State v. Rhodes ( 2020 )

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STATE v. RHODES—CONCURRENCE
MULLINS, J., concurring. I agree with and join the
majority opinion. I write separately to emphasize that
the question of whether the state presented sufficient
evidence that the defendant, Amelia Rhodes, construc-
tively possessed the firearm in the vehicle, in violation
of General Statutes (Rev. to 2013) § 53a-217 (a), is a
close one and to comment on the use of flight evidence
in this case.
In particular, the majority and the state highlight the
fact that the defendant drove the vehicle 1.2 miles, while
being chased by the police, in an effort to evade arrest
as evidence of her constructive possession of a firearm,
which supports her conviction of criminal possession
of a firearm.1 For the reasons set forth in the majority
opinion, I ultimately agree that a rational fact finder
could have concluded from this evidence that a reason-
able explanation for the defendant’s decision to flee
was her intention to keep the firearm away from the
police, thereby establishing her constructive possession
of that firearm. See footnote 1 of this opinion. Nonethe-
less, the circumstances surrounding the use of flight
evidence in this case give me pause.
Lamar Spann had just committed a shooting in broad
daylight and in full view of the police. He then reentered
the vehicle while armed, and the police officers, who
had just witnessed Spann commit the shooting, were
sharply focused on the vehicle and its occupants. Under
these circumstances, it is not difficult to understand
why someone in the defendant’s position might have
been reluctant to immediately surrender to the police.
The defendant undoubtedly was well aware that the
officers could have perceived her as armed and danger-
ous and, therefore, could have used deadly force against
her. Indeed, the police have used deadly force on
unarmed suspects for far less. Beyond that, Spann was
sitting right next to her with a gun, telling her to ‘‘drive,
go.’’ Given these facts, it is entirely plausible that the
defendant resorted to flight out of fear that surrendering
would have placed her personal safety at risk—either
at the hands of the police pursuing an armed suspect
or the armed suspect sitting next to her.
Nevertheless, in reviewing the sufficiency of the evi-
dence, ‘‘we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
[jury’s] verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Taupier, 330 Conn. 149, 187, 193 A.3d
1 (2018), cert. denied, U.S. , 139 S. Ct. 1188, 203
L. Ed. 2d 202 (2019). Applying this standard, this court
cannot substitute its judgment for that of the jury about
what significance to accord the defendant’s evasive con-
duct. ‘‘[T]he fact that ambiguities or explanations [for
the defendant’s flight] may exist which tend to rebut
an inference of guilt . . . simply constitutes a factor
for the jury’s consideration. . . . The probative value
of evidence of flight depends upon all the facts and
circumstances and is a question of fact for the jury.’’
(Citation omitted; internal quotation marks omitted.)
State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).
Indeed, regardless of the alternative theories proposed
by the defendant, ‘‘the critical point is that the jury
could have drawn different inferences from [the] evi-
dence, and our mandate is to affirm when the jury’s
choice was a rational one—which it was here.’’ United
States v. Arnold, 486 F.3d 177, 182 (6th Cir. 2007), cert.
denied, 552 U.S. 1103, 128 S. Ct. 871, 169 L. Ed. 2d
736 (2008).
Thus, the presence of alternative explanations for the
defendant’s flight does not render the evidence insuffi-
cient. Ultimately, the motivation for the defendant’s
flight was a question for the jury. Because the jury
rationally could have concluded that disposing of the
firearm was a reasonable explanation for the defen-
dant’s decision to flee from the police, I am compelled
to conclude that there was sufficient evidence of con-
structive possession of a firearm in the present case.
Accordingly, I respectfully concur.
1
After Lamar Spann, the armed passenger in the vehicle driven by the
defendant, committed the shooting and got back into the vehicle with the
gun, the defendant drove the vehicle onto the curb to avoid the officers’
vehicle, which they had attempted to use to block her escape. She then
continued to flee at a high rate of speed with the officers in pursuit, narrowly
avoiding pedestrians and speeding past stop signs without stopping. It has
been established that, ‘‘[a]lthough mere proximity to a gun is insufficient to
establish constructive possession, evidence of some other factor—including
connection with a gun, proof of motive, a gesture implying control, evasive
conduct, or a statement indicating involvement in an enterprise—coupled
with proximity may suffice.’’ (Emphasis added; internal quotation marks
omitted.) United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003). A
driver of a vehicle who evades the police for the purpose of assisting a
passenger to dispose of a firearm properly may be found to have construc-
tively possessed that firearm. See United States v. Witcher, 753 Fed. Appx.
159, 161 (4th Cir. 2018); State v. Bowens, 118 Conn. App. 112, 123–24, 982
A.2d 1089 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010); McDaniels
v. United States, 718 A.2d 530, 531–32 (D.C. 1998); Logan v. United States,
489 A.2d 485, 491–92 (D.C. 1985); cf. United States v. Chambers, 918 F.2d
1455, 1458 (9th Cir. 1990) (‘‘[c]onduct by the driver of a vehicle that appears
intended to aid a passenger in disposing of the drug is probative of joint
possession of the drug’’).