State v. RhodesState v. Rhodes
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Convicted of, among other crimes, criminal possession of a firearm and having a weapon in a motor vehicle, the defendant appealed. The defendant had been driving a car with a passenger, S, a drug dealer with whom the defendant had a long-standing relationship. They drove around for approximately forty-five minutes, stopped at a gas station-convenience store, and then drove for another forty-five minutes. The defendant then stopped the car in the lane of travel as they approached a large, outdoor social gathering, and S exited the car and fired multiple gunshots from a gun he had been carrying. S then reentered the car and instructed the defendant to drive. Police officers witnessed the shooting, and a high-speed police chase ensued, after which the defendant and S were ultimately apprehended. On appeal, the defendant claimed that the state failed to prove beyond a reasonable doubt that she possessed a firearm and, therefore, that there was insufficient evidence to sustain her conviction of criminal possession of a firearm. The defendant also contended that there was insufficient evidence to support her conviction of having a weapon in a motor vehicle. Held:
- There was sufficient evidence from which the jury reasonably could have found that the defendant constructively possessed the firearm that S used in the shooting, as the record contained sufficient circumstantial evidence that the defendant knew that the firearm was in the car and that she was in a position to and intended to control the firearm, and, accordingly, this court upheld the defendant’s conviction of criminal possession of a firearm: the jury reasonably could have inferred that, by the time of the police chase, the defendant knew that the firearm was in the vehicle, the defendant likely knew that S was a drug dealer and that he, therefore, often carried a gun, the fact that the defendant was driving and thereby controlling the car suggested that she was able to and intended to control the firearm, the defendant’s attempt to flee from the police after the shooting indicated a consciousness of guilt stemming from her knowledge of and intent to exercise control over the gun, the jury reasonably could have inferred that the defendant and S were not just close friends but willing partners in a joint criminal venture, and, in view of the fact that there was no evidence indicating that the firearm was anywhere other than in the area of the front seat, the jury reasonably could have inferred that she was physically in a position to exercise control over it; moreover, there was no merit to the defendant’s contention that, because S testified that he had actively sought to conceal the firearm on his side of the car by sitting on it or by keeping it between his seat and the passenger’s side door, her conviction of criminal possession of a firearm could not stand, as the jury was not required to credit the testimony of S, who lacked credibility and whose testimony was at odds with other evidence presented and the relationship between S and the defendant, whose interests were aligned; furthermore, this court declined to adopt the defendant’s position that, because S allegedly had actual possession of the firearm, she could not have constructively possessed that firearm.
- The defendant could not prevail on her claim that there was insufficient evidence to support her conviction of having a weapon in a motor vehicle on the ground that the “knowingly has” element of the statute (
(Rev. to 2013) § 29-38 (a) ) under which she was convicted should be construed to mean “knowingly possesses”: constructive possession of a firearm would support a conviction even under the defendant’s proposed reading of§ 29-38 (a) , as constructive possession requires knowledge and control of the object, and, in light of this court’s conclusion that there was sufficient evidence that the defendant constructively possessed a firearm in connection with her conviction of criminal possession of a firearm, the defendant also must have knowingly possessed that firearmfor purposes of her conviction under § 29-38 (a) ; moreover, the jury’s finding that the defendant constructively possessed a firearm for purposes of her conviction of criminal possession of a firearm rendered any potential instructional error harmless, the trial court did not commit plain error in applying the law concerning the construction of the term “knowingly has” in§ 29-38 (a) that existed at the time of the defendant’s trial, and this court declined the defendant’s request to exercise its supervisory authority over the administration of justice to resolve an issue of statutory construction and evidentiary sufficiency, as that authority is generally reserved for the adoption of procedural rules.
Procedural History
Two part substitute information charging the defendant, in the first part, with the crimes of attempt to commit assault in the first degree, carrying a pistol without a permit, having a weapon in a motor vehicle, interfering with an officer, using a motor vehicle without the owner’s permission and reckless driving, and, in the second part, with criminal possession of a firearm, brought to the Superior Court in the judicial district of Fairfield, where the first part of the information was tried to the jury before Kahn, J.; thereafter, the court, Kahn, J., granted the defendant’s motion for a judgment of acquittal as to the charge of carrying a pistol without a permit; subsequently, verdict of guilty of having a weapon in a motor vehicle, using a motor vehicle without the owner’s permission and reckless driving; thereafter, the second part of the information was tried to the jury before Kahn, J.; verdict of criminal possession of a firearm; subsequently, the court, Kahn, J., rendered judgment in accordance with the verdicts, from which the defendant appealed. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Michael A. DeJoseph, senior assistant state’s attorney, for the appellee (state).
