State v. Adams ( 2016 )

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STATE OF CONNECTICUT v. LORENZO ADAMS
(AC 36701)
Beach, Sheldon and Harper, Js.
Argued December 7, 2015—officially released March 22, 2016
(Appeal from Superior Court, judicial district of
Danbury, geographical area number three, Roraback, J.)
Deren Manasevit, assigned counsel, for the appel-
lant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Colleen P. Zingaro, assistant
state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Lorenzo Adams, appeals
from the judgment of conviction, rendered following a
trial to the court, of attempt to commit larceny in the
sixth degree in violation of General Statutes §§ 53a-491
and 53a-125b2 and breach of peace in the second degree
in violation of General Statutes § 53a-181.3 On appeal,
the defendant claims that the state adduced insufficient
evidence to sustain his conviction of both crimes
beyond a reasonable doubt.4 We affirm the judgment
of the trial court with respect to the breach of peace
charge, but we reverse the judgment with respect to
the attempted larceny charge.
The following facts are relevant to the defendant’s
claims on appeal. On the evening of September 23, 2006,
Sergeant Vincent LaJoie and Officer Jose Pastrana of
the Danbury Police Department responded to a report
of a larceny in progress at the Marshalls department
store in Danbury. They were informed that the suspect
was trying to flee and that the suspect physically
engaged Marshalls’ security personnel. LaJoie arrived
first and spoke with Joseph Fernandes and Christine
Nates—two loss prevention officers for Marshalls—
who described the suspect. Pastrana arrived shortly
thereafter while LaJoie still was conferring with Fernan-
des and Nates. LaJoie then transmitted the suspect’s
description to dispatch and proceeded to search for
the suspect in the shopping plaza parking lot. Pastrana
proceeded to the loss prevention office with Nates and
Fernandes, who showed him a DVD containing surveil-
lance footage of the suspect’s activity in the store.
LaJoie found a person matching the suspect’s descrip-
tion outside of a nearby Staples store. He noticed that
this person was perspiring and breathing heavily. LaJoie
accosted the individual and informed dispatch that he
believed he had the suspect. Pastrana had viewed about
half of the surveillance footage when he was informed
that LaJoie had apprehended a suspect. He transported
Fernandes and Nates to LaJoie’s location, where they
identified the defendant as the suspect. The defendant
subsequently was taken into custody and transported
to the police station.
The state originally charged the defendant with
breach of peace in the second degree, robbery in the
third degree, and attempt to commit larceny in the
fourth degree. The defendant filed motions for a bill of
particulars and for a statement of essential facts in
August, 2012 and December, 2013. By a substitute long
form information dated January 9, 2014, the state
charged the defendant with robbery in the third degree,
attempt to commit larceny in the sixth degree, and
breach of peace in the second degree. With respect to
the attempted larceny charge, the state alleged that the
defendant committed a crime when he ‘‘attempted to
take a jacket from the Marshall[s] store . . . .’’
The case was tried before the court on February 4,
2014. The state offered the surveillance footage of the
defendant in the store into evidence. The court was
shown the recorded footage5 during Pastrana’s direct
examination, which he narrated from the witness stand.
Specifically, Pastrana testified as follows. The footage
began with the defendant in the men’s department of
Marshalls without any shopping bags or other items in
his hands. The defendant looked through a rack of suits,
removed one from the rack, and carried it off to a corner
of the store. Later, the defendant took a pair of shoes
to the same corner of the store. Even later, the cameras
show the defendant placing items in a bag in the same
corner of the store. Pastrana specifically describes the
bag as ‘‘[a] plastic bag filled with some items.’’ The
defendant then gathered a large, full bag and walked
to the store exit without paying for anything. As he
reached the exit, he was approached by Fernandes and
Nates, who attempted to stop him from leaving the
store. The defendant struggled physically with them
for a few moments before exiting the store. The loss
prevention officers stated to Pastrana that they were
shoved by the defendant as he attempted to escape.
The defendant dropped the bag he was carrying before
he left the store. Neither Fernandes nor Nates testified
at trial.
