State v. Morel ( 2017 )

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STATE OF CONNECTICUT v. TOMAS MOREL
(AC 38326)
Keller, Mullins and Harper, Js.
Submitted on briefs January 11—officially released April 11, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number twenty,
Holden, J.)
Cameron R. Dorman, assigned counsel, filed a brief
for the appellant (defendant).
Richard J. Colangelo, Jr., state’s attorney, Lisa A.
Riggione, senior assistant state’s attorney, and Kather-
ine E. Donoghue and Nadia C. Prinz, deputy assistant
state’s attorneys, filed a brief for the appellee (state).
Opinion
KELLER, J. The defendant, Tomas Morel, appeals
from the judgment of conviction rendered by the trial
court, following a jury trial, of two counts of larceny
in the first degree in violation of General Statutes § 53a-
122, and one count of conspiracy to commit larceny in
the first degree in violation of General Statutes §§ 53a-
48 and 53a-122.1 The defendant claims that (1) the evi-
dence did not support the jury’s finding with respect
to two of the three crimes of which he was convicted
and (2) the court improperly permitted the state to
present uncharged misconduct evidence. We affirm the
judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
During the events underlying this appeal, the defendant
was a longtime employee of Dooney and Bourke, a
company that designs and manufactures handbags and
small leather goods, including wallets. Although the
company did not provide its employees with written
policies and procedures, policies and procedures that
governed employee activities were otherwise communi-
cated to employees and, thus, became common knowl-
edge. The defendant was employed as a driver. His
duties customarily entailed the transportation of prod-
ucts from the company’s manufacturing facility in Nor-
walk to its distribution center in Orange. At its
manufacturing facility, the company manufactured new
and sample products, repaired products, and processed
products that had been returned by customers.
New products, which left the manufacturing facility
daily, were tagged with unique serial numbers. After
these products were scanned, they were sealed in boxes
containing other new products. A contents label that
identified the products in each box was affixed to the
outside of each box. Later, skids holding multiple boxes
of new products were shrink-wrapped together and,
with the use of a forklift, moved into the company truck
for transport to the distribution center. Upon arrival at
the distribution center, new products were inventoried
by the use of scanning equipment and then stored. Thus,
the company utilized a procedure that enabled person-
nel at the manufacturing facility to know exactly what
new product was leaving the facility, and personnel
at the distribution center to know exactly what new
product was arriving at the center.
Skids holding boxes that contained returned and
repaired products left the manufacturing facility for
delivery to the distribution center along with skids hold-
ing boxes that contained new products, but this
occurred at irregular intervals, usually two or three
times per month. At the manufacturing facility, returned
and repaired handbags were placed in boxes along with
similar products for shipment to the distribution facil-
ity. However, unlike the situation with new products,
there was no procedure in place by which to inventory
each returned and repaired handbag at either the manu-
facturing facility or the distribution center. Instead,
boxes containing these handbags were sealed when full,
and the number of handbags in each box was inscribed
in marker on the outside of the box. Affixed to each
box was a document that included the date, number of
products in each box, and the destination for each box.
Smaller-sized returned and repaired products were
packaged and shipped in a similar manner. Prior to
their transport and delivery to the distribution center,
boxes containing returned and repaired products were
stacked on skids with other boxes containing returned
and repaired products. Personnel at the manufacturing
facility typically did not notify the distribution center
to alert it to incoming skids of returned and repaired
products. Basic company policy required that, once
loaded on the truck for shipment, boxes were not to
be opened during transit.
The company manufactured many sample products
that were used during ‘‘market week’’ events in New
York City four times each year. These products, dis-
played for store buyers, were transported to New York
in what company employees referred to as ‘‘coffin
boxes’’ and, later, returned to the manufacturing facility
for display. These boxes were smaller than the boxes
that were used for new products and those used for
returned and repaired products.
The defendant’s charges arose from two separate
incidents, one that occurred on December 8, 2011, and
the other that occurred on October 12, 2012. The
December 8, 2011 incident occurred during the com-
pany’s annual ‘‘tent sale,’’ a several-day event that took
place in the parking lot of the manufacturing facility
beginning on December 7, 2011. During the tent sale,
the company sold new products, which were delivered
to the manufacturing facility from the distribution cen-
ter, as well as sample products that were selected for
sale from products stored at the manufacturing facility.
It was well established company policy that sample
products, which were priced for sale by store managers
who were brought in to work at the manufacturing
facility to assist in the tent sale, were always stored in
coffin boxes, not the types of boxes used to store new
products. Moreover, it was company policy that sample
products be transported around the manufacturing
facility in coffin boxes so that supervisors could observe
the movement of such products and, if necessary,
inquire as to why such products were being transported
around the facility. A large amount of new products
and sample products were stored in the manufacturing
facility until such time as they were brought out to the
nearby tent for sale to customers.
