State v. Lewis

303 Conn. 760

36 A.3d 670

STATE of Connecticut

v.Demetrice L. LEWIS.

No. 18369.

Supreme Court of Connecticut.

Argued Sept. 7, 2011.Decided Feb. 28, 2012.

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brian Leslie, assistant state's attorney, for the appellant (state).

Pamela S. Nagy, special public defender, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.^*McLACHLAN, J.

A jury found the defendant guilty of the following four crimes: (1) possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b); (2) possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a–278a (b); (3) possession of drug paraphernalia with intent to use in violation of General Statutes § 21a–267 (a); and (4) possession of drug paraphernalia with intent to use within 1500 feet of a school in violation of § 21a–267 (c). The Appellate Court reversed the judgment of conviction as to all four charges due to the trial court's failure to instruct the jury on specific intent. State v. Lewis, 113 Conn.App. 731, 740, 749, 967 A.2d 618 (2009). Additionally, concluding that the record contained insufficient evidence to support the conviction of the second and fourth charges and, as a result, that a new trial would violate the double jeopardy clause, the Appellate Court remanded the case for a new trial on the first and third charges, but directed the trial court to render judgment of not guilty of the second and fourth charges. Id. In this certified appeal, the state challenges only the Appellate Court's insufficiency determination and remand order with respect to the second and fourth charges. To determine whether the defendant should be subject to retrial for violating §§ 21a–278a (b) and 21a–267 (c), and, thus, whether the remand order was proper, we must review: (1) whether the evidence of the defendant's intent to sell narcotics within the prohibited area was sufficient to convict the defendant under § 21a–278a (b); and (2) whether there was sufficient evidence in the record to classify the school in question, the Timothy Dwight School, as an elementary or secondary school under § 21a–267 (c).¹ We conclude that the Appellate Court properly held that there was insufficient evidence to support the defendant's conviction under § 21a–278a (b), but improperly held that there was insufficient evidence to support his conviction under § 21a–267 (c). Accordingly, we affirm in part and reverse in part the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. “On June 3, 2005, at approximately 8:24 p.m., officers of the New Haven police department, including Luis Rivera, were dispatched to the intersection of North Frontage Road and Orchard Street after having received complaints of a robbery with a weapon at that location. The robbery suspects were described as three seventeen to eighteen year old men, one wearing a gray hooded sweatshirt and white ‘uptown’ sneakers, and the other two wearing black hooded sweatshirts and blue jeans. In the area of 49 Waverly Street, Rivera and another officer stopped and detained the defendant, who was riding a bicycle and wearing dark clothing, and Joshua Williams, who was walking and wearing a gray hooded sweatshirt. Rivera stopped Williams and the other officer stopped the defendant, who had started to pedal his bicycle away as Williams was being detained.

“Rivera conducted a warrant check on the defendant and found that there was an active warrant for his arrest. Rivera placed the defendant under arrest and conducted a thorough [pat down] of his person. Rivera discovered a clear sandwich bag in the defendant's pocket within which there were nineteen Ziploc bags, each containing a white, rock like substance, which a field test revealed to be crack cocaine. Rivera also found $116 in the defendant's front pocket, $160 in another pocket within the front pocket and $600 in his rear pocket. The money was in denominations of twenty, ten, five and one dollar bills. In the defendant's rear pocket, Rivera also found a razor blade and a paper bag containing medium and small Ziploc bags. Thereafter, the defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school.

“At trial, Michael Wuchek, a detective with the New Haven police department, testified as an expert witness on the street level sale of narcotics. He opined that the quantity of narcotics, the packaging of the narcotics, the empty bags, the razor blade and the small denominations of money found in the defendant's pockets were consistent with the street level sale of $10 bags of crack cocaine. Wuchek also testified that street level dealers often work in teams at a specific location, that a lookout riding on a bicycle commonly would be employed during a street level sale to identify customers or the police and that street level dealers typically would attempt to run away to avoid the police.

“Anwar Houwari, a civil engineer and projects manager and record keeper in the engineering department of the city of New Haven, also testified. After examining an engineering map of the city of New Haven, Houwari determined that the distance between the Timothy Dwight School and 49 Waverly Street, where the defendant was stopped, was 1050 feet.” Id., at 733–35, 967 A.2d 618.

In his appeal to the Appellate Court, the defendant challenged his conviction, claiming that: (1) the trial court improperly failed to instruct the jury on specific intent, which was relevant to all four charges; (2) there was insufficient evidence of the defendant's specific intent to sell narcotics at any particular location as required by § 21a–278a (b); and (3) there was insufficient evidence of whether the Timothy Dwight School was a “public or private elementary or secondary school” as required by both §§ 21a–267 (c) and 21a–278a (b). With respect to the defendant's first argument, the Appellate Court concluded that the trial court instructed the jury on general intent but did not define specific intent, even though all of the crimes at issue were specific intent crimes. State v. Lewis, supra, 113 Conn.App. at 739, 967 A.2d 618. Consequently, the failure to instruct the jury on specific intent constituted reversible error. Id., at 740, 967 A.2d 618.

The Appellate Court then reviewed the sufficiency of the evidence supporting the defendant's conviction of §§ 21a–278a (b) and 21a–267 (c) to determine whether retrial on those counts would violate the prohibition against double jeopardy.² Upon review of the record, the Appellate Court concluded that there was insufficient evidence that the defendant intended to sell narcotics at a location that was within 1500 feet of a school. Id., at 749, 967 A.2d 618. Because intent to sell at a particular location is an element of the crime of possession of narcotics with intent to sell within 1500 feet of a school in violation of § 21a–278a (b), retrial on that charge was barred. Id., at 745, 967 A.2d 618. A majority of the court additionally concluded that the defendant could not be retried on that charge or on the charge of possession of drug paraphernalia with intent to use within 1500 feet of a school in violation of § 21a–267 (c) because there was insufficient evidence that the Timothy Dwight School was an elementary or secondary school, an element of both offenses. Id. Consequently, the Appellate Court directed the trial court to render judgment of not guilty of violating §§ 21a–267 (c) and 21a–278a (b).³ This certified appeal followed. Additional facts will be set forth as necessary.

The state argues that the Appellate Court improperly concluded that the evidence was insufficient to support the defendant's conviction under §§ 21a–278a (b) and 21a–267 (c) because the record establishes: (1) that the defendant intended to sell the narcotics in his possession at the particular location where he was apprehended; and (2) that this location was within 1500 feet of an elementary or secondary school. We address each of the state's claims in turn.

The two part test this court applies in reviewing the sufficiency of the evidence supporting a criminal conviction is well established.⁴ “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.” (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 599–600, 594 A.2d 459 (1991).

“In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.” State v. Delgado, 247 Conn. 616, 620, 725 A.2d 306 (1999). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to 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. Grant, supra, 219 Conn. at 604, 594 A.2d 459. The rule does not require that “each subordinate conclusion established by or inferred from evidence, or even from other inferences, be proved beyond a reasonable doubt.” State v....