STATE OF CONNECTICUT v. MARK HAYWARD

Case Number: AC 36257

Judge: Socrates Mihalakos

Court: Superior Court in Connecticut

Plaintiff's Attorney:

Adam E. Mattei, assistant state’s attorney, John C. Smriga, state’s attorney, and Cornelius P. Kelly, supervisory assistant state’s attorney

Defendant's Attorney:

Matthew C. Eagan

Michael S. Taylor

James P. Sexton

Description: The defendant, Mark Hayward, appealsfromthejudgmentofconviction,renderedafter a jury trial, of larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (2). On appeal,thedefendantclaimsthattherewasinsufficient evidence to prove beyond a reasonable doubt that he intended to permanently deprivethe victim of his property. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. The victim, Ronald Runk, met the defendant in September, 2008. After the victim told the defendant that he had written two books and recorded music, the defendant claimed that he was in the business of marketing and distributing books like those of the victimandthathewasinterestedinsellingrecords.Consequently, the defendant and the victim entered into a written agreement whereby the defendant agreed to market one of the victim’s books. The defendant also became involved in selling the victim’s record. In December, 2008, the defendant and the victim discussed the defendant’s limited liability company, Mark IGroup, whichwasin thebusinessof marketingcorporate gifts. Following these discussions, the victim agreed to invest $34,000 in the Mark I Group. Shortly thereafter, the defendant met with the presidentofSteinerDirect,anationwidesportsmemorabilia company. InSeptember, 2009,after developinga prototypeofakeychainfilledwithdirtfromYankeeStadium, the defendant and Steiner Direct entered into a formal agreement for the manufacturing and selling of keychains. The defendant informed the victim of the agreement. Beginning in February, 2009, the defendant began to ask the victim for money beyond the $34,000 investment.1 In an e-mail dated February 12, 2009, the defendant asked the victim for $2500 to market the victim’s book. The victim wired $2500 to the defendant’s Mark I Group account. In an e-mail dated February 19, 2009, the defendant asked the victim for $6500, which he claimed was needed to pay backdated taxes on his BarclaysBankaccountcontainingover$1.2millionand to pay for airfare so that the defendant could travel to London to access the funds. The defendant stated that the $6500 loan would be a repayable loan against the Barclays Bank funds. The victim wired $6500 to the Mark I Group account. In an e-mail dated February 25, 2009,thedefendantaskedthevictimfor$3200,claiming that the bank gave the defendant the wrong details and that the amount needed to pay the taxes was $6700. The victim wired $3200 to the Mark I Group account. Sometime after the February 25, 2009 e-mail, the defendant showed the victim a letter purporting to be from Carl Hynes, the Premier Operations Director of
International Accounts at Barclays Bank. Dated April 4,2009,theletterstatedthattheBarclaysBankaccount contained $1,223,000 and that an advance of $30,000 was to be wired to the Mark I Group account on May 2, 2009. On April 11, 2009, the defendant informed the victim thatheneeded$2750becausethedefendanthadmiscalculated the mold cost of the keychains, and, therefore, hewasshort$2750.Thedefendantstatedthathewould give the victim a check for $2750, dated May 3, 2009, when he expected the $30,000 from his Barclays Bank account to clear. The victim wired $2750 to the Mark IGroupaccount.OnApril16,2009,thedefendantasked the victim for $3850, stating that the defendant had not accountedforthegiftboxforthekeychains.Thevictim wired $3850 to the Mark I Group account. On April 23, 2009, the defendant asked the victim for $6000, stating that he needed the money to start promoting the keychains and to eat until funds arrived. The defendant also promised the victim a further 5 percent in the keychain deal because of the support the victim had given him. The victim wired $6000 to the Mark I Group account. Sometime before May 7, 2009, the victim asked the defendantforcollateralforthemoneylent.Inresponse, the defendant gave the victim a pearl necklace, five paintings, and a clock. A jeweler appraised the pearl necklaceat$1200.Althoughnotappraised,thepaintings were examined by an employee of a New York City galleryandweredeterminedtobeworthapproximately $2000. Sotheby’s, Inc. determined that the clock, which the defendant stated was from Prince Juan Carlos of Germanyand potentiallyquitevaluable, wasworthless. On May 7, 2009, the defendant asked the victim for $7000, stating that he needed the funds for a business trip. The defendant also stated that he would cover the amount loaned as soon as he returned from his trip. The victim wired $7000 into the defendant’s personal bankaccount.Onthesamedayasthee-mail,thedefendant purported to receive a second letter from Hynes at Barclays Bank. The letter stated that the $30,000 transfer from the Barclays Bank account was delayed. The defendant showed the victim the letter. On June 9, 2009, the defendant asked the victim for $3600, stating that he needed the money to close the Barclays Bank account. The defendant also stated that this would be the last loan for which he would ask, and that he was aware of his obligation to the victim and wouldrepayhim.Thevictimwired$3600intothedefendant’s personal bank account. On July 20, 2009, the defendant asked the victim for $7500, stating that he needed the money for working capital. In this e-mail, the defendant also reassured the victim that he would bring a Barclays Bank check for 35,000 sterling, the equivalent of $57,750. The victim wired $7500 to an