In the afternoon of December 7, 2011, Arle Cruz, an
employee working in the packaging area of the manu-
facturing facility, observed the defendant and two other
employees employed in the manufacturing facility,
Vincente Morel and Carlos Guillen, stuff three garbage
bags with sample handbags and wallets intended for
the tent sale that they removed from a skid holding
twenty coffin boxes. Each of the garbage bags con-
tained approximately thirty products. The defendant,
Morel, and Guillen placed the bags in what company
employees referred to as ‘‘baby trucker’’ boxes, a type
of box that the company did not utilize to transport
sample product, which they transported to Morel’s
work area, near the loading dock. In an effort to prevent
this activity, Cruz positioned the coffin boxes of sample
products intended for the tent sale such that they were
in view of a company surveillance camera. Morel and
Guillen approached Cruz. Morel stated that Cruz was
not a supervisor and, while motioning in a threatening
manner by moving his hand across his neck, stated that
he would cut Cruz’ neck. Two hours later, close to 5
p.m., Cruz observed these same baby trucker boxes on
the loading dock itself.
The next day, Lourdes C. Lawson, a company
employee who worked in the shipping department at
the manufacturing facility, observed Morel and Guillen
pass by his work station with carts that contained open,
untapped, and unlabeled ‘‘size 46’’ boxes of sample
handbags. Morel and Guillen were leaving an area in
which such handbags were stored and were heading in
the direction of the loading dock.
Lawson alerted Anthony Luna, a company employee.
Luna’s duties included operating the surveillance sys-
tem in the manufacturing facility. Luna observed the
defendant, Morel, and Guillen closing either baby
trucker or size 46 boxes in the loading dock area and
loading thirteen of these boxes into the company’s deliv-
ery van. A video recording of these events was captured
on company surveillance cameras and introduced in
evidence. It was readily apparent to Luna that the boxes
contained handbags, and that they had not been prop-
erly packed for transport in accordance with company
policies (i.e., the boxes did not contain paper and the
boxes were not taped closed). Luna inquired where the
van was headed, to which the defendant replied, ‘‘to
New York.’’ The van, driven from the loading dock by
Morel and Guillen, was returned to the back of the
manufacturing facility within forty-five minutes. This
was inconsistent with their having made a round trip
to New York City. Additionally, because there was no
market week event taking place in New York City, there
was no reason for sample product to be transported to
New York City on that date.2
Several weeks later, the defendant asked Luna if he
knew whether the company had installed Global Posi-
tioning System (GPS) equipment on the company truck.
Luna replied, ‘‘no.’’ The defendant told Luna that he
believed that Luna had, in fact, installed the equipment.
Then, the defendant stated that ‘‘we all have families
and I also have a family, and anybody can go crazy.’’
The defendant gestured to Luna by holding his fingers
in the shape of a gun, pointing to his head, and stating:
‘‘Boom.’’ Also, the defendant told Luna ‘‘not to say any-
thing, to shut up.’’ Luna understood this threat to refer
to what he might have learned about the defendant’s
activities by use of the video cameras. Thereafter, Luna
and another coworker, Albert Richard, reported the
incident to Philip Kinsley, the company’s vice president
of finance.
The second incident underlying this case occurred
on October 12, 2012. By this point in time, Kinsley had
become concerned about the theft of products from the
manufacturing facility. In June, 2012, Kinsley cautioned
the defendant that he would be fired if he was stealing
from the company. Although the defendant denied tak-
ing part in company theft, Kinsley, having reviewed GPS
information from the company truck, observed that the
defendant’s deliveries from the manufacturing facility
to the distribution center were taking longer than they
should and that the defendant frequently made stops
during these deliveries. Kinsley was notified that a skid
holding returned and repaired merchandise was being
delivered to the distribution center on October 12, 2012,
and he closely monitored the defendant’s activities with
respect to this shipment. Company surveillance video
reflected that the defendant loaded a skid, which held
seventeen boxes of returned and repaired products.
These consisted of 159 handbags and 104 small leather
goods. All together, these products had a total average
value of $85,338.3 The defendant loaded this skid into
the company truck on October 12, 2012. The defendant
loaded two skids holding new product into the company
truck, as well, before departing from the manufacturing
facility alone in the truck.
GPS information reflected that the defendant left the
manufacturing facility in Norwalk at 8:02 a.m. The
defendant did not proceed directly to the distribution
center in Orange. Among several stops that the defen-
dant made was one during which he exited Interstate
95 northbound and proceeded along local roads to an
underpass under Interstate 95. The truck remained at
this location for nineteen minutes, between 9:03 a.m.
and 9:22 a.m. When the defendant arrived at the distribu-
tion center, the company truck contained the two skids
holding new product, but the third skid, holding the
returned and repaired products, was not in the truck.
After delivering the skids containing new products, the
defendant returned to the manufacturing facility at
12:50 p.m.
When the defendant was arrested in this case, he
made a threatening statement to one of the arresting
police officers, William Matson. The defendant was
under the mistaken belief that Matson’s mother was
one of his coworkers at the company. He asked Matson
if his mother worked at the company. When Matson
replied that he did not know what the defendant was
talking about, the defendant replied: ‘‘[I]t must be the
other officer, and you can let her know we’ll be seeing
her soon.’’ In response to the defendant’s threat, Morel
and Guillen, who were nearby, began to laugh. The
mother of another arresting police officer, Nikolas Kou-
gioumtzidis, worked at the manufacturing facility in
November, 2012. Additional facts will be set forth as
necessary.