D’AURIA, J. The defendant, Amelia Rhodes, challenges her conviction of criminal possession of a firearm in violation of
As both of the defendant’s claims on appeal challenge the sufficiency of the evidence, we first must construe the evidence in the light most favorable to sustaining the verdict and then determine whether, on the basis of those facts and the inferences reasonably drawn from them, the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. See, e.g., State v. James E., 327 Conn. 212, 218, 173 A.3d 380 (2017). “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 [jury’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Taupier, 330 Conn. 149, 187, 193 A.3d 1 (2018), cert. denied, U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).
With these principles in mind, our review of the record discloses the following relevant facts that the jury could have reasonably found. At the time of the shooting at issue, the defendant and Spann had a relationship going back as many as seven years. Spann had been a drug dealer for much of this time, and, because of the risks involved in that enterprise and the need to coerce payments from customers, he commonly carried a firearm. According to Spann’s testimony, the defendant “[m]aybe” knew he was a drug dealer. Between July 29 and August 17, 2013, the two had once or twice gone together to a rental car agency where Spann had rented a black Chevrolet Impala.
On the afternoon of August 17, 2013, Spann left his home, driving the Impala and carrying a nine millimeter semiautomatic handgun that was not equipped with a silencer. At about 4 p.m., he picked up the defendant at her home. At the defendant’s request, she drove the Impala while Spann sat in the front passenger seat.
The defendant and Spann were together in the car for nearly all of the next ninety minutes. For the first forty-five minutes, the defendant drove “around” with
At about 5:30 p.m., they approached a large outdoor social gathering near a housing complex on Trumbull Avenue in Bridgeport. The defendant stopped the car in the lane of travel rather than driving toward the sidewalk and stopping there. Spann then exited the car, fired multiple gunshots from the weapon, and reentered the car.
After reentering the car, Spann told the defendant to drive. Unbeknownst to them, however, police officers had been stationed nearby and witnessed the shooting. When the officers attempted to block the Impala with their patrol car, the defendant maneuvered around them and continued along Trumbull Avenue with the officers in pursuit. She proceeded to weave between pedestrians, drive past multiple stop signs without stopping and drive at high rates of speed. After a 1.2 mile car chase, the defendant crashed the car as she approached a highway entrance ramp. Spann testified that, during the car chase, the gun was “on the side of [him] . . . in between the seat and the door.”
After the crash, the defendant and Spann fled on foot. The police found the defendant hiding in an unlit sewer in waist-deep water and arrested her. Spann, who initially evaded the police, testified that he disposed of the gun while the police chased him but was arrested after appearing at the Bridgeport police station and falsely reporting that the Impala had been stolen. The police never recovered the gun. Spann pleaded guilty under the Alford doctrine3 to various charges related to this incident and was sentenced. He did not face additional criminal exposure as a result of his testimony at the defendant’s trial. Additional facts will be set forth as necessary.
The record also reveals the following procedural history. The state charged the defendant in a two part substitute information with seven offenses stemming from the incident: (1) attempt to commit assault in the first degree in violation of
After two days of evidence, the trial court granted the defendant’s motion for a judgment of acquittal on the charge of carrying a pistol without a permit, stating that “the court certainly heard evidence from which a jury could conclude that [the defendant] constructively possessed the gun” but not that she had “carried [the firearm] on . . . her person,” as required by
The defendant appealed to the Appellate Court, and the appeal was transferred to this court. See
I
The defendant claims first on appeal that the state failed to prove beyond a reasonable doubt that she “possessed” a firearm and, therefore, that there was insufficient evidence to convict her of criminal possession of a firearm under
“A party challenging the validity of the jury’s verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden.” (Internal quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C., 329 Conn. 745, 754, 189 A.3d 587 (2018). In particular, before this court may overturn a jury verdict for insufficient evidence, it must conclude that “no reasonable jury” could arrive at the conclusion the jury did. State v. Terwilliger, 314 Conn. 618, 660, 104 A.3d 638 (2014). Although “the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense . . .
A
1
A defendant is guilty of criminal possession of a firearm if (1) the defendant “possesses” a firearm, (2) the defendant is a convicted felon, and (3) the firearm is operable.6 The defendant disputes only whether she “possessed” the firearm for purposes of
“ ‘Possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property . . . .”
