State v. Adams , 164 Conn. App. 25 ( 2016 )

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STATE OF CONNECTICUT v. LORENZO ADAMS
(AC 36704)
Lavine, Beach and Sheldon, Js.
Argued September 18, 2015—officially released March 22, 2016
(Appeal from Superior Court, judicial district of
Danbury, Roraback, J.)
Deren Manasevit, assigned counsel, for the appel-
lant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Stephen J. Sedensky III, state’s attor-
ney, and Colleen P. Zingaro, assistant state’s attorney,
for the appellee (state).
Opinion
SHELDON, J. The defendant, Lorenzo Adams,
appeals from the judgment of conviction for conspiracy
to commit larceny in the sixth degree, in violation of
General Statutes §§ 53a-481 and 53a-125b,2 which was
rendered against him by the trial court on February 10,
2014, on the basis of his alleged conduct at a Microsoft
store in Danbury with a named coconspirator, one Sta-
cey Rossman, on December 13, 2012. The trial court
found that on that date, the defendant conspired with
another person to steal Beats by Dre (Beats) head-
phones from the Microsoft store in Danbury and that
one of them committed the overt act of stealing at
least one pair of such headphones from the store in
furtherance of that conspiracy. Following the trial, at
which the court also acquitted the defendant, inter alia,
of larceny in the sixth degree in connection with that
same alleged course of conduct, the court sentenced
the defendant on the conspiracy charge to a term of
ninety days in jail. This appeal followed.
The defendant claims on appeal that the evidence
before the trial court was insufficient to support his
conviction for conspiracy to commit larceny in the sixth
degree. He claims, more particularly, that the evidence
admitted against him was insufficient to prove beyond
a reasonable doubt that (1) he conspired with anyone
to commit the offense of larceny in the sixth degree on
December 13, 2012; (2) he had the intent to commit the
crime of larceny in the sixth degree on that date; or (3)
while acting with that intent, he or Rossman stole Beats
headphones on that date in furtherance of their alleged
conspiracy. We agree with the defendant that the evi-
dence was insufficient to support his conviction for
conspiracy to commit larceny in the sixth degree, and
thus remand this case to the trial court with direction
to vacate his conspiracy conviction and enter a judg-
ment of acquittal on that charge.
The following facts are relevant to this appeal. This
case was tried on a three count long form information
charging the defendant as follows: (1) with larceny in
the sixth degree (‘‘on or about December 13, 2012 . . .
[the defendant] did take the property of Microsoft to
wit: headphones in violation of [§] 53a-125b’’); (2) with
conspiracy to commit larceny in the sixth degree (‘‘on
or about December 13, 2012 . . . [the defendant] with
the intent to commit a larceny in the sixth degree, did
agree with Stacey Rossman to commit larceny in the
sixth degree by taking the property of Microsoft to wit:
headphones in violation of [§§] 53a-48 and 53a-125b’’);
and (3) with attempted larceny in the sixth degree (‘‘on
or about December 14, 2012 . . . [the defendant]
attempted to take headphones from the Microsoft store
in violation of [§§] 53a-49 and 53a-125b’’). After the
defendant waived his right to trial by jury and elected
to be tried by the court, trial commenced on January
16, 2014.
The state presented two witnesses in its case-in-chief
at trial. Only one of them offered any testimony con-
cerning the events of December 13, 2012, upon which
the defendant’s challenged conspiracy conviction was
based. The sufficiency of the state’s evidence to support
that conviction thus depends directly upon the nature
and substance of that witness’s testimony and of the
inferences that can be reasonably drawn from it.
Nancy John, the manager of the Microsoft store in
the Danbury Fair Mall, testified that the store was busy
with holiday customers on December 13 and was staffed
with about fifteen employees. John noticed a male and
a female customer enter the store and walk to the acces-
sory area at the back of the store. The accessory area
contained small merchandise items and accessories for
electronic equipment. John noticed these particular
customers because one of them was carrying a shopping
bag from H&M, a store that was no longer in the mall,
a fact to which she had been trained to be alert. A few
minutes after the two customers left the accessory area,
a store associate went over to the area and noticed that
‘‘a few’’ Beats headphones were missing. John testified
that it would have been easy to determine that head-
phones were missing because the store only put one
or two pieces of that type of merchandise out on the
floor at a time. After the store associate informed John
of the missing merchandise, she pulled up security foot-
age on her laptop. John testified as follows as to what
she saw on the security footage, which was not pro-
duced for or introduced as evidence at trial: ‘‘I saw that
the Beats had been . . . picked up, moved around, held
in hand, put back, and then one was pulled off and the
one toward the back was pulled forward . . . to make
it look like there wasn’t one missing at the time.’’
