State v. Stovall ( 2015 )

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STATE OF CONNECTICUT v. THOMAS STOVALL
(SC 19167)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued October 28, 2014—officially released April 28, 2015
John W. Cerreta, for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Richard L. Palombo, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
VERTEFEUILLE, J. The defendant, Thomas Stovall,
was convicted after a jury trial of possession of narcot-
ics with intent to sell within 1500 feet of a public housing
project in violation of General Statutes § 21a-278a (b)
and other narcotics and firearm charges.1 The sole issue
in this appeal is whether the Appellate Court, although it
reversed in part the trial court’s judgment and remanded
the case for a new trial due to improper jury instruc-
tions, properly concluded that the state had produced
sufficient evidence at trial to prove beyond a reasonable
doubt that the defendant intended to sell narcotics
within 1500 feet of a public housing project. See State
v. Stovall, 142 Conn. App. 562, 572, 64 A.3d 819 (2013).
The defendant contends that although the evidence
adduced at trial may have suggested a general intent
to sell narcotics, it was not sufficient to satisfy the
state’s burden of proving beyond a reasonable doubt
that he intended to sell narcotics at a particular location
within 1500 feet of a public housing project. We agree
and reverse the judgment of the Appellate Court with
respect to the conviction of possession of narcotics
with intent to sell within 1500 feet of a housing project.
The jury reasonably could have found the following
facts, as set forth in the Appellate Court opinion. ‘‘On
January 16, 2010, at approximately midnight, a raid team
from the Bridgeport [P]olice [D]epartment executed a
search warrant for apartment 449 in building four of
the Charles F. Greene Homes housing complex (Greene
Homes), a federally funded housing project. . . . [T]he
officers detained and secured five people—Librea Pat-
rick, the tenant of the apartment, Latavia Goss, Roder-
ick Williams, Shawndell Gaynard and the defendant.
Patrick’s two small children were allowed to remain
sleeping. All of the adults were searched. The search of
the defendant revealed $1125 in mixed denominations.
After [the police] search[ed] all of the adults, Patrick
remained in the apartment and the other suspects were
transported to the police station. . . .
‘‘The search of the apartment revealed a [D]epart-
ment of [S]ocial [S]ervices card and incident report
belonging to the defendant in one of the bedrooms,
sixteen cellular phones found throughout the apart-
ment, 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 hall-
way 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 con-
taining a white, rock-like substance that was later deter-
mined to be crack cocaine. The jacket was not collected
as evidence.’’ (Internal quotation marks omitted.) Id.,
565.
‘‘The sole witness who testified about the ownership
of the contents of the items in the hallway closet was
Patrick. She testified that she allowed the defendant to
keep a box of sneakers in her hallway closet. Patrick
also testified that the defendant was allowed to keep
coats there [in exchange for $20 to $30 a month] . . . .’’
(Internal quotation marks omitted.) Id., 570.
‘‘Patrick testified that she and the defendant became
friends in 2005 and that she knew him as Tom Tom.
She also testified that the defendant would come to her
apartment two to three times a week and that Patrick
would see him around Greene Homes two to three times
per week. When at Patrick’s apartment, the defendant
would visit her and her friend, Goss. Additionally, Pat-
rick testified, Greene Homes is known as an area where
narcotics can be purchased, and she had never seen
the defendant sell drugs in her apartment or in the area
of Greene Homes.
‘‘William Reilly, a detective with the Bridgeport
[P]olice [D]epartment who participated in the execution
of the warrant, also testified. He testified that Greene
Homes is a high crime and drug trafficking area. . . .
During direct examination, Reilly identified the sixteen
cell phones recovered from the apartment, the small
empty ziplock bags and two razor blades with narcotics
residue and the thirteen orange-tinted ziplock bags that
contained crack cocaine. Based on his training and
experience, Reilly stated that the empty ziplock bags
were consistent with the type generally used to package
crack cocaine, that the razors were used to cut up
narcotics into smaller pieces so as to fit in the small
ziplock bags and that the substance in the thirteen
orange-tinted bags was crack cocaine. Reilly testified
that based on the way the drugs were packaged, individ-
ually, the crack cocaine was packaged to be resold and
that the street value of one bag was $10. Furthermore,
[he testified that] the absence of a crack pipe or another
device to ingest crack cocaine suggested that the drugs
were being sold out of the house.’’ (Internal quotation
marks omitted.) Id., 572–73.
