State v. Kalil ( 2014 )

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STATE OF CONNECTICUT v. ALBERT KALIL
(SC 19016)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Vertefeuille, Js.
Argued March 27—officially released November 25, 2014
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, was Peter A. McShane, state’s
attorney, for the appellee (state).
Opinion
ZARELLA, J. The defendant, Albert Kalil, appeals
from the judgment of the Appellate Court affirming the
judgment of conviction, rendered after a jury trial, of
one count of burglary in the third degree in violation
of General Statutes § 53a-103 (a)1 and one count of
larceny in the second degree in violation of General
Statutes (Rev. to 2009) § 53a-123 (a).2 The defendant
claims the Appellate Court improperly concluded that
(1) the trial court did not abuse its discretion in permit-
ting the state to introduce evidence of the defendant’s
uncharged misconduct to prove his intent to commit
the charged crimes, and (2) Public Acts 2009, No. 09-138,
§ 2 (P.A. 09-138),3 which amended the second degree
larceny statute after the defendant committed the crime
but before his conviction by increasing the value of
property stolen necessary to constitute the offense, did
not apply retroactively. We affirm the judgment of the
Appellate Court.
The following relevant facts, which the jury reason-
ably could have found, are set forth in the Appellate
Court’s opinion. ‘‘At approximately 10 a.m. on January
27, 2009, Judith Stanton left her home located at 677
Pequot Trail in [the town of] Stonington (Stonington
property). When Stanton returned at approximately
noon, she realized that the telephone was no longer on
the wall, the liquor cabinet was open and drawers had
been opened in every room upstairs. Her jewelry box
had been ‘torn apart,’ and pocket watches that were on
display in a cabinet were missing. Jewelry, several $2
bills, a federal note and six $100 bills were [also] missing
from the property.
‘‘Lucinda Wesson, a resident of 672 Pequot Trail in
Stonington lives directly across from the Stonington
property. On the morning of January 27, 2009, she
noticed a car she did not recognize parked on her street.
It was a dark colored convertible Saab with . . . Mas-
sachusetts license plate[s]. At that time, no one was in
or near the car. Some time later, Wesson went to the
other side of her home, and she again saw the car
because it was stationed outside of her property. At
this time, the passenger’s side door was open, and a man
was wandering in the middle of the street, appearing as
if he were looking for something. The person driving
the car told the passenger to get in the car, and the
parties then left. Each of the individuals had a ‘very
thick Massachusetts accent.’ From her standpoint in
her home, she believed the individual outside of the
vehicle was approximately six feet tall, and she apprised
police that he was of Italian descent, with black hair,
between forty and fifty years old, approximately 200
pounds and wearing a red sweatshirt type of jacket.
‘‘An investigation at the Stonington property revealed
that force had been used to open the rear door. An area
of weather stripping that ran down the exterior of the
door had been manipulated or moved. The damage was
consistent with forced entry into the house. There were
footprints in the snow outside the Stonington property
that ran from the front of the home to the back door;
however, the police were not able to get foot impres-
sions. The Stonington police filed a report with the
National Crime Information Center detailing the inci-
dent.
‘‘On January 27, 2009, at approximately 1:45 p.m.,
Raymond Driscoll, the police chief in Richmond, Rhode
Island, drove past the home of an acquaintance located
at 122 Kingston Road in Richmond (Rhode Island prop-
erty). The homeowner’s truck was not on the property;
however, there was a black Saab convertible with Mas-
sachusetts license plates parked in the yard. Driscoll
observed two men standing in front of the garage door
looking into the garage through a window. He then
observed one of the men looking through a door at the
front step next to the garage. This man was ‘alternately
looking over his shoulder between looking into the
house.’ One of the men noticed that Driscoll was watch-
ing, and both men quickly walked to the Saab and
drove away.
‘‘Driscoll followed the vehicle, which pulled into an
abandoned gasoline station parking lot. While Driscoll
was calling for additional police support, the operator
of the vehicle got out of the car and walked over to
him. Driscoll asked the operator for his license and
registration, which he retrieved. The license identified
the operator of the vehicle as [Joseph] Cote, and his
passenger was identified as the defendant. Cote volun-
teered that he and the defendant were on their way
from [a] casino and had gotten lost. Cote stated that
they had stopped at the house to ask for directions and
that they were running out of gasoline. Driscoll asked
Cote to turn the vehicle on, and Driscoll observed that
the vehicle had more than one quarter of a tank of
gas remaining.
‘‘The defendant was wearing a ‘sweatshirt type
jacket,’ and he had a pair of blood-stained, white athletic
socks in his jacket pockets. There was also a cut on
the defendant’s hand. When asked why he had socks
in his jacket pocket, the defendant responded that he
had ‘bad feet.’ The defendant stated that he and Cote
were at [a] casino, and he had won $100. When asked
why he was at the Rhode Island property, the defendant
stated they were lost and running out of gasoline and
had stopped to ask for directions. When asked how
they could be running out of gasoline when there were
four gasoline stations within a mile and one quarter of
where they were located, the defendant responded that
he did not know. When asked why they chose to stop
at the Rhode Island property and ask for directions
when there were no cars in the driveway, the defendant
responded that he did not know.
‘‘After obtaining Cote’s consent, Driscoll searched
the vehicle, finding some articles of clothing in the
backseat, a pair of black gloves on the center console
and a screwdriver, a pry bar and a hatchet/hammer in
the trunk. When the additional police support arrived,
Driscoll went back to the [Stonington property] and
noticed two sets of footprints in the snow leading from
the front of the home to the rear of the home and back
to the front. He could see where an individual had
stopped on the back step and presumably looked into
the house through the back door. There did not appear
to be any entry into the house.
‘‘Driscoll placed the defendant in the backseat of an
officer’s cruiser and asked Cote to follow him to the
police station. He pulled into the parking area behind
the station, and Cote pulled up to the front of the station.
After parking, Driscoll went to the front of the police
station, and ‘Cote was standing on the sidewalk in front
of the Saab . . . right in front of a row of small shrub-
bery that’s in front of the police station.’ Driscoll again
obtained consent to search Cote’s vehicle, and he seized
the hatchet/hammer, screwdriver and pry bar. When
looking through the interior of the vehicle, the police
seized a costume jewelry gemstone. The gemstone was
approximately one-quarter inch by one-quarter inch in
size and blue or green in color. It was found between
the driver’s seat and the passenger’s seat in the Saab.
