State v. Stovall ( 2015 )

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STATE v. STOVALL—DISSENT
ESPINOSA, J., dissenting. I disagree with the majori-
ty’s conclusion that there was insufficient evidence to
support the jury’s verdict that the defendant, Thomas
Stovall, intended to sell narcotics within 1500 feet of a
public housing project in violation of General Statutes
§ 21a-278a (b). I believe that the Appellate Court prop-
erly concluded that there was sufficient evidence to
support the jury’s verdict. See State v. Stovall, 142 Conn.
App. 562, 574–75, 64 A.3d 819 (2013). Accordingly, I
respectfully dissent.
‘‘[Section] 21a-278a (b) prohibits any person from
transporting with the intent to sell or dispense, [or]
possessing with the intent to sell or dispense . . . any
controlled substance in or on, or within one thousand
five hundred feet of, the real property comprising . . .
a public housing project . . . . [Section] 21a-278a (b)
further provides that, [t]o constitute a violation of this
subsection, an act of transporting or possessing a con-
trolled 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 housing
project . . . . This court has held that the plain lan-
guage of § 21a-278a (b) requires . . . [that, in order to
prove the intent element of the statute] the state must
demonstrate only that the defendant intended to sell
or dispense those drugs in his or her possession at a
specific location, which location happens to be within
1500 feet of a public housing project, among other geo-
graphical designations.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) State v.
Hedge, 297 Conn. 621, 658, 1 A.3d 1051 (2010).
The only issue in this appeal is whether the state
presented sufficient evidence that the defendant
intended to sell the narcotics that were in his possession
at a specific, proscribed location. I begin with the appro-
priate standards that guide the court’s review. In evalu-
ating a challenge to the sufficiency of the evidence,
‘‘[f]irst, we construe the evidence in the light most favor-
able 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 evi-
dence established guilt beyond reasonable doubt.’’
(Internal quotation marks omitted.) State v. Lewis, 303
Conn. 760, 767, 36 A.3d 670 (2012). Moreover, ‘‘[o]n
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.’’ (Internal quotation marks omit-
ted.) Id., 768. ‘‘[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Taft, 306 Conn. 749, 756, 51 A.3d 988
(2012). Because the issue in the present case specifi-
cally concerns whether the state produced sufficient
evidence of the defendant’s intent, I also emphasize
that ‘‘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.’’ (Internal quotation marks omitted.)
State v. Lewis, supra, 770.
The Appellate Court properly concluded that there
was sufficient evidence to support the jury’s conclusion
that the state proved beyond a reasonable doubt that
the defendant intended to sell the crack cocaine that
was in his possession within 1500 feet of a public hous-
ing project. State v. Stovall, supra, 142 Conn. App. 574.
The evidence, in fact, supported the conclusion that
the defendant possessed crack cocaine with the intent
to sell within the public housing project. The evidence
clearly established that the defendant was using Librea
Patrick’s apartment as his base for selling narcotics in
the Charles F. Greene Homes apartment complex, a
public housing project (project) in Bridgeport. Patrick’s
apartment was located within the project, and the
defendant paid her between $20 and $30 per month. In
exchange, Patrick allowed him storage space in a closet
in the apartment. Patrick further testified that in the
three weeks preceding the police raid team’s January
16, 2010 execution of the search warrant on her apart-
ment, the defendant had visited the apartment approxi-
mately two to three times per week. Most significantly,
Patrick also testified that, during the same time period,
roughly coinciding with his visits to her apartment, she
observed the defendant outside on the project grounds.
The jury properly considered that information in the
context of what the police discovered when they
searched Patrick’s apartment and the defendant’s per-
son. It is significant that the search occurred at approxi-
mately midnight. State v. Stovall, supra, 142 Conn. App.
565. The defendant had $1125 in mixed denominations
on his person. As detailed by the Appellate Court, ‘‘[t]he
search of the apartment revealed a [D]epartment of
[S]ocial [S]ervices card and incident report belonging
to the defendant in one of the bedrooms, sixteen cellular
phones found throughout the apartment, an empty scale
box, two razor blades with a residue that was later
determined to be cocaine and small ziplock bags in the
kitchen. A search of the hallway closet across from the
kitchen revealed a shoe box that contained a loaded
.38 caliber revolver, a loaded .32 caliber revolver, a
Remington bullet box with two live bullets inside, and
several letters that referenced ‘Tom-Tom,’ ‘Thomas’ and
‘Tomster.’ The contents of the shoe box were collected
as evidence, but the shoe box itself was not. An officer
also searched the clothing in the closet. In a heavy,
men’s winter jacket, he found thirteen orange-tinged
plastic ziplock bags, each containing a white, rock-like
substance that was later determined to be crack
cocaine.’’ Id.
Detective William Reilly of the Bridgeport Police
Department, the evidence officer for the search, testi-
fied that, on the basis of his training and experience as
a police officer, the project was a ‘‘high crime drug
trafficking area’’ where the police had made ‘‘hundreds
of arrests for narcotics in the past.’’ He further testified
that the manner in which the crack cocaine was pack-
aged—individually in ziplock plastic bags in the specific
amount he observed each bag to contain—suggested
that they were packaged to be resold, and that the street
value for the contents of each bag was approximately
$10. He also testified that the absence of a crack pipe
in the apartment supported the conclusion that ‘‘drugs
were being sold out of the house and not smoked.’’