I
First, the defendant claims that the evidence did not
support the jury’s finding that he was guilty of larceny
in the first degree and conspiracy to commit larceny
in the first degree as a result of his activities with Morel
and Guillen on December 8, 2011, at the time of the
tent sale. We disagree.
The defendant’s arguments may be summarized as
follows. He argues that the state failed to demonstrate
that he possessed the requisite intent to commit larceny.
He argues that the evidence reasonably demonstrated
that he, Morel, and Guillen placed sample products in
the company van on December 8, 2011. He argues that
although there was evidence that certain of his activities
with respect to handling and moving the sample prod-
ucts violated company policy, such breaches of policy
did not reasonably support a finding that he intended
to deprive the company of the products. Instead, in light
of evidence that salespersons who did not customarily
work at the manufacturing facility helped to oversee
the tent sale and evidence that, in the past, the company
van had been used to transport products to the tent
sale, he argues that ‘‘[i]t is equally likely that the sales
staff instructed the defendant, Guillen, and [Morel] to
bring the handbags to the tent, and they put the sample
product into larger shipping boxes to make it easier for
them to bring the sample product to the tent.’’ He argues
that the evidence reflects that the men did not conceal
their activities and that, to the extent that Morel threat-
ened Cruz, his conduct reasonably could be understood
to be an expression of anger directed at Cruz for
interfering with his work.
Moreover, the defendant argues that the state failed
to demonstrate that a wrongful taking occurred. He
argues that ‘‘[t]here was no evidence offered to prove
that the sample bags were actually missing or even the
actual number of sample bags that were missing. No
documentation was offered that itemized the sample
product that was allegedly stolen. No testimony by the
sales force, or any other person that could definitively
say or prove that sample bags intended for the tent sale
went missing or even how many actually went missing.’’
Addressing the evidence that the company van
appeared to be absent from its customary location in the
back of the facility for approximately forty-five minutes,
the defendant argues that there was no evidence with
respect to the van’s whereabouts during this period and
that ‘‘[n]o one testified that the van went anywhere
other than to the tent,’’ which was located in a parking
lot on the premises. The defendant argues that because
it is speculative to conclude that the van was driven
beyond company property, a finding that the defendant
deprived the company of ownership of the sample prod-
ucts is unsupported by the evidence. The defendant
claims that the evidence did not support a finding that
he engaged in a wrongful taking or that he conspired
to engage in a wrongful taking.
‘‘The standard of review employed in 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 reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt. . . .
‘‘While the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant 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 jury to conclude that a
basic fact or an inferred fact is true, the jury is permitted
to consider the fact proven and may consider it in com-
bination 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 quotation marks
omitted.) State v. Millan, 290 Conn. 816, 825, 966 A.2d
699 (2009).
Section 53a-122 provides in relevant part: ‘‘(a) A per-
son is guilty of larceny in the first degree when he
commits larceny, as defined in section 53a-119, and
. . . (2) the value of the property or service exceeds
twenty thousand dollars . . . .’’ General Statutes § 53a-
119 provides in relevant part: ‘‘A person commits lar-
ceny 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. . . .’’ ‘‘Connecticut courts have inter-
preted the essential elements of larceny as (1) the
wrongful taking or carrying away of the personal prop-
erty 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.
. . . Because larceny is a specific intent crime, the state
must show that the defendant acted with the subjective
desire or knowledge that his actions constituted steal-
ing. . . . Larceny involves both taking and retaining.
The criminal intent involved in larceny relates to both
aspects. The taking must be wrongful, that is, without
color of right or excuse for the act . . . and without
the knowing consent of the owner. . . . The requisite
intent for retention is permanency.’’ (Internal quotation
marks omitted.) State v. Flowers, 161 Conn. App. 747,
752, 129 A.3d 157 (2015), cert. denied, 320 Conn. 917,
131 A.3d 1154 (2016). Section 53a-48 provides in rele-
vant part: ‘‘(a) A person is guilty of conspiracy when,
with intent that conduct constituting a crime be per-
formed, 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. . . .’’
Essentially, the defendant argues that the state failed
to prove beyond a reasonable doubt that a wrongful
taking occurred because the state was unable to demon-
strate precisely what happened to the boxes that were
loaded into the company van on December 8, 2011. The
defendant’s argument fails, however, because in the
present case there was ample circumstantial evidence
that permitted the jury to infer that the defendant
wrongfully took possession of the items, thereby depriv-
ing the company of ownership and control of them. The
evidence permitted a finding that the defendant was a
seasoned employee who knew or should have been
aware of company policies governing the handling and
transport of products, including the policies governing
the sample products stockpiled for sale at the com-
pany’s annual tent sale.
