State v. Marsan ( 2019 )

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STATE OF CONNECTICUT v. KRIS MARSAN
(AC 40396)
Prescott, Elgo and Bishop, Js.
Syllabus
Convicted, after a jury trial, of the crimes of burglary in the third degree
and larceny in the sixth degree, the defendant appealed to this court.
The defendant, who had worked for the elderly victim as a home aide,
assisting her with various daily activities, was convicted in connection
with her conduct in taking money and jewelry from the victim’s bedroom,
while the victim was away at a facility rehabilitating injuries that she
had sustained in a fall in her home. During that time, the victim’s son
had placed a hidden camera in the victim’s bedroom, which recorded
the defendant rummaging through the victim’s dressers and removing
cash from an envelope and a tin. The son filed a complaint with the
police and provided them with a copy of the video recording. Thereafter,
T and M, detectives, visited the defendant at her home to discuss the
complaint and the video recording. The defendant invited the detectives
into her home, and her minor son who was present was asked to leave the
room before they discussed the matter. The detectives then proceeded to
play the video on a laptop computer for the defendant, who immediately
identified herself as the person depicted in the victim’s bedroom remov-
ing money from the envelope and the tin, and, thereafter, admitted to
taking jewelry from the victim’s home. At trial, the defendant filed a
motion to suppress all statements she made to T and M at her home on
the ground that the statements were the result of a custodial investigation
without her being provided with warnings pursuant to Miranda v. Ari-
zona (384 U.S. 436). Following an evidentiary hearing, the trial court
denied the motion to suppress, concluding that the defendant was not
in custody for purposes of Miranda when she was questioned by the
detectives at her home. Held:
1. There was insufficient evidence to support the defendant’s conviction of
burglary in the third degree, as she was licensed and privileged to be
in the victim’s home at the time she committed the crime of larceny
and at no time was the license either explicitly or implicitly revoked,
and this court declined the state’s invitation to extend to the facts of
this case the narrow exception that a license to remain in a premises
is implicitly revoked upon the commission of a crime in a manner that
is likely to terrorize its occupants; although the state relied on that
exception in support of its contention that there was sufficient evidence
for the jury to conclude that the defendant’s license to remain in the
victim’s home was implicitly revoked the moment she committed the
larceny, to extend the exception would enlarge the crime of burglary
to an untenable degree, and the state presented no evidence from which
the jury reasonably could have concluded that that the defendant com-
mitted larceny in a manner likely to terrorize the victim or occupants
in the victim’s home, which evidence was necessary to prove that the
defendant’s license to be in the victim’s home had been revoked and
that she had remained in the home unlawfully, as it was undisputed
that only the defendant was present in the victim’s home when she
committed the larceny, and she could not have committed a larceny in
a manner likely to terrorize a victim who was not in the home at the time.
2. The defendant could not prevail on her claim that the trial court improperly
denied her motion to suppress the statements she made to T and M
while watching the video recording in her home, that court having
reasonably concluded that the defendant was not in custody for purposes
of Miranda when she was questioned by the detectives; no reasonable
person in the defendant’s position would have felt that she was in
custody for purposes of Miranda, as the record revealed that throughout
her encounter with T and M, the defendant was in her home, free to
move around and not restrained, that T and M were dressed in plain
clothes and were invited by the defendant into her home to discuss
the complaint, that although there was a dispute as to who asked the
defendant’s son to leave the room, the defendant continued to engage
in small talk with the detectives in her kitchen as she put away her
groceries, that there were no threats of arrest at any point during the
encounter, which lasted no more than one hour, and that the defendant
remained in the home after the detectives left, and the fact that the
defendant was a suspect at the time of the encounter did not transform
the encounter into a custodial interrogation.
Argued March 11—officially released August 20, 2019
Procedural History
Substitute information charging the defendant with
two counts of the crime of burglary in the third degree
and with the crime of larceny in the third degree,
brought to the Superior Court in the judicial district
of Fairfield, geographical area number two, where the
court, Holden, J., denied the defendant’s motion to sup-
press certain statements; thereafter, the matter was
tried to the jury; verdict and judgment of guilty of one
count of burglary in the third degree and of the lesser
include offense of larceny in the sixth degree, from
which the defendant appealed to this court. Reversed
in part; judgment directed; further proceedings.
