State v. Rhodes ( 2020 )

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STATE v. RHODES—CONCURRENCE AND DISSENT
ECKER, J., with whom PALMER and McDONALD,
Js., join, concurring in part and dissenting in part. I
respectfully dissent from part I of the majority opinion
because I do not believe that the evidence was sufficient
to support the conviction of the defendant, Amelia
Rhodes, of criminal possession of a firearm in violation
of General Statutes (Rev. to 2013) § 53a-217 (a). I concur
in part II of the majority opinion, in which the majority
upholds the defendant’s conviction of having a weapon
in a motor vehicle in violation of General Statutes (Rev.
to 2013) § 29-38 (a), but on different grounds than those
relied on by the majority.
I
A
In no conventional sense of the word did the defen-
dant ‘‘possess’’ the firearm carried by her friend and
passenger, Lamar Spann, on the afternoon of August 17,
2013.1 She did not own it and had no legally cognizable
possessory interest in it. She never was in actual physi-
cal possession of the firearm; she never physically held
it or touched it, even for a moment, and the state never
claimed otherwise. Likewise, the jury was presented
with no evidence that the defendant herself at any time
had the practical ability to obtain actual physical pos-
session of the firearm. Nor was there any evidence that
she occupied a position of authority over Spann that
would have allowed her to direct him to use the firearm
at her command. No evidence was presented that Spann
previously had permitted the defendant to use his fire-
arm or would have done so on this occasion upon
request. Finally, there was not a shred of evidence at
trial that the defendant intended to exercise control
over the firearm itself, as opposed to the car in which
it was located. Reversal of the defendant’s conviction
of criminal possession of a firearm is required under
these circumstances because these significant eviden-
tiary gaps cannot be filled in without resort to impermis-
sible speculation and surmise.
As in many appeals challenging the sufficiency of the
evidence supporting a criminal conviction, resolution
of the defendant’s claim requires us to determine the
point at which permissible inference becomes imper-
missible speculation. I agree with the majority that
where to draw this line in any particular case ultimately
is a matter of judgment. I further agree that a reviewing
court undertaking the task of line drawing must exer-
cise maximum restraint and exhibit great deference to
the jury’s verdict due to the jury’s vital, constitutional
role in our system of justice; the majority rightly
reminds us that we do not sit as a seventh juror. See
State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).
But there is more to the picture, because the same
constitution also imposes limitations on the jury’s
power to convict an accused in a criminal case—there
are other constitutional values at stake in addition to the
jury right. In particular, a reviewing court is obligated
to ensure that a criminal conviction is supported by
evidence sufficient to find a defendant guilty of the
crime charged beyond a reasonable doubt. See, e.g., In
re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d
368 (1970); see also J. Newman, ‘‘Beyond ‘Reasonable
Doubt,’ ’’ 68 N.Y.U. L. Rev. 979, 980 (1993) (encouraging
appellate courts ‘‘to take the [reasonable doubt] stan-
dard seriously as a rule of law against which the validity
of convictions is to be judged’’). In my judgment, the
evidence in the present case fails to meet that high
standard.
The rules governing appellate review in this context
are well established. ‘‘The two part test this court
applies in reviewing the sufficiency of the evidence
supporting a criminal conviction is well established.
First, 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 a reasonable doubt.’’
(Footnote omitted; internal quotation marks omitted.)
State v. Lewis, 303 Conn. 760, 767, 36 A.3d 670 (2012).
‘‘In evaluating evidence that could yield contrary infer-
ences, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier [of fact] may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical.’’ (Internal quotation marks omitted.) State
v. Drupals, 306 Conn. 149, 158, 49 A.3d 962 (2012).
However, ‘‘[b]ecause [t]he only kind of an inference
recognized by the law is a reasonable one . . . any
such inference cannot be based on possibilities, surmise
or conjecture. . . . It is axiomatic, therefore, that [a]ny
[inference] drawn must be rational and founded upon
the evidence. . . . [T]he line between permissible
inference and impermissible speculation is not always
easy to discern. When we infer, we derive a conclusion
from proven facts because such considerations as expe-
rience, or history, or science have demonstrated that
there is a likely correlation between those facts and the
conclusion. If that correlation is sufficiently compelling,
the inference is reasonable. But if the correlation
between the facts and the conclusion is slight, or if a
different conclusion is more closely correlated with the
facts than the chosen conclusion, the inference is less
reasonable. At some point, the link between the facts
and the conclusion becomes so tenuous that we call it
speculation.’’ (Internal quotation marks omitted.) State
v. Lewis, supra, 768–69.
No objective formula or uniform template tells us
how to distinguish reasonable inference from impermis-
sible speculation. It should be clear, however, that our
appellate review may not rely on speculative guesswork
any more than may the jury’s verdict. This is not an
exercise in appellate storytelling. Yet, I fear that the
majority’s effort to conjure a basis for the jury’s verdict
at times propels the majority into the realm of specula-
tion, as when the majority pictures the jurors rolling
their eyes or splitting their sides in laughter. See foot-
note 22 of the majority opinion and accompanying text.
There are limitations on the inferences that may be
drawn from the evidence. One such limitation is the
requirement that an inference be reasonable, which
means that it must be more than merely possible—it
must be probable. This court has explained that ‘‘[a]n
inference is not legally supportable . . . merely
because the scenario that it contemplates is remotely
possible under the facts. To permit such a standard
would be to sanction fact-finding predicated on mere
conjecture or guesswork. Proof by inference is suffi-
cient, rather, only if the evidence produces in the mind
of the trier [of fact] a reasonable belief in the probabil-
ity of the existence of the material fact.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Reynolds, 264 Conn. 1, 97, 836 A.2d 224 (2003), cert.
denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254
(2004); see also State v. Copas, 252 Conn. 318, 339–40,
746 A.2d 761 (2000) (although ‘‘[p]roof of a material
fact by inference from circumstantial evidence need
not be so conclusive as to exclude every other hypothe-
sis,’’ it must be sufficient to produce ‘‘in the mind of
the trier [of fact] a reasonable belief in the probability
of the existence of the material fact’’ (internal quotation
marks omitted)). Anything less is mere ‘‘speculation
and conjecture,’’ which is ‘‘insufficient to sustain the
burden of proof beyond a reasonable doubt . . . .’’
(Internal quotation marks omitted.) State v. Sivri, 231
Conn. 115, 131–32, 646 A.2d 169 (1994).
The point is an important one because it operates to
prevent the dilution of a constitutional standard. The
constitution does not require that the subordinate facts
each be proven beyond a reasonable doubt, but it still
forbids criminal convictions to be based on guesswork;
a reviewing court will draw the line at verdicts resting
on merely possible factual scenarios as opposed to
probable ones. This key distinction explains why the
majority misses the point when it suggests that this
concurring and dissenting opinion reaches its conclu-
sions by substituting its own ‘‘alternative explanations’’
and by preferring more ‘‘benign’’ and ‘‘innocent’’ inter-
pretations of the evidence than those offered by the
majority. The alternatives are provided to demonstrate
the speculative nature of the inferences posited by the
majority. The analysis, in other words, is intended to
demand that the critical inculpatory inferences neces-
sary to reach a guilty verdict in this case were not
conjectural on this factual record.
Although the majority correctly points out that ‘‘[w]e
do not sit as the ‘seventh juror’ when we review the
sufficiency of the evidence’’; State v. Ford, supra, 230
Conn. 693; we also may not abdicate our constitutional
responsibility to ensure that a criminal conviction is
supported by sufficient evidence to find the defendant
guilty beyond a reasonable doubt. Our sufficiency
review ‘‘is not entirely toothless . . . for [w]e do not
. . . fulfill our duty through rote incantation of [the
principles governing a review of sufficiency of evi-
dence] followed by summary affirmance.’’ (Citation
omitted; internal quotation marks omitted.) United
States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir.), cert.
denied, 510 U.S. 928, 114 S. Ct. 337, 126 L. Ed. 2d 281
(1993). Although ‘‘[a] jury is entitled to draw a vast
range of reasonable inferences from [the] evidence, [it]
may not base a verdict on mere speculation’’; (internal
quotation marks omitted) id.; ‘‘and caution must be
taken that the conviction not be obtained by piling
inference on inference.’’ (Internal quotation marks
omitted.) United States v. Jones, 44 F.3d 860, 865 (10th
Cir. 1995).
B
I now turn to the law of constructive possession.2
Constructive possession is a ‘‘legal fiction . . . .’’
(Internal quotation marks omitted.) United States v.
Jones, 872 F.3d 483, 489 (7th Cir. 2017), cert. denied,
U.S. , 138 S. Ct. 936, 200 L. Ed. 2d 211 (2018),
and cert. denied, U.S. , 138 S. Ct. 1023, 200 L.
