State v. Flowers

• Decision Date: 15 December 2015
• Docket Number: AC 37235
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. TINA FLOWERS

STATE OF CONNECTICUT v. TINA FLOWERS

AC 37235

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Submitted on briefs October 9, 2015

December 15, 2015

Gruendel, Lavine and Keller, Js.^*

(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. Kalthoff, 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 during 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 Stratford, placed a fifty inch television into a shopping cart. Thereafter, the defendant placed a computer into a second 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 activities 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 associates 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, identified 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 constituted 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 displeasure 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 investigation.

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 larceny 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 carrying 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 knowledge 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 consent of the owner. . . . The requisite intent for retention 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 International 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 quotation 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 insufficient evidence is well established. In reviewing the sufficiency 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 construed 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 defendant 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 multitude 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 reasonable and logical. . . .

"Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence 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 evidence 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 requisite intent for the commission of the crime. The...