James B. Streeto, senior assistant public defender,
with whom was Declan J. Murray, former certified
legal intern, for the appellant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Richard L. Palumbo, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Kris Marsan, appeals from
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, and one count of larceny
in the sixth degree in violation of General Statutes § 53a-
125b. On appeal, the defendant claims that (1) the evi-
dence was insufficient to establish that she ‘‘unlawfully
remained’’ on the victim’s property with respect to bur-
glary in the third degree, and (2) the trial court improp-
erly denied her motion to suppress statements she had
made to police officers during an interview in her home
without being provided with Miranda1 warnings. We
agree with the defendant’s first claim and, therefore,
reverse in part the judgment of the trial court.
On the basis of the evidence adduced at trial, the
jury reasonably could have found the following facts.
The defendant began working as a home aide for the
widowed eighty-six year old victim, Eleanor Beliveau,
in May, 2014. The defendant was hired to assist the
victim with grocery shopping, cleaning, laundry, and
various other daily activities. The victim’s long-term
insurance plan required that she first pay the defendant
directly before seeking reimbursement from her insurer
by submitting a form detailing the defendant’s work.
At all relevant times, the victim’s son, Ronald Beliveau,2
had power of attorney over his mother’s affairs and
continued to assist with his mother’s finances.
In January, 2015, the victim sustained serious injuries
from a fall in her home. After her hospitalization, the
victim subsequently began her rehabilitation at a facility
for the elderly where she would remain until February
13, 2015. As a result, the defendant’s work hours were
reduced. Nevertheless, she continued to perform tasks
at the victim’s home and remained in frequent contact
with Beliveau. The defendant, however, soon became
concerned about the reduction in her hours. At first,
she asked Beliveau to submit reimbursement request
forms to the victim’s provider to frontload her hours
so that she could be paid up front. Beliveau declined
the offer, believing that to do so would amount to fraud.
Frustrated with his answer, the defendant threatened
to quit.
From those conversations, Beliveau became suspi-
cious of the defendant’s behavior and grew concerned
about the valuables that remained in the victim’s vacant
home. In late January, 2015, his suspicions intensified
after he noticed both a discrepancy in the amount of
money that the victim kept in an envelope for emergen-
cies and missing jewelry from her dresser. That discov-
ery prompted Beliveau to set up a hidden camera,
known as a nanny cam, in the victim’s bedroom to
capture a dresser containing an envelope with exactly
$100 in twenty dollar bills.
On January 30, 2015, the defendant entered the vic-
tim’s home and notified Beliveau that she intended to
perform various chores. Later that same day, Beliveau
and the defendant signed the required insurance form
to provide to the victim’s insurance provider, which
reflected that the defendant had worked from 10:00
a.m. to 1:00 p.m. that day. The following day, Beliveau
entered the victim’s home to check on the envelope of
cash and immediately noticed that $40 was missing.
Upon reviewing the nanny cam footage, Beliveau
observed the defendant rummaging through the victim’s
dressers and removing cash from both the envelope in
question and a tin in a separate dresser drawer. With
this evidence in hand, Beliveau filed a complaint with
the Fairfield Police Department and provided the police
with a copy of the video recording.
On February 2, 2015, Detectives Jason Tackacs and
Kevin McKeon visited the defendant’s house to discuss
Beliveau’s complaint and the footage he had provided
to them. When the defendant answered the door, the
detectives asked whether she would be willing to speak
about the complaint they had received. The defendant
agreed and invited Tackacs and McKeon into her home.
Upon entering, Tackacs, McKeon, and the defendant
eventually made their way into her kitchen, where Tack-
acs played the recording to the defendant on a laptop
computer. As Tackacs played the nanny cam footage,
the defendant immediately identified herself as the per-
son depicted in the victim’s bedroom removing money
from the envelope and the tin, providing various expla-
nations for doing so. Initially, the defendant explained
that she was taking the money for the victim to use at
the rehabilitation facility. After Tackacs dismissed her
account, the defendant next claimed that she took the
money because she was upset over not receiving a
Christmas bonus. The defendant then offered a third
explanation, stating that she was upset over her hours
being cut as a result of the victim’s temporary stay at
the rehabilitation facility.