After the trial concluded, the court articulated its
decision from the bench. The court found the testimony
of both police officers to be credible, and found the
defendant guilty of both breach of peace in the second
degree and attempt to commit larceny in the sixth
degree.6 With respect to breach of peace, the court
made the following remarks: ‘‘I am going to find [the
defendant] guilty of breach of peace in the second
degree because the court’s review of the evidence at
the time he was exiting the store, the videotape, demon-
strated beyond a reasonable doubt that there was a
scuffle which can clearly be characterized as tumultu-
ous behavior in a public place.’’ With respect to
attempted larceny, the court commented that ‘‘the evi-
dence, [the defendant] being in the Marshalls store and
going to the point of exit with a bag filled with things
that were not in his possession when he entered the
store, or which he was not carrying as he entered the
store, leads the court to find the defendant guilty of
attempted larceny in the sixth degree because the court
finds that the state has proven beyond a reasonable
doubt that he attempted to take possession of goods
or merchandise offered or exposed for sale by Marshalls
with the intent of converting the same to his use without
paying the purchase price for those goods.’’ The defen-
dant was sentenced to consecutive terms of three
months and six months on the attempted larceny and
breach of peace charges, respectively. This appeal
followed.
In this appeal, the defendant claims that the evidence
admitted at trial was insufficient to support his convic-
tion of attempt to commit larceny in the sixth degree
and breach of peace in the second degree. The state
objects, arguing that it presented ample evidence from
which the court could find the defendant guilty of both
crimes. For reasons we now discuss, we affirm the
judgment with respect to the breach of peace charge
and reverse the judgment with respect to the attempted
larceny charge.
We begin with the standard of review. ‘‘The standard
of review [applicable to] a sufficiency of the evidence
claim is well settled. [W]e apply a two part test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [trier of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Crenshaw,
313 Conn. 69, 93, 95 A.3d 1113 (2014). ‘‘While the [trier
of fact] must find every element proven beyond a rea-
sonable doubt in order to find the defendant guilty of
the charged offense, 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 [trier of fact] to conclude that a basic
fact or an inferred fact is true, the [trier of fact] 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.’’ (Internal quota-
tion marks omitted.) State v. Stephen J. R., 309 Conn.
586, 593–94, 72 A.3d 379 (2013).
I
We address first whether there was sufficient evi-
dence to support the defendant’s conviction of attempt
to commit larceny in the sixth degree. The defendant
argues that the state produced no evidence to prove
that the items that were in the bag he carried to the
store exit belonged to Marshalls. He also argues that
the state failed to submit evidence to prove that he
committed attempted larceny in the manner described
in the long form information, namely, by attempting to
steal a jacket belonging to Marshalls. The state argues
that the attempted larceny conviction was supported
by ample evidence. The state contends that the footage
showing the defendant selecting items from various
racks, gathering them in one corner of the store, and
then returning to that area for several minutes before
leaving with a full bag not previously depicted in the
footage, permitted the court to conclude that the defen-
dant had attempted to take merchandise belonging to
Marshalls. The state notes that there is no dispute that
the defendant is the person depicted in the surveillance
footage. Further, the state argues that the defendant’s
unexplained flight from the store when approached by
Fernandes and Nates supports an inference that the
defendant was conscious of his guilt.
The following legal principles guide our analysis of
this issue. ‘‘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.’’ General Statutes § 53a-125b
(a). ‘‘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. . . .’’ Gen-
eral Statutes § 53a-119. Subsection (9) of § 53a-119 pro-
vides that shoplifting is a means to commit larceny.
Section 53a-119 (9) provides: ‘‘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. A person
intentionally concealing unpurchased goods or mer-
chandise of any store or other mercantile establish-
ment, either on the premises or outside the premises
of such store, shall be prima facie presumed to have
so concealed such article with the intention of con-
verting the same to his own use without paying the
purchase price thereof.’’ See also State v. Saez, 115
Conn. App. 295, 302, 972 A.2d 277 (‘‘for a conviction of
larceny by shoplifting, the state must prove that the
property taken by the defendant was goods, wares or
merchandise exposed for sale within the store’’), cert.
denied, 293 Conn. 909, 978 A.2d 1113 (2009).