The majority places undue emphasis on the lack of
evidence of an actual or attempted sale within 1500
feet of the project. It is true that we have stated that
‘‘evidence of an actual or attempted sale is sufficient
to prove beyond a reasonable doubt that a defendant
intended to sell narcotics at a particular location.’’
(Emphasis added.) State v. Lewis, supra, 303 Conn. 770.
We have never, however, suggested that such evidence
is necessary in order for the state to prove intent to
sell narcotics at a particular location. On the contrary,
we have recognized that even though it is more challeng-
ing for the state to satisfy its burden of proof ‘‘[w]ithout
evidence of an actual or attempted sale,’’ it is not impos-
sible. Id., 771.
The contrast between the present case and two cases
in which we concluded that possession of narcotics
within the proscribed area, without evidence of an
actual or attempted sale, was insufficient to establish
intent to sell narcotics within the area, illustrates why
the state sustained its burden of proof in the present
case. Specifically, in both State v. Lewis, supra, 303
Conn. 777, and State v. Hedge, supra, 297 Conn. 621, this
court concluded that there was insufficient evidence to
establish a defendant’s intent to sell narcotics within a
proscribed zone.1
Both of those decisions, however, rested on the fact
that the state had failed to prove that the defendant’s
presence at the particular location where he was
arrested or searched was more than ‘‘merely fortu-
itous.’’ State v. Lewis, supra, 303 Conn. 772. In Lewis,
the police officers stopped the defendant because he
matched the description of a robbery suspect, not
because they believed he was selling narcotics. Id. In
addition, the defendant was on a bicycle when he was
arrested, and there was ‘‘no indication in the record
that the defendant was in the area for an amount of
time sufficient to imply that he was doing more than
passing through when the police detained him.’’ Id.,
773. Finally, we observed that because the defendant
was stopped one block from where he lived, he neces-
sarily had to pass through that area in order to leave
and return to his home. His presence in that location,
therefore, had not been proven to be more than mere
coincidence. Id.
Similarly, in State v. Hedge, supra, 297 Conn. 660, the
arresting officer stopped the defendant’s vehicle for a
reason unrelated to the sale of a controlled substance
in the proscribed area. The officer stopped him merely
because he had failed to use a turn signal. Id. Addition-
ally, we observed, ‘‘[t]he state adduced no evidence that
the defendant was on his way to [the public housing
project], recently had been at [the public housing proj-
ect], or otherwise had engaged in any activity, suspi-
cious or otherwise, that would give rise to a reasonable
inference that he planned to sell drugs at or within 1500
feet of [the public housing project].’’ Id.
Other than suggesting that our decisions in Lewis
and Hedge rested on the broad principle that evidence
of ‘‘general willingness’’ to sell drugs at the proscribed
location if customers should have presented themselves
is insufficient to establish possession with an intent to
sell at a particular location, the majority does not
explain why it believes that the present case is not
distinguishable from those cases. Instead, the majority
focuses its discussion primarily on Appellate Court
decisions. Although I maintain that our decisions, rather
than those of the Appellate Court, properly should con-
trol, I briefly address the majority’s reliance on State
v. Kalphat, 134 Conn. App. 232, 38 A.3d 209 (2012), as
well as the majority’s attempt to distinguish the present
case from State v. Reid, 123 Conn. App. 383, 1 A.3d
1204, cert. denied, 298 Conn. 929, 5 A.3d 490 (2010).
Contrary to the majority, I conclude that the facts of
the present case are much more closely aligned with
those presented in Reid, and clearly distinguishable
from the facts in Kalphat.
The majority claims that the facts of the present case
more closely resemble those of Kalphat. Certainly,
there are factual similarities between the two cases,
but the majority ignores the crucial difference that dis-
tinguishes the present case from Kalphat for the pur-
pose of applying Lewis and Hedge: the defendant in
Kalphat was arrested in his home, and all of the evi-
dence of the defendant’s intent to sell drugs was recov-
ered from his home. State v. Kalphat, supra, 134 Conn.
App. 234. That single fact is sufficient to make Kalphat
fall squarely within Lewis and Hedge. As I already have
explained, the principle on which we relied in those two
cases is that the state must prove that the defendant’s
presence at a particular location has more than a merely
coincidental connection to his possession of drugs in
that location. In State v. Lewis, supra, 303 Conn. 773,
one of the key facts on which we relied to conclude that
the state had failed to prove more than a coincidental
connection between the defendant’s presence in a par-
ticular location and his possession of drugs was that
he was within one block of his home when he was
arrested. We focused on the fact that the defendant
‘‘necessarily’’ had to pass through that location in order
to return home. Id. That principle applies with even
greater force under the facts presented in Kalphat—
because the defendant was in his home, the state had
to provide more than mere evidence of the possession
of drugs in sufficient quantity, and drug paraphernalia
of the proper type, to support an inference to sell. The
state had to provide proof that the defendant intended
to sell the drugs from his home. In that case, however,
the state produced no such evidence. State v. Kalphat,
supra, 241–42.
