State v. Webster

127 Conn.App. 264

13 A.3d 696

STATE of Connecticut

v.Kenneth WEBSTER.

No. 31005.

Appellate Court of Connecticut.

Argued Oct. 19, 2010.Decided March 15, 2011.

Richard S. Cramer, for the appellant (defendant).Timothy F. Costello, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Devin T. Stilson, supervisory senior assistant state's attorney, for the appellee (state).GRUENDEL, HARPER and MIHALAKOS, Js.HARPER, J.

The defendant, Kenneth Webster, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a–278a (b), possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a–279 (d), possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b), interfering with an officer in violation of General Statutes § 53a–167 (a), tampering with physical evidence in violation of General Statutes § 53a–155 (a)(1) and two counts of possession of narcotics in violation of General Statutes § 21a–279 (a).¹ The defendant claims that (1) the evidence did not support his conviction of sale of narcotics within 1500 feet of a school; (2) with regard to the counts of sale of narcotics within 1500 feet of a school and possession of narcotics with intent to sell, the court improperly instructed the jury as to the intent necessary for the crimes; (3) the court improperly admitted certain testimony from a state's witness; and (4) the court improperly limited defense examination of one of the state's witnesses. We reverse the judgment only as to the defendant's conviction of sale of narcotics within 1500 feet of a school and affirm the judgment in all other respects.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On June 1, 2007, Jeanne Pereira arranged to purchase $80 worth of crack cocaine from the defendant on behalf of other parties. Pereira had a history of obtaining illegal drugs from the defendant. To complete the purchase, the defendant agreed to meet Pereira on Prospect Street in Torrington, behind St. Francis School. At times relevant, St. Francis School was a private school serving students in grades three through eight, and the defendant was not a student enrolled at the school. At approximately 8 p.m., the defendant drove his automobile to the location, and Pereira entered his automobile. The defendant drove away from the location with Pereira, during which time he obtained $80 from Pereira and gave Pereira two bags of crack cocaine as well as several loose pieces of crack cocaine. Consistent with her prior drug purchases from the defendant, Pereira understood that the two bags of crack cocaine were for the parties for whom she was purchasing the crack cocaine; the loose pieces of crack cocaine were meant to compensate Pereira for purchasing the drugs from him. The defendant returned with Pereira to the location near the school. Pereira exited the automobile and walked away. The defendant drove from the scene.

While conducting surveillance, Steve Rousseau and Thomas Rouleau, both sergeants with the Torrington police department, observed some of the activities of the defendant and Pereira. Shortly after Pereira exited the defendant's automobile, the officers detained her and recovered the crack cocaine that the defendant had put in her possession. After Pereira admitted that the defendant had sold the drugs to her, the officers drove to the defendant's residence to await his return.

When the defendant returned home, the officers approached the defendant and identified themselves as police officers. The defendant exited his automobile, began to back away from the officers and raised his hands in a somewhat threatening manner. The defendant ignored the officers' commands despite being told that the officers would use their taser guns if he failed to obey their commands. The officers told the defendant that he was being placed under arrest. The defendant pulled away from Rousseau as Rousseau attempted to handcuff the defendant. When the defendant reached into his pocket, Rouleau fired his taser gun in the defendant's direction, but accidentally hit Rousseau with a projectile discharged from the taser gun, causing Rousseau to experience the immobilizing effect of the taser gun.

The defendant ran from the officers. Rouleau pursued the defendant, ordering him to show his hands and stop. Eventually, Rouleau apprehended the defendant and, after a physical struggle, detained the defendant. Nearby, Rouleau discovered bags of crack cocaine, with a street value of approximately $450, that the defendant either had dropped or had discarded during the foot chase. Additionally, police found $407 in the defendant's possession. Additional facts will be set forth as necessary.

I

First, the defendant claims that the evidence did not support his conviction of sale of narcotics within 1500 feet of a school. Acknowledging that the state presented evidence that he sold crack cocaine to Pereira, in his automobile, while he drove on public streets in the vicinity of the school, the defendant argues that the state did not present evidence that the sale occurred within 1500 feet of the school.² We agree with the defendant.

“The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder 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 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 not one fact, but the cumulative impact of a multitude of facts [that] establishes guilt in a case involving substantial circumstantial evidence.... Indeed, direct evidence of the accused's state 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.... [A]ny such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [on] the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 656–58, 1 A.3d 1051 (2010).

In an amended information, the state alleged that the defendant “did sell cocaine, a narcotic substance, within 1500 feet of the St. Francis Elementary School” in violation of § 21a–278a (b). Section 21a–278a (b) provides in relevant part: “Any person who violates section 21a–277 or 21a–278 by ... selling ... any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school ... shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a–277 or 21a–278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school....”

To determine whether the state satisfied its burden of proof, we turn to an examination of the relevant evidence. At trial, Rousseau testified that, on June 1, 2007, he was on duty, with Rouleau, patrolling in an unmarked police automobile. He observed the defendant operate a motor vehicle in the vicinity of St. Francis School and pick up Pereira near the back of St. Francis School on Prospect Street. The police followed the defendant's automobile for a short distance as it proceeded northbound on Prospect Street. Then, the automobile turned left onto North Street, left onto Field Street and left onto Clark Street. From Clark Street, the automobile turned right onto Prospect Street, traveling in a southerly direction, until it stopped at St. Francis School and Pereira exited the automobile. The police had observed only the defendant and Pereira in the automobile. The police suspected that a drug transaction had taken place. As...