State v. Dawson ( 2019 )

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STATE OF CONNECTICUT v. ANDRE DAWSON
(AC 40337)
Lavine, Bright and Harper, Js.
Syllabus
Convicted, after a jury trial, of the crimes of criminal possession of a pistol
or revolver and criminal trespass in the third degree, the defendant
appealed to this court. Police officers were patrolling a housing complex
when they entered a courtyard where they saw six individuals, including
the defendant. While two officers conversed with the defendant and
three others who were seated at a picnic table near a corner formed
by the cement walls of a planter, a third officer, L, stepped onto the
wall behind the defendant and immediately saw in plain view a gun
lying in the corner by the bushes, about four to five feet away from the
defendant. Subsequently, the police used swabs to collect DNA from
the gun and the ammunition that L had removed from the gun. The
swabs, as well as DNA samples provided by the defendant and the three
others were delivered to the state forensics laboratory, where R, a
forensic science examiner, conducted DNA analyses of the materials.
The quantity of the touch DNA on the swabs was small, and the DNA
was partially degraded, but R was able to compare the DNA from the
swabs with the samples provided in a scientifically accurate way and
to obtain scientifically viable and accurate results. R’s analysis elimi-
nated the three other individuals as possible contributors to the DNA
profile she developed from the swabs, but the defendant could not be
eliminated as a contributor. Held:
1. The defendant could not prevail on his claim that there was insufficient
evidence to support his conviction of criminal possession of a pistol or
revolver because there was insufficient evidence of his knowledge of
the gun and no evidence to prove his dominion or control over it: even
though the defendant was not in exclusive control of the courtyard where
the gun was found, the circumstances established a nexus between the
defendant and the gun and permitted the jury reasonably to infer that
the defendant knew of the gun’s presence, that he was in a position to
exercise dominion or control over it, and that he intended to do so, as
the gun, which was discovered using a flashlight, was found in plain
view in the open, and was uncovered and appeared to have been placed
near the bushes just before L discovered it, the jury reasonably could
have inferred therefrom that the person who put the gun near the bushes
did not abandon it and leave the courtyard but, instead, was one of the
six individuals in the courtyard when the police officers arrived, L
testified that individuals who have a gun in their possession try to
discard or stash the gun in an area close to them when they become
aware of a police presence so that they will not be detected with it and,
thus, it was reasonable for the jury to infer that the defendant, a convicted
felon, quickly put the gun on the wall near the bushes to avoid being
found with the gun, which was found four to five feet from the defendant,
who was the only person at the picnic table who could not be eliminated
as a contributor to the DNA profile found on the gun and ammunition;
moreover, contrary to the defendant’s claim, the state did not rely on
DNA evidence alone to prove that the defendant knew of the gun’s
presence on the wall near the bushes, and although the defendant
claimed that the DNA evidence was insufficient due to the questionable
reliability of testing a small sample, the size of the DNA sample went
to the weight of the evidence, not its admissibility; furthermore, the
defendant could not prevail on his claim that even if the state produced
sufficient evidence that he knew of the gun’s presence, it failed to adduce
any evidence of his intent to exercise dominion or control of the gun,
as there was evidence of the defendant’s proximity to the gun, which
provided a DNA profile from which, among those present, only the
defendant could not be excluded, there was circumstantial evidence
that the gun recently had been placed on the wall near the bushes, the
defendant, a convicted felon, had a reason not to want to be found with
the gun on his person, and the jury, therefore, reasonably could have
inferred that he stashed the gun but remained in close proximity to it,
so that he could exercise dominion or control over it, and that he
intended to do so.
2. The defendant’s unpreserved claim that he was deprived of his constitu-
tional right to a fair trial as a result of certain instances of prosecutorial
impropriety during closing argument was unavailing:
a. Even though the prosecutor provided the jury with an incomplete
and incorrect statement of the law of constructive possession by leaving
out the necessary element of intent when she incorrectly told the jury
that it could convict the defendant if he knew where the gun was located
and had access to it, that error did not deprive the defendant of his
right to a fair trial; the trial court’s jury instructions, which were nearly
identical to our model jury instructions for criminal possession of a
gun, corrected the prosecutor’s incorrect statement of the law of posses-
sion by giving a full and complete instruction on possession, the defen-
dant failed to demonstrate how the model jury instruction that was used
in the present case was a source of constitutional error, and despite the
fact that the prosecutor’s inaccurate reference to the law of constructive
possession had the potential to confuse the jury, any perceived impropri-
ety did not deprive the defendant of a fair trial, as the prosecutor’s
argument was not central to the theory of defense that focused on the
DNA evidence, the state’s case was convincing, and the court’s correct
charge on constructive possession, coupled with the repeated admoni-
tions that the jury must follow the law as given to it by the court,
adequately cured the prosecutor’s error.
