State v. Jennings

• Citation: 9 A.3d 446,125 Conn.App. 801
• Decision Date: 04 January 2011
• Docket Number: No. 29663.,29663.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Lashawn R. JENNINGS.

9 A.3d 446

125 Conn.App. 801

STATE of Connecticut

v.Lashawn R. JENNINGS.

No. 29663.

Appellate Court of Connecticut.

Argued Oct. 15, 2010.

Decided Jan. 4, 2011.

Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Jonathan C. Benedict, former state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellee (state).

GRUENDEL, ALVORD and SULLIVAN, Js.

ALVORD, J.

The defendant, Lashawn R. Jennings, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes (Rev. to 2007) § 53a-124 (a)(2) ¹and conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 and 53a-124 (a)(2). On appeal, the defendant claims that (1) the evidence was insufficient to sustain her conviction, (2)she was deprived of her constitutional right to confrontation under the sixth amendment to the United States constitution, (3) the court improperly failed to require compliance with a subpoena duces tecum issued by defense counsel and (4) the court improperly refused to instruct the jury in accordance with her proposed charge on value. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 30, 2007, David Gugliotti, a detective with the Stratford police department, and a few other officers were dispatched to the Wal-Mart store in Stratford in response to a report of a shoplifting in progress. Upon arrival, Gugliotti went to the store's loss prevention office and joined its security personnel. The office contained a computer that allowed its security personnel to view videotape from cameras positioned throughout the store. Those cameras recorded activity in the store as it occurred, and Gugliotti arrived in time to witness part of the shoplifting incident. He observed the defendant and two other individuals standing near a shopping cart that contained a clear plastic tote with a green lid. All three individuals were maneuvering and concealing DVDs within that tote. One of the individuals then grabbed a suitcase from the store's shelf, and they all proceeded to remove the items from the tote and to place them inside the suitcase.

While the defendant remained inside the store, the other two individuals pushed the shopping cart, which contained the suitcase, to a location near the exit and left it there. Those two individuals then left the store and promptly were apprehended by the officers who had remained outside of the building. The defendant subsequently walked up to the cart and pushed it slightly. At that point, before she actually left the store premises, she was detained. None of the three individuals had made any attempt to pay for the DVDs in thesuitcase. After the arrests, Gugliotti determined that the suitcase contained 101 DVDs. All of the DVDs were given to a store employee to scan at a register. The receipt from that register indicated that the DVDs totaled $1822.72.

By long form information, the defendant was charged with larceny in the third degree and conspiracy to commit larceny in the third degree. The case was tried before the jury on July 18, 2007. Gugliotti was the state's only witness; the defense called no witnesses. The jury returned a verdict finding the defendant guilty of both charges. The court accepted the verdict and sentenced the defendant to a total effective term of three years incarceration. This appeal followed.

I

The defendant first claims that there was insufficient evidence to support her conviction of the crimes of larceny in the third degree and conspiracy to commit larceny in the third degree. Specifically, she argues that the state failed to present any competent evidence of the market value of the DVDs and that it failed to present evidence sufficient to satisfy the taking element of the crime of larceny.

We apply a two part test in reviewing sufficiency of the evidence claims. "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.... While ... every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable andlogical 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." (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 93 Conn.App. 739, 748-49, 890 A.2d 591 (2006), appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007).

To convict the defendant of larceny in the third degree, as the commission of that crime is alleged in the state's information, the state bore the burden of proving beyond a reasonable doubt that (1) she committed larceny as defined in General Statutes § 53a-119 and (2) the value of the property exceeded $1000. General Statutes (Rev. to 2007) § 53a-124 (a)(2). "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...." General Statutes § 53a-119.

A

The defendant claims that the state failed to prove by competent evidence that the value of the property involved exceeded $1000, which is an essential element of the crime of larceny in the third degree.² See State v. Scielzo, 190 Conn. 191, 200, 460 A.2d 951 (1983). The defendant challenged the adequacy of the state's evidence by making motions for acquittal at the close of the state's case and after the defense rested and alsoby filing a postconviction motion for a judgment of acquittal. She concedes, however, that she did not assert in the trial court the same arguments in support of her insufficiency of the evidence claim that she now raises on appeal. Nevertheless, her claims are reviewable by this court. "[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs [set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989) ]. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim." (Internal quotation marks omitted.) State v. Torres, 111 Conn.App. 575, 579, 960 A.2d 573 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).

The gravamen of the defendant's claim is that Gugliotti was not a competent witness to testify as to the value of the 101 DVDs. The defendant argues that he had no independent knowledge of their value and was simply reciting a value from adocument, i.e., the store's receipt, even though that document was not an exhibit at trial. The following additional facts and procedural history are relevant to our resolution of this claim.

During direct examination, the prosecutor asked Gugliotti whether he had determined the value of the items in the suitcase and how that value had been determined. Gugliotti responded: "What we traditionally do in a ... shoplifting case is, we have that store take all the items and run them through the register and print us out a receipt of what the total would have been." When asked what that amount was, Gugliotti stated that he could not recall the exact amount. The court then allowed Gugliotti to refresh his recollection by looking at a copy of his report. After indicating that his recollection was refreshed, Gugliotti testified thatthe total amount was $1822.72. Defense counsel did not object to the prosecutor's questions or object to Gugliotti's testimony on the ground that it was hearsay or that Gugliotti was not a competent witness. Gugliotti's testimony was the only evidence of value produced by the state; neither the store's receipt nor the DVDs were exhibits at trial.

Gugliotti's testimony, absent objection by the defendant, was sufficient proof that the total value of the 101 DVDs exceeded $1000. "If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value.... This principle is almost universally accepted.... The principle applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay, but it has been applied to evidence vulnerable as secondary evidence of writings, opinions, evidence elicited from incompetent witnesses or subject to a privilege, or subject to objection because of the want of authentication of a writing, of the lack-of-knowledge qualification of a witness, or of the expertness qualification." (Internal quotation marks omitted.) State v. Carey, 228 Conn. 487, 496, 636 A.2d 840 (1994), quoting 1 C. McCormick, Evidence (4th Ed.1992) § 54, pp. 219-20; see also State v. King, 289 Conn. 496, 521, 958 A.2d 731 (2008).

The defendant additionally claims that the evidence was insufficient to prove the market value of the DVDs because the store's "price tags" would be an inadequate measure of their value as a matter of law. She argues that evidence of market value must include evidence of...