As the conversation progressed, the defendant admit-
ted to taking jewelry from the victim’s home, including
a pin, a necklace and a bracelet, but claimed to have
returned the necklace and bracelet after feeling
remorseful. When Tackacs asked whether the pin could
be located, the defendant claimed to have sold it to a
consignment shop that was owned by a friend. Upon
leaving the defendant’s house, Tackacs provided her
with his contact information.
Sometime after the encounter at her home, the defen-
dant contacted Tackacs by telephone to arrange for the
return of $80 that she claimed was the total amount
taken from the victim’s home and the pin she had recov-
ered from the consignment shop. On February 8, 2015,
the defendant arrived at the Fairfield Police Department
and met with Tackacs in his office. The defendant
turned over a money order in the amount of $80 and
the pin she claimed belonged to the victim. Thereafter,
Tackacs met with Beliveau to discuss his encounter
with the defendant and to ascertain whether the pin
could be identified. Beliveau was provided with the
$80 money order but was unable to identify the pin as
belonging to the victim.
On October 31, 2016, the state charged the defendant
with two counts of burglary in the third degree in viola-
tion of § 53a-103 and a third count of larceny in the
third degree in violation of General Statutes §§ 53a-119
and 53a-124. A jury trial was held on November 7, 8, 9,
10, and 14, 2016. On November 7, 2016, the defendant
filed a motion to suppress all statements, admissions
and confessions made by her to the police and any
evidence of the $80 and the pin she returned to the
Fairfield Police Department. Following an evidentiary
hearing, the court denied that motion. The jury there-
after found the defendant guilty of one count of burglary
in the third degree and the lesser included offense of
larceny in the sixth degree. The court sentenced the
defendant to a total effective term of five years of incar-
ceration, execution suspended after eighteen months,
followed by three years of probation. This appeal
followed.
I
The defendant first claims that there was insufficient
evidence adduced at trial to support her conviction of
burglary in the third degree. Specifically, she argues
that she was licensed and privileged to be in the victim’s
home at the time she committed the crime of larceny
and that at no time was the license either explicitly or
implicitly revoked. In response, the state argues that
there was sufficient evidence for the jury to conclude
that the defendant’s license to remain in the victim’s
home was implicitly revoked the moment she commit-
ted larceny. We agree with the defendant.
A
Although the defendant characterizes this issue as a
claim of insufficient evidence, the critical question is
the viability of the legal theory advanced by the state.
Therefore, before we can address whether the evidence
was sufficient to sustain the defendant’s conviction, we
must first resolve the legal issue raised by the state
regarding the elements of the offense of burglary.
Because that issue presents a question of law, our
review is plenary. See State v. Hayward, 116 Conn.
App. 511, 515, 976 A.2d 791, cert. denied, 293 Conn. 934,
981 A.2d 1077 (2009).
A person is guilty of burglary in the third degree when
he or she ‘‘enters or remains unlawfully in a building
with intent to commit a crime therein.’’ General Statutes
§ 53a-103 (a). ‘‘A person ‘enters or remains unlawfully’
in or upon premises when the premises, at the time of
such entry or remaining, are not open to the public and
when the actor is not otherwise licensed or privileged
to do so.’’ General Statutes § 53a-100 (b). ‘‘[T]o remain
unlawfully means that the initial entering of the building
. . . was lawful but the presence therein became
unlawful because the right, privilege or license to
remain was extinguished.’’ (Internal quotation marks
omitted.) State v. Stagnitta, 74 Conn. App. 607, 612,
813 A.2d 1033, cert. denied, 263 Conn. 902, 819 A.2d
838 (2003).
‘‘A license in real property is defined as a personal,
revocable, and unassignable privilege, conferred either
by writing or parol, to do one or more acts on land
without possessing any interest therein. . . . Gener-
ally, a license to enter premises is revocable at any time
by the licensor. . . . It is exercisable only within the
scope of the consent given. . . . The term, privilege,
is more general. It is a right or immunity granted as a
peculiar benefit, advantage, or favor; special enjoyment
of a good or exemption from an evil or burden; a pecu-
liar or personal advantage or right esp. when enjoyed
in derogation of common right; prerogative. . . . The
phrase, licensed or privileged, as used in [our burglary
statutes], is meant as a unitary phrase, rather than
as a reference to two separate concepts.’’ (Citations
omitted; emphasis altered; internal quotation marks
omitted.) State v. Grant, 6 Conn. App, 24, 29–30, 502
A.2d 945 (1986).