In violation of those policies, the defendant removed
sample bags from coffin boxes. He put them into gar-
bage bags. Later, in contravention of company policies,
he put them into baby trucker boxes that were not
used for sample handbags. He moved these improperly
boxed products, which were intended for sale at the
tent sale, into Morel’s work area near the loading dock.
The next day, again in contravention of company poli-
cies, Morel and Cruz moved more improperly boxed
sample products to the loading area. At least one
coworker viewed this conduct suspiciously in that it
appeared that ‘‘the guys are grabbing something and
the manager is not here.’’ The defendant, Morel, and
Cruz were observed moving the boxes into the company
van. Later, Morel and Cruz left the loading dock in
the van, which was observed forty-five minutes later,
parked in the back of the manufacturing facility. At this
point in time, the van was empty.
The defendant urges us to conclude that it was irratio-
nal for a finder of fact to draw negative inferences
from these subordinate facts, to infer that a taking had
occurred, or that the defendant conspired with Morel
and Guillen to engage in a wrongful taking. The defen-
dant argues that his mere breach of company policies
did not foreclose lawful explanations for his conduct.
In evaluating the sufficiency of the evidence, however,
we do not examine the record to determine whether
an innocent view of the evidence may have existed.
Instead, we look to the finder of fact’s guilty verdict
and ask whether there is any rational view of the evi-
dence that supports it. See State v. Millan, supra, 290
Conn. 825.
Here, the jury reasonably could have found that the
sample bags loaded into the van on December 8, 2011,
by the defendant and his coconspirators were wrong-
fully taken from the company and that the defendant
and his coconspirators, by their coordinated activities
in terms of improperly packaging the products, moving
the products to the company van, and attempting to
conceal their activities and avoid detection, had con-
spired to commit larceny. Such an inferential leap was
possible in the present case because there was ample
circumstantial evidence of wrongdoing surrounding the
products loaded into the van. The evidence permitted
a finding that the defendant, as a longtime employee,
not only knew the company policies that would have
precluded him from handling sample products intended
for sale at the tent sale in the manner that he did, but
that, due to weaknesses in the company’s ability to
monitor sample products and the increased personnel
brought to work at the tent sale, that the tent sale
afforded him a favorable opportunity to engage in theft
and to avoid detection.
Moreover, there was ample evidence that the defen-
dant and his coconspirators knew that their conduct
was wrongful and that they took steps to discourage
their coworkers from reporting it. Specifically, we refer
to the threatening statements made by Morel to Cruz,
as well as the threatening statements made to Luna
by the defendant. It was well within the fact-finding
province of the jury to interpret these statements as
being highly incriminatory, as efforts by the defendant,
Morel, and Cruz to silence their coworkers because
they knew that they were engaged in wrongdoing and
wished to evade detection. It would not have been
unreasonable for the jury to have evaluated the evi-
dence in light of these comments, thereby rejecting
innocuous explanations of the conduct of the defendant
and his coconspirators in favor of a finding of guilt. The
defendant’s threatening statement to Officer Matson, as
well, belied an innocuous view of the defendant, but
was consistent with a finding that the defendant was
conscious of his guilt and, therefore, wished to avoid
arrest.
Additionally, there is the evidence that, when Luna
asked the defendant where the company van, in which
the products at issue were loaded, was headed, the
defendant replied that it was headed to New York City.
There was testimony from Luna that he saw the van
again forty-five minutes later. The defendant suggests
that it is reasonable to infer that Morel and Guillen
delivered the products in the van to the tent sale,
returned the van to the back of the facility, and then
drove to New York City in their own vehicle. In light of
the evidence that the defendant and his coconspirators
acted in violation of several company policies while in
the act of removing products from the manufacturing
facility, and that the defendant and his coconspirators
made threatening statements to their coworkers when
they suspected that their activities had been observed
by them, the jury reasonably could have rejected such
a benign explanation in favor of a finding that the defen-
dant’s statement was an attempt to conceal the theft
of the sample products by making it appear as though
the sample products were headed to New York City.
Moreover, the defendant’s response to Luna wholly
belies the explanation, deemed ‘‘reasonable and plausi-
ble’’ by him, that the defendant and his coconspirators
took the actions that they did simply to move product
to the tent sale. The defendant replied that the van was
headed to New York City; he did not state that it was
headed to the tent sale. Thus, his response to Luna was
contrary to the theory of the evidence he urges us to
accept. Stated otherwise, the jury reasonably could
have concluded that, having been asked by a coworker
where the van was headed, the defendant would have
simply stated that it was being loaded for a delivery to
the tent sale if, in fact, that was the van’s destination.
The defendant deems it to be ‘‘significant . . . that
the men did not attempt to conceal any of their activi-
ties.’’ Criminal liability does not require a showing of
concealment. To the contrary, this court has observed
that, in certain circumstances, a criminal may undertake
larcenous activities in plain view because he or she
believes that it may assist in avoiding detection or
because it is not feasible to conceal such activities.
See, e.g., State v. Flowers, supra, 161 Conn. App. 758.
