*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
STATE OF CONNECTICUT v. TREIZY LOPEZ

(AC 42146)

DiPentima, C. J., and Lavine and Beach, Js.

Syllabus

Convicted, following a jury trial, of attempt to commit robbery in the first

degree and conspiracy to commit robbery in the first degree, the defendant appealed to this court. Held that the defendant could not prevail on

his claim that the trial court improperly admitted uncharged misconduct

evidence regarding a separate robbery as the defendant failed to meet

his burden of establishing harmful error: the state presented evidence

beyond the uncharged misconduct evidence that overwhelmingly identified the defendant, including surveillance video and eyewitness identification as well as physical evidence linking the defendant to the gun

that was used in the attempted robbery and the defendant stated to the

police that he and his accomplice had intended to commit robberies

and were present in the store where the attempted robbery took place;

moreover, the trial court instructed the jury several times that the

uncharged misconduct evidence could be considered only for purposes

of identification and a jury is presumed to follow limiting instructions

in the absence of contrary evidence.

Argued November 21, 2019—officially released July 14, 2020

Procedural History

Amended information charging the defendant with

felony murder, attempt to commit robbery in the first

degree, and conspiracy to commit robbery in the first

degree brought to the Superior Court in the judicial

district of Fairfield and tried to the jury before Kavanewsky, J.; verdict and judgment of guilty of attempt

to commit robbery in the first degree and conspiracy

to commit robbery in the first degree, from which the

defendant appealed to this court. Affirmed.

Robert L. O’Brien, assigned counsel, with whom, on

the brief, was Christopher Y. Duby, assigned counsel,

for the appellant (defendant).

C. Robert Satti, Jr., supervisory assistant state’s

attorney, with whom, on the brief, were John C. Smriga,

state’s attorney, and Aaron Simkovitz, certified legal

intern, for the appellee (state).
Opinion

BEACH, J. The defendant, Treizy Lopez, appeals from

the judgment of conviction, following a jury trial, of

attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2),

and conspiracy to commit robbery in the first degree

in violation of General Statutes §§ 53a-48 and 53a-134

(a) (2).1 On appeal, the defendant claims that the court

improperly admitted uncharged misconduct evidence

of a separate robbery. We conclude that the defendant

has not met his burden of establishing harmful error.

Accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On April 11, 2015, the defendant met with his

friend, Leighton Vanderberg. They drove to Bridgeport

in a light green Ford Focus owned by Vanderberg’s wife

to ‘‘hit a stain to get some money.’’2 At approximately

3 p.m., the defendant and Vanderberg entered Sapiao’s

Grocery store in Bridgeport. The defendant went to the

counter, where Maria Salgado (Maria) was located, and

Vanderberg went to the back of the store where he

confronted Jose Salgado (Jose).3 Maria testified that

the defendant, who was wearing a black mask, pointed

a gun at her and told her not to talk or move. Meanwhile,

Vanderberg, who also had a gun, approached Jose and

demanded that he give him the $900 that Jose was

holding. Speaking in Portuguese, Jose requested that

Maria retrieve his gun located behind the counter. As

she was reaching for the gun, Vanderberg shot Jose

three times. Two bullets entered his body, one in the

neck and the other in his right upper shoulder, which

‘‘went through the muscles of the upper arm and shoulder area and then continued into . . . the chest where

it went into the chest cavities and [injured] the right

lung, as well as the pulmonary artery . . . and then it

continued and it injured the left lung, as well.’’ The

bullet that injured the chest and torso was fatal.4 Thereafter, the defendant and Vanderberg fled the store and

drove to New Haven where they planned to commit a

second robbery at the Smokin’ Wings restaurant.5

Officers from the Bridgeport Police Department subsequently were called to the scene at Sapiao’s Grocery.

During their investigation, the police obtained video

surveillance from surrounding stores. The videos

revealed that the defendant had purchased items from

a nearby market shortly before the robbery. The videos

further showed the defendant and Vanderberg entering

Sapiao’s Grocery, fleeing, and driving away in a green

Ford Focus, which had been parked nearby.6

The defendant also was identified by a witness who

saw the two men flee the store. She testified that ‘‘[o]ne

of [the men] was tall [with darker skin] and the other

. . . was wearing some type of mask. . . . [The man

wearing the mask] had light[er] skin. He wasn’t too
dark and he wasn’t too fair.’’ The witness further

described the lighter skinned man as having longer

black hair that went down to his neck.