Ed. 2d 283 (2018); see id. (‘‘[c]onstructive possession
is a legal fiction whereby a person is deemed to possess
[a gun] even when he does not actually have immediate,
physical control of the [gun]’’ (internal quotation marks
omitted)); State v. Williams, 110 Conn. App. 778, 787,
956 A.2d 1176 (describing ‘‘the legal fiction of construc-
tive possession that can be inferred from the circum-
stances and can be the equivalent of actual posses-
sion’’), cert. denied, 289 Conn. 957, 961 A.2d 424 (2008).
The doctrine of constructive possession was devised
to prevent individuals from evading culpability simply
by divesting themselves of physical possession of, or
title to, contraband while nonetheless maintaining
dominion or control over the contraband in fact. See,
e.g., Henderson v. United States, 575 U.S. 622, 627, 135
S. Ct. 1780, 191 L. Ed. 2d 874 (2015) (‘‘[t]he idea of
constructive possession is designed to preclude’’ indi-
viduals from divesting themselves of physical custody
and title by ‘‘arranging a sham transfer that leaves
[them] in effective control of [the contraband]’’); United
States v. Bentvena, 319 F.2d 916, 950 (2d Cir.) (‘‘Quite
frequently, the ringleaders or overlords of the narcotics
business do not stultify themselves by possession when
handlers can be so cheaply hired. Therefore, in an effort
to bring a modicum of reality into the picture,’’ the
courts created the doctrine of constructive posses-
sion.), cert. denied sub nom. Ormento v. United States,
375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963). The
doctrine ‘‘allow[s] the law to reach beyond puppets to
puppeteers.’’ (Internal quotation marks omitted.) Hen-
derson v. United States, supra, 627.
At a conceptual level, the need for the doctrine of
constructive possession arises from an ambiguity in
the operative word, ‘‘possession.’’3 The ambiguity stems
from the fact that ‘‘to possess’’ connotes a direct physi-
cal relationship between the possessor and the item at
issue, at least when used in reference to tangible things;
to possess a thing is to have and hold it. See, e.g.,
Webster’s Third New International Dictionary (1961) p.
1770 (defining ‘‘possess’’ as, inter alia, ‘‘to have and
hold as property’’).4 It is this physical aspect of posses-
sion that created the need to develop a doctrine of
‘‘constructive’’ possession in the law, because the word
must extend beyond a purely physical meaning to serve
a useful role in structuring legal relations. Otherwise,
‘‘one could only possess what was under his hand.’’ O.
Holmes, The Common Law (1881) p. 236.
Jurists have long recognized that the modifier ‘‘con-
structive’’ must not be allowed to overwhelm the inher-
ent limitation contained in the operative word, ‘‘posses-
sion.’’ Judge Edward A. Tamm wrote the following
cautionary words on this subject almost fifty years ago:
‘‘The rhetorical legerdemain compounded in this area
of the law invokes abstractions which appear more
designed to achieve a particular result in an individual
case than to stabilize and formalize a workable index
of objective standards. The more cases one reads on
constructive possession the deeper is he plunged into
a thicket of subjectivity. Successive cases enumerate a
continuing [reinterpretation] which can only be
described as judicial whimsy.’’ United States v. Holland,
445 F.2d 701, 703 (D.C. Cir. 1971) (Tamm, J., concur-
ring); cf. Berkey v. Third Avenue Railway Co., 244 N.Y.
84, 94, 155 N.E. 58 (1926) (Cardozo, J.) (‘‘[m]etaphors
in law are to be narrowly watched, for starting as
devices to liberate thought, they end often by enslaving
it’’). The majority’s treatment of constructive posses-
sion in the present case, in my view, fails to adequately
police the outer boundaries of the doctrine and, in doing
so, fails to ensure that criminal laws of uncertain scope
are interpreted and applied narrowly rather than expan-
sively. See, e.g., State v. LaFleur, 307 Conn. 115, 126, 51
A.3d 1048 (2012) (‘‘[w]hen the statute being construed
is a criminal statute, it must be construed strictly against
the state and in favor of the accused’’ (internal quotation
marks omitted)).
Because the very concept of constructive possession
is an abstraction, virtually every jurisdiction, including
Connecticut, has found it necessary to develop doc-
trinal aids to help facilitate its application to the facts
of any particular case. We begin with our penal code,
which provides that ‘‘ ‘[p]ossess’ means to have physical
possession or otherwise to exercise dominion or con-
trol over tangible property . . . .’’ (Emphasis added.)
General Statutes § 53a-3 (2). Courts have added a judi-
cial gloss to the statutory ‘‘dominion or control’’ lan-
guage because those words,5 like the word possession
itself, are too broad to illuminate the nature and degree
of control that equates to actual physical possession.
Some of these judicial refinements are more useful than
others. I see no value at all in borrowing, as the majority
does, from the formulation articulated in 1978 by the
United States Court of Appeals for the District Colum-
bia, which asks if the evidence has the ‘‘capability plau-
sibly to suggest the likelihood that in some discernable
fashion the accused had a substantial voice vis-à-vis
the [contraband].’’ United States v. Staten, 581 F.2d
878, 884 (D.C. Cir. 1978). It is likewise unhelpful, in my
view, to ask whether the defendant has the ‘‘power or
authority to guide or manage’’ the contraband. (Internal
quotation marks omitted.) State v. Hill, 201 Conn. 505,
516, 523 A.2d 1252 (1986). These standards are fine as
generic statements describing the doctrine, but they
add no practical value because they do little more than
substitute one vague term for another and because they
fail to provide useful guidance for determining the
nature and degree of control, dominion, power or
authority that will be considered sufficient to equate
to actual physical possession.
Far greater assistance is provided by the simple prin-
ciple that was invoked by the prosecutor, the defense,
and the trial court in the present case to define the
essence of constructive possession. The majority
describes the consensus in this way: ‘‘In addressing the
jury, the prosecutor, defense counsel, and the trial court
all referred to [constructive possession] as the practical
ability of the defendant to ‘go and get’ the gun [if she
wished to do so], or the practical ability to obtain actual
physical possession of it.’’ Constructive possession, in
other words, means that the defendant had both the
intention and the practical ability to reduce the contra-
band to her actual physical possession if she so desired.6
See, e.g., Henderson v. United States, supra, 575 U.S.
630 (defining constructive possession under federal
felon in possession statute, 18 U.S.C. § 922 (g), as ‘‘hav[-
ing] the ability to use or direct the use of [the] fire-
arms’’); United States v. Chauncey, 420 F.3d 864, 873
(8th Cir. 2005) (‘‘[t]he linchpin of the ownership, domin-
ion, or control required for constructive possession is
not direct, physical control, but the ability to reduce an
object to actual possession’’ (internal quotation marks
omitted)), cert. denied, 547 U.S. 1009, 126 S. Ct. 1480,
164 L. Ed. 2d 258 (2006); United States v. Jenkins, 90
F.3d 814, 822 (3d Cir. 1996) (Cowen, J., dissenting) (‘‘the
terms dominion and control are to be interpreted as
the ability to reduce an object to actual possession’’
(internal quotation marks omitted)); United States v.
Caballero, 712 F.2d 126, 129 (5th Cir. 1983) (‘‘[i]n
essence, constructive possession is the ability to reduce
an object to actual possession’’ (internal quotation
marks omitted)); State v. Richards, 286 S.W.3d 873,
884–85 (Tenn. 2009) (Koch, J., dissenting) (defining con-
structive possession as ‘‘the ability to reduce an object
to actual possession’’ (internal quotation marks omit-
ted)); State v. Jones, 146 Wash. 2d 328, 333, 45 P.3d 1062
(2002) (‘‘A defendant has actual possession when he or
she has physical custody of the item and constructive
possession if he or she has dominion and control over
the item. . . . Dominion and control means that the
object may be reduced to actual possession immedi-
ately.’’ (Citation omitted.)); cf. Bulkley v. Dolbeare, 7
Conn. 232, 234–35 (1828) (to have constructive posses-
sion of property, ‘‘a plaintiff must have such a right as
to be entitled to reduce the goods to actual possession,
when he pleases’’ (internal quotation marks omitted)).
Our constructive possession jurisprudence provides
additional guidance when, as in the present case, the
state’s case is not predicated on a claim of exclusive
possession of the contraband but, instead, on the theory
that the defendant and another person were in joint
possession of the contraband. See footnote 1 of this
opinion. ‘‘[When] the defendant is not in exclusive pos-
session of the premises where the [contraband is]
found, it may not be inferred that [the defendant] knew
of the presence of the [contraband] and had control of
[it], unless there are other incriminating statements or
circumstances tending to buttress such an inference.’’
(Internal quotation marks omitted.) State v. Johnson,
316 Conn. 45, 58, 111 A.3d 436 (2015). ‘‘Accordingly,
[t]o mitigate the possibility that innocent persons might
be prosecuted for possessory offenses . . . it is essen-
tial that the state’s evidence include more than just a
temporal and spatial nexus between the defendant and
the contraband.’’ (Internal quotation marks omitted.)
State v. Bowens, 118 Conn. App. 112, 121, 982 A.2d 1089
(2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010).
