Date: 05-23-2016

Case Style: STATE OF CONNECTICUT v. KEITH CHEMLEN

Case Number: AC 37429

Judge: Eliot D. Prescott

Court: Connecticut Appellate Court

Plaintiff's Attorney: Lisa Herskowitz, senior assistant state’s attorney, Maureen Platt, state’s attorney, and Marc G. Ramia, senior assistant state’s attorney

Defendant's Attorney: Jodi Zils Gagne

Description: The defendant, Keith Chemlen, appeals from the judgment of conviction, rendered after a jury trial, of forgery in the second degree in violation of General Statutes § 53a-139 (a) (3), and larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). The defendant subsequently pleaded guilty to being a persistent serious felony offender in violation of General Statutes § 53a-40 (c), as charged in a part B information. On appeal, the defendant claims that (1) the trial court improperly excluded extrinsic evidence to impeach a state’s witness;(2)his constitutional rights to due process and a fair trial were violated by the prosecutor’s failure to correct the false testimony of a state’s witness; and (3) the court improperly denied his motion for a judgment of acquittal on the basis of insufficiency of the evidence. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. Daniel Brenes is the owner and sole officer of Global International, Inc., which is registered in Connecticut under the name of National Credit Masters. National Credit Masters performs credit repair services, including reviewing a client’s credit report, analyzing any negative information contained therein, and developing a plan to remove any negative information. National Credit Masters does not negotiate or settle debt obligations to creditors. Brenes met the defendant in 2005 or 2006 at a business meeting. Subsequent to that initial encounter, Brenes and the defendant crossed paths at bars and in the surrounding area. Although Brenes’ knowledge of the defendant was limited—he only knew the defendant’sfirstname—hecametobelievethatthedefendant wasagreatsalesman.Thus,whenthedefendantapplied for an open sales associate position at National Credit Masters in December, 2012, Brenes offered him an interview. Duringtheinterview,Brenesaskedthedefendantfor identification so that he could perform a background check. The defendant provided Brenes with a state issuedidentificationcardonwhichwasthename‘‘Keith David.’’ Brenes made a copy of the identification card and then returned it to the defendant. Brenes subsequently hired the defendant, whom he believed to be Keith David. The defendant began working at National CreditMastersinFebruary,2013.Brenesgavethedefendantatrainingmanualandinstructedhimthatthecompany e-mail account was the only e-mail account to be used to contact clients. Brenes also told the defendant that clients could not pay their fees in cash and that he was not to settle debt obligations with creditors. In June or July, 2013, several people began stopping by National Credit Masters’ office and claiming that
they were clients, although Brenes had no knowledge of them. In one instance, Brenes received a telephone call from Michelle Garcia, who claimed to be a client of National Credit Masters. Garcia told Brenes that the defendanthadarrangedforRobertNichols,anattorney andBrenes’landlord,torepresentheronadebt-defense case. Brenes arranged a meeting between himself, Garcia, and Nichols, during which Nichols informed her that he never had represented any of National Credit Masters’ clients and had not agreed to represent her. By the date of the meeting between Brenes, Garcia, and Nichols, the defendant had stopped coming into work and claimed to have a stomach virus. As time went on, the defendant failed to return Brenes’ telephone calls, and Brenes began to call clients to confer onthestatusoftheircreditrepairs.Throughthesecalls, Brenesdiscoveredthatthedefendanthadviolatedcompany procedures by charging clients for debt negotiationandsettlement,andbyofferinglegaladvice.Brenes terminated the defendant’s employment and notified the police of these revelations. Detective Randy Watts of the Waterbury Police Department spoke with Brenes, Garcia, and nine other people who had been clients of the defendant. Through these interviews, it came to light that the defendant, in contravention of company policy, had accepted payments from clients, which National Credit Masters neverreceived,incashandthroughPayPalinhisname. In exchange for these payments, the defendant had promised clients that he would negotiate and settle their debts and would remove negative information fromtheircreditreports.Suchpromisesoftenwerenot kept. In some instances, clients paid the defendant in cash or through a PayPal account linked to the defendant’s personal e-mail to remove negative information from their credit reports. The defendant sent these clients fakecredit reportsfrom apersonal e-mailaddress, showing that their credit scores had been improved, but,inactuality,theircreditreportsremainedthesame. In other instances, clients paid the defendant in cash to settle their debts. The defendant told these clients that the debts had been settled and paid, but, in actuality, the defendant never negotiated the debt amounts or paid the creditors. Additionally, all of the clients knew the defendant as ‘‘Keith’’ or ‘‘Keith David.’’ The defendant’srealnamewasnot‘‘KeithDavid’’but,rather, was ‘‘Keith David Chemlen.’’ OnAugust13,2014,inanamendedlongforminformation, the defendant was charged with two counts of forgery in the second degree in violation of § 53a-139 (a) (3),1 and one count of larceny in the third degree in violation of § 53a-124 (a) (2).2 In the amended information, the state alleged that the defendant committed forgery in the second degree by altering a state issued identification card with the intent to defraud and
deceiveBrenes,andbypossessingastateissuedidentification card that he knew to be altered with the intent to deceive Brenes. The state further alleged that the defendant committed larceny in the third degree by wrongfullyobtainingmoneyfromclientsbyfalsepromises to repair credit scores and settle debts. On August 19, 2014, a jury found the defendant guilty of all three counts. He subsequently pleaded guilty to being a persistent serious felony offender in violation of § 53a-40 (c), pursuant to a part B information. On October 10, 2014, at sentencing, the court vacated the verdict on the second count3 of forgery in the second degreeandimposedatotal effectivesentenceoffifteen yearsofincarceration,executionsuspendedafterseven years, followed by five years of probation with special conditions. This appeal followed. Additional facts will be set forth as required. I The defendant first claims that the court improperly excludedextrinsicevidencethatwouldhaveimpeached Brenes by contradicting his statement that he did not know the defendant’s last name at the time that he hired him. Specifically, he argues that he should have beenallowedtoimpeachBrenes’testimonywithextrinsic evidence of prior inconsistent statements because it related to a noncollateral matter, namely, whether he had the intent to deceive Brenes, as required to prove forgery in the second degree, if Brenes knew his last name at the time he hired him. The state responds that the court properly excluded the evidence at issue because it was unreliable, lacked authenticity, and would have confused the jury. We agree with the state. Thefollowingadditionalfactsandproceduralhistory are relevant to this claim. At trial, Brenes testified for the state that although he had met the defendant as early as 2005 or 2006, he did not know that the defendant’s last name was ‘‘Chemlen’’ at the time that he hiredhim.Rather,hebelieved,onthebasisoftheidentification card shown to him by the defendant, that the defendant’s last name was ‘‘David.’’ On cross-examination, Brenes testified that he had a postofficebox,buthehadnotauthorizedthedefendant or DK Management, LLC, a limited liability company of which the defendant was the agent, to use it. Defense counsel showed Brenes two documents, which were marked for identification purposes only, in an attempt to establish that the defendant and Brenes had been in business together as early as 2008. The first document, defense exhibit A, was the articles of organization for DK Management, LLC. The articles of organization purported to show that both the defendant, whose full namewaslisted,andBrenesweremembersofDKManagement, LLC, on March 24, 2008. The document, however, was signed only by the defendant, and Brenes
testified that he had never been a member of DK Management, LLC. The defendant did not offer the articles of organization into evidence as a full exhibit. The second document, defense exhibit B, consisted of two applications for a post office box. On one of the post office box applications, dated January 29, 2008, both DK Management, LLC, and Brenes’ name appeared. Brenes testified that he did not place DK Management, LLC, on the 2008 application. Only Brenes’ name appeared on the second post office box application, dated February 13, 2009. The defense did not ask Brenes whether he filled out either post office box application or whether his handwriting was containedoneitherapplication.Thedefendantdidnotoffer the two applications into evidence as a full exhibit at this time. After the state rested, the defendant attempted, in an often confusing fashion,4 to establish that Brenes knew the defendant’s correct last name at the time that he hired him. According to the defendant, if Brenes knew his last name, he could not have intended to deceive Brenes by providing him with an identification card containing an alias, as required to prove forgery in the second degree. The defendant sought to establish this factbyofferingthetestimonyofPaulBianca,apostmaster, and, through him, several documents relating to Brenes’ post office box. The state initially objected to the admission of the documents on the grounds of relevancy and the inadmissibility of extrinsic evidence to impeach a witness. In an attempt to lay a foundation as to the admissibility of the documents, the defendant offered the testimony of Bianca outside the presence of the jury. The documents that the defense sought to offer into evidenceweremarkedforidentificationonlyasdefense exhibits G, H, I, J, K (exhibits).5 Defense exhibit G is identical to defense exhibit B. Defense exhibit J is only the2008applicationtoopenapostofficebox.The2008 application states that the post office box is assigned toDKManagement,LLC,andwasappliedforbyBrenes. It is allegedly signed by Brenes. Defense exhibit K is the 2009 application for a post office box. The 2009 application states that the post office box is assigned to Brenes and was applied for by Brenes. It purports to be signed by Brenes. The signature on the 2009 post office box application is drasticallydifferentfromthesignatureonthe2008post office box application. When questioned concerning the two different post officeboxapplications,Biancatestifiedthathewasnot the clerk who handled either application, and he could assume only that the 2009 application was actually an application to change the lock on the post office box, notanapplicationtoopenanewpostofficebox.Bianca,
however, conceded that nothing in exhibit K supported this assumption or established who filled out the applicationorsignedit.Biancaalsostatedthatanapplication to open a post office box has two pages, and both the 2008postofficeboxapplicationandthe2009postoffice box application were missing their second page. DefenseexhibitHisthe secondpageofanelectronic document from the United States Postal Service that lists additional names that have access to a particular post office box. The names listed are Keith Chemlen, Brenes Industries Group, DK Management, LLC, and National Credit Masters. The document does not indicatewithwhichpostofficeboxtheinformationisassociated. It does indicate, however, that it is the second of two pages, and the first page was not provided. Defense exhibit I is a handwritten note that was in a post office file concerning Brenes’ post office box. The handwritten note states that Keith Chemlen is not permitted access to Brenes’ post office box. The note is not dated, and the parties agreed that it was not written by Brenes. Bianca assumed, without firsthand knowledge, that it was written by a clerk. Brenesnevertestifiedondirectorcross-examination that he had signed either post office box application orhadthelockchangedonhispostofficebox.Additionally, Brenes was never shown or questioned about the handwritten notein his postoffice file orthe electronic documentfromtheUnitedStatesPostalService.During thedefendant’sattempttohavethesedocumentsadmitted into evidence, however, the defendant argued that the 2008 post office box application, which listed DK Management, LLC, as the assignee of the post office box, could be linked to the articles of organization for DK Management, LLC, which listed both Brenes and the defendant by full name as members, and, thus, establishedthatBrenesknewthedefendant’slastname before he hired him. Throughout the defendant’s lengthy attempt to have these exhibits admitted into evidence, the state made numerous objections and arguments concerning the inadmissibility of the exhibits. The state noted multiple authenticity concerns with the exhibits. For example, Bianca testified that hehad no knowledge or documentation that could establish who filled out the 2008 and 2009postofficeboxapplicationsorwhenthehandwritten note was added to Brenes’ post office file. Both post office box applications were missing their second page. There was no evidence that the signatures on the post office box applications belonged to Brenes. The electronic printout from the United States Postal Service, defense exhibit H, contained no information linking it to Brenes’ post office box. The state further argued that even if the applications were authentic, there was no evidence admitted in the
