State v. Porfil ( 2019 )

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STATE OF CONNECTICUT v. JAVIER
VALENTIN PORFIL
(AC 40305)
Prescott, Elgo and Harper, Js.
Syllabus
Convicted, after a jury trial, of the crimes of possession of narcotics with
intent to sell by a person who is not drug-dependent, sale of narcotics
within 1500 feet of a school, possession of drug paraphernalia, posses-
sion of narcotics and interfering with an officer, the defendant appealed
to this court, claiming, inter alia, that the evidence was insufficient to
support his conviction and that the trial court deprived him of his
constitutional right to present a defense by improperly excluding certain
photographic evidence. The police had received an anonymous tele-
phone call, stating that the defendant, whom the caller identified by
first and last name, had warrants and was selling narcotics from the
open front porch of a three-story multifamily house. After verifying
that the defendant had active warrants, a police officer, P, obtained a
photograph of the defendant and drove to the subject house, where he
observed the defendant sitting alone on the porch wearing shorts, a
blue tank top and a baseball hat. P then positioned himself across the
street from the house, where he had a clear view of the porch through
his binoculars and was able to see that the left front door was open,
revealing a little part of a staircase leading to the second floor landing.
After watching the defendant for a while, P observed a man approach
the house and engage in a brief conversation with the defendant at the
bottom of the porch stairs. P then observed the defendant walk through
the open doorway, reemerge after a time, descend the porch stairs and
engage in an item-for-item exchange with the man, who then left. A few
minutes later, P saw a car park at an intersection near the house and
observed a man exit the car, approach the house and engage in a brief
conversation with the defendant, who again walked into the house
through the open doorway, reappeared a few seconds later and engaged
in another item-for-item exchange. The man then walked back to his
car and drove away. No one else was seen with the defendant throughout
this transaction other than the person with whom he had made the
exchange. During this time, P was in constant radio communication with
other officers positioned nearby, who, upon receiving P’s notification,
approached the front and the rear of the house. T and two other officers
found the defendant alone on the porch, dressed in a blue tank top,
shorts and a baseball cap, with the left front door to the house open.
Upon seeing the officers, the defendant turned around and ran through
the open doorway up the staircase and entered the second floor apart-
ment. As the officers pursued the defendant, they observed that there
was no one else in the stairwell. Meanwhile, S and another officer had
positioned themselves on the back porch near the exterior rear door.
After a short time, S observed the defendant begin to exit through the
door, but, upon seeing the officers, he retreated back into the house
and shut the door. The police subsequently searched the entire house,
but the defendant could not be located. In searching the house, however,
they found a brown paper bag in plain view in the second floor hallway,
which contained a digital scale, rubber bands, and 171 bags of heroin,
packaged in bundles of ten glassine packets, tied with rubber bands,
and packed in rice. The total street value of the heroin was between
approximately $1000 and $1150. P subsequently arrested the defen-
dant. Held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to support his conviction, which was based on his claim
that the state failed to produce sufficient evidence to prove beyond a
reasonable doubt that he had constructive possession of the narcotics
recovered by the police from the common area of the subject house:
the defendant’s reliance on State v. Nova (161 Conn. App. 708) for his
contention that the state failed to establish, in addition to his spatial and
temporal proximity to the narcotics, the existence of other incriminating
statements or circumstances linking him to them was misplaced, as
unlike in Nova, there was evidence in the present case of hand-to-hand
exchanges in a high crime area with substantial narcotic activity, which
transformed the defendant’s prior presence on the porch and movement
toward the second floor hallway into something more than mere proxim-
ity to the narcotics seized from that hallway, the state did not did not
rely solely on the hand-to-hand exchanges and the defendant’s proximity
to the narcotics, as the street value of the heroin recovered, the particular
location in which it was found and the absence of other individuals
observed in that location provided additional support for an inference
that the defendant had been selling the narcotics from the porch of the
house, and provided a basis for the jury reasonably to conclude that
the most likely explanation for why the narcotics were found in plain
view in a common area of the house was that whoever claimed ownership
or possession of them had placed them there intentionally and actively
was engaged in selling them; moreover, given the tip from the anonymous
caller and the testimony of P and T that the defendant had been alone
on the porch throughout the transactions and that no one else had been
seen in the stairwell, the jury reasonably could have concluded further
that it was the defendant who had been actively engaged in selling the
narcotics, and, on the basis of the defendant’s flight, the jury reasonably
could have inferred that he possessed a guilty conscience with respect
to both the conduct underlying his outstanding arrest warrants against
him and the conduct underlying the present case; accordingly, consider-
ing all of this evidence together with the defendant’s temporal and
physical proximity to the narcotics recovered by the police, the jury
reasonably could have inferred that the defendant had been selling the
subject narcotics from the porch of the house during the time in question
and, by necessary implication, concluded that he was aware of the
nature and presence of the narcotics and had dominion and control
over them.
2. The defendant’s claim that the trial court committed evidentiary error
and deprived him of his constitutional right to present a defense by
improperly excluding certain photographs of the front and back of the
house was unavailing:
a. The trial court’s exclusion of the photograph of the front of the house,
which depicts what appear to be two trees with lush foliage completely
obstructing the view of the porch from where P had observed the defen-
dant engaging in the two hand-to-hand exchanges, did not deprive the
defendant of his constitutional right to present a defense: even if this
court assumed that the exclusion of the photograph was improper, the
defendant was able to adequately present his defenses of misidentifica-
tion and lack of possession by other means and had additional, alterna-
tive avenues available to him to further bolster his defenses, and, there-
fore, the exclusion of the photograph did not rise to the level of a
constitutional violation; moreover, this court had a fair assurance that
any impropriety in excluding the defendant’s photograph of the front
of the house did not substantially affect the jury’s verdict because, even
without P’s testimony regarding the hand-to-hand exchanges, there was
compelling substantial evidence tending to prove the defendant’s identity
as the suspect and of his constructive possession of the narcotics, and,
contrary to the defendant’s contention that the excluded photograph
likely would have significantly undermined P’s testimony that he had
a clear view of the porch, there was strong evidence corroborating
P’s testimony.
b. The trial court properly excluded the photograph of the rear of the
house, that court having correctly determined that the defendant failed
to authenticate the photograph; at trial, defense counsel represented to
the court that the defendant was prepared to testify that the front of
the house, as depicted in his photograph, looked substantially similar
to the way it looked at the time the offenses were committed, but he
made no similar offer of proof with respect to the photograph of the
back of the house, and, therefore, the defendant failed to make the
prima facie showing required to authenticate the photograph of the back
of the house.
3. The defendant could not prevail on his claim that the trial court improperly
prevented him from showing a scar on his back to the jury, thereby
depriving him of this constitutional right to present his defense that he
was misidentified as the suspect seen running from the police at the
house, as that court did not abuse its discretion by excluding the demon-
stration of the scar as needlessly cumulative; although the defendant’s
medical records, which were admitted into evidence by agreement of
the parties, did not disclose the condition of the defendant’s back at
the time of the offenses, the jury reasonably could have inferred from
the records that a spinal surgery undergone by the defendant had left
a scar on his back, and the jury did not need to rely solely on inferences,
as the defendant explicitly testified that, as a result of the spinal surgery,
he had a scar on his back, and the state did not contest that aspect of
the defendant’s testimony.
Argued January 9—officially released July 30, 2019
Procedural History
Substitute information charging the defendant with
the crimes of possession of narcotics with intent to sell
by a person who is not drug-dependent, sale of narcotics
within 1500 feet of a school, possession of drug para-
phernalia, possession of narcotics and interfering with
an officer, brought to the Superior Court in the judicial
district of Waterbury and tried to the jury before Har-
mon, J.; verdict and judgment of guilty, from which the
defendant appealed to this court. Affirmed.
