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STATE OF CONNECTICUT v. TINA FLOWERS

(AC 37235)

Gruendel, Lavine and Keller, Js.*

Submitted on briefs October 9—officially released December 15, 2015

(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 53a119 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

whetherthe 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 defendant argues that ‘‘intent to commit larceny could not

be reasonably inferred from [her] conduct. [She] did

not engage in any kind of furtive actions in an attempt

to conceal the goods or disable the security devices on

the goods. Neither did she act in a suspicious or nervous

manner.’’ She argues that the surveillance video from

the store that was presented in evidence belies Vargas’

testimony that she had acted in a suspicious manner,

but that it depicted ‘‘the actions of a typical customer

under the same circumstances.’’ Additionally, she

argues thatit was unreasonable to inferthat her conduct

in entering the vestibule demonstrated a larcenous

intent because such area is ‘‘not outside of the store

building,’’ the store did not post a policy that the area

was considered outside of the store, and no security

alarms were triggered by her conduct. Further, she

argues that the fact that she ‘‘willingly’’ reentered the

store and provided a benign explanation for her conduct

demonstrated that she lacked such a criminal intent.

Additionally, the defendant challenges Vargas’ credibility, suggesting that he ignored aspects of her explanation. Finally, she also challenges the adequacy of

Moore’s investigation into her version of the relevant

events.

‘‘It is axiomatic that a jury may infer intent from

behavior. As our Supreme Court has stated, direct evidence of the accused’s state of mind is rarely available.

. . . Therefore, intent is often inferred from conduct

. . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.’’ (Internal quotation marks omitted.) State v.

Raynor, 84 Conn. App. 749, 760, 854 A.2d 1133, cert.

denied, 271 Conn. 935, 861 A.2d 511 (2004).

In the present case, Vargas unambiguously testified

that, in an area of the store in which ‘‘high ticket items
. . . are constantly being stolen,’’ he observed the

defendant engage in behavior that led him to suspect

that she might be a shoplifter. He elaborated that, after

the defendant placed the television and the computer

into carts, ‘‘she began to look around at cameras in the

ceiling, which is an indicator that someone’s going to

walk out.’’ The surveillance video presented in evidence

depicted the defendant’s conduct in the electronics

department of the store, while she walked throughout

the store, and at the exit of the store. This evidence

demonstrated that she placed expensive items in her

shopping carts, walked with the carts to the front of

the store while looking from side to side, bypassed the

cashiers, stopped briefly nearthe exit where she looked

at her cell phone and checked her surroundings, and

pushed the cart carrying the computer through the

doors and into the vestibule while pulling the cart carrying the television behind her. On the basis of this

evidence of the defendant’s conduct during the criminal act and the rational inferences to be drawn therefrom, a jury reasonably could infer that the defendant

possessed larcenous intent in that she intended to

deprive Walmart of the items in her carts permanently.

The evidence of the defendant’s conduct after her

criminal actions provided further support for a finding

that she acted with a larcenous intent. Even if the defendant had willingly accompanied Vargas after she had

been stopped, such conduct would not preclude a finding of guilt. Moreover, ample evidence demonstrated

that the defendant did not willingly accompany Vargas.

Vargas testified that, when he stopped and detained the

defendant, she became disruptive, which led him to call

the police. Moore testified that the defendant was so

disruptive during his investigation that he had to enlist

the assistance of one or more other police officers to

remove herfrom the store. It would not be unreasonable

for the jury to infer that the defendant’s disruptive and

uncooperative conduct reflected her consciousness of

guilt and, by its nature, belied her benign explanations

for the events at issue. Furthermore, the fact that the

explanations that the defendant provided to Vargas and

Moore were contradictory is significant in an analysis

of her intent. Because it is reasonable to infer that

contradictory explanations suggest evasiveness or

untruthfulness, this was evidence from which the jury

could infer that the defendant’s explanations were an

attempt to conceal the criminal nature of her actions.

A brief examination of the substance of these explanations provides yet additional support for a finding of

larcenous intent. The evidence demonstrated that the

defendant stated to Vargas ‘‘that she was going to just

bring the merchandise outside to someone waiting in

the car to see if . . . these were the items that they

wanted.’’ The evidence demonstrated that, in contrast

with the statement she made to Vargas, the defendant

stated 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.’’

