State v. Schovanec , 326 Conn. 310 ( 2017 )

 STATE OF CONNECTICUT v. FRANK SCHOVANEC
(SC 19851)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Espinosa, Robinson and D’Auria, Js.*
Syllabus
Convicted of, inter alia, the crimes of identity theft in the third degree, credit
card theft, illegal use of a credit card, and larceny in the sixth degree,
the defendant appealed. The victim, who had volunteered to help host
a party at her child’s school, noticed shortly after returning home that
her wallet was missing from her purse. After searching unsuccessfully,
the victim discovered certain unauthorized purchases had been made
on one of her credit cards. These charges included two purchases at a
gas station near the school shortly after the party and various purchases
in a nearby city the following day, including a transaction at B Co. The
victim subsequently reported that, during the party, the defendant and
his wife had lingered around a table where the victim had placed her
unzipped purse. U and K, two employees from the gas station who
knew the defendant personally, testified at trial that the defendant had
purchased gasoline and cigarettes shortly after the party had ended. U
testified, in particular, that the defendant had requested a carton of
cigarettes and that such a request was unusual because the gas station
did not stock cartons. H, a police officer assigned to investigate the
victim’s complaint, testified that, although a loss prevention officer
employed by B Co. had informed him of a video recording showing
three unidentified Hispanic males using the victim’s credit card the day
after the party, H did not conduct any further investigation regarding
that purchase. At trial, the defendant requested an instruction on third-
party culpability and permission to make a corresponding argument to
the jury. The trial court declined to issue that instruction and excluded
references to third-party culpability from argument, but permitted
defense counsel to refer to H’s testimony regarding the video recording
and the three unidentified Hispanic males. Following his conviction, the
defendant appealed, claiming that the trial court had incorrectly denied
his request for a third-party culpability instruction and argument and
that, because the charge of larceny in the sixth degree arose out of the
same acts as the charges of identity theft in the third degree and illegal
use of a credit card, his convictions on these charges violated the consti-
tutional prohibition against double jeopardy. Held:
1. The trial court did not abuse its discretion in declining to charge the jury
on, or permit arguments regarding, the issue of third-party culpability:
in the absence of evidence that the three unidentified Hispanic males
were involved in the theft of the victim’s wallet or the unauthorized
purchases at the gas station, the defendant had failed to establish a
direct connection between those individuals and the charged offenses;
moreover, in the absence of such a direct connection, the fact that
the trial court exercised its discretion in allowing defense counsel to
reference H’s testimony regarding the video recording did not require
the conclusion that the evidence reasonably supported argument or a
charge on the issue of third-party culpability.
2. The defendant could not prevail on his unpreserved claim that his convic-
tions of identity theft in the third degree, illegal use of a credit card,
and larceny in the sixth degree violated the constitutional prohibition
against double jeopardy, the defendant having failed to establish that
the charged offenses arose out of the same act or transaction; in light
of the theft of the victim’s wallet, the various items contained therein,
gasoline, and cigarettes, the jury reasonably could have found a separate
factual basis for each offense.
Argued April 4—officially released July 18, 2017
Procedural History
Substitute, two part information charging the defen-
dant, in the first part, with the crimes of identity theft
in the third degree, credit card theft, illegal use of a
credit card, and larceny in the sixth degree and, in the
second part, with being a persistent larceny offender,
brought to the Superior Court in the judicial district of
Danbury, geographical area number three, where the
first part of the information was tried to the jury before
Hon. William J. Lavery, judge trial referee; verdict of
guilty; thereafter, the defendant was presented to the
court on a plea of guilty, with respect to the second
part of the information; judgment in accordance with
the verdict and plea, from which the defendant
appealed. Affirmed.
David V. DeRosa, for the appellant (defendant).