John later testified that Beats headphones had been
stolen on December 13.3 Although John testified on
cross-examination that she was able to track what spe-
cific items from the store’s inventory had been placed
on the floor on December 13, and claimed that the store
had given the numbers of those items to the police, the
state never offered any such numbers or any other
inventory records concerning the missing items into
evidence.4 John admitted that, although a store
employee had reported the headphones missing on
December 13, it was possible that someone else was
carrying them around the store at the time of the
employee’s observation. Moreover, individual pairs of
headphones did not have security devices on them that
would have sounded an alarm or otherwise alerted store
employees if someone were attempting to remove them
from the store without paying for them.
John also testified briefly as to events that allegedly
occurred on two subsequent days, December 14 and
18. On December 14, she stated, the defendant again
came into the store along with the same female compan-
ion who was carrying the same H&M shopping bag
and another female. They headed once again to the
accessory area of the store, where they looked at head-
phones. After they left the store, store employees found
that ‘‘items were missing once again.’’ John called the
police and filed a report after the disappearance of the
missing merchandise was discovered on December 14.
Later, on December 18, the defendant came to the store
a third time, along with the same female companion
who had accompanied him on December 13, and were
in the accessory area of the store. After this visit as
well, Beats headphones were reported to be missing.
John immediately reported the events of December 18
to the police, who thereafter apprehended the defen-
dant and his companion in the mall and arranged a
showup to have John view them. John identified them
as the same individuals who had come into her store
on December 13, 14, and 18.
At trial, John was shown a still photograph taken
from the store’s security footage on December 13, in
which she pointed out the man and the woman whom
she claimed to have stolen Beats headphones on that
date. She specifically identified the defendant as the
male customer depicted in the photograph. The state
also introduced a still photograph taken from the store’s
security footage on December 14, which John claimed
to show the defendant’s two female companions on
that date but not the defendant.
Keith Leggiadro, a police officer with the Danbury
Police Department, also testified for the state. He had
responded to a larceny complaint at the Microsoft store
on December 14 and received two still photographs of
the suspects from John, which had been taken from
the store’s surveillance video on December 13 and 14.
In addition, John showed him the security footage from
those two days. As a result of this complaint, Leggiadro
began to investigate the alleged incidents on December
13 and 14.5 Leggiadro responded to the Danbury Fair
Mall again on December 18 to assist with an arrest.
Upon his arrival, he saw the two individuals in custody,
whom he recognized as the male suspect and one of
the female suspects shown in the photographs he had
been given from the store’s security footage on Decem-
ber 13 and 14. The male suspect shown in the photo-
graph from December 13 was the defendant. Upon
conducting a search incident to arrest of the defendant’s
clothing, the police found and seized a pair of pliers
and a set of car keys. Officer Leggiadro used the keys
to find the associated vehicle. In the vehicle, which the
police then searched, they found an H&M shopping bag
resembling the one reportedly carried by one of the
suspects in the incidents on December 13, 14, and 18.
Other than the two still photographs, which did not
show the defendant or either of his companions in pos-
session of Beats headphones or other Microsoft mer-
chandise, the state never introduced any security
footage from the Microsoft store into evidence.
After John completed her testimony and the court
returned from a lunch break, it announced that it had
decided to exclude all of John’s testimony as to what
she had seen on the unproduced security footage. The
state objected to the exclusion of this evidence, and
repeated the same objection the following day. The
court, however, restated its ruling as follows: ‘‘There are
three bases under which the evidence is being excluded.
The first is that it’s unduly prejudicial to the defendant
to be defending against evidence which has never been
made available to the defendant to review, that the
defendant hasn’t had an opportunity to see, and it’s not
available. . . . Basis number two is there really is a
best evidence purpose if . . . what’s seen on the video-
tape is what’s being relied on, the videotape itself ought
to be proffered. . . . And it’s the court’s ruling that it’s
not going to fall under any exception to the hearsay
rule.’’ When the state asked for clarification as to what
evidence had been excluded by virtue of its ruling, the
court responded as follows: ‘‘What’s excluded is any
testimony as to what the witness saw on any videotape
after the fact.’’