Alternatively, the jury could have viewed the conduct
of the defendant and his coconspirators, in placing the
products into garbage bags and, later, into boxes that
were not used for sample products, as being acts of
concealment. The defendant’s statement to Luna that
the van was headed to New York City also reasonably
could have been viewed as an attempt to conceal the
true nature of his actions. Certainly, the defendant’s
attempts to conceal his conduct support an inference
that the defendant wrongfully took the property. See,
e.g., State v. Saez, 115 Conn. App. 295, 305, 972 A.2d
277 (defendant’s conduct in pushing store merchandise
in its original packaging under theft detection device
at front door of store and then exiting with it reasonably
supported inference that he intended to convert prop-
erty to his own use without paying for it), cert. denied,
293 Conn. 909, 978 A.2d 1113 (2009).
In light of all of this evidence, it was reasonable
for the jury to infer that the sample products that the
defendant and his coconspirators removed from the
facility and loaded into the company van were not deliv-
ered to the tent sale, but that they were removed from
company property altogether, thus depriving the com-
pany of ownership of them. There was ample testimony
concerning the estimated quantity and nature of the
products loaded into the van, and it does not relieve
the defendant of criminal liability that the state, due to
company inventory practices, was unable to present
documentation from the company with respect to the
specific products at issue.
The defendant argues that there was ‘‘[n]o testimony
by the sales force, or any other person that could defini-
tively say or prove that sample bags intended for the
tent sale went missing or even how many actually went
missing.’’ Consistent with the evidence that the defen-
dant and his coconspirators acted in violation of many
company policies—many of which were related to safe-
guarding products in the facility—and that they acted
in a manner that suggested that they were aware that
they were engaged in wrongdoing, attempted to conceal
their activities, and attempted to evade detection by
company superiors, the jury reasonably could have
inferred that the products loaded into the van were not
delivered to the tent sale, but that they were wrongfully
taken. Such an inferential leap was supported by the
evidence, viewed in its entirety, and it does not relieve
the defendant of criminal liability that the state was
unable to present more definite evidence with respect
to the final destination of the fruits of the defendant’s
larcenous activity. Cf. State v. Adams, 164 Conn. App.
25, 37–40, 141 A.3d 875 (2016) (ordinary innocent con-
duct of defendant and coconspirator did not support
inferential leap that they removed inventory from
store). The state may present sufficient evidence to
sustain a conviction of larceny even in cases in which
the items wrongfully taken were never recovered and
the only evidence with respect to their value consists
of the testimony of the complaining witness. See, e.g.,
State v. Baker, 182 Conn. 52, 62–63, 437 A.2d 843 (1980);
State v. Browne, 84 Conn. App. 351, 387, 854 A.2d 13,
cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). To be
sure, evidence that the defendant and his coconspira-
tors were later found to be in possession of the sample
products at issue would have been compelling evidence
of the wrongful taking and the criminal intent to con-
spire to wrongfully take the products. Even absent such
evidence, the evidence presented by the state satisfied
its burden of proof with respect to proof that a wrongful
taking by the defendant had occurred and that the
defendant had conspired with Morel and Guillen to
wrongfully take the products at issue.
II
Next, in challenging his conviction of larceny in the
first degree arising out of his conduct on October 12,
2012, the defendant claims that the court improperly
permitted the state to present uncharged misconduct
evidence. We disagree.
We already have discussed the facts related to the
incident on October 12, 2012, for which the defendant
was convicted of larceny in the first degree under count
three of the state’s information. Prior to trial, the state
filed a motion seeking the admission of uncharged mis-
conduct evidence. Relevant to this claim, the state
sought to present evidence with respect to the defen-
dant’s activities on September 27, 2012, and October
19, 2012, for the purpose of demonstrating that he had
a larcenous intent on October 12, 2012. The court held
a hearing related to the motion, during which it heard
testimony from several witnesses.
Consistent with the testimony it heard at the hearing,
the court permitted the state to present evidence at
trial that, in August, 2012, Kinsley became suspicious
of the length of time it was taking for deliveries to be
made and believed that one or more employees were
engaging in theft. Kinsley contacted William Ramos, the
vice president of loss prevention for the Zellman Group,
which provided security services for the company. In
September, 2012, Ramos installed GPS devices in the
company truck and the company van. Ramos, joined
by his associate, Stuart Levine, surveilled the defendant
while he was operating the company truck on Septem-
ber 27, 2012, and October 19, 2012.
On September 27, 2012, in violation of company pol-
icy, the defendant was observed making multiple stops
during his round trip from the manufacturing facility
to the distribution center. On this date, however, the
defendant was not transporting returned or repaired
products.
On October 19, 2012, a day on which the defendant
was transporting returned and repaired products from
the manufacturing facility to the distribution center in
the company truck, Ramos and Levine surveilled the
defendant in separate vehicles. On this occasion, the
defendant was observed exiting the highway on his way
to the distribution center, parking the company truck
in between two large trucks at a highway rest area,
opening the rear cargo door of the truck, entering the
back of the truck, lowering the cargo door so that there
was only a small gap between the door and the floor
of the truck, and moving boxes in the back of the truck.
