State v. McNeil

154 Conn.App. 727

106 A.3d 320

STATE of Connecticut

v.Jerry McNEIL.

No. 34491.

Appellate Court of Connecticut.

Argued Nov. 13, 2014.

Decided Jan. 13, 2015.

Scott Jongebloed, certified legal intern, with whom were Timothy H. Everett, assigned counsel, and, on the brief, Kurt Young and Erica Barber, certified legal interns, for the appellant (defendant).

Maria del Pilar Gonzalez, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Alexander C. Beck, assistant state's attorney, for the appellee (state).

ALVORD, MULLINS and BEAR, Js.

Opinion

MULLINS, J.

The defendant, Jerry M.L.K. McNeil, appeals from the judgments of conviction, rendered following a jury trial, of possession of narcotics in violation of General Statutes § 21a–279 (a), possession with intent to use drug paraphernalia in violation of General Statutes § 21a–267 (a), and larceny in the sixth degree in violation of General Statutes § 53a–125b.¹ The defendant claims that (1) the evidence was insufficient to sustain his convictions; (2) as applied to the facts of this case, § 21a–279 (a) is unconstitutionally vague; and (3) there is a reasonable possibility that the court misled the jury when it gave an inadequate response to a jury question. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On the evening of September 9, 2011, Officer David Goncalves of the east central narcotics task force of the Glastonbury Police Department (department) was on patrol in an unmarked police vehicle. Goncalves had been trained in undercover narcotics work, including classes in drug paraphernalia and cocaine, and had made hundreds of narcotics related arrests. At approximately 9:30 p.m., as Goncalves was patrolling Main Street, he saw two men talking to the defendant, who was in the driver's seat of a vehicle bearing Colorado license plates. The two men were standing outside of the vehicle. The vehicle was in an unlit parking lot next to some businesses that were closed. Goncalves checked the vehicle's registration through the Department of Motor Vehicle's files, which revealed that the vehicle previously had been registered to a female, but that the registration had expired more than one year prior. At that point, Goncalves saw the two men enter the vehicle, and the defendant drove away. Goncalves then initiated a motor vehicle stop on Main Street. For safety reasons, Goncalves also called for backup.

When Goncalves approached the vehicle, he explained the reason for the stop and asked the defendant for his driver's license, the vehicle's registration and his insurance card. The defendant produced a valid Colorado driver's license and an expired insurance card, but he had no registration for the vehicle. He told Goncalves that he owned the vehicle, having purchased it at an auction. Goncalves then asked the defendant if anyone else had use of the vehicle, and the defendant said no. Per department policy, Goncalves told the defendant that the vehicle would have to be towed, and he proceeded to conduct an inventory search of the vehicle to collect any high value items for safekeeping. In the trunk of the vehicle, Goncalves found Connecticut registration plates, which the Department of Motor Vehicles had listed as stolen approximately seven or eight days prior. He also found what appeared to be a miniature CD case, which actually was a digital scale, containing what Goncalves suspected to be cocaine residue.² Goncalves knew through his experience and training that the purpose of these types of scales is for weighing narcotics in order to sell them. Goncalves secured the evidence, the defendant's vehicle was towed, and the defendant was arrested.

The scale was sent to the state's controlled substance laboratory for the Department of Emergency Services and Public Protection, where testing was conducted by a chemist, Laura Grestini. Prior to the testing, Grestini saw a small amount of white powder on the scale when she opened it. She tested that substance, and the testing confirmed that the white powder, in fact, was cocaine.³

Following a jury trial, the defendant was convicted of possession of narcotics, possession with intent to use drug paraphernalia, and larceny in the sixth degree.⁴ This appeal followed.

I

On appeal, the defendant first claims that the evidence was insufficient to sustain his convictions of (A) possession of narcotics and possession with intent to use drug paraphernalia, and (B) larceny in the sixth degree. He argues: “The evidence was insufficient to prove beyond a reasonable doubt that [he] had dominion and control over the items in the trunk, that he knew they were there, that he knew that there was residue on the scale, and that he knew that the residue was cocaine.”

The defendant further argues that the state's case was weak: “There was no evidence establishing when the defendant purchased the vehicle at auction or the identity of the registered owner of the vehicle.⁵ There was no evidence presented as to the make of the vehicle, or the layout of the interior of the vehicle. There was no evidence whether the trunk of the vehicle was accessible from the passenger compartment. There was no evidence whether the trunk locked or was accessible only with a key. The state did not offer any fingerprint evidence of the items in the trunk.... In sum, there was minimal evidence in this case from which to infer that the defendant knew of and possessed the stolen marker plate[s], drug paraphernalia and cocaine on the paraphernalia in the trunk of the vehicle he was driving.” (Citation omitted; emphasis altered; footnote added.) We conclude that even if the evidence “was minimal,” it was sufficient.⁶ See generally State v. Varela, 115 Conn.App. 531, 537, 973 A.2d 156 (scant evidence sufficient to sustain conviction), cert. denied, 294 Conn. 913, 983 A.2d 852 (2009).

“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 [trier of fact] 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 [trier's] factual inferences that support a guilty verdict need only be reasonable.” (Internal quotation marks omitted.) State v. Jordan, 314 Conn. 89, 106–107, 101 A.3d 179 (2014).

“[An] appellate court's first task, in responding to a claim of evidentiary insufficiency, is to apply the traditional scope of review to the evidence. That requires that ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier's] verdict.... We note that a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 77, 993 A.2d 970 (2010).

A

The defendant claims that the evidence was insufficient to sustain his conviction of possession of narcotics and possession of drug paraphernalia for two reasons. First, he argues that there was no evidence that he was aware of anything in the trunk, including the scale or what was on the scale. Thus, he contends that the evidence did not support the jury's conclusion that he knowingly possessed the items located in the trunk.

Second, the defendant argues that, even if there had been evidence sufficient to establish that he was aware of the contents of the trunk, including the scale, his simply being aware of the scale, standing alone, was insufficient to support a conviction for possession of narcotics. More specifically, the defendant argues that, because the scale contained only a tiny, unmeasurable or microscopic amount of cocaine residue, that miniscule amount, by itself, was insufficient to prove that he knowingly possessed narcotics because, in this case, a chemist had to use sophisticated testing methods to ascertain that the substance, in fact, was cocaine. He explains that he is not arguing that residue on a scale could not satisfy the “any quantity” aspect of § 21–279(a), but, rather, that he is arguing that there needs to be more than just mere microscopic residue to demonstrate that a suspect knew that the residue was on the scale and knew the narcotic character of the residue. We are not persuaded.

Section 21a–279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

Section “21a–279 (a) neither contains nor implies any minimum amount or usability exception to its prohibition against the possession of illegal narcotics.” State v. McCarthy, 25 Conn.App. 624, 629, 595 A.2d 941, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991). Nevertheless, in McCarthy we explained that “[a]lthough we are mindful of the ... concerns about...