‘‘In such cases, the government is required to present
direct or circumstantial evidence to show some connec-
tion or nexus individually linking the defendant to the
contraband.’’ (Internal quotation marks omitted.) State
v. Johnson, supra, 62. Furthermore, there must be ‘‘a
compelling correlation between the actions of a defen-
dant prior to arrest and the conclusion of dominion and
control’’ in order for a reviewing court to ‘‘find that the
jury’s conclusion was a reasonable inference.’’ State v.
Billie, 123 Conn. App. 690, 701, 2 A.3d 1034 (2010).
C
The remaining task is to apply the foregoing legal
principles to determine whether the evidence of con-
structive possession was sufficient to support the jury’s
verdict. I agree with the majority that, after the shooting,
the evidence plainly was sufficient to support a reason-
able inference that the defendant knew that Spann was
in actual physical possession of a firearm. As I have
discussed, however, driving a car with the knowledge
that a passenger is in actual physical possession of a
firearm is not enough to support an inference of con-
structive possession; the state must adduce evidence
‘‘individually linking’’ the defendant to the passenger’s
firearm. (Emphasis added; internal quotation marks
omitted.) State v. Johnson, supra, 316 Conn. 62. The
majority believes that ‘‘four circumstances’’ provided
the crucial link between the defendant and Spann’s
firearm: (1) her control of the car; (2) her flight from
the police; (3) her relationship with Spann; and (4) her
physical access to Spann’s firearm. I address each of
these circumstances in turn and conclude, for the rea-
sons that follow, that they are insufficient, both individ-
ually and collectively, to sustain the defendant’s con-
viction.
First, as the majority acknowledges, when the defen-
dant is not in exclusive possession of the residence or
vehicle in which the contraband is found,7 mere proxim-
ity to the contraband and knowledge of its presence
are ‘‘not enough to establish constructive possession.’’
(Internal quotation marks omitted.) Id. ‘‘The driver of a
vehicle can transport passengers and their possessions
without’’ being in constructive possession of ‘‘every
object in the vehicle.’’ Flores-Abarca v. Barr, 937 F.3d
473, 483 (5th Cir. 2019); see also State v. Foster, 128
Haw. 18, 30, 282 P.3d 560 (2012) (holding that evidence
was insufficient to support defendant driver’s convic-
tion of being felon in possession of firearm, even though
he knew his passenger was in actual physical posses-
sion of firearm, because control over car ‘‘is not by
itself enough to establish constructive possession of
contraband found there’’ (internal quotation marks
omitted)). The United States Court of Appeals for the
Fifth Circuit has aptly observed that dominion and con-
trol ‘‘over the vehicle . . . alone cannot establish con-
structive possession of a weapon found in the vehicle,
particularly in the face of evidence that strongly sug-
gests that somebody else exercised dominion and con-
trol over the weapon. . . . Although knowledge of a
firearm’s presence may be evidence of possession,
knowing transportation does not conclusively establish
constructive possession as a matter of law.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Flores-Abarca v. Barr, supra, 483.
The majority states that there are ‘‘additional circum-
stances under which the defendant operated the vehi-
cle’’ in the present case that ‘‘buttressed an inference
of an intent to control the gun contained within the
vehicle . . . .’’ Footnote 13 of the majority opinion.
According to the majority, these additional circum-
stances include ‘‘that she drove the vehicle to the place
where Spann discharged the gun’’ and that she ‘‘waited
for him to get back in the vehicle with the gun after
the shooting, notwithstanding that she was a felon
. . . .’’8 Id. The flaw in the majority’s reasoning is that
these particular facts have no probative value, unless
one assumes that the defendant was Spann’s knowing
accomplice to a premeditated crime using Spann’s fire-
arm, which, as I discuss later in this opinion, is a theory
that the jury affirmatively rejected by acquitting the
defendant of the crime of attempt to commit assault in
the first degree in violation of General Statutes §§ 53a-
59 (a) (1) and 53a-49 (a) (2). There is no evidence that
the defendant even knew about Spann’s firearm, much
less that he intended to use it, until the moment the
shooting occurred. By all accounts, Spann was back in
the vehicle within a matter of seconds thereafter. In
my view, it is speculative and, therefore, unreasonable
to conclude that the defendant’s operation of a motor
vehicle under these factual circumstances was indica-
tive of an intent to exercise control over Spann’s fire-
arm, as opposed to the vehicle in which Spann carried
his firearm.
Simply put, the state failed to adduce any evidence
linking the defendant to either Spann’s firearm or any
related criminality at any time prior to the shooting.
There was no evidence, for example, that the defendant
was involved in Spann’s drug dealing enterprise. There
were no drugs, drug packaging materials or significant
amounts of cash found on the defendant’s person or
recovered from the interior of the vehicle. The state
offered no evidence of any historical connection
between the defendant and Spann’s drug dealing. Like-
wise, there was no forensic evidence, such as finger-
print, DNA or ballistic evidence, individually linking the
defendant to Spann’s firearm, there was not any direct
or circumstantial evidence indicating that the defendant
had handled Spann’s firearm that day or on any prior
occasion, and there was no evidence that the defendant
requested access to the firearm, reached out for the
firearm, or leaned across the front seat in an effort to
acquire the firearm from Spann. Nor was there any
evidence indicating that Spann would have been willing
to surrender physical possession of the firearm to the
defendant upon request. The state, moreover, was
unable to fill in these gaps using any inculpatory state-
ments made by Spann or the defendant to the police
regarding the defendant’s possession of the firearm or
participation in the shooting. This case, in other words,
is devoid of the type of evidence that the courts of this
state have found sufficient to link a defendant individu-
ally to contraband in nonexclusive possession cases.
Cf. State v. Winfrey, 302 Conn. 195, 210–13, 24 A.3d
1218 (2011) (evidence was sufficient to establish that
defendant driver knew of and exercised dominion and
control over drugs found in center console of vehicle
registered to defendant’s wife when, following stop for
motor vehicle violation, defendant was seen dropping
and swallowing package of suspected heroin to escape
criminal liability and had more than $550 in cash and
rolling papers on his person at time of arrest); State v.
Butler, 296 Conn. 62, 79, 993 A.2d 970 (2010) (evidence
was sufficient to support inference that defendant
driver possessed narcotics found in console of vehicle
because defendant’s ‘‘manipulation of the console
within which the narcotics were discovered, presum-
ably to conceal that contraband, buttressed the jury’s
inference that the defendant knew about the narcotics
and had control over them,’’ and ‘‘there was significant
evidence from which it was reasonable for the jury to
infer that the defendant was a narcotics dealer’’); State
v. Bowens, supra, 118 Conn. App. 123–26 (evidence
was sufficient to support defendant driver’s criminal
possession of firearm conviction because, in addition
to fleeing from police, heroin and marijuana were found
in car, defendant was in possession of $1293 in cash,
shell casing found in car matched bullet from firearm
recovered by police, and defendant had personal motive
to carry firearm because he had been involved in shoot-
ing earlier that day); State v. Sanchez, 75 Conn. App.
223, 237–42, 815 A.2d 242 (evidence was sufficient to
support inference that defendant driver had construc-
tive possession of drugs because defendant was seen
smoking marijuana filled cigar, officers smelled mari-
juana, defendant fled police while discarding cigar, and
narcotics were found in plain view in open ashtray),
cert. denied, 263 Conn. 914, 821 A.2d 769 (2003); State
v. Grant, 51 Conn. App. 824, 829, 725 A.2d 367 (evidence
was sufficient to support inference of constructive pos-
session because ‘‘[t]wo experienced detectives familiar
with the defendant identified him as the driver of the
car and observed him receive money from a female and
give her an item from a paper bag in a high drug traffic
area,’’ defendant ‘‘fled in his car when [a police officer]
ordered him to shut off his engine,’’ and defendant was
observed ‘‘throw[ing] the paper bag from his car’’), cert.
denied, 248 Conn. 916, 734 A.2d 568 (1999). But cf. State
v. Cruz, 28 Conn. App. 575, 580–81, 611 A.2d 457 (1992)
(reversing defendant driver’s conviction for possession
of marijuana and possession of drug paraphernalia
because defendant did not own vehicle in which mari-
juana seed and rolling papers were found, defendant’s
statement about past marijuana use was ‘‘minimally
probative of the issue of dominion and control of the
seed,’’ and ‘‘[t]he evidence . . . equally supported a
conclusion that the defendant was unaware of the pres-
ence of either the seed or the rolling papers and did
not exercise dominion and control over them’’).9
This brings us to what I consider the heart of the
case. The majority attributes great significance to the
fact that the defendant ‘‘drove the vehicle 1.2 miles
while being chased by the police in an effort to evade
arrest’’ and considers this evasive conduct to be the
second circumstance supporting the inference that the
defendant was in constructive possession of Spann’s
firearm. Footnote 13 of the majority opinion. More spe-
cifically, the majority concludes that the defendant’s
flight from the police (1) supported a reasonable infer-
ence that she drove the car with an intent to control
the firearm itself in order to prevent the police from
seizing the firearm after the shooting, and (2) revealed
the defendant’s consciousness of guilt with respect to
the possession charge. I disagree. The issue is not
whether the defendant’s flight was criminal in nature
or whether it may have been punishable under some
other provision of the penal law, such as having a
weapon in a motor vehicle in violation of § 29-38 (a).