Marcia A. Pillsbury, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Sharmese L. Hodge, assistant state’s attor-
ney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Frank Schovanec,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of identity theft in the third degree
in violation of General Statutes § 53a-129d, credit card
theft in violation of General Statutes § 53a-128c (a),
illegal use of a credit card in violation of General Stat-
utes § 53a-128d (2), and larceny in the sixth degree in
violation of General Statutes § 53a-125b.1 On appeal,
the defendant claims that the trial court incorrectly (1)
precluded him from arguing third-party culpability and
denied his corresponding request for a jury instruction,
and (2) sentenced the defendant on the charges of iden-
tity theft, illegal use of a credit card, and the lesser
included offense of larceny in the sixth degree because
these convictions violated the prohibition against dou-
ble jeopardy contained within the fifth amendment to
the United States Constitution.2 We disagree and,
accordingly, affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, are relevant to this appeal. On October 31,
2013, the victim was the room parent for her child’s
class at Middle Gate Elementary School (school) in the
town of Newtown.3 That morning, she put her child on
the bus and went to work in the city of New Haven,
where she worked as an accountant. The victim
unlocked the door to her office and worked there until
2:30 p.m. There were no other security measures, such
as key cards or badges, required for entrance to her
office. After the victim left work, she traveled to the
school in order to attend a Halloween party for her
child’s class. The victim brought bags of supplies for
the party and, due to traffic, was running a few minutes
late. She entered the classroom, placed her unzipped
purse on a table located to the right of the door, and
immediately began helping with the children and the
party.
The defendant and his wife, Lori Schovanec, were
also at the Halloween party because they had a child
in the same classroom. The victim saw the defendant
and his wife in the classroom, but was not formally
introduced to them. Prior to the party, the victim had
never seen the defendant and his wife. At the end of
the party, the victim noticed that the defendant and his
wife were lingering around the table by the door where
she had placed her purse.
Later that evening, as the victim and her husband
were leaving to take their children out trick or treating,
the victim discovered that her wallet was not in her
purse. She contacted a manager at her place of employ-
ment to see if the wallet was either in her office or an
adjacent parking lot. The manager did not find the wal-
let. When she arrived back home after trick or treating,
the victim searched her house for the wallet, but did
not find it. The victim then checked her accounts online
and discovered that someone was making charges on
a credit card that had been in her wallet. She called
the bank, cancelled the card, and informed the bank
that someone was using the card without her permis-
sion. The victim then called and cancelled all of the
other bank and credit cards that she had in her wallet.
The victim’s driver’s license, a heath savings account
credit card, and insurance cards were also in her wallet
at the time. The driver’s license contained the victim’s
name and address.
The victim last remembered having her wallet when
she used a credit card at a restaurant in the town of
Bethel on October 30, 2013, the night before the Hallow-
een party. She checked at the restaurant, but her wallet
was not there.
The victim then reported her wallet stolen to the
Newtown Police Department. Because the victim
believed that she had either lost her wallet or that it
had been stolen at the restaurant, the Newtown Police
Department instructed the victim to contact the Bethel
Police Department. The victim then shared documents
with the Bethel Police Department showing that the
first unauthorized use of her credit cards had taken
place at a gas station on South Main Street in Newtown.
All of the subsequent unauthorized charges took place
at locations in the city of Waterbury.
The victim was familiar with that particular gas sta-
tion because it is located near the school. The victim
subsequently went to the gas station and spoke to the
owner. She requested, and obtained, a copy of the
receipt for the transactions in which her credit card
had been used. The receipts indicated that her credit
card was used on October 31, 2013, at 3:39 p.m. Upon
seeing that the time on the receipt was minutes after
school had been released that day, the victim began to
think that her wallet must have been taken when she
was at the school. Thereafter, the victim reported the
theft of her wallet and the unauthorized use of her
credit card to the Newtown Police Department because
the first unauthorized use of the card had been at the
gas station in Newtown.
Robert Haas, a police officer employed at the New-
town Police Department, investigated the victim’s com-
plaint regarding the theft of her wallet and the
unauthorized use of her credit card. At trial, Haas testi-
fied that the gas station is located a short distance from
the school, and that it would take about two minutes
to drive from the school to the gas station. He obtained
the original receipt for an unauthorized charge of $76
from the owner of the gas station. He confirmed that
the time on the receipt was 3:39 p.m. He obtained the
school’s visitor log for October 31 and confirmed that
the defendant and his wife were listed as being at the
school that day. The evidence contained within the
record shows that many parents were listed on the
visitor log for that day because of the multiple Hallow-
een parties at the school.
