Opinion
No. H14-CR040583296S
June 10, 2005
MEMORANDUM OF DECISION
The State of Connecticut, in a short form information dated July 19, 2004, charges the defendant with the offenses of Larceny in the First Degree pursuant to General Statutes § 53a-122 and Fraudulent Claim or Receipt of Benefits pursuant to General Statutes § 31-290c of the Workers' Compensation Act. Specifically, the state alleges that the defendant, while an employee of the State Department of Corrections (hereinafter "DOC"), committed larceny by defrauding a public community on or about April 13, 2000, when he filed a claim for workers' compensation that he knew was false to collect benefits from the DOC, a state agency, and subsequently, he knowingly accepted benefits totaling $13,381.19 from a claim he knew was false. See General Statutes § 53a-119(6). The state further claims that the defendant violated subsection (a)(1) of General Statutes § 31-290c, the workers' compensation fraud statute, when, on or about April 13, 2000, he made a claim for and received these benefits based upon his "intentional misrepresentation of any material fact including, but not limited to, the existence, time, date, place, location, circumstances, or symptoms of the claimed injury." Both Larceny in the First Degree and the offense of Fraudulent Claim or Receipt of Benefits (when the amount of benefits received, including medical services, exceeds $2,000.00), are Class B felonies. General Statutes § 31-290c(a)(2).
General Statutes § 53a-122 provides in pertinent part: "A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and . . . (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars."
General Statutes § 53a-119 provides in pertinent part: "A person commits larceny when, with intent to deprive another of property to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . . (6) defrauding of public community. A person is guilty of defrauding a public community who (A) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false; or (B) knowingly accepts the benefits from a claim he knows is false . . ."
General Statutes § 31-290c provides, in pertinent part, "(a) Any person or his representative who makes or attempts to make any claim for benefits, receives or attempts to receive benefits . . . under this chapter based in whole or in part upon (1) the intentional misrepresentation of any material fact including, but not limited to, the existence, time, date, place, location, circumstances or symptoms of the claimed injury or illness . . . (2) . . . shall be guilty of a class B felony if the amount of such benefits exceeds two thousand dollars." Benefits can be received or merely claimed, and include the value of medical services.
The defendant pled not guilty to both counts. On May 10, 2005, the defendant was canvassed on his waiver of his right to a jury trial, which was found to be knowing and voluntary by the court. (Ward, J.) The case was tried before this court on June 6, 2005. At trial, the court heard testimony from five witnesses: Linda Saunders, supervisor of the workers' compensation unit at the DOC; Captain Stephen Frey, a correctional facility investigator; Thomas McGrail, a correctional food service supervisor; Raymond Rivera, a former inmate at the McDougall Correctional Facility; and the defendant. The court has reviewed and considered the following state's exhibits: A First Report of Occupational Injury form dated April 18, 2000 (Exhibit 1); a Filing Status and Exemption Form 1A (Exhibit 2); the record of convictions for Rivera (Exhibit 3); an Incident Report prepared and reviewed on April 17 and 18, 2000 (Exhibit 4); and two pages from a correctional captain's log book with two entries related to the defendant (Exhibits 5 and 6). The court also has reviewed and considered the defendant's exhibits: medical reports from Dr. Lawrence Berson and St. Francis Hospital pertinent to the claimed injury (Exhibit A), and a photograph of the correctional center kitchen area where the injury allegedly occurred (Exhibit B).
Legal Discussion
At trial, the assessment of the credibility of the witnesses and the factual findings derived from the testimony and documentary evidence, and any inferences reasonably and logically drawn therefrom, is the duty of the trier of fact. "[I]n viewing evidence which could yield contrary inferences, the [fact finder] is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the [fact finder's] function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." State v. Haggood, 36 Conn.App. 753, 760-61, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995); State v. Tangari, 44 Conn.App. 187, 197, 688 A.2d 1335 (1997).
"In considering the evidence introduced in a case, [fact finders] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct." (Citation omitted; internal quotations marks omitted.) State v. Patterson, 35 Conn.App. 405, 414, 646 A.2d 258, cert. denied 231 Conn. 930, 649 A.2d 254 (1994); State v. Tangari, supra, 197-98.
In a criminal trial, the state bears the burden of proving beyond a reasonable doubt each and every element of an offense charged. As applied to this case, under the first count, Larceny in the First Degree, General Statutes § 53a-119(6) sets forth two elements of the offense of defrauding a public community: (1) the defendant must have filed a claim for or received benefits from the DOC in an amount in excess of $2,000.00; and (2) he must have done so knowing the claim to be false." State v. Robins, 34 Conn.App. 694, 700, 643 A.2d 881 (1994), aff'd, 233 Conn. 527, 660 A.2d 738 (1995). Under the second count, Fraudulent Claim or Receipt of Benefits, General Statutes § 31-290c(a), the state is required to prove: (1) the defendant made a claim for or received benefits from the state DOC in an amount in excess of $2,000.00; and (2) he made an intentional misrepresentation of a material fact affecting such claim or collection of benefits. State v. Mazzeo, 74 Conn.App. 430, 435, 811 A.2d 775 (2003).