b. The defendant could not prevail on his claim that the prosecutor
mischaracterized the DNA evidence and R’s testimony, and improperly
suggested that there was no evidence to support the defense’s theory
that the defendant’s DNA on the gun or ammunition came to be there
in some incidental or accidental fashion; although R, who testified as
to a number of ways in which the defendant’s DNA could have been
transferred to the gun and that she did not know how his DNA was
deposited on it, described possibilities or hypotheticals, her testimony
was not evidence of how, in fact, the defendant’s DNA came to be on
the gun or the ammunition, and the state, which proved that the defen-
dant’s DNA was contained in the DNA profile developed from the swab
of the gun and ammunition, and presented circumstantial evidence per-
mitting the jury to find the defendant guilty of criminal possession of
a pistol or revolver, was not required to introduce evidence to corrobo-
rate that the DNA was placed on the gun or ammunition by direct contact.
Argued November 15, 2018—officially released March 19, 2019
Procedural History
Information, in the first case, charging the defendant
with the crime of criminal possession of a firearm, and
information, in the second case, charging the defendant
with the crime of criminal trespass in the third degree,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, geographical area number twenty,
where the cases were consolidated; thereafter, the state
filed a substitute information charging the defendant
with the crimes of criminal possession of a pistol or
revolver and criminal trespass in the third degree; sub-
sequently, the matter was tried to the jury before Her-
nandez, J.; thereafter, the court denied the defendant’s
motion for a judgment of acquittal as to the count of
criminal possession of a pistol or revolver; verdicts and
judgments of guilty, from which the defendant appealed
in part to this court. Affirmed.
Erica A. Barber, assigned counsel, with whom, on
the brief, was Allison M. Near, for the appellant
(defendant).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Suzanne M. Vieux, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Andre Dawson, appeals
from the judgment of conviction, rendered after a jury
trial, of criminal possession of a pistol or revolver in
violation of General Statutes § 53a-217c (a) (1).1 On
appeal, the defendant claims that (1) there was insuffi-
cient evidence that he was in possession of a pistol or
revolver (gun), and (2) he was deprived of a fair trial by
the prosecutor’s final argument in which the prosecutor
allegedly (a) misstated the law of constructive posses-
sion and (b) mischaracterized the DNA evidence pre-
sented at trial.2 We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
At approximately 9:35 p.m. on August 10, 2014, Police
Officers Kyle Lipeika, Stephen Cowf, and Michael Pug-
liese (officers) were patrolling Washington Village, a
housing complex in Norwalk. The officers were mem-
bers of the Street Crimes Task Force within the Special
Services Division (task force) of the Norwalk Police
Department (department).3 They had entered Washing-
ton Village from Day Street and walked through an alley
that led to a courtyard between buildings 104 and 304.
Lipeika was shining a flashlight in order for people in
the courtyard to see the officers approaching. Lipeika
and Cowf were wearing uniforms with yellow letters
identifying them as police. When the officers entered
the courtyard, they saw benches, a picnic table, a
cement retaining wall,4 bushes, a playground, and six
individuals.5
The defendant, Kason Sumpter, and Altolane Jackson
were seated at the picnic table near a corner formed
by the cement walls of a planter. The defendant was
seated with his back to the cement wall containing the
bushes. See footnote 4 of this opinion. Brian Elmore
first walked away from the officers, but turned back
and sat at the picnic table.6 To establish rapport with
the individuals sitting at the table, the officers engaged
them in conversation. As was their practice, the officers
scanned the area for firearms and narcotics that the
individuals may have tried to conceal.7 As Cowf and
Pugliese conversed with the individuals at the picnic
table, Lipeika stepped onto the wall behind the defen-
dant and immediately saw in plain view a gun lying in
the corner by the bushes.