Haas interviewed two employees of the gas station
who were working on October 31, Kenneth Urban and
Hakan Kundraci. At trial, Urban testified that he knew
the defendant because the defendant used to work at
the gas station. Urban further testified that had seen
the defendant pull into the gas station in the late after-
noon of October 31, 2013, and that the defendant had
swiped a credit card at the pump to pay for gasoline.
Urban testified that the defendant and a female compan-
ion entered the store and asked for a carton of ciga-
rettes, which was unusual because the defendant
usually only bought one or two packs at a time. Urban
then asked Kundraci to assist the defendant because he
was helping a customer outside. According to Urban’s
testimony, because cartons of cigarettes were not typi-
cally stocked at the store, customers could only pur-
chase individual packs.
Kundraci had worked at the gas station for about ten
years. He gave a statement to police about the incident
that occurred at the gas station on October 31, involving
the defendant. Kundraci testified that that the defendant
purchased packs of cigarettes, but that he could not
recall how many packs. After reviewing his statement
to police, Kundraci testified that the defendant had pur-
chased eight packs of cigarettes. Kundraci testified that
the defendant and the woman were in a green minivan.
Kundraci also testified that the defendant would some-
times pay with cash, sometimes with a credit card,
and sometimes with a store charge, meaning he was
permitted to pay the gas station back later.
There were other charges made on the victim’s credit
cards in Waterbury. Officer Haas, however, did not
investigate these transactions. Those charges amounted
to approximately $800. Haas testified that, because
those transactions involved the same card, he contacted
the loss prevention department in one of the stores
where the card had been used, the Burlington Coat
Factory at the Waterbury Mall. The loss prevention offi-
cer told Haas that the videotape from the store’s secu-
rity camera system showed that the victim’s credit card
was used by three Hispanic males on November 1, 2013.
There was no investigation by the Waterbury Police
Department into the charges on the victim’s credit card.
Haas did not view the videotape himself. The loss pre-
vention officer did not testify at the trial. Neither party
attempted to enter the videotape into evidence.
The defendant requested that the court include a jury
instruction as to third-party culpability and that he be
allowed to argue third-party culpability. The state
objected to these requests. The court declined to give
the requested charge. The court also excluded any refer-
ence to third-party culpability during argument. The
court, however, indicated that counsel could ‘‘make
remarks about anything that’s in testimony,’’ including
Haas’ testimony regarding his conversation with the
loss prevention officer about the three unidentified His-
panic males that had used the victim’s credit card in
Waterbury.
The jury returned a verdict of guilty on the charges
of identity theft in the third degree in violation of § 53a-
129d, credit card theft in violation of § 53a-128c (a),
illegal use of a credit card in violation of § 53a-128d
(2), and larceny in the sixth degree in violation of § 53a-
125b.4 The court subsequently rendered a judgment of
conviction in accordance with the jury’s verdict, from
which the defendant appealed.5 Additional facts will be
set forth as necessary.
I
The defendant first claims that the trial court incor-
rectly precluded him from arguing third-party culpabil-
ity and refusing to charge on that issue. Specifically,
he asserts that, at trial, defense counsel demonstrated
a direct connection between a third party and the crimes
for which the defendant was convicted. We disagree.
The following additional facts are necessary for the
resolution of the defendant’s claim. During closing argu-
ment, defense counsel asserted that there had been a
misidentification of the defendant. Specifically, defense
counsel asserted that the defendant did not commit the
crime and that the three Hispanic men who were in
the videotape from the Burlington Coat Factory had
committed the crime.
