State v. Rochette

594 A.2d 1006, 25 Conn. App. 298, 1991 Conn. App. LEXIS 267
CourtConnecticut Appellate Court
DecidedJuly 23, 1991
Docket9106
StatusPublished
Cited by18 cases

This text of 594 A.2d 1006 (State v. Rochette) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rochette, 594 A.2d 1006, 25 Conn. App. 298, 1991 Conn. App. LEXIS 267 (Colo. Ct. App. 1991).

Opinion

Landau, J.

The defendant appeals from her conviction, after a jury trial, of larceny in the fifth degree in violation of General Statutes § 53a-125a, and attempted larceny in the third degree in violation of [300]*300General Statutes §§ 53a-49 and 53a-124 (a) (2). On appeal, the defendant claims (1) that the trial court improperly admitted a written telephone message under the business record exception to the hearsay rule, (2) that there was insufficient evidence to support her conviction of larceny in the fifth degree, and (3) that there was insufficient evidence to support her conviction of attempted larceny in the third degree. We affirm the trial court’s judgment in part and reverse it in part.

The jury could reasonably have found the following facts. In the early morning hours of October 2, 1988, the defendant telephoned radio station WQGN-WSUB, spoke to the night disc jockey, Julie Johnson, and inquired if someone would be available later that night so that she could call back. After Johnson told the defendant that she would be there all night, the defendant called back approximately one-half hour later. During this second call, the defendant told Johnson that her daughter recently had been diagnosed as having a brain tumor and was dying and that she was seeking tickets to a sold out Michael Jackson concert for her daughter. The defendant was highly emotional during the conversation and cried frequently. Johnson told the defendant that she would speak to her superiors to see what could be done about the tickets. That morning, Johnson discussed the telephone call with her superiors.

In an attempt to verify the situation, the radio station’s promotions director telephoned the defendant and received the name of a physician. After two unsuccessful attempts at finding the physician’s telephone number using various spellings, he again telephoned the defendant’s house. This time he was given the proper spelling of the physician’s name and his telephone number. The promotions director called the physician’s office and was told that the child was a patient but because of physician-patient confidentiality, no details could be disclosed. In fact, this physician had [301]*301never treated the child but the defendant was employed in that office and one of her duties was to answer the telephone. The promotions director also contacted the John Dempsey Hospital and was told that the child was scheduled for treatment. There is no dispute that the child was scheduled for treatment. The child, however, did not have a brain tumor but was susceptible to petit mal seizures as a result of a head injury and was scheduled for treatment for pain management. After receiving verification that the child was under medical care, the promotions director acquired four tickets to the concert at the Meadowlands in New Jersey. He also arranged for a limousine to take the child to the concert. He and the defendant then arranged the best means of giving the tickets to the child because the defendant told the radio station personnel that her daughter did not know the severity of her medical condition.

The promotions director, Johnson, the defendant and her daughter attended the concert. During the ride to the concert, the defendant was distraught and teary eyed especially when her daughter discussed the future. She also gave her daughter medicine, and her daughter would occasionally seem disoriented, a condition corresponding to petit mal seizures.

After the concert, the defendant remained in contact with the personnel at the radio station and especially with Johnson. She would call Johnson three to six times a week and discuss her daughter’s physical health. The defendant, when speaking with Johnson, often referred to chemotherapy and other types of treatment. The defendant also discussed her financial difficulties and her unsuccessful attempts at acquiring a mortgage or loan. She then revealed that there was a drug not approved by the Federal Drug Administration that might shrink the size of her daughter’s tumor but that the treatments were very expensive.

[302]*302Early in December, 1988, the defendant contacted the general manager of the radio station and asked if she could meet with him. During this meeting, the defendant discussed her financial difficulties and the unapproved treatment. She told him that she would need $5000 within two weeks for the first of three drug treatments. The defendant then requested the general manager’s help in obtaining the money. As a result, the general manager began organizing a station sponsored fund raiser. The defendant stressed, however, that she did not want her name or her daughter’s name publicly disclosed. While making arrangements for this event, the general manager discovered that the defendant had a past history of fraudulent schemes and he then began making further inquiries. As a result of these inquiries, the radio station filed a complaint against the defendant.

I

On cross-examination, the defendant denied telephoning the radio station on October 3, 1988, and leaving a message for Johnson referring to chemotherapy. The state, during rebuttal, had Johnson introduce a written telephone message dated October 3 at 8:30 a.m. The message is to Johnson from the defendant and states: “Will not be able to call you until after 1:00 p.m. Dr. Armine has scheduled [her daughter] for chemotherapy this morning. If you were not successful - it’s o.k., she will understand. Wants to know if you could find out for the children the local telephone # for the children’s ‘make a wish’ foundation. Will call you at 1:30 p.m. today?” The message includes the defendant’s unlisted telephone number and is signed “Nia.”

The defendant claims that the trial court improperly admitted this message under the business record exception to the hearsay rule, General Statutes § 52-180. Because this message was not admitted for the truth [303]*303of its contents but for purposes of impeaching the defendant’s credibility, it was not hearsay and, therefore, we are not required to determine if the message falls under an exception to the hearsay rule.

Hearsay is an out-of-court statement offered to establish the truth of the matters contained therein. State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981). The telephone message was not offered to establish the truth of the child’s medical condition but rather, was offered to contradict the defendant’s statement that she had not called Johnson on October 3 and referred to chemotherapy. Testimony that refutes evidence or impeaches a witness’ credibility is proper during rebuttal, and the message, therefore, was properly admissible for this purpose. State v. Peary, 176 Conn. 170, 174-75, 405 A.2d 626 (1978); Vazzano v. Slater, 6 Conn. App. 1, 5, 502 A.2d 440 (1986).

II

The defendant next challenges whether there was sufficient evidence to establish that her acceptance of the limousine ride to the concert in New Jersey constitutes larceny in the fifth degree.

In reviewing a sufficiency of the evidence claim, this court undertakes a two part inquiry.

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Cite This Page — Counsel Stack

Bluebook (online)
594 A.2d 1006, 25 Conn. App. 298, 1991 Conn. App. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rochette-connappct-1991.