Later that day, New Haven police officers found a

gun in a trash can in New Haven. The gun was sent to

the state’s forensic laboratory for testing. The forensic

firearms examiner concluded that the bullets and bullet

fragments recovered from Jose’s body during an

autopsy matched test samples fired from the gun that

had been recovered by the New Haven police.7 The

forensic DNA examiner concluded that the defendant

was a DNA contributor to samples found on multiple

locations on the gun, including the gun’s grip, trigger,

and hammer.8

On April 27, 2015, Bridgeport police detectives

arrested the defendant and conducted an interview,

which was video recorded, and, ultimately, shown to

the jury. During the interview, the defendant admitted

to participating in the robbery.9 The defendant further

described the type of gun that he had used during the

robbery10 and what happened to the gun after the robbery.11 He also admitted to changing his physical

appearance after the day of the robbery.12 The defendant

was charged with felony murder in violation of General

Statutes §§ 53a-54c, attempt to commit robbery in the

first degree in violation of §§ 53a-49 and 53a-134 (a) (2),

and conspiracy to commit robbery in the first degree

in violation of §§ 53a-48 and 53a-134 (a) (2).

On May 2, 2018, the defendant filed a pretrial motion

in limine seeking to preclude the state from presenting

‘‘any and all evidence regarding a robbery/shooting

investigation of a commercial establishment called

‘Smokin’ Wings’ in New Haven . . . on April 11, 2015

. . . .’’13 He argued that the evidence was irrelevant and

unduly prejudicial. The state objected to this motion.

On May 15, 2018, after conducting a hearing, the court,

Kavanewsky, J., denied the defendant’s motion, subject

to reargument, stating: ‘‘Okay, at this point, I’m going

to deny the motion to preclude. . . . [Y]ou’ve got the

Bridgeport homicide, that’s the one the defendant is

charged with participating in. Very, very close in time,

we have the Smokin’ Wings [robbery], same day, within

a matter of hours. The weapon that was used in the

Bridgeport homicide was used in the Smokin’ Wings

[robbery] and was recovered by the police, identified

to be the . . . Bridgeport homicide weapon. There’s

DNA of the defendant on this weapon.

‘‘In the Smokin’ Wings [robbery] there are three perpetrators supposed to be involved, an African-American

and two either white or Hispanic.

‘‘Now, the state does not have to prove beyond a

reasonable doubt that the defendant participated in the

Smokin’ Wings [robbery], but yet, I think I have to keep

my eye on the ball here, and the question is, is this New
Haven Smokin’ Wings incident and the [gun] and the

. . . evidence concerning the [gun] relevant to establishing the defendant’s guilt in the Bridgeport homicide.

I think the answer is clearly it’s relevant. It tends to

prove a fact that’s in issue. It doesn’t have to be conclusive but it’s relevant and I’ll consider a limiting instruction concerning what you may object to being adduced

about what happened within Smokin’ Wings but I’m not

going to just outright preclude that . . . I think all of

this is relevant to the charge of the defendant’s guilt

of the felony murder in Bridgeport . . . . I think it’s

admissible evidence.’’

During trial, on May 23, 2018, the state proffered

evidence of the Smokin’ Wings robbery for the purposes

of establishing identity, outside the presence of the

jury. The defendant renewed his initial objection to the

admission of the evidence. The court concluded that

the evidence ‘‘should be . . . admitted for purposes

of the jury’s consideration that the defendant was a

perpetrator in the charged offense here in Bridgeport.’’

Evidence regarding the robbery at Smokin’ Wings was

then presented to the jury.

On May 31, 2018, the defendant was convicted of

attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree.14 The

court sentenced the defendant to a total effective sentence of thirty years of incarceration, ten years of which

were mandatory, followed by a period of special parole

for five years. This appeal followed.

The defendant claims that the trial court improperly

admitted evidence of the separate robbery at the

Smokin’ Wings restaurant in New Haven. He argues that

(1) the evidence of the Smokin’ Wings robbery was

not relevant or material to any uncharged misconduct

exception pursuant to § 4-5 (c) of the Connecticut Code

of Evidence, (2) the prejudicial effect of evidence of

the Smokin’ Wings robbery outweighed its probative

value, and (3) the admission of this evidence was harmful error.