The defendant filed a formal request to charge. The
fifth requested charge contained the following lanu-
gage: ‘‘There has been evidence that . . . third parties
. . . not the defendant, committed the crimes with
which the defendant is charged. This evidence is not
intended to prove the guilt of the third parties, but is part
of the total evidence for you to consider. The burden
remains on the state to prove each and every element
of the offense beyond a reasonable doubt. It is up to
you, and to you alone, to determine whether any of this
evidence, if believed, tends to directly connect third
parties to the crimes with which the defendant is
charged. If after a full and fair consideration and com-
parison of all the evidence, you have left in your minds
a reasonable doubt indicating that the alleged third
parties, in this case, three unidentified Hispanic males,
may be responsible for the crimes the defendant is
charged with committing, then it would be your duty
to render a verdict of not guilty as to the [defendant].’’
The prosecutor objected to the proposed third-party
culpability instruction on the ground that there was no
evidence presented regarding any third-party culpabil-
ity. The court then denied the defendant’s requested
third-party culpability instruction.
We begin with the standard of review applicable to
the defendant’s claim that the trial court incorrectly
refused to charge on third-party culpability. ‘‘In
determining whether the trial court improperly refused
a request to charge, [w]e . . . review the evidence pre-
sented at trial in the light most favorable to supporting
the . . . proposed charge. . . . A request to charge
which is relevant to the issues of [a] case and which
is an accurate statement of the law must be given. . . .
If, however, the evidence would not reasonably support
a finding of the particular issue, the trial court has a
duty not to submit it to the jury. . . . Thus, a trial court
should instruct the jury in accordance with a party’s
request to charge [only] if the proposed instructions
are reasonably supported by the evidence.’’ (Internal
quotation marks omitted.) State v. Arroyo, 284 Conn.
597, 607–608, 935 A.2d 975 (2007). ‘‘[T]he very standards
governing the admissibility of [third-party] culpability
evidence also should serve as the standards governing
a trial court’s decision of whether to submit a requested
[third-party] culpability charge to the jury.’’ Id., 608–609.
‘‘The admissibility of evidence of [third-party] culpa-
bility is governed by the rules relating to relevancy. . . .
Relevant evidence is evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
Accordingly, in explaining the requirement that the
proffered evidence establish a direct connection to a
third party, rather than raise merely a bare suspicion
regarding a third party, we have stated [that such] evi-
dence is relevant, exculpatory evidence, rather than
merely tenuous evidence of [third-party] culpability
[introduced by a defendant] in an attempt to divert
from himself the evidence of guilt. . . . In other words,
evidence that establishes a direct connection between
a third party and the charged offense is relevant to the
central question before the jury, namely, whether a
reasonable doubt exists as to whether the defendant
committed the offense. Evidence that would raise only
a bare suspicion that a third party, rather than the defen-
dant, committed the charged offense would not be rele-
vant to the jury’s determination. A trial court’s decision,
therefore, that [third-party] culpability evidence prof-
fered by the defendant is admissible, necessarily entails
a determination that the proffered evidence is relevant
to the jury’s determination of whether a reasonable
doubt exists as to the defendant’s guilt. . . . Finally,
[t]he trial court’s ruling on the relevancy of [third-party]
inculpatory evidence will be reversed on appeal only
if the court has abused its discretion or an injustice
appears to have been done. . . .
‘‘Whether a defendant has sufficiently established a
direct connection between a third party and the crime
with which the defendant has been charged is necessar-
ily a fact intensive inquiry. In other cases, this court
has found that proof of a third party’s physical presence
at a crime scene, combined with evidence indicating
that the third party would have had the opportunity to
commit the crime with which the defendant has been
charged, can be a sufficiently direct connection for pur-
poses of [third-party] culpability. . . . Similarly, this
court has found the direct connection threshold satis-
fied for purposes of [third-party] culpability when physi-
cal evidence links a third party to a crime scene and
there is a lack of similar physical evidence linking the
charged defendant to the scene. . . . Finally, this court
has found that statements by a victim that implicate the
purported third party, combined with a lack of physical
evidence linking the defendant to the crime with which
he or she has been charged, can sufficiently establish
a direct connection for [third-party] culpability pur-
poses.’’ (Citations omitted; internal quotation marks
omitted.) State v. Baltas, 311 Conn. 786, 810–12, 91 A.3d
384 (2014).