According to Lipeika, the gun looked like it had been
placed there just before he discovered it because the
gun was resting on top of leaves, was not covered with
dirt or debris, except a twig, and appeared to be free
of rust and dust. Jackson and Kason Sumpter were
seated closest to the gun, two or three feet away from
it. The defendant was seated four to five feet away from
the gun. None of the officers who testified had seen
the defendant touch the gun.
When Lipeika discovered the gun, he drew his
weapon and ordered the six individuals in the courtyard
to show their hands. Pugliese and Cowf detained the
individuals and moved them away from the gun. Lipeika
radioed for more officers and guarded the gun until the
scene was secured. The additional officers photo-
graphed the scene and the gun. Then Lipeika put on a
new pair of rubber gloves and seized the loaded gun
in accordance with department procedures. He
removed the ammunition from the gun, a revolver with
a two inch barrel, and took the ammunition and the
gun to the police station.
Days later, at Lipeika’s request, the defendant, Kason
Sumpter, Jackson, and Elmore went to the police sta-
tion; each of them voluntarily provided a sample of his
DNA. None of them claimed that the gun was his. The
defendant also provided a written statement in which
he stated that he ‘‘walked through Washington Village
to Water Street, stopped to talk when officers came
through and found a handgun in the bushes in the area
[where] I was talking.’’
Jackson, too, provided a written statement and testi-
fied at trial that he was in the Washington Village court-
yard when the defendant walked through and stopped
to talk. He also stated that ten minutes later someone
said ‘‘police,’’ and everyone looked up. Jackson did not
see the defendant with a gun, and he did not see the
defendant walk toward the bushes where the gun was
found. Jackson confirmed that the gun did not belong
to him.
On August 28, 2014, Arthur Weisgerber, a lieutenant
in the department, tested the gun for latent fingerprints
but did not find any suitable for identification. There-
after, he used swabs to collect DNA from the gun and
the ammunition that Lipeika had removed from the
gun. He placed the swabs in an envelope. In addition,
Weisgerber fired the gun and determined that it was
operable. The swabs and the DNA samples provided
by the defendant, Kason Sumpter, Jackson, and Elmore,
were delivered to the state forensics laboratory (labora-
tory), where Melanie Russell, a forensic science exam-
iner, conducted DNA analyses of the materials. Russell
provided expert testimony at trial.
The laboratory has procedures to protect DNA sam-
ples and evidence from contamination. It also pre-
scribes how laboratory analysis of DNA is to be
conducted. The DNA that Weisgerber swabbed from
the gun and ammunition is touch DNA because it was
deposited on the gun or ammunition when someone
touched them directly, through a secondary transfer or
through aerosolization, that is, coughing or sneezing.
Touch DNA comes from skin cells left behind when a
person touches an object. The quantity and quality of
touch DNA varies according to the character of the
object’s surface, i.e., rough or smooth, and the length
of time the DNA has been on the object. DNA degrades
with time due to environmental factors, such as heat
and moisture. Degradation makes it difficult to amplify
the DNA and, in some cases, even to detect DNA.
The quantity of DNA on the swabs was small, and
the DNA was partially degraded. Nonetheless, Russell
was able to extract a DNA solution of 7.16 picograms
per microliter from the swabs. Although she was able
to amplify a sample of about seventy picograms of DNA,
1000 picograms is the ideal amount for DNA analysis.
A low yield sample will provide a DNA profile but usu-
ally not a full profile. Russell was able to generate a
partial profile and obtained results at seven out of fif-
teen loci tested. The profile Russell obtained from the
gun and ammunition consisted of a mixture of DNA,
signifying the presence of more than one person’s DNA.
She was able to compare the DNA from the swabs with
the samples provided by the defendant, Kason Sumpter,
Elmore and Jackson in a scientifically accurate way
and to obtain scientifically viable and accurate results.
Her analysis eliminated Kason Sumpter, Elmore, and
Jackson as possible contributors to the DNA profile
she developed from the swabs. The defendant, however,
could not be eliminated as a contributor. The expected
frequency of individuals who could not be eliminated
as a contributor to the DNA profile is approximately
one in 1.5 million in the African-American population,
one in 3.5 million in the Caucasian population, and one
in 930,000 in the Hispanic population.8 The defendant
is African-American.