On appeal, the defendant asserts that the nonviolent
nature of her criminal conduct inside the home did
not constitute an implicit waiver of her license. It is
undisputed that the defendant had permission to be in
the victim’s home. The state contends that the defen-
dant’s license or privilege to remain in the victim’s home
was implicitly revoked once she engaged in larcenous
conduct, thus constituting ‘‘unlawful remaining’’ for
purposes of third degree burglary. In particular, the
state contends that the defendant’s larcenous conduct
went beyond the scope of the consent granted to her
and, therefore, constituted an implicit revocation of her
privilege to remain in the victim’s home. According to
the state, because the defendant did not have permis-
sion to steal items from the victim’s home, she exceeded
the scope of her license and, consequently, that license
was implicitly revoked by operation of law.3
In support of its novel legal theory, the state relies
heavily on a narrow exception carved out in a handful
of cases that hold that a license to remain within a
premises is implicitly revoked upon the commission of
a crime committed in a manner that is likely to terrorize
its occupants. See State v. Allen, 216 Conn. 367, 384,
579 A.2d 1066 (1990); State v. Bharrat, 129 Conn. App.
1, 25–26, 20 A.3d 9, cert. denied, 302 Conn. 905, 23
A.3d 1243 (2011); State v. Morocho, 93 Conn. App. 205,
218–19, 888 A.2d 164, cert. denied, 277 Conn. 915, 895
A.2d 792 (2006); State v. Reyes, 19 Conn. App. 179,
192–93, 562 A.2d 27 (1989), cert. denied, 213 Conn. 812,
568 A.2d 796 (1990); State v. Grant, supra, 6 Conn. App.
29–31. The state is correct that there is support for the
proposition that ‘‘even if one is lawfully admitted into a
premises, the consent of the occupant may be implicitly
withdrawn if the entrant terrorizes the occupants.’’
State v. Henry, 90 Conn. App. 714, 726, 881 A.2d 442,
cert. denied, 276 Conn. 914, 888 A.2d 86 (2005). Such
cases, however, are inapposite to the underlying facts
of the present matter. Significantly, the factual circum-
stances in each of the cases relied on by the state
concern a defendant who—while lawfully on the prem-
ises—committed a crime in a manner that was likely
to terrorize its occupants.
For instance, in State v. Reyes, supra, 19 Conn. App.
191–92, this court rejected the defendant’s argument
that he had not unlawfully remained where, after being
invited into the victim’s home, the defendant drew a
gun on the victim and stole a radio from her bedroom.
This court noted that ‘‘[a] drawn gun creates an inher-
ently threatening situation. Evidence that a defendant
subsequently pointed a gun at one who had the right
to admit him to the premises, and did admit him to the
premises, clearly can form the basis for the inference
that consent to remain was implicitly withdrawn and
thus that the individual ‘unlawfully remained’ within
the meaning of the [burglary] statute.’’ Id., 192–93.
In State v. Allen, supra, 216 Conn. 380–81, our
Supreme Court rejected the defendant’s argument that
he had not unlawfully remained in a condominium after
accompanying an assailant who had been invited by the
victim. When the defendant accompanied the assailant
into the victim’s condominium, the defendant encoun-
tered the victim upstairs, naked, gagged, and tied up.
Id., 381–82. Our Supreme Court explained that even if
he was privileged to be in the victim’s home, ‘‘it is clear
that consent to remain was implicitly withdrawn and
thus that the [defendant] unlawfully remained within
the meaning of the statute.’’ (Internal quotation marks
omitted.) Id., 382, citing State v. Reyes, supra, 19 Conn.
App. 193.
Similarly, in State v. Bharrat, supra, 129 Conn. App.
