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State v. Adams

Appellate Court of Connecticut

March 22, 2016

STATE OF CONNECTICUT
v.
LORENZO ADAMS

         Argued December 7, 2015.

          Substitute information charging the defendant with the crimes of robbery in the third degree, attempt to commit larceny in the sixth degree and breach of peace in the second degree, brought to the Superior Court in the judicial district of Danbury, geographical area number three, and tried to the court, Roraback, J.; judgment of guilty of attempt to commit larceny in the sixth degree and breach of peace in the second degree, from which the defendant appealed to this court.

          SYLLABUS

         Convicted, following a trial to the court, of the crimes of attempt to commit larceny in the sixth degree and breach of the peace in the second degree, the defendant appealed to this court. The trial court viewed a surveillance video from a store that depicted the defendant taking several items displayed in the store and carrying them to a corner of the store that was obstructed from the surveillance camera's view, where he then allegedly placed the items in a bag. The video then showed the defendant taking a large, full bag to the store exit, without paying, where he was confronted by two loss prevention officers. The defendant struggled physically with the loss prevention officers, dropped the bag he was carrying, fled the store, and was subsequently arrested. On appeal, the defendant claimed, with respect to attempted larceny, that the state produced no evidence to prove that the items in the bag he carried to the exit belonged to the store, and that the evidence was insufficient to sustain his conviction for breach of peace. Held :

         1. The trial court improperly found that the state had adduced sufficient evidence to support a conviction of attempt to commit larceny in the sixth degree, the state having failed to prove beyond a reasonable doubt that the defendant attempted to intentionally deprive the store of its property that it had exposed for sale as required under the statute ( § 53a-119 [9]) that provides shoplifting as a means to commit larceny: the surveillance video and other evidence did not support the court's conclusions that the defendant had not entered the store with the bag or that the bag he attempted to walk out with contained items that belonged to the store, as the video did not show the defendant entering the store or placing into the bag the items that he had gathered in the corner; moreover, the state's claim that the defendant was placing goods belonging to the store into the bag was pure speculation because no one testified as to any verification that the items discovered within the bag dropped by the defendant belonged to the store, and the surveillance camera's view of the corner of the store where the defendant carried the items was obstructed; furthermore, contrary to the state's claim that the trial court reasonably could have concluded that the items in the bag belonged to the store because an investigating police officer had testified that the loss prevention officers told him the value of the items in the bag, there was no evidence to substantiate how the loss prevention officers had determined the purported value of those items and, therefore, the trial court could not have inferred ownership from value without resorting to speculation.

         2. Contrary to the defendant's claim, the evidence was sufficient to support the trial court's judgment with respect to his breach of the peace conviction: the video surveillance footage was sufficient evidence that the defendant's actions constituted fighting or violent, tumultuous or threatening behavior, as the video clearly depicted a continuous altercation in which the loss prevention officers confronted the defendant and attempted to block his exit, despite the fact that the video did not depict uninterrupted action, and the investigating police officer testified that the loss prevention officers had told him that the defendant shoved them to get out of the store; furthermore, the evidence was sufficient to establish that the defendant intended to cause inconvenience, annoyance, or alarm, as the cumulative force of the evidence was that the defendant used physical force with the intent to impede a lawful activity, namely, the loss prevention officers' attempt to prevent what they perceived as a theft in the course of their employment.

         Deren Manasevit, assigned counsel, for the appellant (defendant).

         Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Colleen P. Zingaro, assistant state's attorney, for the appellee (state).

         Beach, Sheldon and Harper, Js. HARPER, J. In this opinion, SHELDON, J., concurred. BEACH, J., concurring in part and dissenting in part.

          OPINION

Page 109

          [163 Conn.App. 812] HARPER, J.

          The defendant, Lorenzo Adams, appeals from the judgment of conviction, rendered following a trial to the court, of

Page 110

attempt to commit larceny in the sixth degree in violation of General Statutes § § 53a-49[1] [163 Conn.App. 813] and 53a-125b[2] and breach of peace in the second degree in violation of General Statutes § 53a-181.[3] On appeal, the defendant claims that the state adduced insufficient evidence to sustain his conviction of both crimes beyond a reasonable doubt.[4] We affirm the judgment of the trial court with respect to the breach of peace charge, but we reverse the judgment with respect to the attempted larceny charge.