A warrant was issued for the defendant’s arrest on
September 25, 2014. He was charged in separate infor-
mations with criminal possession of a firearm in viola-
tion of General Statutes § 53a-2179 and criminal trespass
in the third degree in violation of General Statutes § 53a-
109 (a) (1). The informations were consolidated for
trial. Subsequently, the state filed an amended long
form information charging the defendant with criminal
possession of a pistol or revolver in violation of § 53a-
217c and criminal trespass in the third degree in viola-
tion of § 53a-109 (a) (1). At the conclusion of the state’s
case-in-chief, the defendant moved for a judgment of
acquittal on the charge of criminal possession of a pistol
or revolver. The court denied the motion for a judgment
of acquittal. The jury found the defendant guilty of both
charges. The court sentenced the defendant to consecu-
tive terms of ten years imprisonment, two years being
a mandatory minimum, on the conviction of criminal
possession of a pistol or revolver, and three months
imprisonment on the conviction of criminal trespass in
the third degree, for a total effective sentence of ten
years and three months to serve. Thereafter, the defen-
dant appealed.
I
The defendant claims that there was insufficient evi-
dence to convict him of criminal possession of a pistol
or revolver because there was insufficient evidence of
his knowledge of the gun and no evidence to prove his
dominion or control over it.10 We disagree.
The defendant was charged, in part, with violation
of § 53a-217c, which provides in relevant part: ‘‘(a) A
person is guilty of criminal possession of a pistol or
revolver when such person possesses a pistol or
revolver . . . and (1) has been convicted of a felony
. . . .’’11 General Statutes § 53a-3 (2) defines ‘‘possess’’
as ‘‘to have physical possession or otherwise to exercise
dominion or control over tangible property . . . .’’
Because the gun was not found on the defendant’s per-
son, the state prosecuted the subject charge under the
theory of constructive possession.
‘‘There are two types of possession, actual possession
and constructive possession. . . . Actual possession
requires the defendant to have had direct physical con-
tact with the [gun].’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Johnson, 137 Conn. App.
733, 740, 49 A.3d 1046 (2012), rev’d in part on other
grounds, 316 Conn. 34, 111 A.3d 447, and aff’d, 316
Conn. 45, 111 A.3d 436 (2015). ‘‘Where . . . the [gun
is] not found on the defendant’s person, the state must
proceed on the theory of constructive possession, that
is, possession without direct physical contact. . . .
Where the defendant is not in exclusive possession of
the premises where the [gun is] found, it may not be
inferred that [the defendant] knew of the presence of
the [gun] 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. Winfrey, 302 Conn. 195, 210–11, 24
A.3d 1218 (2011). ‘‘The 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.’’ State v. Hill, 201 Conn. 505, 516,
523 A.2d 1252 (1986).
‘‘[T]o mitigate the possibility that innocent persons
might be prosecuted for . . . possessory offenses . . .
it is essential 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). ‘‘[M]ere proximity to a gun is not
alone sufficient 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.’’
(Internal quotation marks omitted.) Id., 125.
The standard of review for sufficiency of the evidence
claims is well known. ‘‘A defendant who asserts an
insufficiency of the evidence claim bears an arduous
burden.’’ State v. Hopkins, 62 Conn. App. 665, 669–70,
772 A.2d 657 (2001). ‘‘In reviewing a sufficiency [of the
evidence] claim, we apply a two part test. First, we
construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the jury reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt.’’ (Internal
quotation marks omitted.) State v. Abraham, 64 Conn.
App. 384, 400, 780 A.2d 223, cert. denied, 258 Conn. 917,
782 A.2d 1246 (2001).
‘‘It is within the province of the jury to draw reason-
able and logical inferences from the facts proven. . . .
The jury may draw reasonable inferences based on
other inferences drawn from the evidence presented.
. . . Our review is a fact based inquiry limited to
determining whether the inferences drawn by the jury
are so unreasonable as to be unjustifiable.’’ (Internal
quotation marks omitted.) State v. Bradley, 60 Conn.
App. 534, 540, 760 A.2d 520, cert. denied, 255 Conn. 921,
763 A.2d 1042 (2000). ‘‘The trier [of fact] may draw
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical. . . . This does not require that each subordi-
nate conclusion established by or inferred from the
evidence, or even from other inferences, be proved
beyond a reasonable doubt . . . .’’ (Internal quotation
marks omitted.) State v. Fagan, 280 Conn. 69, 80, 905
A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct.