In its closing argument, the state described the evi-
dence in the following manner.6 First, it acknowledged
the circumstantial nature of its case, and the fact that all
testimony as to what John had seen on the unproduced
store video had been excluded. Then, however, it
argued that the court should consider the actions taken
by John and Leggiadro as a result of watching the video,
concluding, ‘‘Nancy John as well as Officer Leggiadro
did watch that videotape, and it was based upon that
information . . . as well as other information that they
put forth to verify not only the identification but that
[the defendant] as well as Ms. Rossman took these items
from the store.’’
Thereafter, the court found the defendant guilty of
conspiracy to commit larceny on December 13 but not
guilty of larceny on that date or attempted larceny on
the following day, December 14. In so ruling, the court
specifically stated that the overt act that had been com-
mitted in furtherance of the conspiracy was a theft of
merchandise from the Microsoft store. The court ruled
in relevant part as follows:
‘‘I do find . . . that the state has met its burden in
proving beyond a reasonable doubt that [the defendant]
is guilty of conspiracy to commit larceny in the sixth
degree. And I do that because I found that the state
proved beyond a reasonable doubt that [the defendant]
with intent [that] . . . the conduct constituting a crime
be performed, agreed with one or more persons to
engage in or cause the performance of such conduct,
and one of them committed an overt act in pursuance
of that conspiracy.
‘‘And the crime that an overt act that the court thinks
was proved beyond a reasonable doubt that an overt
act was . . . committed in furtherance of is the crime
of violating § 53a-125b, larceny in the sixth degree.
Namely, that [the defendant] or someone working with
[him] with intent to deprive another of property or
to appropriate the same to himself wrongfully took,
obtained or withheld property from an owner.
‘‘And, specifically, larceny as defined in § 53a-119 sub-
section 9, shoplifting. That [the defendant] and/or some-
one he was working in concert with was guilty of
shoplifting when they . . . intentionally took posses-
sion of any goods, wares or merchandise offered or
exposed for sale by any store or other mercantile estab-
lishment with the intention of converting the same to
his own use without paying the purchase price thereof.’’
On the basis of these facts, the defendant claims that
the evidence was insufficient to establish any of the
elements of conspiracy to commit larceny in the sixth
degree on December 13. As to the overt act element,
the defendant argues that the state failed to establish
either that ‘‘Beats headphones were missing from the
Microsoft store’s inventory [or] that defendant or some-
one working with him took them.’’ We agree that the
evidence was insufficient to prove beyond a reasonable
doubt that the defendant or his alleged coconspirator
committed a larceny on December 13. Because we agree
that the evidence was insufficient to establish the overt
act of larceny found by the trial court, we do not address
the other two elements of conspiracy.7
‘‘The standard of review of an insufficiency claim is
twofold. We first review the evidence presented at trial,
construing it in the light most favorable to sustaining
the facts expressly found by the trial court or impliedly
found by the jury. We then decide whether, upon the
facts thus established and the inferences reasonably
drawn therefrom, the trial court or the jury could rea-
sonably have concluded that the cumulative effect of
the evidence established the defendant’s guilt beyond
a reasonable doubt. State v. Milardo, 224 Conn. 397,
402–403, 618 A.2d 1347 (1993) . . . .’’ (Internal quota-
tions omitted.) State v. Reed, 56 Conn. App. 428, 432,
742 A.2d 1285, cert. denied, 252 Conn. 945, 747 A.2d
524 (2000).
We begin by setting forth the elements of the crime of
conspiracy to commit larceny. General Statutes § 53a-48
(a) defines conspiracy as follows: ‘‘A person is guilty
of conspiracy when, with intent that conduct constitut-
ing a crime be performed, he agrees with one or more
persons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in
pursuance of such conspiracy.’’ Larceny, the alleged
object of the conspiracy in this case, requires proof
that the defendant committed a larceny in violation of
General Statutes § 53a-119. The elements of larceny are
‘‘(1) the wrongful taking or carrying away of the per-
sonal property of another; (2) the existence of a feloni-
ous intent in the taker to deprive the owner of [the
property] permanently; and (3) the lack of consent of
the owner.’’ (Internal quotation marks omitted.) State
v. Saez, 115 Conn. App. 295, 302, 972 A.2d 277, cert.