A trial court is in the best position to view the evi-
dence in the context of the entire case and has wide
discretion in making its evidentiary rulings. State v.
Walsh, 67 Conn. App. 776, 790, 789 A.2d 1031, cert.
denied, 269 Conn. 906, 795 A.2d 546 (2002). A trial
court’s decision as to the relevancy of third-party culpa-
bility evidence will be reversed on appeal only if it has
abused its discretion or an injustice appears to have
been done. State v. West, 274 Conn. 605, 626, 877 A.2d
787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L.
Ed. 2d 601 (2005). ‘‘Whether a defendant has sufficiently
established a direct connection between a third party
and the crime with which the defendant has been
charged is necessarily a fact intensive inquiry.’’ State
v. Baltas, supra, 311 Conn. 811.
The defendant asserts that, because there was evi-
dence adduced at trial that purchases using the victim’s
credit card took place in Waterbury by individuals who
did not match his description, he had established a
direct connection between a third party and the crime
for which he was charged. The defendant further claims
that, because the trial court allowed defense counsel
to comment on the use of the credit card in Waterbury
by individuals other than the defendant, the trial court
should have provided corresponding instructions to the
jury as guidance. We are not persuaded.
The defendant failed to establish a direct connection
between the charged offenses, which occurred on Octo-
ber 31, 2013, in Newtown, and the use of the victim’s
stolen credit card in Waterbury the following day. There
was no evidence that the three unidentified Hispanic
males were involved in the theft of the victim’s wallet
or the unauthorized use of her credit card in Newtown.
Even if the evidence adduced at trial showed conclu-
sively that the stolen credit card had been used by three
unidentified Hispanic males in Waterbury, there was
no evidence directly connecting these individuals to the
crimes with which the defendant was charged, which
were committed on the previous day in Newtown. Eye-
witnesses who knew the defendant personally identi-
fied him as using a credit card for two purchases at
the gas station in Newtown. Those transactions, which
appeared on the victim’s credit card account, were
made minutes after the school Halloween party that
both the victim and the defendant attended and the gas
station was a two minute drive from the school. The
statements attributed to the Burlington Coat Factory
loss prevention officer do not even raise a bare suspi-
cion that the stolen credit card was used by anyone
other than the defendant at the gas station in Newtown.
There is no evidence that the three unidentified His-
panic males ever used the victim’s credit card to charge
anything at the gas station. Indeed, there was no evi-
dence those individuals were ever at the gas station.
What may have happened to the card after the defendant
used it at the gas station is, at most, the subject of sheer
speculation. There is clearly not a direct connection.
The defendant relies on State v. Hedge, 297 Conn.
621, 1 A.3d 1051 (2010), in support of his claim that he
had established a direct connection between the third
party and the crimes for which he was charged. In
Hedge, we reversed in part the judgment of the trial
court, which had precluded certain third-party culpabil-
ity evidence from being admitted. Id., 629–30. Specifi-
cally, in Hedge, the defendant sought to introduce
evidence that, shortly before his arrest, he had bor-
rowed a vehicle in which drugs were subsequently
found and that the same vehicle had been driven by a
convicted drug dealer less than twenty-four hours ear-
lier. Id., 629. In Hedge, this court concluded that the
third-party culpability evidence should have been
admitted, reasoning as follows: ‘‘[The defendant]
claimed that he did not know anything about the drugs
that were found secreted in the vehicle and proffered
evidence that a convicted drug dealer, who previously
had left drugs and money in the vehicle, had driven the
vehicle shortly before him. That evidence was highly
relevant to the defendant’s theory of defense. We con-
clude, therefore, that when . . . a person is arrested
for the possession of drugs that are concealed in a
vehicle that does not belong to him, and he adduces
evidence that another person had both the motive and
the opportunity to commit the crime and actually oper-
ated the vehicle within a twenty-four hour period, it is
improper for the trial court to exclude that evidence.’’