In particular, and important to the defendant’s claim, we have observed that “[i]ntent 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. James E., supra, 327 Conn. 218. So, too, can knowledge of the contraband and an intent to control it be inferred. See State v. Simino, 200 Conn. 113, 119, 509 A.2d 1039 (1986) (knowledge is “[o]rdinarily” inferred). However, “mere control or dominion over the place in which the contraband is found is not enough to establish constructive possession . . . . [T]he government is required to present direct or circumstantial evidence to show some connection or nexus individually linking the defendant to the contraband.” (Internal quotation marks omitted.) State v. Johnson, supra, 316 Conn. 62. Under the doctrine of nonexclusive possession, more than one person can possess contraband. State v. Williams, 258 Conn. 1, 7, 778 A.2d 186 (2001). However, “[w]here the defendant is not in exclusive possession of the premises where the [contraband is]
2
Notably, the defendant has not raised a claim of vagueness or instructional error. See State v. Luurtsema, 262 Conn. 179, 204, 811 A.2d 223 (2002) (declining to address potential vagueness challenge to criminal statute because “defendant has attacked only the sufficiency of the evidence . . . without reference whatsoever to the constitutionality of the . . . statute”), overruled in part on other grounds by State v. Salamon, 287 Conn. 509, 513–14, 949 A.2d 1092 (2008). She also does not argue, even with respect to her insufficiency claim, that this court should revisit the definition of “constructive possession” that we consistently have applied. In fact, the language we cite appears almost verbatim throughout her brief, which is consistent with both the statutory definition of possession in our Penal Code;
We agree with the United States Court of Appeals for the District of Columbia Circuit that this standard appropriately accounts for the deference we must afford to the jury and the practical problems of proof in the nonexclusive possession context: “[W]e would adhere to that concept in preference to artificial rules restricting evidence-sufficiency rules that would inevitably invade the traditional province of the jury . . . . The judge’s task intensifies . . . when the accused’s relationship to the premises is shared with others, and consequently the problems of knowledge and control intensify. . . . [I]n full recognition of the increased difficulties that the [g]overnment then faces, we reiterate that the sufficiency of the evidence for jury consideration depends upon its capability plausibly to suggest the likelihood that in some discernible fashion the accused had a substantial voice vis-a`-vis the [contra-
B
With respect to the facts of the present case, the defendant’s challenge is to the sufficiency of the evidence in accordance with established Connecticut law. The record clearly entitled the jury to find that the defendant possessed the car she was driving.11 Thus, the issue is whether it was reasonable for the jury to infer that she also possessed the firearm within the car.
A case for constructive possession of a firearm often is necessarily built on inferences, and a jury “may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. James E., supra, 327 Conn. 218. A jury also “may draw factual inferences on the basis of already inferred facts.” (Internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 670, 31 A.3d 1012 (2011).
The “line between permissible inference and impermissible speculation is not always easy to discern.” (Internal quotation marks omitted.) State v. Lewis, 303 Conn. 760, 768, 36 A.3d 670 (2012). “[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis,” but it must suffice to produce “in the mind of the trier a reasonable belief in the probability of the existence of the material fact.” (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 339–40, 746 A.2d 761 (2000). “When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Internal quotation marks omitted.) State v. Lewis, supra, 768–69. We therefore also must bear in mind that “jurors are not expected to lay aside matters of common knowledge or their own observations and experiences . . . . [C]ommon sense does not take flight when one enters a courtroom.” (Citation omitted; internal quotation marks omitted.) State v. Otto, 305 Conn. 51, 70 n.17, 43 A.3d 629 (2012).
Our review of the evidence finds several “circum-
1
There was no serious argument at trial that the defendant lacked knowledge of the gun. At the very least, the jury reasonably could have inferred from the evidence that, by the time of the car chase, the defendant knew that a gun was in the vehicle. Spann exited the car openly carrying the firearm in his hand and fired multiple gunshots within no more than twenty feet of the car. In his testimony, Spann acknowledged that the defendant “[p]robably” heard the gunshots.12 Spann also testified that he got back into the car with the gun. Spann’s testimony was corroborated, in part, by the testimony of the police officers who witnessed the shooting and testified that, immediately after firing his weapon, Spann entered the vehicle.