1491, 167 L. Ed. 2d 236 (2007). ‘‘[T]his court has held
that a jury’s factual inferences that support a guilty
verdict need only be reasonable.’’ (Internal quotation
marks omitted.) State v. Hector M., 148 Conn. App. 378,
384, 85 A.3d 1188, cert. denied, 311 Conn. 936, 88 A.3d
550 (2014).
As our Supreme Court has often noted, ‘‘proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier, would have resulted in an
acquittal. . . . Furthermore, [i]n [our] process of
review, 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 multitude of
facts which establishes guilt in a case involving substan-
tial circumstantial evidence. . . . Indeed, direct evi-
dence of the accused’s state of mind is rarely available.
. . . Therefore, intent is often inferred from conduct
. . . and from the cumulative effect of the circumstan-
tial evidence and the rational inferences drawn there-
from.’’ (Internal quotation marks omitted.) State v.
Robert S., 179 Conn. App. 831, 835–36, 181 A.3d 568,
cert. denied, 328 Conn. 933, 183 A.3d 1174 (2018), citing
State v. Fagan, supra, 280 Conn. 79–81.
In the present case, there is no dispute that the defen-
dant did not have the gun on his person at the time
Lipeika discovered it in the courtyard of Washington
Village on August 10, 2014, and that he was not in
exclusive possession of the courtyard where Lipeika
found the gun. The state, therefore, was required to
establish that the defendant was in constructive posses-
sion of the gun. To prove constructive possession under
§ 53a-217c (a) (1), the state had to present evidence
beyond a reasonable doubt that the defendant had
knowledge of the gun and intended to exercise domin-
ion or control over it. See State v. Hernandez, 254 Conn.
659, 669, 759 A.2d 79 (2000); State v. Davis, 84 Conn.
App. 505, 510, 854 A.2d 67, cert. denied, 271 Conn. 922,
859 A.2d 581 (2004). The defendant argues on appeal
that although the gun was found near him and his DNA
was found on it, his proximity to it and the presence
of his DNA on the gun and ammunition are not sufficient
evidence to prove that he had knowledge of the gun,
knew of its presence or exercised dominion or control
over it. In particular, the defendant argues that the
presence of his DNA on the gun merely means that at
some unknown time and under unknown circumstances
his DNA was transferred to the gun, but that is insuffi-
cient to support a finding that he knew of the gun’s
presence.
The state acknowledges that because the defendant
was not in exclusive control of the courtyard, the jury
could not infer properly from that circumstance that
the defendant knew of the gun’s presence without
incriminating statements or other circumstances to but-
tress the inference. See State v. Butler, 296 Conn. 62,
78, 993 A.2d 970 (2010). The state, however, contends
that there were four circumstances that established a
nexus between the defendant and the gun and permitted
the jury reasonably to infer that the defendant knew of
the gun’s presence, that he was in a position to exercise
dominion or control over it, and that he intended to do
so. See State v. Hill, supra, 201 Conn. 516. We agree
with the state.
First, the state notes that the gun was found in plain
view and appeared to have been placed near the bushes
recently. The jury, therefore, reasonably could have
inferred that the person who put the gun near the bushes
did not abandon it and leave the courtyard but, instead,
was one of the six individuals in the courtyard when
the officers arrived. In response, the defendant argues
that the gun was not in plain view because Lipeika
needed a flashlight to see it.12 The defendant’s argument
lacks merit. The police were patrolling the courtyard
pursuant to the department’s agreement with the hous-
ing authority. The officers needed artificial light both
to be seen as they approached the courtyard and to see
what was in the courtyard. The gun was lying on a wall
in a public space, and it was dark. The gun was in the
open and uncovered, and, therefore, it was in plain
view. It clearly would have been visible in daylight.
Under the circumstances, there is no difference
between Lipeika’s using a flashlight and turning on a
light in a dark room. Furthermore, the state’s argument
is not that the location of the gun is evidence that the
defendant saw it there. Instead, the state’s argument is
that the location of the uncovered gun near the bushes
close to the defendant supports the inference that the
defendant had placed the gun there. Thus, the lighting
conditions at the time were immaterial.