record that linked DK Management, LLC, to both the defendant and Brenes. AlthoughDK Management, LLC, is listed on the 2008 post office box application, the defendant’s name is not. The only document that links DK Management, LLC, to the defendant is the articles of organization (defense exhibit A), which was never offered by the defendant as a full exhibit and was only signed by the defendant, and, thus, does not prove that Brenes and the defendant were both associated with DK Management, LLC. Thecourtsustainedthestate’sobjectiontotheadmission of the exhibits. Although the court agreed with the defendant’s argument that the court had discretion to admit extrinsic evidence of a prior inconsistent statement pursuant to Connecticut Code of Evidence § 6-10, it,nevertheless,heldthattheexhibitswereinadmissible because they were too confusing and lacked authenticity and reliability. The court based its holding on the factthat therewere ‘‘toomany gaps,toomany question marks, too may assumptions that would have to be made to reach a conclusion’’ that Brenes knew the defendant’s last name in 2008. We begin by setting forth our standard of review. ‘‘[I]t is well settled that the trial court’s evidentiary rulings are entitled to great deference. . . . The trial court isgiven broad latitudein ruling onthe admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion. . . . When reviewing a decision to determine whether the trial court has abused its discretion, we make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for amanifestabuseofdiscretion.’’(Citationomitted;internal quotation marks omitted.) Chief Information Officerv.ComputersPlusCenter,Inc.,310Conn.60,97–98, 74 A.3d 1242 (2013). As an initial matter, we address the defendant’s contentionthattheexhibitswereextrinsicevidenceofprior inconsistent statements.6 To be admissible as extrinsic evidence of a prior inconsistent statement under § 610 of the Connecticut Code of Evidence,7 the proffered evidencemustbeapriorstatementmadebythewitness thatcontradictssomethingthatthewitnesshastestified toattrial.See Statev. Ward,83Conn.App.377,393–94, 849 A.2d 860, cert. denied, 271 Conn. 902, 859 A.2d 566 (2004). Our Supreme Court ‘‘[has] stated that [t]he impeachment of a witness by extrinsic evidence [of a prior inconsistent statement pursuant to § 6-10 of the Connecticut Code of Evidence] is somewhat limited. Not only must the inconsistent statements be relevant and of such a kind as would affect the credibility of the witness . . . but generally a foundation should be laid atthe time of cross-examination.’’(Emphasis omitted; internal quotation marks omitted.) Chief Information Officer v. Computers Plus Center, Inc., supra, 310
Conn. 118. To be relevant, the inconsistent statement must relate to a noncollateral matter, otherwise the statement must be excluded. See State v. Diaz, 237 Conn. 518, 548, 679 A.2d 902 (1996) (extrinsic evidence is not admissible to impeach witness ‘‘by contradicting his or her testimony as to collateral matters, that is, mattersthatarenotdirectlyrelevantandmaterialtothe meritsofthecase’’[internalquotationmarksomitted]); State v. Dudley, 68 Conn. App. 405, 419, 791 A.2d 661 (‘‘[a]matterisnotcollateralifitisrelevanttoamaterial issue in the case apart from its tendency to contradict the witness’’ [internal quotation marks omitted]), cert. denied, 260 Conn. 916, 797 A.2d 515 (2002). Even if these requirements are met, the admission of extrinsic evidence to impeach is within the court’s broad discretion. See State v. Dudley, supra, 419; State v. Smith, 46 Conn. App. 285, 295, 699 A.2d 250, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997). In seeking their admission, the defendant appeared tocharacterizetheexhibitsattrialaspriorinconsistent statements, i.e., impeachment evidence, to refute Brenes’priortestimonythathedidnotknowthedefendant’s last name. On the basis of the defendant’s offer, the court ruled on the admissibility of the exhibits on the ground that they were extrinsic evidence of prior inconsistentstatementsunder§ 6-10(c)oftheConnecticut Code of Evidence. The court implicitly found that the exhibits were prior inconsistent statements on a noncollateral issue,8 and, thus, the court proceeded on theassumptionthatitwaswithinitsdiscretiontoadmit them. See State v. Dudley, supra, 68 Conn. App. 419 (courthadbroaddiscretion toadmitextrinsicevidence of prior inconsistent statement). The court specifically statedthatitwasexercisingitsdiscretiontoexcludethe exhibitsbecausetheylackedauthenticityandreliability and would have confused the jury. Not all of the exhibits, however, can be construed properly as prior statements by Brenes that contradict his testimony at trial. The only exhibit that arguably contains evidence of a prior inconsistent statement made by Brenes is the 2008 post office box application because it states that Brenes applied for a post office box for the use of DK Management, LLC. If true, this statementtendstoestablishthatBreneswasassociated with DK Management, LLC, in 2008. Brenes, however, testified that he had no connection to DK Management, LLC. Thus, the two statements contradict each other. The other exhibits contain no such potentially inconsistentstatementsmadebyBrenes.The2009postoffice box application contains no statement by Brenes that establishes that he was associated with DK Management, LLC, or knew the defendant’s last name at that time. Although the articles of organization, the handwritten note in Brenes’ post office file, and the electronic record from the United States Postal Service
contain both the defendant’s full name and Brenes’ name, they are not even purportedly signed by Brenes and, thus, cannot be classified, without more, as prior statements made by Brenes. Although not evidence of prior inconsistent statements, these exhibits are arguably relevant nonetheless to a material issue, namely, whetherthedefendanthadtheintenttodeceiveBrenes asrequiredby§ 53a-139(a)(3)ifhethoughtthatBrenes knew his name when he provided Brenes with the altered identification card. See Conn. Code Evid. § 4-1.9 Thefactthatsomeoftheexhibitsarenotpriorinconsistent statements, however, does not entirely dispose of our review of the trial court’s decision to exclude the exhibits on the basis of confusion and lack of authenticity. In exercising its broad discretion to admit evidence, whether categorized as extrinsic evidence of a prior inconsistent statement or simply as evidence relevant to a material issue, the court may exclude evidence if its probative value is outweighed by other considerations. For example, relevant evidence may be excluded if its probative value is outweighed by the confusion it would cause. See Conn. Code Evid. § 4-3;10 Ancheff v. Hartford Hospital, 260 Conn. 785, 804, 799 A.2d 1067 (2002) (‘‘[s]ection 4-3 . . . recognizes the court’s authority to exclude relevant evidence when its probative value is outweighed by factors such as confusionoftheissuesormisleadingthejury’’[internal quotation marks omitted]). ‘‘As we have stated, [o]ne of the chief roles of the trial judge is to see that there is no misunderstanding of a witness’s testimony. The judge has a duty to comprehend what a witness says asmuch asit ishisduty tosee thatthewitness communicates with the jury in an intelligible manner. A trial judgecandothisinafairandunbiasedway.Hisattempt to do so should not be a basis [for] error. Where the testimony is confusing or not altogether clear the alleged jeopardy to one side caused by the clarification of a witness’s statement is certainly outweighed by the desirability of factual understanding. The trial judge shouldstrivetowardverdictsoffactratherthanverdicts ofconfusion.’’ (Internalquotationmarks omitted.) Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 563–64, 525 A.2d 954 (1987). Furthermore, in determining whether to admit into evidence a writing, the court may consider the authenticityoftheevidence.Pursuantto§ 9-1oftheConnecticut Code of Evidence,11 ‘‘[a]uthentication is . . . a necessary preliminary to the introduction of most writings in evidence . . . . In general, a writing may be authenticatedbyanumberofmethods,includingdirect testimony or circumstantial evidence. . . . Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiaryrulesthatgovernadmissibility,suchashearsay exceptions, competency and privilege. . . . Rather, there need only be a prima facie showing of
