the Commission to complain that he had not been compensated for work that he had performed for the defendant's campaign. At that time, Serrano also disclosed that he had signed a document stating that he had made a contribution to the campaign when he had not in fact contributed any money. Charles Urso, the lead investigator for the Commission, followed up on the information provided by Serrano and ultimately took statements from all five individuals who had signed contribution cards at the rally on July 17, 2012.

         The defendant was subsequently charged with two counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and (4), and § 53a-8, one count of tampering with a witness in violation of General Statutes § 53a-151, and five counts of illegal practices in campaign financing in violation of §§ 9-622 (7) and 53a-8.[3] Following a jury trial, the defendant was found guilty of three counts of illegal practices in campaign financing and found not guilty of tampering with a witness. The court declared a mistrial as to the remaining counts. The court sentenced the defendant to a total effective sentence of six months imprisonment, with the sentence stayed pending appeal. This appeal followed.[4] Additional facts and procedural history will be set forth as necessary.

         The defendant claims that the trial court improperly failed to charge that, in order to find him guilty of an illegal practice in campaign financing in violation of § 9-622 (7), the jury was required to find that he ‘‘knowingly and wilfully'' violated the statute as provided in General Statutes § 9-623, and that the statutory language, ‘‘knowingly and wilfully, '' denotes that the defendant acted with specific intent. The state contends that we should decline to address this claim because the defendant waived it. In the alternative, the state argues that the trial court's charge correctly instructed the jury that it had to find that the defendant acted with general intent. The defendant responds that his claim is preserved and that he did not waive it. We conclude that the defendant's claim, although unpreserved, was not waived, and is reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We further conclude that the trial court improperly instructed the jury that in order to find the defendant guilty of the crime of illegal practices in campaign financing, it was required to find that the defendant acted with general intent.

         I

         As a threshold matter, we address the state's contention that the defendant waived his unpreserved instructional challenge. The defendant's failure to preserve his instructional challenge is clear from the record. He failed to file a request to charge, and he did not take an exception to the charge as given. Under those circumstances, we have held that a claim has not been preserved. See State v.Ramos, 261 Conn. 156, 170, 801 A.2d 788 (2002), overruled in part on other grounds by State v.Elson, 311 Conn. 726, 754-55, 91 A.3d 862 (2014).[5] We have explained that ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of ...


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