State v. Flowers

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. TINA FLOWERS
(AC 37235)
Gruendel, Lavine and Keller, Js.*
Submitted on briefs October 9—officially released December 15, 2015
(Appeal from Superior Court, judicial district of
Fairfield, geographical area number two, Blawie, J.)
Cameron R. Dorman, assigned counsel, filed a brief
for the appellant (defendant).
John C. Smriga, state’s attorney, Matthew R. Kal-
thoff, special deputy assistant state’s attorney, and
Nicholas J. Bove, Jr., senior assistant state’s attorney,
filed a brief for the appellee (state).
Opinion
KELLER, J. The defendant, Tina Flowers, appeals
from the judgment of conviction, rendered following a
jury trial, of larceny in the fifth degree in violation of
General Statutes §§ 53a-119 and 53a-125a (a). Also, the
jury found the defendant to be a persistent larceny
offender under General Statutes § 53a-40 (e).1 The
defendant claims that (1) the evidence did not support
the jury’s verdict and (2) prosecutorial impropriety dur-
ing closing argument deprived her of a fair trial. 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.
Shortly before 5 p.m., on January 3, 2013, the defendant,
while in a Walmart store on Barnum Avenue in Strat-
ford, placed a fifty inch television into a shopping cart.
Thereafter, the defendant placed a computer into a sec-
ond shopping cart. These items, valued together at $946,
were contained within large boxes to which security
devices were attached. While pushing one shopping
cart and pulling the other shopping cart, the defendant
began to make her way from the electronics department
to the front of the store.
Nicholas Vargas, an undercover asset protection
associate employed by Walmart, was monitoring activi-
ties in the electronics department, an area of the store
known to him to be frequented by shoplifters, when he
observed the defendant place the items in the shopping
carts. After he had observed the defendant look up at
the store’s security cameras, Vargas suspected that she
potentially was a shoplifter. At this juncture, he
requested that one or more other asset protection asso-
ciates of the store monitor the defendant by means of
the store’s security cameras.
The defendant, who periodically looked from side to
side as she walked within the store with the items in
the shopping carts, bypassed the cashiers at the front
of the store, and did not attempt to pay for the items.
The defendant stopped for a short time in the vicinity
of a customer service counter near the store’s exit, at
which time she appeared to look at her cell phone
and to check her surroundings. Then, the defendant,
pushing the shopping cart with the computer in it ahead
of her, walked through the sliding exit doors and into
the enclosed vestibule that led to the parking lot. She
continued to pull the shopping cart with the television
in it behind her while exiting the store via the vestibule.
At this point, Vargas approached the defendant, iden-
tified himself as an asset protection associate, and
asked the defendant if she had paid for the items in
the carts. The defendant replied that she had not. The
defendant stated ‘‘that she was just going to bring the
merchandise outside to someone waiting in the car to
see if . . . these were the items that they wanted.’’
Vargas informed the defendant that her conduct consti-
tuted theft, stated that she was not free to leave the
store, and asked her to accompany him to the store’s
asset protection office, which was nearby. At this point,
the defendant became upset and began to engage in
‘‘[a] lot of screaming and yelling’’ to convey her displea-
sure at having been stopped by Vargas.
In response to the defendant’s disruptive conduct in
the presence of other customers, Vargas called the
police to report the incident. Soon thereafter, police
officers arrived on the scene. Officer Todd Moore of
the Stratford Police Department found the defendant
engaged in a loud argument with Vargas when he
arrived. Moore led Vargas and the defendant into the
store’s asset protection office. Vargas provided Moore
with a written statement. The defendant explained to
Moore that ‘‘she was trying to return some items, and
she was waiting for a friend or a cousin that was outside
and they were going to return the items.’’ No third party
claiming to be associated with, let alone waiting for,
the defendant presented himself or herself to the police
or to Vargas. Moore remained in the store for fifteen
to twenty minutes, and ultimately placed the defendant
under arrest. At Moore’s request, other officers removed
the defendant from the store because her belligerent
and uncooperative conduct was disruptive to his inves-
tigation.