‘‘In a substitute long form information, the defendant
was charged with possession of narcotics with intent
to sell by a person who is not drug-dependent, posses-
sion of narcotics with intent to sell within 1500 feet of
a public housing project and two counts of criminal
possession of a firearm. On the basis of the evidence
presented at trial, the jury found the defendant guilty
on all counts [and the court imposed a total effective
sentence of seventeen years].’’ Id., 566; see id., 566 n.2.
The defendant then appealed to the Appellate Court,
claiming, inter alia, that the state had failed to produce
sufficient evidence to support his conviction of posses-
sion of narcotics with intent to sell within 1500 feet of
a housing project. After reviewing the evidence, the
Appellate Court rejected the defendant’s sufficiency
claim but found that the trial court had improperly
instructed the jury on that possession charge and
reversed the defendant’s conviction and remanded the
case for a new trial on that charge; id., 578, 582; from
which the defendant, on the granting of certification,
now appeals.2 He contends that the Appellate Court
improperly concluded that the state satisfied its eviden-
tiary burden with respect to the charge of possession
of narcotics with intent to sell within 1500 feet of a
public housing project. We agree and, accordingly,
reverse in part the judgment of the Appellate Court.3
‘‘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 con-
strued 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 evi-
dence, 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 estab-
lished by the evidence it deems to be reasonable and
logical.’’ (Internal quotation marks omitted.) State v.
Jordan, 314 Conn. 89, 106–107, 101 A.3d 179 (2014).
It is well established that ‘‘[i]ntent is generally proven
by circumstantial evidence because 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.
. . . This does not require that each subordinate con-
clusion established by or inferred from evidence, or
even from other inferences, be proved beyond a reason-
able doubt . . . because this court has held that a jury’s
factual inferences that support a guilty verdict need
only be reasonable. . . . Nevertheless, because intent
. . . is an element of the crime . . . that intent must be
proven beyond a reasonable doubt.’’ (Citations omitted;
internal quotation marks omitted.) State v. Sivri, 231
Conn. 115, 126–27, 646 A.2d 169 (1994).
‘‘Due process requires that the state prove each ele-
ment of an offense beyond a reasonable doubt. . . . It
follows that insufficiency of the evidence to support a
jury’s ultimate findings on each of these elements
requires acquittal.’’ (Citation omitted.) State v. Crafts,
226 Conn. 237, 244, 627 A.2d 877 (1993). Ultimately,
‘‘[i]t is not one fact, but the cumulative impact of a
multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence.’’ (Inter-
nal quotation marks omitted.) Id., 245.
Under § 21a-278a (b), ‘‘[a]ny person who violates sec-
tion 21a-277 or 21a-278 by . . . possessing with the
intent to sell . . . to another person any controlled
substance in or on, or within one thousand five hundred
feet of . . . a public housing project . . . 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 . . . possessing a controlled
substance shall be with intent to sell or dispense in or
on, or within one thousand five hundred feet of . . .
a public housing project . . . .’’ In State v. Denby, 235
Conn. 477, 483, 668 A.2d 682 (1995), this court con-
cluded that in order to establish a violation of § 21a-278a
(b), the state must prove that the defendant intended to
sell the drugs in his or her possession at a specific
location that is within the prohibited zone.
We affirmed the ‘‘particular place’’ requirement in
State v. Hedge, 297 Conn. 621, 659–60, 1 A.3d 1051
(2010), emphasizing that the ‘‘[m]ere possession of nar-
cotics with an intent to sell at some unspecified point
in the future, at some unspecified place, is not enough
[to prove a violation of § 21a-278a (b)].’’ (Internal quota-
tion marks omitted.) ‘‘Accordingly, we review the suffi-
ciency of the state’s evidence under § 21a-278a (b)
mindful that the state bears the burden of proving that
the defendant intended to sell or dispense narcotics
at a particular place. Further, because the defendant’s
intent is an element of the crime, the state must estab-
lish that intent beyond a reasonable doubt.’’ State v.