Of course, the state would also have to prove the general elements of larceny beyond a reasonable doubt, specifically that the defendant, acting with the intent to permanently deprive the DOC of its property, wrongfully obtained such property. State v. Golding, 14 Conn.App. 272, 276, 541 A.2d 609 (1988), rev'd on other grounds, 213 Conn. 233, 567 A.2d 823 (1989).
Factual Findings
Based on the relevant and credible evidence, including testimony, submitted at trial, the court finds the state has failed to prove beyond a reasonable doubt that the defendant committed either offense as alleged. There is no reasonable doubt that the defendant made a claim for and received workers' compensation benefits from the DOC, but there is reasonable doubt that he knowingly or intentionally received benefits on the basis of false claim or that his claim or receipt of benefits was based on an intentional misrepresentation of a material fact. In reaching this conclusion, the court makes the following findings:
The defendant's workers' compensation claim was based on an incident that took place on April 13, 2000 at the McDougall correctional facility. The defendant, while employed as a chef, was supervising inmate workers serving breakfast in a narrow serving line area within the facility's kitchen. At about 6:30 A.M., inmate Raymond Rivera lost his balance and dropped a commercial-sized roasting pan containing scrambled eggs. The defendant was standing behind Rivera. As Rivera dropped the pan, he attempted to catch his balance and stepped back. As he stepped back, he stepped on the front portion of the defendant's left foot with his left heel. Rivera at the time weighed 220 pounds and was wearing protective work boots. The defendant was wearing regular shoes. Right after the incident, Rivera and the defendant exchanged jocularities and Rivera apologized. The defendant's foot felt sore at the time, but the pain subsided. He continued with his work shift and thought nothing of the incident until the next day, when he discovered his left foot was painful and swollen.
On Friday, April 14, 2000, the defendant called his immediate supervisor, Thomas McGrail, and indicated to him that he had sustained an injury as a result of the kitchen accident. The defendant told McGrail that Rivera had stepped on his foot and asked him how he should proceed in reporting this injury. McGrail instructed him to call the facility, report the injury to the desk lieutenant, and see a doctor.
On Saturday, April 15, 2000, the defendant went to a walk-in medical clinic. An x-ray revealed a fracture of the left fifth metatarsal, the left "pinkie" toe. At the clinic, the defendant's foot was placed in a cast and he was referred to an orthopedic surgeon, Dr. Berson. The defendant first saw Berson on Monday, April 17, 2000, and his foot was put in a new cast. He wore that cast for six weeks and was allowed to return to work (there was no "light duty" allowed) about twelve weeks later, on or about July 13, 2000. He continued working, although the toe continued to cause him pain, until April 18, 2001, when Berson decided he would require surgery on the toe to address the continued pain the defendant had been feeling. As a result of the surgery, the defendant was absent approximately another 11 or 12 weeks, but subsequent to that, missed only three more days of work in December of 2001 as a result of this injury.
On April 17, 2000, the defendant completed an Incident Report form, and stated that "Inmate Rivera #13854 accidentally backed up and stepped on my upper left foot." Supervisor McGrail's portion of the same Incident Report, on the third page, confirms the defendant described the incident in similar fashion to McGrail on the evening of the 14th. On April 18, a now-deceased correctional employee, Major Patrick Grant, completed another required form, Report of Occupation Injury or Disease To an Employee, which concluded, in Box 19 of the form, that the injury cause was "Foot stepped on." This report also notes, "When questioned, inmate Rivera did admit stepping on Fuschi's foot."
The evidence presented at trial revealed no feigned or exaggerated injury, no malingering on the part of the defendant, and no proof that he was observed working at another job while purporting to be totally disabled for employment at the DOC. There is no evidence of any prior or subsequent injury to the defendant similar to the injury claimed. Based on the uncontradicted medical evidence, there is no dispute that the defendant suffered a hairline fracture of his left little toe. The dispute is over how, when and where the toe fracture occurred.
The state's key witness, former inmate Raymond Rivera, began his testimony apologizing for his vague recollection of the event and stated his memory was a little shot. He testified that although he admitted to investigators that he stepped on the defendant's foot on April 13, 2000, he lied. He admitted that he dropped a tray, but it was so light you could hold it up with one finger. He recalled he may have stumbled as he dropped the tray and that he thought a part of the tray may have hit the defendant's foot. He said he didn't think he stepped on the defendant's foot.