Following a jury trial, the defendant was convicted
of larceny in the fifth degree and of being a persistent
larceny offender. This appeal followed. Additional facts
will be set forth as necessary.
I
First, the defendant claims that the evidence did not
support the jury’s verdict.2 We disagree.
Section 53a-125a (a) provides: ‘‘A person is guilty of
larceny in the fifth degree when he commits larceny as
defined in section 53a-119 and the value of the property
or service exceeds five hundred dollars.’’ Section 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 interpreted the essential
elements of larceny as (1) the wrongful taking or car-
rying away of the personal property of another; (2) the
existence of a felonious intent in the taker to deprive
the owner of [the property] permanently; and (3) the
lack of consent of the owner. . . . Because larceny is
a specific intent crime, the state must show that the
defendant acted with the subjective desire or knowl-
edge that his actions constituted stealing. . . . 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 con-
sent of the owner. . . . The requisite intent for reten-
tion is permanency.’’ (Citation omitted; internal
quotation marks omitted.) State v. Torres, 111 Conn.
App. 575, 584–85, 960 A.2d 573 (2008), cert. denied, 290
Conn. 907, 964 A.2d 543 (2009). ‘‘Because taking is not
defined in the Penal Code, we consider the ordinary
usage of that term. . . . A criminal taking is [t]he act
of seizing an article, with or without removing it, but
with an implicit transfer of possession or control.
Black’s Law Dictionary (7th Ed. 1999). . . . Further
defining a taking . . . Webster’s Third New Interna-
tional Dictionary . . . defines take as 1: to get into
one’s hands or into one’s possession, power, or control
by force . . . as . . . to seize or capture physically
. . . 6: to transfer into one’s own keeping . . . enter
into . . . use of . . . .’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Henry, 90 Conn. App.
714, 726, 881 A.2d 442, cert. denied, 276 Conn. 914, 888
A.2d 86 (2005).
Having set forth the essential elements of the crime,
we now set forth our well settled standard of review.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we 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 con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] 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 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. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
A
First, the defendant argues that the state failed to
present sufficient evidence that she possessed the requi-
site intent for the commission of the crime. The defen-
dant argues that ‘‘intent to commit larceny could not
be reasonably inferred from [her] conduct. [She] did
not engage in any kind of furtive actions in an attempt
to conceal the goods or disable the security devices on
the goods. Neither did she act in a suspicious or nervous
manner.’’ She argues that the surveillance video from
the store that was presented in evidence belies Vargas’
testimony that she had acted in a suspicious manner,
but that it depicted ‘‘the actions of a typical customer
under the same circumstances.’’ Additionally, she
argues that it was unreasonable to infer that her conduct
in entering the vestibule demonstrated a larcenous
intent because such area is ‘‘not outside of the store
building,’’ the store did not post a policy that the area
was considered outside of the store, and no security
alarms were triggered by her conduct. Further, she
argues that the fact that she ‘‘willingly’’ reentered the
store and provided a benign explanation for her conduct
demonstrated that she lacked such a criminal intent.
Additionally, the defendant challenges Vargas’ credibil-
ity, suggesting that he ignored aspects of her explana-
tion. Finally, she also challenges the adequacy of
Moore’s investigation into her version of the relevant
events.
‘‘It is axiomatic that a jury may infer intent from
behavior. As our Supreme Court has stated, 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.’’ (Internal quotation marks omitted.) State v.
Raynor, 84 Conn. App. 749, 760, 854 A.2d 1133, cert.
denied, 271 Conn. 935, 861 A.2d 511 (2004).