authenticity to the court. . . . Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which ultimately will determine its authenticity. . . . The requirement of authentication . . . is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.’’ (Internal quotation marks omitted.) State v. Cooke, 89 Conn. App. 530, 548, 874 A.2d 805, cert. denied, 275 Conn. 911, 882 A.2d 677 (2005). One manner by which a document can be authenticated is by proof that the document is signed and the signature is verified either by the signer, a witness to the signing, or comparison to the alleged signer’s known signature. See Shulman v. Shulman, 150 Conn. 651, 657, 193 A.2d 525 (1963); Tyler v. Todd, 36 Conn. 218, 222 (1869). Although not all of the exhibits that the defendant sought to admit are characterized properly as evidence of prior inconsistent statements, the essence of the defendant’s argument in favor of admitting the exhibits is unaffected. The defendant argues that the exhibits should have been admitted into evidence because they were relevant to whether he had the intent to deceive Brenes, as required to prove forgery in the second degree. According to the defendant, if Brenes knew his last name at the time that he hired him, Brenes could not be deceived by the altered identification card. Contrary to the defendant’s contention, the exhibits have little to no probative value concerning whether hehadtherequisiteintenttodeceiveBrenes.Thedefendant contends that the exhibits establish that he did not intend to deceive Brenes because Brenes could not be deceived if he already knew the defendant’s name. Whether Brenes was in fact deceived, however, is not an element of forgery in the second degree in violation of § 53a-139 (a) (3). See State v. Dickman, 119 Conn. App. 581, 588–89, 989 A.2d 613, cert. denied, 295 Conn. 923, 991 A.2d 569 (2010); part III A of this opinion. The belief of the victim is immaterial under § 53a-139 (a) (3); the only intent that matters is the intent of the defendant. State v. Dickman, supra, 589. To the extent that the defendant argues that the exhibits establish that he did not have the intent to deceive Brenes because he believed that Brenes knew his last name when he hired him, the exhibits have minimal probative value. Even if Brenes knew the defendant’s last name and placed it on the electronic record and the handwritten note as early as 2008, there is no evidence that the defendant knew at the time he presented the altered identification card to Brenes that Breneshaddoneso.Noadditionalevidencewasoffered by the defendant to buttress the reliability of the exhibits or to relate them to the defendant’s alleged understanding that Brenes knew his last name when he hired him.
Evenassumingthattheexhibitshaveprobativevalue, the trial court found such value to be undermined by the exhibits’ lack of authenticity and their potential to confusethejury,and,thus,excludedthem.SeeAncheff v. Hartford Hospital, supra, 260 Conn. 804 (relevant evidence may be excluded). Significant questions regarding the authenticity of the exhibits exist. Importantly,Breneswasneverquestionedconcerningwhether he had filled out and signed the 2008 and 2009 post office box applications. Moreover, the second pages of both applications were missing. Postmaster Bianca’s testimony regarding the existence of and contrast between the two applications admittedly was based on assumptionandspeculation.Theclerkswhoprocessed the applications did not testify, and there was no evidence to establish when the handwritten note was placed in Brenes’ file. There was no other document offered by the defendant that linked Brenes, DK Management, LLC, and the defendant’s full name. Moreover, it is unclear how the exhibits all fit together, and their probative value regarding whether Brenes knew the defendant’s last name prior to hiring him is low. The defendant attempted to piece multiple documents together like a complex jigsaw puzzle in ordertoestablishthatBrenesknewthedefendant’slast namein2008.Forthepiecesofthispuzzletofittogether asthedefendantcontends,however,toomanyassumptions,speculation,andlogicalleapswererequired,none of which were supported by evidence actually offered or admitted at trial. Additionally, the defendant’s confusing attempts to link these incomplete, unauthenticateddocumentstogethernaturallyaffectedthecourt’s exerciseofitsdiscretiontoexcludethem.Justas‘‘[t]he judge[has]adutytocomprehendwhatawitnesssays,’’ the court in this case had a duty to comprehend the information contained in the exhibits to ensure that their admission would not confuse the jury. (Internal quotation marks omitted.) Farrell v. St. Vincent’s Hospital, supra, 203 Conn. 563. In sum, the court did not abuse its discretion by determiningthateveniftheexhibitshadsomeprobative value, the documents remained inadmissible because of their lack of authenticity and their likelihood to confuse the jury. Accordingly, we conclude that the court did not improperly exclude them. II The defendant next claims that his due process right toafairtrialwasviolatedbythestate’sfailuretocorrect the false testimony of a state’s witness that the state knewtobefalse.Hespecificallycontendsthatthestate knew that Brenes was aware of the defendant’s last name prior to hiring him because the state knew about the exhibits relating to Brenes’ post office box. Although the defendant concedes that he did not pre