3–4, this court rejected the defendant’s argument that
because he had been invited into the victim’s home
before viciously stabbing him in his sleep, he was
licensed to be on the premises and, therefore, had not
‘‘unlawfully remained’’ for purposes of his burglary con-
viction. In rejecting this assertion, this court noted that
‘‘even if one is lawfully admitted into a premises, the
consent of the occupant may be implicitly withdrawn
if the entrant terrorizes the occupants. . . . Here, there
was ample evidence that the defendant, having entered
the victim’s residence lawfully, had engaged in the type
of conduct likely to cause terror to an occupant.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
25–26.
In State v. Morocho, supra, 93 Conn. App. 208–209,
217, this court rejected the argument that because the
defendant received a key and permission from the land-
lord to enter a basement where another tenant was
living, he was licensed to be there when he sexually
assaulted the tenant in the middle of the night. In
rejecting that assertion outright, the court noted that
‘‘[t]he original and basic rationale of the crime [of bur-
glary] is the protection against invasion of premises
likely to terrorize occupants. . . . [W]hatever possible
license the defendant thought he had to enter the vic-
tim’s bedroom . . . that license was withdrawn when
he refused to identify himself, charged toward the vic-
tim, lay on top of her and attempted to kiss and to
touch her all over her body.’’ (Citations omitted; internal
quotation marks omitted.) Id., 218–19.4
In each case cited by the state, a defendant’s privilege
to remain lawfully on the premises was implicitly
revoked because the nature of the defendant’s conduct
was inherently likely to terrorize occupants.5 There is
a strong rationale for this limited but important excep-
tion, because a victim is either unlikely or incapable of
withdrawing consent in the face of potential or actual
harm. As the state candidly acknowledged at oral argu-
ment before this court, to apply the exception to the
facts in this case would broaden its application. We
decline the state’s offer.
Alternatively, the state argues that, notwithstanding
the absence of terrorizing conduct, the defendant had
exceeded the scope of the consent granted to her
because her larceny ‘‘was demonstrably outside the
scope of the defendant’s employment.’’ According to
the state, this constituted a separate and distinct basis
on which the defendant’s license was implicitly
revoked.
This court has stated, in dictum, that even if a defen-
dant’s conduct was not likely to cause terror to the
victim, ‘‘the jury could consider the scope of the license
or privilege that the victim granted the defendant and,
specifically, whether the defendant’s remaining in the
premises became unlawful because he had exceeded
the scope of the victim’s consent to remain in the prem-
ises.’’6 State v. Bharrat, supra, 129 Conn. App. 26, citing
State v. Allen, supra, 216 Conn. 380. For the reasons
already discussed with respect to the state’s first argu-
ment, we decline to extend this doctrine to the facts
presented here.
B
Having resolved the standard to be applied to the
element in dispute, we now turn to the defendant’s
claim of insufficient evidence. ‘‘In reviewing a suffi-
ciency of the evidence claim, we apply a two part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [jury] reasonably could
have concluded that the cumulative force of the evi-
dence established guilt beyond a reasonable doubt
. . . . This court cannot substitute its own judgment
for that of the jury if there is sufficient evidence to
support the jury’s verdict.’’ (Internal quotation marks
omitted.) State v. Chemlen, 165 Conn. App. 791, 816,
140 A.3d 347, cert. denied, 322 Conn. 908, 140 A.3d
977 (2016).
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . . On appeal,
we do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis
of innocence. We ask, instead, whether there is a rea-
sonable view of the evidence that supports the [jury’s]
verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Papandrea, 302 Conn. 340, 348–49, 26 A.3d 75
(2011). ‘‘We also note that our sufficiency review does
not require initial consideration of the merits of [the
defendant’s evidentiary claims] . . . . Claims of evi-
dentiary insufficiency in criminal cases are always
addressed independently of claims of evidentiary
error.’’ (Internal quotation marks omitted.) State v.
Coyne, 118 Conn. App. 818, 825–26, 985 A.2d 1091
(2010).
‘‘Review of any claim of insufficiency of the evidence
introduced to prove a violation of a criminal statute
must necessarily begin with the skeletal requirements
of what necessary elements the charged statute requires
to be proved. . . . Once analysis is complete as to what
the particular statute requires to be proved, we then
review the evidence in light of those statutory require-
ments.’’ (Citation omitted; internal quotation marks
omitted.) State v. Berthiaume, 171 Conn. App. 436, 445,
157 A.3d 681, cert. denied, 325 Conn. 926, 169 A.3d 231,
cert. denied, U.S. , 138 S. Ct. 403, 199 L. Ed. 2d
296 (2017).