Second, the state points out that Lipeika was shining
his flashlight when the officers walked through the alley
into the courtyard. In his statement to the police, Jack-
son stated that someone saw the light and called out
‘‘police,’’ causing individuals in the courtyard to look
up. According to Lipeika, when individuals who have
a gun in their possession become aware of a police
presence, they try to ‘‘discard . . . or stash’’ the gun
so that they will not be detected with it. The state,
therefore, argues that it was reasonable for the jury to
infer that the defendant quickly put the gun on the wall
near the bushes to avoid being found with it. The jury
reasonably could have inferred from the evidence that
the defendant, whom it knew to be a convicted felon,
was motivated to ‘‘stash’’ the gun because he is not
entitled to possess a gun.
Third, the state cites Lipeika’s testimony that, when
individuals with a gun seek to ‘‘discard . . . or stash’’
it, they put the gun in a place close enough to be ‘‘acces-
sible’’ to them. In this instance, the gun was four to five
feet from the defendant, who was sitting at a picnic
table next to the wall and bushes.
Fourth, the defendant was the only person at the
picnic table who could not be eliminated as a contribu-
tor to the DNA profile found on the gun and ammuni-
tion. The chance that a random individual, someone
other than the defendant, could have contributed to the
DNA was one in 1.5 million in the African-American
population. On the basis of these four circumstances,
the state argues that the jury reasonably could have
inferred that the defendant knew of the gun’s presence
and could have exercised dominion or control over it,
and intended to do so. Although none of the factors
alone is direct evidence of the defendant’s knowledge
of the gun’s presence or his intent to possess it, the
cumulative force of the circumstantial evidence was
sufficient for the jury reasonably to infer that the defen-
dant knew of the gun and was in constructive posses-
sion of it. ‘‘Where a group of facts [is] relied upon for
proof of an element of the crime it is [the] cumulative
impact [of those facts] that is to be weighed in deciding
whether the standard of proof beyond a reasonable
doubt has been met and each individual fact need not
be proved in accordance with that standard.’’ (Internal
quotation marks omitted.) State v. McDonough, 205
Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485
U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Evi-
dence of the defendant’s DNA on the gun and ammuni-
tion, plus his proximity to the gun, leads to a reasonable
inference that the defendant once had the gun on his
person and intended to do so again when the police
left the courtyard.
The defendant argues, citing State v. Payne, 186
Conn. 179, 440 A.2d 280 (1982), that the state cannot
rely on the DNA evidence alone to prove that he knew
of the gun’s presence on the wall near the bushes. He
compares the presence of DNA on the gun to finger-
prints found on a vehicle in Payne. ‘‘[A] conviction may
not stand on fingerprint evidence alone unless the prints
were found under such circumstances that they could
have only been impressed at the time the crime was
perpetrated.’’ Id., 182. In Payne, the defendant’s finger-
prints were found on the driver’s door of a motor vehicle
in which the victim had been restrained. Id., 181. The
victim was unable to identify the defendant in a photo-
graphic array or at trial. Id. Our Supreme Court reversed
the defendant’s conviction because ‘‘[t]he evidence in
the present case does not reasonably exclude the
hypothesis that the defendant’s fingerprints were
placed on the car at a time other than during the perpe-
tration of the crime.’’ Id., 184; see also State v. Mayell,
163 Conn. 419, 426, 311 A.2d 60 (1972) (where defendant
was regularly employed to drive vehicle and rightfully
in it six hours before crime defendant’s fingerprints
on rearview mirror of abandoned vehicle were of no
moment unless circumstances were such that finger-
prints only could have been impressed at time of crime).
The facts of the present case, however, are distin-
guishable from both Payne and Mayell. Here, the defen-
dant not only was at the scene at the time the gun was
found, but he also was in close proximity to it. Others
were in close proximity to the gun too, but the defen-
dant was the only one of them who was a contributor
to the DNA obtained from the surface of the gun or the
ammunition, or both. Moreover, the defendant had at
least two reasons to ‘‘stash’’ the gun. The defendant
stipulated to the fact that he was a convicted felon. We
discern that the jury reasonably could have inferred
that because the defendant was trespassing13 and, more
importantly, because he was a convicted felon, he had
‘‘stashed’’ the gun to avoid being found with the gun
on his person.
