State v. Dawson ( 2021 )

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STATE v. DAWSON—DISSENT
ROBINSON, C. J., dissenting. I respectfully disagree
with the majority’s conclusion that insufficient evidence
existed to support the conviction of the defendant,
Andre Dawson, for criminal possession of a pistol or
revolver in violation of General Statutes § 53a-217c (a).
I believe that the majority’s painstaking dissection of
the jury verdict in this case is wholly inconsistent with
the analysis in our very recent decision in State v.
Rhodes, 335 Conn. 226, 249 A.3d 683 (2020), which
emphasized in no uncertain terms that, in cases con-
cerning constructive possession, this court does not sit
as a ‘‘seventh juror’’; (internal quotation marks omitted)
id., 251; given our obligation to ‘‘construe the evidence
in the light most favorable to sustaining the verdict and
then determine whether, on the basis of those facts and
the inferences reasonably drawn from them, the jury
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt. . . . 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 evi-
dence that supports the [jury’s] verdict of guilty.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id.,
229. Because I would affirm the well reasoned opinion
of the Appellate Court, which is consistent with these
cardinal principles of appellate review; see State v.
Dawson, 188 Conn. App. 532, 205 A.3d 662 (2019); I
respectfully dissent.
The majority’s opinion is wholly inconsistent with
our recent emphasis in Rhodes of ‘‘the deference we
must afford to the jury and the practical problems of
proof in the nonexclusive possession context: [W]e
would adhere to that concept in preference to artificial
rules restricting evidence-sufficiency rules that would
inevitably invade the traditional province of the jury
. . . . The judge’s task intensifies . . . when the
accused’s relationship to the premises is shared with
others, and consequently the problems of knowledge
and control intensify. . . . [I]n full recognition of the
increased difficulties that the [g]overnment then faces,
we reiterate that the sufficiency of the evidence for jury
consideration depends [on] its capability plausibly to
suggest the likelihood that in some discernible fashion
the accused had a substantial voice vis-à-vis the [con-
traband].’’ (Emphasis in original; internal quotation
marks omitted.) State v. Rhodes, supra, 335 Conn. 236–
37, quoting United States v. Staten, 581 F.2d 878, 884
(D.C. Cir. 1978).
As we recognized in Rhodes, a ‘‘case for constructive
possession of a firearm often is necessarily built on
inferences, and a jury may draw whatever inferences
from the evidence or facts established by the evidence
it deems to be reasonable and logical. . . . A jury also
may draw factual inferences on the basis of already
inferred facts.’’ (Citation omitted; internal quotation
marks omitted.) State v. Rhodes, supra, 335 Conn. 237–
38. As in Rhodes, my ‘‘review of the evidence finds
several circumstances tending to buttress . . . an
inference . . . that the defendant had the knowledge
of and intent to control the firearm that our law requires
for a finding of constructive possession, including facts
and inferences that reasonably permitted the jury to
conclude that, in all probability, [he] had the ability to go
and get the gun.’’ (Citation omitted; internal quotation
marks omitted.) Id., 238–39. In my view, the touch DNA
evidence found on the gun, coupled with the defen-
dant’s proximity to it and the testimony of a Norwalk
police officer, Kyle Lipeika, that (1) it is a common
practice for individuals to discard weapons when they
believe that police officers are approaching, and (2)
the gun appeared to have been freshly placed in the
courtyard planter because it was clean, with a surface
that lacked rust or dust, provided sufficient circumstan-
tial evidence of constructive possession to support the
defendant’s conviction.
The majority, however, engages in a detailed analysis
discounting this evidence and concluding that ‘‘there
were simply too many unknowns for the jury to find
beyond a reasonable doubt that the defendant had even
touched the gun, much less that he was aware of its
presence near where he was seated on the night in
question and intended to exercise dominion or control
over it.’’ These aspects of the majority’s opinion, which
(1) discount the weight of the touch DNA evidence, (2)
highlight the defendant’s cooperation and lack of flight
or incriminating statements, and (3) observe that the
individuals who accompanied the defendant sat slightly
closer to the planter, provide a well reasoned closing
argument for the defense, but ultimately are inconsis-
tent with our long settled approach to appellate review
of sufficiency of the evidence issues.
Beyond these observations, ‘‘[o]rdinarily, I would
write a comprehensive dissenting opinion with a thor-
ough discussion of the applicable law and a detailed
review of the record. The Appellate Court has, however,
issued a comprehensive and well reasoned opinion,
authored by Judge [Lavine], which provides a full expli-
cation of the . . . record and governing legal principles
in this case. . . . In the interest of aiding in the dis-
charge of this court’s institutional obligation to provide
timely decisions to litigants and the public, I adopt
Judge [Lavine’s] excellent opinion as a complete state-
ment of my reasoning for respectfully dissenting from
the judgment of this court.’’ (Citation omitted.) Dept.
of Transportation v. White Oak Corp., 319 Conn. 582,
622, 125 A.3d 988 (2015) (Robinson, J., dissenting); see,
e.g., Brenmor Properties, LLC v. Planning & Zoning
Commission, 326 Conn. 55, 62, 161 A.3d 545 (2017).
Because I would affirm the judgment of the Appellate
Court, I respectfully dissent.