By contrast, in the present case, the defendant was
not arrested in his home. He was arrested in the apart-
ment where he paid for the privilege of storing his drugs.
The defendant did not live in Patrick’s apartment, and
the state produced sufficient evidence to establish that
he was not merely passing through. The facts of this
case more closely resemble those presented in State v.
Reid, supra, 123 Conn. App. 383, at least for the purpose
of applying Lewis and Hedge. In Reid, as in the present
case, the defendant was arrested in an area known
for drug trafficking, and the evidence supported the
reasonable inference that the defendant’s presence in
that area was not coincidental. Id., 393–98. In the pre-
sent case, the project, like the parking lot in Reid, was
an area known to be a ‘‘high crime drug trafficking
area’’ where police had made ‘‘hundreds of arrests for
narcotics in the past.’’ Additionally, contrary to the
majority’s incorrect characterization of Patrick’s testi-
mony, she did not testify that she only saw the defendant
‘‘on his way to or from’’ her apartment. She testified
that she saw him on the project grounds, outside of her
apartment, ‘‘around’’ the same times that he had been
at her apartment. She never limited her testimony to a
statement that she only saw the defendant coming from
and going to her apartment. Her testimony regarding
the defendant’s presence in the project, outside her
apartment, is more than broad enough to support the
jury’s reasonable inference that the defendant’s pres-
ence in Patrick’s apartment was more than merely coin-
cidental. Those facts are sufficient to distinguish the
present case from Lewis and Hedge, supporting the
conclusion that the facts of the present case, like those
in Reid, are sufficient to establish possession with
intent to sell within the proscribed area.
On the basis of all of the evidence in the present
case, the jury reasonably could have inferred that the
defendant used Patrick’s apartment as his base for sell-
ing drugs in the project. He kept all of the paraphernalia
associated with the sale of narcotics, including packag-
ing materials, cell phones, weapons, razor blades, and
the narcotics themselves, in the apartment. He was
carrying a significant amount of cash in mixed denomi-
nations on his person in the middle of the night. The
project was known to be a high drug trafficking area.
Moreover, Patrick testified that the defendant was there
frequently, two to three times per week, and that she
had observed the defendant outside the apartment,
around the project grounds, on roughly the same days
that he visited the apartment. Based on these facts, it
is unreasonable to conclude that there was insufficient
evidence to support the jury’s determination that the
state met its burden of proof as to the element of intent
to sell narcotics within 1500 feet of a public housing
project. In doing so, the majority seemingly substitutes
its own judgment for that of the jury. See State v. Brown,
235 Conn. 502, 510, 668 A.2d 1288 (1995).
In sharp contrast to both Lewis and Hedge, the defen-
dant in the present case was not merely passing through
the project. A frequent visitor to an apartment, unlike
an individual in a motor vehicle or on a bicycle, is not
‘‘in transit.’’ Cf. State v. Lewis, supra, 303 Conn. 773.
Here, the state produced evidence that the defendant
kept everything he needed to sell narcotics in Patrick’s
apartment, and, moreover, that he paid for that privi-
lege. As the state aptly observes, the defendant made
a conscious business decision to use Patrick’s apart-
ment as his base for his drug activity. Neither the defen-
dant nor the drugs were present in the apartment by
chance—both were there by his arrangement. And there
was nothing transient about his presence at the project.
The state produced evidence that the defendant visited
the apartment multiple times per week, and that he
was observed outside the apartment around the project
grounds just as frequently. In contrast to the defendants
in Lewis and Hedge, here, when the defendant was at
the apartment with more than $1000 on his person, he
was not coincidentally passing through. The majority’s
conclusion implicitly requires the assumption that the
jury should have drawn the unreasonable inference that
the defendant, a drug dealer who stored all of his sup-
plies within a housing project that was a high drug
trafficking area, would forgo the opportunity to sell his
product to readily accessible customers in the project
in favor of venturing outside the project to sell his drugs
elsewhere. I therefore disagree with the majority’s
assertion that the evidence was in equipoise. If the jury
credited the state’s witnesses—and we must assume
that it did for purposes of this analysis—then the state
produced sufficient evidence to allow the jury to find
beyond a reasonable doubt that the defendant kept
drugs in the apartment and that he sold drugs in the
project, a neighborhood known to be a high drug traf-
ficking area. The mere fact that the jury could have
drawn different inferences does not call into question
the sufficiency of the state’s evidence.
Accordingly, I respectfully dissent.
1
The present case is also clearly distinguishable from State v. Jordan,
314 Conn. 89, 101 A.3d 179 (2014), a case cited by the majority. In Jordan,
we concluded that the state had failed to sustain its burden to prove that
the defendant intended to sell within a proscribed area on the basis that the
state had presented no evidence to support an inference that the defendant in
that case intended to sell drugs within 1500 feet of the nearby elementary
school, as the state had charged. Id., 107. In fact, we observed, ‘‘the only
evidence regarding the defendant’s past drug sales was that they had
occurred at strip clubs and other unspecified locations.’’ Id.