‘‘The jury is entitled to draw reasonable inferences from

the evidence before it and, in performing its function,

the jury brings to bearits common sense and experience

of the affairs of life.’’ (Internal quotation marks omitted.) State v. Ramirez, 94 Conn. App. 812, 822, 894 A.2d

1032, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006).

‘‘It is often said that common sense is not left at the

courthouse door.’’ (Internal quotation marks omitted.)

Lederle v. Spivey, 113 Conn. App. 177, 194, 965 A.2d

621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009).

Setting aside the testimony from Moore that no third

party associated with the defendant had approached

the police during the course of his immediately ensuing

investigation at the store, which undermined the credibility of the defendant’s explanations, it would have

been entirely reasonable for the jury to find that neither

of these explanations was credible because people typically do not bring unpaid for, expensive electronics

items outside the store in which they are offered for

sale so that such persons can determine whether to

purchase them or because they are waiting for third

parties. The jury reasonably rejected the defendant’s

arguments that she behaved like a typical customer.

To the extent that the defendant suggests that the

surveillance video conflicted with Vargas’ testimony

that she was acting suspiciously by looking for surveillance cameras in the store, we observe that the surveillance video, which was not of such a resolution that it

clearly depicted the movement of the victim’s eyes, did

not plainly contradict Vargas’ testimony. Under these

circumstances, the jury was free to resolve this factual

issue in favor of Vargas’ testimony, which indicated that

she had glanced at security cameras and had behaved

in a suspicious or nervous manner. ‘‘It is the exclusive

province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting

some, all or none of any given witness’ testimony.’’

(Internal quotation marks omitted.) State v. DeMarco,

311 Conn. 510, 519–20, 88 A.3d 491 (2014). Moreover,

it is of no consequence to our analysis that the defendant did not attempt to conceal the items in the carts

or disable the security devices attached to them. The

jury reasonably could have inferred that the defendant

did not attempt to conceal a fifty inch television and a

computer because it would have been difficult, if not

impossible, to do so. The jury reasonably could have

believed that the defendant did not disable the security

devices because doing so would have drawn the attention of store employees. And, in light of the defendant’s

other conduct, the jury reasonably could have inferred

that the defendant’s plan was to act in a manner that

did not draw attention to herself, such as by running

through the store or by creating any type of a distraction. The jury could have inferred that the defendant
believed that she would be successful by leaving the

store with the items by keeping them in the carts, in

plain sight, and simply walking out of the store. Additionally, in light of all of the evidence presented, the

fact that the defendant did not appear to remove or

disable the security devices on the items did not preclude the jury’s finding of guilt. The jury reasonably

could have inferred that the defendant was unaware of

eitherthe presence or purpose of the devices, orthat the

defendant believed she could accomplish her larceny

despite them.

The defendant suggests that her entering the vestibule was not tantamount to her exiting the store, and

that there was no evidence that she had been made

aware of a store policy that considered this area to be

outside of the store. Yet, to resolve the factual issues

before it, the jury need not have determined with precision where the inside of the store ended and where the

outside of the store began. Nor was the jury invited to

determine any of the issues before it consistent with

store policies. The state did not bear the burden of

demonstrating that the defendant successfully had

taken the items in her possession and control outside

of the store, that alarms had been sounded, or that

the defendant had been alerted to store policies. To

demonstrate that larceny has occurred, ‘‘[n]either the

statutes nor the case law requires that the property [at

issue] actually be removed from the owner’s premises

. . . .’’ State v. Jennings, 125 Conn. App. 801, 811–12,

9 A.3d 446 (2011). Vargas testified that the store’s policy

was not to stop suspected shoplifters ‘‘until they pass

all points of sale,’’ and that the vestibule was considered

to be such an area. The jury heard testimony about

where the defendant was stopped and observed a surveillance video that depicted the defendant’s conduct

in the store. This evidence was consistent with Vargas’

testimony. On the basis of this evidence, perhaps

informed by evidence of store policy, the jury reasonably could find that the area in which the defendant

was stopped supported a finding that she had acted

with a larcenous intent.

To the extent that the defendant attempts to cast

doubt on Vargas’ credibility generally, by suggesting

that there were inaccuracies or inconsistencies in his

testimony or that the evidence suggested that he was

inattentive to her explanation of what had occurred,

we reiterate that it was the province of the jury, and

not this court, to evaluate Vargas’ testimony.