‘‘The Richmond police later recovered a bag from the
bushes in front of the Saab that was parked in the police
department parking lot. Inside the bag, there were vari-
ous types of jewelry, including pocket watches, rings
and bracelets. The bag contained approximately fifty
pieces of jewelry. The bag also had a piece of jewelry
with gemstones that matched the gemstone found
inside the vehicle.
‘‘The Stonington police were notified that the Rich-
mond [P]olice [D]epartment had found individuals and
goods that were consistent with the Stonington bur-
glary. [Stanton and her husband, Richard Stanton]
viewed the jewelry obtained by the Richmond [P]olice
[D]epartment and identified it as their property. The
defendant and Cote thereafter were arrested by the
Stonington police and charged with burglary in the third
degree and larceny in the second degree.
‘‘The jury found the defendant and Cote guilty of [the
offenses charged]. The defendant was sentenced to a
total effective sentence of nine years incarceration.’’
(Footnotes omitted.) State v. Kalil, 136 Conn. App. 454,
456–61, 46 A.3d 272 (2012).
The defendant appealed from the judgment of convic-
tion to the Appellate Court,4 claiming, inter alia, that the
trial court improperly had admitted Driscoll’s testimony
regarding what he had observed on the Rhode Island
property. Id., 456. The defendant claimed that the testi-
mony was not relevant, was not required to complete
the story of the burglary and the arrest of the defendant,
and did not prove the defendant’s intent. Id., 461. He
further claimed that the testimony served only as evi-
dence of his allegedly bad character, and, therefore, it
was unduly prejudicial. Id. The Appellate Court rejected
the defendant’s claims and determined that the testi-
mony had been properly admitted to prove the defen-
dant’s intent to commit the burglary. Id., 465. The court
thus found it unnecessary to decide whether the testi-
mony had been properly admitted to complete the story
of the burglary. Id., 469 n.13. Thereafter, we granted
the defendant’s petition for certification to appeal. State
v. Kalil, 307 Conn. 902, 53 A.3d 217 (2012). We also
granted the defendant’s subsequent motion for permis-
sion to raise the issue of whether P.A. 09-138, § 2, which
amended the second degree larceny statute to increase
the value of property stolen necessary to constitute the
offense, applied retroactively. See State v. Kalil, 307
Conn. 955, 59 A.3d 1191 (2013). We conclude that Dris-
coll’s testimony was properly admitted and that P.A.
09-138 did not apply retroactively. We therefore affirm
the judgment of the Appellate Court.
I
We begin with the defendant’s claim that the trial
court improperly admitted Driscoll’s testimony regard-
ing the defendant’s misconduct in Rhode Island under
the commonly relied on intent exception to the bar
against admission of other misconduct evidence. The
defendant claims that there is little to distinguish intent
from propensity and that Driscoll’s testimony was inad-
missible because it could prove only the defendant’s
alleged propensity to commit certain criminal acts. The
state responds that the trial court properly admitted
Driscoll’s testimony because it was relevant to show the
defendant’s intent to participate with Cote in unlawfully
entering the Stantons’ home to deprive them of their
property. We agree with the state.
The following additional facts are set forth in the
Appellate Court’s opinion. ‘‘Prior to trial, defense coun-
sel filed a motion in limine to bar Driscoll’s testimony
about any observations that he made prior to stopping
the defendant and Cote in Rhode Island on January 27,
2009. Counsel argued that allowing Driscoll to testify
as to the nature of the incident he observed would be
extremely prejudicial to the defendant, as the defendant
was not charged for that incident, and it was separate
from the charges in Connecticut. The state, in turn,
argued that the testimony would complete the story of
the Stonington burglary and demonstrate the defen-
dant’s intent to commit . . . [that] burglary. The court
determined that the testimony was admissible to com-
plete the story . . . [and also] was relevant to the
defendant’s intent. The court therefore denied the
motion in limine.
‘‘After Driscoll testified as to his observations of the
defendant prior to stopping the Saab, the court gave a
limiting instruction . . . directing the jury to consider
such testimony only if it determined that the conduct
occurred and that it supported the issue of intent or
completing the story.5 Similarly, during its charge to
the jury after closing arguments, the court again
instructed the jury that it could consider this portion
of Driscoll’s testimony only if it concluded that it dem-
onstrated the defendant’s intent during the Stonington
burglary or if it completed the story of the Stonington
burglary.’’6 (Citation omitted; footnote altered.) State v.
Kalil, supra, 136 Conn. App. 461–62.
We begin with the standard of review and the govern-
ing legal principles. ‘‘Evidence of a defendant’s
uncharged misconduct is inadmissible to prove that the
defendant committed the charged crime or to show the
predisposition of the defendant to commit the charged
crime. . . . Exceptions to this rule have been recog-
nized, however, to render misconduct evidence admis-
sible if, for example, the evidence is offered to prove
intent, identity, malice, motive, a system of criminal
activity or the elements of a crime. . . . To determine
whether evidence of prior misconduct falls within an
exception to the general rule prohibiting its admission,
we have adopted a two-pronged analysis. . . . First,
the evidence must be relevant and material to at least
one of the circumstances encompassed by the excep-
tions. Second, the probative value of such evidence
must outweigh the prejudicial effect of the other crime
evidence. . . . Since the admission of uncharged mis-
conduct evidence is a decision within the discretion of
the trial court, we will draw every reasonable presump-
tion in favor of the trial court’s ruling. . . . We will
reverse a trial court’s decision only when it has abused
its discretion or an injustice has occurred.’’ (Internal
quotation marks omitted.) State v. Pena, 301 Conn. 669,
673–74, 22 A.3d 611 (2011).
On the issue of relevance, we have stated that ‘‘[r]ele-
vant evidence is evidence that has a logical tendency
to aid the trier in the determination of an issue. . . .