With these principles in mind, we conclude that the
court improperly found that the state adduced sufficient
evidence to support a conviction of attempt to commit
larceny in the sixth degree. In particular, we conclude
that the state failed to prove beyond a reasonable doubt
that the defendant attempted to intentionally deprive
Marshalls of its property that it exposed for sale within
the store. See id. To begin with, we reject the court’s
conclusion that the surveillance footage showed the
defendant ‘‘going to the point of exit with a bag filled
with things that were not in his possession when he
entered the store, or which he was not carrying as he
entered the store . . . .’’ On the contrary, the footage
does not show the defendant entering the store at all;
it begins with him in the men’s section browsing suits.
There is no evidence that the defendant entered Mar-
shalls with or without a bag, empty or full. Additionally,
there is no evidence in the record to support the court’s
conclusion that the ‘‘bag filled with things’’ that the
defendant carried to the store’s exit were things that
belonged to Marshalls. Pastrana testified that Fernan-
des and Nates had told him that the defendant was
‘‘taking items or picking out items, and then taking them
to a certain corner of the store, and then piling them
up.’’ He also testified that the surveillance footage
showed the defendant ‘‘put stuff in the bag,’’ and later
that he could see ‘‘[a] plastic bag filled with some items’’
in the defendant’s hands. Although this testimony is
consistent with the surveillance footage, there is no
testimony or footage to demonstrate, beyond a reason-
able doubt, that the items belonging to Marshalls that
the defendant gathered in the corner of the store were
the same items that he placed into a plastic bag and
attempted to walk out with. No one testified, for exam-
ple, that after Fernandes and Nates recovered the bag
from the defendant, they verified that the items they
discovered within the bag belonged to Marshalls. Fur-
thermore, the surveillance camera’s view of the area
where the defendant gathered items is obstructed by
racks of clothing and a large sign suspended from the
ceiling. Thus, because the defendant’s activity in the
isolated corner of the store was mostly invisible to
the cameras, the state’s claim that the defendant was
placing goods belonging to Marshalls in the bag is, in
our view, pure speculation.
The state acknowledges that it was necessary to
prove that the items in the bag belonged to Marshalls,
but argues that it did. Specifically, the state contends
that the court reasonably could have determined that
the items belonged to Marshalls because Pastrana testi-
fied that Fernandes and Nates told him the value of the
items in the bag—approximately $979.7 The state relies
on State v. Jennings, 125 Conn. App. 801, 9 A.3d 446
(2011), in support of this position. The defendant in
Jennings was charged with larceny in the third degree
and conspiracy to commit larceny in the third degree.
Id., 803. He was observed with two other individuals
in a Wal-Mart store standing near a shopping cart that
contained a clear plastic tote. Id., 804. All three individu-
als were observed collecting and concealing DVDs from
the store within that tote. Id. They removed the DVDs
from the tote and placed them inside a suitcase. Id. The
defendant’s coconspirators placed the suitcase in the
shopping cart and left the cart near the exit. Id. The
defendant then pushed the cart toward the exit and
was apprehended. Id. After the defendant was arrested,
a store employee scanned the DVDs and printed a
receipt that indicated that the value of the DVDs was
$1822.72. Id., 805. After a jury trial, the defendant was
convicted of larceny and conspiracy to commit lar-
ceny. Id.
On appeal, the defendant claimed that the state had
failed to prove that the value of the DVDs exceeded
$1000, an essential element of larceny in the third
degree.8 Id., 806. Specifically, the defendant argued that
the only evidence of value offered at trial was given
by the responding police officer, who testified, after
refreshing his recollection with his police report, that
the value of the DVDs exceeded $1000. Id., 807–808.
Neither the store’s receipt nor the DVDs were exhibits
at trial. Id., 807. This court disagreed, reasoning that the
officer’s testimony, ‘‘absent objection by the defendant,
was sufficient proof that the total value of the 101 DVDs
exceeded $1000.’’ Id.
