The Austin Healey, the Emails and Larceny

After Arthur Glen Kurrus was convicted of two counts of larceny in the first degree in violation of Connecticut General Statutes §§53a–119 and 53a–122 (a)(3) and one count of forgery in the second degree as an accessory in violation of Connecticut General Statutes§§ 53a–8 and 53a–139, he appealed.  State v. Kurrus, 137 Conn.App. 604, --- A.3d ----, 2012 WL 3288205 (Connecticut Court of Appeals 2012).

Section 53a-110 of the Connecticut General Statutes defines larceny, generally, as follows:  “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.” In its opinion in this case, the Court of Appeals noted that

`Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.’

State v. Kurrus, supra (quoting State v. Flowers, 69 Conn. App. 57, 797 A.2d 1122 (Connecticut Supreme Court 2002)).

But before we get into the law, I need to outline the facts that led to Kurrus’ being charged with larceny (and forgery).  The opinion explains that in 2003,

Steven Cohen owned a 1967 Austin Healey (1967 Healey) he decided to sell. He contacted [Kurrus], and they orally agreed that [Kurrus] would sell the vehicle and set the price, but they did not create a written contract or agreement. The next day, [Kurrus]  sent a truck to retrieve the vehicle.

From 2003 until 2007, Cohen maintained infrequent contact with [Kurrus] by telephone and e-mail. Beginning in April, 2007, Cohen began e-mailing [him] more frequently for updates on the sale of the 1967 Healey. In July, 2007, after learning that [Kurrus] had moved his business to California, Cohen contacted [him] by e-mail to determine where the 1967 Healey was located.

In August, 2007, Cohen received a faxed letter from [Kurrus] promising to pay $25,000 for the sale of the vehicle. At some point after receiving the faxed letter from [Kurrus], Cohen contacted the police to report that the 1967 Healey had been stolen. In September, 2008, Cohen received a check in the amount of $25,000 from [Kurrus’] attorney.

In April, 2005, Michael Torsone purchased a 1967 Jaguar XKE (1967 Jaguar) and registered the vehicle in New York. Later in 2005, Torsone decided to have Donovan Motorcar Services (Donovan) perform restoration work on the vehicle. In June, 2006, Torsone retrieved the car from Donovan prior to the completion of brake and front end work.

After unsuccessfully trying to complete the brake work himself, Torsone contacted [Kurrus], [who] told him to bring the car to his business, Paradise Garage, in Lime Rock, Connecticut. After dropping off the 1967 Jaguar, Torsone had conversations with [Kurrus] during which Torsone detailed what work he wanted completed as well as whether he wanted to sell the car.

Torsone did not have a written contract with [Kurrus] but had an oral agreement that allowed [him] to keep the 1967 Jaguar in his showroom and to talk to people about whether they would want to purchase the vehicle. [Kurrus] set up several auctions for the 1967 Jaguar in October, 2006, as well as in March, April and May, 2007.

By May, 2007, [Kurrus] had engaged in what he characterized as a `cash and trade’ deal that involved four vehicles: Cohen's 1967 Healey, Torsone's 1967 Jaguar, a 1960 Austin Healey (1960 Healey) owned by a third party and a 1972 Porsche 911 owned by [Kurrus]. [He] traded Cohen's 1967 Healey for the 1960 Healey, sold the Porsche for $25,000 and sold Torsone's 1967 Jaguar for $68,500 to a couple in New Hampshire, Melvin Flowers and Shirley Flowers. In order to effectuate the sale of the 1967 Jaguar, [Kurrus] instructed an acquaintance, Frank Saffioti, to sign the New York state registration for the 1967 Jaguar over to Paradise Garage and to sign Torsone's name.

Torsone spoke to [Kurrus] about the sale of the 1967 Jaguar on June 17, 2007, and contacted the state police to report that his car had been stolen.

State v. Kurrus, supra.

Kurrus was subsequently charged with “larceny in the first degree of the 1967 Jaguar in count one, forgery in the second degree as an accessory of the registration document to the 1967 Jaguar in count two and larceny in the first degree of the 1967 Healey in count three.”  State v. Kurrus, supra. The jury convicted him on all counts and the court then sentenced him to “ten years imprisonment, execution suspended after three years, and five years probation with conditions.”   State v. Kurrus, supra.

On appeal, Kurrus claimed the trial judge should have instructed the jury on mistake of fact as to the forgery count and the larceny counts.  State v. Kurrus, supra. As Wikipedia notes, a mistake of fact defense in criminal law is a defendant’s argument that because he/she was “laboring under a mistake of fact, they never formed” the required mens rea, or intent to commit the crime.  Since they lacked intent, they did not commit the crime, and should therefore be acquitted.  The Court of Appeals found, though, that the judge did not err in giving the instruction on any of the counts, since it found the facts did not support a mistake of fact defense.  State v. Kurrus, supra.

That brings us to Kurrus’ third argument, which was that “there was insufficient evidence to sustain a conviction on the larceny of the 1967 Healey.”  State v. Kurrus, supra. The Court of Appeals began its analysis by reviewing the evidence the state relied on in proving Kurrus committed larceny with regard to this vehicle.  State v. Kurrus, supra.