One fact is relevant to another if in the common course
of events the existence of one, alone or with other facts,
renders the existence of the other either more certain
or more probable. . . . Evidence is irrelevant or too
remote if there is such a want of open and visible con-
nection between the evidentiary and principal facts
that, all things considered, the former is not worthy or
safe to be admitted in the proof of the latter. . . . Evi-
dence is not rendered inadmissible because it is not
conclusive. All that is required is that the evidence tend
to support a relevant fact even to a slight degree, so
long as it is not prejudicial or merely cumulative. . . .
The trial court has wide discretion to determine the
relevancy of evidence and [e]very reasonable presump-
tion should be made in favor of the correctness of the
court’s ruling in determining whether there has been
an abuse of discretion.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Davis, 298 Conn. 1, 23,
1 A.3d 76 (2010).
In the present case, the defendant was charged with
third degree burglary and second degree larceny. Under
the third degree burglary statute, the state was required
to prove that the defendant entered or remained unlaw-
fully in the Stanton residence with an intent to commit
a crime. See General Statutes § 53a-103 (a). Under the
second degree larceny statute, the state was required
to prove, inter alia, that the defendant, with the intent
to deprive another person of property or to appropriate
the property to himself or a third person, wrongfully
took, obtained, or withheld such property from its
owner. See General Statutes § 53a-119; see also General
Statutes § 53a-123 (a) (referring to § 53a-119). Thus,
proof of the element of intent was essential to the defen-
dant’s conviction of both crimes.
The defendant claims that Driscoll’s testimony was
not relevant for two reasons. He first claims that ‘‘[t]he
best limiting principle on the admission of uncharged
misconduct as proof of intent is . . . remarkable simi-
larity’’ and that, because there was no proof that he,
rather than Cote, burglarized the Stanton home, his
alleged misconduct on the Rhode Island property was
not relevant or probative of his alleged misconduct in
Stonington. He notes that there was only one set of
unidentified footprints in the snow going from the front
of the Stanton home to the back door, there was only
one person seen standing next to the Saab, and there
was no other direct evidence of his involvement in the
burglary in Stonington. In other words, the defendant
claims that Driscoll’s testimony lacked the factual predi-
cate for admission because there was no basis from
which the jury could infer that when the defendant and
Cote exited the parked car across the street from the
Stonington property, they did so jointly with the intent
of seeking entry for the purpose of burglarizing the
Stanton home. The defendant’s second claim is that,
even if Driscoll’s testimony was relevant to the act of
breaking into the Stanton home, it had no bearing on
whether the defendant intended to steal the Stantons’
property once he got inside. We disagree.
It is well established that ‘‘there is no legal distinction
between direct or circumstantial evidence so far as
its probative force is concerned.’’ State v. Benton, 161
Conn. 404, 410, 288 A.2d 411 (1971); see also State v.
Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985) (‘‘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’’); State v. Kohlfuss,
152 Conn. 625, 639, 211 A.2d 143 (1965) (‘‘[t]he fact that
no one actually saw [the defendant] or his companion
breaking into, or out of, the building, entering it, or
even within it, would not preclude a conviction for
statutory burglary if the circumstantial evidence was
strong enough to prove guilt of the crime charged
beyond a reasonable doubt’’). Accordingly, the lack of
any direct evidence that the defendant was on the Ston-
ington property does not mean that no factual predicate
existed for the trial court’s admission of Driscoll’s testi-
mony, as long as there was other circumstantial evi-
dence of his involvement in the charged crimes.
Applying this principle, we are persuaded, based on
our review of the record, that there was sufficient cir-
cumstantial evidence of the defendant’s intent to partic-
ipate in the Stonington burglary to serve as the factual
predicate for the trial court’s admission of Driscoll’s
testimony regarding the defendant’s uncharged miscon-
duct in Rhode Island. The Stonington evidence included
(1) Wesson’s initial observation of an unfamiliar, dark
colored Saab convertible with Massachusetts license
plates parked across the street from the Stanton home,
which was then unoccupied, with no one in or around
the vehicle, (2) footprints in the snow going from the
front of the Stanton home to the back door, (3) weather
stripping on the back door that had been manipulated
or moved, leaving damage consistent with a forced
entry, (4) Wesson’s subsequent observation of a man
sitting in the driver’s seat of the Saab convertible with
the passenger door open and another man in the middle
of the street, apparently looking for something, before
they drove away, and (5) the discovery of tools that
could have been used in a forcible entry of the Stanton
home, including a screwdriver and a pry bar, and the
finding of a gemstone, similar to a gemstone missing
from a piece of the stolen jewelry, in the black Saab
convertible with Massachusetts license plates that Cote
and the defendant were driving in Rhode Island.
The defendant nonetheless contends that, under
State v. Baldwin, 224 Conn. 347, 618 A.2d 513 (1993),
and State v. Randolph, 284 Conn. 328, 933 A.2d 1158
(2007), Driscoll’s testimony had little relevance or pro-
bative value because the charged and uncharged crimes
were not remarkably similar. Neither Baldwin nor Ran-
dolph suggests, however, that the uncharged crime must
be remarkably similar to the charged crime in order to
be relevant. Rather, Baldwin discussed the principle
of remarkable similarity only in considering the height-
ened probative value of uncharged misconduct evi-
dence following a determination that such evidence
was relevant to prove the charged offense. See State v.
Baldwin, supra, 355 (fact that other misconduct evi-
dence ‘‘was remarkably similar both in kind and loca-
tion’’ to evidence of charged crime made other mis-
conduct evidence ‘‘that much more probative’’), citing
United States v. Jones, 913 F.2d 1552, 1566 (11th Cir.
1990), and United States v. Dunbar, 614 F.2d 39, 42
(5th Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65
L. Ed. 2d 1120 (1980).
Randolph also is inapposite because the passage in
Randolph cited by the defendant addressed the ways
in which uncharged misconduct evidence could be used
to establish the existence of a common plan or scheme,
which is not the issue in the present case. State v.
Randolph, supra, 284 Conn. 356. Furthermore, the
defendant cites only that portion of the analysis in Ran-
dolph favorable to his position. This court stated in
Randolph that, although uncharged misconduct evi-
dence may be introduced to prove a common plan or
scheme if there are marked similarities between the
charged and uncharged crimes, uncharged misconduct
evidence also may be introduced when there is no
marked similarity between the crimes, but ‘‘the nature
of the charged and uncharged crimes, combined with
connecting evidence, if any . . . give[s] rise to an infer-
ence that a common scheme or plan existed.’’ Id. Thus,
in addition to the fact that Randolph did not address
the issue of intent, as it is raised in this appeal, the
defendant ignores this court’s recognition in Randolph
that marked similarities are not necessarily required
even when there is an attempt to prove the existence
of a common plan or scheme.