The defendant also argues that the DNA evidence
is insufficient due to ‘‘the questionable reliability of a
sample containing only 70 picograms of DNA, when the
ideal amount is 1000 picograms of DNA.’’ The defendant
did not object to the admission of the DNA evidence
at trial, but cites Russell’s testimony regarding problems
that are inherent in testing small samples of DNA.
Despite the small sampling, however, Russell testified
that she was able to analyze the DNA from the gun,
and that she obtained scientifically viable and accurate
results that revealed a high likelihood that the defendant
was a contributor to the sample. Her findings were
reviewed by a forensic science examiner in the labora-
tory and no problems were identified. Defense counsel
vigorously cross-examined Russell. Although the bur-
den was on the state to prove its case, the defendant
presented no evidence to contradict Russell’s testimony
regarding the accuracy of her analysis.14
The defendant’s claim is not that Russell’s testimony
regarding the results of her DNA analysis was improp-
erly admitted. The evidence, therefore, properly was
before the jury to be considered along with the other
evidence. The size of the sample went to the weight of
the evidence, not its admissibility. ‘‘It is axiomatic that
it is the jury’s role as the sole trier of the facts to weigh
the conflicting evidence and to determine the credibility
of witnesses. . . . It is the right and duty of the jury
to determine whether to accept or to reject the testi-
mony of a witness . . . and what weight, if any, to
lend to the testimony of a witness and the evidence
presented at trial.’’ (Internal quotation marks omitted.)
State v. Osbourne, 138 Conn. App. 518, 533–34, 53 A.3d
284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012).
The essence of the defendant’s argument is that this
court should override the inferences drawn by the jury.
This we may not, and will not, do. See State v. Davis,
160 Conn. App. 251, 265–66, 124 A.3d 966 (court on
appeal does not sit as seventh juror), cert. denied, 320
Conn. 901, 127 A.3d 185 (2015).
The defendant also claims that even if the state pro-
duced sufficient evidence that he knew of the gun’s
presence, it failed to adduce any evidence of his intent
to exercise dominion or control of the gun. ‘‘The phrase
‘to exercise dominion or control’ as commonly used
contemplates a continuing relationship between the
controlling entity and the object being controlled. Web-
ster’s Third New International Dictionary defines the
noun ‘control’ as the ‘power or authority to guide or
manage.’ The 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 involv-
ing possession, this control must be exercised intention-
ally and with knowledge of the character of the
controlled object.’’ (Emphasis added.) State v. Hill,
supra, 201 Conn. 516.
The defendant relies on the federal case of United
States v. Beverly, 750 F.2d 34 (6th Cir. 1984), to support
his claim of insufficient evidence of control. Although
Beverly also concerned constructive possession of a
firearm by a convicted felon, the facts of that case are
distinguishable. In the present case, a police officer
found the gun in plain sight in a public space in close
proximity to the defendant. In Beverly, a police officer
executed a search warrant at the apartment of a third
party. Id., 35. When the officer entered the apartment,
he found two men in the kitchen, one of whom was
Herbert Collins Beverly, the defendant in that case. Id.
The officer instructed the men to place their hands on
the wall while he patted them down. Id. As he was
conducting the pat down, the officer noticed a waste
basket between the two men, and that it contained two
guns. Id. The guns later were examined in the state
police crime laboratory, where one identifiable, latent
fingerprint was discovered on one of the guns. Id. The
fingerprint belonged to Beverly. Id. He was charged
with violation of 18 U.S.C. § 922 (h) (1) (1982), which
prohibits ‘‘the receipt by a convicted felon of a weapon
that has been shipped in interstate commerce.’’ Id. At
the close of the government’s case, Beverly moved for
a judgment of acquittal, arguing that the evidence dem-
onstrated that he must have touched the gun at some
point, but that it did not establish that he had received
the gun within the meaning of the statute. Id. The trial
court denied the motion. Id.
On appeal, the United States Court of Appeals for
the Sixth Circuit reversed the judgment of conviction.