See part II of this opinion. More narrowly still, the
issue is not whether the defendant’s flight is evidence
connecting her to the shooting committed by Spann or
whether it reflects a guilty mind with regard to the
shooting. Rather, the one issue that matters on appeal is
whether the defendant’s conduct supports a reasonable
inference that she likely was fleeing the scene—not
merely to avoid capture, and not merely to avoid her
friend being arrested—with the intention to exercise
dominion or control over Spann’s firearm. On this
record, I consider such a conclusion wholly speculative.
‘‘[T]he probative value of evidence of flight is, in large
part, dependent upon facts pointing to the motive [that]
prompted it.’’ State v. Piskorski, 177 Conn. 677, 723,
419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283,
62 L. Ed. 2d 194 (1979). ‘‘We repeatedly have recognized
that evidence of flight from the scene of a crime inher-
ently is ambiguous.’’ State v. Luster, 279 Conn. 414, 423,
902 A.2d 636 (2006). These observations apply fully to
our consideration of the defendant’s flight as evidence
of her specific intention to control Spann’s firearm. The
defendant’s flight under the circumstances of this case
might have been prompted by various possible motiva-
tions or some combination thereof. Perhaps she simply
was trying to help her friend escape apprehension. Or
maybe she fled the scene out of pure undifferentiated
fear, resulting from nothing more complicated than the
obvious and overwhelming fact that she suddenly found
herself in the middle of a highly volatile situation involv-
ing criminal activity perpetrated by her friend sitting
in the passenger seat. In other words, the defendant
could have been motivated by a ‘‘fight or flight’’ instinct,
which prompted her to flee rather than to remain at
the scene. The defendant might have been motivated
by a sense of self-preservation, upon realizing that her
very presence in the car, under the circumstances, cre-
ated a high risk that she herself would be implicated
in Spann’s criminal activity. In addition, we have come
to recognize that social factors unrelated to actual guilt
or innocence often will also figure into a person’s deci-
sion to flee due to that person’s concerns about the
perceptions that the police may formulate as a result
of demographic considerations. See State v. Edmonds,
323 Conn. 34, 74, 145 A.3d 861 (2016) (‘‘[a]mong some
citizens, particularly minorities and those residing in
high crime areas, there is also the possibility that the
fleeing person is entirely innocent but, with or without
justification, believes that contact with the police can
itself be dangerous, apart from any criminal activity
associated with the officer’s sudden presence’’ (internal
quotation marks omitted)). Of course, I cannot say
which of these (or any other) possibilities describe the
actual motivations behind the defendant’s flight
because I have no way to know. But this is precisely
the point. A jury’s preference for one psychological
explanation over another, like my own, could only be
based on guesswork under the present factual circum-
stances.
If only to demonstrate that we are left merely to
speculate among possibilities, I note my own view that,
of the various possible inferences that have been pro-
posed to explain why the defendant fled the scene and
sought to evade the police, I consider the least plausible
to be the idea that her flight, more likely than not, was
motivated by a conscious desire to exercise control
over Spann’s firearm, as distinct from the car in which
Spann’s firearm happened to be located. Without
more—and there is not more on this record—the suppo-
sition strikes me as particularly far-fetched. Again, there
is no evidence that the defendant exhibited any particu-
larized interest in Spann’s firearm or that she, by words
or action, demonstrated any ‘‘individualized’’ connec-
tion to the firearm. She did not, for example, reach out
for the firearm, lean across the front seat and across
(or under) Spann’s body to grab the firearm, or engage
in any other conduct indicating any particularized con-
cern regarding the firearm. Cf. State v. Bowens, supra,
118 Conn. App. 123–24 (noting, among other indicia of
intent, that ‘‘the defendant fled from the police and
only the revolver was discarded, leaving the heroin and
marijuana in the car,’’ which ‘‘suggest[ed] that the moti-
vation in fleeing was to jettison the revolver’’); McDan-
iels v. United States, 718 A.2d 530, 531–32 (D.C. 1998)
(upholding defendant’s conviction because jury reason-
ably could have inferred from defendant’s flight from
police and attempted concealment of weapon that he
was part of ‘‘an ongoing criminal operation’’ involving
possession of weapon); Logan v. United States, 489
A.2d 485, 491–92 (D.C. 1985) (evidence was sufficient
to support inference of constructive possession
because jury reasonably could have found that defen-
dant driver ‘‘pulled the car over and slowed down to
permit [the front seat passenger] to open—and hold
open—the passenger door (of a two-door vehicle) from
the front seat while [the back seat passenger] . . .
tossed out the gun from the rear, lower portion of the
door’’). On this evidentiary record, there are ‘‘so many
reasons’’ for the defendant’s flight ‘‘that it scarcely
comes up to the standard of evidence tending to estab-
lish guilt . . . .’’ (Internal quotation marks omitted.)
Alberty v. United States, 162 U.S. 499, 510, 16 S. Ct.
864, 40 L. Ed. 1051 (1896); see also State v. Billie, supra,
123 Conn. App. 700 (inference of dominion and control
over contraband must be based on more than ‘‘possibili-
ties, surmise or conjecture’’).
The defendant was not in constructive possession of
Spann’s firearm at the moment prior to taking flight,
and she did not acquire constructive possession of the
firearm by driving away with Spann still in possession
of that firearm. Stated another way, her flight did not
change her possessory status vis-à-vis Spann’s firearm.
The circumstances would be different if the defendant
had been involved in the shooting as a principal or
accessory, if Spann’s firearm was stowed within her
reach during the police chase, if Spann had fled and
left the defendant with unobstructed access to the fire-
arm, or if the defendant’s flight had caused some other
change in circumstances creating a direct nexus
between the defendant and the firearm itself. But the
state established none of these things, by reasonable
inference or otherwise.
For much the same reason, flight cannot serve to
demonstrate the defendant’s consciousness of guilt on
these facts. ‘‘[C]onsciousness of guilt [is not] an element
of the crime charged; the [g]overnment ha[s] to show
that [the defendant intentionally] possessed [the contra-
band], not that she was aware that she might be involved
in some sort of criminal activity.’’ United States v.
Morales, 577 F.2d 769, 773 (2d Cir. 1978). Evidence of
this nature is generally understood to be of dubious
probative value, and for good reason.10 See, e.g., State
v. Jones, 234 Conn. 324, 356, 662 A.2d 1199 (1995) (con-
sciousness of guilt evidence ‘‘is a species of evidence
that should be viewed with caution; it should not be
admitted mechanically’’ (internal quotation marks
omitted)).
One reason that the probative value of flight evidence
is regarded with caution is that the conclusion that
flight indicates guilt requires four intermediate inferen-
tial steps. ‘‘The probative value of flight as evidence of
a defendant’s guilt depends on the degree of confidence
with which four inferences can be drawn: (1) from
behavior to flight; (2) from flight to consciousness of
guilt; (3) from consciousness of guilt to consciousness
of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged
to actual guilt of the crime charged.’’ (Internal quotation
marks omitted.) State v. Scott, 270 Conn. 92, 105, 851
A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S. Ct.
1861, 161 L. Ed. 2d 746 (2005). Numerous courts have
observed that ‘‘[t]he use of evidence of flight has been
criticized on the grounds that the second and fourth
inferences are not supported by common experience
and it is widely acknowledged that evidence of flight
or related conduct is ‘only marginally probative as to
the ultimate issue of guilt or innocence.’ ’’ United States
v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), quoting
United States v. Robinson, 475 F.2d 376, 384 (D.C. Cir.
1973). For this and related reasons, it is well established
that consciousness of guilt alone is insufficient to sup-
port a criminal conviction. See State v. Rosa, 170 Conn.
417, 433, 365 A.2d 1135 (‘‘[t]he flight of the person
accused of [a] crime . . . when considered together
with all the facts of the case, may justify an inference of
the accused’s guilt’’ (emphasis added; internal quotation
marks omitted)), cert. denied, 429 U.S. 845, 97 S. Ct.
126, 50 L. Ed. 2d 116 (1976); see also United States v.
Pagán-Ferrer, 736 F.3d 573, 594 (1st Cir. 2013) (trial
court’s instruction that ‘‘[n]o one can be convicted of
a crime on the basis of consciousness of guilt alone’’
was proper (internal quotation marks omitted)), cert.
denied sub nom. Vidal-Maldonado v. United States, 573
U.S. 933, 134 S. Ct. 2839, 189 L. Ed. 2d 810 (2014); United
States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975) (hold-
ing that evidence of consciousness of guilt is ‘‘insuffi-
cient proof on which to convict where other evidence
of guilt is weak and the evidence before the court is
as hospitable to an interpretation consistent with the
defendant’s innocence as it is to the [g]overnment’s
theory of guilt’’); People v. Kelly, 1 Cal. 4th 495, 531,
822 P.2d 385, 3 Cal. Rptr. 2d 677 (under California law,
jury may consider evidence of consciousness of guilt,
‘‘but it is not sufficient by itself to prove guilt’’ (empha-
sis in original)), cert. denied, 506 U.S. 881, 113 S. Ct.