Lewis, 303 Conn. 760, 770, 36 A.3d 670 (2012). To meet
its burden of proof, the state is not required to prove
that the defendant knew that the location in which he
intended to sell drugs was within 1500 feet of a public
housing project, but that he intended to sell the drugs
at a particular location, which location is within 1500
feet of a public housing project. See State v. Denby,
supra, 235 Conn. 482–83.
The defendant does not necessarily dispute that the
state produced sufficient evidence to suggest that he
intended to sell narcotics at some point, at some
unspecified location. He claims, instead, that the state
failed to introduce any evidence to prove beyond a
reasonable doubt that he intended to sell narcotics at
a particular location in or within 1500 feet of Greene
Homes. The state counters that there was a ‘‘ ‘reason-
able and logical’ connection between the evidence pre-
sented in this case and the reasonable inference, drawn
by the jury, that the defendant intended to sell narcotics
within 1500 feet of [Greene Homes].’’ Specifically, the
state points to testimony that the defendant regularly
visited Patrick’s apartment in Greene Homes two or
three times per week, that Greene Homes is known for
drug trafficking, that the defendant made a business
arrangement with Patrick to store items in the hallway
closet in her apartment in Greene Homes, and that
narcotics packaged for sale and other materials sug-
gesting the packaging and sale of narcotics were recov-
ered from the hallway closet during the search of
Patrick’s apartment. In short, the state contends that
‘‘the defendant’s regular presence in the prohibited
area, while possessing drugs with the intent to sell,
supports a reasonable inference that he intended to sell
the drugs in that prohibited area . . . .’’
In this context, we turn to the question of whether
the jury in the present case reasonably could have
found, based upon the facts and the reasonable infer-
ences drawn therefrom, that the defendant had the
intent to sell the narcotics recovered during the search
of Patrick’s apartment at some location within 1500
feet of Greene Homes. Testimony established that the
defendant was apprehended in Patrick’s apartment in
Greene Homes and that the defendant regularly visited
the apartment and had arranged to store jackets and a
shoe box in the hallway closet. During the apartment
search, the police recovered thirteen bags of crack
cocaine, ziplock bags, scales, razor blades, sixteen cell
phones, weapons, ammunition and cash, leading to the
reasonable inference that the drugs were intended for
sale, rather than for personal use. The police recovered
the cash from the defendant’s person and the crack
cocaine from the pocket of a jacket, identified as the
defendant’s, that was stored in the closet. The search
did not reveal a crack pipe or similar device for use
of the narcotics in the apartment which bolstered the
inference that the drugs were intended for sale.
Although the foregoing evidence provided ample sup-
port for the inference that the defendant intended to
store and package narcotics in Patrick’s apartment for
sale, it did not have any probative value with respect
to the intended location of the sales, that is, whether
the defendant intended to sell the narcotics in Patrick’s
apartment or in another location within 1500 feet of
Greene Homes. There was no evidence of an actual or
attempted sale within 1500 feet of Greene Homes, and
the only evidence on this issue was Patrick’s testimony
that she had never seen the defendant sell drugs in her
apartment or in the area of Greene Homes. The jury
was free to disbelieve Patrick’s testimony, but such
disbelief could not provide an adequate evidentiary
basis for the opposite finding, that the defendant
intended to sell narcotics in Patrick’s apartment or in
the area of Greene Homes. See State v. McCarthy, 105
Conn. App. 596, 608, 939 A.2d 1195, cert. denied, 286
Conn. 913, 944 A.2d 983 (2008). Because the state did not
produce any evidence from which the jury reasonably
could have inferred that the defendant intended to sell
narcotics within 1500 feet of Greene Homes, the defen-
dant’s conviction for violation of § 21a-278a (b) can-
not stand.
The state argues that evidence that the defendant
regularly visited Patrick’s apartment, and was not
merely passing through Greene Homes, coupled with
evidence of the defendant’s business arrangement with
Patrick to store and package items in her apartment
located in an area known for drug trafficking, supports
the inference that the defendant intended to sell drugs
in Greene Homes. According to the state, the facts of
the present case resemble those in State v. Reid, 123
Conn. App. 383, 398, 1 A.3d 1204, cert. denied, 298 Conn.
929, 5 A.3d 490 (2010), in which the Appellate Court
concluded that the jury reasonably could infer the
defendant’s intent to sell drugs within 1500 feet of a
public housing project from his extended presence in
a high crime, drug trafficking area with drugs in his pos-
session.