Finally, the defendant argues that, with a more complete investigation, Moore would have been able to substantiate her version of events by learning that third

parties, including her cousin, Peter Taylor, and her

cousin’s fiance ́e, Starr White, were waiting for the

defendant outside of the store, as the defendant had

indicated to Moore. We observe that the defendant,
during her case-in-chief, presented the testimony of

Taylor and White.3 The jury was free to accept or reject

their testimony, in whole or in part, in considering the

issues before it. On the basis of the jury’s finding of

guilt, we must presume that the jury did not find that

the testimony of these defense witnesses justified a

verdict of not guilty. Any claim that Moore’s investigation was deficient does not undermine the sufficient

evidence of the defendant’s guilt.

B

Second, the defendant argues that the state failed to

present sufficient evidence to support a finding that a

wrongful taking had occurred. She argues in relevant

part: ‘‘The evidence shows that the defendant selected

two items, put them in two shopping carts, and walked

through the store to the customer service area. While

this evidence shows the goods were in the defendant’s

possession, it is a permissible possession granted to all

shoppers in the store and does not reflect an implicit

transfer of power and control [of the goods] to the

defendant.’’ She argues that ‘‘there was no evidence of

any forceful actions to take control of the goods.’’ Also,

she argues that ‘‘no evidence was presented that

reflected some scheme or strategy to seize control of

the goods.’’

Considering the evidence in light of the prior judicial

interpretation of ‘‘taking’’ set forth previously in our

discussion of this claim, we readily conclude that the

evidence and reasonable inferences to be drawn from

the evidence permitted the jury to find that the defendant had engaged in a wrongful taking of the items in

the shopping carts. The defendant, in her arguments

on appeal, implicitly acknowledged that she possessed

and controlled the items in the carts after she had put

them in the carts. Viewed in the light most favorable

to sustaining the jury’s finding of guilt, the evidence

did not demonstrate that the defendant merely had exercised the type of noncriminal possession and control

of unpaid for merchandise that typically is exercised by

shoppers who carry items in their hands or in shopping

carts before the point of sale. Here, the defendant—not

a third party—continued to exercise exclusive possession and control of the unpaid for merchandise past

the point of sale when she pushed the carts into the

vestibule at the exit. Such conduct occurring past the

point of sale, in light of all of the other evidence and

inferences logically drawn therefrom, amply demonstrated the requisite level of possession and control to

support a finding that a taking had occurred. In light

of all of the evidence of the defendant’s conduct in the

store, the jury reasonably could have found that the

defendant’s conduct past the point of sale transformed

conduct that was noncriminal in other areas of the store

into a wrongful taking.

The defendant argues that the evidence was insuffi-
cient because ‘‘there was no evidence of any forceful

actions to take control of the goods.’’ It does not appear

from our review of relevant legal authority that the

degree offorce required forthe commission of the crime

is anything more than that degree of force necessary

to transfer possession and control of the property at

issue. See State v. Henry, supra, 90 Conn. App. 726.

The defendant does not argue that the law is otherwise.

Here, the evidence readily supports a finding that she

lifted a television and a computer, both of which were

of a substantial size, and placed them into shopping

carts. She pushed and pulled these carts throughout

the store, ultimately pushing and pulling them into the

vestibule. The defendant has not demonstrated to this

court that the degree of force exercised by her was

inconsistent with a finding of guilt; the evidence demonstrated that she acted with sufficient force to control,

possess and retain the items at issue.

To the extent that the defendant suggests that the

evidence did not reflect a scheme or strategy to seize

control of the items in the carts, we disagree. The defendant’s lengthy pattern of loading expensive electronics

items in two carts, checking forthe presence of security

cameras, walking to the front of the store while checking her surroundings, stopping near the customer service desk, looking at her cell phone and her

surroundings near the customer service desk, and then

pushing and pulling the carts into the vestibule undoubtedly suggested a scheme or strategy to take the items

wrongfully. As we discussed in part I A of this opinion,

the jury reasonably could have found that the defendant’s scheme, though unsuccessful, was to act in a

manner that did not draw attention to her.

In light of the foregoing, we conclude that the evidence demonstrated beyond a reasonable doubt that

the defendant committed larceny in the fifth degree.

II

Next, the defendant claims that prosecutorial impropriety during closing argument deprived her of a fair

trial. We disagree.