We also disagree with the defendant’s second claim
regarding relevance, which is that, even if Driscoll’s
testimony was somewhat relevant to the act of breaking
into the Stanton home, it had no bearing on whether
the defendant intended to steal the Stantons’ property
once he got inside. We stated in State v. Zayas, 195
Conn. 611, 490 A.2d 68 (1985), that ‘‘[c]ommon experi-
ence tells us that an unlawful entry into a dwelling . . .
is not without purpose. Nor are people accustomed
to enter[ing] homes of strangers [unlawfully] . . . for
innocent purposes. To any person of ordinary intelli-
gence, the expected [byproduct] of a surreptitious
unlawful entry into the home of another is theft.’’ Id.,
617. We thus concluded in Zayas that ‘‘two sets of pry
marks on the window sill bespeak criminal purpose.’’
Id., 618. Likewise, in the present case, footprints in the
snow leading to the back door of the Stanton home,
damage to the back door consistent with a break-in, a
gemstone discovered in the Saab convertible matching
a gemstone missing from a piece of the stolen jewelry,
and other circumstantial evidence connected with the
burglary were indicative of a break-in and an intent to
steal. See, e.g., State v. Spikes, 111 Conn. App. 543, 557,
961 A.2d 426 (2008) (evidence of footprints matching
defendant’s boots in direction of and inside screened
in porch, partial removal of screen door, and damage to
window of dwelling allowed jury to find that defendant
forcibly entered dwelling and to infer that defendant
intended to commit burglary and larceny), cert. denied,
290 Conn. 901, 967 A.2d 114, cert. denied, 558 U.S. 898,
130 S. Ct. 249, 175 L. Ed. 2d 170 (2009).
Moreover, the foregoing evidence was not the only
evidence of the defendant’s intent to steal once he was
inside the Stanton home. We have stated that evidence
of conduct subsequent to the commission of a crime
also may be admissible to prove intent. See, e.g., State
v. Croom, 166 Conn. 226, 230, 348 A.2d 556 (1974) (‘‘evi-
dence of the conduct of a defendant subsequent to
the commission of a crime is admissible to show the
defendant’s state of mind at the time of the crime . . .
[and] is simply an application of the general principle
that an individual’s conduct may constitute evidence of
his mental state’’). In the present case, the defendant’s
misconduct in Rhode Island, which takes on added sig-
nificance because it occurred only a few hours after
the Stonington burglary, is just as probative of the
defendant’s intent to steal from the Stanton home as
the evidence found on the Stonington property and
inside the Saab convertible. Driscoll observed the
defendant and Cote peering surreptitiously into the
garage through a window and a door, one of the men
repeatedly looking over his shoulder while he was peer-
ing into the house, and both men walking back to the
Saab convertible and driving away after they noticed
Driscoll watching. See, e.g., State v. Sinclair, supra,
197 Conn. 578 (‘‘[The defendant’s] unlawful and surrep-
titious presence in the student suite and closet, [and]
his flight and his struggle with the police upon his appre-
hension are all indicative of criminal purpose. The jury
was entitled to apply its own knowledge and experience
of human nature to this evidence . . . and to infer
therefrom that the defendant was not merely tres-
passing.’’ [Citation omitted.]); State v. Perry, 195 Conn.
505, 522, 488 A.2d 1256 (1985) (evidence of several
robberies in area where crime occurred in which defen-
dant and others participated ‘‘was very probative on
the issue of the defendant’s state of mind, tending to
negate his claims of duress and ignorance of his com-
panion’s criminal intent’’). We therefore conclude that
Driscoll’s testimony was relevant and probative to
prove the defendant’s intent to steal once he got inside
the Stanton home.
In insisting that Driscoll’s testimony had no bearing
on whether the defendant intended to steal once he got
inside the Stanton home, the defendant relies primarily
on State v. Meehan, 260 Conn. 372, 796 A.2d 1191 (2002),
in which we drew a distinction between ‘‘using [other
misconduct] evidence to prove an act and using [such]
evidence to prove intent . . . .’’ Id., 396. The defendant
claims there is no meaningful distinction between Mee-
han and the present case because both involved testi-
mony regarding other misconduct by the defendant to
prove his specific intent, and, in both cases, the testi-
mony proved only the defendant’s alleged propensity
to commit certain criminal acts. We disagree.
In Meehan, the defendant, a police officer who was
convicted of larceny for stealing money from a drug
suspect, Manuel Villarmarin, during the course of a
patdown search, challenged the admission of testimony
that he had stolen money from another drug suspect,
Vincenzo Befi, one year earlier during a similar, unre-
lated patdown search to prove his intent to steal money
from Villarmarin. Id., 374–75, 390–91. In concluding that
the trial court improperly had admitted evidence of the
defendant’s prior alleged uncharged misconduct, we
observed: ‘‘Befi’s testimony that the defendant allegedly
took some of [his] money during a search for illegal
narcotics does not render it more or less likely that the
defendant, during a subsequent, unrelated search of
Villarmarin, had the specific intent to appropriate the
money in Villarmarin’s possession. If believed, Befi’s
testimony would establish that the defendant had
searched him and that, during the course of that search,
the defendant had taken some of the money in Befi’s
possession. This evidence tends to suggest only the
likelihood of the defendant’s actions with respect to
Villarmarin, namely, the likelihood that he also searched
and took money from Villarmarin. It does not, however,
establish that he had the requisite state of mind when he
engaged in that conduct.’’ (Emphasis omitted.) Id., 395.
The present case is distinguishable from Meehan
because the conduct at issue in that case, unlike the
conduct in the present case, was ‘‘a common and rou-
tine police practice in which [the defendant] frequently
was required to participate.’’ Id., 396. Consequently, the
prior misconduct in Meehan was not relevant to the
defendant’s intent to commit the charged crime because
such searches were performed routinely by all police
officers in the course of their normal duties, and, there-
fore, criminal intent could not be inferred from such a
routine practice. See id.