servethis claimproperly attrial, heseeksreview under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d1188 (2015).12 For thereasons that follow, we find the record inadequate to review this claim. The following additional facts are relevant to this claim. During the defendant’s attempt to establish the admissibility of the exhibits concerning Brenes’ post office box, the court asked the defendant when he had becomeawareoftheexhibits.Thedefendantresponded that he had secured some of the documents prior to Brenes’ testimony but not all of them. The prosecutor disagreed,statingthathehadobtainedalloftheexhibits at issue from a postal inspector and had given copies of the exhibits to the defendant prior to the start of trial. The court then asked the prosecutor: ‘‘[I]s it your representation that you were in possession of [the exhibits],andaquestionwasasked[toBrenes]and[his] testimonycontradictedwhatwasin[theexhibit]?’’13The prosecutor stated that he had questioned Brenes about the exhibits and that Brenes had told him that he had no connection to DK Management, LLC, and was not aware of the handwritten note in his file at the post office. Theprosecutor alsoargued thathe believedthat Brenes testified truthfully and that the exhibits did not contradict his testimony because their authenticity neverwasestablished—specifically,Brenesnevertestified that he signed the post office box applications, the post office box applications were missing pages, and only the defendant signed the articles of organization. The rules governing our evaluation of a claim that a prosecutor failed to correct false or misleading testimonyarederivedfromthosefirstsetforthbytheUnited States Supreme Court in Brady v. Maryland, 373 U.S. 83, 86–87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). ‘‘In Brady . . . the United States Supreme Court held that the prosecution’s failure to disclose a codefendant’s statementthatexculpatedthedefendantafterthedefendant had specifically requested that statement constituted a violation of the defendant’s due process right underthefourteenthamendment.[T]hesuppressionby the prosecution of evidence favorable to an accused upon request violates due process where the evidence is materialeither toguilt orto punishment,irrespective ofthegoodfaithorbadfaithoftheprosecution.’’(Footnote omitted; internal quotation marks omitted.) State v.Cohane,193Conn.474,495,479A.2d763,cert.denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). ‘‘In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence wasmaterial.’’ State v. Simms,201 Conn.395, 405, 518 A.2d 35 (1986). Bradyanditsprogenyhavebeenextendedtoinclude
circumstances in which the state knowingly uses perjured testimony to obtain a conviction. United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). As our Supreme Court has stated, ‘‘the knowing presentation of false evidence by the state is incompatible with the rudimentary demands of justice. . . . Furthermore, due process is similarly offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears. . . . Regardless of the lack of intent to lie on the part of the witness . . . the prosecutor [must] apprise the court when he knows that his witness is giving testimony that is substantially misleading. . . . A new trial is required if the false testimony could . . . in any reasonable likelihood haveaffectedthejudgmentofthejury.’’(Citationsomitted; internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 560–61, 710 A.2d 1348 (1998). With these legal principles in mind, we turn to whether this claim is reviewable under Golding. ‘‘The first two [prongs of Golding] involve a determination of whether the claim is reviewable . . . .’’ (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338,360, 857A.2d808(2004), cert.denied,546 U.S.845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). Under the first prong of Golding, for the record to be adequate for review,therecordmustcontainsufficientfactstoestablish that a violation of constitutional magnitude has occurred. State v. Brunetti, 279 Conn. 39, 55–56, 901 A.2d 1 (2006) (‘‘we will not address an unpreserved constitutionalclaim[i]fthefactsrevealedbytherecord are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred’’ [internal quotation marks omitted]), cert. denied, 549 U.S. 1212, 127 S.Ct.1328,167L.Ed.2d85(2007).Weconcludethatthe defendant’s claim fails under the first prong of Golding because the record is inadequate for review on the ground that it contains no factual findings by the court as to whether Brenes testified falsely and, if he did, whether the state knew about it. Moreover, in the absence of any such factual findings by the trial court, the facts in the record are insufficient, unclear, and ambiguous as to whether a Brady violation has occurred. On the basis of facts similar to those in the present case, our Supreme Court in State v. Brunetti, supra, 279 Conn. 42–43, declined to review a constitutional claim on the ground that the record was inadequate for review under the first prong of Golding. In Brunetti, the defendant’s mother declined to sign a consent to search form that would allow the police to search the family home, but the defendant’s father signed the consent to search form. Id., 42. At a hearing on a motion to suppress the evidence obtained during the search of the family home, the defendant argued only that the search was unlawful because the father’s consent to the search had been coerced. Id., 48–49.
On appeal, the defendant claimed for the first time that there was no consent to search the home because his mother’s refusal to sign the consent to search form, which had been admitted into evidence at the suppression hearing, established that she had refused to consent to the search. Id., 52–53. In declining to review the defendant’s Golding claim, the court found that the recordlackedacriticalfactualfindingbythetrialcourt regarding consent to search because the refusal to sign a consent to search form is not necessarily the equivalent to refusing consent to search. Id., 56. Our Supreme Court concluded that permitting Golding review of this unpreservedclaimwouldbeunfair tothestatebecause the state was never put on notice that it was required to establish that the mother had consented to the search. Id., 59. Because the state was not granted the opportunity to present evidence that the mother consented to the search and the trial court did not make a finding as to whether she did so, our Supreme Court held that, pursuant to the first prong of Golding, the recordwasinadequatetoreviewthedefendant’sunpreserved claim. In the present case, because the defendant failed to raise this claim at trial, the record is silent with respect to two factual predicates necessary to establish his claim on appeal, namely, that Brenes testified falsely and the state knew or should have known that Brenes testified falsely. The defendant never sought any determinationfromthetrialcourtthatBrenestestifiedfalsely and the state knew or should have known about it. Additionally, because the defendant did not pursue a Brady claim at trial, the state never was put on notice that it was required to present evidence regarding whether Brenes testified falsely and, if he did, whether the state knew his testimony was false. See State v. Polanco, 165 Conn. App. 563, 575–76, A.3d (2016)(holdingrecordinadequateforreviewunderfirst prong of Golding if state not put on notice of claim madeon appeal,and,thus, notgivenopportunity toput on evidence regarding claim because record did not contain adequate facts and state prejudiced by lack of notice). The defendant, nonetheless, contends that the record contains evidence—the excluded exhibits concerning Brenes’ post office box—that supports his assertion, and he merely asks this court to draw a reasonable inference from that evidence. In essence, the defendant is asking this court to supplant the role of the jury or the trial court and find facts by weighing evidence and drawing inferences therefrom. ‘‘We, as a reviewing court, [however] cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found . . . .’’ (Internal quotation marks omitted.) State v. Kelly, 95 Conn. App. 31, 37, 895 A.2d 801 (2006). Because it is the function of the trial court, not this court, to make factual findings;