The facts on which the defendant bases her claim may

be summarized as follows. On five occasions during the

prosecutor’s argument, the prosecutor suggested that

there was evidence that the defendant had stated to

Moore that she was taking the items in the carts outside

of the store. Three of these instances occurred during

the state’s initial argument,4 and two of these instances

occurred during the state’s rebuttal argument.5 These

five statements underlie the first part of the defendant’s

claim of prosecutorial impropriety. Additionally, on one

occasion during the state’s rebuttal argument,6the prosecutor stated that, in speaking with Vargas or Moore,

the defendant had not referred to White, the fiance ́e of

her cousin, Taylor.7 This statement underlies the second
part of the defendant’s claim of prosecutorial impropriety. At trial, the defendant did not object to any of the

alleged instances of impropriety. The defendant argues

that these comments were improper in that they mischaracterized the evidence and deprived her of a fair

trial.

‘‘In analyzing claims of prosecutorial impropriety, we

engage in a two step analytical process. . . . The two

steps are separate and distinct. . . . We first examine

whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether

it deprived the defendant of his due process right to

a fair trial. . . . In other words, an impropriety is an

impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful

and thus caused or contributed to a due process violation involves a separate and distinct inquiry. . . . An

appellate court’s determination of whether any

improper conduct by the prosecutor violated the defendant’s right to a fair trial is predicated on the factors

established in State v. Williams, 204 Conn. 523, 540,

529 A.2d 653 (1987). Those factors include the extent

to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety]

. . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the

case . . . the strength of the curative measures

adopted . . . and the strength of the state’s case. . . .

[If] a defendant raises on appeal a claim that improper

remarks by the prosecutor deprived the defendant of

his constitutional right to a fair trial, the burden is

on the defendant to show . . . that the remarks were

improper . . . .

‘‘As [our Supreme Court] previously [has]recognized,

prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . .

When making closing arguments to the jury, [however]

[c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line,

and something must be allowed for the zeal of counsel

in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully,

[provided the argument is] fair and based upon the facts

in evidence and the reasonable inferences to be drawn

therefrom. . . .

‘‘Nevertheless, the prosecutor has a heightened duty

to avoid argument that strays from the evidence or

diverts the jury’s attention from the facts of the case.

[The prosecutor] is not only an officer of the court,

like every attorney, but is also a high public officer,

representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.

. . . By reason of his office, he usually exercises great

influence upon jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake

should be forceful, but fair, because he represents the

public interest, which demands no victim and asks no

conviction through the aid of passion, prejudice, or

resentment. If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted

strictly according to the sound and well-established

rules which the laws prescribe. While the privilege of

counsel in addressing the jury should not be too closely

narrowed or unduly hampered, it must never be used

as a license to state, or to comment upon, or to suggest

an inference from, facts not in evidence, or to present

matters which the jury ha[s] no right to consider. . . .

‘‘Claims involving prosecutorial impropriety during

the course of closing argument require a court to evaluate a prosecutor’s statements not for their possible

meaning, but for the manner in which the jury reasonably and likely would have understood them. Because

the meaning of words and statements typically is dependent on the context in which they are used, a court must

carefully consider a prosecutor’s challenged statements

by carefully considering their context in the entire trial,

including the remainder of the state’s closing argument.’’ (Internal quotation marks omitted.) State v.

LaVoie, 158 Conn. App. 256, 274–76, 118 A.3d 708, cert.

denied, 319 Conn. 929, A.3d (2015).

With regard to the first part of the defendant’s claim

of prosecutorial impropriety, our review of the record

reflects that there was no evidence that the defendant

had stated or suggested to Moore that she was taking

the items in the carts outside of the store to show them

to a third party in the parking lot, or that she had made

comments of a substantially similar nature to Moore.

Previously in this opinion, we discussed the two conflicting explanations that the defendant provided after

she had been detained by Vargas. The evidence demonstrated that the defendant stated to Vargas ‘‘that she

was going to just bring the merchandise outside to

someone waiting in the car to see if . . . these were

the items that they wanted.’’ The evidence demonstrated that the defendant stated 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.’’ Thus, the record reflects,

and the state acknowledges before this court, that the

prosecutor mischaracterized the evidence in this

regard.