Id., 646.
In the present case, there is neither evidence of the
presence of a third party at the school or the gas station,
nor evidence of the opportunity for a third party to
have committed the crime at either location. Because
the defendant did not establish even a minimal direct
connection between the charged crimes and the alleged
use of the stolen credit card in Waterbury the following
day, we conclude that the trial court did not abuse its
discretion in denying the defendant’s request to charge
on third-party culpability or the defendant’s request to
make corresponding arguments.
The trial court ruled that defense counsel could make
remarks about anything that was ‘‘in testimony.’’ There-
fore, during his closing argument defense counsel com-
mented on the fact that the victim’s credit cards were
used on November 1, 2013, in Waterbury and that the
investigating officer failed to follow up on the informa-
tion. The defendant claims that, because counsel was
allowed to comment on the use of the charge card in
Waterbury, it was clearly relevant. If the testimony was
relevant, he contends, it merited a charge to the jury
and further arguments from defense counsel that a third
party was responsible for the credit card charges at the
gas station in Newtown. The fact that the trial court
exercised its discretion in allowing counsel to comment
on the use of the credit cards in Waterbury, a ruling
which clearly benefited the defendant, however, does
not mean that the evidence reasonably supported either
further argument or a charge on the issue of third-party
culpability. The sufficiency of the proof, in the context
of the present case, is measured in terms of the evidence
related to both the theft of the wallet at the school and
the charges at the gas station in Newtown. The proof
of any third-party direct connection relation to those
two events was nonexistent. Therefore, we conclude
that the trial court did not abuse its discretion in refus-
ing to charge the jury on, or permit arguments regarding,
the issue of third-party culpability.
II
The defendant next claims that his convictions of
identity theft, illegal use of a credit card and the lesser
included offense of larceny in the sixth degree violated
the constitutional prohibition against double jeopardy.
We conclude that, under Blockburger v. United States,
284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932),
and in the context of the charging document in the
present case, the defendant is unable to establish that
larceny in the sixth degree is the same offense, for
purposes of double jeopardy, as either identity theft in
the third degree or illegal use of a credit card.6 Accord-
ingly, we conclude that the trial court correctly sen-
tenced the defendant for his convictions of identity
theft, illegal use of a credit card and the lesser included
offense of larceny in the sixth degree.
The defendant failed to preserve his double jeopardy
claims at trial and seeks to prevail on appeal pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989). Under Golding, a defendant may prevail on
an unpreserved claim only if the following conditions
are met: ‘‘(1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Footnote omit-
ted.) Id.; see In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015) (modifying third prong of Golding).
Because the record is adequate for review, and the
defendant’s claim that the multiple convictions violated
his right against being placed in double jeopardy is of
constitutional magnitude, our inquiry focuses on
whether the violation alleged by the defendant exists
and deprived him of a fair trial.
‘‘A defendant’s double jeopardy challenge presents a
question of law over which we have plenary review.
. . . The double jeopardy clause of the fifth amendment
to the United States constitution provides: [N]or shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb. The double jeopardy
clause is applicable to the states through the due pro-
cess clause of the fourteenth amendment. . . . This
constitutional guarantee prohibits not only multiple tri-
als for the same offense, but also multiple punishments
for the same offense in a single trial. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met. . . .
‘‘Traditionally we have applied the Blockburger test
to determine whether two statutes criminalize the same
offense, thus placing a defendant prosecuted under
both statutes in double jeopardy: [W]here the same act
or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not. . . . This test is a technical one and examines
only the statutes, charging instruments, and bill of par-
ticulars as opposed to the evidence presented at
trial. . . .
