State v. Adams

327 Conn. 297

173 A.3d 943

STATE of Connecticut

v.Lorenzo ADAMS

SC 19690, (SC 19692)

Supreme Court of Connecticut.

Argued October 16, 2017

Officially released December 19, 2017

Deren Manasevit, assigned counsel, for the appellant-appellee (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-appellant (state).

Rogers, C.J., and Palmer, McDonald, Robinson and D'Auria, Js.

ROGERS, C.J.

The issues that we must resolve in these certified appeals by the defendant, Lorenzo Adams, and the state are whether the Appellate Court correctly concluded that (1) the defendant's conviction of breach of the peace in the second degree in violation of General Statutes § 53a–181 was supported by the evidence, and (2) the defendant's conviction of attempted larceny in the sixth degree in violation of General Statutes § 53a–49 and General Statutes (Rev. to 2005) § 53a–125b¹ was not supported by the evidence. The defendant was charged with a variety of offenses after he attempted to steal merchandise from a Marshalls department store in Danbury and engaged in a scuffle with the store's security personnel. After a trial to the court, the defendant was found guilty of breach of the peace in the second degree and attempted larceny in the sixth degree, and the court rendered judgment accordingly. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the conviction of breach of the peace and, in a split decision, reversed the conviction of attempted larceny. See State v. Adams, 163 Conn. App. 810, 825, 137 A.3d 108 (2016). We then granted the defendant's petition for certification to appeal to this court on the following issue: "Did the Appellate Court correctly determine that there was sufficient evidence to support the defendant's conviction for breach of the peace?" State v. Adams, 321 Conn. 913, 136 A.3d 1273 (2016). We also granted the state's petition for certification to appeal on the following issue: "Did the Appellate Court majority correctly determine that there was insufficient evidence to support a judgment against the defendant of attempted larceny in the sixth degree?" State v. Adams, 321 Conn. 912, 138 A.3d 281 (2016). We dismiss the defendant's appeal on the ground that certification was improvidently granted, and we reverse in part the Appellate Court's judgment with respect to its determination that there was insufficient evidence to support the conviction of attempted larceny in the sixth degree.

The record reveals the following facts that the trial court reasonably could have found and procedural history. On September 23, 2006, the defendant went to the men's department of the Marshalls department store in Danbury. The defendant's activities after he entered the men's department were recorded on an eighteen minute surveillance video.² Approximately thirty seconds into the video recording, the defendant removed an item, which appeared to be either a jacket or a suit, from a clothing rack. The defendant then carried the item to a corner of the store where his entire body, except for the top of his head, was hidden by a merchandise display. When he left the corner several seconds later, he was not carrying anything. Approximately six minutes later, the video recording showed the defendant carrying a pair of shoes in his right hand and another item in his left hand. Several minutes later, the defendant returned to the same corner of the store where, over the course of about three minutes, he repeatedly glanced around furtively, ducked and looked down as if doing something with his hands. The defendant eventually emerged from the right end of the merchandise display carrying a plastic bag in his left hand, which appeared to be either empty or only partially filled, and other items in his right hand. He then can be seen placing items in the bag, at which point he returned to the hidden area behind the merchandise display. Several seconds later, the defendant emerged from the left end of the merchandise display without the bag and continued to browse around the store and to pick up merchandise. After approximately two minutes, he returned to the same corner. Several seconds later, he again emerged from the right end of the merchandise display and again appeared to be placing items in a bag. The defendant can then be seen walking to the front of the store with a heavily loaded plastic bag. Without going through any checkout line, he headed toward the exit. At that point, a man and a woman, identified at trial as Marshalls' loss prevention officers Joseph Fernandes and Christine Nates, approached the defendant from inside the store. Fernandes and Nates wore similar dark colored smocks over their clothes. There was a brief scuffle between the defendant and the officers, during which Nates grabbed the bag from the defendant. The defendant then ran out of the store.