Additionally, the defendant likely knew Spann was a drug dealer and, therefore, that he often carried a gun. See, e.g., State v. Clark, 255 Conn. 268, 284, 764 A.2d 1251 (2001) (“Connecticut courts repeatedly have noted that [t]here is a well established correlation between drug dealing and firearms” (internal quotation marks omitted)). The jury is permitted to “rely on its common sense, experience and knowledge of human nature in drawing inferences”; State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985); and “may draw factual inferences on the basis of already inferred facts.” (Internal quotation marks omitted.) State v. Coccomo, supra, 302 Conn. 670. On the basis of the defendant’s knowledge that Spann was a drug dealer who often carried a gun, it was not “so unreasonable [an inference] as to be unjustifiable” for the jury to infer that she knew that he possessed a gun in the car. (Internal quotation marks omitted.) Id. This evidence and the inferences that reasonably could be drawn therefrom make it impossible for this court to conclude that “no reasonable jury” could have found that the defendant had knowledge of the gun. Thus, the jury reasonably could have inferred that, at the very least, the defendant became aware that the firearm was in the car after the shooting.
2
Our review of the record in the light most favorable to sustaining the verdict leads us to find at least four circumstances, which the jury could have reasonably relied on, that “tend[ed] to buttress . . . an inference”; (internal quotation marks omitted) State v. Williams, supra, 258 Conn. 7; that the defendant was intentionally
First, the fact that the defendant was driving, and thereby controlling, the car that she knew contained the gun suggests that she was able to and intended to control the gun. Although we are mindful that “mere control or dominion over the place in which the contraband is found is not enough to establish constructive possession”13 and that “some connection or nexus individually linking the defendant to the contraband” is required; (internal quotation marks omitted) State v. Johnson, supra, 316 Conn. 62; the facts and circumstances of this case provided the jury with ample justification to conclude that the defendant’s control of the car, at least in part, supported the jury’s conclusion that she also controlled the firearm. Coupled with other evidence, “[o]ne who owns or exercises dominion or control over a motor vehicle in which [contraband] is concealed may be deemed to possess the contraband.” (Internal quotation marks omitted.) State v. Delossantos, 211 Conn. 258, 277–78, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); see, e.g., State v. Winfrey, 302 Conn. 195, 211, 24 A.3d 1218 (2011) (fact that defendant was driving vehicle in which contraband was found supported inference of constructive possession of that contraband); State v. Bowens, 118 Conn. App. 112, 123, 982 A.2d 1089 (2009) (“defendant was driving the [car] containing the revolver, which itself suggests control of the firearm”), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010); State v. Sanchez, 75 Conn. App. 223, 241, 815 A.2d 242 (“[t]he drugs were found in a car [the defendant] was operating and, thus, had control over”), cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).
Second, after Spann had discharged the weapon, the defendant attempted to evade the police, who had begun pursuit, first in the car and then on foot. The jury reasonably could have found that these attempts at flight, coming right after Spann had fired the gun and gotten back in the car, indicated a consciousness of guilt stemming from her knowledge of and intent to exercise control over the gun, leading the jury to find that she possessed it. Specifically, the jury reasonably could have inferred that her maneuver around the patrol car and the ensuing car chase were deliberate—and successful—efforts to prevent the police from finding the firearm and, thus, exertions of dominion or control over it. See, e.g., State v. Butler, supra, 296 Conn. 79 (defendant’s effort to “conceal” contraband supported inference of control); State v. Bowens, supra, 118 Conn. App. 124 (defendant’s effort to “jettison the revolver” supported inference of control); United States v. Chambers, 918 F.2d 1455, 1458 (9th Cir. 1990) (“[c]onduct by
Notably, because of her prior felony convictions, the defendant had been expressly informed that it was illegal for her to possess a firearm14—a fact the prosecutor highlighted in his closing argument. The jury was asked to view the car chase in the context of the entire afternoon. Evidence about the periods before, during and after the car chase set forth throughout this opinion bolster the conclusion that the defendant—who disclaimed any argument that she acted under duress—was not just passively following orders when she sped away from the police, weaved around pedestrians, and passed multiple stop signs without stopping over the course of 1.2 miles. To the extent that the jury found her high-speed exit from the crime scene was an effort to escape capture, it reasonably could have inferred her consciousness of guilt on the basis of this evidence. See, e.g., State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986). “The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Internal quotation marks omitted.) Id. Particularly in light of her knowledge that it was illegal for her to possess a gun, it was reasonable for the jury to infer that the defendant’s flight was motivated by a belief that she had broken the law by possessing a gun and a desire to escape prosecution for it.