With regard to the second part of the defendant’s

claim of prosecutorial impropriety, the defendant

argues that the prosecutor mischaracterized the evidence when he stated that, in explaining her conduct

to Vargas and to Moore, the defendant had failed to

refer to White. The defendant argues that the evidence

demonstrated that she told Moore that she was waiting

for her cousin, and that the surveillance video demon-
strates that she was looking for someone while inside

of the store. Our review of the evidence reflects that

the prosecutor’s characterization of the evidence in this

manner was reasonable and, thus, fair argument. The

evidence reflects that Taylor is the defendant’s cousin

and that, at times relevant, White was his fiance ́e. Moreover, the evidence reflects that in explaining her actions

to Vargas, the defendant referred to ‘‘someone waiting

in the car,’’ and that in explaining her actions to Moore,

the defendant referred to ‘‘a friend or a cousin . . . .’’

There was no evidence that the defendant had referred

to any third party, including White, by name. Although

the evidence demonstrated that the defendant had

referred to one or more third parties who were waiting

for her outside of the store, it was fair comment on the

evidence to state that she had not referred specifically

to White.

Having determined that a mischaracterization of the

evidence occurred with regard to the defendant’s first

claim of impropriety, we now turn to an evaluation of

whether, under the Williams factors, this event rose to

the level of an impropriety that deprived the defendant

of a fair trial. With regard to the frequency of the conduct, the prosecutor made the statement a total of five

times. Yet, although numerous during a closing argument that was not lengthy, all of these instances

occurred during closing argument and, thus, any impropriety was not a pervasive characteristic of the entire

trial. As the state acknowledged before this court, the

record does not reflect that the prosecutor’s statements

were invited by defense conduct or argument. Additionally, as the defense did not object to the arguments,

the court did not take any curative measures.

Turning to the centrality of the conduct at issue to

the critical issues in the case, we readily conclude that

any impropriety did not relate to a central issue before

the jury. The central issues before the jury concerned

the defendant’s conduct prior to any statements that

she made to Vargas or to Moore, and whether she had

acted with a larcenous intent. Although the defendant’s

statements to Vargas and Moore amounted to strong

circumstantial evidence related to the issue of her

intent, it was not significant to any critical issue during

the trial as to whether she had directed the comment

at issue to Vargas or to Moore.

For similar reasons, we likewise conclude that any

impropriety was not severe. It is undisputed that the

substance of the prosecutor’s comments finds complete

support in the evidence,8 and the record strongly suggests that the prosecutor merely misattributed to Moore

what the defendant had said to Vargas. In situations

involving a single impropriety of this nature, courts have

not been inclined even to view the matter as involving

prosecutorial impropriety. See, e.g., State v. Roberts,

158 Conn. App. 144, 152, 118 A.3d 631 (2015) (‘‘[n]ot
every mistake by a prosecutor in closing argument, not

every misstep, amounts to an impropriety’’); see also

State v. O’Brien-Veader, 318 Conn. 514, 534, 122 A.3d

555 (2015) (‘‘[n]ot every misstep by a prosecutor that

exceeds the bounds of a trial court order rises to the

level of prosecutorial impropriety that implicates a

defendant’s due process rights, thus requiring resort to

the second step in the prosecutorial impropriety

analysis’’).

Although the defendant argues that the five misstatements at issue in the present case were evidence of an

intentional ploy by the prosecutor to bolster Vargas’

credibility, such an argument lacks any support in the

record. The statements at issue were made in the context of arguments related to an assessment of the defendant’s conduct and the manner in which she had

attempted to explain that conduct. The statements were

not made in the context of arguments related to Vargas’

credibility which, in light of the video surveillance evidence of the conduct underlying the conviction, was

not a central issue in the trial. Moreover, it is difficult

to see what difference it would have made in the eyes

of the jury for the state to have emphasized that the

defendant had made the statement at issue to Moore

instead of to Vargas. The critical evidence, damaging

to the defense, remained that there was unambiguous

testimony that, after the defendant was detained, she

stated that she was attempting to take the items in her

cart outside of the store. And, as we have discussed

previously in this opinion, the fact that the defendant

provided contradictory explanations for her conduct

was circumstantial evidence that she was being

untruthful to Vargas and to Moore.

Finally, we observe that the state’s case was strong.