Having concluded that Driscoll’s testimony was rele-
vant, we next consider whether its probative value was
outweighed by its prejudicial effect. ‘‘Although relevant,
evidence may be excluded by the trial court if the court
determines that the prejudicial effect of the evidence
outweighs its probative value. . . . Of course, [a]ll
adverse evidence is damaging to one’s case, but it is
inadmissible only if it creates undue prejudice so that
it threatens an injustice were it to be admitted. . . .
The test for determining whether evidence is unduly
prejudicial is not whether it is damaging to the defen-
dant but whether it will improperly arouse the emotions
of the jur[ors].’’ (Internal quotation marks omitted.)
State v. Pena, supra, 301 Conn. 675–76. Relevant evi-
dence also may be unduly prejudicial when ‘‘the proof
and answering evidence it provokes may create a side
issue that will unduly distract the jury from the main
issues,’’ when ‘‘the evidence offered and the count-
erproof will consume an undue amount of time,’’ and
when ‘‘the defendant, having no reasonable ground to
anticipate the evidence, is unfairly surprised and
unprepared to meet it.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Coccomo, 302 Conn.
664, 673, 31 A.3d 1012 (2011). ‘‘The trial court . . . must
determine whether the adverse impact of the challenged
evidence outweighs its probative value. . . . Finally,
[t]he trial court’s discretionary determination that the
probative value of evidence is not outweighed by its
prejudicial effect will not be disturbed on appeal unless
a clear abuse of discretion is shown. . . . [B]ecause
of the difficulties inherent in this balancing process
. . . every reasonable presumption should be given in
favor of the trial court’s ruling. . . . Reversal is
required only [when] an abuse of discretion is manifest
or [when] injustice appears to have been done.’’ (Inter-
nal quotation marks omitted.) State v. Pena, supra, 676.
In the present case, we conclude that Driscoll’s testi-
mony regarding the defendant’s misconduct in Rhode
Island was not unduly prejudicial because it did not
satisfy the well established criteria for exclusion on
that ground. Peering into the windows of a stranger’s
home, repeated surreptitious glances to see if anyone
is watching, and leaving the property upon becoming
aware that one is being observed by a police officer are
actions commonly associated with actual or potential
misconduct and would not have distracted the jurors
or aroused their emotions. In addition, the testimony
did not consume an undue amount of time and did not
unfairly surprise the defendant in light of the state’s
prior motion seeking to introduce it.
Moreover, there was other significant evidence
before the jury implicating the defendant in the Stoning-
ton burglary, thus diluting any potential prejudicial
effect of Driscoll’s testimony regarding the defendant’s
conduct in Rhode Island. This included his observations
that the defendant and Cote were driving a black Saab
convertible with Massachusetts license plates, the
defendant was a passenger, and the defendant was
wearing a sweatshirt type of jacket, all of which were
consistent with Wesson’s observations in Stonington.
In addition, the jury heard incriminating evidence
describing footprints in the snow leading to the back
door of the Stanton home, damage to the back door
consistent with a break-in, the discovery of tools in the
Saab convertible that could be used in a break-in, and
a gemstone matching a missing gemstone in a piece of
the stolen jewelry.
Finally, the court gave the jury detailed limiting
instructions immediately after Driscoll’s testimony
describing what he had observed in Rhode Island and,
again, in its final instructions, thus minimizing any
potential prejudice. See footnotes 5 and 6 of this opin-
ion. ‘‘[A] trial court’s limiting instructions about the
restricted purpose for which the jury may consider prior
misconduct evidence serve to minimize any prejudicial
effect that such evidence otherwise may have had
. . . .’’ (Internal quotation marks omitted.) State v. Cut-
ler, 293 Conn. 303, 314, 977 A.2d 209 (2009). We there-
fore conclude that the Appellate Court properly
determined that the trial court did not abuse its discre-
tion in admitting Driscoll’s testimony because the testi-
mony was relevant and not unduly prejudicial.
II
The defendant’s second claim is that the Appellate
Court improperly concluded that P.A. 09-138, § 2, did
not apply retroactively because its provisions were
ameliorative and intended to correct nearly three
decades of legislative inaction. The defendant specifi-
cally claims that, because he committed the larceny
before the passage of P.A. 09-138, § 2, but was convicted
and sentenced thereafter, he should have benefited
under the amelioration doctrine from the increase in the
minimum value element of the second degree larceny
statute from $5000 to $10,000, which would have
resulted in a downgrade of the second degree larceny
charge to third degree larceny and a reduction in his
sentence.7 He also claims that there was a clear legisla-
tive intent to apply the amendment retroactively and
that retroactive application of the amendment would
save the state money by reducing the costs associated
with the incarceration and supervised release of prison-
ers. The state responds that adoption of the ameliora-
tion doctrine would impermissibly invade the province
of the legislature. We agree with the state.
The following additional facts are relevant to our
resolution of this claim. As previously noted, the defen-
dant and Cote were tried together. The second count
of the substitute information in both the defendant’s
and Cote’s cases alleged that, on or about January 27,
2009, the defendant ‘‘did commit a larceny and the value
of the property did exceed [$5000] in violation of [Gen-
eral Statutes (Rev. to 2009) §] 53a-123 (a) . . . .’’ After
the close of the evidence, the defendant joined Cote in
moving to strike the second count because the value
of the stolen property was approximately $8000, but,
by the time of the trial in March, 2010, the second degree
larceny statute had been amended by P.A. 09-138, § 2,
resulting in an increase in the minimum value of prop-
erty stolen necessary to constitute the offense from
$5000 at the time of the crime to $10,000. The trial
court denied the motion, and the defendant and Cote
subsequently were convicted of second degree larceny.
Although they had been tried together, the defendant
and Cote filed separate appeals with the Appellate
Court, which affirmed the trial court’s judgments. State
v. Kalil, supra, 136 Conn. App. 483; State v. Cote, 136
Conn. App. 427, 453, 46 A.3d 256 (2012). Upon the grant-
ing of certification, both the defendant and Cote
appealed to this court. The defendant initially did not
claim that P.A. 09-138, § 2, applied retroactively because
he had not made that claim in the Appellate Court.8
Cote, however, had made such a claim, and, following
its rejection by the Appellate Court; State v. Cote, supra,
441; he renewed the claim on appeal to this court. There-
after, we granted the defendant’s motion for permission
to add a similar claim, specifically, whether the Appel-
late Court properly had determined that P.A. 09-138, § 2,
did not apply retroactively. We now address that claim.