We disagree that Jennings is instructive to our analy-
sis. The claim in Jennings was that the state failed to
present sufficient evidence to prove, beyond a reason-
able doubt, the essential element of value, not the essen-
tial element of ownership of the item, which is at issue
in the present case. See id., 806; see also State v. Lokt-
ing, 128 Conn. App. 234, 239–40, 16 A.3d 793 (‘‘larceny
in the sixth degree consists of two essential elements:
[1] the intentional deprivation of an owner’s property
through the wrongful taking, obtaining or withholding
of such property; see General Statutes § 53a-119; and
[2] the value of the property is [$500] or less’’ [emphasis
added]), cert. denied, 301 Conn. 926, 22 A.3d 1277
(2011); State v. Saez, supra, 115 Conn. App. 302 (‘‘for
a conviction of larceny by shoplifting, the state must
prove that the property taken by the defendant was
goods, wares or merchandise exposed for sale within
the store’’). In Jennings, the police and store loss pre-
vention officers were able to see the defendant and
his coconspirators take specific items belonging to the
store, place them in a clear tote, transfer them into a
suitcase, and then begin to take them from the store.
Id., 804–805. Thus, there was never any issue concerning
the store’s ownership of the DVDs in that case.
Here, however, there is no evidence that the items
that the defendant tried to exit Marshalls with belonged
to the store. The surveillance footage does not capture
the defendant placing specific, identifiable store mer-
chandise into the bag before making off with it, and
there was no evidence before the trial court that the
contents of the bag that the defendant abandoned
belonged to Marshalls. It is entirely conceivable that
the defendant entered Marshalls with the bag, and that
the bag contained items from somewhere else. To the
extent that the state argues that evidence of value may,
by itself, establish that the items belonged to Marshalls,
we reject that position as well. For all we know, Fernan-
des and Nates guessed the value that they reported to
Pastrana. We have no evidence to substantiate how they
concluded that the items valued $979. In the absence of
some evidence, we conclude that the court could not
infer ownership from value without speculating. There-
fore, the state has failed to prove beyond a reasonable
doubt an essential element of § 53a-125b and, conse-
quently, the defendant’s conviction of attempt to com-
mit larceny in the sixth degree cannot stand.
II
The defendant next claims that the evidence was
insufficient to sustain his conviction of breach of peace
in the second degree. We disagree.
‘‘A person is guilty of breach of the peace in the
second degree when, with intent to cause inconve-
nience, annoyance or alarm, or recklessly creating a
risk thereof, such person: (1) Engages in fighting or in
violent, tumultuous or threatening behavior in a public
place . . . .’’ General Statutes § 53a-181 (a) (1). ‘‘Pursu-
ant to § 53a-181, the state must prove that (1) the defen-
dant engaged in fighting or in violent, tumultuous or
threatening behavior, (2) this conduct occurred in a
public place and (3) the defendant acted with the intent
to cause inconvenience, annoyance or alarm, or that
he recklessly created a risk thereof.’’ State v. Ragin,
106 Conn. App. 445, 451, 942 A.2d 489, cert. denied, 287
Conn. 905, 950 A.2d 1282 (2008).
The defendant does not dispute that the conduct
occurred in a public place, but challenges the suffi-
ciency of the evidence with respect to the act and intent
elements of the crime. First, the defendant challenges
the sufficiency of the evidence supporting the court’s
finding that the surveillance footage ‘‘demonstrated
beyond a reasonable doubt that there was a scuffle
which can clearly be characterized as tumultuous
behavior in a public place.’’ The defendant contends
that the footage is merely a series of digital snapshots
that do not show continuous action, and, therefore, that
it is impossible to determine that his actions constituted
fighting or violent, tumultuous or threatening behavior.
‘‘Our Supreme Court, in order to ascertain the mean-
ing of § 53a-181 (a) (1), looked to the construction given
by this court in State v. Lo Sacco, 12 Conn. App. 481,
490, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d
568 (1987), to identical language contained in General
Statutes § 53a-181a (a) (1), the public disturbance stat-
ute. See State v. Szymkiewicz, [237 Conn. 613, 618, 678
A.2d 473 (1996)]. In State v. Lo Sacco, supra, this court
stated that ‘ ‘‘[t]hreatening’’ is defined as a ‘‘promise
[of] punishment’’ or, ‘‘to give signs of the approach of
(something evil or unpleasant).’’ [Webster, Third New
International Dictionary.] When, [however] two or more
words are grouped together, it is possible to ascertain
the meaning of a particular word by reference to its
relationship with other associated words and phrases
under the doctrine of noscitur a sociis. . . . Placed
within the context of the other words in the statute,
the word ‘‘threatening’’ takes on a more ominous tone.