In Reid, however, the defendant was arrested in a
parking lot, located within 1500 feet of a housing proj-
ect. The parking lot was described to the jury as ‘‘ ‘an
open air drug market’ where drug transactions fre-
quently transpired.’’ Id., 394. Not only was the defendant
in Reid present in the parking lot for several hours,
but he engaged in behavior that was ‘‘ ‘consistent with
immediate drug sales,’ ’’ such as backing away from
police officers when they approached him and tossing
a plastic bag containing narcotics to the ground. Id.,
398. In contrast, in the present case, although the state
produced evidence that Greene Homes generally is
known as a place where drugs can be purchased, the
state did not produce any evidence to suggest that Pat-
rick’s apartment, like the parking lot in Reid, was known
as a place to buy drugs, that the defendant had spent
time in areas of Greene Homes known as drug transac-
tion areas, that the defendant was seen loitering in or
near Greene Homes other than on his way to or from
Patrick’s apartment, that the defendant engaged in
behavior consistent with immediate drug sales, such as
attempting to evade custody or dispose of the drugs,
or that the defendant had ever sold drugs anywhere in
or near Greene Homes or Patrick’s apartment.
The facts of the present case more closely resemble
the facts in State v. Kalphat, 134 Conn. App. 232, 234–35,
38 A.3d 209 (2012), in which the defendant was arrested
in his home, within 1500 feet of a school, in possession
of approximately ten pounds of marijuana and a box
containing $3033, ziplock bags and two scales. In Kal-
phat, the Appellate Court concluded that although the
evidence supported the reasonable inference that the
defendant intended to repackage the marijuana for sale,
the record was ‘‘devoid of evidence from which the jury
reasonably could have determined the precise location
or locations of any such sales. Consequently . . . on
the record before it, the jury only could speculate about
the precise location or locations of any such sales
. . . .’’ Id., 241.
In Kalphat, the Appellate Court rejected the state’s
argument that because it reasonably could be inferred
that the marijuana was going to be packaged in the
defendant’s home for sale, ‘‘it also would be reasonable
to infer that the sales would take place there.’’ Id. Like-
wise, in the present case, although the jury reasonably
could have inferred that the defendant was storing and
packaging narcotics in Patrick’s apartment for the pur-
pose of selling them, that inference did not lead to the
further reasonable inference that the sales would take
place in Patrick’s apartment or anywhere else within
1500 feet of Greene Homes. Moreover, the Appellate
Court’s analysis of the evidence in Kalphat contradicts
the state’s contention in the present case that ‘‘[a]
rational juror could reason that the proximity of the
location where the drugs are being stored to the prohib-
ited area is probative of whether the defendant intended
to sell the drugs in that prohibited area, at least where
the evidence does not establish that the presence of the
drugs in that location was fleeting and a consequence of
them being merely in transit.’’ In Kalphat, the fact that
the marijuana was stored in the defendant’s home
within the prohibited area was not probative of whether
the defendant intended to sell the drugs there. State v.
Kalphat, supra, 134 Conn. App. 241. Here, the fact that
the defendant had arranged with Patrick to store certain
items that contained narcotics in her apartment did not
indicate that he intended to sell the drugs there or
anywhere else within 1500 feet of Greene Homes. Simi-
larly, the fact that the defendant had $1125 in mixed
denominations in his possession at the time of his arrest
permitted the inference that he obtained the cash by
selling drugs, but it had no probative value as to the
location where the drugs had been sold.
Moreover, even if we assume, as the dissent contends,
that the evidence might have supported a reasonable
inference that the defendant intended to sell drugs
within the prohibited zone, the cumulative force of the
evidence nevertheless was not sufficient to prove that
intent beyond a reasonable doubt. The evidence viewed
in the light most favorable to sustaining the jury’s ver-
dict lent, at best, only a modicum of support to the
inference that the defendant intended to sell the drugs
within the prohibited zone. The evidence was equally
supportive of an inference that the defendant intended
to sell the drugs outside of the prohibited zone or any-
where that the opportunity presented itself. This court
has concluded that where ‘‘the evidence is in equipoise
or equal, the [s]tate has not sustained its burden [of
proof] . . . .’’ (Internal quotation marks omitted.) State
v. Moss, 189 Conn. 364, 369, 456 A.2d 274 (1983); see
also United States v. Glenn, 312 F.3d 58, 70 (2d Cir.