The state presented persuasive testimonial and video

surveillance evidence concerning the defendant’s conduct. Although, as is customary, the issue of the defendant’s intent rested on an evaluation of circumstantial

evidence, the evidence in the present case strongly demonstrated that the defendant did not behave like a reasonable shopper, but like a person engaged in criminal

conduct. In light of the foregoing, we conclude that any

impropriety did not implicate the fairness of the trial.

The judgment is affirmed.

In this opinion the other judges concurred.

* Judge Lavine has replaced Justice Borden in this case. Judge Lavine

has reviewed the record and briefs prior to participating in the resolution

of this appeal.

1 The defendant, assisted by standby counsel, exercised her right to selfrepresentation during the proceedings at trial. The defendant was represented by counsel in the present appeal. The trial court sentenced the

defendant to three years of incarceration, followed by two years of special

parole. At the close of the state’s case-in-chief, the court granted the defendant’s motion for a judgment of acquittal with regard to one count of breach

of the peace in the second degree in violation of General Statutes § 53a-181

(a) (1).

2 At the close of the state’s case-in-chief, the defendant’s standby counsel
raised a motion for a judgment of acquittal. The trial court denied the motion

with regard to the charge of larceny in the fifth degree. Thereafter, the

defendant presented evidence in her defense. ‘‘[W]hen a motion for [a judgment of] acquittal at the close of the state’s case is denied, a defendant may

not secure appellate review of the trial court’s ruling without [forgoing] the

right to put on evidence in his or her own behalf. The defendant’s sole

remedy is to remain silent and, if convicted, to seek reversal of the conviction

because of insufficiency of the state’s evidence. If the defendant elects to

introduce evidence, the appellate review encompasses the evidence in toto.’’

State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984).

3 See footnote 7 of this opinion.

4 The relevant portions of the prosecutor’s argument are as follows. First,

the prosecutor stated: ‘‘And you heard the police officer testify that she

offered an explanation that she was taking the items outside the store to

show somebody the items in the parking lot.’’ Second, the prosecutor stated:

‘‘It doesn’t make sense, the explanation she gave to the police officer, that

she had a friend outside who wanted to inspect the merchandise to see if

she wanted it.’’ Third, the prosecutor stated: ‘‘And the only analysis, the

only thing we’ve heard from the statement that [the defendant] gave to the

police officer and the security officer is, basically, she was taking the items

out of the store for someone to inspect in the parking lot.’’

5 The relevant portions of the prosecutor’s argument are as follows. First,

the prosecutor stated: ‘‘It’s interesting that when she was trying to explain

herself to the police officer and to security, she didn’t say anything about

Starr [White], about looking around for Starr [White]; she kept talking about

how she was going to bring the items out into the parking lot for somebody

to check.’’ Second, the prosecutor stated: ‘‘And as jurors and as citizens of

this state, one has to use one’s common sense in deciding just how logical

were the defenses that were put forward by the defendant in this case

through the police officer and the security officer. She didn’t say, by the

way, I was going to pay for them later. She simply said, I was bringing them

outside to the parking lot so somebody could look at them.’’

6 The prosecutor stated: ‘‘It’s interesting that when she was trying to

explain herself to the police officer and to security, she didn’t say anything

about Starr [White], about looking around for Starr [White]; she kept talking

about how she was going to bring the items out into the parking lot for

somebody to check.’’

7 White and Taylor testified during the defendant’s case. Essentially, both

of these witnesses testified that they were at Walmart with the defendant

on January 3, 2013. In relevant part, Taylor testified that, after he, the

defendant and White went into the store, he became separated from the

others and decided to wait in an automobile in the parking lot with his son.

He testified that, later, he observed the defendant in the back of a police

cruiser. White testified that she ‘‘dropped [the defendant] off’’ at the store

to do some shopping and that she intended to bring an item belonging to

the defendant into the store, which the defendant wanted to return at the

customer service counter. White testified that she left the item in her automobile. After spending some time inside of the store, White went outside to

retrieve the item. At this time, she observed the defendant sitting in the

back of a police cruiser. White testified that she attempted to speak with

the defendant, but the police told her to get away. Neither witness testified

that he or she had the opportunity to observe the events underlying the

defendant’s detention and subsequent arrest.

8

In her appellate brief, the defendant acknowledged that she ‘‘did tell

[Vargas] that she was taking the items outside to show someone the items

. . . .’’ For this reason alone, it is difficult to comprehend what prejudice,

if any, the prosecutor’s argument could have caused the defendant.