The concurring and dissenting justice takes issue with our conclusion that the record supports the jury’s reasonable reliance on the defendant’s flight as evidence supporting her intent to control the gun. He prefers his own alternative explanation for the defendant’s leading the police on a 1.2 mile high-speed car chase, ending in a crash after which the defendant and Spann fled on foot separately. We are told there are several more benign reasons for her flight, including that she was helping Spann, that she feared Spann, that she feared the police or that she was escaping before another crime she had committed was discovered.15 Defense counsel argued some of these alternative explanations to the jury. In the concurring and dissenting justice’s view, the “least plausible” motive was a desire to exercise control over the gun. To judge the plausibility of these explanations, the concurring and dissenting justice relies on and credits the entirety of Spann’s testimony, which, as we explain in part I B 3 of this opinion, the jury was not required to credit. Even if the record supported the concurring and dissenting justice’s speculative accounting of the defendant’s actions, this court consistently has explained that the possibility of other, innocent “inferences from these facts is not sufficient to undermine [the jury’s] verdict . . . .” (Internal quotation marks omitted.) State v. Otto, supra, 305 Conn. 74. “[I]n viewing evidence [that] could yield
Third, the state’s overarching theory of the whole case was that the defendant intended to facilitate the shooting by acting as Spann’s getaway driver. The prosecutor specifically asked the jury to draw this inference on the basis of evidence of the defendant’s yearslong friendship with Spann. The evidence was not just that she associated with a known criminal. Rather, she had made recent trips to the car rental agency with Spann. Spann trusted her enough to allow her to drive the car he rented in his name on the day of the incident.17 Spann began shooting almost immediately upon getting out of the car, and the defendant waited for Spann to get back in the car after she witnessed the shooting and then drove him from the scene. She could have driven away without him. Instead, she fled from the police, both with Spann and then apart from him, after crashing the car.18 From all of the evidence, the jury reasonably could have inferred that the defendant and Spann were not just close friends but willing partners in a joint criminal venture: specifically, that she was driving him and his weapon to and from the scene of a shooting. “[A] defendant’s knowing participation in a joint criminal venture in which a particular firearm is intended to play a central part permits the jury to reasonably conclude that the defendant constructively possessed that gun. . . . This is true even if the defendant never intended to use the firearm [her]self . . . .” (Citation omitted.) United States v. Perez, 661 F.3d 568, 576–77 (11th Cir. 2011), cert. denied, 566 U.S. 952, 132 S. Ct. 1943, 182 L. Ed. 2d 799 (2012), and cert. denied sub nom. Davila v. United States, 568 U.S. 874, 133 S. Ct. 355, 184 L. Ed. 2d 133 (2012); see, e.g., State v. Williams, 110 Conn. App. 778, 789, 956 A.2d 1176 (driver’s “complicity with the occupants of the car in a criminal enterprise” supported inference of constructive possession), cert. denied, 289 Conn. 957, 961 A.2d 424 (2008); Logan v. United States, 489 A.2d 485, 492 (D.C. 1985) (evidence that driver “acted in concert” with passenger to dispose of firearm supported inference of constructive possession); United States v. Chambers, supra, 918 F.2d 1458 (driver’s conduct “intended to aid a passenger,” and “cooperating” with passenger with actual possession supported inference of constructive possession); United States v. Massey, 687 F.2d 1348, 1354 (10th Cir. 1982) (evidence of “cooperative venture” and “working relationship” supported inference of constructive possession). That the defendant was the getaway driver, spiriting the gun and Spann away from the scene of the shooting, was a reasonable inference from these facts and supports a finding that the defendant intended to control the gun.19
Finally, the defendant sat within arm’s reach of the
On the basis of these four inferences, we cannot conclude that “no reasonable jury” could have found that the defendant was in a position of control over the gun. The concurring and dissenting justice disagrees, arguing that there was no evidence of particular facts—such as that the defendant was involved in Spann’s drug enterprise or that the defendant previously had handled the gun—that would have established a link between the defendant and the gun. Although such facts might have helped to establish constructive possession, the absence of this evidence does not require the conclusion that there was insufficient evidence. See, e.g., State v. Ayala, 333 Conn. 225, 236, 215 A.3d 116 (2019) (although physical evidence linking defendant to murder would have made state’s case stronger, lack of such evidence did not necessarily render state’s case weak).