James B. Streeto, senior assistant public defender,
with whom, on the brief, was, Samantha L. Oden, for-
mer certified legal intern, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Maureen Platt,
state’s attorney, and David A. Gulick, senior assistant
state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Javier Valentin Porfil,
appeals from the judgment of conviction, rendered after
a jury trial, of possession of narcotics with intent to
sell by a person who is not drug-dependent in violation
of General Statutes § 21a-278 (b), sale of narcotics
within 1500 feet of a school in violation of General
Statutes § 21a-278a (b), possession of drug parapherna-
lia in violation of General Statutes § 21a-267, and pos-
session of narcotics in violation of General Statutes
§ 21a-279 (a).1 The defendant claims on appeal that (1)
the evidence was insufficient to establish that he was
in constructive possession of narcotics,2 (2) the trial
court deprived him of his constitutional right to present
a defense by improperly excluding certain photographic
evidence and (3) the trial court deprived him of his
constitutional right to present a misidentification
defense by preventing him from displaying a scar to
the jury. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. On August 14, 2015, the Waterbury Police Depart-
ment received an anonymous telephone call, stating
that the defendant, whom the caller identified by first
and last name, ‘‘had warrants’’ and was selling narcotics
from the porch of 126–128 Walnut Street in Waterbury.
Located at this address is a three-story multifamily
house with an open front porch. The house has two
front doors; the door on the left opens to a staircase
leading to the second floor landing, and the door on
the right opens to a first floor apartment. The house
also has a back door that leads to the back door of the
first floor apartment and a back staircase to the second
floor. The defendant did not live at this address, but
he was there often to visit family members. After veri-
fying that the defendant did indeed have active war-
rants, Officer Scott Phelan obtained a photograph of
the defendant and headed to the house in an undercover
vehicle. Meanwhile, several other uniformed officers
waited in unmarked vehicles in the vicinity of the house,
ready to ‘‘move in’’ on the defendant on Phelan’s word.
Phelan proceeded to drive past the house where he
observed the defendant sitting alone on the porch wear-
ing shorts, a blue tank top, and a baseball hat. Phelan
then sought out a location from which he could best
observe the defendant. He eventually took up a position
across the street in the area of the intersection of Walnut
Street and Cossett Street, approximately 150 or 175 feet
southwest of the porch. From this position, Phelan had
a clear view of the porch through his binoculars and
was able to observe that the left front door was open,
revealing a ‘‘little bit’’ of the staircase. He did not
observe anyone in the stairway. After watching the
defendant for a time, Phelan observed a man approach
the house and engage in a brief conversation with the
defendant at the bottom of the porch stairs. The defen-
dant then walked through the open doorway, reap-
peared after a time, descended the porch stairs, and
‘‘exchange[d] . . . an item for an item’’ with the man.
The man then left.
A few minutes later, Phelan saw a vehicle pull up
and park on the corner of Catherine Avenue and Walnut
Street and observed a man exit the vehicle, approach
the house, and engage in a brief conversation with the
defendant.3 The defendant again walked into the house
through the open doorway, reappeared a few seconds
later, and engaged in another item-for-item exchange.
The man then walked back to his car and drove away.
No one else was seen with the defendant throughout
this transaction other than the person with whom he
had made the exchange.
During this time, Phelan was in constant radio com-
munication with the other officers positioned nearby
and relayed to them that he had observed the defendant
engage in two hand-to-hand exchanges. Meanwhile, the
other officers waited to receive notification from Phelan
that the defendant had stepped far enough away from
the house to give the officers a good chance of appre-
hending him in case he tried to run back inside. After
receiving such notification, Officer Jerome Touponse
and two other officers ran to the front porch, and two
officers went to the back of the house to secure the
rear door.
Upon approaching the front of the house, Touponse
and the other officers found the defendant alone on the
porch, dressed in a blue tank top, shorts, and a baseball
cap, with the left front door to the house open. The
defendant then turned around and ran through the open
left front doorway up the staircase and entered the
second floor apartment.4 The officers gave chase. There
was no one else in the stairwell as they pursued the
defendant. The officers eventually made their way
inside the second floor apartment, where the occupants
pointed the police to the back door of the apartment.
Touponse went to the back door, but the defendant
was nowhere to be seen.
Meanwhile, the two officers tasked with covering the
back of the house, Rose5 and David Shaban, positioned
themselves on the back porch near the exterior rear
door; Shaban stood directly in front of the door, with
Rose a few steps behind him. After a short time, Shaban
observed the defendant, who was wearing a blue shirt
and a baseball cap, begin to exit through the door, but,
upon seeing the officers, he retreated back into the
house and shut the door. When the officers were eventu-
ally able to get through the door, they found the back
door to the first floor apartment was open. The front
door to the apartment was also open, which indicated
to Shaban that the defendant had run right through
the apartment.
The police subsequently searched the entire house,
but the defendant could not be located. In searching
the house, however, they found a brown paper bag in
plain view in the hallway extending to the right of the
entrance to the second floor apartment. See footnote
4 of this opinion. The bag contained a digital scale,
rubber bands, and 171 bags of heroin, packaged in bun-
dles of ten glassine packets, tied with rubber bands,
and packed in rice. The total street value of the heroin
was between approximately $1000 and $1150.
Officer Phelan arrested the defendant several months
later, in February, 2016. After Phelan explained to him
that he was being arrested in connection with the events
of August 14, 2015, the defendant stated that he was
‘‘sorry for running.’’ The defendant subsequently was
charged with, inter alia, possession of narcotics with
intent to sell by a person who is not drug-dependent
in violation of § 21a-278 (b), sale of narcotics within
1500 feet of a school in violation of § 21a-278a (b),
possession of drug paraphernalia in violation of § 21a-
267, and possession of narcotics in violation of § 21a-
279 (a). A jury trial was held beginning on October
11, 2016, at which the defendant testified in his own
defense.6 On October 13, 2016, the jury returned a ver-
dict of guilty on all counts, and the defendant was sen-
tenced on January 20, 2017.7 This appeal followed. Addi-
tional facts and procedural history will be set forth
as necessary.
I
The defendant first claims that the evidence adduced
at trial was insufficient to support his conviction
because the state did not produce sufficient evidence
to prove beyond a reasonable doubt that he had con-
structive possession of the narcotics recovered by the
police from 126–128 Walnut Street. We disagree.
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction we apply a two-part test.
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 [finder of fact] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . 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 [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Griffin, 184 Conn. App. 595, 613–14, 195 A.3d 723, cert.
denied, 330 Conn. 941, 195 A.3d 692 (2018) and cert.
denied, 330 Conn. 941, 195 A.3d 693 (2018).
‘‘[T]o prove illegal possession of a narcotic substance,
it is necessary to establish that the defendant knew the
character of the substance, knew of its presence and
exercised dominion and control over it. . . . Where
. . . the [narcotics were] not found on the defendant’s
person, the state must proceed on the theory of con-
structive possession, that is, possession without direct
physical contact. . . . One factor that may be consid-
ered in determining whether a defendant is in construc-
tive possession of narcotics is whether he is in posses-
sion of the premises where the narcotics are found.
. . . Where the defendant is not in exclusive possession
of the premises where the narcotics are found, it may
not be inferred that [the defendant] knew of the pres-
ence of the narcotics and had control of them, unless
there are other incriminating statements or circum-
stances tending to buttress such an inference. . . .
While mere presence is not enough to support an infer-
ence of dominion or control, where there are other
pieces of evidence tying the defendant to dominion and
control, the [finder of fact is] entitled to consider the
fact of [the defendant’s] presence and to draw infer-
ences from that presence and the other circumstances
linking [the defendant] to the crime. . . . [T]he test for
illegal possession of drugs is that the accused must
know that the substance in question is a drug, must
know of its presence and exercise dominion and control
over it. . . .
‘‘Importantly, [k]nowledge of the presence of narcot-
ics and control may be proved circumstantially. . . .
Knowledge that drugs are present and under a defen-
dant’s control when found in a defendant’s home or car
is more easily shown, of course, if the defendant has
exclusive possession of the area in which the drugs are
found. The difficult cases . . . arise when possession
of an area, such as a car or home or an apartment, is
shared with another person or persons. In situations in
which the putative offender is not in exclusive posses-
sion of the premises where the narcotics are found, we
may not infer that he or she knew of the presence of
the narcotics or that he or she had control over them,
without incriminating statements or circumstances to
support that inference.’’ (Internal quotation marks omit-
ted.) State v. Bischoff, 182 Conn. App. 563, 571–72, 190
A.3d 137, cert. denied, 330 Conn. 912, 193 A.3d 48 (2018).