‘‘Our analysis of [the defendant’s] double jeopardy
[claim] does not end, however, with a comparison of
the offenses. The Blockburger test is a rule of statutory
construction, and because it serves as a means of dis-
cerning [legislative] purpose the rule should not be con-
trolling where, for example, there is a clear indication
of contrary legislative intent. . . . Thus, the
Blockburger test creates only a rebuttable presumption
of legislative intent, [and] the test is not controlling
when a contrary intent is manifest. . . . When the con-
clusion reached under Blockburger is that the two
crimes do not constitute the same offense, the burden
remains on the defendant to demonstrate a clear legisla-
tive intent to the contrary.’’ (Citations omitted; internal
quotation marks omitted.) State v. Wright, 319 Conn.
684, 689–90, 127 A.3d 147 (2015).
In count one of its long form information dated June
17, 2015, the state accused the defendant of identity
theft in the third degree and charged that, on October
31, 2013, in Newtown, the defendant ‘‘knowingly used
personal identifying information of another person to
obtain goods without the consent of such other person,
in violation of . . . § 53a-129d.’’
In count three of the same information, the state
accused the defendant of illegal use of a credit card
and charged that, on October 31, 2013, in Newtown,
the defendant ‘‘obtained goods and anything of value
by representing without the consent of the cardholder
that he [was] the holder of a specified card, in violation
of . . . § 53a-128d (2).’’
In count four of the same information, the state
accused the defendant of larceny in the sixth degree
and charged that, on October 31, 2013, in Newtown,
the defendant, ‘‘with intent to deprive another of prop-
erty and to appropriate the same [to] himself or a third
party . . . wrongfully [took], obtain[ed], [and with-
held] such property from an owner and the value of
the property is [$500] or less, in violation of . . .
§ 53a-125b.’’
As indicated previously, the Blockburger test involves
a two step analysis. State v. Wright, supra, 319 Conn.
689. First, we must determine if the charges arose out
of the same transaction. Id. If that fact is established
we then look to whether the charges cover one offense.
Id. In conducting the second inquiry, we only look to
the statutes, charging documents, and any bill of partic-
ulars, not evidence at trial. Id., 690. When conducting
the first inquiry, however, it is not uncommon that we
look to the evidence at trial and to the state’s theory
of the case. For example, in State v. Snook, 210 Conn.
244, 265, 555 A.2d 390, cert. denied, 492 U.S. 924, 109
S. Ct. 3258, 106 L. Ed. 2d 603 (1989), this court explained
as follows: ‘‘The defendant does not even address the
first issue whether the second and third degree sexual
assault charges arose out of the same transaction. [T]he
state introduced evidence of a number of episodes in
which the defendant engaged in sexual intercourse with
the victim. Both counts . . . alleged that the defendant
committed the prohibited act or acts on ‘diverse days
between June, 1979, and January, 1984.’ The state points
out that the jury could have relied on evidence of one act
to convict the defendant of [one crime], and evidence of
a different act to convict him of [the other]. Thus, the
defendant has failed to meet his initial burden of demon-
strating that his conviction on the second and third
degree sexual assault charges arose out of the same
act.’’ Thus, in Snook, we analyzed the first step using
both the charging document and the evidence upon
which the jury could have relied.7 Accordingly, if we
conclude that the charges may not have occurred from
the same transaction, it is unnecessary for us to proceed
to step two of the analysis.
With respect to the charge of larceny in the sixth
degree in count four of the long form information, in
his closing argument, the prosecutor asserted the fol-
lowing: ‘‘[I]ntent to deprive another person of property
or to appropriate the . . . same to himself or a third
party who wrongfully takes, obtains or withholds such
property from the owner. Okay. What does that mean?
Intent to deprive another of property . . . what prop-
erty was [the victim] deprived of? She’s deprived of her
wallet. She’s deprived of her credit cards. She’s deprived
of her driver’s license . . . . Her personal property,
her personal belongings . . . included that wallet and
everything inside . . . that was taken from her. And
so whether it was taken from her directly by [the defen-
dant] or he obtained it or withheld that property from
her, that’s a larceny, and when we talk about different
degrees of larceny, we’re talking about what is the value
of that property . . . . [T]he value of the property
[here] is $500 or less . . . . That could be the credit
card, it could be [the gasoline] . . . the cigarettes . . .