The state claims that Rivera's original statements to investigators in 2000 were induced by a bribe from the defendant. However, Rivera begins this crucial part of his direct examination by stating he did not see the defendant after the incident and was transferred to another correctional facility before the defendant returned to work. Upon further direct examination, he indicated that on the day of the incident, the defendant had a conversation with him and asked him to back him up, but the defendant made no offer of any reward for doing so. (This is difficult to reconcile with the defendant's testimony that he continued to work the rest of his shift on April 13, 2000, and didn't realize he had incurred an injury until the next day, after calling in sick for another reason unrelated to the foot.) Upon further questioning, with considerable prompting by the prosecutor, Rivera remembered that the defendant came back to work within a few days or sometime before he was transferred and gave him two packs of cigarettes for backing up his story. This uncorroborated claim of bribery, lacking in any detail as to the when, where and how of the illicit cigarette exchange, was not credible.
In many respects, Rivera confirmed the defendant's description of the accident. Both claim Rivera dropped a tray and stumbled. Rivera's admittedly vague recollection is that the tray hit the defendant's foot. The defendant, who had a much better recollection of the facts on the stand and a better view on April 13, 2000, as he was standing behind Rivera when the incident happened, said Rivera's work boot heel landed on his foot. The court finds the defendant's testimony was more credible.
The state also claims knowing and intentional misrepresentation became evident when the defendant called in sick on April 14 at 7:30 P.M. and told a Lieutenant Marshal Powell that he was injured when a cart ran over his foot. The state maintains this inconsistent, and therefore suspicious, statement is verified by an undated, unnumbered copy of a page of a captain's log which indicates "Chef Fuschi sick (injured left foot). Stated that his foot was ran over by a cart. Will see Super to do paperwork." The court, on the basis of other evidence, cannot ascribe such sinister significance to this lone bit of evidence.
Although Rivera and the defendant's versions of the incident on April 13, 2000 differ, neither one of them indicated a kitchen cart was involved in the accident. McGrail was clear that the defendant called him at home and reported to him that Rivera stepped on his foot. The defendant testified that he did call the lieutenant on McGrail's order, after first talking to McGrail on April 14, but he never stated to anyone that a cart ran over his foot. It is not credible that the defendant would tell his immediate supervisor, the one he knew would be responsible for writing up the injury report, that Rivera stepped on his foot and then later, on the same day, give a contradictory report to a lieutenant. When the defendant spoke to Grant a few days later, Grant brought up that someone said a cart had run over the defendant's foot, but Grant did not tell the defendant where he got that information. The defendant immediately corrected Grant and told him an inmate stepped on his foot. Although the initial investigation by Grant, the author of the Report of Occupational Injury, notes this discrepancy, the report's conclusion as to how the injury occurred adopts the defendant's description of the event.
At a later time (it was not clear exactly when), Frey, the facility investigator, resumed the investigation of the claim and noted the log entry about the cart was "suspicious." However, the balance of Frey's testimony as to the nature of his subsequent investigation was lacking in detail. Frey couldn't remember whom he interviewed, apart from McGrail, who supported the defendant's version of events, and he did not recall if he ever interviewed the defendant or Rivera. This is despite his testimony that the records and people in the facility were at his disposal. There is no evidence anyone investigating this claim ever talked to any of the other inmates who the defendant said were present in the kitchen area where the accident occurred at the time. Incredibly, the facility does not keep records of the time and place where inmates are assigned to work. Frey's investigation, or what he could recall of it, consisted of a second look at the earlier reports and an inspection of the log books. The "suspicious" log entry might reasonably have been error or mistaken assumption on the part of a busy lieutenant with other job responsibilities and absolutely no duty to investigate the claim. In fact, the initial investigators, McGrail and Grant, noted it, but concluded in their reports that Rivera had stepped on the defendant's foot, just as the defendant said. The log entry is not persuasive evidence of fraud.
Although the state has proven beyond a reasonable doubt that the defendant claimed and received over $2,000.00 in workers' compensation benefits, the state has not proven the remaining essential elements of the first count, Larceny in the First Degree. There is no proof beyond a reasonable doubt that the defendant intended to permanently deprive the state of its property and obtaining it wrongfully as a result of a knowing and intentional claim he knew was false or a collection of workers' compensation benefits based on a claim he knew to be false. The state also has failed to prove beyond a reasonable doubt all of the essential elements of the second count, Fraudulent Claim or Receipt of Benefits. There is no proof beyond a reasonable doubt that the defendant made a claim for or received benefits in whole or in part upon the intentional misrepresentation of a material fact.
Conclusion
For want of proof of all the essential elements of the two offenses charged, Larceny in the First Degree and Fraudulent Claim or Receipt of Benefits, the court finds the defendant NOT GUILTY on both counts. Judgment may enter accordingly.
KELLER, J.