In the present case, there is no dispute that narcotics
were found in the second floor hallway of 126–128 Wal-
nut Street, and the defendant concedes in his appellate
brief that the quantity of narcotics recovered permits
an inference that they were intended for sale.8 There is
also no dispute—at least for purposes of the defendant’s
evidentiary insufficiency claim—that, shortly before the
discovery of the narcotics by the police, the defendant
repeatedly entered 126–128 Walnut Street through the
doorway leading to the second floor hallway. As pre-
viously stated, however, spatial and temporal proximity
to contraband, without more, is insufficient to establish
constructive possession if, as in the present case, the
contraband is found in a common area over which the
defendant did not have exclusive possession. The state,
therefore, was required to establish the existence of
other incriminating statements or circumstances link-
ing him to the narcotics. According to the defendant,
the state failed to introduce evidence of any such state-
ments or circumstances, and, therefore, his conviction
must be reversed. In support of this claim, the defendant
relies primarily on this court’s decision in State v. Nova,
161 Conn. App. 708, 129 A.3d 146 (2015). This reliance
is misplaced.
In Nova, the defendant had been the subject of an
ongoing police investigation, and the police had
obtained a warrant to search the defendant and an
apartment to which he was linked for narcotics. Id.,
710. In preparation for execution of the warrant, police
officers conducted surveillance of the building. Id. Dur-
ing the surveillance, the defendant was observed enter-
ing the apartment through the main entry door, which
opened into the kitchen. Id., 711. He reemerged a few
moments later and ascended an external staircase to a
balcony on the third floor of the building that adjoined
the upper level of the apartment, where he remained
for approximately one minute. Id. The defendant then
returned to his car in the apartment building’s parking
lot. Id.
‘‘Shortly after the defendant returned to his car,
police observed a brief meeting between the defendant
and another individual in the building’s parking lot.
Specifically, the officers saw a white male drive a
pickup truck into the parking lot and park next to the
defendant’s car. The defendant opened the pickup
truck’s passenger side door, leaned in, and spoke to
the driver for approximately one minute. During the
meeting, police did not observe any hand-to-hand con-
tact or the exchange of any item. Afterward, the pickup
truck left the parking lot.’’ Id. Moments later, a police
officer observed the driver of the pickup truck appear
to snort something and wipe his nose while stopped at
a red traffic signal. Id. The officer, however, did not
see any drugs or hear the driver snorting, and the police
did not attempt to stop the truck. Id.
The defendant was then detained and arrested; he
did not resist or make any incriminating statements,
and no cash or drugs were found on his person or in
his car. Id., 711–12, 713. ‘‘The search of the apartment
revealed drugs and drug paraphernalia throughout. In
the kitchen, a knotted plastic bag containing crack
cocaine and a plastic bag containing powder cocaine
were in a kitchen cabinet; and clear plastic bags, alumi-
num foil, and colored tape containing cocaine residue
were in a garbage can. On the third floor balcony . . .
officers found a clear plastic sandwich bag containing
twelve small yellow ziplock bags in a Wal-Mart shopping
bag.’’ Id., 712.
Following a trial to the court, the defendant was
convicted of possession of narcotics and possession of
narcotics within 1500 feet of a school. Id., 710. ‘‘In
reaching its judgment, the court relied on several fac-
tors that it deemed sufficiently incriminating to support
an inference of constructive possession: the defendant’s
status as the target of the police investigation; his pres-
ence in the areas of the apartment where drugs and
paraphernalia were found—namely, the kitchen and the
balcony; his meeting with the driver of the pickup truck;
and his unfettered access to the apartment . . . .’’ Id.,
720. On appeal to this court, the defendant claimed that
this evidence was insufficient to sustain his conviction
because the state had failed to prove beyond a reason-
able doubt that he constructively possessed the drugs
found in the common areas of the apartment. Id., 716.
This court agreed, holding that none of these factors,
alone or in combination with the others, established
anything more than a temporal and spatial nexus
between the defendant and the cocaine. Id., 720, 725.
With regard to the defendant’s presence in the kitchen
and balcony, the court concluded that this ‘‘evidence
established merely that he briefly appeared in those
areas.’’ Id., 721. More specifically, the court stated that,
given the absence of ‘‘evidence show[ing] the [defen-
dant] making suspicious movements toward the narcot-
ics, or carrying a bag similar to one later found to
contain narcotics, or engaging in a drug sale near the
narcotics,’’ the state had failed to show ‘‘a compelling
correlation between the defendant’s actions . . . and
the conclusion that he controlled the narcotics in the
apartment.’’ (Emphasis added.) Id., 722. As to the evi-
dence regarding the defendant’s meeting with the driver
of the pickup truck and the driver’s apparent snorting
of some substance thereafter, the court concluded that
such evidence fell short of supporting an inference that
the defendant had controlled the cocaine in the apart-
ment. Id., 723. In so concluding, the court stressed that,
‘‘[w]ithout evidence of any item changing hands or of
the substance the driver was supposedly consuming,
his suspicious movements did not transform the defen-
dant’s prior presence on the balcony and in the kitchen
into something more than mere proximity to the contra-
band seized from those places.’’ (Emphasis added.) Id.,
724. Accordingly, this court reversed the defendant’s
conviction. Id., 725.
Contrary to the defendant’s contention, Nova is mate-
rially distinguishable from the present case. Most signif-
icantly, the defendant in the present case was observed
by Officer Phelan engaging in two hand-to-hand transac-
tions. In each instance, the defendant was approached
by an individual from the street. After a brief conversa-
tion with the individual, the defendant entered the
house through the open left front door, reemerged
moments later, and proceeded to exchange ‘‘an item
for an item’’ with the individual, who then promptly
left. In Phelan’s experience, this behavior was indicative
of hand-to-hand drug transactions.
Officer Gary Angon, an expert on heroin sales, like-
wise testified that the defendant’s behavior on the porch
was consistent with heroin dealing. Angon testified that
sellers generally keep the heroin they sell in a location
near the point of sale but not on their person, so as
to avoid detection by the police. According to Angon,
‘‘[u]sually they like to keep it within sight so they can
tell if anyone is going to try and take their product,’’
‘‘usually in a spot that’s within a few seconds so they
can be able to make their interaction with a customer,
find out what it is they need to get and go to that
spot, retrieve it and come back.’’ Phelan’s and Angon’s
opinions at trial were supported further by testimony
that 126–128 Walnut Street is situated in a high crime
area with substantial narcotics activity. See State v.
Slaughter, 151 Conn. App. 340, 349, 95 A.3d 1160 (detec-
tives’ conclusions that defendant’s conduct was consis-
tent with that of drug sellers were supported by testi-
mony that neighborhood in which purported sales
occurred was known to be high crime area in which
drug sales took place), cert. denied, 314 Conn. 916, 100
A.3d 405 (2014); see also State v. Barber, 64 Conn. App.
659, 667, 781 A.2d 464 (‘‘[e]vidence demonstrating that
the defendant was present in a known drug trafficking
area further suggests an intent to sell’’ [internal quota-
tion marks omitted]), cert. denied, 258 Conn. 925, 783
A.2d 1030 (2001). Consequently, unlike in Nova, there
was evidence in the present case of items changing
hands, thus transforming the defendant’s prior presence
on the porch and movement toward the second floor
hallway into something more than mere proximity to
the contraband seized from that hallway. See State v.
Nova, supra, 161 Conn. App. 724.
The defendant further argues, however, that the evi-
dence of the hand-to-hand exchanges fails to show a
compelling correlation between his actions and the con-
clusion that he controlled the narcotics found in the
hallway because there was no evidence that the items
exchanged were either money or contraband.
According to the defendant, ‘‘[i]n those cases in which
observed, alleged drug sales have formed a basis for
sustaining a defendant’s conviction, additional circum-
stantial evidence establishing a direct connection has
been introduced. Usually this involves a view of either
the object or of the currency.’’ Specifically, the defen-
dant points to this court’s decisions in State v. Slaugh-
ter, supra, 151 Conn. App. 340, and State v. Forde, 52
Conn. App. 159, 726 A.2d 132, cert. denied, 248 Conn.
918, 734 A.2d 567 (1999).
In Slaughter, the defendant was observed engaging
in what police officers believed to be a hand-to-hand
drug transaction. State v. Slaughter, supra, 151 Conn.
App. 342–43. Narcotics were later discovered in an
apartment in which the defendant had been seen enter-
ing during the course of the transaction, and $1559 in
cash was found on the defendant’s person. Id., 343–44.