[or] the value of the wallet itself. . . . That’s larceny
in the [sixth] degree.’’ The defendant claims that,
because the judge referred to the gasoline and cigarettes
in the charge, it was all part of the same transaction.
However, because the jury, and not the judge, was the
fact finder in the present case, because the information
was broad enough to encompass the theft of the wallet
and its contents and the separate unauthorized charges
on the credit cards, and because the prosecutor both
argued the case and presented evidence in that manner
relating to both incidents, we reject the defendant’s
arguments in that regard.
On the basis of the testimony of the witnesses and
the evidence introduced at trial, the jury reasonably
could have found a factual basis for the charge of lar-
ceny in the sixth degree arose out of the theft of the
victim’s wallet and all of the items contained therein,
including her driver’s license, her insurance cards, and
her bank and credit cards, as well as the separate theft
of the gasoline and the cigarettes from the gas station.
Any of those separate actions could have formed the
basis for finding the defendant guilty of larceny in the
sixth degree.
Similarly, the jury reasonably could have found a
factual basis for the charges of identity theft and illegal
use of a credit card arose out of the specific use of one
particular credit card in the stolen wallet. Thus, there
was a separate factual basis for the charge of larceny
in the sixth degree that did not arise out of the same
act as the charges of identity theft in the third degree
and illegal use of a credit card. We therefore conclude
that the defendant has failed to establish the first prong
of Blockburger and, therefore, we need not proceed to
the second prong. See State v. Wright, supra, 319 Conn.
689. Accordingly, we conclude that the defendant has
failed to establish that his convictions of identity theft,
illegal use of a credit card and the lesser included
offense of larceny in the sixth degree violated the consti-
tutional prohibition against double jeopardy.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers, and Justices Palmer, Eveleigh,
McDonald, Espinosa, Robinson and D’Auria. Although Justice Espinosa was
not present when the case was argued before the court, she has read the
briefs and appendices, and listened to a recording of oral argument prior
to participating in this decision.
1
We note that the defendant was also convicted of being a persistent
larceny offender in violation of General Statutes (Rev. to 2013) § 53a-40.
See also footnote 6 of this opinion.
2
‘‘The double jeopardy clause of the fifth amendment to the United States
constitution provides: [N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb . . . . This constitutional provision
is applicable to the states through the due process clause of the fourteenth
amendment.’’ (Internal quotation marks omitted.) State v. Padua, 273 Conn.
138, 172 n.39, 869 A.2d 192 (2005).
3
At trial, the victim described her duties as a room parent as follows: ‘‘A
room parent, basically, just helps the teacher out with anything she needs
as far as parent volunteers in the classroom . . . they’re at the holiday
parties . . . or any other events that maybe the teacher might need help
with . . . .’’
4
We note that, following trial, the defendant pleaded guilty to a separate
charge of being a persistent larceny offender in violation of General Statutes
(Rev. to 2013) § 53a-40. See also footnote 6 of this opinion.
5
The defendant appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
6
The defendant also asserts that, because the conviction for larceny in
the sixth degree was the basis for his enhanced sentence as a persistent
larceny offender and his conviction for larceny in the sixth degree violates
the prohibition against double jeopardy, there is no basis for his plea as a
persistent larceny offender and it must be vacated. Because we conclude
that the defendant’s conviction for larceny in the sixth degree does not
violate the prohibition against double jeopardy, we need not address this
claim.
7
We note that the defendant in the present case did not request a bill of
particulars regarding count four, which contained the charge of larceny in
the sixth degree. Thus, the jury could have found separate acts of larceny
that occurred on the same day. Furthermore, if the defendant had raised
his claim before the trial court that a conviction of identity theft, illegal use
of a credit card and the lesser included offense of larceny in the sixth degree
would violate the constitutional prohibition against double jeopardy, the
state or the court could have made clear that theft of the same property
could not form the factual basis for the larceny charge and the other charges.
By failing to raise the claim of double jeopardy before the trial court, the
defendant contributed to the ambiguity that is now present in the record.