3
If the defendant were alone in the car and knew a gun was located in the front seat area—for example, if Spann had fired the gun and placed it under the passenger seat of the car, between the seats or in the trash receptacle of the passenger’s door, but did not get in the car, and the defendant sped away—there would be no serious argument that the defendant could not “go and get” the gun and, therefore, that she possessed the gun. However, the defendant responds that Spann’s testimony that he had exclusive possession of the gun prevented the jury from finding that she was in a position of control over the gun. Specifically, she contends that the pains Spann asserts he took to hide the gun
The defendant called Spann as a witness in an effort to exonerate her on the gun possession charge on the basis of his testimony that the gun was with him in the front passenger seat and in his exclusive possession during the entire ninety minutes he and the defendant were in the car before the shooting, as well as after the shooting. Specifically, Spann testified that he actively hid or kept the gun from the defendant all afternoon by sitting on it, holding it or keeping it next to him between the seat and the passenger’s side door. The jury did not have to credit this evidence, however, which was based entirely on the testimony of an unreliable witness and was at odds with the rest of the evidence of the day’s events and the relationship between Spann and the defendant, which suggested that their interests were aligned.
In fact, staking the success of her defense on Spann’s testimony could very well have backfired on the defendant. Spann’s testimony can be seen as a textbook example of a case of a jury exercising its prerogative to “credit part of a witness’ testimony and [to] reject other parts.” Hicks v. State, 287 Conn. 421, 435, 948 A.2d 982 (2008). Specifically, the jury was entitled to credit Spann’s testimony that the gun was located in the area of the front seat while discrediting his claims that he physically held the gun in a way that prevented the defendant from accessing it, such as by keeping it hidden “under [his] lap” the whole time or by holding it “on the side of [him] . . . in between the seat and the door” during the car chase.20
Spann was hardly a credible witness. The jury heard that he previously had lied to the police about the incident (e.g., his false claim that the Impala had been stolen) and heard about his potential biases (e.g., that he only came forward to exonerate the defendant after his own conviction and sentencing and, thus, testified without the threat of additional criminal exposure). The jury also heard several inconsistencies within his own testimony (e.g., his inconsistent responses about whether the defendant knew he had a gun) and the contradictory testimony of other witnesses (e.g., his testimony that he fired the gunshots five to ten minutes after getting out of the car against the testimony of two police officers that he fired almost immediately after getting out of the car). The jury repeatedly was made aware of these credibility issues throughout the questioning and reminded of them during the prosecutor’s summations.
The jury had good reason to question Spann’s credibility: it reasonably could have found his testimony evasive or, at best, ambiguous,21 and his story about the gun’s location not just unbelievable and uncorroborated, but risible. His tale seeking to exonerate the
This is an excellent example of why we repeatedly admonish appellate courts to leave credibility determinations to the jury and not become a “ ‘seventh juror’ . . . .” State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); see id. (“[w]e do not sit as the ‘seventh juror’ when we review the sufficiency of the evidence”). The prosecutor’s examination is peppered with frustration and acerbic exchanges as Spann engaged in evasion, sarcasm or flippancy, or so the jury reasonably could have found. In relevant part, the transcript reads:
“Q. All right. Now, you’re familiar with the sound that firearms make, correct?
“A. Mm-hmm.
“Q. And you’d agree that from twenty feet away, you can hear a nine millimeter being fired?
“A. Probably.
“Q. All right. So, you fired the shots and then get back in the car?
“A. Yeah.
“Q. And when you get back in the car, the gun’s not underneath your—your—the gun’s in your hand, still, when you get back in the car?
“A. Yeah.
“Q. So, at that point, [the defendant] knows you have a gun? Right?
“A. Well—
“Q. It’s a yes or no question.
“A. Maybe.
“Q. Come on. You just fired two or three shots, you get back in the car, you’re yelling at her to go—
“A. I wasn’t yelling—
“Q. You—she knows what you do for a living, right?
“A. I mean, I didn’t yell at her.
“Q. But she knows what you do for a living, right?
“A. Say that again.
“Q. She knows what you do for a living?
“A. Maybe.” (Emphasis added.)
The reader can be forgiven for imagining the jurors’ eyes rolling during this exchange.