account for Field of Dreams, LLC, of which the defendant was the chief operating officer. Thereafter, the defendant gave the victim a check for 35,000 British pounds,datedAugust8,2009,onBarclaysBankstationary. In addition, the defendant showed the victim another letter from Barclays Bank, dated July 17, 2009, stating that the defendant could access the funds. The victim lent the defendant a total of $50,100. By lateNovember,2009,thevictimhadbecomesuspicious and called Barclays Bank in London. He was put in touch with the bank’s fraud investigation group, which determined that Barclays Bank never sent the three letters and that Hynes did not author them.2 Moreover, Barclays Bank determined that the check for 35,000 British pounds was not genuine. The victim told the defendant that he had learned that the letters were false. Thevictimattemptedtocollectontheloanof$50,100; on more than one occasion, the defendant agreed to repay part of the loan by a certain date, but the defendant never made any payment. On February 4, 2010, the defendant proposed a three stage repayment plan starting on March 5, 2010, but, again, no payment was made. Yet, in February, 2010, the defendant, through Field of Dreams, LLC, purchased $13,750 worth of keychains.Attheendof2010,afternotreceivinganyrepayment, the victim went to the Fairfield Police Department. The defendant was arrested on January 14, 2012, and charged with larceny in the first degree in violation of §§ 53a-1193 and53a-122 (a) (2),4 and forgery inthe third degree in violation of General Statutes § 53a-140.5 With regardtothelarcenycharge,thedefendantwascharged specifically on the theories of obtaining property by false pretenses6 and obtaining property by false promise.7 Followingajurytrial, thedefendantwasconvicted of larceny in the first degree. The trial court sentenced the defendant to seven years incarceration, execution suspendedaftereighteenmonths,followedbyfiveyears of probation. In addition, the court ordered the defendant to pay the victim restitution in the amount of $50,100, $4975 of which was due within ten days of the order, and the remaining $45,125 of which was to be paid in monthly installments during the probation period. Additional facts will be set forth as necessary. The defendant claims that there was insufficient evidence to support his conviction of larceny in the first degree. Specifically, he contends that, although he fraudulently obtained $50,100 from the victim, the jury lacked sufficient evidence to find beyond a reasonable doubtthatthedefendantintended todeprivethevictim of his money permanently.8 In support of his argument, the defendant points to the state’s failure to offer evidence that he did not use the money to advance a legitimate business venture and that he did not intend
to pay the victim back from the profits generated by the business. We disagree. We first set forth our standard of review and the relevant law. ‘‘The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if thereissufficientevidencetosupportthejury’sverdict. . . . In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and thechoosingamongcompetinginferencesarefunctions withintheexclusiveprovinceofthejury,and,therefore, we must afford those determinations great deference. . . . ‘‘Wenotethatthejurymustfindeveryelementproven beyond a reasonable doubt in order to find the defendant 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 and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permittedtoconsiderthefactprovenandmayconsider itincombinationwithotherprovenfactsindetermining whetherthecumulativeeffectofalltheevidenceproves the defendant guilty of all the elements of the crime charged 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 [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or factsestablishedbytheevidenceitdeemstobereasonable and logical. . . . ‘‘Finally, [as] we have often noted, proof beyond a reasonabledoubtdoesnotmeanproofbeyondallpossible doubt . . . nor does proof beyond reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of
guilty.’’ (Citation omitted; internal quotation marks omitted.)Statev.Sam,98Conn.App.13,32–34,907A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006). ‘‘A person commits larceny when, with intent to deprive another of property or to appropriate the same tohimselforathirdperson,hewrongfullytakes,obtains or withholds such property from an owner.’’ General Statutes § 53a-119. ‘‘To ‘deprive’ another of property means (A) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (B) to dispose ofthe propertyin sucha manneror undersuch circumstances as to render it unlikely that an owner will recover such property.’’ General Statutes § 53a118 (3). ‘‘Connecticut 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. . . . Because larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. . . . Larceny involves both taking and retaining. The criminal intent involved in larceny relates to both aspects. The taking must be wrongful, that is, without color of right or excuse for the act . . . and without the knowing consent of the owner. . . . The requisite intent for retention is permanency.’’ (Internal quotation marks omitted.) State v. Flowers, 161 Conn. App. 747, 752, 129 A.3d 157 (2015), cert. denied, 320 Conn. 917, 131 A.3d 1154 (2016). ‘‘Intent may be inferred by the fact finder from the conduct of the defendant.’’ State v. Kimber, 48 Conn. App. 234, 240, 709 A.2d 570, cert. denied, 245 Conn. 902, 719 A.2d 1164 (1998). In the present case, our review of the record in the light most favorable to sustaining the verdict discloses that sufficient evidence existed from which the jury could have found beyond a reasonable doubt that the defendantcommittedlarcenyinthefirstdegree.Specifically, the record reveals sufficient circumstantial evidencethat,takentogether,stronglysupportsthefinding that the defendant acted with the requisite intent to deprive the victim of his property permanently. The defendant admitted that he fraudulently obtained the money from the victim, stating that he ‘‘used deceptive means to secure funds from [the victim].’’ Such deceptive means included presenting the victim with three falselettersfromBarclaysBank.Theselettersindicated thatanaccountatthebankhadabalanceof$1,223,000. The account, however, did not have any money, but rather had a negative balance due to the fact that the defendant never made any deposits and never paid the
maintenance fees charged to the account.9 The defendant argues that the falsity of the letters confirms only that his finances were not what he said they were, but that they do not touch on his intent. The jury, however, is entitled to bring its common sense and experience into the courtroom. See State v. Flowers,supra, 161Conn.App. 757.Thejury reasonablyand logically could have concluded that, by falsely indicating through the letters that he had substantial funds, the defendant suggested thathe could and would repay thevictim,and,therefore,convincedthevictimtotransfer money. In light of this pattern of deception, the jury reasonably could have found that the defendant gained control of the victim’s money with the intent to deprive the victim of it permanently. Moreover, the defendant never repaid the victim any of the $50,100, despite the victim’s requests. See State v. Kimber, supra, 48 Conn. App. 240–41 (withdrawing money from account without permission and ignoring requests to return money is sufficient evidence from which jury could infer that defendant never intended to repay money). Outside of some collateral and a worthless check for 35,000 British pounds, the defendant only spoke of repayment, and mere words are insufficient to support the claim that the defendant actually intended to repay the victim. See State v. Torres, 111 Conn. App. 575, 587–88, 960 A.2d 573 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009) (voluntarily offering to repay forged check is not sufficient for jury reasonably to find that defendant acted in good faith). Furthermore, after the defendant had accrued a loan withthevictimandpromisedrepayment,thedefendant, through Field of Dreams, LLC, paid $13,750 for keychains. Despite having the means to make such a substantial purchase, the defendant did not attempt any repayment to the victim. In fact, the victim still had not been repaid any part of the $50,100 at the time of trial, whichoccurredthreeandone-halfyearsafterthevictim confronted the defendant about the false letters and demanded repayment. See State v. Pulley, 46 Conn. App. 414, 418, 699 A.2d 1042 (1997) (‘‘[t]he conduct of the defendant subsequent to [receipt of money from victim] may be taken into consideration by the jury in determining [whether] the defendant had the intent to steal when he received the money from victim’’). The jury, therefore, reasonably could have found, on the basis of the defendant’s pattern of deceitful conduct and the defendant’s lack of effort to repay the victim within three and one-half years, that the defendant intended to deprive the victim of his property permanently. The defendant further argues, however, that the record indicates that he would repay the victim once the business was successful and profitable. To support
his claim, the defendant relies on e-mail communications from the victim to the defendant and on the victim’s testimony. Although the evidence indicates that the victim supported the defendant’s efforts to make the business successful, these encouraging statements do not indicate that the defendant intended to repay the money. See State v. Vars, 154 Conn. 255, 261, 224 A.2d 744 (1966) (‘‘the offense is larceny if the owner ofgoodspartswiththepossessiononly,foraparticular purpose, and the person who receives the possession avowedly for that purpose has a fraudulent intention to make use of it as the means of converting the goods to his own use, and does so convert them, for in such case the fraud supplies the place of the trespass in the taking’’[internalquotationmarksomitted]).Rather,the statements indicate only that the victim fell prey to the defendant’s deception. The jury reasonably could have foundthatthedefendant’semptypromisestothevictim were further circumstantial evidence supporting the conclusion that the defendant did not intend to repay the victim.10

Outcome: