Opinion
No. CR-04-223818S
August 15, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE ALL TESTIMONY REGARDING DOLLAR VALUE OF SERVICES
Through a substitute information filed under date of July 27, 2006, the defendant Gregory K. Senick has been charged with: one count of larceny in the second degree in violation of General Statutes § 53a-123(a)(2); one count of larceny in the first degree by defrauding a public community in violation of General Statutes § 53a-122(a)(4); one count of conspiracy to commit larceny in the second degree in violation of General Statutes § 53a-123(a)(2) by way of § 53a-48(a); and one count of conspiracy to commit larceny in the first degree by defrauding a public community in violation of General Statutes § 53a-122(a)(4) by way of § 53a-48(a). These charges are based upon the state's allegations that the defendant wrongfully took and obtained property in the form of material, labor and services for the repair and maintenance of premises he leased from the state of Connecticut and in which he resided, located at 7 Undercliff Road in Meriden, Connecticut (7 Undercliff). The state has alleged that the defendant wrongfully took and obtained this property without paying therefor, although he was obligated to pay for such material, labor and services pursuant to a lease into which the parties had entered. The defendant submitted his pleas of not guilty, and elected trial to a jury.
The state tendered a hand-amended substitute information on July 26, 2006, and submitted a typewritten version on the following day. In lieu of the substitute counts sounding in larceny in the second degree, the original information had alleged one count of larceny in the first degree in violation of General Statutes § 53a-122(a)(2) and one count of conspiracy to commit larceny in the first degree in violation of General Statutes § 53a-122(a)(2) by way of § 53a-48(a). Those original counts are the subject of the defendant's oral Motion for Judgment of Acquittal, presented on July 26, 2006, which motion the court has addressed in its Memorandum of Decision on Defendant's Motion for Judgment of Acquittal.
Presentation of evidence to the jury commenced on May 25, 2006; the state rested its case on July 26, 2006. In part, the prosecution presented documentary and testimonial evidence as to the cost of services rendered by vendors and the employees of DeMarco, Miles and Murphy (DMM), a property management firm that was hired by the state to supervise its extensive Altobello Campus in Meriden, on which the 7 Undercliff property was located. On July 26, 2006, after the state rested, the defendant orally moved to strike all trial testimony related to amounts charged and/or paid for regarding any labor, materials, repairs or maintenance performed at 7 Undercliff during the time when the defendant resided at that location.
On July 27, 2006, the defendant filed his written Motion to Strike All Testimony Regarding Dollar Value of Services, pertaining to particular dollar amounts paid or reimbursed by the state of Connecticut or any state agency related to the repair or maintenance of 7 Undercliff (Defendant's Motion to Strike). Oral argument on the Defendant's Motion to Strike took place on July 28, 2006. In sum, the defendant has argued that the statutory violations at issue require proof of the "fair market value" of the allegedly stolen property; the defendant construes the evidence adduced at trial by the prosecution to fail this test, as the evidence related only to the actual dollar amounts charged for or paid for labor, material or services at 7 Undercliff, without specific, iconic evidence as to the fairness or market-relatedness of these dollar amounts. (Defendant's Motion to Strike.) As such, the defendant argues that this evidence, in its entirety, is irrelevant and unfairly prejudicial. In response, the prosecution argues that the element of value or market value relevant to the statutes at issue has been established by the abundant evidence of exchanges between a willing buyer, the state of Connecticut, and willing sellers who provided such labor, materials and services at 7 Undercliff. The prosecution asserts that evidence of such exchanges satisfy the requirement for proof of value or market value without need for extrinsic, expert or opinion evidence such as that the defendant claims to be essential.
Despite the title of the Motion to Strike, the defendant's written and oral arguments clearly indicate his intention to address the entirety of the evidence elicited by the prosecution as to amounts paid for material, labor and services to 7 Undercliff. In considering the defendant's arguments, the court has addressed both testimonial and documentary evidence related to this general subject, not to the dollar value of "services" alone.
Upon due consideration, for the reasons stated below, the Defendant's Motion to Strike is hereby DENIED.
I. RELATIONSHIP OF MARKET VALUE TO PENDING CHARGES
General Statutes § 53a-119 establishes that "a person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." Insofar as specific degrees or classifications of larceny are concerned, Connecticut's statutory scheme requires the state to prove, beyond a reasonable doubt, the value of the property, which includes services in a case such as this. Relevant to the pending prosecution, for instance, General Statutes § 53a-123(a)(2) provides, in relevant part, that a "person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and . . . the value of the property or service exceeds five thousand dollars . . ." General Statutes § 53a-122(a)(4) provides, in relevant part, that a "person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and . . . the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars." Insofar as the present defendant is concerned, then, the state bears the burden of proving, among other things, that the value of the property at issue exceeded $2,000 for the counts sounding in larceny in the first degree and that the value of the property exceeded $5,000 for the counts sounding in larceny in the second degree.
General Statutes § 53a-121(a) provides, in relevant part, that in larceny cases "the value of property or services shall be ascertained as follows: (1) Except as otherwise specified in this section, value means the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or services within a reasonable time after the crime . . . (3) When the value of property or services cannot be satisfactorily ascertained pursuant to the standards set forth in this section, its value shall be deemed to be an amount less than fifty dollars." (Emphasis added.)
II. LAWFUL PROOF OF MARKET VALUE IN LARCENY CASES
The defendant has moved to strike three designated categories of evidence introduced by the prosecution in its effort to establish the value or market value of the property and services it alleges the defendant to have wrongfully taken, obtained or withheld from their rightful owner, the state of Connecticut. These categories include: 1) work performed by DMM employees and/or amounts charged for goods and services utilized in performing work at 7 Undercliff, as recorded on so-called time sheets created by each employee; 2) testimony explaining the time sheets and their contents; and 3) testimony and documentary evidence concerning the fees charged by vendors and other contractors that performed work at 7 Undercliff, independent of direct supervision by DMM but paid through that property management company's submission of bills or invoices to the state, who made payment in response to those submissions. The defendant argues that this evidence, in its entirety, is irrelevant, confusing and unduly prejudicial because the prosecution has not supplemented or explicated it with direct evidence of fair market value, and because the prosecution failed to adduce any specific lay or expert opinion testimony which could be relied upon to establish the fair market value of the property or services at issue. Based on these ostensible defects in the evidence, the defendant has moved that "all testimony of the cost of services rendered by all vendors and the employees of [DMM] should be stricken from the record." (Defendant's Motion to Strike.)
Despite its vigor and intensity, the defendant's argument is inapposite to any of the three categories of evidence before the court. While the defendant would require the prosecution to elicit evidence of the market value of services rendered at 7 Undercliff separate and apart from the actual amounts paid by the state, as the owner of the property, there is no legal basis for demanding such a method of proof. Rather, in Connecticut, the trier of fact is free to infer value, market value or fair market value from the cost actually paid for services rendered at 7 Undercliff. "The expressions actual value, market value, or market price, when applied to any article, mean the same thing. They mean the price or value of the article established or shown by sales public or private in the way of ordinary business." (Internal quotation marks omitted.) State v. Frilando, 182 Conn. 397, 400, 438, A.2d 413 (1980). "`Market value' has been defined as the price that would in all probability . . . result from fair negotiations, where the seller is willing to sell and the buyer desires to buy . . . The determination of value is a question for the trier of fact." (Citations omitted; internal quotation marks omitted.) State v. Collette, 199 Conn. 308, 313-14, 507 A.2d 99 (1986).
Moreover, contrary to the assertions of the defendant that opinion or other specific evidence related to "market value" is required, Connecticut courts have consistently held that evidence of the cost of an item is evidence of its value at or near the time it is purchased. See State v. Sharp, 46 Conn.App. 269, 276, 699 A.2d 221, cert. denied, 243 Conn. 927, 701 A.2d 660 (1997) (evidence of the amount paid for goods close to the time and place of the crime was sufficient to prove that the value of the stolen items exceeded $1,000); State v. Frilando, supra, 182 Conn. 399 (testimony of the owner as to the actual cost of a television set purchased about a week before the larceny can be considered evidence of its value); State v. Davis, 3 Conn.App. 359, 368, 488 A.2d. 837 (1985) (value of goods or personalty can be proven by the price at which they are bought and sold); State v. Baker, 182 Conn. 52, 63, 437 A.2d 843 (1980) (owner's testimony, by reference to purchase price, that the value of property exceeded $6,000 provided ample evidence for the trier of fact to conclude that the market value of the stolen property exceeded $2,000, even if the property at issue was subject to depreciation); Devinne Hallenbeck Co., Inc v. Autoyre Co., 113 Conn. 97, 101, 154 A. 170 (1931) ("The cost of an article is ordinarily some evidence of its value. The remoteness of the time of its purchase, and other circumstances attending it, may be such as to deprive the evidence of any real probative value.").
Using Connecticut's foregoing market value calculus, the court thus finds that evidence of the amounts paid or reimbursed by the state for the material, labor and services provided to and performed at 7 Undercliff is relevant and material to the value, market value, and fair market value of such material, labor and services, as contemplated by the larceny statutes at issue. The prosecution has presented abundant evidence of the nature and the extent of work and/or services performed at 7 Undercliff, and the amounts of actual payments the state of Connecticut extended in exchange for that work and/or services. The amount of those payments thus constitutes property that had actual, measurable value to the state, the putative victim in this case. While that value or market value might have been established through the testimony of economic experts or through lay opinion testimony, the defendant has identified neither legislative mandate, applicable precedent nor persuasive rationale for obligating the prosecution to produce that specific type of evidence as a prerequisite to proving value or market value as contemplated by our larceny statutes. Here, however, the prosecution has tendered extensive proof of the value of property lost by the state, allegedly as the result of the defendant's criminal conduct, through evidence that material, labor and services were provided for the repair and maintenance of 7 Undercliff; that bills or invoices were timely tendered to the state for that material, labor and services through DMM for work done by its employees as well as work by affiliated vendors; and that the state relatively timely paid for the material, labor and services as charged, with scarce exception. It is that performance of work upon the property, the tender of the bills, and the state of Connecticut's payment for that work which meets the criteria for establishing value or market value in the context of the larceny charges brought against the defendant in this case. See State v. Sharp, supra, 46 Conn.App. 276; State v. Frilando, supra, 182 Conn.; State v. Baker, supra, 182 Conn. 63; Devinne Hallenbeck Co., Inc. v. Autoyre Co., supra, 113 Conn. 101.
For instance, see Testimony and related Exhibits introduced at trial through examination of: Joseph Breton, Bruce Cornish, Ronald Gantick, Geronimo Perez, Paul Perrotti, Victor Lambert, Kenneth Hollis, Charles Lindee, Kelly Bouffard, Russell Davis, Paul Prior, Norman Goguen, Glorixa Negron, Thomas Grigerick.
In reaching this determination, the court has given due weight to the cases cited by the defendant in support of his proposition that the prosecution failed to utilize an appropriate method of proving value or market value at trial. However, the Connecticut cases on which the defendant relies dealt not with the value of material, labor or services charged for the repair and maintenance of real property, but with the value of depreciable assets, such as a radio, a store's inventory, or a motor vehicle. See e.g., State v. Nunes, 58 Conn.App. 296, 752 A.2d 93 (2000) (appropriate for jury to find value of stolen radio based on expert testimony, but no indication that such testimony is required); State v. Saracino, 178 Conn. 416, 419-20, 423 A.2d (1979) (evidence related only to inventory `shrinkage' but not to defendant's knowing receipt of lost inventory); Jones v. Warden, Superior Court, judicial district of Tolland, 2005 Conn.Super LEXIS 1017 (N. Elgo, J.) (appropriate for jury to find value of stolen automobile based on NADA reference text, but no indication that such testimony is required). The court declines to adopt the rationale employed by the courts from sister jurisdictions upon whom the defendant relies, as Connecticut's jurisprudence clearly supports the prosecution's election to present proof of value or market value through the invoices or bills tendered and payment rendered, rather than though alternate methods.