In the present case, Vargas unambiguously testified
that, in an area of the store in which ‘‘high ticket items
. . . are constantly being stolen,’’ he observed the
defendant engage in behavior that led him to suspect
that she might be a shoplifter. He elaborated that, after
the defendant placed the television and the computer
into carts, ‘‘she began to look around at cameras in the
ceiling, which is an indicator that someone’s going to
walk out.’’ The surveillance video presented in evidence
depicted the defendant’s conduct in the electronics
department of the store, while she walked throughout
the store, and at the exit of the store. This evidence
demonstrated that she placed expensive items in her
shopping carts, walked with the carts to the front of
the store while looking from side to side, bypassed the
cashiers, stopped briefly near the exit where she looked
at her cell phone and checked her surroundings, and
pushed the cart carrying the computer through the
doors and into the vestibule while pulling the cart car-
rying the television behind her. On the basis of this
evidence of the defendant’s conduct during the crimi-
nal act and the rational inferences to be drawn there-
from, a jury reasonably could infer that the defendant
possessed larcenous intent in that she intended to
deprive Walmart of the items in her carts permanently.
The evidence of the defendant’s conduct after her
criminal actions provided further support for a finding
that she acted with a larcenous intent. Even if the defen-
dant had willingly accompanied Vargas after she had
been stopped, such conduct would not preclude a find-
ing of guilt. Moreover, ample evidence demonstrated
that the defendant did not willingly accompany Vargas.
Vargas testified that, when he stopped and detained the
defendant, she became disruptive, which led him to call
the police. Moore testified that the defendant was so
disruptive during his investigation that he had to enlist
the assistance of one or more other police officers to
remove her from the store. It would not be unreasonable
for the jury to infer that the defendant’s disruptive and
uncooperative conduct reflected her consciousness of
guilt and, by its nature, belied her benign explanations
for the events at issue. Furthermore, the fact that the
explanations that the defendant provided to Vargas and
Moore were contradictory is significant in an analysis
of her intent. Because it is reasonable to infer that
contradictory explanations suggest evasiveness or
untruthfulness, this was evidence from which the jury
could infer that the defendant’s explanations were an
attempt to conceal the criminal nature of her actions.
A brief examination of the substance of these expla-
nations provides yet additional support for a finding of
larcenous intent. The evidence demonstrated that the
defendant stated to Vargas ‘‘that she was going to just
bring the merchandise outside to someone waiting in
the car to see if . . . these were the items that they
wanted.’’ The evidence demonstrated that, in contrast
with the statement she made to Vargas, the defendant
stated to Moore that ‘‘she was trying to return some
items, and she was waiting for a friend or a cousin that
was outside and they were going to return the items.’’
‘‘The jury is entitled to draw reasonable inferences from
the evidence before it and, in performing its function,
the jury brings to bear its common sense and experience
of the affairs of life.’’ (Internal quotation marks omit-
ted.) State v. Ramirez, 94 Conn. App. 812, 822, 894 A.2d
1032, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006).
‘‘It is often said that common sense is not left at the
courthouse door.’’ (Internal quotation marks omitted.)
Lederle v. Spivey, 113 Conn. App. 177, 194, 965 A.2d
621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009).
Setting aside the testimony from Moore that no third
party associated with the defendant had approached
the police during the course of his immediately ensuing
investigation at the store, which undermined the credi-
bility of the defendant’s explanations, it would have
been entirely reasonable for the jury to find that neither
of these explanations was credible because people typi-
cally do not bring unpaid for, expensive electronics
items outside the store in which they are offered for
sale so that such persons can determine whether to
purchase them or because they are waiting for third
parties. The jury reasonably rejected the defendant’s
arguments that she behaved like a typical customer.
To the extent that the defendant suggests that the
surveillance video conflicted with Vargas’ testimony
that she was acting suspiciously by looking for surveil-
lance cameras in the store, we observe that the surveil-
lance video, which was not of such a resolution that it
clearly depicted the movement of the victim’s eyes, did
not plainly contradict Vargas’ testimony. Under these
circumstances, the jury was free to resolve this factual
issue in favor of Vargas’ testimony, which indicated that
she had glanced at security cameras and had behaved
in a suspicious or nervous manner. ‘‘It is the exclusive
province of the trier of fact to weigh conflicting testi-
mony and make determinations of credibility, crediting
some, all or none of any given witness’ testimony.’’