Whether P.A. 09-138, § 2, may be applied retroactively
to crimes committed before its effective date of October
1, 2009, is a question of law over which we exercise
plenary review. See, e.g., State v. Nowell, 262 Conn. 686,
701, 817 A.2d 76 (2003). ‘‘In criminal cases, to determine
whether a change in the law applies to a defendant, we
generally have applied the law in existence on the date
of the offense, regardless of its procedural or substan-
tive nature.’’ In re Daniel H., 237 Conn. 364, 377, 678
A.2d 462 (1996). This principle is derived from the legis-
lature’s enactment of savings statutes such as General
Statutes § 54-194, which provides that ‘‘[t]he repeal of
any statute defining or prescribing the punishment for
any crime shall not affect any pending prosecution or
any existing liability to prosecution and punishment
therefor, unless expressly provided in the repealing stat-
ute that such repeal shall have that effect,’’ and General
Statutes § 1-1 (t), which provides that ‘‘[t]he repeal of an
act shall not affect any punishment, penalty or forfeiture
incurred before the repeal takes effect, or any suit, or
prosecution, or proceeding pending at the time of the
repeal, for an offense committed, or for the recovery of
a penalty or forfeiture incurred under the act repealed.’’
The defendant argues that, despite the mandate of
the Connecticut savings statutes, this court should
adopt the amelioration doctrine and permit the retroac-
tive application of P.A. 09-138, § 2, to the second degree
larceny statute under which he was charged. The ame-
lioration doctrine provides that ‘‘amendments to stat-
utes that lessen their penalties are applied retroactively
. . . .’’ State v. Graham, 56 Conn. App. 507, 511, 743
A.2d 1158 (2000); see also Castonguay v. Commis-
sioner of Correction, 300 Conn. 649, 663, 16 A.3d 676
(2011) (‘‘when [the] [l]egislature has amended [a] stat-
ute to mitigate [the] penalty for a crime, [the] new law
applies to cases in which [the] defendant committed
[the] crime before [the] amendment, but was sentenced
after [the] amendment’’), citing In re Estrada, 63 Cal.
2d 740, 745–46, 408 P.2d 948, 48 Cal. Rptr. 172 (1965).
The defendant also cites cases from numerous other
jurisdictions that have adopted the amelioration doc-
trine and argues that there is no basis, other than a
desire for vengeance, not to apply retroactively the leg-
islature’s considered judgment effectively reducing the
punishment for larceny in the second degree. We dis-
agree.
We noted in Castonguay that ‘‘[t]his court has not
previously held that ameliorative changes to criminal
statutes apply retroactively’’; Castonguay v. Commis-
sioner of Correction, supra, 300 Conn. 663 n.14; and
we decline to do so in the present case because the
doctrine is in direct contravention of Connecticut’s sav-
ings statutes.9 See State v. Graham, supra, 56 Conn.
App. 511 (concluding that to adopt amelioration doc-
trine essentially would cause ‘‘court to intervene in the
legislative process to nullify by judicial fiat the legisla-
ture’s savings statutes’’); see also State v. Harris, 198
Conn. 158, 168, 502 A.2d 880 (1985) (rejecting defen-
dant’s argument that he should not be prosecuted under
statute in effect at time of crime but under amended
statute and stating that, ‘‘[i]n order to accept the defen-
dant’s argument . . . [the court] would have to ignore
the savings clause embodied in . . . § 54-194’’); State
v. DeMartin, 171 Conn. 524, 529, 370 A.2d 1038 (1976)
(‘‘[w]hen . . . a saving provision exists, a crime com-
mitted prior to the effective date of the repealing act
remains punishable under the terms of the prior statute’’
[internal quotation marks omitted]); State v. Pastet, 152
Conn. 81, 85, 203 A.2d 287 (1964) (‘‘[i]n the absence of
any expressed legislative intent that [the public act]
should apply retroactively, we dismiss this attempt by
the defendant [to persuade the court otherwise] without
further comment’’); Dortch v. State, 142 Conn. 18, 29,
110 A.2d 471 (1954) (‘‘[t]he legislature expressed no
intent that [the amended statute] should operate retro-
spectively, and it has no retrospective effect’’). There
are limits to judicial authority in this context, and we
agree with the United States Supreme Court that,
‘‘[w]hatever views may be entertained regarding sever-
ity of punishment, whether one believes in its efficacy
or its futility . . . these are peculiarly questions of leg-
islative policy.’’ (Internal quotation marks omitted.)
State v. Darden, 171 Conn. 677, 679, 372 A.2d 99 (1976),
quoting Gore v. United States, 357 U.S. 386, 393, 78 S.
Ct. 1280, 2 L. Ed. 2d 1405 (1958). Thus, although ‘‘the rule
of separation of governmental powers cannot always be
rigidly applied . . . it must be remembered that the
constitution assigns to the legislature the power to
enact laws defining crimes and fixing the degree and
method of punishment and to the judiciary the power
to try offenses under these laws and impose punishment
within the limits and according to the methods therein
provided.’’ (Citation omitted.) State v. Darden, supra,
679–80. Accordingly, in light of Connecticut’s savings
statutes and the well recognized constraints placed on
the exercise of judicial authority in fixing the degree
and method of punishment, we decline to establish a
new rule allowing application of the amelioration doc-
trine in Connecticut.
We also reject the defendant’s vengeance argument.
In addition to the fact that the savings statutes preclude
judicial application of the amelioration doctrine in this
jurisdiction, applying the doctrine could result in the
unequal treatment of defendants who commit the crime
of second degree larceny on the same day but whose
trials proceed at a different pace, thus resulting in some
defendants being convicted under the law in effect at
the time the crime was committed and others under
the law enacted following commission of the crime. As
another court similarly explained: ‘‘We cannot say that
a legislature could not rationally conclude that the best
approach would be a purely prospective one, so that
all defendants who committed crimes before the statute
became effective would be treated equally. Otherwise,
sentencings could get caught up in manipulations with
unfair results overall. Some convicted felons, for exam-
ple, might be able to arrange sentencing delays to take
advantage of the new sentencing scheme, whereas oth-
ers could not achieve the same result before less sympa-
thetic judges. But, more fundamentally, we see nothing
irrational in a legislative conclusion that individuals
should be punished in accordance with the sanctions
in effect at the time the offense was committed, a view-
point encompassed by the savings statutes themselves.’’