In the cases from other jurisdictions cited in the defendant's thorough and detailed brief, not even the applied rhetoric is compelling in the context of this case. For instance, unlike the present prosecution, in which the state's payment for services to 7 Undercliff constitutes some evidence of market value as contemplated by Connecticut's larceny legislation, in D.H. v. State, 864 So.2d 588 (Fla.Dist.Ct.App. 2004), "[a]lthough there was some testimony of the original cost of some of the items taken], there was no testimony of fair market value" for the trier to consider. (Defendant's Motion to Strike.) Unlike the present prosecution, involving trade services and property repair or maintenance, State v. Johnson, 785 P.2d 184 (Kan.Ct.App. 1989) involved a depreciable asset whose value at the time of loss was not supported by the evidence.
Here, the price for which the material, labor and services for the repair and maintenance of 7 Undercliff, actually paid for by the state, is evidence of the market value of that material, labor and services. State v. Sharp, supra, 46 Conn.App. 276, citing State v. Collette, supra, 182 Conn. 400. As candidly noted by the defendant, "[i]n a prosecution for larceny, value means the market value of the property . . . at the time and place of the crime." State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985). While an owner's opinion as to the actual value of the property is one method of proving "market value," the defendant has cited no competent authority for its proposition that only opinion testimony, lay or expert, can be used for this purpose. The court respectfully declines the opportunity to so constrain the prosecution by imposing a single method of proof in this case.
III. PROBATIVE EFFECT OF VALUE OR MARKET VALUE EVIDENCE
The defendant finally claims that the prosecution's evidence of value or market value "is unfairly prejudicial because of the danger of misleading the jury to believe there is legal significance to the dollar amounts presented." (Defendant's Motion to Strike.) The defendant specifically argues that the prosecution's evidence is fatally flawed because there was "no testimony on the market value of any services rendered or products purchased." ( Id.) As such, the defendant has raised a circular argument, based not upon any specific identification of the prejudicial or confusing nature of the prosecution's evidence, but directed at its ostensible flaws.
The court has already concluded that the prosecution's use of its relevant, material value or market value evidence is clearly supported by the appellate jurisprudence of this state, as discussed in Part II. As noted by the Commentary to Rule 4-3 of the Connecticut Code of Evidence, "the discretion of a trial court to exclude relevant evidence on the basis of unfair prejudice is well established. E.g., State v. Higgins, 201 Conn. 462, 469, 518 A.2d 631 (1986)." Here, however, the court finds no evidence of surprise concerning the prosecution's proffer of evidence related to the charges incurred by the state with regard to the materials, labor or services rendered for maintenance and repair of 7 Undercliff while the defendant occupied those premises. There is no basis for concluding that the jury's emotions of prejudice, hostility, or sympathy would be unduly aroused by consideration of this evidence, which is based in substantial part upon business records kept or created by the state through the Department of Public Works, DMM, and/or DMM employees or vendors. Moreover, the court finds no merit to the defendant's bald contention that the jury's contemplation of such evidence would be confusing, misleading, or time-wasting. See Commentary to Conn. Code Evid. 4-3. Under these circumstances, the court declines to adopt the defendant's argument that the proffered evidence is more prejudicial than probative.
WHEREFORE, the Defendant's July 27, 2006 Motion to Strike All Testimony Regarding Dollar Value of Services is hereby DENIED.