see State v. Satchwell, supra, 244 Conn. 562; the defendant was required to seek a determination from the trial court of his fact-based claim that the state failed to correct testimony that it knew to be false. Because thedefendantneverdidso,therecordcontainsnofindingstosupporthisassertion.Becausesuchfindingsare required to establish the defendant’s Brady violation claim, we conclude that the defendant’s claim fails under the first prong of Golding, and, thus, we decline to review it. III The defendant’s final claim on appeal is that because the evidence was insufficient to support his conviction of forgery in the second degree in violation of § 53a139 (a) (3) and larceny in the third degree in violation of § 53a-124 (a) (2), the court improperly denied his motion fora judgmentof acquittal.Concerning hisconviction of forgery in the second degree, the defendant contends that there was insufficient evidence to establish that he intended to deceive Brenes and that he alteredastateissuedidentificationcard.Concerninghis conviction of larceny in the third degree, the defendant contends that there was insufficient evidence in the record to establish that a theft had occurred. We are not persuaded. ‘‘It is well settled that a defendant who asserts an insufficiency of the evidence claim bears an arduous burden. . . . [F]or the purposes of sufficiency review . . . we review the sufficiency of the evidence as the case was tried . . . . [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial. . . . In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative forceoftheevidenceestablishedguiltbeyondareasonable doubt . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . ‘‘[T]he jury must find every element proven beyond a reasonabledoubt in orderto find thedefendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable andlogical forthe juryto conclude thata basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendantguiltyofalltheelementsofthecrimecharged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact . . . but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence [that] it deems to be reasonable and logical. . . . ‘‘[O]nappeal,wedonotaskwhetherthereisareasonable view of the evidence that would support a reasonable hypothesisof innocence. We ask,instead, whether thereisareasonableviewoftheevidencethatsupports the jury’s verdict of guilty.’’ (Citations omitted; internal quotation marks omitted.) State v. VanDeusen, 160 Conn. App. 815, 822–23, 126 A.3d 604, cert. denied, 320 Conn.903,127A.3d187(2015).Inviewingtheevidence, ‘‘[i]f [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and isusableasprooftotheextentoftherationalpersuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. . . . [T]herefore . . . appellate review of the sufficiency of the evidence . . . properly includes hearsay evidence even if such evidence was admitted despite apurportedly validobjection. Claimsof evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error.’’ (Internal quotation marks omitted.) State v. Eubanks,133Conn.App.105, 113–14,33A.3d876,cert. denied, 304 Conn. 902, 37 A.3d 745 (2012). A The defendant claims that there was insufficient evidence to establish all the elements of forgery in the second degree in violation of § 53a-139 (a) (3), specifically, that he intended to deceive Brenes and that he altered an identification card. The state responds that thedefendantreliesuponevidencenotadmittedattrial to support his argument that he did not have the requisite intent, and that the evidence admitted at trial supports the jury’s finding of intent and that he altered an identification card. We agree with the state. Thefollowingadditionalfactsandproceduralhistory arerelevanttoresolvethisclaim.AtthetimethatBrenes interviewed the defendant for the open sales associate position at National Credit Masters, the defendant provided Brenes with an identification card bearing the name ‘‘Keith David.’’ Brenes made a photocopy of the identification card (photocopy) and then returned it to the defendant. At trial, Brenes testified that prior to interviewing
the defendant, he did not know the defendant’s last nameandthataftertheinterview,hebelievedthedefendant’s last name to be ‘‘David.’’ Brenes further testified thathedidnotaltertheidentificationcardorthephotocopy in any way. The state offered the photocopy into evidence. The photocopy was admitted as a full exhibit without objection by the defendant. The photocopy shows that the identification card was issued on April 17, 2002, and expired on July 17, 2006. Also admitted into evidence as a full exhibit without objection was a printout of an electronic record (electronic record) from the Department of Motor Vehicles (department) that establishes that the defendant was issued an identification card on April 17, 2002, and that it expired on July 17, 2006, but the name on the identificationcardwas‘‘KeithDChemlen.’’MaryGraziosa-Norton,ananalystwiththedocumentintegrityunit at the department, testified that the photocopy and the electronic record were comparable except for the last name. To convict the defendant of forgery in the second degree, the state had to prove beyond a reasonable doubt that: ‘‘with intent to defraud, deceive or injure another, he falsely [made], complete[d] or alter[ed] a written instrument . . . which is or purports to be, or which is calculated to become or represent if completed . . . (3) a written instrument officially issued or created by a public office, public servant or governmental instrumentality . . . .’’ (Emphasis added.) General Statutes § 53a-139 (a). The defendant first argues that there is insufficient evidence to establish that he altered the identification card. Specifically, he contends that because the state offeredonlyaphotocopyoftheallegedlyalteredidentification card, rather than the actual identification card itself, the record lacks sufficient evidence to establish that he altered the identification card. He further contends that Brenes altered the photocopy. The state responds that because the defendant did not object to the admission of the photocopy, it was admitted into evidence as a full exhibit and could be used for the substantive purpose of establishing that the defendant altered the identification card. We agree with the state. As defined by General Statutes § 53a-137 (6), ‘‘[a] person ‘falsely alters’ a written instrument when (A) such person, without the authority of any person entitled to grant it, changes a written instrument, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter or transposition of matter or in any other manner, so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer . . . .’’