Thereafter, the defendant parked his truck at a secluded
underpass beneath Interstate 95. GPS data introduced
into evidence reflected that this was not a random loca-
tion, but that the defendant stopped at this underpass
during his delivery from the manufacturing facility to
the distribution center on October 12, 2012, as well. A
pickup truck approached, but the driver of the pickup
truck likely observed Ramos and, thus, became aware
that he and the defendant were under surveillance. The
driver exited his truck, approached the defendant in
the company truck, and spoke with the defendant
briefly. Soon after this conversation, the defendant left
the scene and proceeded to the distribution center.
Scott Gavitt, a company employee, observed the
delivery at the distribution center after the defendant
unloaded the delivery. It was apparent to Gavitt that,
contrary to company policies and his long experience
with the company, the skid of returned and repaired
products was not shrink-wrapped as it should have been
and that two boxes on the skid had been opened. For
Gavitt, it was unprecedented that boxes had been
opened and that products apparently had been
rearranged in transit; one of the boxes on the skid
contained two items that were not listed on its packing
list and another box on the skid contained two fewer
items than were listed on its packing list.
The state also presented evidence that, after October
19, 2012, when the defendant became aware that he was
under surveillance, there was a change in his delivery
driving habits. Specifically, there was evidence that,
after the events of October 19, 2012, the defendant’s
average driving time for a round trip from the manufac-
turing facility to the distribution center decreased by
roughly 50 percent, unauthorized stops ceased, and he
acted like ‘‘a model employee.’’
The defendant objected to this evidence on the
ground that the evidence was not relevant to prove his
intent on October 12, 2012, and, even if it was relevant,
its probative value was outweighed by its likely prejudi-
cial effect upon the jury. The court stated that it had
considered the admissibility of the proffered evidence
under the appropriate balancing test. The court stated
that the evidence was ‘‘material and relevant’’ with
respect to the issue of intent. The court went on to state
that it had carefully considered whether the evidence,
though relevant, should be excluded due to a risk of
unfair prejudice, surprise, confusion of the issues, mis-
leading the jury, or undue delay. In particular, the court
observed that one of its concerns was that it did not
want the evidence to lead to an inference in the minds
of the jurors of ‘‘once a thief, always a thief.’’ The court
admitted the proffered evidence, limited its use to the
events of October 12, 2012, and determined that a lim-
iting instruction with respect to the permissible infer-
ences to be drawn from the evidence was appropriate.
After the evidence at issue was presented to the jury,
the court delivered the following limiting instruction:
‘‘[Y]ou’ve heard testimony regarding conduct that took
place on the 27th of September and October 19.
‘‘That was offered for a limited purpose in this matter.
One element of larceny is the intent. The specific intent
to deprive the owner of property on a permanent basis.
‘‘The dates in which the testimony regarding Mr.
Levine and Mr. Ramos and others who may testify
regarding the surveillance and activities on October 19
and September 27 are offered only, if you so find, on
the element of intent, nothing else.
‘‘Whether or not that element of intent can be proven,
proof beyond a reasonable doubt, the limited nature of
the evidence of the testimony, if you so find the evidence
to be that, on September 27 and October 19, only to be
used in determining whether the state has satisfied the
element of intent, based upon all of the evidence that
has been presented. And no other purpose.’’ Consistent
with this instruction, the court provided an additional
limiting instruction to the jury during its charge, limiting
the jury’s consideration of the evidence to the larceny
charge arising from the defendant’s conduct on October
12, 2012. The court stated that the evidence was not
admitted to prove the defendant’s bad character or his
tendency to commit criminal acts. Also, the court
stated: ‘‘You may not consider such evidence as estab-
lishing a predisposition on the part of the defendant to
commit any of the crimes charged or to demonstrate
a criminal propensity.’’ The court reiterated that if the
jury determined that the evidence was not persuasive
with respect to the sole issue for which it may be consid-
ered, intent, then the jury may not consider it for any
other purpose. During closing argument, the prosecutor
argued that the evidence of the defendant’s activities
on September 27, 2012, and October 19, 2012, should
be viewed as misconduct evidence that was relevant
to an understanding of his larcenous intent on October
12, 2012. The prosecutor argued that, if Ramos had
not been observed by the defendant’s accomplice on
October 19, 2012, ‘‘the returned merchandise [on the
company truck] would never have made it to the ware-
house [that day].’’
As he did at trial, the defendant challenges the court’s
ruling to admit the uncharged misconduct evidence on
the grounds that it was not relevant and that, if it was
relevant, it was unduly prejudicial. ‘‘The standard of
review regarding uncharged misconduct evidence is
well established. Evidence of a defendant’s uncharged
misconduct is inadmissible to prove that the defendant
committed the charged crime or to show the predisposi-
tion of the defendant to commit the charged crime.
. . . Exceptions to this rule have been recognized, how-
ever, to render misconduct evidence admissible if, for
example, the evidence is offered to prove intent, iden-
tity, malice, motive, a system of criminal activity or the
elements of a crime. . . . To determine whether evi-
dence of prior misconduct falls within an exception
to the general rule prohibiting its admission, we have
adopted a two-pronged analysis. . . . First, the evi-
dence must be relevant and material to at least one
of the circumstances encompassed by the exceptions.