In Forde, the police observed the defendant approach
a truck, take money from the driver, and then discreetly
give a signal to the defendant’s associate, who then
approached a nearby stone wall before handing an
unidentified item to the driver. State v. Forde, supra,
52 Conn. App. 161. The police subsequently found $460
on the defendant’s person. Id., 162. The police also
retrieved a paper bag containing cocaine from the wall
that the defendant’s associate had approached, and the
bag had the associate’s fingerprints on it. Id., 162 and
n.5.
Contrasting the circumstances in the present case
with those in Slaughter and Forde, the defendant con-
tends that ‘‘[t]he fact that neither money nor contraband
were identified as part of the transaction [in the present
case] establishes that they may only be labeled drug
transactions by speculation.’’ We disagree. Although
the evidence deemed sufficient in Slaughter and Forde
included certain facts and circumstances not found in
the present case, nothing in those opinions indicates
that such evidence would be necessary in every case
involving an observed hand-to-hand exchange. See
State v. Stephen J. R., 309 Conn. 586, 595 and n.8, 72 A.3d
379 (2013) (defendant’s reliance on State v. Thomas H.,
101 Conn. App. 363, 922 A.2d 214 [2007], for proposition
that victim’s testimony must be corroborated to be suffi-
cient to support sexual assault conviction, was mis-
placed; ‘‘[a]lthough the evidence deemed sufficient in
[Thomas H.] included a bloodstain on the victim’s
underwear . . . nothing in the opinion indicates that
the Appellate Court deemed this evidence relevant to
its conclusion or that such evidence would be necessary
in every case’’ [internal quotation marks omitted]).
Moreover, the state in the present case did not rely
solely on the hand-to-hand exchanges and the defen-
dant’s proximity to the contraband.
The street value of the heroin recovered, the particu-
lar location in which it was found, and the absence
of other individuals observed in that location provide
additional support for an inference that the defendant
had been selling the heroin from the porch of 126–128
Walnut Street. As the state’s expert on heroin sales,
Officer Angon, testified, the street value of the heroin
recovered was between approximately $1000 and
$1150. Consequently, the jury reasonably could have
concluded that, given the value of the drugs and their
illicit nature, the most likely explanation for why they
were found in plain view in a common area of the house
was that whoever claimed ownership or possession of
them had not simply left them there carelessly but,
rather, had placed them there intentionally and actively
was engaged in selling them. Given the testimony of
Officers Phelan and Touponse that the defendant had
been alone on the porch throughout the transactions
and that no one else had been seen in the stairwell, the
jury reasonably could have concluded further that it
was the defendant who had been actively engaged in
selling the drugs.
There was also testimony from Officers Phelan, Tou-
ponse, and Shaban that, on the day in question, the
Waterbury Police Department had received a telephone
call from an anonymous caller, stating that the defen-
dant, whom the caller identified by first and last name,
‘‘was selling narcotics from the porch of [126–128] Wal-
nut Street, and that he had a couple of warrants . . . .’’
Upon receiving this tip, the police confirmed that the
defendant did indeed have several active felony war-
rants out for his arrest, and Phelan’s subsequent drive-
by confirmed that the defendant was indeed present
on the porch of 126–128 Walnut Street. See Navarette
v. California, 572 U.S. 393, 398, 134 S. Ct. 1683, 188 L.
Ed. 2d 680 (2014) (‘‘officers’ corroboration of certain
details made the anonymous tip sufficiently reliable to
create reasonable suspicion of criminal activity’’). The
defendant did not object to the admission of this testi-
mony as substantive evidence that the defendant was
selling drugs from the porch. Consequently, it ‘‘enter[ed]
the case as part of the evidence and [could] be consid-
ered by the jury.’’ State v. Hickey, 23 Conn. App. 712,
718, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d
1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115
L. Ed. 2d 1058 (1991); see Clougherty v. Clougherty,
131 Conn. App. 270, 274, 26 A.3d 704, cert. denied, 302
Conn. 948, 31 A.3d 383 (2011).
Moreover, the defendant’s flight from 126–128 Walnut
Street upon seeing the police approach the front porch
supports ‘‘an inference of consciousness of guilt, sug-
gesting that the defendant knew of the presence and
character of the narcotics . . . nearby . . . and
sought to distance himself from them.’’ State v. Bischoff,
supra, 182 Conn. App. 573; see State v. Jefferson, 67
Conn. App. 249, 258, 786 A.2d 1189 (2001) (‘‘[w]hen
considered together with all the facts of the case, flight
may justify an inference of the accused’s guilt’’ [internal
quotation marks omitted]), cert. denied, 259 Conn. 918,
791 A.2d 566 (2002). The defendant contends, however,
that such an inference is unjustified in the present case
because, at the time of his flight, there were several
unrelated warrants out for his arrest, ‘‘suggesting a rea-
son to flee the police [that] had nothing at all to do
with any alleged illegal conduct on August 14, 2015.’’
We are not persuaded.
Our Supreme Court rejected a similar argument in
State v. Kelly, 256 Conn. 23, 57, 770 A.2d 908 (2001),
noting: ‘‘[R]equiring the state to prove which crime
caused a defendant to flee would place upon the [s]tate
an impossible burden to prove that one charged with
multiple violations of the law fled solely because of his
consciousness that he committed one particular crime.
It is better logic to infer that the defendant, who is
charged with several offenses, fled because of a con-
scious knowledge that he is guilty of them all.’’ (Empha-
sis in original; internal quotation marks omitted.) Thus,
we conclude that the jury in the present case reasonably
could have inferred from the defendant’s flight that he
possessed a guilty conscience with respect to both the
conduct underlying his outstanding arrest warrants and
the conduct underlying the present case.9
Considering this evidence together with the defen-
dant’s temporal and physical proximity to the narcotics
recovered by the police, the jury reasonably could have
inferred that the defendant had been selling those nar-
cotics from the porch of 126–128 Walnut Street during
the time in question. See State v. Slaughter, supra, 151
Conn. App. 347 (finder of fact reasonably could infer
defendant’s knowledge of presence of drugs in apart-
ment from observations by police of apparent drug
transactions, including his frequent trips to and from
apartment in course of these transactions). By neces-
sary implication, the jury reasonably could have con-
cluded that the defendant was aware of the nature and
presence of the narcotics and had dominion and control
over them. Accordingly, we conclude that the state pre-
sented sufficient evidence at trial to prove beyond a
reasonable doubt that the defendant had constructive
possession of the narcotics.
II
The defendant next claims that the trial court
deprived him of his constitutional right to present a
defense under the sixth amendment to the United States
constitution10 by improperly excluding photographs of
the front and back of the house. We disagree.
The following additional procedural history is rele-
vant to this claim. During its case-in-chief, the state
presented evidence regarding the police officers’ views
of the front and back of the house. Regarding the front
of the house, Officer Phelan pointed out on a map the
location where he had positioned himself during his
undercover observation of the defendant and testified
that he had had a clear view of the defendant from this
position. During this testimony, the state’s exhibit 2, a
Google Maps photograph of the front of 126–128 Walnut
Street, was admitted as a full exhibit by agreement of
the parties. Exhibit 2 shows what appear to be one tree
at the edge of the property line abutting Walnut Street
and another, smaller tree at the edge of the property
line abutting Catherine Avenue. Although the branches
of the trees partially obstruct the view of the porch,
the foliage as depicted in the exhibit is not dense, and
the porch is largely visible. Phelan testified that this
photograph depicts the house at roughly the same angle
from which he had observed the defendant. Phelan
could not say when the photograph was taken, but
Officer Angon testified that it showed the house as it
was at the time of the offenses in August, 2015. Angon
did not state the basis for this assertion, and defense
counsel did not cross-examine him on the matter.
Regarding the back of the house, Officer Shaban testi-
fied that while he and Officer Rose were positioned
near the rear door, Rose alerted him that he had seen
the defendant through a window descending the back
staircase. Shaban did not testify regarding his own view
of the back windows, and defense counsel did not cross-
examine him on the matter. Nor did defense counsel
call Rose to testify.
On October 13, 2016, during the defendant’s case-in-
chief, defense counsel sought to have two photographs
of the house at 126–128 Walnut Street admitted into
evidence. The first photograph is of the front of the
house and depicts what appear to be two trees with
lush foliage completely obstructing the view of the
porch from which the defendant was purportedly
observed by Officer Phelan engaging in the two hand-
to-hand exchanges. The second photograph is of the
back of the house and depicts one or more windows
on each story. According to defense counsel, this photo-
graph demonstrates that there was no window through
which Officer Rose could have observed the defendant
running down the back staircase.
The state objected to the admission of these photo-
graphs, arguing that, because they had been taken in
October, 2016—approximately fourteen months after
the offenses occurred—they did not ‘‘fairly and accu-
rately represent that location . . . .’’11 In other words,
the state was concerned about the authenticity of the
photographs. See State v. Walker, 180 Conn. App. 291,
326, 183 A.3d 1 (to satisfy authentication requirement,
photograph ‘‘[must] be introduced through a witness
competent to verify it as a fair and accurate representa-
tion of what it depicts’’ [emphasis added; internal quota-
tion marks omitted]), cert. granted on other grounds,
328 Conn. 934, 183 A.3d 637 (2018). Specifically, the
state noted its concern about the possibility that, during
this fourteen month period, the condition of the trees
could have changed and the house could have been
remodeled.
As to the photograph of the front of the house,
defense counsel offered to have the defendant testify
that he is familiar with the property at 126–128 Walnut
Street, that the photograph ‘‘accurately reflect[ed] the
way the house and the tree looked’’12 when he took the
photograph, and that ‘‘the way the tree looks in [his]
photograph is substantially similar to the way it looked
in August of 2014.’’13 Defense counsel therefore argued
that the state’s concern regarding this photograph went
to the weight of the evidence, not its admissibility. As
to the photograph of the back of the house, defense
counsel discounted the state’s concern about the possi-
bility of subsequent remodeling, noting that there was
no evidence that any repair work had been done on
the house. Defense counsel, however, made no offer
of proof that such work had not been done or that the
back of the house as depicted in the photograph looked
substantially similar to the way it did at the time of
the offenses.
The court issued its ruling from the bench, stating:
‘‘The court’s concern is in the delay in the time frame
of the photograph[s] and the concern that [these] photo-
graph[s] [were] taken over one year from when the
actual incident allegedly occurred here in this matter.
Based upon that, I’m not considering [these] photo-
graph[s] to be relevant at this time.’’ Later in the pro-
ceeding, the court clarified that it had also excluded
the photographs due to (1) the fact that the photographs
were taken in the autumn whereas the offenses
occurred during the summer and (2) the possibility that
there may have been repairs to the property. The court
did, however, permit the defendant to testify as to the
condition of the house and trees at the time of the
offenses.
On appeal, the defendant claims that the trial court
committed evidentiary error and deprived him of his
constitutional right to present a defense by excluding
these two photographs. To resolve this claim we must
determine, ‘‘[f]irst, whether the court’s ruling was
improper. State v. Saunders, 267 Conn. 363, 385, 838
A.2d 186, cert. denied, 541 U.S. 1036, 124 S. Ct. 2113,
158 L. Ed. 2d 722 (2004). Should we answer that question
in the negative, we need go no further. Should we
answer that question in the affirmative, the second ques-
tion we must answer is whether that impropriety rises
to the level of a constitutional violation. Id. Should we
answer that question in the affirmative as well, the
third question we must answer is whether the state has
demonstrated that the constitutional impropriety was
harmless beyond a reasonable doubt. State v. William
C., 267 Conn. 686, 706, 841 A.2d 1144 (2004). A negative
answer to this third question will warrant a new trial.
E.g., id., 709–10.’’ State v. Tutson, 84 Conn. App. 610,
622, 854 A.2d 794 (2004), rev’d on other grounds, 278
Conn. 715, 899 A.2d 598 (2006). Alternatively, if the
impropriety is not constitutional in nature, the burden
is on the defendant to demonstrate that the evidentiary
error was harmful. State v. William C., supra, 706.
With this framework in mind, we next address each
of the excluded photographs in turn.
A
Beginning with the photograph of the front of the
house, we first must determine whether the trial court’s
ruling was improper. ‘‘We review the trial court’s deci-
sion to admit evidence, if premised on a correct view
of the law . . . for an abuse of discretion. . . . It is
axiomatic that [t]he trial court’s ruling on the admissibil-
ity of evidence is entitled to great deference. . . . In
this regard, the trial court is vested with wide discretion
in determining the admissibility of evidence . . . .
Accordingly, [t]he trial court’s ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . Further-
more, [i]n determining whether there has been an abuse
of discretion, every reasonable presumption should be
made in favor of the correctness of the trial court’s
ruling, and we will upset that ruling only for a manifest
abuse of discretion.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Smith, 179 Conn. App.
734, 761, 181 A.3d 118, cert. denied, 328 Conn. 927, 182
A.3d 637 (2018).
The evidentiary ruling at issue in the present case
implicates the requirement of authentication.14 ‘‘The
requirement of authentication . . . is satisfied by evi-
dence sufficient to support a finding that the offered
evidence is what its proponent claims it to be.’’ Conn.
Code Evid. § 9-1 (a). This requirement applies to all
types of evidence, including demonstrative evidence
such as photographs. See Conn. Code Evid. § 9-1 (a),
commentary; State v. Papineau, 182 Conn. App. 756,
788, 190 A.3d 913, cert. denied, 330 Conn. 916, 193 A.3d
1212 (2018). In order to satisfy the authentication
requirement of § 9-1 of the Connecticut Code of Evi-
dence, ‘‘[t]he proponent need only advance evidence
sufficient to support a finding that the proffered evi-
dence is what it is claimed to be.’’ (Emphasis added;
internal quotation marks omitted.) Conn. Code Evid.
§ 9-1 (a), commentary. In the case of photographs, ‘‘all
that is required is that [the] photograph be introduced
through a witness competent to verify it as a fair and
accurate representation of what it depicts.’’ (Internal
quotation marks omitted.) State v. Walker, supra, 180
Conn. App. 326.
The defendant argues that his offer to testify to the
appearance of the trees at the front of the property was
sufficient to satisfy the authentication requirement and
that, therefore, the photograph should have been admit-
ted. According to the defendant, ‘‘[t]he fact that there
is conflicting evidence as to the accuracy of [a photo-
graph] does not require [its] exclusion. If the [witness]
for the party offering the [photograph] testif[ies] that
[it is] substantially correct [it] may be admitted, and
[its] correctness then becomes a jury question.’’ In other
words, the defendant appears to argue that, in determin-
ing whether the authentication requirement has been
met with respect to photographic evidence, the trial
court’s role is limited to ensuring that sufficient evi-
dence of authenticity has been made and that it may
not pass upon the credibility of such evidence.
The defendant’s argument finds some support in
appellate precedent. Our appellate courts consistently
have described the evidentiary burden that must be met
in order to satisfy the authentication requirement as ‘‘a
prima facie showing of authenticity.’’ See, e.g., State v.
Garcia, 299 Conn. 39, 57, 7 A.3d 355 (2010) (‘‘Both
courts and commentators have noted that the showing
of authenticity is not on a par with the more technical
evidentiary rules that govern admissibility, such as hear-
say exceptions, competency and privilege. . . .
Rather, there need only be a prima facie showing of
authenticity to the court.’’ [Internal quotation marks
omitted.]); State v. Manuel T., 186 Conn. App. 51, 67–68,
198 A.3d 648 (2018) (same), cert. granted, 330 Conn.
968, 200 A.3d 189 (2019). As this court repeatedly has
recognized, ‘‘[t]he phrase prima facie evidence means
evidence which, if credited, is sufficient to establish the
fact or facts which it is adduced to prove.’’ (Emphasis
added; internal quotation marks omitted.) In re Chey-
enne A., 59 Conn. App. 151, 158, 756 A.2d 303, cert.
denied, 254 Conn. 940, 761 A.2d 759 (2000). Thus, our
case law appears to suggest that the trial court’s role
in the context of the authentication requirement is to
determine whether the proof of authenticity offered by
the proponent of evidence is sufficient for the trier of
fact to find the evidence authentic—not whether, in
the court’s view, the proof of authenticity is credible.
Indeed, it is well established, albeit in the context of a
motion for a judgment of dismissal under Practice Book
§ 15-8, that a trial court may not pass upon the credibil-
ity of the evidence presented in determining whether
a prima facie case has been made. See Sonepar Distri-
bution New England, Inc. v. T & T Electrical Contrac-
tors, Inc., 133 Conn. App. 752, 758, 37 A.3d 789 (2012).