We have no need to consider whether the admission

of evidence of misconduct at the Smokin’ Wings restaurant was improper, because the evidence was emphatically harmless. See State v. Osimanti, 299 Conn. 1,

18, 6. A.3d 790 (2010) (no abuse of discretion analysis

conducted when concluding that trial court’s evidentiary rulings were harmless). The evidence was proffered and admitted on the ground that it was relevant

to identification, that is, that it tended to show that the

defendant participated in the robbery at the Sapiao’s

Grocery. The court instructed the jurors several times

that they could consider the evidence only for the purpose of identification.15

Other evidence overwhelmingly established identification. The jury could have found that the defendant’s
DNA was on the gun that fired the fatal bullets. Surveillance video and eyewitness’ descriptive testimony confirmed the identification. Furthermore, the defendant

himself stated to the police and testified that he and

Vanderberg had intended to commit robberies and that

they were present in Sapiao’s Grocery.16

The defendant claims evidential rather than constitutional error; he, thus, has the burden on appeal of showing harmful error. ‘‘[W]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears

the burden ofdemonstrating that the error was harmful.

. . . [W]e must examine the impact of the [improperly

admitted] evidence on the trier of fact and the result

of the trial. . . . [T]he proper standard for determining

whether an erroneous evidentiary ruling is harmless

should be whether the jury’s verdict was substantially

swayed by the error. . . . Accordingly, a nonconstitutional error is harmless when an appellate court has a

fair assurance that the error did not substantially affect

the verdict. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot

be considered harmless. . . . That determination must

be made in light of the entire record [including the

strength of the state’s case without the evidence admitted in error].’’ (Internal quotation marks omitted.) State

v. LeBlanc, 148 Conn. App. 503, 508–509, 84 A.3d 1242,

cert. denied, 311 Conn. 945, 90 A.3d 975 (2014).

The defendant argues that because the jury returned a

split verdict, finding him not guilty of the felony murder

charge but guilty of both robbery charges, the state’s

case against him was ‘‘close’’ and, therefore, the admission of evidence of the Smokin’ Wings robbery ‘‘cannot

be said to have not substantially affected the verdict.’’

(Emphasis in original.) He argues that, ‘‘after carefully

considering the evidence, the jury refused to find that

all the elements of felony murder were proven beyond

a reasonable doubt. . . . The fact that the jury split its

verdicts after hearing [evidence of the Smokin’ Wings

robbery] and considering it to the point that it entered

at least one acquittal further shows how close this case

was.’’ According to the defendant, the purported weakness in the state’s case contributed to the harmfulness

of the uncharged misconduct evidence. The defendant

does not claim that there was insufficient evidence to

support his conviction.

To support his assertion that the jury had doubts

concerning the strength of the state’s case, the defendant cites State v. Angel T., 292 Conn. 262, 294–95, 973

A.2d 1207 (2009).17 In Angel T., our Supreme Court

determined that where there was no physical evidence

introduced concerning a sexual assault and the jury

twice reported to the court that it was deadlocked in

making its decision, ‘‘the state’s case was not sufficiently strong so as to not be overshadowed by the

[harmful error].’’ Id., 293. The court held: ‘‘[T]he lack
of physical evidence of sexual assault . . . rendered it

a credibility contest between the defendant and his

accusers, and the jury’s deadlock, followed by a split

verdict, leads us to believe that the state’s evidence did

not overwhelm the jury, indicating that the jury may

well have been unduly influenced by the [harmful

error].’’ Id., 295.

In the present case, the jury reported to the court

that it was deadlocked regarding the charge of felony

murder. In a note to the court, the jury stated: ‘‘[T]he

jury has—I think it’s found—found consensus on charge

two [(attempted robbery)] and [charge] three [(conspiracy to commit robbery)] and is divided on charge one

[(felony murder)]. Jury members have indicated unwillingness to change.’’ Shortly before the jury was released

for the day, the foreperson indicated that ‘‘[he] just

would prefer to have redacted the note.’’ He clarified:

‘‘I sent it out too early and I don’t really want the court

to address [it], if that makes sense. . . . I sent the note

out premature[ly] and I—I would wish to—to redact it,

to take it back and not have the court address it.’’ The

next day, the court, acknowledging the note and the

foreperson’s request, instructed the jury to continue its

deliberations. The jury then informed the court that it

had reached a consensus on all counts and delivered

its verdict.