Holiday v. United States, 683 A.2d 61, 78–79 (D.C. 1996),
cert. denied sub nom. Palmer v. United States, 520 U.S.
1162, 117 S. Ct. 1349, 137 L. Ed. 2d 506 (1997). This
court has also recognized that ‘‘[i]t is unlikely that the
legislature would have intended for two similarly situ-
ated offenders to receive . . . disparate treatment
solely on the fortuity of when their cases came to trial.’’
Johnson v. Commissioner of Correction, 258 Conn. 804,
829, 786 A.2d 1091 (2002); cf. State Board of Labor
Relations v. Freedom of Information Commission, 244
Conn. 487, 499–500, 709 A.2d 1129 (1998) (if two con-
structions of statute are possible and one alternative
produces likelihood of untenable or irrational results,
more reasonable interpretation should be adopted).
Accordingly, the defendant’s vengeance argument has
no merit.
The defendant further maintains that Connecticut’s
two general savings statutes do not bar the retroactive
application of P.A. 09-138, § 2, because courts in other
jurisdictions have held that general savings statutes do
not preclude application of the amelioration doctrine
when the governing criminal statutes do not contain
specific savings clauses, and that the history of §§ 54-
194 and 1-1 (t) demonstrates that the legislature enacted
the statutes to negate the effect of the common-law
abatement doctrine rather than to prevent ameliorative
amendments from having retroactive application. We
disagree. We do not find persuasive the decisions of
other courts interpreting their savings statutes in light of
their own unique state constitutional and jurisdictional
constraints. See, e.g., State v. Reis, 115 Haw. 79, 90–91,
165 P.3d 980 (2007). With respect to the history of the
Connecticut savings statutes, it is true that §§ 54-194
and 1-1 (t) were enacted in 1871 and 1881, respectively,
to counter the effect of the common-law abatement
doctrine. See Simborski v. Wheeler, 121 Conn. 195, 198–
99, 183 A. 688 (1936); see also Public Acts 1871, c. 107
(now codified as amended at § 54-194); Public Acts
1881, c. 1 (now codified at § 1-1 [t]). Nevertheless, the
legislature has not seen fit to amend the statutes in
any material respects for more than 130 years, even
following this court’s determination in various cases
that the savings statutes do not allow for application
of the amelioration doctrine except on a case-by-case
basis when the legislative intent to do so is clearly
expressed in the governing criminal statute. See, e.g.,
State v. Harris, supra, 198 Conn. 168. Accordingly, we
reject both of the defendant’s foregoing arguments.
The defendant finally contends that the legislative
history of P.A. 09-138, § 2, suggests that the act should
be applied retroactively. Although he acknowledges
that neither P.A. 09-138, § 2, in its original form nor as
subsequently codified at General Statutes (Supp. 2010)
§ 53a-123 indicates whether the provision was intended
to be retroactive or prospective, he claims that the
statute’s legislative history demonstrates that it was
intended to be retroactive. He relies for this conclusion
on the Judiciary Committee’s joint favorable report on
House Bill No. 6576, 2009 Sess., which provides that an
adjustment in the value element of the second degree
larceny statute was being made to ‘‘more accurately
reflect the actual values today,’’ as compared to when
the statute was ‘‘last updated in 1982 . . . .’’ Judiciary
Committee, Joint Favorable Report, House Bill No.
6576, 2009 Sess. He also relies on the fiscal note
attached to the bill providing that its passage would
result in ‘‘potentially significant’’ savings in the costs
of probation supervision and incarceration. Id. We
disagree.
It is well established that ‘‘[t]he interpretation and
application of a statute . . . involves a question of law
over which our review is plenary.’’ State v. Heredia,
310 Conn. 742, 755, 81 A.3d 1163 (2013). ‘‘The process
of statutory interpretation involves the determination
of the meaning of the statutory language as applied to
the facts of the case . . . . When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case . . . . In seeking to determine
that meaning . . . [General Statutes] § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and common law
principles governing the same general subject matter
. . . . We recognize that terms in a statute are to be
assigned their ordinary meaning, unless context dic-
tates otherwise . . . .’’ (Footnote omitted; internal
quotation marks omitted.) Id., 755–56.
In the present case, the effective date of P.A. 09-138,
§ 2, was October 1, 2009. This fact, and the absence of
any express language in the provision referring to its
retroactive application, indicates that the legislature
intended P.A. 09-138, § 2, to be applied prospectively
only. See, e.g., Davis v. Commissioner of Correction,
133 Conn. App. 458, 467, 37 A.3d 758 (2012) (‘‘[t]he
presumption that [a statute] has only prospective effect
can be overcome only by a clear and unequivocal
expression of legislative intent that the statute shall
apply retrospectively’’ [internal quotation marks omit-
ted]). If the legislature had intended P.A. 09-138, § 2, to
apply retroactively to those who had committed the
crime of second degree larceny prior to October 1, 2009,
but had yet to be sentenced, it could have used ‘‘clear
and unequivocal’’ language to evince such an intent. Id.
Accordingly, there is no ambiguity in P.A. 09-138, § 2,
that would require us to examine its legislative history
to determine the legislature’s intent. We therefore con-
clude that the Appellate Court properly determined that
P.A. 09-138, § 2, did not apply retroactively.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and VERTEFEUILLE, Js., concurred.
1
General Statutes § 53a-103 (a) provides: ‘‘A person is guilty of burglary
in the third degree when he enters or remains unlawfully in a building with
intent to commit a crime therein.’’
2
General Statutes (Rev. to 2009) § 53a-123 (a) provides in relevant part:
‘‘A person is guilty of larceny in the second degree when he commits larceny,
as defined in section 53a-119, and . . . (2) the value of the property . . .
exceeds five thousand dollars . . . .’’