denied, 293 Conn. 909, 978 A.2d 1113 (2009). Larceny
by shoplifting under § 53a-119 (9)8 requires that the state
additionally establish that the property taken by the
defendant was goods, wares or merchandise exposed
for sale within the store. Id. Accordingly, to obtain a
conviction for conspiracy to commit larceny in the sixth
degree, the state was required to prove beyond a reason-
able doubt the following three elements: (1) that the
defendant intended to and did agree with one or more
other person to engage in larceny; (2) that the defendant
specifically intended that every element of the crime
of larceny be committed; see State v. Pond, 315 Conn.
451, 467–71, 108 A.3d 1083 (2015); and (3) that the
defendant or a coconspirator committed the overt act
of larceny pursuant to such agreement to commit the
crime of larceny. Here, the trial court, sitting as the
fact finder, specifically found that the overt act was a
larceny—‘‘[n]amely, that [the defendant] or someone
working with [the defendant] with intent to deprive
another of property or to appropriate the same to him-
self wrongfully took, obtained or [withheld] property
from an owner.’’9
After the trial court excluded the evidence of what
John saw on the security footage, only the following
evidence remained for the court’s consideration as to
the defendant’s alleged commission of conspiracy to
commit larceny in the sixth degree on December 13,
2012. John saw two individuals, one of whom was car-
rying a bag from a store no longer in the mall, walk
into the store and head toward the accessory area.
Within a few minutes of these individuals leaving the
store, a store employee noticed that an unspecified
number of Beats headphones were missing from the
accessory area. After John later checked the store’s
inventory, she concluded that ‘‘the headphones’’ had
been ‘‘stolen.’’
We conclude that the evidence remaining after the
court excluded testimony as to what John had seen on
the security footage was insufficient to prove beyond
a reasonable doubt that the defendant or his alleged
coconspirator stole Beats headphones from the Micro-
soft store in Danbury on December 13, 2012, either as
the substantive crime of larceny in the sixth degree, of
which the court acquitted him, or as an overt act in
furtherance of the inchoate crime of conspiracy to com-
mit larceny in the sixth degree on that same date. From
John’s testimony, the fact finder reasonably could have
inferred that when she checked the store’s inventory
after the defendant and his alleged coconspirator had
left the store, she was unable to account for an unspeci-
fied number of Beats headphones in the store. The fact
finder could not, however, have made an inferential leap
from such evidence that the defendant or his alleged
coconspirator, who had been in an area where some
such headphones were displayed on December 13, but
were never seen in possession of any such headphones,
let alone in possession of the missing headphones, on
that day, had stolen the missing headphones from the
store. ‘‘Although Connecticut law accepts the practice
of allowing inferences based on other inferences . . .
[and] . . . [the fact finder] determines if any reason-
able inference in a particular case should be drawn
. . . [the fact finder] accomplishes this function . . .
only where there exists sufficient evidence to support
reasonable inferences.’’ (Citation omitted.) State v.
Estrada, 28 Conn. App. 416, 422, 612 A.2d 110, cert.
denied, 223 Conn. 925, 614 A.2d 828 (1992).
First, the fact finder would have had to infer that
the missing headphones actually had been stolen by
someone and removed from the store, rather than lost
or misplaced within the store or taken into the posses-
sion of another customer who had not yet presented
them to a sales clerk to be purchased. However, there
was insufficient evidence to support such an inference
because John’s own testimony established that the
opposite was true. According to John, although she
believed that the headphones had been stolen, it was
possible that another customer was walking around
with them at the time their absence from the accessory
area was first noticed by another store employee.