232, 121 L. Ed. 2d 168 (1992); Commonwealth v. Toney,
385 Mass. 575, 585, 433 N.E.2d 425 (1982) (jury cannot
‘‘convict a defendant on the basis of evidence of flight
or concealment alone’’); People v. Yazum, 13 N.Y.2d
302, 304, 196 N.E.2d 263, 246 N.Y.S.2d 626 (1963) (distin-
guishing between admissibility and sufficiency of con-
sciousness of guilt evidence).
In the present case, the defendant’s flight is not proba-
tive of her consciousness of guilt with respect to the
theory that she was in possession of Spann’s firearm
for the same reasons it is not probative of her intent
to possess Spann’s firearm. Whether she fled out of
undifferentiated fear, because she understood immedi-
ately that any claim of innocence, however truthful,
would not be accepted by law enforcement under the
circumstances, because she wanted to protect her
friend Spann, or even because she believed herself to
be actually guilty of some criminal act relating to the
shooting (such as attempted assault or interfering with
a police officer, for which she ultimately was acquitted
by the jury), it is not reasonable to conclude on this
record that she probably fled because she believed her-
self to be guilty of possessing Spann’s firearm. ‘‘[T]he
interpretation to be gleaned from an act of flight should
be made with a sensitivity to the facts of the particular
case’’ because flight might be indicative of an intent to
flee ‘‘an entirely different crime . . . .’’ United States
v. Ramon-Perez, 703 F.2d 1231, 1233 (11th Cir.), cert.
denied, 464 U.S. 841, 104 S. Ct. 136, 78 L. Ed. 2d 130
(1983). When a criminal defendant has been charged
with multiple crimes, evidence of consciousness of guilt
as to one crime does not equate to evidence of con-
sciousness of guilt of a different crime. See, e.g., United
States v. Atchley, 474 F.3d 840, 853 (6th Cir.) (observing
that defendant’s ‘‘alleged flight could have been due to
the murder charge and not the charges here’’), cert.
denied, 550 U.S. 965, 127 S. Ct. 2447, 167 L. Ed. 2d 1145
(2007); United States v. Hernandez-Bermudez, 857 F.2d
50, 53 (1st Cir. 1988) (‘‘[T]here is a difference between
a consciousness of guilt about possessing cocaine and
guilt about intending to distribute the drug. [The]
[d]efendant’s testimony acknowledged the former, but
not the latter. But we doubt that [the defendant’s] flight
could any more show consciousness of guilt over the
distribution of cocaine than over its conceded posses-
sion.’’ (Emphasis in original.)). I doubt it, but the defen-
dant’s flight might have been indicative of her con-
sciousness of actual guilt as to certain criminal offenses
that are not at issue in this appeal, such as using a motor
vehicle without the owner’s permission. See General
Statutes § 53a-119b (a). It is not indicative of her con-
sciousness of guilt of the specific crime under consider-
ation—criminal possession of Spann’s firearm in viola-
tion of § 53a-217 (a).
The majority, quoting State v. Otto, 305 Conn. 51, 74,
43 A.3d 629 (2012), relies on the uncontroverted but
also unhelpful premise that the jury was ‘‘ ‘not required
to draw only those inferences consistent with inno-
cence’ ’’ to conclude that ‘‘the possibility of other, inno-
cent ‘inferences from these facts is not sufficient to
undermine [the jury’s] verdict . . . .’ ’’ Of course that
is true. It does not follow, however, that the plausibility
of the inculpatory inferences is immaterial to our suffi-
ciency review. As we explained in State v. Reynolds,
supra, 264 Conn. 1, ‘‘[a]n inference is not legally support-
able . . . merely because the scenario that it contem-
plates is remotely possible under the facts. To permit
such a standard would be to sanction fact-finding predi-
cated on mere conjecture or guesswork. Proof by infer-
ence is sufficient, rather, only if the evidence produces
in the mind of the trier a reasonable belief in the proba-
bility of the existence of the material fact.’’ (Emphasis
in original; internal quotation marks omitted.) Id., 97.
Under the factual circumstances of the present case,
an inference that the defendant fled the scene of the
shooting in order to exercise dominion or control over
Spann’s firearm is possible but by no means reasonably
probable. See id., 97–98 (holding that evidence was
insufficient to establish aggravating factor under Gen-
eral Statutes (Rev. to 1991) § 53a-46a (h) (4), even
though ‘‘it probably would not have been impossible
for the defendant to have formulated the intent to tor-
ture [the victim] in the extremely brief period of time
between the firing of the first shot and the firing of
additional gunshots’’ because ‘‘the likelihood that the
defendant had changed his intent . . . is too remote
to be reasonable’’ (emphasis in original)).
In summary, the evidence of flight adds no force
to the otherwise insufficient evidence of constructive
possession. Pointing to the defendant’s consciousness
of guilt or her subjective belief that she may be guilty
of a crime cannot provide the state with the evidence
of constructive possession that it otherwise lacks.
The third circumstance that the majority relies on,
the defendant’s relationship with Spann, fares no better
and supplies no additional weight to support the defen-
dant’s conviction. It is a fundamental precept that mere
friendship or association with a known criminal ‘‘does
not establish a logical connection with the [criminal’s]
crime.’’ State v. Kelsey, 160 Conn. 551, 553, 274 A.2d
151 (1970). Indeed, we previously have observed that
it ‘‘would clearly be improper’’ for the jury to infer guilt
on the basis of ‘‘mere association . . . .’’ Id., 554; see
also United States v. Di Re, 332 U.S. 581, 593, 68 S.
Ct. 222, 92 L. Ed. 210 (1948) (reversing defendant’s
conspiracy conviction, even though he was present in
car in which counterfeit ration coupons were found,
because ‘‘[p]resumptions of guilt are not lightly to be
indulged from mere meetings’’); United States v. Nus-
raty, 867 F.2d 759, 764 (2d Cir. 1989) (reversing defen-
dant’s conviction of conspiracy to possess heroin with
intent to distribute because ‘‘mere association with
those implicated in an unlawful undertaking is not
enough to prove knowing involvement’’).
The claim is especially weak in the present case
because the jury affirmatively rejected the state’s theory
that the defendant intended to facilitate the shooting
by acting as Spann’s getaway driver. The state pursued
its getaway driver theory with respect to the charge of
attempt to commit assault in the first degree, but the
jury was not persuaded and found the defendant not
guilty of aiding Spann in the shooting. Because the
trial was bifurcated, the jury considered the charge of
criminal possession of a firearm after the defendant
had been found not guilty of aiding Spann’s attempted
assault and interfering with an officer but guilty of hav-
ing a weapon in a motor vehicle, using a motor vehicle
without the owner’s permission, and reckless driving.
With respect to the criminal possession charge, the jury
was not instructed on accessorial liability, and the state
did not argue that the defendant constructively pos-
sessed Spann’s firearm by acting as his getaway driver.
Instead, the state argued that the defendant construc-
tively possessed Spann’s firearm because ‘‘she was
aware of . . . the presence of the gun’’ and she easily
could ‘‘get it’’ within the close confines of the motor
vehicle. Thus, although the majority declines to accept
this simple fact, the state in its closing argument entirely
abandoned its joint criminal venture theory, premised
on the defendant being Spann’s getaway driver, in favor
of a theory that the defendant was in constructive pos-
session of Spann’s firearm because she could ‘‘exercise
dominion and control [over it] within [the] relatively
small space of the interior of the [vehicle].’’
The majority thus advances a ‘‘getaway driver’’ theory
in support of the possessory crime that the state itself
did not make in its argument to the jury on that charge.