The defendant’s contention is further supported by
our rules of evidence. Section 1-3 (a) of the Connecticut
Code of Evidence provides in relevant part that ‘‘[p]re-
liminary questions concerning . . . the admissibility of
evidence shall be determined by the court.’’ As noted
in the commentary to § 1-3 (a), this rule operates in
conjunction with the rules of evidence governing
authentication: ‘‘The preliminary issue, decided by the
court, is whether the proponent has offered a satisfac-
tory foundation from which the finder of fact could
reasonably determine that the evidence is what it pur-
ports to be. The court makes this preliminary determi-
nation in light of the authentication requirements of
Article IX [of the Connecticut Code of Evidence]. Once
a prima facie showing of authenticity has been made
to the court, the evidence, if otherwise admissible, goes
to the fact finder, and it is for the fact finder ultimately
to resolve whether evidence submitted for its consider-
ation is what the proponent claims it to be.’’ Conn. Code
Evid. § 1-3 (a), commentary.
Ultimately, however, we need not definitively deter-
mine whether the trial court in the present case improp-
erly excluded the photograph of the front of the house.
Even if we assume that the photograph was excluded
improperly, we cannot conclude that such impropriety
rose to the level of a constitutional violation. ‘‘[T]he
federal constitution require[s] that criminal defendants
be afforded a meaningful opportunity to present a com-
plete defense. . . . The sixth amendment . . . [guar-
antees] the right to offer the testimony of witnesses,
and to compel their attendance, if necessary, [and] is
in plain terms the right to present a defense, the right
to present the defendant’s version of the facts as well
as the prosecution’s to the jury so that it may decide
where the truth lies. . . . When defense evidence is
excluded, such exclusion may give rise to a claim of
denial of the right to present a defense.’’ (Internal quota-
tion marks omitted.) State v. Jackson, 183 Conn. App.
623, 655–56, 193 A.3d 585, cert. granted on other
grounds, 330 Conn. 922, 193 A.3d 1214 (2018).
Whether a trial court’s exclusion of evidence offered
by a criminal defendant deprives him of his constitu-
tional right to present a defense ‘‘is a question that must
be resolved on a case by case basis. . . . The primary
consideration in determining whether a trial court’s
ruling violated a defendant’s right to present a defense
is the centrality of the excluded evidence to the claim
or claims raised by the defendant at trial.’’ (Internal
quotation marks omitted.) State v. Andrews, 313 Conn.
266, 276, 96 A.3d 1199 (2014). Moreover, ‘‘[a] defendant
may not successfully prevail on a claim of a violation
of his right to present a defense if he has failed to take
steps to exercise the right or if he adequately has been
permitted to present the defense by different means.
See State v. Tomas D., 296 Conn. 476, 498, 995 A.2d
583 (2010) (‘a defendant may not successfully establish
a violation of his [right] to present a defense . . . with-
out first taking reasonable steps to exercise [that
right]’), overruled in part on other grounds by State v.
Payne, 303 Conn. 538, 564, 34 A.3d 370 (2012); State v.
Shabazz, 246 Conn. 746, 758 n.7, 719 A.2d 440 (1998)
(no deprivation of constitutional right to present
defense when ‘defendant was adequately permitted to
present his claim of self-defense by way of his own
testimony, by cross-examining the state’s witnesses,
and by the opportunity to present any other relevant
and admissible evidence bearing on that question’), cert.
denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111
(1999).’’ State v. Santana, 313 Conn. 461, 470–71, 97
A.3d 963 (2014).
In the present case, the defendant argues that the
photograph of the front of the house was central to
his arguments regarding misidentification and lack of
possession because it ‘‘would have considerably under-
cut’’ Officer Phelan’s testimony that he had a sufficiently
good view of the porch to be able to recognize the
suspect as the defendant and to observe him walk into
the house where the drugs were found before engaging
in two hand-to-hand exchanges. The state counters that
the defendant was not deprived of his right to present
his defenses because he was adequately permitted to
present the defenses by different means and there were
additional, alternative avenues that he could have taken
to exercise his right. We agree with the state.
In support of his misidentification argument, the
defendant was able to testify that (1) there are two
berry trees at the front of 126–128 Walnut Street that
block the entire front of the house in July and August,
(2) a person standing at the intersection of Cosset and
Walnut Streets where Phelan had been positioned
would not have been able to see the front porch in
August, 2015, (3) he had not been on the porch of
126–128 Walnut Street on the day in question, (4) he has
been unable to run since being injured in an automobile
accident in 2009, and (5) upon being arrested in Febru-
ary, 2016, he never acknowledged having run away from
the police on the day in question. In addition, defense
counsel was able to elicit during his cross-examination
of Officer Phelan that Phelan had been positioned so
far away from the porch that he had required binoculars
to observe the defendant. Defense counsel also was able
to elicit from Phelan that the person he had observed
on the porch had been wearing a blue tank top, shorts,
and a baseball hat, whereas one of the defendant’s wit-
nesses, Castille Morales, testified that she had been
present in the second floor apartment of 126–128 Wal-
nut Street at the time in question when a man dressed
in a black or blue hoodie and long black pants ran
through the apartment. Morales, who is the grand-
mother of the defendant’s wife, also testified that the
man who ran through her apartment was taller than
the defendant and that, in the five or six years that she
had known the defendant, she had never seen him
running.
In support of the defendant’s argument that he did
not possess the narcotics, defense counsel was able to
cross-examine Phelan regarding his inability to identify
the items exchanged during the two suspected hand-
to-hand transactions and the fact that police made no
attempt to identify or arrest the two suspected narcotics
buyers. Defense counsel also elicited testimony from
Officer Touponse that he had not seen the suspect
throw anything away as he chased the suspect into the
house. Moreover, the defendant testified that no drugs,
money, or paraphernalia were found on him when he
was arrested.
There also were additional avenues that the defen-
dant could have pursued to support his defenses. He
could have cross-examined Phelan regarding the
appearance of the foliage on the day in question and
cross-examined Angon regarding the basis for his testi-
mony that the photograph of the front of the house
submitted into evidence by the state represented the
appearance of the foliage on the day in question. He
also could have questioned Morales and Carmen
Cruz15—both of whom testified for the defense and
claimed to have lived at 126–128 Walnut Street—regard-
ing the appearance of the foliage.
In sum, we agree with the state that the defendant
was able to adequately present his defenses of misiden-
tification and lack of possession by other means and
had additional, alternative avenues available to him to
further bolster his defenses. Accordingly, we conclude
that the exclusion of the defendant’s photograph of the
front of 126–128 Walnut Street did not deprive him of
his constitutional right to present a defense.
Because the defendant has not established that the
exclusion of the photograph rose to the level of a consti-
tutional violation, the burden is on the defendant to
demonstrate that the alleged evidentiary error was
harmful. See State v. William C., supra, 267 Conn. 706
(‘‘If . . . a constitutional right is implicated [by the
improper exclusion of defense evidence], [t]he state
bears the burden of demonstrating that the constitu-
tional error was harmless beyond a reasonable doubt.
. . . Conversely, if the evidentiary impropriety is not
constitutional in nature, the defendant bears the burden
of demonstrating harm.’’ [Citation omitted; internal quo-
tation marks omitted.]). The defendant has failed to
meet that burden.
‘‘[W]hether [the improper exclusion of defense evi-
dence] is harmless in a particular case depends upon
a number of factors, such as the importance of the
[excluded evidence] in the . . . case, whether the [evi-
dence] was cumulative, the presence or absence of
[other] evidence corroborating or contradicting the
[excluded evidence] on material points . . . and, of
course, the overall strength of the prosecution’s case.
. . . Most importantly, we must examine the impact of
the . . . evidence on the trier of fact and the result of
the trial. . . . [T]he proper standard for determining
whether an erroneous evidentiary ruling is harmless
should be whether the jury’s verdict was substantially
swayed by the error. . . . Accordingly, a nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict.’’ (Internal quotation marks omitted.) State
v. Eleck, 314 Conn. 123, 129, 100 A.3d 817 (2014).