         The following facts are relevant to the defendant's claims on appeal. On the evening of September 23, 2006, Sergeant Vincent LaJoie and Officer Jose Pastrana of the Danbury Police Department responded to a report of a larceny in progress at the Marshalls department store in Danbury. They were informed that the suspect was trying to flee and that the suspect physically engaged Marshalls' security personnel. LaJoie arrived first and spoke with Joseph Fernandes and Christine Nates--two loss prevention officers for Marshalls--who described the suspect. Pastrana arrived shortly thereafter while LaJoie still was conferring with Fernandes and Nates. LaJoie then transmitted the suspect's description to dispatch and proceeded to search for the suspect in the shopping plaza parking lot. Pastrana proceeded to the loss prevention office with Nates and Fernandes, who showed him a DVD containing surveillance footage of the suspect's activity in the store.

         LaJoie found a person matching the suspect's description outside of a nearby Staples store. He noticed that [163 Conn.App. 814] this person was perspiring and breathing heavily. LaJoie accosted the individual and informed dispatch that he believed he had the suspect. Pastrana had viewed about half of the surveillance footage when he was informed that LaJoie had apprehended a suspect. He transported Fernandes and Nates to LaJoie's location, where they identified the defendant as the suspect. The defendant subsequently was taken into custody and transported to the police station.

         The state originally charged the defendant with breach of peace in the second degree, robbery in the third degree, and attempt to commit larceny in the fourth degree. The defendant filed motions for a bill of particulars and for a statement of essential facts in August, 2012 and December, 2013. By a substitute long form information dated January 9, 2014, the state charged the defendant with robbery in the third degree, attempt to commit larceny in the sixth degree, and breach of peace in

Page 111

the second degree. With respect to the attempted larceny charge, the state alleged that the defendant committed a crime when he " attempted to take a jacket from the Marshall[s] store . . . ."

         The case was tried before the court on February 4, 2014. The state offered the surveillance footage of the defendant in the store into evidence. The court was shown the recorded footage[5] during Pastrana's direct examination, which he narrated from the witness stand. Specifically, Pastrana testified as follows. The footage began with the defendant in the men's department of Marshalls without any shopping bags or other items in his hands. The defendant looked through a rack of suits, removed one from the rack, and carried it off to a corner of the store. Later, the defendant took a pair of shoes to the same corner of the store. Even later, the cameras [163 Conn.App. 815] show the defendant placing items in a bag in the same corner of the store. Pastrana specifically describes the bag as " [a] plastic bag filled with some items." The defendant then gathered a large, full bag and walked to the store exit without paying for anything. As he reached the exit, he was approached by Fernandes and Nates, who attempted to stop him from leaving the store. The defendant struggled physically with them for a few moments before exiting the store. The loss prevention officers stated to Pastrana that they were shoved by the defendant as he attempted to escape. The defendant dropped the bag he was carrying before he left the store. Neither Fernandes nor Nates testified at trial.

         After the trial concluded, the court articulated its decision from the bench. The court found the testimony of both police officers to be credible, and found the defendant guilty of both breach of peace in the second degree and attempt to commit larceny in the sixth degree.[6] With respect to breach of peace, the court made the following remarks: " I am going to find [the defendant] guilty of breach of peace in the second degree because the court's review of the evidence at the time he was exiting the store, the videotape, demonstrated beyond a reasonable doubt that there was a scuffle which can clearly be characterized as tumultuous behavior in a public place." With respect to attempted larceny, the court commented that " the evidence, [the defendant] being in the Marshalls store and going to the point of exit with a bag filled with things that were not in his possession when he entered the store, or which he was not carrying as he entered the store, leads the court to find the defendant guilty of attempted larceny in the sixth degree because the court finds that the state has proven beyond a reasonable doubt that he attempted to take possession of goods [163 Conn.App. 816] or merchandise offered or exposed for sale by Marshalls with the intent of converting the same to his use without paying the purchase price for those goods." The defendant was sentenced to consecutive terms of three months and six months on the attempted larceny and breach of peace charges, respectively. This appeal followed.

         In this appeal, the defendant claims that the evidence admitted at trial was insufficient to support his conviction of attempt to commit larceny in the sixth degree and breach of peace in the second degree. The state objects, arguing that it presented ample ...


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