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State v. Morel

Court of Appeals of Connecticut

April 11, 2017

STATE OF CONNECTICUT
v.
TOMAS MOREL

          Submitted on briefs January 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 Katherine E. Donoghue and Nadia C. Prinz, deputy assistant state's attorneys, filed a brief for the appellee (state).

          Keller, Mullins and Harper, Js.

          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 evidence 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 communicated to employees and, thus, became common knowledge. The defendant was employed as a driver. His duties customarily entailed the transportation of products 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 personnel 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 holding 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 facility. 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 manufacturing 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, displayed 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 company'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 center, 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 manufacturing 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 contained 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 system 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 delivery 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 properly 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 Positioning 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 anything, 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 taking 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 defendant 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 distribution 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 ...


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