2002) (‘‘if the evidence viewed in the light most favor-
able to the prosecution gives equal or nearly equal cir-
cumstantial support to a theory of guilt and a theory
of innocence, then a reasonable jury must necessarily
entertain a reasonable doubt’’ [internal quotation
marks omitted]).
The state argues in its brief that ‘‘the jury reasonably
could have inferred that, regardless of whether [the
defendant] also may have intended to sell the drugs at
a location outside the prohibited area, he nevertheless
possessed a simultaneous intent to sell the drugs to
any and all potential buyers within [the prohibited zone]
. . . as the opportunities presented themselves.’’ As we
held in Hedge, however, the state’s burden of proof
cannot be satisfied by proof of a general willingness to
sell ‘‘at some unspecified point in the future, at some
unspecified place . . . .’’ (Internal quotation marks
omitted.) State v. Hedge, supra, 297 Conn. 660. Thus,
the inference that the defendant might have been willing
to sell to a customer who happened to show up at
Patrick’s apartment is not the same as proof beyond
a reasonable doubt that the defendant possessed the
narcotics with the intent to sell them from Patrick’s
apartment or at some other location within 1500 feet
of Greene Homes. It is unlikely that the defendants in
Hedge and Lewis would have passed up opportunities
to sell the drugs they were carrying to any customers
who presented themselves, but such willingness does
not satisfy the state’s burden to prove beyond a reason-
able doubt that the defendant intended to sell the nar-
cotics at a particular location within 1500 feet of a
public housing project.
Because the state has failed to satisfy its burden to
prove beyond a reasonable doubt that the defendant
intended to sell the narcotics within 1500 feet of Greene
Homes, the defendant is entitled to a judgment of acquit-
tal on the charge of possession of narcotics with intent
to sell within 1500 feet of a public housing project. As
a result of the reversal of this conviction, the case must
be remanded to the trial court for resentencing on the
remaining counts of which the defendant has been con-
victed. ‘‘Pursuant to [the aggregate package theory of
sentencing], we must vacate a sentence in its entirety
when we invalidate any part of the total sentence. On
remand, the resentencing court may reconstruct the
sentencing package or, alternatively, leave the sentence
for the remaining valid conviction or convictions
intact.’’ (Internal quotation marks omitted.) State v. Jor-
dan, supra, 314 Conn. 116.
The judgment of the Appellate Court is reversed only
with respect to the defendant’s conviction of possession
of narcotics with intent to sell within 1500 feet of a
public housing project and the case is remanded to that
court with direction to remand the case to the trial
court with direction to render judgment of acquittal on
that charge and to vacate the defendant’s sentence and
resentence him on the remaining charges; the judgment
of the Appellate Court is affirmed in all other respects.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA, EVELEIGH and McDONALD, Js., concurred.
1
The defendant also was charged with and convicted of possession of
narcotics with intent to sell by a person who is not drug-dependent in
violation of General Statutes § 21a-278 (b) and two counts of criminal posses-
sion of a firearm in violation of General Statutes § 53a-217 (a) (1). In his
appeal to the Appellate Court, the defendant did not challenge his conviction
of criminal possession of a firearm. State v. Stovall, 142 Conn. App. 562,
564 n.1, 64 A.3d 819 (2013). The Appellate Court affirmed the defendant’s
conviction of possession of narcotics with intent to sell by a person who
is not drug-dependent and the defendant does not challenge that determina-
tion in the present appeal. Id., 572, 582.
2
We granted the defendant’s petition for certification to appeal limited
to the following question: ‘‘Did the Appellate Court properly conclude that
there was sufficient evidence to support the jury’s verdict that the defendant
intended to sell narcotics within 1500 feet of a public housing project . . .
?’’ State v. Stovall, 309 Conn. 917, 70 A.3d 40 (2013).
3
The Appellate Court rejected the defendant’s claims that the trial court
improperly had admitted a controlled substance report and that the evidence
was insufficient to support the defendant’s conviction of the charges of
possession of narcotics with intent to sell by a person who is not drug-
dependent and possession of narcotics with intent to sell within 1500 feet of
a public housing project. State v. Stovall, supra, 142 Conn. App. 572, 574–75.