Although the record discloses that the jury briefly

was deadlocked as to one count, there is no indication

of deadlock as to the other two counts, or as to identity

in any event. There was strong physical evidence linking

the defendant to the gun that was used in the robbery,

as well as witness identification and the defendant’s

own admissions. The court instructed the jury to consider the Smokin’ Wings evidence, if at all, only on

the issue of identification. We presume that the jury

followed the instructions of the court. See State v. Paul

B., 315 Conn. 19, 32, 105 A.3d 130 (2014) (in absence

of contrary evidence, appellate courts presume jury

followed limiting instruction). A review of the evidence

in this case, therefore, shows that the evidence of identification was so strong that any error regarding the

admission of evidence concerning Smokin’ Wings was

inconsequential. The defendant has not met his burden

of showing harmful error.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The jury also found that the defendant used a firearm in the commission

of the crime of attempt to commit robbery, and his sentence was enhanced

by application of General Statutes § 53-202k.

2 The defendant testified: ‘‘A stain means we’re going to commit a robbery

or just pretty much get in over on anybody. It doesn’t necessarily have to

be a robbery. It just could be something as easy as, all right, I told you I’m

going to do something for you and I got you for your money. Like, you gave

me money to do something and—I don’t know—like, you [were] going to

buy my car and you gave me the money for my car, but in return I didn’t

sell you the car. I filled out false paperwork. So, pretty much, basically, just

scam somebody for money. That could be considered a stain as well. It’s
just anything—pretty much anything to get some money that—basically,

that’s it.’’

3 The Salgados owned Sapiao’s Grocery.

4 The medical examiner testified: ‘‘I would say that the [bullet] that went

through the torso . . . the trunk, and the lungs, that was, clearly, a fatal

injury.’’ He further testified: ‘‘The cause of death was the gunshot wound

of the trunk.’’

5 During the police interview, the defendant stated: ‘‘[W]e got back to New

Haven . . . [a]nd [Vanderberg] was planning on robbing another store.’’

6 The vehicle also was identified by Augusto Cesar Manazare, who testified

that while he was waiting in his car to do laundry, he saw ‘‘[t]wo guys

running and . . . going into a [light green] car that was parked in front of

[his] . . . house.’’ Although he could not describe the men in detail, he did

identify the light green Ford Focus. Referring to the light green Ford Focus,

Manazare testified: ‘‘That was the car that was parked in front of my house.’’

7 The forensic firearms examiner testified: ‘‘[A]fter a microscopic comparison of the two items to each other and then to test fires that the laboratory

made with this actual firearm there was agreement between the bullets from

the test fires, as well as the two evidence bullets. Enough for an examiner

to say that, yes, these were fired in this gun.’’

8

In regard to the hammer, the forensic DNA examiner testified: ‘‘[The

defendant] is included as a potential contributor to the major DNA profile

from item 3-3G1, which was the hammer. And the expected frequency of

individuals who could be a contributor to this major mixture profile is less

than one in seven billion in the African-American, Caucasian, and Hispanic

population. That’s actually our laboratory ceiling. We won’t report out a

statistic higher than that. We’ve capped it at one in seven billion because

seven billion is approximately the population of the earth.’’

9 The defendant stated: ‘‘So we were driving around Bridgeport and like,

you know, we just going, we just going to get a store. I’m like, but how

[are] we [going to] do it? We can’t just go in there without having a plan.

[Vanderberg’s] like, just do it. We’re just [going to] do it. You can’t think.

You think I’m [going to] be there like it’s just, I don’t even know how to

explain it like, it’s just . . . we got to the store, we got out. . . .’’

He continued: ‘‘[Vanderberg] told me, just do it, just do it, this, that and

a third. . . . So we go in the store, we both got guns. . . . He [goes] behind

the counter, or whatever, I got the gun pointed at the lady. . . . I told her

just, don’t move, nobody is [going to] get hurt, we just want the money. So

she’s sitting there, she’s not replying to nothing at all. She’s just completely

quiet and shocked. . . .

‘‘So, next thing you know, the man come, he over here grabbing whatever

he grabbing, gunshots go off. After that, we run out the store. . . . I’m like,

I’m completely shocked, I don’t know what the fuck [is] going on. I’m

thinking he got [the] money, we [are about] to be good, everything, we just

about to get away. . . .

‘‘We got into the car and we just took off.’’

10 The defendant stated: ‘‘I had a nine millimeter. . . . It was chrome.

. . . [Vanderberg had] a .38 or something.’’