The defendant argues that the evidentiary error was
harmful because the state’s case was weak in that it
relied solely on the testimony of police officers that
would have been undermined had the defendant’s pho-
tograph of the front of the house been admitted into
evidence. More specifically, the defendant asserts that
the state’s proof of identity and possession depended
primarily on Officer Phelan’s testimony that he had
observed the defendant entering and exiting the house
from the front porch of 126–128 Walnut Street before
engaging in two hand-to-hand transactions, which testi-
mony, according to the defendant, would have been
called into doubt by his excluded photograph.16 We
disagree.
Having reviewed the record in the present case, we
have a fair assurance that any impropriety in excluding
the defendant’s photograph of the front of 126–128 Wal-
nut Street did not substantially affect the verdict in this
case. First, contrary to the defendant’s suggestion, the
state did not rely solely on Officer Phelan’s testimony
to prove identity and possession. As to the issue of
identity, Officer Touponse testified that he had been
familiar with the defendant from prior encounters with
him and had reviewed photographs of the defendant
immediately prior to approaching 126–128 Walnut
Street and that, upon approaching the front of the prop-
erty, he had observed the defendant on the porch wear-
ing a blue tank top, shorts, and a baseball cap. Officer
Shaban similarly testified that he had been familiar with
the defendant from prior interactions with him and that,
while waiting at the back of the property during the time
in question, he had observed the defendant, dressed in
a blue shirt and baseball cap, attempt to exit the house
from the back door. Shaban also testified that, during
the subsequent search of the building, the residents of
the second floor apartment, Ronnie Morales and Brenda
Rivera, had related to him that the defendant had passed
through their apartment. Moreover, the defendant testi-
fied that he often visits family members at 126–128
Walnut Street and will sometimes ‘‘hang out’’ on the
front porch. Indeed, the grandmother of the defendant’s
wife, Castille Morales, confirmed that he hangs out on
the front porch between one to three times a week.
Thus, there was substantial evidence aside from Phe-
lan’s testimony tending to prove the defendant’s identity
as the suspect seen fleeing police at 126–128 Walnut
Street.
On the issue of possession, we first note that, had
the state relied exclusively on the defendant’s temporal
and spatial proximity to the narcotics and Phelan’s
observation of the hand-to-hand exchanges, the exclu-
sion of evidence tending to undermine the accuracy of
Phelan’s observation likely would have had a significant
impact on the jury’s verdict. If such were the case, the
defendant’s reliance on State v. Nova, supra, 161 Conn.
App. 708, would be well taken. See id., 724 (without
evidence of any items changing hands, defendant’s mere
proximity to contraband was insufficient to support
finding of constructive possession). In the present case,
however, the state also presented police testimony
regarding an anonymous telephone call that the Water-
bury Police Department had received earlier in the day.
The caller informed the police that the defendant, whom
the caller identified by first and last name, was selling
narcotics from the porch of 126–128 Walnut Street and
had active warrants out for his arrest. The police con-
firmed the existence of several active felony warrants,
and Officer Touponse confirmed that the defendant was
present on the porch when he and the other officers
approached the front of 126–128 Walnut Street. The
defendant did not object to the admission of this testi-
mony, and, accordingly, the jury was entitled to con-
sider this evidence in conjunction with the other evi-
dence of possession noted in part I of this opinion.
Thus, even without Phelan’s testimony regarding the
two hand-to-hand exchanges, there was compelling evi-
dence of the defendant’s constructive possession of
the narcotics.
We also disagree with the defendant’s contention that
the excluded photograph likely would have significantly
undermined Phelan’s testimony that he had had a clear
view of the porch of 126–128 Walnut Street, as there
was strong evidence corroborating Phelan’s testimony.
In the photograph of the front of the house offered by
the state, which was admitted into evidence by agree-
ment of the parties, the front porch is clearly visible.
In addition, the descriptions of the defendant’s clothing
given by Officers Touponse and Shaban, whose views
of the suspect were unobstructed, matches that given
by Phelan. Moreover, the defendant conceded at trial
that the front porch was not obstructed from every
angle. More specifically, he testified that, whereas one
can see only ‘‘peeks’’ of Walnut Street from the porch,
Catherine Avenue was ‘‘somewhat’’ visible. Given Phe-
lan’s testimony that he had been able to see a car pull
up and park on the corner of Catherine Avenue, the
defendant’s concession that the porch was somewhat
visible from Catherine Avenue tends to support Phelan’s
testimony that he had had a clear view of the porch.
In light of the foregoing circumstances, we are not
persuaded that the exclusion of the photograph of the
front of the house substantially affected the jury’s
verdict.
B
The defendant also claims that the court improperly
excluded the photograph of the back of the house and
thereby deprived him of his ability to present his mis-
identification defense. We conclude that, because the
defendant failed to authenticate this photograph, the
trial court properly excluded it.
At trial, defense counsel represented to the court that
the defendant was prepared to testify that the front of
the house as depicted in his photograph looks substan-
tially similar to the way it looked at the time of the
offenses. Defense counsel made no similar offer of
proof with respect to the photograph of the back of the
house. The defendant, therefore, failed to make the
prima facie showing required to authenticate the photo-
graph of the back of the house, and, consequently, the
trial court properly excluded it. Because we conclude
that the trial court’s evidentiary ruling was proper, ‘‘we
need go no further.’’ State v. Tutson, supra, 84 Conn.
App. 622.
III
Finally, the defendant claims that the court improp-
erly prevented him from displaying a scar to the jury
and that this deprived him of his constitutional right to
present his misidentification defense. We disagree.
The following additional facts and procedural history
are relevant to this claim. During his case-in-chief, the
defendant testified that he had undergone spinal sur-
gery in 2009 after shattering his spine in an automobile
accident. As summarized in his Waterbury Hospital
medical records, which were admitted into evidence
by agreement, the defendant sustained several vertebral
fractures in the accident. In order to treat an unstable
compression fracture to one of the vertebrae, a poste-
rior spinal fusion was performed. As detailed in the
surgeon’s report, the procedure required ‘‘[a] midline
longitudinal incision . . . from the low thoracic region
down into the lumbar area,’’ which was closed with
staples following the procedure. As to the defendant’s
postsurgical prognosis, the surgeon stated in his report
that he ‘‘would anticipate some long-term aches and
pains’’ but that, ‘‘typically, these types of injuries heal
sufficiently so that people can return to a productive
and active lifestyle.’’ Despite this prognosis, the defen-
dant testified at trial that he was no longer able to run.
The defendant further testified that the surgery had
left him with a scar on his back, whereupon defense
counsel requested the court’s permission for the defen-
dant to display the scar to the jury. The state objected,
arguing that the defendant already had testified regard-
ing his condition and that the scar was irrelevant. The
court sustained the state’s objection on the ground that
demonstrating the scar to the jury would be cumulative,
ruling: ‘‘I think just the defendant’s testimony regarding
the scar itself . . . is sufficient. I don’t think it’s neces-
sary for him to demonstrate that to the jury at this
time . . . .’’
On appeal, the defendant claims that the court
improperly excluded this evidence as cumulative17 and
thereby deprived him of his right to present a defense,
namely, that he was misidentified as the suspect seen
running from the police at 126–128 Walnut Street. As
explained in part II of this opinion, such a claim requires
us to first determine the propriety of the court’s ruling.
See State v. Tutson, supra, 84 Conn. App. 622. On this
point, the defendant argues, in relevant part, that dem-
onstration of his scar would not have been cumulative
because, ‘‘although [he] was able to admit his medical
records into evidence, these records did not describe
the current condition of his back.’’18 We are not per-
suaded, and, accordingly, ‘‘we need go no further’’ in
addressing the defendant’s claim. State v. Tutson, supra,
84 Conn. App. 622.
‘‘Evidence may be precluded if its probative value is
outweighed by the ‘needless presentation of cumulative
evidence.’ Conn. Code Evid. § 4-3. Evidence is cumula-
tive if it multiplies witnesses or documentary matter to
any one or more facts that were the subject of previous
proof. . . . The court’s power in that area is discretion-
ary. . . . In precluding evidence solely because it is
cumulative, however, the court should exercise care to
avoid precluding evidence merely because of an overlap
with the evidence previously admitted.’’ (Citations omit-
ted.) Glaser v. Pullman & Comley, LLC, 88 Conn. App.