(Internal quotation marks omitted.) State v. DeMarco,
311 Conn. 510, 519–20, 88 A.3d 491 (2014). Moreover,
it is of no consequence to our analysis that the defen-
dant did not attempt to conceal the items in the carts
or disable the security devices attached to them. The
jury reasonably could have inferred that the defendant
did not attempt to conceal a fifty inch television and a
computer because it would have been difficult, if not
impossible, to do so. The jury reasonably could have
believed that the defendant did not disable the security
devices because doing so would have drawn the atten-
tion of store employees. And, in light of the defendant’s
other conduct, the jury reasonably could have inferred
that the defendant’s plan was to act in a manner that
did not draw attention to herself, such as by running
through the store or by creating any type of a distrac-
tion. The jury could have inferred that the defendant
believed that she would be successful by leaving the
store with the items by keeping them in the carts, in
plain sight, and simply walking out of the store. Addi-
tionally, in light of all of the evidence presented, the
fact that the defendant did not appear to remove or
disable the security devices on the items did not pre-
clude the jury’s finding of guilt. The jury reasonably
could have inferred that the defendant was unaware of
either the presence or purpose of the devices, or that the
defendant believed she could accomplish her larceny
despite them.
The defendant suggests that her entering the vesti-
bule was not tantamount to her exiting the store, and
that there was no evidence that she had been made
aware of a store policy that considered this area to be
outside of the store. Yet, to resolve the factual issues
before it, the jury need not have determined with preci-
sion where the inside of the store ended and where the
outside of the store began. Nor was the jury invited to
determine any of the issues before it consistent with
store policies. The state did not bear the burden of
demonstrating that the defendant successfully had
taken the items in her possession and control outside
of the store, that alarms had been sounded, or that
the defendant had been alerted to store policies. To
demonstrate that larceny has occurred, ‘‘[n]either the
statutes nor the case law requires that the property [at
issue] actually be removed from the owner’s premises
. . . .’’ State v. Jennings, 125 Conn. App. 801, 811–12,
9 A.3d 446 (2011). Vargas testified that the store’s policy
was not to stop suspected shoplifters ‘‘until they pass
all points of sale,’’ and that the vestibule was considered
to be such an area. The jury heard testimony about
where the defendant was stopped and observed a sur-
veillance video that depicted the defendant’s conduct
in the store. This evidence was consistent with Vargas’
testimony. On the basis of this evidence, perhaps
informed by evidence of store policy, the jury reason-
ably could find that the area in which the defendant
was stopped supported a finding that she had acted
with a larcenous intent.
To the extent that the defendant attempts to cast
doubt on Vargas’ credibility generally, by suggesting
that there were inaccuracies or inconsistencies in his
testimony or that the evidence suggested that he was
inattentive to her explanation of what had occurred,
we reiterate that it was the province of the jury, and
not this court, to evaluate Vargas’ testimony.
Finally, the defendant argues that, with a more com-
plete investigation, Moore would have been able to sub-
stantiate her version of events by learning that third
parties, including her cousin, Peter Taylor, and her
cousin’s fiance´e, Starr White, were waiting for the
defendant outside of the store, as the defendant had
indicated to Moore. We observe that the defendant,
during her case-in-chief, presented the testimony of
Taylor and White.3 The jury was free to accept or reject
their testimony, in whole or in part, in considering the
issues before it. On the basis of the jury’s finding of
guilt, we must presume that the jury did not find that
the testimony of these defense witnesses justified a
verdict of not guilty. Any claim that Moore’s investiga-
tion was deficient does not undermine the sufficient
evidence of the defendant’s guilt.