In determining the sufficiency of the evidence, we may consider no more and no less than the evidence admittedattrial.If‘‘evidenceisreceivedwithoutobjection, it becomes part of the evidence in the case, and isusableasprooftotheextentoftherationalpersuasive poweritmayhave.’’(Internalquotationmarksomitted.) State v. Eubanks, supra, 133 Conn. App. 113. In the presentcase,thedefendantdidnotobjecttotheadmissionofthephotocopyintoevidence,nordidheobjectto theadmissionoftheelectronicrecord.Bothdocuments were admitted without limitation and the jury weighed them as it deemed appropriate.14 The jury also reasonably may have credited Brenes’ testimony that he did not alter the identification card or the photocopy. The weight to afford evidence is within the exclusive purview of the trier of fact, and we must defer to the jury’s credibility assessment. See State v. Smith, supra, 46 Conn. App. 296–97. On the basis of the testimony and evidenceadmittedintoevidenceattrial,thejuryreasonably could have concluded that (1) the photocopy was a true and correct original of the identification card presentedtoBrenesbythedefendant;(2)theidentificationcardpresentedtoBreneshadbeenalteredbecause it had a different last name than the identification card issued by the department; and (3) the defendant had the identification card in his possession, thereby giving him the opportunity and motive to alter it. Thus, the jury further reasonably could have concluded that the defendant altered the identification card. The defendant next argues that the evidence in the record is insufficient to establish that he had the intent to defraud or deceive Brenes. Specifically, the defendant contends that Brenes knew his last name prior to interviewing him, and, thus, Brenes could not be deceivedbythealteredlicense.Thestaterespondsthat no evidence was admitted at trial to support the defendant’s contention, and, even if Brenes knew the defendant’s last name when he interviewed him, Brenes’ knowledge of that fact is immaterial to the defendant’s intent. We agree with the state. ‘‘It is well settled . . . that the question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, aperson’sstateofmindisusuallyprovenbycircumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide. . . . Intent may be inferred from circumstantial evidence such as the events leading to and immediately following the incident, and the jury may infer that thedefendantintendedthe naturalconsequencesofhis
actions.’’ (Citation omitted; internal quotation marks omitted.) State v. Dickman, supra, 119 Conn. App. 588. ‘‘It is important to note that the specific intent element of the forgery statute is satisfied by an intent to defraud as well as an intent to deceive. The ordinary meaningofthephrase‘todeceive’is‘tocausetobelieve the false. . . . Deceive indicates an inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine . . . . In contrast, ‘to defraud’ means‘totakeorwithholdfrom(one)somepossession, right, or interest by calculated misstatement or perversion of truth, trickery, or other deception.’ ’’ (Citations omitted.) State v. Yurch, 37 Conn. App. 72, 80–81, 654 A.2d 1246, appeal dismissed, 235 Conn. 469, 667 A.2d 797 (1995). Thedefendant’sargumentfailsfortworeasons.First, § 53a-139, like General Statutes § 53a-140, does not address the state of mind of the victim of forgery in the second degree. In other words, whether the victim was in fact deceived is not an element of the offense. State v. Dickman, supra, 119 Conn. App. 589. ‘‘The statute sets forth the elements of the crime, including the intent of the accused. Whether an accused, in this case the defendant, was successful in an attempt to deceive is not the issue.’’ Id. Thus, whether Brenes knew the defendant’s last name is immaterial to the defendant’s intent. The defendant argues that the jury reasonably could have inferred that because Brenes knew his last name at the time that Brenes hired him, the defendant could not have intended to deceive Brenes. The jury, however, reasonably could have inferred from the evidence in the record that the defendant would not have presented Brenes with an altered identification card if he thought that Brenes knew his last name. The jury reasonably could have inferred that because the defendant provided Brenes with an altered identification card with a fake last name, he intended to deceive Brenes. Second, the evidence that the defendant relies upon to establish that he did not intend to deceive Brenes— the exhibits concerning Brenes’ post office box—were not admitted into evidence. In evaluating a sufficiency of the evidence claim, we can review no more and no lessevidence thanthat whichwas admittedattrial. See State v. VanDeusen, supra, 160 Conn. App. 822. Other than the excluded exhibits concerning Brenes’ post office box, the defendant refers us to no evidence that was admitted at trial that may establish that he did not intend to deceive Brenes because he believed that Brenes knew his last name at the time he interviewed him. Accordingly, the jury reasonably concluded that the defendant intended to deceive Brenes. In sum, the evidence in the record is sufficient to supportthejury’sreasonableconclusionthatthedefendant altered the identification card and intended to
deceiveBrenes.Accordingly,weconcludethat,viewing the evidence in the light most favorable to sustaining the verdict, the jury reasonably concluded that the cumulative force of the evidence established the defendant’s guilt of forgery in the second degree in violation of § 53a-139 (a) (3) beyond a reasonable doubt. B The defendant next claims that the evidence was insufficient to establish all the elements of larceny in thethirddegreeinviolationof§ 53a-124(a)(2).Specifically, he argues that there is no evidence to support the jury’s finding that he stole money from Damien Dawes, Edwin Garcia, or David Brown.15 He contends thatbothDawesandEdwinGarciapaidafeetoNational Credit Masters and that their credit was fixed by National Credit Masters. As for Brown, the defendant contends that Brown paid the fee to National Credit Masters, and subsequently requested that his money be returnedpriortothe defendant’shavinganopportunity to work on the case. Although not explicitly stated, the defendant’s argument on appeal encompasses the argument that he made at trial in support of his motion for a judgment of acquittal. At trial, he argued that becausehewasanemployeeofNationalCreditMasters atthetimethatheacceptedthemoneyfromtheclients, the money that he allegedly stole was the property of National Credit Masters, not the clients, and, thus, he did not steal from Dawes, Edwin Garcia, or Brown. The jury reasonably could have found the following additionalfacts.Dawespaidthedefendant$220incash inexchangeforthedefendant’spromisetoremovenegative information on his wife’s credit report in order for Dawes and his wife to qualify for a mortgage to buy a house. The defendant had told Dawes that it could takesixtytoninetydaystorepairhiswife’screditscore. After sixty days, Dawes contacted the defendant and wastoldthathiswife’scredithadbeenrepaired.Dawes and his wife proceeded to apply for a mortgage but did not qualify because nothing had been done to fix his wife’s credit score and it remained too low to qualify. Because Dawes and his wife were not able to get a mortgage in time, they could not close on the property that they had contracted to purchase. Dawes met with Brenes to discuss the defendant’s actions, and Brenes offeredto repairhis wife’scredit freeofcharge. Brenes did not receive the $220 fee that Dawes paid to the defendant. The defendant had told Brown that he would repair Brown’screditandwouldnegotiatesettlementsonspecific debts in exchange for a fee of $375. Brown paid thedefendantthe$375feethroughPayPaltoanaccount for Sky Agency, which was associated with an e-mail address of kchemlen@gmail.com. The defendant informed Brown that it could be a couple of weeks to a couple of months before he would see results. The
