53 Conn. App. 690 | Conn. App. Ct. | 1999
Opinion
The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). He claims that the trial court improperly denied his motion to set aside the verdict because the evidence was insufficient to support his conviction. He also claims that the trial court improperly instructed the jury on (1) the difference between direct and circumstantial evidence, (2)
The jury reasonably could have found the following facts. On August 16, 1996, Detectives Ralph Confinante and Daniel Dumkowski observed many individuals entering and exiting a multifamily residence located in Bridgeport at 767 Maple Street, known to be a location where crack cocaine was bought and sold. On the basis of that observation, the detectives sent an informant to the residence to make a controlled purchase of narcotics. On August 27, 1996, the detectives sent the informant back to the same address to make another controlled purchase. On both occasions, the informant purchased narcotics from someone in the residence. The detectives obtained a search warrant for the apartment pursuant to that information.
The detectives, along with other officers from the Bridgeport police department, executed the search warrant on September 5,1996. The officers knocked on the door, received no response and entered the apartment. Confinante entered first and observed two males in the kitchen. He asked two officers to detain those individuals while he continued down a hall. Confinante then saw the defendant exit a bathroom and heard the toilet flush. The defendant was searched and detained. Confi-nante searched the bathroom and found a tom brown paper bag stuck in the bottom of the toilet bowl. Upon closer observation, Confinante discovered that the brown paper bag contained a large plastic bag that contained several small plastic bags. The small bags contained a rock-like substance. Dumkowski counted 172 bags and a field test of its contents revealed the substance to be crack cocaine.
The officers found a total of five individuals inside the apartment: the defendant, Curtis Blue, Marcus Gregory, Sharon Golden and Vanessa Toddmann. They seized
At trial, the defendant testified that he had not committed the crimes charged. Toddmann, who was arrested with the defendant and pleaded guilty to the charge of possession of narcotics with intent to sell, testified that she was the one who had attempted to flush the drugs down the toilet.
I
The defendant claims that his conviction was based on insufficient evidence. The defendant argues that the state relied on ambiguous and inherently unreliable circumstantial evidence to establish possession of the narcotics. He also argues that the evidence was insufficient to prove intent to sell. We disagree.
“Our courts utilize a two part analysis when reviewing a challenge to the sufficiency of evidence. State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). We first review the evidence in the light most favorable to sustaining the guilty verdict.’ Id. We then determine
A
“In order to prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it. . . . Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Thompson, 46 Conn. App. 791, 797-98, 700 A.2d 1198 (1997).
In the present case, there was sufficient indicia of constructive possession to support the defendant’s conviction. The defendant was found in a residence that was known as a place where crack cocaine was used
B
There was sufficient evidence of the defendant’s intent to sell narcotics to support his conviction. “Proof of intent is usually established through circumstantial evidence, from which the jury may draw reasonable and logical inferences. . . . The quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs.” (Citations omitted; internal quotation marks omitted.) State v. Frazier, 39 Conn. App. 369, 379-80, 665 A.2d 142 (1995). “Also indicative of the defendant’s intent to sell narcotics is the manner in which the narcotics are packaged. . . . Evidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell.” (Citations omitted; internal quotation marks omitted.) State v. Glenn, 30 Conn. App. 783, 793, 622 A.2d 1024 (1993).
In this case, there was sufficient evidence to establish that the defendant had an intent to sell the drugs. The
In light of the foregoing, we conclude that there was sufficient evidence for the jury to convict the defendant of possession of a narcotic substance with intent to sell.
II
The defendant next makes three separate claims that the trial court’s instructions were improper. Because these claims were not preserved at trial, the defendant requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
“In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the
A
The defendant first asserts that the trial court inadequately charged the jury on the difference between direct and circumstantial evidence. At jury selection, the trial court gave preliminary instructions on direct and circumstantial evidence. The court also gave the jury instructions on direct and circumstantial evidence after the close of evidence.
The defendant’s claim is reviewable under Golding because the record is adequate for review and the claim implicates the fundamental constitutional right that the state establish guilt beyond a reasonable doubt. State v. James, 211 Conn. 555, 580-81, 560 A.2d 426 (1989); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987). The claim fails, however, because the alleged constitutional violation did not clearly deprive the defendant of a fair trial.