Second, the probative value of such evidence must out-
weigh the prejudicial effect of the other crime evidence.
. . . Since the admission of uncharged misconduct evi-
dence is a decision within the discretion of the trial
court, we will draw every reasonable presumption in
favor of the trial court’s ruling. . . . We will reverse a
trial court’s decision only when it has abused its discre-
tion or an injustice has occurred.’’ (Internal quotation
marks omitted.) State v. Franklin, 162 Conn. App. 78,
96, 129 A.3d 770 (2015), cert. denied, 321 Conn. 905,
138 A.3d 281 (2016); see also Conn. Code Evid. § 4-5.4
Our Supreme Court ‘‘has previously enumerated situa-
tions in which the potential prejudicial effect of relevant
evidence would counsel its exclusion. Evidence should
be excluded as unduly prejudicial: (1) where it may
unnecessarily arouse the jury’s emotions, hostility or
sympathy; (2) where it may create distracting side
issues; (3) where the evidence and counterproof will
consume an inordinate amount of time; and (4) where
one party is unfairly surprised and unprepared to meet
it.’’ (Internal quotation marks omitted.) State v. Rinaldi,
220 Conn. 345, 356, 599 A.2d 1 (1991).
Here, the court found that the evidence at issue was
probative with respect to the defendant’s intent on
October 12, 2012. One of the essential elements of lar-
ceny is ‘‘the existence of a felonious intent in the taker
to deprive the owner of [the property] permanently
. . . .’’ (Internal quotation marks omitted.) State v.
Flowers, supra, 161 Conn. App. 752. The defendant
argues that the relevance of this conduct was insignifi-
cant and that it did not shed light on his intent on
October 12, 2012. The defendant acknowledges that the
evidence supported findings that the defendant violated
the company’s unwritten policies by (1) making unnec-
essary stops on both September 27, 2012, and October
19, 2012; (2) entering the back of the truck and opening
boxes on October 19, 2012; and (3) meeting and speak-
ing with someone in a pickup truck at the underpass
on October 19, 2012. The defendant argues that none
of these acts was criminal in nature. The defendant
urges us to reject the state’s theory that these events
should be viewed as a failed attempt to steal com-
pany products.
We reject the defendant’s arguments because they
are the product of his drawing only those inferences that
are favorable to him from the uncharged misconduct
evidence. The jury reasonably could have inferred from
the uncharged misconduct evidence, viewed in the light
of other evidence presented at trial, that it demon-
strated a failed attempt by the defendant to steal com-
pany products on October 19, 2012, an attempt that was
thwarted when the defendant became aware that he
was under surveillance. Such an inference was made
more reasonable by the evidence that, after October 19,
2012, the defendant’s habits during deliveries changed
such that he became much more efficient in terms of
making his deliveries to the distribution center. The
conduct of September 27, 2012, in violation of company
policy, was relevant to distinguish between the defen-
dant’s conduct when he was transporting returned and
repaired products, and when he was transporting new
product that the company was able to closely monitor.
The conduct on September 27, 2012, reflected that,
when the defendant was merely transporting new prod-
uct, he merely made unauthorized stops. In contrast,
his conduct on October 19, 2012, reflected that the
defendant opened boxes when he was transporting
returned and repaired products. It was relevant to dem-
onstrating that the defendant likely behaved in a similar
manner when he was transporting returned and
repaired products on October 12, 2012.
Moreover, the evidence at issue tended to demon-
strate that he had a larcenous intent on October 12,
2012, when he was transporting returned and repaired
product. ‘‘It is well established that the question of
intent is purely a question of fact. Intent is generally
proven by circumstantial evidence because direct evi-
dence of the accused’s state of mind is rarely available.
. . . Therefore, intent is often inferred from conduct
. . . and from the cumulative effect of the circumstan-
tial evidence and the rational inferences drawn there-
from. . . . Intent is a question of fact, the
determination of which should stand unless the conclu-
sion drawn by the trier is an unreasonable one.’’ (Inter-
nal quotation marks omitted.) State v. Silva, 285 Conn.
447, 460, 939 A.2d 581 (2008). Not only were the events
portrayed in the uncharged misconduct evidence of
October 19, 2012, remarkably similar to the evidence
of the defendant’s conduct on October 12, 2012, but
they occurred close in time to the charged misconduct.
Stated otherwise, the uncharged misconduct evidence
did not relate to bad acts that were unrelated to the
charged misconduct, or to general criminal tendencies,
but to misconduct that involved the defendant’s theft
of similar returned and repaired products, from the
company, during the course of his delivery work, and
at the same underpass. Thus, the evidence did not give
rise to an ambiguous inference that the defendant
intended to steal, but it was inherently suggestive of
his larcenous intent on October 12, 2012.