Second, and more importantly, the fact finder would
have had to infer that the defendant or his codefendant
not only took possession of the missing headphones,
but removed them from the store with the intent to steal
them. Again, however, there was insufficient evidence
upon which to base such a conclusion. All that the
evidence showed was that the defendant and his alleged
coconspirator had engaged in the innocent, ordinary
conduct of going to a public area of a retail establish-
ment where goods were displayed for sale some unspec-
ified period of time before particular goods they had
not handled, much less taken possession of or con-
cealed from view, were reported missing from that loca-
tion. To draw such an inference, the fact finder would
have had to infer that the innocent, ordinary conduct of
the defendant and his alleged coconspirator—walking
into the store together, going over to the accessory
area, and carrying a shopping bag of a store no longer
in the mall—provided a sufficient evidentiary basis to
make a reasonable inference that they not only took
possession of the headphones but also had stolen head-
phones once displayed in that location but later found
to be missing therefrom. Such conduct was indistin-
guishable from that of any other shoppers who passed
through that area of the store on a busy day in the
Christmas season. Moreover, the state did not present
any evidence that anyone saw the defendant or his
coconspirator take any headphones from the store or
that the police later recovered the missing headphones
in their possession or control after the incident.10
In sum, it was too great an inferential step for the
court to take on this evidence to conclude that the
defendant or his alleged coconspirator stole the missing
headphones from the store. Cf. State v. Saracino, 178
Conn. 416, 417–18, 423 A.2d 102 (1979) (testimony of
codefendants established scheme of fencing material
from store and, although no merchandise was ever
recovered, warehouse inventory revealed that merchan-
dise was missing); State v. Saez, supra, 115 Conn. App.
304 (store employees testified that they saw defendant
pushing merchandise out of store). We therefore con-
clude that the evidence was insufficient to prove beyond
a reasonable doubt that the defendant or his alleged
coconspirator committed an overt act of larceny.
Accordingly, construing the evidence in this case in
the light most favorable to the state, and drawing all
reasonable inferences therefrom, the trial court could
not reasonably have concluded that the cumulative
effect of the evidence established the defendant’s guilt
of conspiracy to commit larceny in the sixth degree
beyond a reasonable doubt.
The judgment of conviction is reversed and the case
is remanded with direction to render judgment of
acquittal on the charge of conspiracy to commit larceny
in the sixth degree.
In this opinion the other judges concurred.
1
General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy
when, with intent that conduct constituting a crime be performed, he agrees
with one or more persons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in pursuance of such con-
spiracy.’’
2
General Statutes § 53a-125b (a) provides: ‘‘A person is guilty of larceny
in the sixth degree when he commits larceny as defined in section 53a-119
and the value of the property or service is five hundred dollars or less.’’
3
John testified as follows:
‘‘[The Prosecutor]: And when you checked inventory later, the Beats had
been stolen, correct?
‘‘[John]: Yes. We checked immediately.’’
4
John also testified as follows:
‘‘[Defense Counsel]: What—do you have any inventory control as to what
the specific item is in the front of the store that’s for sale, do you?
‘‘[John]: Yes.
‘‘[Defense Counsel]: And what tracking is that?
‘‘[John]: It’s all through—through our system, through our—our inventory
control systems, and our demo blinders and buckets. Everything is—you
know, has serial numbers so we know—we know what items are out on
our floor.
‘‘[Defense Counsel]: Okay. But you don’t have any—but you—you don’t
know what specific set was taken on the night of the 13th, do you? Or—
Let me withdraw that question. Did you give Danbury police any specific
item numbers that were taken on December 13th?
‘‘[John]: Yes. We were able to determine that.’’
5
Contrary to John’s testimony, Leggiadro testified that John had told him
that her fellow employees had thwarted a larceny on December 14.
6
The state’s closing argument was in relevant part as follows: ‘‘Your
Honor, you did have an opportunity to sit and watch the testimony of both
Nancy John and Officer Leggiadro before this court. They gathered evidence
and put it together, and Officer Leggiadro eventually did put together in a
warrant affidavit for this defendant for larceny in the sixth degree. I think
what’s important to remember is that not all crime solving or detection can
be based upon direct evidence. In fact, 98 percent of the evidence in criminal
courts are circumstantial in nature. And in this case Nancy John did testify
before the court that there w[ere] individuals from Microsoft Store as well
as herself that were watching this defendant and [Rossman] in the area of
these headphones in the back corner of the Microsoft Store. She also indi-
cated in her testimony that this was not a[n] area that had a lot of merchan-
dise stacked around in a confusing set up . . . . She testified that there’s
a very limited amount of stock that’s on the floor in the Microsoft Store.
And so if there is an item missing, it is very obvious that an item is missing.
She testified that [the defendant] as well as Ms. Rossman were in the back
corner of the store, that the merchandise was on the shelf. And they were
watching them because there were some things that drew their attention
including bags that they were carrying and that they made a bee-line to the
area [in the] store that didn’t have larger items, but items that could be
easily concealed and taken out of the store without much detection. . . .
