State v. Coleman

971 A.2d 46

114 Conn.App. 722

STATE of Connecticut v. Rory COLEMAN.

No. 29158.

Appellate Court of Connecticut.

Argued January 20, 2009.

Decided June 2, 2009.

Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Terri L. Sonnemann, assistant state's attorney, for the appellee (state).

BEACH, ROBINSON and WEST, Js.

BEACH, J.

The defendant, Rory Coleman, appeals from the judgment of conviction, rendered after a jury trial, of 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 narcotics in violation of General Statutes § 21a-279(a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279(d). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction and (2) the court improperly instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 9, 2005, Robert Burgos and Brenon Plourde, members of the Hartford police department, and Peter Borysevicz, a special agent employed by the federal Drug Enforcement Administration, were members of a Hartford task force assigned to investigate narcotic trafficking crimes in Hartford and its surrounding towns. While conducting surveillance of a house at 24 Florence Street in Hartford, Plourde was parked in an undercover minivan in a parking lot a few streets from the house. A confidential informant previously had provided information to Burgos, Plourde and Borysevicz that crack cocaine was being cooked at the Florence Street location and was being distributed to drug dealers. The informant had told the police that a man later identified as Kendrick Leggett was selling drugs in the neighborhood. The informant had given a physical description of Leggett, who drove a gold Ford Explorer with tinted windows and Massachusetts rental plates.

At approximately 8 p.m., on May 9, 2005, a vehicle matching the description given by the informant arrived at 24 Florence Street. A passenger got out, and the vehicle departed. At approximately 8:30 p.m., the same vehicle entered a parking lot adjacent to the parking lot in which Plourde's minivan was parked. Plourde radioed to Burgos and Borysevicz. He notified them that the gold Explorer was in the parking lot in front of him. Plourde was unable to see into the Explorer.

A few moments later, an Oldsmobile entered the parking lot and stopped next to the Explorer. The driver of the Oldsmobile, later identified as the defendant, left his car and entered the Explorer. When the defendant entered the Explorer, the interior light went on, and Plourde was able to see the driver of the Explorer. The driver matched the physical description of Leggett that had been given by the informant. When the defendant shut the passenger side door, the interior light turned off.

A few moments later, the interior light in the Explorer went on for a second time. Plourde observed the defendant appearing to examine something white in plastic that appeared to Plourde to be crack cocaine or powder cocaine. The defendant held the plastic with the white substance in his hand. Several minutes later, the interior light came on for a third time. Plourde saw the defendant and Leggett counting out money on the dashboard. Plourde notified Burgos and Borysevicz that the occupants of the Explorer were exchanging money. He told them to proceed to the location of the Explorer and to make contact with the individuals inside.

Burgos parked his car directly in front of the Explorer to block it in and to prevent escape. On leaving his vehicle, Burgos pulled out his firearm and instructed Leggett to keep his hands where he could see them. Burgos observed a lot of movement from the driver, and money was "flying all over the place." After opening the door of the Explorer, Burgos found money on the dashboard, on Leggett's lap and in his hands. The amount of cash found on and near Leggett totaled $7700.

Borysevicz parked his car directly in front of the Oldsmobile. Upon leaving the car, Borysevicz drew his weapon and told the occupants of the Explorer to put their hands up. The defendant complied by putting his hands up. Borysevicz observed money totaling $2046 in the defendant's lap and on the floor at his feet. He also found a plastic bag with a quantity of an off-white rock like substance on the floor of the passenger side of the vehicle.

A field test performed on the substance revealed that it was freebase cocaine, also known as crack cocaine. It weighed four and one-half ounces, or 126 grams. The crack cocaine was seized within 1500 feet of the Quirk Middle School, a public school for students in the seventh and eighth grades.

After waiving his Miranda rights,¹ the defendant provided the police with a handwritten, signed statement. He claimed that he met with Leggett to purchase an ounce of crack cocaine. After he handed Leggett $550, Leggett produced a bag of crack cocaine. Immediately thereafter, the police approached the vehicle and told Leggett and the defendant to put their hands up.

The defendant was charged by way of long form information with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278(b), possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b), possession of narcotics in violation of § 21a-279(a) and possession of narcotics within 1500 feet of a school in violation of § 21a-279(d). After a jury trial, the defendant was convicted on all charges except possession of a controlled substance with intent to sell within 1500 feet of a school. The defendant was sentenced to a total effective term of twelve years incarceration, five years mandatory minimum, and three years special parole. At sentencing, the court merged the conviction on both possession of narcotics and possession of narcotics within 1500 feet of a school into the conviction of possession of narcotics with intent to sell. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the state failed to present sufficient evidence to support his conviction of possession of narcotics with intent to sell, possession of narcotics and possession of narcotics within 1500 feet of a school. With respect to all three crimes, the defendant claims that the evidence introduced at trial was insufficient to prove that he had actual or constructive possession of the crack cocaine found by the police. We disagree.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).

"[I]t 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 not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... 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." (Citation omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000).

The only element that the defendant contests is possession. With respect to all three charges on which the defendant was convicted, the state was required to prove beyond a reasonable doubt that he possessed the crack cocaine seized by the police. See General Statutes §§ 21a-278(b), 21a-279(a) and 21a-278a(b). Such possession may be actual or constructive. State v. Williams, 110 Conn.App. 778, 785, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). Both actual and constructive possession require a person to exercise dominion and control over the controlled substance and to have knowledge of its presence and character. State v. Hernandez, 254 Conn. 659, 669, 759 A.2d 79 (2000). Actual possession requires the defendant to have had "`direct physical contact'" with the narcotics. State v. Williams, supra, at 787, 956 A.2d 1176. Typically, the state will proceed under a theory of constructive possession when the narcotics are not found on the defendant's person at the time of arrest, but the accused still exercises dominion and control. See, e.g., State v. Fasano, 88 Conn.App. 17, 25, 868 A.2d 79, cert. denied, 274 Conn. 904, 876 A.2d 15 (2005), cert. denied, 546 U.S. 1101, 126 S.Ct. 1037, 163 L.Ed.2d 873 (2006). The state may in some circumstances proceed on a theory of actual possession, however, even if the defendant did not physically possess narcotics at the exact time of arrest. State v. Ellis T., 92 Conn.App. 247, 884 A.2d 437 (2005); State v. Clark, 56 Conn.App. 108, 741 A.2d 331 (1999). This court, in Ellis T., held that the defendant was in actual possession of narcotics when he dropped them momentarily before being arrested. State v. Ellis T., supra, at 252, 884 A.2d 437. Although the defendant in that case did not physically...