3
Section 2 of P.A. 09-138, entitled ‘‘An Act concerning Larceny,’’ increased
the value required for an offense constituting larceny in the second degree
as follows: ‘‘(a) A person is guilty of larceny in the second degree when he
commits larceny, as defined in section 53a-119, and . . . (2) the value of
the property . . . exceeds ten thousand dollars . . . .’’ P.A. 09-138, § 2,
codified at General Statutes (Supp. 2010) § 53a-123 (a) (2). Thus, under the
statutory scheme at the time of the defendant’s conviction, the value of the
property taken would have qualified for a charge of larceny in the third
degree; see General Statutes (Supp. 2010) § 53a-124 (a) (2); a class D felony
with a maximum sentence of five years; see General Statutes (Supp. 2010)
§ 53a-124 (c); General Statutes § 53a-35a (8); rather than a class C felony
with a maximum sentence of ten years under the statute in effect at the
time the crime was committed. See General Statutes (Rev. to 2009) § 53a-
123 (c); General Statutes § 53a-35a (7).
4
Although the defendant and Cote were tried together, they filed sepa-
rate appeals.
5
‘‘The court [gave] the following . . . limiting instruction: The evidence
offered by the state of alleged subsequent acts of misconduct by the [defen-
dant] at [the Rhode Island property] is not being admitted to prove the bad
character of . . . the [defendant] or . . . the defendant’s tendency to com-
mit a criminal act. This evidence is being admitted to show or establish the
existence of . . . the defendant’s intent on the charges of burglary and/or
larceny, which is a necessary element of each of those crimes.
‘‘It is also being offered to place in . . . context the events alleged to
as establishing a predisposition on the part of [the] defendant to commit
the crimes charged or to demonstrate a criminal propensity. You may con-
sider such evidence if you conclude that such conduct occurred and further
find that it logically, rationally, and conclusively supports the issues for
which it is being offered by the state, but only as it may bear on the issue
of intent or placing the events of the date in context.
‘‘On the other hand, if you do not conclude that such conduct occurred,
or, even if you do, if you find that it didn’t logically, rationally, and conclu-
sively assist on the issue of . . . intent or placing into context the alleged
events that occurred on the date in question, you may not consider the
testimony for any purpose . . . .’’ (Internal quotation marks omitted.) State
v. Kalil, supra, 136 Conn. App. 462 n.7.
6
‘‘The court . . . [charged the jury after closing arguments as follows]:
Any testimony or evidence which I identified as being limited to a purpose,
you will consider only as it relates to the limits for which it was allowed,
and you will not consider such testimony and evidence in finding any other
facts as to any other issue.
‘‘For example, the state offered evidence of the alleged act by . . . the
[defendant], which occurred shortly after the act alleged to have occurred
at the [Stonington property] . . . . The evidence offered by the state of
subsequent acts of alleged misconduct by the [defendant] at or near [the
Rhode Island property] was not admitted to prove the bad character of . . .
the [defendant] or . . . the defendant’s tendency to commit criminal acts.
This evidence was admitted solely to show or establish the existence of
. . . the defendant’s intent on the charges contained in [the] information
of burglary and/or larceny, which is a necessary element of each of these
crimes. It was also offered to place into context . . . the events alleged to
have occurred on the date in question.
‘‘You may not consider such evidence as establishing a predisposition on
the part of [the] defendant to commit the crimes charged or to demonstrate
a criminal propensity. You may consider such evidence if you conclude that
such conduct occurred and further find that it logically, rationally, and
conclusively supports the issues for which it is being offered by the state,
but only as it may bear on the issue of intent or placing the events of the
date . . . into context.
‘‘On the other hand, if you do not conclude that such conduct occurred,
or, even if you do, if you find that it doesn’t logically, rationally, and conclu-
sively assist on the issue of intent or placing into context the events alleged
to have occurred on the date in question, you may not consider this testimony
for any purpose.’’ (Internal quotation marks omitted.) State v. Kalil, supra,
136 Conn. App. 462–63 n.8.
7
The statutory maximum for larceny in the third degree in effect at the
time of the defendant’s conviction was five years incarceration. See General
Statutes (Supp. 2010) § 53a-24 (c); General Statutes § 53a-35a (8).
8
The defendant specifically claimed that ‘‘(1) the [trial] court improperly
admitted the testimony of [Driscoll] because the prejudicial effect of his
testimony far outweighed its probative value, (2) there was insufficient
evidence to prove that the defendant was guilty of burglary in the third
degree or larceny in the second degree, and (3) the court improperly joined
the defendant’s trial with that of . . . [Cote’s], when their defenses were
mutually antagonistic.’’ State v. Kalil, supra, 136 Conn. App. 456.
9
Justice Eveleigh, in his concurring and dissenting opinion, disagrees with
this conclusion, stating that ‘‘[the] savings statutes do not apply because
we are not dealing with the repeal of a statute, as required by the savings
statutes; rather, we are dealing with an amendment to a statute.’’ Justice
Eveleigh subsequently reiterates that, ‘‘[i]n the present case, the legislature
did not expressly repeal the prior statute. Rather, it merely amended the
monetary provisions that classified the degree of the crime.’’ For all practical
purposes, however, this is a distinction without a difference, because the
legislature typically repeals an existing statute before enacting its replace-
ment containing the amended language. See State v. Kozlowski, 199 Conn.
667, 675, 509 A.2d 20 (1986) (‘‘[t]he legislature characteristically casts acts
which alter language within existing statutory subsections in the form of
repeal and substitution, reserving the label of amendment for acts which
add entirely new subsections’’). Furthermore, even if this was not the usual
practice, the legislature in the present case repealed the existing second
degree larceny statute in its entirety before replacing it with a nearly identical
statute containing the change relating to the value of the property stolen
necessary to constitute the offense. The introductory language of P.A. 09-
138, § 2, specifically provides: ‘‘Section 53a-123 of the general statutes is
repealed and the following is substituted in lieu thereof (Effective October
1, 2009) . . . .’’ (Emphasis in original.) Accordingly, contrary to Justice
Eveleigh’s claim, the legislature expressly repealed the prior second degree
larceny statute before enacting the amendments contained in P.A. 09-138, § 2.