She did testify that the items were on the shelf, that . . . Ms. Rossman and
[the defendant] were by the merchandise, that it was there, and then she
looked back and it was gone. . . . . However, I . . . would indicate to the
court that Nancy John as well as Officer Leggiadro did watch that videotape,
and it was based upon that information as well, as well as other information
that they put forth to verify not only the identification but that [the defendant]
as well as Ms. Rossman took these items from the store. . . . So even
though the direct evidence of the video was not able to be produced for the
court nor referenced by the witnesses here, there is enough circumstantial
evidence to determine that this defendant, in fact, did take these items along
with [Rossman] . . . . That’s persuasive circumstantial evidence, and there
is no doubt that this defendant and [Rossman] took it, and that nobody else
could possibly have taken it based upon the evidence that’s before this
court. I’d ask that the court find the defendant guilty.’’
7
The defendant also claims that the there was insufficient evidence to
prove an agreement between him and the coconspirator identified in the
information, Rossman. To that end, the defendant argues that the state
was required to establish beyond a reasonable doubt the identity of his
coconspirator as Rossman. The state concedes that it failed to prove that
the name of the defendant’s alleged coconspirator was Rossman. The state
argues, however, that even though it named Rossman in the information as
the defendant’s alleged coconspirator, the name of a coconspirator is not an
element of conspiracy that the state is required to prove beyond a reasonable
doubt. The issue, thus, is whether the state is required to establish the
identity of a coconspirator whom it specifically named in the information
when it does not allege that the defendant conspired with any other named
or unnamed coconspirators. Because we have decided that the evidence in
the case was insufficient to establish a conspiracy, we will not address
whether the state was required to establish the identity of a named cocon-
spirator.
8
General Statutes § 53a-119 (9) provides in relevant part: ‘‘A person is
guilty of shoplifting who intentionally takes possession of any goods, wares
or merchandise offered or exposed for sale by any store or other mercantile
establishment with the intention of converting the same to his own use,
without paying the purchase price thereof. . . .’’
9
The state concedes that the trial court was able to convict the defendant
of conspiracy to commit larceny in the sixth degree on the basis of an overt
act of larceny while acquitting him of the substantive crime of larceny in
the sixth degree because the state had not proven whether it was the
defendant or one of his alleged coconspirators who had taken the head-
phones.
10
The state urges us to consider three additional pieces of evidence, which
we decline to do for the following reasons.
First, the state urges us to rely upon testimony that John noticed the
defendant and his companion lifting ‘‘Beats by Dre’’ headphones off the
shelf, showing them to each other, and talking. This testimony, however,
was excluded as part of what John saw only in the unproduced security
footage. Later, the state asked John questions about the individuals who
had looked at and handled the headphones. Although these questions were
not couched in terms of what John had seen in the security footage, the
record as a whole makes it clear that John only saw the individuals handle
the headphones when viewing the security footage.
Second, the state argues that after the defendant and his companion left
the store, no one else was in the area of the store where the Beats headphones
were displayed. The record, however, does not support this claim. At one
point in her testimony, John described watching on the security footage
that no one else was in the area of the Beats headphones before the defendant
and his companion walked away. This testimony was excluded, however,
and so the state directs our attention to an earlier part of John’s testimony,
when she testified as follows:
‘‘[The Prosecutor]: So when you saw—after you saw [the defendant] and
this other individual in the area of the Beats headphones, and you guys
were keeping an eye on them, did you see right after [the defendant] and
this other individual was there, before anybody else gets to the Beats head-
phones that the Beats were on the shelf?
‘‘[John]: Yes.
‘‘[The Prosecutor]: And just after they walk away from those Beats head-
phones, are the Beats missing from the shelf?
‘‘[John]: Yes.’’
Even if this part of John’s testimony had not been excluded as part of
what she had seen only on videotape, it would not have supported an
inference that no one entered the area after the defendant and his companion
left it but before another employee observed that the headphones previously
displayed there were missing.
Third, the state asks us to consider that the defendant and his alleged
coconspirator returned to the store on December 14 and December 18 and
took Beats headphones. However, no thefts of headphones from the store
were alleged or proved to have occurred on either later date, and evidence
of such later thefts, had it been adduced, would not in any event have proven
a theft by the defendant or his companion on December 13.