210 Conn.App. 249
Conn. App. Ct.2022Background
- At 5:00 p.m. on Dec. 28, 2016 ShotSpotter detected a gunshot near 17 Vernon St., New Haven; within minutes a caller reported seeing a man (identified as Theodore Jones) with a handgun nearby.
- Officer Marcum arrived about 30 seconds after dispatch and found Jones in a nearby driveway (about three houses from 17 Vernon). Jones was detained, compliant but gave inconsistent explanations; no weapon was found on his person.
- A Yale officer searched the fence line behind the driveway and recovered a .40 Ruger pistol in a snowbank; a bullet fragment was found near 17 Vernon.
- Forensic testing showed the defendant's DNA and fingerprints on the handgun. A search of Jones revealed 139 individually packaged heroin packets and cash; he was charged with possession with intent to sell, criminal possession of a pistol (felon), and carrying a pistol without a permit.
- A jury convicted on all counts. The defendant appealed, arguing insufficient evidence (for possession and carrying), plain error in jury instructions on possession, and improper officer opinion testimony about intent to sell. The Appellate Court affirmed.
Issues
| Issue | State's Argument | Jones's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for criminal possession of a pistol | Circumstantial evidence supports actual possession: ShotSpotter activation, proximity in time/place, evasive conduct, gun discarded over fence minutes later with his DNA/fingerprints | State was required to prove constructive possession because gun was not found on his person | Affirmed—evidence sufficient to infer actual possession, so constructive-possession theory not required here |
| Sufficiency of evidence for carrying a pistol without a permit | Same circumstantial proof supports that Jones carried and fired the gun and then tossed it (carried = bore it on his person) | Insufficient because gun was not found on his person at arrest | Affirmed—jury could reasonably infer he carried the pistol (grasped/held and then discarded it) |
| Plain error in jury instruction (failure to state intent-to-control element for constructive possession) | No plain error; court instructed on actual and constructive possession and the omission relied on a mistaken premise that constructive possession was required | Court plainly erred by omitting that constructive possession requires intent to control | Affirmed—no plain error: state prosecuted on actual-possession theory and instruction on constructive possession was substantially similar to approved charges |
| Admissibility of officers' testimony that packaging indicated intent to sell | Officers properly testified based on training/experience; trial court ruled on foundation and relevance | Testimony impermissibly opined on ultimate issue (intent to sell); objection not preserved | Not reviewed—unpreserved; alternative plain-error argument rejected as not meeting exceptional standard |
Key Cases Cited
- State v. Winfrey, 302 Conn. 195 (2011) (when contraband not found on person the state generally proceeds on constructive-possession theory)
- State v. Rhodes, 335 Conn. 226 (2020) (distinguishes actual and constructive possession definitions)
- State v. Dawson, 340 Conn. 136 (2021) (reversed conviction where constructive-possession evidence was insufficient)
- State v. Fagan, 280 Conn. 69 (2006) (standards on proof beyond a reasonable doubt and appellate review)
- State v. Covington, 184 Conn. App. 332 (2018) (explains difference between carrying a pistol and mere possession under §29-35)
- State v. Coleman, 114 Conn. App. 722 (2009) (state may in some circumstances proceed on actual-possession theory even if contraband not on person)
- State v. Fasano, 88 Conn. App. 17 (2005) (approved jury instructions on constructive possession)
- State v. Elijah, 42 Conn. App. 687 (1996) (similar instruction precedents)