As a threshold matter, we note that the defendant maintains that we should resolve his claim by close scrutiny of the court’s circumstantial evidence instruction in isolation from the remainder of the charge. He argues that because the case was primarily proven by circumstantial evidence and because that instruction diluted the state’s burden of proof, this method of analysis is appropriate. We disagree. State v. Gonzalez, 206 Conn. 213, 227-28, 537 A.2d 460 (1988); State v. Hufford, 205 Conn. 386, 408, 533 A.2d 866 (1987).
“In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role. Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, we -will closely scrutinize the court’s instructions on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof. . . . Unlike intent, such issues as identity and whether the crime charged has occurred, are ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role.” (Citation omitted; internal quotation marks omitted.)
After a review of both the preliminary and final instructions, we conclude that the trial court did not misstate the rule of circumstantial evidence. During its final charge, the trial court stated that “[w]hile you must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying these conclusions need not be proven beyond a reasonable doubt.” The defendant claims that the trial court’s statement of the rule of circumstantial evidence confused and misled the jury and led to a dilution of the state’s burden of proof.
B
The defendant next argues that the trial court improperly instructed the jury on the definition of reasonable doubt and the jurors’ duties on deciding guilt.
The judgment is affirmed.
In this opinion the other judges concurred.
The jury found the defendant not guilty of the tampering with physical evidence charge.
The defendant claims that because Toddmann testified that she had attempted to flush the drugs down the toilet, the jury convicted the wrong person. We find no merit to this claim. “[T]he [jury] is free to juxtapose conflicting versions of events and determine which is more credible. . . . It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject. State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). . . . State v. Foster, 45 Conn. App. 369, 379, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997).” (Internal quotation marks omitted.) State v. Pauling, 47 Conn. App. 483, 487-88, 706 A.2d 981 (1998).
In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. “The first two questions relate to whether a defendant’s claim is renewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Shinn, 47 Conn. App. 401, 409, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).
The trial court instructed the jury as follows: “Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting the fact You may apply the rule of circumstantial evidence. This rule involves the offering of evidence or facts from which you are asked to infer the existence of another fact or set of facts. While you must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying these conclusions need not be proven 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 of the evidence proves the defendant guilty of all of the elements of the crime beyond a reasonable doubt. It is your right to draw inferences if you conclude that the facts you find proven reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork.”
In numerous cases, this court and our Supreme Court have consistently recognized the constitutional inadequacy of a trial court’s instruction that an inference must be not only logical and reasonable, but strong enough so that the jury could find “it is more probable than not that the fact to be inferred is true”; (emphasis in original; internal quotation marks omitted) State v. Whelan, 200 Conn. 743, 755, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); because the charge diluted the state’s burden of proof. See State v. Hufford, supra, 205 Conn. 406-407; State v. Rodgers, 198 Conn. 53, 57-59, 502 A.2d 360 (1985); State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Dullivan, 10 Conn. App. 474, 477-78, 523 A.2d 1353 (1987); State v. Farrar, 7 Conn. App. 149, 152-56, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).
The defendant does not cite to a specific portion of the charge for his claim of inadequate instruction on the jurors’ duties. We, therefore, will consider this claim as a further challenge to the trial court’s instruction as to reasonable doubt.
The trial court gave the following instruction as to reasonable doubt: “Every person, as you know, charged with the commission of a crime is presumed to be innocent until proven guilty. This means that at the time the accused was presented here for trial, he stood before you free from any bias, prejudice or burden arising from his position as the accused, and that so far as you are concerned, he then was innocent and he continues to be innocent until such time as the evidence and the matters produced here in the orderly conduct of the trial satisfy you beyond a reasonable doubt that he is guilty.
“The accused does not have to prove that he did not commit the offense. The state must prove that he did. The presumption of innocence applies to
“A reasonable doubt is not a doubt that is raised by one questioning simply for the salce of a doubt. It is not a surmise or a guess or a speculation or a doubt not founded upon the evidence or lack of evidence. It is not hesitation arising from feelings of sympathy or pity for the accused or his family. A reasonable doubt is one that is based upon reason and which grows out of the evidence or lack of evidence in llie case. A reasonable doubt is one that is reasonable in light of all of the evidence and one that is honestly entertained after a thorough and careful examination of all of the evidence in the case.
“An absolute demonstration of guilt is not required to convict. The demon-st ration of guilt need be only beyond a reasonable doubt, one that a reasonable person can reasonably entertain after a fair evaluation of all of the evidence in the case.
“The state does not have to prove every fact that comes into issue. It is only the essential elements of the crime which I will explain to you that must be proved beyond a reasonable doubt.”