Viewing the evidence in the light most favorable to
sustaining the verdict, the state has adduced no evi-
dence from which a jury reasonably could conclude
that the larceny committed by the defendant was under-
taken in a manner likely to terrorize the victim or any
occupants in the victim’s home.7 Rather, the evidence
established quite the contrary. Undermining the state’s
argument is the undisputed fact that no one but the
defendant was present in the home at the time she
committed the larceny at issue. Although we acknowl-
edge the fact specific nature of this inquiry, it is, never-
theless, difficult to imagine a scenario where a person
could be terrorized by a defendant’s conduct absent
the person’s presence in the home at the time the crime
is committed. On the basis of the facts of this case, we
conclude that the defendant could not have committed
a larceny in a manner likely to terrorize the victim who
was not home at the time of the crime.
In sum, for her license to have been implicitly revoked
in order to have ‘‘remained unlawfully’’ for purposes of
burglary, the defendant must have committed larceny
in a manner likely to terrorize occupants of the victim’s
home. The state has presented no evidence that such
circumstances existed here. Accordingly, we conclude
that there was insufficient evidence to sustain the defen-
dant’s conviction of burglary in the third degree.8
II
The defendant also claims that the court improperly
denied her motion to suppress the inculpatory state-
ments she made to Tackacs and McKeon in her home
on February 2, 2015. Specifically, she argues that her
statements made to the detectives while watching the
recording of her larceny were the result of a custodial
interrogation without her being provided with Miranda
warnings. The court rejected this argument, finding that
the defendant was not in custody for purposes of
Miranda. We agree with the court.
The following additional facts are relevant to this
issue on appeal. On November 7 and 8, 2016, the court
held an evidentiary hearing on the motion to suppress
and heard testimony from Tackacs, McKeon, the defen-
dant, and the defendant’s minor son, D. Tackacs testi-
fied that he and McKeon approached the defendant’s
home on February 2, 2015 dressed in plain clothes with
their guns and badges displayed on the outside of their
attire. When the defendant answered the door, Tackacs
and McKeon identified themselves and asked whether
she would be willing to speak to them about Beliveau’s
complaint. The defendant agreed and invited Tackacs
and McKeon inside. Upon entering, Tackacs and
McKeon noticed D, and, according to their testimony,
suggested to the defendant that D leave the room. Tack-
acs and McKeon explained that they made the sugges-
tion to make the defendant more comfortable consider-
ing the nature of what they intended to discuss with
her. The defendant and D both testified that D was
ordered to leave as soon as Tackacs and McKeon
entered the home. Notwithstanding this point of con-
tention, D did leave the home near the beginning of
the encounter. The defendant, Tackacs, and McKeon
eventually made their way into the defendant’s kitchen.
The three engaged in small talk and discussed Beli-
veau’s complaint while the defendant continued to put
away her groceries. After McKeon finished setting up
the laptop computer to play the video recording, the
defendant sat down next to Tackacs.9 Upon Tackacs
playing the video, the defendant immediately identified
herself in the recording, admitted to taking $80 from
the victim, and further admitted to taking jewelry from
the victim’s home.
Before leaving, Tackacs provided the defendant with
his contact information in the event she had any more
questions about the complaint. The entire encounter
lasted no more than one hour, during which the defen-
dant was not given Miranda warnings. At no point was
the defendant restrained, placed in handcuffs, had her
movements restricted, or subjected to any type of force.
According to Tackacs and McKeon, they did not make
any threatening comments to the defendant, and the
defendant did not seem nervous at any time during
the encounter. The defendant would thereafter contact
Tackacs on a number of occasions with questions, and
she eventually returned $80 and the pin to Tackacs at
the Fairfield Police Department on February 9, 2015.
Tackacs testified that he found the defendant to be
very cooperative and pleasant to deal with throughout
the process.
We begin by setting forth the applicable standard of
review. ‘‘On appeal, we apply a familiar standard of
review to a trial court’s findings and conclusions in
connection with a motion to suppress. A finding of fact
will not be disturbed unless it is clearly erroneous in
view of the evidence and pleadings in the whole record
. . . . The conclusions drawn by the trial court will be
upheld unless they are legally and logically inconsistent
with the evidence.’’ (Internal quotation marks omitted.)