B
Second, the defendant argues that the state failed to
present sufficient evidence to support a finding that a
wrongful taking had occurred. She argues in relevant
part: ‘‘The evidence shows that the defendant selected
two items, put them in two shopping carts, and walked
through the store to the customer service area. While
this evidence shows the goods were in the defendant’s
possession, it is a permissible possession granted to all
shoppers in the store and does not reflect an implicit
transfer of power and control [of the goods] to the
defendant.’’ She argues that ‘‘there was no evidence of
any forceful actions to take control of the goods.’’ Also,
she argues that ‘‘no evidence was presented that
reflected some scheme or strategy to seize control of
the goods.’’
Considering the evidence in light of the prior judicial
interpretation of ‘‘taking’’ set forth previously in our
discussion of this claim, we readily conclude that the
evidence and reasonable inferences to be drawn from
the evidence permitted the jury to find that the defen-
dant had engaged in a wrongful taking of the items in
the shopping carts. The defendant, in her arguments
on appeal, implicitly acknowledged that she possessed
and controlled the items in the carts after she had put
them in the carts. Viewed in the light most favorable
to sustaining the jury’s finding of guilt, the evidence
did not demonstrate that the defendant merely had exer-
cised the type of noncriminal possession and control
of unpaid for merchandise that typically is exercised by
shoppers who carry items in their hands or in shopping
carts before the point of sale. Here, the defendant—not
a third party—continued to exercise exclusive posses-
sion and control of the unpaid for merchandise past
the point of sale when she pushed the carts into the
vestibule at the exit. Such conduct occurring past the
point of sale, in light of all of the other evidence and
inferences logically drawn therefrom, amply demon-
strated the requisite level of possession and control to
support a finding that a taking had occurred. In light
of all of the evidence of the defendant’s conduct in the
store, the jury reasonably could have found that the
defendant’s conduct past the point of sale transformed
conduct that was noncriminal in other areas of the store
into a wrongful taking.
The defendant argues that the evidence was insuffi-
cient because ‘‘there was no evidence of any forceful
actions to take control of the goods.’’ It does not appear
from our review of relevant legal authority that the
degree of force required for the commission of the crime
is anything more than that degree of force necessary
to transfer possession and control of the property at
issue. See State v. Henry, supra, 90 Conn. App. 726.
The defendant does not argue that the law is otherwise.
Here, the evidence readily supports a finding that she
lifted a television and a computer, both of which were
of a substantial size, and placed them into shopping
carts. She pushed and pulled these carts throughout
the store, ultimately pushing and pulling them into the
vestibule. The defendant has not demonstrated to this
court that the degree of force exercised by her was
inconsistent with a finding of guilt; the evidence demon-
strated that she acted with sufficient force to control,
possess and retain the items at issue.
To the extent that the defendant suggests that the
evidence did not reflect a scheme or strategy to seize
control of the items in the carts, we disagree. The defen-
dant’s lengthy pattern of loading expensive electronics
items in two carts, checking for the presence of security
cameras, walking to the front of the store while check-
ing her surroundings, stopping near the customer ser-
vice desk, looking at her cell phone and her
surroundings near the customer service desk, and then
pushing and pulling the carts into the vestibule undoubt-
edly suggested a scheme or strategy to take the items
wrongfully. As we discussed in part I A of this opinion,
the jury reasonably could have found that the defen-
dant’s scheme, though unsuccessful, was to act in a
manner that did not draw attention to her.
In light of the foregoing, we conclude that the evi-
dence demonstrated beyond a reasonable doubt that
the defendant committed larceny in the fifth degree.
II
Next, the defendant claims that prosecutorial impro-
priety during closing argument deprived her of a fair
trial. We disagree.
