STATE v. STOVALL—DISSENT
Supreme Court of Connecticut
Dissenting Opinion
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ESPINOSA, J., dissenting. I disagree with the majority’s conclusion that there was insufficient evidence to support the jury’s verdict that the defendant, Thomas Stovall, intended to sell narcotics within 1500 feet of a public housing project in violation of
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The only issue in this appeal is whether the state presented sufficient evidence that the defendant intended to sell the narcotics that were in his possession at a specific, proscribed location. I begin with the appropriate standards that guide the court’s review. In evaluating a challenge to the sufficiency of the evidence, ‘‘[f]irst, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond reasonable doubt.’’ (Internal quotation marks omitted.) State v. Lewis, 303 Conn. 760, 767, 36 A.3d 670 (2012). Moreover, ‘‘[o]n appeal, we do not ask whеther 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.) Id., 768. ‘‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rationаl trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’’ (Emphasis in original; internal quotation marks omitted.) State v. Taft, 306 Conn. 749, 756, 51 A.3d 988 (2012). Because the issue in the present case specifically concerns whether the state produced sufficient evidence of the defendant’s intent, I also emphasize that ‘‘direct evidence of the accused’s statе 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. Lewis, supra, 770.
The Appellate Court properly concluded that there was sufficient evidence to support the jury’s conclusion that the state proved beyond a reasonable doubt that the defendant intended to sell the crack cocaine that was in his possession within 1500 feet of a public housing project. State v. Stovall, supra, 142 Conn. App. 574. The evidence, in fact, supported the conclusion that the defendant possessed crack cocaine with the intent to sell within the public housing project. The evidence clearly established that the defendant was using Librea Pаtrick’s apartment as his base for selling narcotics in the Charles F. Greene Homes apartment complex, a public housing project (project) in Bridgeport. Patrick’s apartment was located within the project, and the defendant paid her between $20 and $30 per month. In exchange, Patrick allowed him storage space in a closet in the apartment. Patrick further testified that in the three weeks preceding the police raid team’s January 16, 2010 execution of the search warrant on her apartment, the defendant had visited the apartment approximately two to three times per week. Most significantly, Patrick also testified that, during the same time period, roughly coinciding with his visits to her apartment, she observed the defendant outside on the prоject grounds.
The jury properly considered that information in the context of what the police
Detective William Reilly of the Bridgeport Police Department, the evidence officer for the search, testified that, on the basis of his training and experience as a рolice officer, the project was a ‘‘high crime drug trafficking area’’ where the police had made ‘‘hundreds of arrests for narcotics in the past.’’ He further testified that the manner in which the crack cocaine was packaged—individually in ziplock plastic bags in the specific amount he observed each bag to contain—suggested that they were packaged to be resold, and that the street value for the contents of each bag was approximately $10. He also testified that the absence of a crack pipe in the apartment supported the conclusion that ‘‘drugs were being sold out of the house and not smoked.’’
The majority places undue emphasis on the lack of evidence of an actual or attempted sale within 1500 feet of the project. It is true that we have stated that ‘‘evidence of an actual or attempted sale is sufficient to prove beyond a reasonable doubt that a defendant intended to sell narcotics at a particular location.’’ (Emphasis added.) State v. Lewis, supra, 303 Conn. 770. We have never, however, suggested that such evidence is necessary in order for the state to prove intent to sell narcotics at a particular location. On the contrary, we have recognized that even though it is more challenging for the state to satisfy its burden of proof ‘‘[w]ithout evidence of an actual or attempted sale,’’ it is not impossible. Id., 771.
The contrast between the present case and two cases in which we concluded that possession of narcotics within the prоscribed area, without evidence of an actual or attempted sale, was insufficient to establish intent to sell narcotics within the area, illustrates why the state sustained its burden of proof in the present case. Specifically, in both State v. Lewis, supra, 303 Conn. 777, and State v. Hedge, supra, 297 Conn. 621, this court concluded that there was insufficient evidence to establish a defendant’s intent to sell narcotics within a proscribed zone.1
Similarly, in State v. Hedge, supra, 297 Conn. 660, the arresting officer stopped the defendant’s vehicle for a reason unrelated to the sale of a controlled substance in the proscribed area. The officer stopped him merely because he had failed to use a turn signal. Id. Additionally, we observed, ‘‘[t]he state adduced no evidence that the defendant was on his way to [the public housing project], recently had been at [the public housing project], or otherwise had engaged in any activity, suspicious or otherwise, that would give rise to a reasonable inferenсe that he planned to sell drugs at or within 1500 feet of [the public housing project].’’ Id.
Other than suggesting that our decisions in Lewis and Hedge rested on the broad principle that evidence of ‘‘general willingness’’ to sell drugs at the proscribed location if customers should have presented themselves is insufficient to establish possession with an intent to sell at a particular location, the majority does not explain why it believes that the present case is not distinguishable from those cases. Instead, the majority focuses its discussion primarily on Appellate Court decisions. Although I maintain that our decisions, rather than those of the Appellate Court, properly should control, I briefly address the majority’s reliance on State v. Kalphat, 134 Conn. App. 232, 38 A.3d 209 (2012), as well as the majority’s attempt to distinguish the present case from State v. Reid, 123 Conn. App. 383, 1 A.3d 1204 (2010), cert. denied, 298 Conn. 929, 5 A.3d 490 (2010). Contrary to the majority, I conclude that the facts of the present case are much more closely aligned with those presented in Reid, and clearly distinguishable from the facts in Kalphat.
The majority claims that the facts of the present case more closely resemble those of Kalphat. Certainly, there are factual similarities between the two cases, but the majority ignores the crucial difference that distinguishes the present case from Kalphat for the purpose of applying Lewis and Hedge: the defendant in Kalphat was arrested in his home, and all оf the evidence of the defendant’s intent to sell drugs was recovered from his home. State v. Kalphat, supra, 134 Conn. App. 234. That single fact is sufficient to make Kalphat fall squarely within Lewis and Hedge. As I already have explained, the principle on which we relied in
By contrast, in the present case, the defendant was not arrested in his home. He was arrested in the apartment where he paid for the privilege of storing his drugs. The defendant did not live in Patrick’s apartment, and the state produced sufficient evidence to establish that he was not merely passing through. The facts of this case more closely resemble those presented in State v. Reid, supra, 123 Conn. App. 383, at least for the purpose of applying Lewis and Hedge. In Reid, as in the present case, the defendant was arrested in an area known for drug trafficking, and the evidence supported the reasonable inference that the defendant’s presence in that area was not coincidental. Id., 393–98. In the present case, the project, like the parking lot in Reid, was an area known to be a ‘‘high crime drug trafficking area’’ where police had made ‘‘hundreds of arrests for narcotics in the past.’’ Additionally, contrary to the majority’s incorrect characterization of Patrick’s testimony, she did not testify that she only saw the defendant ‘‘on his way to or from’’ her apartment. She testified that she saw him on thе project grounds, outside of her apartment, ‘‘around’’ the same times that he had been at her apartment. She never limited her testimony to a statement that she only saw the defendant coming from and going to her apartment. Her testimony regarding the defendant’s presence in the project, outside her apartment, is more than broad enough to support the jury’s reasonable infеrence that the defendant’s presence in Patrick’s apartment was more than merely coincidental. Those facts are sufficient to distinguish the present case from Lewis and Hedge, supporting the conclusion that the facts of the present case, like those in Reid, are sufficient to establish possession with intent to sell within the proscribed area.
On the basis of all of the evidence in the prеsent case, the jury reasonably could have inferred that the defendant used Patrick’s apartment as his base for sell-ing drugs in the project. He kept all of the paraphernalia associated with the sale of narcotics, including packaging materials, cell phones, weapons, razor blades, and the narcotics themselves, in the apartment. He was carrying a significаnt amount of cash in mixed denominations on his person in the middle of the night. The project was known to be a high drug trafficking area. Moreover, Patrick testified that the defendant was there frequently, two to three times per week, and that she had observed the defendant outside the apartment, around the project grounds, on roughly the same days that he visited the
In sharp contrast to both Lewis and Hedge, the defendant in the present case was not merely passing through the projeсt. A frequent visitor to an apartment, unlike an individual in a motor vehicle or on a bicycle, is not ‘‘in transit.’’ Cf. State v. Lewis, supra, 303 Conn. 773. Here, the state produced evidence that the defendant kept everything he needed to sell narcotics in Patrick’s apartment, and, moreover, that he paid for that privilege. As the state aptly observes, the defendant made a conscious business decision to use Patrick’s apartment as his base for his drug activity. Neither the defendant nor the drugs were present in the apartment by chance—both were there by his arrangement. And there was nothing transient about his presence at the project. The state produced evidence that the defendant visited the apartment multiple times per week, and that he was observed outside the apartment arоund the project grounds just as frequently. In contrast to the defendants in Lewis and Hedge, here, when the defendant was at the apartment with more than $1000 on his person, he was not coincidentally passing through. The majority’s conclusion implicitly requires the assumption that the jury should have drawn the unreasonable inference that the defendant, a drug dealer who stored all of his supplies within a housing project that was a high drug trafficking area, would forgo the opportunity to sell his product to readily accessible customers in the project in favor of venturing outside the project to sell his drugs elsewhere. I therefore disagree with the majority’s assertion that the evidence was in equipoise. If the jury credited the state’s witnesses—and we must assume that it did for purposes of this analysis—then the state produсed sufficient evidence to allow the jury to find beyond a reasonable doubt that the defendant kept drugs in the apartment and that he sold drugs in the project, a neighborhood known to be a high drug trafficking area. The mere fact that the jury could have drawn different inferences does not call into question the sufficiency of the state’s evidence.
Accordingly, I respectfully dissent.