It began with a “May, 2003” letter Cohen sent to Kurrus “regarding documentation about the 1967 Healey.”  State v. Kurrus, supra. In the letter, Cohen said “he recognized that the market value of the car might not correlate to the amount of money he had expended on it for restoration and he would rely on [Kurrus] to price the car appropriately.”  State v. Kurrus, supra.

The court next noted the substance of four emails:

On April 14, 2007, Cohen contacted [Kurrus] by e-mail stating: `I hope we have the opportunity to sell my [1967] Healey this spring as I am very anxious to move the car. I appreciate your patience in trying to get a good price. At this point I recognize that I will have to take a hit, but I would really like to finally sell it.’ [Kurrus] responded on April 16, 2007, stating: `I'm confident in closing the deal we spoke of in our last conversation.’ He also declared that he was planning the deal to take place in April and would keep in touch with Cohen.

Cohen e-mailed [Kurrus] again on May 15, 2007, asking about the sale of the 1967 Healey. [Kurrus] responded the same day and assured Cohen the deal was `alive and well.’ Cohen replied and said he was `glad to hear that [the] deal is alive. Just let me know when things are concluded.’

On June 12, 2007, Cohen again e-mailed [Kurrus] looking for information about the 1967 Healey. After detailing several improvements he had made to the car, Cohen noted that he saw `a number of cars that are in inferior condition to mine going for prices that I would find acceptable at this point. . . . I certainly don't want the car back after all this time and have the hassle of selling it myself. It's just that at this point, after four years, I'd like to know what the prospects are for selling it under our present arrangement.’

Cohen again e-mailed [Kurrus] on July 26, 2007. The e-mail stated: `I just discovered from your website that you are moving. I have not heard from you since it sounded like you had a promising transaction involving my [1967] Healey a couple of months ago. . . . I am still hoping you can sell my car, but I'd like to know where it is at the moment and what your plans are.’

State v. Kurrus, supra.

And, finally, in August of 2007 Cohen

received a faxed handwritten letter from [Kurrus]. It stated: `This written document will confirm my debt to you for sale of your 1967 . . . Healey for $25,000. As you recall [from] our conversations in January and February and subsequent emails outlining a trade for a 1960 . . . Healey that I consider a superior example and one special enough that I would take possession of and own personally and pay you directly. I am comfortable with having you hold ownership documents to both vehicles until you're paid in full. I'm also aware of your experience with your [1967] Healey was not a good one, so I'm willing to share the 1960 one with you so you can see how great one of these cars can be. This can be a win win for both of us.’

State v. Kurrus, supra.

Based on all this, Kurrus argued on appeal that the prosecution did not prove that he

wrongfully withheld the 1967 Healey.  [Kurrus] contends that e-mails between himself and Cohen talking about a `deal’ constituted authorization for the cash and trade deal and that the prosecution failed to establish that Cohen had revoked his authority prior to the trade of his 1967 Healey.

Moreover, [Kurrus] argues, although Cohen may have had understandings or impressions about the nature of their arrangement, there was no evidence that such impressions were communicated to [him]. Thus, there was insufficient evidence to support a finding that he wrongfully withheld the 1967 Healey.

State v. Kurrus, supra.

The Court of Appeals began its analysis by noting that in reviewing a sufficiency of the evidence argument it has to “`determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict’”. State v. Kurrus, supra (quoting Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 904 A.2d 149 (Connecticut Supreme Court 2006)). It then noted that in addition

to the e-mail communications between Cohen and [Kurrus], Cohen testified that he reached a point where he was no longer comfortable waiting for [Kurrus] to sell the 1967 Healey. Cohen also testified that he agreed to sell the vehicle for $25,000 after he discovered that [Kurrus] had relocated and realized he did not know where his car was located.

In August, 2007, prior to receiving the faxed letter from [Kurrus], Cohen testified that he told [him] by telephone that, if he did not receive money immediately, he would go to the authorities. Additionally, Cohen testified that he had no recollection of any conversation about a trade deal, that he never agreed to anything in the faxed letter and that the first time he heard about a trade was in the letter.

State v. Kurrus, supra.

The Court of Appeals therefore held that,

[o]n the basis of the evidence presented at trial, the jury reasonably could have concluded that Cohen did not know that his 1967 Healey was being traded for the 1960 Healey and that he did not authorize the trade. The jury logically could have inferred that Cohen was aware of and authorized only the sale of his vehicle.

It did not have to accept [Kurrus’] position that the e-mail communications about a trade deal constituted Cohen's knowledge about and authorization of the trade of his 1967 Healey. Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient to support the jury's finding that by August, 2007, [Kurrus] wrongfully withheld the 1967 Healey.

State v. Kurrus, supra.

If you’re interested, you can read more about the facts in the case in the news story you can find here. You can find a description of Kurrus’ testimony in his own defense in this news story, and this press release explains that he paid $140,000 in restitution.