The defendant proceeds to argue that, if relevant, the
evidence nonetheless was unduly prejudicial because it
created a complicated and distractive side issue; ‘‘[t]he
evidence was complex in that there were multiple dates
for both the misconduct as well as the crimes charged’’;
and, given the nature of the evidence, it would have
been very difficult for the jury not to engage in the type
of ‘‘once a thief, always a thief’’ reasoning that the
law forbids.
The law does not furnish an easy to apply formula
for determining whether the introduction of uncharged
misconduct evidence is complicated or whether it cre-
ates a side issue that is likely to distract the jury. Such
issues are best entrusted to the sound discretion of the
trial court. Here, having carefully reviewed the record,
we are not persuaded that the evidence at issue was
either so complex as to confuse or distract the jury or
that its introduction took up such a significant amount
of time that it was likely to confuse or distract the jury.
The evidence had significant probative value, and its
introduction did not create a side issue, but was relevant
to an essential element of a crime, specifically, whether
the defendant had a larcenous intent. The evidence,
concerning the company’s policies, GPS information,
testimony from witnesses, including Ramos, Levine,
and Gavitt, was not inherently difficult to understand
or so foreign to the other evidence presented at trial
such that we are persuaded that its introduction would
have caused prejudice to the defense.
Finally, to the extent that the defendant urges us
to conclude that the introduction of the evidence was
unduly prejudicial because the jury would have consid-
ered it for an improper purpose, we are mindful that
such a danger exits whenever uncharged misconduct
is admitted. In light of the high probative value of the
evidence, the probative value of the evidence would be
outweighed only upon a showing of a high degree of
prejudice. See, e.g., State v. Rizzo, 266 Conn. 171, 290,
833 A.2d 363 (2003) (evidence with ‘‘high probative
value’’ improperly excluded by trial court on ground
that it was unduly prejudicial); State v. Tocco, 120 Conn.
App. 768, 794, 993 A.2d 989 (trial court properly admit-
ted evidence that had tendency to arouse emotions of
jury because evidence had ‘‘high probative value’’), cert.
denied, 297 Conn. 917, 996 A.2d 279 (2010). Such has
not been shown in the present case. Here, the court
took several steps to decrease the likelihood that the
jury would have viewed the evidence as propensity
evidence. The court delivered a limiting instruction
immediately after the evidence was presented. The
court delivered additional, more detailed instructions
during its final charge. In addition to constraining the
jury to view the evidence for its admitted use, the court
limited the jury’s consideration of the evidence solely
as to the charge of larceny in the first degree that related
to the defendant’s conduct on October 12, 2012; the
court did not permit the jury to consider the evidence
in connection with the offenses that arose from the
defendant’s conduct on December 8, 2011. Nothing in
the record suggests that the jury did not follow these
instructions. Furthermore, there is no suggestion that
the prosecutor, in argument to the jury or otherwise,
suggested to the jury that it should consider the evi-
dence for an improper purpose. In light of the foregoing
analysis, we conclude that the admission of the evi-
dence did not reflect an abuse of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
With respect to each of the three offenses of which the defendant was
found guilty, the court imposed a sentence of ten years of incarceration,
suspended after four years, followed by five years of probation. The senten-
ces were concurrent in nature. Thus, the court imposed a total effective
sentence of ten years of incarceration, suspended after four years, followed
by five years of probation.
2
There was evidence that Luna did not immediately report what he had
observed because he feared that the coworkers involved would retaliate
against him.
3
There was evidence that, if the stolen products consisted of the com-
pany’s lowest priced handbags and small leather goods, its value would
be $26,977.
4
Section 4-5 of the Connecticut Code of Evidence, titled ‘‘Evidence of
Other Crimes, Wrongs or Acts Generally Inadmissible,’’ provides in relevant
part: ‘‘(a) . . . Evidence of other crimes, wrongs or acts of a person is
inadmissible to prove the bad character, propensity, or criminal tendencies
of that person except as provided in subsection (b).
‘‘(b) . . . Evidence of other sexual misconduct is admissible in a criminal
case to establish that the defendant had a tendency or a propensity to engage
in aberrant and compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the trial court finds that
the evidence is relevant to a charged offense in that the other sexual miscon-
duct is not too remote in time, was allegedly committed upon a person
similar to the alleged victim, and was otherwise similar in nature and circum-
stances to the aberrant and compulsive sexual misconduct at issue in the
case; and (3) the trial court finds that the probative value of the evidence
outweighs its prejudicial effect.
‘‘(c) . . . Evidence of other crimes, wrongs or acts of a person is admissi-
ble for purposes other than those specified in subsection (a), such as to
prove intent, identity, malice, motive, common plan or scheme, absence of
mistake or accident, knowledge, a system of criminal activity, or an element
of the crime, or to corroborate crucial prosecution testimony.
‘‘(d) . . . In cases in which character or a trait of character of a person
in relation to a charge, claim or defense is in issue, proof shall be made by
evidence of specific instances of the person’s conduct.’’
We note that although § 4-5 was amended, effective January 1, 2012, that
amendment is not relevant to this appeal. For convenience, we refer to the
current revision of § 4-5.