In considering this testimony, which the defendant
If the jury in fact rejected Spann’s uncorroborated claim of exclusive possession, not believing that for every moment of the afternoon Spann was carefully holding, sitting on, or secreting the gun in a fashion so that the defendant was never in a position to go and get it, it remains unrefuted that the gun was in the front passenger compartment of the car, within arm’s reach of the defendant. Surely, the jury was not compelled to conclude that the gun magically disappeared just because it disbelieved Spann’s story of his own exclusive possession. The jury was therefore entitled to infer that the defendant would have had access to and control over it.
Thus, under this court’s definition of “possession,” and viewing the evidence in the light most favorable to sustaining the verdict, as we must, we conclude that the facts and inferences reasonably drawn from these facts sufficiently established the defendant’s constructive possession of the firearm beyond a reasonable doubt. “[P]roof 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 [jury], would have resulted in an acquittal.” (Internal quotation marks omitted.) State v. Taupier, supra, 330 Conn. 187. The defendant, the prosecutor and the court each asked the jury to consider whether the defendant could “go and get” the gun. The jury concluded that she could. There is certainly “a reasonable view of the evidence” that
C
Alternatively, the defendant argues that the nonexclusive possession doctrine does not apply in this case because Spann actually possessed the firearm. She maintains that actual possession is exclusive—that is, if one party has actual possession, another party may not also have constructive possession. She cites no authority for this proposition, however, basing this argument on the fact that no Connecticut court has yet applied the doctrine in a scenario involving a third party who actually possessed the firearm. She notes that Connecticut courts have applied the nonexclusive possession doctrine only in situations in which the firearm was unattended or there was evidence that the defendant had actually possessed it previously.
We decline to adopt the defendant’s position. Even if we assume that Spann actually possessed the firearm for the entire afternoon—which the parties dispute, which the jury may very well have rejected, and which we do not decide—we find nothing in the doctrine itself, its policy, or its application in this or other jurisdictions to suggest that it is limited to cases involving constructive possessors only. As a general concept in our criminal law, “[p]ossession may be joint as where two or more persons have dominion and control over the articles involved and where such persons are all acting at the time pursuant to a common purpose.” (Internal quotation marks omitted.) State v. Gabriel, 192 Conn. 405, 422–23, 473 A.2d 300 (1984). More specifically, this court has tacitly recognized on at least one occasion that “circumstances tending to buttress . . . an inference” of constructive possession; (internal quotation marks omitted) State v. Williams, supra, 258 Conn. 7; may arise regardless of who physically holds contraband at a given time, citing favorably to a case in which a defendant constructively possessed contraband when she drove a vehicle but a third party “sitting beside her, had the [contraband] in a gym bag . . . .” United States v. Crockett, 813 F.2d 1310, 1316 (4th Cir.) (cited by State v. Delossantos, supra, 211 Conn. 278), cert. denied, 484 U.S. 834, 108 S. Ct. 112, 98 L. Ed. 2d 71 (1987), and cert. denied sub nom. Crews v. United States, 484 U.S. 834, 108 S. Ct. 112, 98 L. Ed. 2d 71 (1987).25
Outside of Connecticut, courts have applied the nonexclusive possession doctrine in scenarios similar to the present case—namely, to hold that a driver constructively possessed a firearm held by a passenger. E.g., United States v. Richardson, Docket No. 87-5006, 1987 WL 38924, *3 (4th Cir. November 2, 1987); Logan v. United States, supra, 489 A.2d 492. Other courts have gone further, holding that a defendant constructively
II
The defendant’s second claim on appeal is that there was insufficient evidence to support her conviction of having a weapon in a motor vehicle in violation of
The defendant now asks this court to overrule Mebane and to interpret “knowingly has” to mean “knowingly possesses.” She thereby argues that her conviction must be reversed for insufficient evidence, on the basis of her mere knowledge of the firearm’s presence in the Impala. Relying on the same grounds, she alternatively raises claims of instructional error and plain error; see Practice Book § 60-5; and asks this court to exercise its supervisory authority over the administration of justice to reverse her conviction.
Even if we were to assume, without deciding, that “knowingly has” means “knowingly possesses,” constructive possession of a firearm would support a conviction even under the defendant’s proposed reading of the statute. As set forth in part I of this opinion,
Similarly, the jury’s finding that the defendant constructively possessed a firearm under
The judgment is affirmed.
In this opinion MULLINS, VERTEFEUILLE and PRESCOTT, Js., concurred.
D’AURIA, J.