The facts on which the defendant bases her claim may
be summarized as follows. On five occasions during the
prosecutor’s argument, the prosecutor suggested that
there was evidence that the defendant had stated to
Moore that she was taking the items in the carts outside
of the store. Three of these instances occurred during
the state’s initial argument,4 and two of these instances
occurred during the state’s rebuttal argument.5 These
five statements underlie the first part of the defendant’s
claim of prosecutorial impropriety. Additionally, on one
occasion during the state’s rebuttal argument,6 the pros-
ecutor stated that, in speaking with Vargas or Moore,
the defendant had not referred to White, the fiance´e of
her cousin, Taylor.7 This statement underlies the second
part of the defendant’s claim of prosecutorial impropri-
ety. At trial, the defendant did not object to any of the
alleged instances of impropriety. The defendant argues
that these comments were improper in that they mis-
characterized the evidence and deprived her of a fair
trial.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . . An
appellate court’s determination of whether any
improper conduct by the prosecutor violated the defen-
dant’s right to a fair trial is predicated on the factors
established in State v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987). Those factors include the extent
to which the [impropriety] was invited by defense con-
duct or argument . . . the severity of the [impropriety]
. . . the frequency of the [impropriety] . . . the cen-
trality of the [impropriety] to the critical issues in the
case . . . the strength of the curative measures
adopted . . . and the strength of the state’s case. . . .
[If] a defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is
on the defendant to show . . . that the remarks were
improper . . . .
‘‘As [our Supreme Court] previously [has] recognized,
prosecutorial [impropriety] of a constitutional magni-
tude can occur in the course of closing arguments. . . .
When making closing arguments to the jury, [however]
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument. . . . Thus, as the state’s advo-
cate, a prosecutor may argue the state’s case forcefully,
[provided the argument is] fair and based upon the facts
in evidence and the reasonable inferences to be drawn
therefrom. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence upon jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks no
conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. While the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment upon, or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider. . . .
‘‘Claims involving prosecutorial impropriety during
the course of closing argument require a court to evalu-
ate a prosecutor’s statements not for their possible
meaning, but for the manner in which the jury reason-
ably and likely would have understood them. Because
the meaning of words and statements typically is depen-
dent on the context in which they are used, a court must
carefully consider a prosecutor’s challenged statements
by carefully considering their context in the entire trial,
including the remainder of the state’s closing argu-
ment.’’ (Internal quotation marks omitted.) State v.
LaVoie, 158 Conn. App. 256, 274–76, 118 A.3d 708, cert.
denied, 319 Conn. 929, A.3d (2015).
With regard to the first part of the defendant’s claim
of prosecutorial impropriety, our review of the record
reflects that there was no evidence that the defendant
had stated or suggested to Moore that she was taking
the items in the carts outside of the store to show them
to a third party in the parking lot, or that she had made
comments of a substantially similar nature to Moore.
Previously in this opinion, we discussed the two con-
flicting explanations that the defendant provided after
she had been detained by Vargas. The evidence demon-
strated that the defendant stated to Vargas ‘‘that she
was going to just bring the merchandise outside to
someone waiting in the car to see if . . . these were
the items that they wanted.’’ The evidence demon-
strated that the defendant stated to Moore that ‘‘she
was trying to return some items, and she was waiting
for a friend or a cousin that was outside and they were
going to return the items.’’ Thus, the record reflects,
and the state acknowledges before this court, that the
prosecutor mischaracterized the evidence in this
regard.
With regard to the second part of the defendant’s
claim of prosecutorial impropriety, the defendant
argues that the prosecutor mischaracterized the evi-
dence when he stated that, in explaining her conduct
to Vargas and to Moore, the defendant had failed to
refer to White. The defendant argues that the evidence
demonstrated that she told Moore that she was waiting
for her cousin, and that the surveillance video demon-
strates that she was looking for someone while inside
of the store. Our review of the evidence reflects that
the prosecutor’s characterization of the evidence in this
manner was reasonable and, thus, fair argument. The
evidence reflects that Taylor is the defendant’s cousin
and that, at times relevant, White was his fiance´e. More-
over, the evidence reflects that in explaining her actions
to Vargas, the defendant referred to ‘‘someone waiting
in the car,’’ and that in explaining her actions to Moore,
the defendant referred to ‘‘a friend or a cousin . . . .’’
There was no evidence that the defendant had referred
to any third party, including White, by name. Although
the evidence demonstrated that the defendant had
referred to one or more third parties who were waiting
for her outside of the store, it was fair comment on the
evidence to state that she had not referred specifically
to White.