615, 627, 871 A.2d 392 (2005). Nevertheless, ‘‘[b]ecause
of the difficulties inherent in this balancing process,
the trial court’s decision will be reversed only whe[n]
abuse of discretion is manifest or whe[n] an injustice
appears to have been done. . . . On review by this
court, therefore, every reasonable presumption should
be given in favor of the trial court’s ruling.’’ (Internal
quotation marks omitted.) State v. Morquecho, 138
Conn. App. 841, 853–54, 54 A.3d 609, cert. denied, 307
Conn. 941, 56 A.3d 948 (2012); see State v. Gutierrez,
132 Conn. App. 233, 237, 31 A.3d 412 (2011) (‘‘[t]he
trial court is vested with wide and liberal discretion in
determining the admissibility of evidence claimed to be
repetitious, remote or irrelevant’’ [internal quotation
marks omitted]).
In the present case, the defendant’s medical records
established that the spinal surgery he underwent had
required an incision that had to be stapled closed after
the surgery. As the defendant notes, the medical records
do not disclose ‘‘the current condition of his back.’’
Nevertheless, the jury reasonably could have inferred
from this evidence that the surgery left a scar on the
defendant’s back; it is a matter of common knowledge
that surgical incisions generally leave permanent scars.
At any rate, the jury in this instance had no need to rely
solely on inferences—the defendant explicitly testified
that, as a result of the spinal surgery, he now has a scar
on his back. The state did not contest this aspect of
the defendant’s testimony, and, therefore, the trial court
found it unnecessary to have the defendant demonstrate
the scar to the jury. Under these circumstances, we
cannot conclude that it was an abuse of discretion for
the court to exclude the demonstration as needlessly
cumulative. See State v. Book, 155 Conn. App. 560, 574,
109 A.3d 1027 (notice of appeal form offered by defen-
dant was properly excluded on ground that it repre-
sented needless presentation of cumulative evidence
where he ‘‘had already testified that he had appealed
from the prior convictions, and the court found it unnec-
essary to admit the notice of appeal form’’), cert. denied,
318 Conn. 901, 122 A.3d 632 (2015), cert. denied,
U.S. , 136 S. Ct. 2029, 195 L. Ed. 2d 219 (2016).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also was convicted of interfering with an officer in viola-
tion of General Statutes § 53a-167a. He does not challenge this conviction
on appeal.
2
As relief under this claim, the defendant seeks reversal of his conviction
and a judgment of acquittal on the narcotics related charges and the charge
of possession of drug paraphernalia. The defendant, however, does not
separately analyze the question of sufficiency of the evidence of possession
of drug paraphernalia. Accordingly, neither do we.
3
The house is located on the northeast corner of the intersection of
Catherine Avenue and Walnut Street.
4
At the top of the staircase, a hallway extending to the right leads to the
front door of the second floor apartment. From this point, the hallway
extends to the right parallel to the first stairwell and leads to a stairway to
the third floor.
5
The record does not identity Officer Rose’s first name.
6
The defendant moved for a judgment of acquittal after the state’s case-
in-chief and again upon the conclusion of all of the evidence. The court
denied both motions.
7
The defendant was sentenced to a total effective sentence of twenty
years of incarceration, execution suspended after ten years, eight years of
which are mandatory, followed by five years of probation.
8
The evidence supporting such an inference is as follows. The police
recovered 171 bags of heroin and a digital scale from the second floor
landing at 126–128 Walnut Street. The heroin was packaged in bundles of
ten glassine packets, tied with rubber bands, and packed in rice. According
to Officer Gary Angon, an expert on heroin sales, heroin sellers typically
possess the drug in quantities larger than that usually possessed by an
individual user—often in conjunction with a scale—and typically package
the drug in individual bags or ten bag bundles tied by rubber bands. Angon
also testified that sellers typically use substances like rice to protect the
drugs from being ruined by moisture. In Angon’s expert opinion, someone
in possession of 171 bags of heroin is likely a dealer.
9
The defendant further argues that no inference of consciousness of guilt
was warranted in the present case because, rather than run away from the
contraband when the police approached, he ran toward it. See State v.
Bischoff, supra, 182 Conn. App. 573 (‘‘[t]he defendant’s act of running away
upon the officers’ entry reasonably could have been found to support an
inference of consciousness of guilt, suggesting that the defendant knew of
the presence and character of the narcotics on the nearby TV stand and
sought to distance himself from them’’ [emphasis added]). We are not per-
suaded. The jury reasonably could have determined that, given the defen-
dant’s position on the front porch when the police approached him, his only
viable path away from the scene of the crime was through the house.
Consequently, the fact that this path led past evidence of the crime does
not render unreasonable an inference of consciousness of guilt.
10
‘‘A defendant’s right to present a defense is rooted in the compulsory
process and confrontation clauses of the sixth amendment . . . [which]
are made applicable to state prosecutions through the due process clause
of the fourteenth amendment.’’ (Internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 272 n.3, 96 A.3d 1199 (2014). The sixth amendment
to the United States constitution provides in relevant part: ‘‘In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him; [and] to have compulsory process for obtaining
witnesses in his favor . . . .’’
11
With respect to the photograph of the front of the house in particular,
the state noted that the defendant’s photograph was ‘‘a complete[ly] different
photograph from the Google Earth map of August, 2015, when this incident
occurred’’ and argued that its prejudicial effect, therefore, outweighed its
probative value.
12
It is unclear from the transcript which tree defense counsel was refer-
ring to.
13
Presumably, defense counsel meant August, 2015, the date of the
offenses.
14
The basis for the state’s objection to the admission of the photographs
was the lack of authentication. The court, in excluding the evidence, echoed
the substance of the state’s objection but couched its ruling in terms of
relevancy. ‘‘Authentication and identification are aspects of relevancy that
are a condition precedent to admissibility.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Morales, 78 Conn. App. 25, 47–48, 826 A.2d
217, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003); see E. Prescott, Tait’s
Handbook of Connecticut Evidence (6th Ed. 2019) § 9.1.2 (‘‘[t]o be relevant,
all items of evidence offered as exhibits must be authenticated’’). Accord-
ingly, we construe the trial court’s ruling as being based in the requirement
of authentication more specifically.
15
Cruz testified that she is the defendant’s aunt and lives in the first floor
apartment at 126–128 Walnut Street.
16
The defendant appears to totally discount the testimony of Officers
Touponse and Shaban identifying the suspect as the defendant because,
according to the defendant, these officers ‘‘saw the suspect for mere seconds,
as he ran.’’
17
The defendant also claims that his scar was relevant demonstrative
evidence and that, therefore, it was improper for the court to exclude it.
The court, however, did not exclude the evidence on the basis of relevancy;
the court excluded it on the ground that it was cumulative. Consequently,
we need not determine whether such evidence was relevant. Our review is
limited to determining whether the court properly excluded the evidence
of the scar as cumulative.
18
The defendant also claims that demonstration of his scar would not
have been cumulative of his trial testimony because the prosecutor, during
cross-examination, ‘‘continuously, and incorrectly, discounted the seri-
ousness of the defendant’s injuries.’’ This claim is unreviewable. The defen-
dant sought to demonstrate his scar to the jury during direct examination,
and the court ruled on the admissibility of the proposed demonstration
on the basis of the facts and circumstances then existing. Following the
prosecutor’s cross-examination, the defendant did not ask the court to recon-
sider its prior ruling. Thus, the defendant’s claim, that the prosecutor’s line
of questioning during cross-examination somehow rendered demonstration
of his scar no longer cumulative, was never presented to the court. ‘‘Our
rules of practice require a party, as a prerequisite to appellate review, to
distinctly raise its claim before the trial court. See Practice Book § 5-2 (‘[a]ny
party intending to raise any question of law which may be the subject of
an appeal must . . . state the question distinctly to the judicial authority’);
Practice Book § 60-5 (‘[t]he [reviewing] court shall not be bound to consider
a claim unless it was distinctly raised at trial or arose subsequent to trial’).
For that reason, we repeatedly have held that ‘we will not decide an issue
that was not presented to the trial court. To review claims articulated for
the first time on appeal and not raised before the trial court would be
nothing more than a trial by ambuscade of the trial judge.’ ’’ Samuel v.
Hartford, 154 Conn. App. 138, 145–46, 105 A.3d 333 (2014). We, therefore,
decline to consider the defendant’s claim.