defendantlatertoldBrownthathehadreducedthrough negotiations a debt that Brown owed to Bolton Veterinary Clinic from $575 to $82, and instructed Brown to pay the defendant the $82 through PayPal to the Sky Agency account in order that the defendant could pay BoltonVeterinaryClinic.Brownpaidthedefendant$82 through PayPal. The defendant similarly told Brown that he had settled a debt owed to AT&T for $37, and instructed Brown to send him the money through PayPal, which Brown did. Brown subsequently received a telephone call from Brenes, notifying him that the defendant had accepted money from clients without doing the work or turning over the payments to National Credit Masters. After this telephone call concluded, Brown called the defendant, but there was no answer. Brown then contacted Bolton Veterinary Clinic, which informed him that his debtneverhadbeensettled,norpaid.Brownproceeded toobtainacopyofhiscreditreportanddiscoveredthat none of his debts had been removed. Brown contacted PayPal and requested, and received, a refund of all the funds that he had paid to the defendant. Brenes did not receive the funds that Brown paid to the defendant. Edwin Garcia paid the defendant $275 in cash in exchangeforthedefendanttorepairhiscredit,particularly to dispute three negative instances listed on his creditreport.Afterpaying thedefendant,EdwinGarcia waited for an update from the defendant. When Edwin Garcia did not hear from the defendant, he left voicemail messages for him. Edwin Garcia obtained a copy of his credit report and discovered that his credit had notbeenrepaired.EdwinGarciathencontactedBrenes. Breneshadnotreceivedthe$275feethatEdwinGarcia paid to the defendant but offered to repair Edwin Garcia’s credit without charge. ‘‘Apersonisguiltyoflarcenyinthethirddegreewhen he commits larceny, as defined in section 53a-119, and . . . (2) the value of the property or service exceeds two thousand dollars . . . .’’ General Statutes § 53a124 (a). Pursuant to § 53a-119: ‘‘A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, hewrongfullytakes,obtainsorwithholdssuchproperty from an owner. . . .’’ Larceny includes, but is not limitedto,obtainingpropertyby falsepromises.‘‘Aperson obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or does not believe that the third person intends to engage in such conduct. In any prosecution for larceny based upon a false promise, the defendant’s intention or belief that the promise would not be performed may not be established by or inferred from
the fact alone that such promise was not performed.’’ General Statutes § 53a-119 (3). ‘‘Our courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.’’ (Internal quotation marks omitted.) State v. Friend, 159 Conn. App. 285, 294, 122 A.3d 740, cert. denied, 319 Conn. 954, 125 A.3d 533 (2015). ‘‘An ‘owner’meansanypersonwhohasarighttopossession superior to that of a taker, obtainer or withholder.’’ General Statutes § 53a-118 (a) (5). The defendant does not dispute whether he had the requisite intent to deprive an owner of property. Instead, he disputes only whether a theft in fact occurred because, according to his claim, the alleged victims received in kind services in exchange for their payment of funds. Specifically, he contends that in all three instances, a fee was paid to National Credit Masters and that National Credit Masters repaired each client’s credit report. Concerning Dawes and Edwin Garcia,hecontendsthattheypaidNationalCreditMasters a fee to fix their credit scores and National Credit Masters fixed their credit scores, and, thus, no theft occurred. Concerning Brown, he contends that Brown paidNationalCreditMastersafeetofixhiscreditscore but because he was not willing to wait a few months for the defendant to do the work, he requested and received a refund of this fee, and, thus, no theft occurred. Theevidenceintherecordsupportsthejury’sfinding that the defendant engaged in a scheme to defraud clients by promising, although never intending to do so, that he would repair their credit scores and settle debts in exchange for a fee. From the evidence in the record, the jury reasonably could have found that the defendant lied to Dawes, Edwin Garcia, and Brown about repairing their credit scores for the purpose of wrongfully taking funds from them. The jury further reasonablycouldhavefoundthatthedefendantdidnot give these funds over to National Credit Masters, but kept these funds for himself, and, thus, intended to depriveDawes,EdwinGarcia,andBrownoftheirfunds permanently without their consent. Although Dawes, EdwinGarcia,andBrownpaidthefeestothedefendant with the expectation that the fees would be paid to National Credit Masters, the defendant’s employer did not receive these fees. To find that the defendant did not steal their money because Brenes offered to repair their credit without charge would reward the defendant for Brenes’ attempts to right the wrong that the defendant caused. Additionally, the refund that Brown received from PayPal does not negate the fact that the defendant stole
money from him. If we accepted the defendant’s logic, any time a defendant committed credit card fraud and the victim received a refund from his or her bank, the defendant would be alleviated of criminal responsibility. To the extent that the defendant’s argument also implicitly includes the argument that he made at trial in support for his motion for a judgment of acquittal— that the owner of the stolen funds was National Credit Masters and not the clients—we similarly are not persuaded. According to the defendant, once the clients handed the money over to the defendant, National Credit Masters owned it and, thus, the defendant stole from his employer, not Dawes, Edwin Garcia, and Brown. Thislogic, however,would allowthe defendant to benefit from his false promises and lies. The state must establish only that the defendant wrongfully caused the transfer of the property from the owner to the defendant. See State v. Friend, supra, 159 Conn. App. 294. In this case, the defendant did this by falsely representing to Dawes, Edwin Garcia, and Brown that he would fix their credit scores in exchange for certain fees. The defendant conducted his scheme out of his employer’s office, adding apparent legitimacy to it. Using his employer, however, as a means to deceive people to pay money does not lessen the fact that he stole money from Dawes, Edwin Garcia, and Brown. Although National Credit Masters has been victimized aswellbythedefendant’sactions,itwasDawes,Edwin Garcia, and Brown from whom the defendant stole money.

Outcome: In sum, after reviewing the record before us, the jury reasonably found that the defendant wrongfully took property from Dawes, Edwin Garcia, and Brown without their consent. Accordingly, in viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably concluded that the cumulative force of the evidence established the defendant’s guilt of larceny in the third degree in violation of § 53a-124 (a) (2) beyond a reasonable doubt.

The judgment is affirmed.

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