The risk of becoming a seventh juror, it seems, is open
to all comers. Our duty to construe the evidence in the
light most favorable to sustaining the verdict should
not, in my view, be taken as an invitation to substitute
new legal theories for the arguments used by the state
to obtain the conviction at trial. Cf. State v. Carter, 317
Conn. 845, 853–54, 120 A.3d 1229 (2015) (‘‘When the
state advances a specific theory of the case at trial . . .
sufficiency of the evidence principles ‘cannot be applied
in a vacuum. Rather, they must be considered in con-
junction with an equally important doctrine, namely,
that the state cannot change the theory of the case
on appeal.’ ’’). Moreover, the state did not advance a
getaway driver theory on the possession charge for
good reason, namely, because the jury already had
rejected that theory when it acquitted the defendant of
attempted assault by acting as Spann’s accomplice in
the shooting. The majority’s efforts to resurrect the
state’s abandoned and rejected theory are unavailing.11
This brings me to the fourth and weakest circum-
stance relied on by the majority—the fact that ‘‘the
defendant sat within arm’s reach of the gun throughout
the afternoon.’’ What this theory ignores is that there
was, at all times, an animate physical mass separating
the defendant’s arm from the firearm, and his name
was Lamar Spann. There is no evidence of any kind
that Spann’s firearm was even momentarily stowed in
the center console, the glove compartment, or any other
communal space within the vehicle to which the defen-
dant had access. Instead, the evidence before the jury
established that Spann had the firearm either on or
under his person at all relevant times.12 Because the
firearm was in Spann’s exclusive physical possession,
the defendant’s proximity to Spann in the relatively
small confines of the interior of the car is insufficient
to support a reasonable inference that she had the abil-
ity and intent to exercise dominion and control over
his firearm, that is, to ‘‘go and get it.’’ As the District
of Columbia Court of Appeals explained: ‘‘[T]here is no
‘automobile’ exception to the settled general rule that
knowledge and proximity alone are insufficient to prove
constructive possession of [contraband] beyond a rea-
sonable doubt. . . . As in all other constructive posses-
sion cases, there must be something more in the totality
of the circumstances—a word or deed, a relationship or
other probative factor—that, considered in conjunction
with the evidence of proximity and knowledge, proves
beyond a reasonable doubt that the [defendant]
intended to exercise dominion or control over the [con-
traband], and was not a mere bystander.’’ (Emphasis
in original.) Rivas v. United States, 783 A.2d 125, 128
(D.C. 2001). Although ‘‘[i]t may be foolish to stand by
when others are acting illegally, or to associate with
those who have committed a crime . . . [s]uch con-
duct or association . . . without more, does not estab-
lish’’ constructive possession. (Emphasis in original;
internal quotation marks omitted.) Id., 130; see State v.
Nova, 161 Conn. App. 708, 724, 129 A.3d 146 (2015)
(reversing defendant’s possession of narcotics convic-
tion because defendant’s ‘‘mere proximity’’ to contra-
band and interaction with individual who had snorted
some unknown substance was insufficient to establish
dominion or control over contraband, and ‘‘[t]o con-
clude otherwise required the [trial] court to engage
in impermissible speculation’’); State v. Fermaint, 91
Conn. App. 650, 657–63, 881 A.2d 539 (evidence was
insufficient to establish that defendant violated his pro-
bation by possessing narcotics because driver of vehicle
was in actual physical possession of narcotics, and evi-
dence that defendant, who was passenger in vehicle,
engaged in ‘‘nondescript furtive movement’’ before traf-
fic stop and was in proximity to crumbs of crack cocaine
found on seat did not establish individual connection
between defendant and narcotics), cert. denied, 276
Conn. 922, 888 A.2d 90 (2005).
The majority points out that ‘‘[t]he jury did not have
to credit’’ Spann’s testimony that the firearm was in his
exclusive physical possession before, during, and after
the shooting, and that it was ‘‘entitled to credit Spann’s
testimony that the gun was located in the area of the
front seat while discrediting his claims that he physi-
cally held the gun in a way that prevented the defendant
from accessing it . . . .’’ The argument is that Spann
was a drug dealer, a convicted felon, a liar, and the
defendant’s loyal friend, and, therefore, ‘‘[t]he jury had
good reason to question [his] credibility . . . .’’
According to the majority’s hypothesis, Spann’s ‘‘tale
seeking to exonerate the defendant’’ not only ‘‘strained
credibility’’; it was ‘‘risible,’’ ‘‘sidesplitting,’’ and would
cause ‘‘the jurors’ eyes [to roll] . . . .’’ I agree with the
majority that the jury was free to discredit all, a portion,
or none of Spann’s testimony. I decline, however, to
engage in a fictional account of the jury’s conduct at
trial, and I strenuously disagree with the majority’s sug-
gestion that Spann’s testimony can be dissected in a
manner that inculpates the defendant in his possessory
crime. The argument itself would be risible if the occa-
sion was less solemn. The jury, of course, was free to
disbelieve Spann’s testimony that he ‘‘assiduously kept
the gun where [the defendant] could not get it,’’ but it
was not free to infer the opposite, namely, that Spann
placed the gun in a location to which the defendant
had physical access. See, e.g., Woodall v. State, 97 Nev.
235, 236–37, 627 P.2d 402 (1981) (holding that evidence
was insufficient to support defendant’s conviction of
possession of firearm when defendant’s companion
‘‘acknowledged that the weapon was his and that [the
defendant] knew nothing about its existence,’’ reason-
ing that ‘‘a rational trier of fact could not reject a plausi-
ble explanation consistent with [the defendant’s] inno-
cence, and thereupon infer [the defendant] to be guilty
based on evidence from which only uncertain infer-
ences may be drawn’’). ‘‘[I]t is axiomatic under Connect-
icut law that, while a [trier of fact] may reject a defen-
dant’s testimony, a [trier of fact] in rejecting such
testimony cannot conclude that the opposite is true.
. . . Thus, under Connecticut law, the [trier of fact] is
not permitted to infer, from its disbelief of the defen-
dant’s testimony that any of the facts which he denied
were true.’’13 (Internal quotation marks omitted.) State
v. McCarthy, 105 Conn. App. 596, 619, 939 A.2d 1195,
cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). This
rule ‘‘has been applied uniformly in both criminal and
civil contexts’’; (internal quotation marks omitted) id.,
620; regardless of whether the witness’ testimony was
proffered by the plaintiff or the defendant. See, e.g.,
State v. Hart, 221 Conn. 595, 605–606, 605 A.2d 1366
(1992) (although jury was free to disbelieve testimony
of defense witnesses that defendant was not drug-
dependent, it was not free to infer opposite); see also
State v. Alfonso, 195 Conn. 624, 634–35, 490 A.2d 75
(1985) (‘‘[e]ven if the jury did not credit the defendant’s
denial, it was not entitled to conclude that the marijuana
was his without positive evidence supporting such a
conclusion,’’ and ‘‘the state offered no supporting evi-
dence that would have justified an inference that the
defendant possessed the marijuana’’); Novak v. Ander-
son, 178 Conn. 506, 508, 423 A.2d 147 (1979) (‘‘While it
is true that it is within the province of the jury to accept
or reject a defendant’s testimony, a jury in rejecting
such testimony cannot conclude that the opposite is
true. . . . A jury cannot, from a disbelief of a defen-
dant’s testimony, infer that a plaintiff’s allegation is
correct.’’ (Citations omitted.)). ‘‘Our rule barring the
inference of the opposite of testimony’’ is evidentiary
in nature and ensures ‘‘the proper method of measuring
the sufficiency of the evidence.’’ State v. Hart, supra,
605–606. Thus, even if the jury disregarded Spann’s
testimony,14 given that the state failed to adduce any
‘‘[positive] evidence that would have justified an infer-
ence that the defendant possessed’’ Spann’s firearm;
State v. Alfonso, supra, 634–35; the evidence was insuffi-
cient to support the defendant’s criminal possession of
a firearm conviction.15
In my view, the majority piles speculative inference
on top of speculative inference to uphold the defen-
dant’s criminal possession of a firearm conviction. For
the reasons previously explained, a driver’s knowledge
that his or her front seat passenger is in actual physical
possession of contraband is insufficient to support a
reasonable inference that the driver had dominion or
control over that contraband; flight from the police
does not vest a driver with constructive possession of
contraband that he or she did not possess before taking
flight; a defendant’s knowing association with a person
in actual physical possession of contraband is insuffi-
cient to establish that the defendant had the power and
intent to control that contraband; disbelief of a witness’
testimony cannot supply the state with the positive
evidence of guilt that it otherwise lacks; and the accu-
mulated weight of these flawed inferences will not sup-
port a criminal conviction that cannot rest indepen-
dently on any one of them. Accordingly, I dissent from
part I of the majority opinion.
II
I agree with the majority that the evidence was suffi-
cient to convict the defendant of the crime of having
a weapon in a motor vehicle in violation of § 29-38 (a).
In light of what already has been said, however, it should
be clear that I do not agree with the majority that the
defendant’s conviction can be sustained on the basis
of a finding that she constructively possessed Spann’s
firearm. I nonetheless would uphold the defendant’s
conviction because possession is not an essential ele-
ment of the crime. What is required instead is proof
that the defendant ‘‘(1) owned, operated or occupied
the vehicle; (2) had a weapon in the vehicle; (3) knew
the weapon was in the vehicle; and (4) had no permit
or registration for the weapon.’’ State v. Davis, 324
Conn. 782, 801, 155 A.3d 221 (2017); see also State v.
Owens, 25 Conn. App. 181, 186, 594 A.2d 991 (‘‘[t]here
are four elements that the state must prove in a prosecu-
tion for a violation of . . . § 29-38: (1) that the defen-
dant owned, operated or accepted the vehicle; (2) that
he had a weapon in the vehicle; (3) that he knew the
weapon was in the vehicle; and (4) that he had no
permit or registration for the weapon’’), cert. denied,
220 Conn. 910, 597 A.2d 337 (1991). The state is not
required to prove possession—actual or constructive—
to obtain a conviction under § 29-38 (a). See State v.