Having determined that a mischaracterization of the
evidence occurred with regard to the defendant’s first
claim of impropriety, we now turn to an evaluation of
whether, under the Williams factors, this event rose to
the level of an impropriety that deprived the defendant
of a fair trial. With regard to the frequency of the con-
duct, the prosecutor made the statement a total of five
times. Yet, although numerous during a closing argu-
ment that was not lengthy, all of these instances
occurred during closing argument and, thus, any impro-
priety was not a pervasive characteristic of the entire
trial. As the state acknowledged before this court, the
record does not reflect that the prosecutor’s statements
were invited by defense conduct or argument. Addition-
ally, as the defense did not object to the arguments,
the court did not take any curative measures.
Turning to the centrality of the conduct at issue to
the critical issues in the case, we readily conclude that
any impropriety did not relate to a central issue before
the jury. The central issues before the jury concerned
the defendant’s conduct prior to any statements that
she made to Vargas or to Moore, and whether she had
acted with a larcenous intent. Although the defendant’s
statements to Vargas and Moore amounted to strong
circumstantial evidence related to the issue of her
intent, it was not significant to any critical issue during
the trial as to whether she had directed the comment
at issue to Vargas or to Moore.
For similar reasons, we likewise conclude that any
impropriety was not severe. It is undisputed that the
substance of the prosecutor’s comments finds complete
support in the evidence,8 and the record strongly sug-
gests that the prosecutor merely misattributed to Moore
what the defendant had said to Vargas. In situations
involving a single impropriety of this nature, courts have
not been inclined even to view the matter as involving
prosecutorial impropriety. See, e.g., State v. Roberts,
158 Conn. App. 144, 152, 118 A.3d 631 (2015) (‘‘[n]ot
every mistake by a prosecutor in closing argument, not
every misstep, amounts to an impropriety’’); see also
State v. O’Brien-Veader, 318 Conn. 514, 534, 122 A.3d
555 (2015) (‘‘[n]ot every misstep by a prosecutor that
exceeds the bounds of a trial court order rises to the
level of prosecutorial impropriety that implicates a
defendant’s due process rights, thus requiring resort to
the second step in the prosecutorial impropriety
analysis’’).
Although the defendant argues that the five misstate-
ments at issue in the present case were evidence of an
intentional ploy by the prosecutor to bolster Vargas’
credibility, such an argument lacks any support in the
record. The statements at issue were made in the con-
text of arguments related to an assessment of the defen-
dant’s conduct and the manner in which she had
attempted to explain that conduct. The statements were
not made in the context of arguments related to Vargas’
credibility which, in light of the video surveillance evi-
dence of the conduct underlying the conviction, was
not a central issue in the trial. Moreover, it is difficult
to see what difference it would have made in the eyes
of the jury for the state to have emphasized that the
defendant had made the statement at issue to Moore
instead of to Vargas. The critical evidence, damaging
to the defense, remained that there was unambiguous
testimony that, after the defendant was detained, she
stated that she was attempting to take the items in her
cart outside of the store. And, as we have discussed
previously in this opinion, the fact that the defendant
provided contradictory explanations for her conduct
was circumstantial evidence that she was being
untruthful to Vargas and to Moore.
Finally, we observe that the state’s case was strong.
The state presented persuasive testimonial and video
surveillance evidence concerning the defendant’s con-
duct. Although, as is customary, the issue of the defen-
dant’s intent rested on an evaluation of circumstantial
evidence, the evidence in the present case strongly dem-
onstrated that the defendant did not behave like a rea-
sonable shopper, but like a person engaged in criminal
conduct. In light of the foregoing, we conclude that any
impropriety did not implicate the fairness of the trial.
The judgment is affirmed.
In this opinion the other judges concurred.
* Judge Lavine has replaced Justice Borden in this case. Judge Lavine
has reviewed the record and briefs prior to participating in the resolution
of this appeal.