11 When questioned about the location of the guns that were used in the

robbery, he stated: ‘‘I gave it to [Vanderberg]. I really don’t know what he

did with them. But I’m pretty sure they’re gone.’’

12 The following colloquy occurred:

‘‘[Detective Curet]: Your hair was different that day, right?

‘‘[Lieutenant Lamaine]: It was like pretty long. And you had a decent

looking beard, kind of scruffle thing going. When did you shave the head

and the beard?

‘‘[The Defendant]: The same day you talked to me.

‘‘[Lieutenant Lamaine]: That Wednesday morning, that would be the

Wednesday after the homicide.’’

13 The motion did not seek to preclude the physical evidence regarding

the gun recovered by the New Haven police. During the hearing on the

motion, defense counsel stated: ‘‘I think my objection is really—it’s not the

recovery of the firearm or any subsequent testing . . . . I understand that

the court is going to allow the firearm . . . but as far as [what occurred]

inside the store, that would really be my specific objection because the

person in the store cannot tell . . . who fired the firearm . . . . I’m asking

the court to limit that testimony, more so than the actual physical recovery

of the firearm . . . because the owner . . . of that store could not say who

it was.’’

14 The jury found the defendant not guilty of the felony murder charge.
15 The court gave the following limiting instruction at the time the evidence

was admitted: ‘‘You may not consider the Smokin’ Wings evidence as establishing a predisposition on the part of the defendant to commit any crime

charged or to demonstrate criminal propensity. You may consider such

evidence if you believe it and further find it logically and rationally supports

the issue for which its being offered by the state, but only as it may bear

on the issue of the identity of the defendant in the Bridgeport homicide. So

you can consider this evidence of the New Haven matter if you believe it

and only for purposes of your consideration of identity of the defendant in

the Bridgeport homicide.’’

When charging the jury, the court also stated: ‘‘The state . . . offered

[evidence of the Smokin’ Wings robbery] . . . as an alleged act of misconduct of the defendant as it [may] bear upon your consideration of the identity

of the defendant as a perpetrator of the crimes charged in this case. You

may not consider such evidence as establishing a predisposition on the part

of the defendant to commit any of the crimes charged or to demonstrate a

criminal propensity. You may consider such evidence if you believe it and

further to find that it logically and rationally supports the issue for which

it is being offered by the state, but only as it may bear on the issue of

identity of the defendant in the Bridgeport matters. On the other hand, if

you do not believe such evidence, or even if you do, if you find that it does

not logically and rationally support the issue for which it is being offered

by the state—namely, the identity of the defendant—then you may not

consider such [evidence] for any other purpose.’’ We presume that the jury

followed the instructions of the court.

16 The following examination transpired between the prosecutor and the

defendant at trial:

‘‘Q. And the store that you’re talking about, is that Sapiao’s Grocery store?

‘‘A. Yes. It is.

* * *

‘‘Q. And what happens inside the store?

‘‘A. I mean, I walk in the store, [Vanderberg] runs around the counter,

and the next thing you know I just hear arguing. . . .

* * *

‘‘Q. And what happens next?

‘‘A. I just heard gunshots. Like, I heard the arguing. . . . But I didn’t

necessarily hear everything. . . . [T]he main things I remember was just

give me the money or I’mma shoot you.

* * *

‘‘Q. Okay. So, you hear a shot and what do you do?

‘‘A. I froze up. I was completely in shock. . . . I didn’t know what to do.

Like, I didn’t even know what was happening. I thought the lady got shot,

but then I [saw] a man and the man was coming because I couldn’t see.

Like, I knew Vanderberg . . . was arguing with somebody, but I thought,

like—I don’t know. I just couldn’t tell who he was arguing with. I didn’t

know what was going on until after the fact when the shots went off and

there was a man in front of me. And he was, like, clutching his neck and

his chest.’’

17 The defendant also cites State v. Sawyer, 279 Conn. 331, 359–60, 904

A.2d 101 (2006), overruled in part on other grounds by State v. DeJesus,

288 Conn. 418, 953 A.2d 45 (2008), to support the proposition that the state’s

case was not particularly strong. In Sawyer, which involved a sexual assault,

our Supreme Court held that when there is a lack of physical evidence of

the sexual assault, the state does not have a strong case and the admission

of uncharged misconduct is harmful. Id., 359. The present case is distinguishable from Sawyer. Here, there is an abundance of physical evidence linking

the defendant to the robbery as well as the defendant’s admissions. As such,

Sawyer does not apply.