Owens, supra, 187–88 (‘‘[t]he clear intent of § 29-38 is
to make it a crime to have a weapon in a motor vehicle,
and ‘[t]he statute is not concerned with possession or
ownership of a weapon, but rather aims to penalize
those who know that there is a weapon inside a motor
vehicle’ ’’), quoting State v. Mebane, 17 Conn. App. 243,
246, 551 A.2d 1268, cert. denied, 210 Conn. 811, 556
A.2d 609, cert. denied, 492 U.S. 919, 109 S. Ct. 3245, 106
L. Ed. 2d 591 (1989).
The defendant concedes that, under our current case
law, the evidence is sufficient to sustain her conviction
because the jury reasonably could have found that she
operated a motor vehicle, there was a weapon inside
the vehicle, she knew there was a weapon inside the
vehicle, and the weapon had no permit or registration.
The defendant asks this court to reconsider and over-
rule our case law defining the essential elements of the
crime of having a weapon in a motor vehicle, arguing
that ‘‘[t]his court has misinterpreted the legislative
intent of [the] statute’’ because the legislature intended
the term ‘‘knowingly has’’ in § 29-38 (a) to be construed
as ‘‘knowingly possesses.’’
The defendant failed to preserve her statutory con-
struction claim in the trial court, and it is well estab-
lished that this court generally will not review claims
raised for the first time on appeal unless the require-
ments for review under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),16 have
been satisfied or reversal is warranted under the plain
error doctrine or our supervisory authority. The defen-
dant’s statutory construction claim fails under the sec-
ond prong of Golding because it is not a claim of consti-
tutional magnitude alleging the violation of a
fundamental right. See State v. Golding, supra, 240
(observing that nonconstitutional claims ‘‘do not war-
rant special consideration simply because they bear
a constitutional label’’); see also State v. Rodriguez-
Roman, 297 Conn. 66, 93, 3 A.3d 783 (2010) (declining
to review insufficiency of evidence and instructional
impropriety claims because ‘‘the defendant has clothed
what can only be described as a nonconstitutional claim
in constitutional garb’’). The defendant also cannot pre-
vail under the plain error doctrine because ‘‘[i]t is axi-
omatic that the trial court’s proper application of the
law existing at the time of trial cannot constitute revers-
ible error under the plain error doctrine.’’ State v. Diaz,
302 Conn. 93, 104 n.8, 25 A.3d 594 (2011). Lastly, this
is not one of those rare cases that merits the invocation
of the ‘‘extraordinary remedy’’ of reversal under our
supervisory authority. (Internal quotation marks omit-
ted.) State v. Reyes, 325 Conn. 815, 822–23, 160 A.3d
323 (2017); see id. (‘‘[T]he supervisory authority of this
state’s appellate courts is not intended to serve as a
bypass to the bypass, permitting the review of unpre-
served claims of case specific error—constitutional or
not—that are not otherwise amenable to relief under
Golding or the plain error doctrine. . . . Consistent
with this general principle, we will reverse a conviction
under our supervisory powers only in the rare case that
fairness and justice demand it. [T]he exercise of our
supervisory powers is an extraordinary remedy to be
invoked only when circumstances are such that the
issue at hand, while not rising to the level of a constitu-
tional violation, is nonetheless of [the] utmost seri-
ousness, not only for the integrity of a particular trial
but also for the perceived fairness of the judicial system
as a whole.’’ (Citations omitted; internal quotation
marks omitted.)). There being no basis for reversal, I
would uphold the defendant’s conviction of having a
weapon in a motor vehicle.
For the foregoing reasons, I dissent from part I of
the majority opinion upholding the defendant’s convic-
tion of criminal possession of a firearm in violation of
§ 53a-217 (a) and concur in part II of the majority opin-
ion upholding the defendant’s conviction of having a
weapon in a motor vehicle in violation of § 29-38 (a).
1
The record reflects that Spann was convicted of various crimes arising
out of the August 17, 2013 shooting, including criminal possession of the
firearm in question. The primary issue on appeal is whether the evidence
is legally sufficient to establish beyond a reasonable doubt that the defendant
jointly possessed Spann’s firearm by operating the vehicle in which Spann
was a passenger while he was in actual physical possession of the firearm.
2
It is undisputed that the defendant in this case never had actual physical
possession of Spann’s firearm. Indeed, the trial court granted the defendant’s
motion for a judgment of acquittal on the charge of carrying a pistol without
a permit in violation of General Statutes § 29-35 (a) on the ground that there
was no evidence that the defendant had ‘‘carried [the firearm] on . . . her
person . . . .’’
3
This court long ago observed that, ‘‘[a]s to ‘possession,’ there is no word
more ambiguous in its meaning.’’ Hancock v. Finch, 126 Conn. 121, 122–23,
9 A.2d 811 (1939), citing National Safe Deposit Co. v. Stead, 232 U.S. 58,
34 S. Ct. 209, 58 L. Ed. 504 (1914). Hancock is a civil case, but courts and
commentators alike often have made the same point in connection with the
law of criminal possession. One scholarly article begins with this oft-quoted
observation: ‘‘The word ‘possession,’ though frequently used in both ordinary
speech and at law, remains one of the most elusive and ambiguous of
legal constructs.’’ C. Whitebread & R. Stevens, ‘‘Constructive Possession in
Narcotics Cases: To Have and Have Not,’’ 58 Va. L. Rev. 751, 751 (1972);
see also Henderson v. United States, supra, 575 U.S. 625–30 (addressing
definitional difficulty in case requiring court to decide whether person law-
fully can transfer gun to third party without thereby illegally possessing it);
State v. Schmidt, 110 N.J. 258, 266–70, 540 A.2d 1256 (1988) (discussing
definitional difficulty and wide spectrum of views); State v. Barber, 135
N.M. 621, 626, 92 P.3d 633 (2004) (‘‘The legal definition of possession is not
necessarily rooted in common discourse. . . . Courts differ on whether the
legal concept of possession is a common term with no artful meaning or
the most vague of all vague terms.’’ (Citation omitted; internal quotation
marks omitted.)); 1 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 6.1
(e), p. 432 (‘‘[t]he word ‘possession’ is often used in the criminal law without
definition, which perhaps reflects only the fact that it is ‘a common term
used in everyday conversation that has not acquired any artful meaning’ ’’).
‘‘Of this chameleon-hued word,’’ says legal lexicographer Bryan A. Garner,
‘‘a legal philosopher pessimistically states: The search for [its] proper mean-
ing . . . is likely to be a fruitless one.’’ (Internal quotation marks omitted.)
B. Garner, Dictionary of Legal Usage (3d Ed. 2011) p. 688, quoting G. Paton,
A Textbook of Jurisprudence (4th Ed. 1972) p. 553.
4
In light of Spann’s testimony that he was sitting on the firearm during
most of the relevant time, it is noteworthy that the origin of the word
‘‘possession’’ traces back to the Latin words for ‘‘able to sit upon.’’ See
Webster’s Third New International Dictionary, supra, p. 1770 (‘‘fr[om] potis
able, possible [and] sedre to sit’’). No doubt Spann possessed the gun.
5
As the trial court properly instructed the jury, the terms ‘‘dominion’’
and ‘‘control’’ are ‘‘synonymous, meaning they are different terms used to
describe the same thing.’’
6
It is not necessary that the defendant manifest the requisite intention
by exercising her practical ability to obtain actual physical possession of
the contraband, only that she could do so if she so desired. As this court
explained in State v. Hill, supra, 201 Conn. 516, ‘‘[t]he essence of exercising
control is not the manifestation of an act of control but instead it is the act
of being in a position of control coupled with the requisite mental intent.
In our criminal statutes involving possession, this control must be exercised
intentionally and with knowledge of the character of the controlled object.’’
7
The majority’s reliance on State v. Delossantos, 211 Conn. 258, 277–78,
559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d
142 (1989), to support the proposition that ‘‘[o]ne who owns or exercises
dominion or control over a motor vehicle in which [contraband] is concealed
may be deemed to possess the contraband’’ is misplaced. In Delossantos,
the defendant was the ‘‘lone occupant of the automobile’’; id., 261; and,
when a driver is in exclusive possession of an automobile, it is reasonable
to infer that he or she had both the power and intent to exercise dominion or
control over the contents of that automobile. As we explained in Delossantos,
however, ‘‘[w]here the defendant is not in exclusive possession of the prem-
ises where the [contraband is] found, it may not be inferred that [the defen-
dant] knew of the presence of the [contraband] and had control of [it],
unless there are other incriminating statements or circumstances tending
to buttress such an inference.’’ (Emphasis added; internal quotation marks
omitted.) Id., 277. Thus, in the absence of additional evidence—which, for
the reasons explained in the body of this opinion, I believe is lacking in
this case—the defendant’s knowledge of Spann’s firearm and her control
of the car do not support a reasonable inference that she constructively
possessed Spann’s firearm.
8
The majority also observes that the defendant ‘‘drove the vehicle 1.2
miles while being chased by the police in an effort to evade arrest for her
participation in the shooting . . . .’’ Footnote 13 of the majority opinion. I
address this point later in this opinion in connection with the majority’s
discussion regarding the significance of the defendant’s ‘‘flight’’ immediately
following the shooting incident.