1
The defendant, assisted by standby counsel, exercised her right to self-
representation during the proceedings at trial. The defendant was repre-
sented by counsel in the present appeal. The trial court sentenced the
defendant to three years of incarceration, followed by two years of special
parole. At the close of the state’s case-in-chief, the court granted the defen-
dant’s motion for a judgment of acquittal with regard to one count of breach
of the peace in the second degree in violation of General Statutes § 53a-181
(a) (1).
2
At the close of the state’s case-in-chief, the defendant’s standby counsel
raised a motion for a judgment of acquittal. The trial court denied the motion
with regard to the charge of larceny in the fifth degree. Thereafter, the
defendant presented evidence in her defense. ‘‘[W]hen a motion for [a judg-
ment of] acquittal at the close of the state’s case is denied, a defendant may
not secure appellate review of the trial court’s ruling without [forgoing] the
right to put on evidence in his or her own behalf. The defendant’s sole
remedy is to remain silent and, if convicted, to seek reversal of the conviction
because of insufficiency of the state’s evidence. If the defendant elects to
introduce evidence, the appellate review encompasses the evidence in toto.’’
State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984).
3
See footnote 7 of this opinion.
4
The relevant portions of the prosecutor’s argument are as follows. First,
the prosecutor stated: ‘‘And you heard the police officer testify that she
offered an explanation that she was taking the items outside the store to
show somebody the items in the parking lot.’’ Second, the prosecutor stated:
‘‘It doesn’t make sense, the explanation she gave to the police officer, that
she had a friend outside who wanted to inspect the merchandise to see if
she wanted it.’’ Third, the prosecutor stated: ‘‘And the only analysis, the
only thing we’ve heard from the statement that [the defendant] gave to the
police officer and the security officer is, basically, she was taking the items
out of the store for someone to inspect in the parking lot.’’
5
The relevant portions of the prosecutor’s argument are as follows. First,
the prosecutor stated: ‘‘It’s interesting that when she was trying to explain
herself to the police officer and to security, she didn’t say anything about
Starr [White], about looking around for Starr [White]; she kept talking about
how she was going to bring the items out into the parking lot for somebody
to check.’’ Second, the prosecutor stated: ‘‘And as jurors and as citizens of
this state, one has to use one’s common sense in deciding just how logical
were the defenses that were put forward by the defendant in this case
through the police officer and the security officer. She didn’t say, by the
way, I was going to pay for them later. She simply said, I was bringing them
outside to the parking lot so somebody could look at them.’’
6
The prosecutor stated: ‘‘It’s interesting that when she was trying to
explain herself to the police officer and to security, she didn’t say anything
about Starr [White], about looking around for Starr [White]; she kept talking
about how she was going to bring the items out into the parking lot for
somebody to check.’’
7
White and Taylor testified during the defendant’s case. Essentially, both
of these witnesses testified that they were at Walmart with the defendant
on January 3, 2013. In relevant part, Taylor testified that, after he, the
defendant and White went into the store, he became separated from the
others and decided to wait in an automobile in the parking lot with his son.
He testified that, later, he observed the defendant in the back of a police
cruiser. White testified that she ‘‘dropped [the defendant] off’’ at the store
to do some shopping and that she intended to bring an item belonging to
the defendant into the store, which the defendant wanted to return at the
customer service counter. White testified that she left the item in her automo-
bile. After spending some time inside of the store, White went outside to
retrieve the item. At this time, she observed the defendant sitting in the
back of a police cruiser. White testified that she attempted to speak with
the defendant, but the police told her to get away. Neither witness testified
that he or she had the opportunity to observe the events underlying the
defendant’s detention and subsequent arrest.
8
In her appellate brief, the defendant acknowledged that she ‘‘did tell
[Vargas] that she was taking the items outside to show someone the items
. . . .’’ For this reason alone, it is difficult to comprehend what prejudice,
if any, the prosecutor’s argument could have caused the defendant.