Shortly thereafter, Sergeant Vincent LaJoie and Officer Jose Pastrana of the Danbury Police Department responded to a report of a larceny in progress at Marshalls. LaJoie arrived first and obtained a description of the defendant from Fernandes and Nates. Pastrana arrived shortly thereafter and accompanied Fernandes and Nates to the store's loss prevention office where he viewed the video recording of the defendant in the store. Meanwhile, LaJoie searched for the suspect in the parking lot of the shopping plaza. Upon seeing the defendant, LaJoie notified the police dispatcher that he had located the suspect, and then LaJoie approached him. Shortly thereafter, Pastrana, Fernandes and Nates arrived at the scene, and the loss prevention officers identified the defendant as the person who had attempted to steal items from the store. The defendant was arrested and ultimately charged with, among other crimes, attempted larceny in the sixth degree and breach of the peace in the second degree. Specifically, the long form information alleged that the defendant committed attempted larceny in the sixth degree when he "attempted to take a jacket from the [Marshalls] store ...."

Fernandes and Nates were unavailable to testify at trial.³ Pastrana testified without objection, however, that he had been informed, presumably by Fernandes and Nates, that the value of the merchandise that was in the bag that the defendant had attempted to carry out of the store was approximately $979. Specifically, when asked whether he knew what merchandise the defendant was trying to take, Pastrana responded that he did not know what specific items were in the bag, but "the total amount that they gave me—they ran up ... was approximately $979 and change."

The trial court found the defendant guilty of attempted larceny in the sixth degree and breach of the peace in the second degree. The defendant appealed from the judgment of conviction to the Appellate Court, which concluded that the evidence was sufficient to support the conviction of breach of the peace in the second degree; State v. Adams, supra, 163 Conn. App. at 825, 137 A.3d 108 ; but not to support the conviction of attempted larceny in the sixth degree. Id., at 822, 137 A.3d 108. With respect to the breach of the peace conviction, the Appellate Court determined that the conviction was supported by the video recording showing the defendant trying to force his way past Fernandes and Nates when they confronted him at the exit and by Pastrana's testimony that Fernandes and Nates told him that the defendant shoved them. Id., at 824, 137 A.3d 108. The court concluded that "[t]he cumulative force of this evidence is that the defendant used physical force, namely, a shove, with the intent to impede a lawful activity." Id., at 824–25, 137 A.3d 108 ; see also State v. Wolff, 237 Conn. 633, 670, 678 A.2d 1369 (1996) ("[t]he predominant intent [required for a breach of the peace conviction] is to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity" [internal quotation marks omitted] ).

With respect to the conviction of attempted larceny in the sixth degree, a majority of the Appellate Court concluded that "there is no evidence that the items that the defendant tried to exit Marshalls with belonged to the store. The surveillance footage does not capture the defendant's placing of specific, identifiable store merchandise into the bag before making off with it, and there was no evidence before the trial court that the contents of the bag that the defendant abandoned belonged to Marshalls. It is entirely conceivable that the defendant entered Marshalls with the bag, and that the bag contained items from somewhere else. To the extent that the state argues that evidence of value may, by itself, establish that the items belonged to Marshalls, we reject that position as well. For all we know, Fernandes and Nates guessed the value that they reported to Pastrana. We have no evidence to substantiate how they concluded that the items valued $979. In the absence of some evidence, we conclude that the court could not infer ownership from value without speculating." State v. Adams, supra, 163 Conn. App. at 821–22, 137 A.3d 108. Accordingly, the majority concluded, the state had failed to prove an essential element of § 53a–125b.

Judge Beach dissented from the judgment reversing the defendant's conviction of attempted larceny in the sixth degree. He contended that the video recording and Pastrana's testimony regarding the value of the merchandise in the bag gave rise to a reasonable inference that "the defendant was engaged in the process of collecting items from the store and placing them in the bag" and that innocent explanations for the defendant's behavior were implausible. Id., at 826, 137 A.3d 108.

These certified appeals followed. The defendant claims that the Appellate Court incorrectly...