State v. Janulawicz, 95 Conn. App. 569, 574, 897 A.2d
689 (2006).
‘‘Our Supreme Court has set forth the following prin-
ciples regarding the requirement of Miranda warnings
. . . . Although [a]ny [police] interview of [an individ-
ual] suspected of a crime . . . [has] coercive aspects
to it . . . only an interrogation that occurs when a sus-
pect is in custody heightens the risk that statements
obtained therefrom are not the product of the suspect’s
free choice. . . . Consequently, police officers are not
required to administer Miranda warnings to everyone
whom they question . . . rather, they must provide
such warnings only to persons who are subject to custo-
dial interrogation. . . . To establish entitlement to
Miranda warnings, therefore, the defendant must sat-
isfy two conditions, namely, that (1) he was in custody
when the statements were made, and (2) the statements
were obtained in response to police questioning.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. Castillo, 165 Conn. App. 703, 713–14, 140
A.3d 301 (2016), aff’d, 329 Conn. 311, 186 A.3d 672
(2018).
‘‘A person is in custody only if, in view of all the
surrounding circumstances, a reasonable person would
have believed he was not free to leave. . . . The ulti-
mate inquiry [therefore] is simply whether there is a
formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.’’ (Internal
quotation marks omitted.) State v. Richard S., 143 Conn.
App. 596, 614, 70 A.3d 1110, cert. denied, 310 Conn. 912,
76 A.3d 628 (2013).
‘‘Among the factors that a court may consider in
determining whether a suspect was in custody for pur-
poses of Miranda, are the following: (1) the nature,
extent and duration of the questioning; (2) whether
the suspect was handcuffed or otherwise physically
restrained; (3) whether officers explained that the sus-
pect was free to leave or not under arrest; (4) who
initiated the encounter; (5) the location of the interview;
(6) the length of the detention; (7) the number of offi-
cers in the immediate vicinity of the questioning; (8)
whether the officers were armed; (9) whether the offi-
cers displayed their weapons or used force of any other
kind before or during questioning; and (10) the degree
to which the suspect was isolated from friends, family
and the public.’’ (Internal quotation marks omitted.)
State v. Castillo, supra, 165 Conn. App. 715. ‘‘The defen-
dant bears the burden of proving custodial interroga-
tion.’’ (Internal quotation marks omitted.) Id., 716.
We conclude that, in light of the court’s subordinate
findings and the testimony provided at the evidentiary
hearing, it was reasonable for the trial court to conclude
that the defendant was not in custody for purposes of
Miranda when she was questioned by Tackacs and
McKeon at her home. After a careful review of the
record, there is scant evidence suggesting that the
defendant was questioned in a manner that amounted
to a custodial interrogation. The court found that
throughout the encounter, the defendant was in her
home, free to move about, and at no point restrained.
Tackacs and McKeon, both dressed in plain clothes,
were invited into the defendant’s home after she agreed
to respond to questions about Beliveau’s complaint.
Although there is a dispute as to who asked D to leave,
the defendant continued to engage in small talk with the
detectives in her kitchen as she put away her groceries.
There were no threats of arrest at any point during the
encounter, which lasted no more than one hour, and
the defendant remained in the home after the detectives
left. Simply because the defendant was a suspect at
the time of the encounter does not transform it into a
custodial interrogation. See State v. Turner, 267 Conn.
414, 440, 838 A.2d 947, cert. denied, 543 U.S. 809, 125
S. Ct. 36, 160 L. Ed. 2d 12 (2004). We therefore conclude
that no reasonable person in the defendant’s position
would have felt that she was in custody for purposes
of Miranda.
The judgment is reversed only as to the conviction
of burglary in the third degree and the case is remanded
with direction to render a judgment of acquittal on
that charge and for resentencing according to law; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
For clarity, in this opinion we refer to Eleanor Beliveau as the victim,
and to her son, Ronald Beliveau, as Beliveau.