The statute proscribes ‘‘engaging in fighting or in vio-
lent, tumultuous, or threatening behavior.’’ In State v.
Duhan, [38 Conn. Supp. 665, 668, 460 A.2d 496 (1982),
rev’d on other grounds, 194 Conn. 347, 481 A.2d 48
(1984)], the Appellate Session of the Superior Court
defined ‘‘tumultuous’’ as ‘‘riotous’’ and ‘‘turbulent.’’
Fighting, by its plain meaning, involves physical force.
. . . [T]he language of subdivision (1) of General Stat-
utes § 53a-181a (a) . . . evinces a legislative intent to
proscribe conduct which actually involves physical vio-
lence or portends imminent physical violence.’ ’’ In re
Jeremy M., 100 Conn. App. 436, 450–51, 918 A.2d 944,
cert. denied, 282 Conn. 927, 926 A.2d 666 (2007).
The court’s conclusion that the defendant engaged in
fighting or violent, tumultuous, or threatening behavior
was supported by sufficient evidence. Although the sur-
veillance footage does not depict uninterrupted action,
it clearly depicts a continuous altercation in increments
of nearly one image per second. The surveillance foot-
age shows Fernandes and Nates confront the defendant
and attempt to block his exit from the store. Their arms
and bodies move about as the defendant tries to force
his way out the door. In addition, Pastrana testified
that Fernandes and Nates told him that the defendant
shoved them to get out. This testimony was admitted
into evidence without objection at trial.
The defendant also claims that the evidence was
insufficient to establish that he intended to cause incon-
venience, annoyance, or alarm. ‘‘[T]he predominant
intent [in a breach of peace charge] is to cause what a
reasonable person operating under contemporary com-
munity standards would consider a disturbance to or
impediment of a lawful activity, a deep feeling of vexa-
tion or provocation, or a feeling of anxiety prompted
by threatened danger or harm.’’ State v. Wolff, 237 Conn.
633, 670, 678 A.2d 1369 (1996). Construing the evidence
in the light most favorable to upholding the conviction,
as we must, we conclude that the surveillance footage
shows Fernandes and Nates intercept the defendant as
he tried to leave. The defendant clearly attempts to
get around them on both sides before he successfully
escapes. Fernandes and Nates were attempting to pre-
vent what they perceived as a theft in the course of their
employment—a lawful activity which was disturbed by
the defendant’s conduct. The cumulative force of this
evidence is that the defendant used physical force,
namely, a shove, with the intent to impede a lawful
activity. Accordingly, we conclude that sufficient evi-
dence supported the court’s judgment with respect to
the breach of peace conviction.
The judgment is reversed only with respect to the
defendant’s conviction of attempt to commit larceny in
the sixth degree and the case is remanded with direction
to render a judgment of acquittal on that charge; the
judgment is affirmed with respect to his conviction of
breach of peace in the second degree.
In this opinion, SHELDON, J., concurred.
1
General Statutes § 53a-49 (a) provides: ‘‘A person is guilty of an attempt
to commit a crime if, acting with the kind of mental state required for
commission of the crime, he: (1) Intentionally engages in conduct which
would constitute the crime if attendant circumstances were as he believes
them to be; or (2) intentionally does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his commis-
sion of the crime.’’
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
General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is
guilty of breach of the peace in the second degree when, with intent to
cause inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, such person: (1) Engages in fighting or in violent, tumultuous or
threatening behavior in a public place . . . .’’
4
The defendant also claimed that his constitutional right to present a
defense was violated, but abandoned this claim at oral argument before
this court.
5
The surveillance footage was produced by a closed circuit television
system which records a series of still pictures approximately every second.
6
The court found the defendant not guilty of robbery in the third degree.
7
Pastrana’s testimony on the subject of the value of the goods recovered
from the defendant is as follows:
‘‘[The Prosecutor]: And do you know what merchandise the defendant
was trying to take from the store at that time?
‘‘[Officer Pastrana]: To my best recollection, I cannot tell you the actual
items. I know the total amount that they gave me, that they ran up. The
total was approximately $979 and change.’’
8
General Statutes § 53a-124, defining larceny in the third degree, was
amended in 2009 to increase the minimum value of the property involved
to $2000. Public Acts 2009, No. 09-138, § 3.