State v. Bowens

982 A.2d 1089

118 Conn.App. 112

STATE of Connecticut v. Robert W. BOWENS.

No. 29134.

Appellate Court of Connecticut.

Argued September 17, 2009.

Decided November 24, 2009.

David B. Rozwaski, special public defender, for the appellant (defendant).

Richard K. Greenalch, Jr., special deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Charles M. Stango, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., and ROBINSON and MIHALAKOS, Js.

ROBINSON, J.

The defendant, Robert W. Bowens, appeals from the judgment of conviction, rendered after a court trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a)(1). On appeal, the defendant claims that the court improperly denied his motions for a judgment of acquittal because there was insufficient evidence to support a conclusion that he constructively possessed a firearm. We affirm the judgment of the trial court.

The court, as the finder of fact, reasonably could have found the following facts. At approximately 2 a.m. on March 5, 2006, Officer Domenic Tartaglia of the Bridgeport police department was helping a stranded motorist on the corner of 5th Street and Stratford Avenue, located in the east side of Bridgeport, when he heard several gunshots fired a few blocks away, in the area of Bunnell Street and Stratford Avenue. Several minutes later, Gilbert DelValle, a sergeant with the Bridgeport police department, spoke with two men on the corner of 6th Street and Connecticut Avenue who stated that they saw a white car leave the area immediately after the gunshots were fired. DelValle used his radio to inform the other officers that the suspect might be driving a white car, and, immediately thereafter, he heard several more gunshots fired a few blocks away. Although the officers canvassed both areas where gunshots were heard, which were only a few blocks from each other, nobody appeared to be injured.

While Tartaglia was canvassing the area in his police car, a white Ford Taurus that was driven by the defendant proceeded in front of Tartaglia on Stratford Avenue. Tartaglia followed the Taurus onto Bunnell Street and then onto Connecticut Avenue, although he waited for backup to arrive before attempting to stop the car. Once DelValle was able to join Tartaglia, Tartaglia activated his emergency lights and stopped the Taurus at the corner of 5th Street and Connecticut Avenue. As Tartaglia and DelValle approached the Taurus, however, it sped away, engaging the officers in a pursuit. Tartaglia proceeded to chase the Taurus down Connecticut Avenue, across 4th Street and up Stratford Avenue until it hit the curb and became disabled when the defendant attempted to negotiate a hard right turn onto Logan Street. The defendant and the passenger then exited the Taurus and ran in different directions. Before fleeing, though, the defendant stood next to the Taurus under a streetlight and in front of the cruiser's headlights and looked at Tartaglia, during which time Tartaglia got a good view of the defendant at a distance of approximately twenty feet.

DelValle then arrived and secured the crash scene while Tartaglia chased the defendant on foot through several backyards and over several fences. Although Tartaglia lost track of the defendant, he was able to inform the other officers over the radio which direction the defendant was headed and that the defendant was wearing a baseball cap, a black jacket and had braids. Roughly fifteen minutes later, Officer Peter Billings of the Bridgeport police department saw the defendant using a pay telephone at the corner of Connecticut Avenue and Waterman Street. The defendant had braids, was wearing a T-shirt, and was bleeding from a leg wound that was visible through his ripped pants. Billings believed it odd that the defendant was wearing only a T-shirt because the temperature was below freezing. Because the defendant matched the description provided by Tartaglia and was not wearing clothing suited to the weather, Billings detained the defendant, who, shortly thereafter, was identified by Tartaglia as the driver of the Taurus whom he had chased.

Contemporaneous with these events, DelValle looked inside the Taurus to discern whether anybody was injured or any weapons were present. In plain view, DelValle observed a bag on the floor in front of the passenger seat that contained 12.5 grams of heroin, which had been divided into fifty-three small envelopes. In the same location was a small bag containing .162 grams of marijuana. Additionally, DelValle observed a .38 caliber shell casing located in plain view on the floor behind the passenger seat. After turning over scene security to another officer, DelValle retraced the chase route to ascertain whether any additional evidence had been discarded. Although neither Tartaglia nor DelValle saw anyone throw anything from the Taurus, DelValle did find a Charter Arms .38 caliber revolver on the sidewalk in front of 734th Street, which was along the chase route. It subsequently was confirmed by Marshall Robinson, an expert firearms examiner, that the shell casing found on the floor behind the passenger seat of the Taurus was fired from the revolver that was found along the chase route. Robinson additionally explained that this revolver does not eject a shell casing after it is fired; the operator must open the cylinder manually and remove the spent shell casing.

The defendant then was arrested and processed, at which time it was revealed that he had $1293 in cash on his person. After being processed, the defendant was interviewed by Santiago Llanos and Sanford Dowling, both detectives with the Bridgeport police department and members of a joint task force involving the federal Bureau of Alcohol, Tobacco and Firearms and the Bridgeport police department.¹ During the interview, the detectives explained that they had information that the defendant's life was in danger because he previously had witnessed the murder of his friend, known as Tookie. The defendant acknowledged that his life was in danger, and he also stated that he had been shot at earlier in the day. He continued by explaining that he had cut his leg jumping over fences in an attempt to get away from the gunshots he had heard fired earlier in the evening. Although the defendant initially stated that he had not been in the Taurus, he modified that statement once he had learned that the car was being checked for fingerprints, admitting that he had been in the Taurus but only for a brief period of time. Additionally, the defendant admitted to the detectives that he knew Quesha Rogers, who had rented the Taurus from the Hertz Corporation the day before.

The defendant was charged in a substitute information with criminal possession of a firearm in violation of § 53a-217 (a)(1); possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a); possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b); possession of a weapon in a motor vehicle in violation of General Statutes § 29-38; and engaging the police in a pursuit in violation of General Statutes § 14-223(b). Although the defendant initially elected a jury trial to resolve all counts, he moved to sever the counts and waived his right to a jury trial on the count of criminal possession of a firearm by a felon. A trial was held between April 10 and 13, 2007, although the court declared a mistrial because the jury inadvertently had been exposed to improper evidence during its deliberations.² After dismissing the jury, the court proceeded to find the defendant guilty of criminal possession of a firearm by a felon. Subsequently, the court denied the defendant's motions for a judgment of acquittal and for a new trial and sentenced him to a term of five years imprisonment, two years of which were mandatory. This appeal followed.

The gravamen of the defendant's arguments is that the court improperly denied his motions for a judgment of acquittal because the evidence did not support his conviction of criminal possession of a firearm. We disagree.

"In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, 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 a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable. . . .

"[A]s we have often noted, proof 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 trier, would have resulted in an acquittal. . . . 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. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is...