3
As we understand its argument, the state would have this court rule that
any larceny committed by a person who is lawfully permitted to be in a
building would constitute a felony, irrespective of the manner in which the
underlying crime was committed. For instance, a person who takes an
unattended $100 bill during a friend’s dinner party would mean that her
license would have been implicitly revoked by operation of law, and she
would therefore be subject to felony prosecution. We decline the state’s
invitation. To hold otherwise would enlarge the crime of burglary to an
untenable degree.
4
As many of these cases have noted, the rationale of the burglary statute
concerning likelihood of terror ‘‘does not mean . . . that an initial lawful
entry followed by an unlawful remaining would be excused. For example,
A enters an office building during business hours—a lawful entry since the
building is open to the public—and remains, perhaps hidden, after the
building is closed with intent to steal. A is guilty of burglary.’’ (Internal
quotation marks omitted.) State v. Morocho, supra, 93 Conn. App. 218–19;
see State v. Allen, supra, 216 Conn. 384 (analyzing purposes of revised
burglary statutes); State v. Thomas, 210 Conn. 199, 207–208, 554 A.2d 1048
(1989) (same). It is undisputed in the present case, however, that the conduct
at issue occurred during a time at which the defendant was properly within
the victim’s residence, as evidenced by the insurance documentation Beli-
veau submitted to the victim’s insurance provider.
5
See State v. Berthiaume, 171 Conn. App. 436, 447–48, 157 A.3d 681
(defendant unlawfully remained in victim’s home after physically attacking
victim), cert. denied, 325 Conn. 926, 169 A.3d 231, cert. denied, U.S.
, 138 S. Ct. 403, 199 L. Ed. 2d 296 (2017); State v. Stagnitta, supra, 74 Conn.
App. 615–16 (defendant remained unlawfully in his place of employment
after displaying large knife and demanding money from his superior, thus
satisfying ‘‘terror element’’); State v. Gelormino, 24 Conn. App. 563, 571–72,
590 A.2d 480, (even if victim’s implicit consent allowed defendant onto
premises, that privilege was extinguished upon his vicious assault on victim),
cert. denied, 219 Conn. 911, 593 A.2d 136 (1991).
6
In State v. Bharrat, supra, 129 Conn. App. 26, the court relied solely on
Allen for this proposition. On closer reading, the court in Allen simply
reiterated the analysis set out in Grant, outlining the differences between
‘‘privilege’’ and ‘‘license’’ within the context of property law. See State v.
Allen, supra, 216 Conn. 380, quoting State v. Grant, supra, 6 Conn. App.
29–30. In particular, this court in Grant noted that unlike a privilege, a
license ‘‘is exercisable only within the scope of the consent given.’’ State
v. Grant, supra, 6 Conn. App. 29–30. In contrast, ‘‘licensed or privileged’’
as used in our burglary statutes was meant ‘‘as a unitary phrase, rather than
as a reference to [these] two separate concepts.’’ Id., 30. Therefore, it seems
more plausible that the ‘‘scope of consent’’ theory was specific to the distinct
concept of a license, and not necessarily the ‘‘unitary’’ concept of ‘‘licensed
or privileged.’’ Although we have declined to extend the ‘‘scope of consent’’
theory for abrogating a license or privilege as applied to the facts in this
case, we do not reach whether this theory is well-founded.
7
The state argues in the alternative that ‘‘[e]ven if some level of terror is
necessary, it is difficult to imagine a more terrifying event for such a victim
to have a trusted employee steal from her home while the victim was
admitted to a medical facility.’’ Although we do not diminish the seriousness
of the defendant’s crime of stealing from an elderly person’s unattended
home that she was entrusted to maintain, surely her conduct does not rise
to the level of stabbing a victim in his sleep; State v. Bharrat, supra, 129
Conn. App. 3–4, 20; pointing a gun at a victim; State v. Reyes, supra, 19
Conn. App. 192–93; or sexually assaulting a victim in the middle of the night.
State v. Morocho, supra, 93 Conn. App. 218–19.
8
On appeal, the defendant also claims that the court improperly instructed
the jury that her larcenous conduct exceeded the scope of her privilege and
constituted an implicit revocation of her status as a licensee. Because we
agree with the defendant that the evidence was insufficient to sustain her
burglary conviction, we need not address that issue.
9
Because there were only two seats available at the defendant’s kitchen
table, McKeon remained standing to allow the defendant to sit down with
Tackacs.