9
The difference between the majority opinion and this concurring and
dissenting opinion can be summarized as the difference between the view
that such additional evidence ‘‘might have helped to establish constructive
possession,’’ as the majority acknowledges, and my view that the conviction
cannot be sustained in the absence of at least some additional evidence of
this nature.
10
See, e.g., Wong Sun v. United States, 371 U.S. 471, 483 n.10, 83 S. Ct.
407, 9 L. Ed. 2d 441 (1963) (‘‘we have consistently doubted the probative
value in criminal trials of evidence that the accused fled the scene of an
actual or supposed crime’’); Alberty v. United States, supra, 162 U.S. 511
(‘‘it is a matter of common knowledge that men who are entirely innocent do
sometimes fly from the scene of a crime through fear of being apprehended
as the guilty parties, or from an unwillingness to appear as witnesses’’). In
support of its view that evidence of flight ‘‘is a species of evidence that
should be viewed with caution,’’ the United States Court of Appeals for the
First Circuit explained: ‘‘Although it is undisputed that flight of an accused
can properly be admitted as having a tendency to prove guilt . . . it also
is acknowledged widely that, at least in many cases, such evidence is only
marginally probative as to the ultimate issue of guilt or innocence. . . .
[The inference of guilt] has been questioned by some courts, one of which
asserted that men who are entirely innocent do sometimes fly from the
scene of a crime for a multitude of reasons, including, for example, hesitation
to confront even false accusations, fear that they will be unable to prove
their innocence, or protection of a guilty party.’’ (Citations omitted; internal
quotation marks omitted.) United States v. Hernandez-Bermudez, 857 F.2d
50, 54 (1st Cir. 1988); see also United States v. Chipps, 410 F.3d 438, 449
(8th Cir. 2005) (‘‘courts should be cautious in admitting evidence of flight
because it is often only marginally probative of guilt’’); United States v.
Rodriguez, 53 F.3d 1439, 1451 (7th Cir. 1995) (‘‘[w]e have long adhered to
the [United States] Supreme Court’s counsel that courts be wary of the
probative value of flight evidence’’ (internal quotation marks omitted)). Chief
Judge David L. Bazelon, quoting Sigmund Freud, provided a psychological
basis for questioning the assumption that a suspect’s flight necessarily
reflects his actual guilt, as sometimes the suspect ‘‘is really not guilty of
the specific misdeed of which he is being accused, but he is guilty of a
similar [misdemeanor] of which [the authorities] know nothing and of which
[the authorities] do not accuse him. He therefore quite truly denies his guilt
in the one case, but in doing so betrays his sense of guilt with regard to
the other.’’ (Internal quotation marks omitted.) Miller v. United States, 320
F.2d 767, 772 (D.C. Cir. 1963).
11
The majority points out that the verdict finding the defendant guilty on
the possession charge is not necessarily inconsistent with the verdict finding
the defendant not guilty of attempted assault as an accessory. See footnote
18 of the majority opinion. The majority posits that the jury may have
concluded that the defendant shared Spann’s intention with regard to shoot-
ing the firearm but not his intention to cause serious physical injury. This
‘‘asymmetrical intentions’’ scenario is not impossible as a matter of abstract
logic, but it is unlikely, to say the least, that a lay jury entertained (much less
adopted) the needle threading theory posited by the majority—particularly
when the state itself never promoted that theory. Logical possibility is not
the same as reasonable probability, and it remains highly improbable on
this record that the jury decided to convict the defendant of criminal posses-
sion of a firearm on the basis of a theory that was never even advanced by
the state with respect to that charge.
The question, moreover, is not one of theoretical consistency but of
evidentiary sufficiency. Even if we were to assume that the jury logically
could have adopted a theory of accessorial guilt not argued by the state in
support of the charge at issue, by crediting the state’s getaway driver theory
on the criminal possession charge after rejecting that theory with respect
to the attempted assault charge, I disagree with the majority that the jury
reasonably could have done so on this evidentiary record. As I previously
explained, there was no evidence that the defendant had any knowledge
that Spann even was carrying a firearm prior to the shooting; nor was there
any evidence of a prior joint criminal activity or any prior planning. I am
left to conclude under these circumstances that the evidence necessarily
was insufficient to support a reasonable inference that ‘‘[the defendant] and
Spann brought the gun to Trumbull Avenue for the purpose of firing it and
that the defendant would serve as the getaway driver.’’ Footnote 18 of the
majority opinion. It seems likely that the state did not argue this inference
because the evidence did not support it.
12
Prior to the shooting, Spann testified that he kept the firearm concealed
‘‘under [his] lap . . . .’’ After the shooting, Spann either held or briefly
lodged the firearm ‘‘on the side of the door . . . in between the seat and
the door.’’
13
The prohibition against the antithesis inference is not unique to Connect-
icut; it is ‘‘hornbook law’’ recognized in state and federal courts throughout
the country. Walker v. New York, 638 Fed. Appx. 29, 31 (2d Cir. 2016); see,
e.g., id. (‘‘it is hornbook law that a plaintiff does not carry his burden of
proving a fact merely by having witnesses deny that fact and asking the
jury to decline to believe the denials’’); Grimm v. State, 135 A.3d 844, 859
(Md. 2016) (‘‘[m]any jurisdictions, including Maryland, recognize the doctrine
that disbelief of testimony may not alone support a finding in civil and
criminal litigation’’ (internal quotation marks omitted)); Chapman v. Troy
Laundry Co., 47 P.2d 1054, 1062 (Utah 1935) (‘‘[w]hile the demeanor of the
witness in testifying is very important and should be given consideration
by the trier of fact, still there must be something more than the batting of
an eye, the coloring of the cheek, or the twiddling of the thumbs as a basis
for finding facts’’); A. Pollis, ‘‘The Death of Inference,’’ 55 B.C. L. Rev. 435,
461–62 (2014) (‘‘[C]ourts, including the [United States] Supreme Court, have
generally been hostile to accepting the probative value of the antithesis
inference, especially without other evidence in support of the party carrying
the burden of proof. For example, in 1891, the [c]ourt in Bunt v. Sierra
Butte Gold Mining Co. [138 U.S. 483, 485, 11 S. Ct. 464, 34 L. Ed. 1031
(1891)] held that a plaintiff could not meet his burden of proof by calling
the defendant’s employees as witnesses in the hope that the jury would
disbelieve them. Over the years, numerous cases have similarly rejected the
antithesis inference as an adequate basis for submitting a case to the jury.
The First Circuit explained that the danger of permitting the antithesis
inference was ‘obvious,’ as it would allow a plaintiff to prove its case solely
through impeachment.’’ (Footnotes omitted.)).
14
The majority states that my analysis ‘‘relies on and credits the entirety
of Spann’s testimony’’ and ‘‘accept[s] Spann’s testimony at face value . . . .’’
Footnote 22 of the majority opinion. I do not understand what prompts this
statement, and it is not true. To repeat, the jury was entitled to accept all,
some, or none of Spann’s testimony. Regardless of whether, and to what
extent, the jury credited Spann’s testimony, there simply is no evidence in
the record that the firearm at any time was located anywhere except for
where the police saw it—in Spann’s physical possession. Without relying
on pure speculation, in other words, no reasonable juror could find that
Spann probably left his firearm, however briefly, in an area of the vehicle
where the defendant could ‘‘go and get it’’ during the high-speed police
chase. Guesswork is not the same as reasonable inference.
15
The majority’s reliance on Maryland v. Pringle, 540 U.S. 366, 124 S. Ct.
795, 157 L. Ed. 2d 769 (2003), in support of its definition and application of
the constructive possession doctrine is misplaced. In Pringle, drugs were
found in the common area of a motor vehicle, and the United States Supreme
Court observed that the ‘‘quantity of drugs and cash in the car indicated
the likelihood of [all occupants being involved in] drug dealing . . . .’’ Id.,
373. Importantly, there was no evidence ‘‘singling out’’ any one of the occu-
pants of the vehicle as the owner of the drugs, and the court cautioned that
‘‘ ‘[a]ny inference that everyone on the scene of a crime is a party to it must
disappear if the [g]overnment . . . singles out the guilty person.’ ’’ Id., 374,
quoting United States v. Di Re, supra, 332 U.S. 594. In the present case,
Spann not only confessed to his exclusive ownership and possession of the
firearm, he also pleaded guilty to carrying the firearm without a permit and
criminal possession of the firearm. Given that the state ‘‘single[d] out’’ and
convicted ‘‘the guilty person,’’ any inference that the defendant was involved
in Spann’s criminal possession of the firearm ‘‘must disappear’’ in the present
case. (Internal quotation marks omitted.) Id.
16
Under State v. Golding, supra, 213 Conn. 233, ‘‘a defendant can prevail
on a claim of constitutional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the defendant’s claim will fail.’’
(Emphasis in original; footnote omitted.) Id., 239–40; see In re Yasiel R.,
supra, 317 Conn. 781 (modifying third prong of Golding).