Id. At trial, the government had relied on the testimony
of the officer who found the gun and the fingerprint
expert. Id., 36. It argued that before the search warrant
was executed, Beverly had ‘‘received the gun within
the meaning of [§] 922 because he exercise[d] control
over’’ it. (Emphasis omitted; internal quotation marks
omitted.) Id. The government argued that it, therefore,
was entitled to prove Beverly received the gun by infer-
ence of his constructive possession. Id. The Court of
Appeals disagreed, concluding that the evidence did
not prove that Beverly was in constructive possession
of the gun because the government had not proven that
(1) Beverly had indirect control of the kitchen, waste
basket, or gun; (2) Beverly was in direct control of any
of them; and (3) he was in constructive possession of
the gun. Id., 38. The evidence established only that
Beverly was one of two men standing on either side of
a waste basket in the kitchen, that the waste basket
contained two guns, and that, at some time, he had
touched one of the guns. Id. The Court of Appeals,
therefore, reversed Beverly’s conviction. Id. ‘‘Presence
alone near a gun . . . does not show the requisite
knowledge, power, or intention to exercise control over
the gun to prove constructive possession.’’ (Emphasis
omitted; internal quotation marks omitted.) United
States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007), cert.
denied, 552 U.S. 1103, 128 S. Ct. 871, 169 L. Ed. 2d
736 (2008).
More than twenty years later, the United States Court
of Appeals for the Sixth Circuit, sitting en banc, limited
the scope of Beverly. See id., 183–84. ‘‘As an en banc
court, we have subsequently distinguished Beverly as a
proximity-only case without any evidence connect[ing]
the gun to the defendant. [Id., 184]. We filled the eviden-
tiary gap in Arnold with statements by the victim con-
necting the gun to the defendant. [Id., 184–85].’’
(Internal quotation marks omitted.) United States v.
Vichitvongsa, 819 F.3d 260, 276 (6th Cir.), cert. denied,
U.S. , 137 S. Ct. 79, 196 L. Ed. 2d 70 (2016).15
‘‘While the Government is not required to prove exclu-
sive possession, constructive possession may not be
shown merely by introducing evidence of proximity.’’
United States v. Lynch, 459 Fed. Appx. 147, 151 (3d
Cir. 2012). In Lynch, the defendant was a convicted
felon on parole who was not permitted to possess a
firearm. Id., 148. The defendant’s parole officer became
aware that the defendant had violated the terms of his
parole. Id., 148–49. During a permissible warrantless
search of the defendant’s home; id., 149–50; police
found a pistol in the top drawer of a dresser in his
bedroom, concealed beneath the defendant’s clothing.
Id., 149. ‘‘A DNA test conducted on a swab from the
handle of the firearm revealed a mixture of profiles
from which [the defendant’s] profile could not be
excluded.’’ Id. At trial, the defendant stipulated that he
had been convicted of a felony. Id., 150. A jury found
the defendant guilty of felony possession of a firearm.
Id., 148. On appeal, the defendant argued that there was
insufficient evidence that he knowingly possessed the
firearm. Id., 151. In support of his position, he cited
Beverly. The United States Court of Appeals for the
Third Circuit distinguished Beverly in that the gun was
found in a dresser drawer in the defendant’s home, not
the kitchen of a third person. Id. The court stated that
it was not bound to follow Beverly, and that although
Beverly might mitigate the importance of the DNA evi-
dence, there was other evidence tending to show the
defendant’s constructive possession of the gun. Id.
In the present case, there is evidence of the defen-
dant’s proximity to the gun, which provided a DNA
profile from which, among those present, only the
defendant could not be excluded. There is circumstan-
tial evidence that the gun recently had been placed on
the wall near the bushes. The defendant, a convicted
felon, had a reason not to want to be found with the
gun on his person. The jury, therefore, reasonably could
have inferred that he ‘‘stashed’’ the gun but remained
in close proximity to it, so that he could exercise control
over it, and that he intended to do so.
We acknowledge that the facts of this case presented
some subtle issues for the jury and that the case against
the defendant is grounded in circumstantial evidence.
The jury, however, was fully entitled to rely on the
circumstantial evidence in reaching its verdict. ‘‘[T]he
jury must find every element proven beyond a reason-
able doubt in order to find the defendant 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 defen-
dant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . . Moreover, [w]here a
group of facts [is] relied upon for proof of an element
of the crime it is [its] cumulative impact that is to
be weighed in deciding whether the standard of proof
beyond a reasonable doubt has been met and each
individual fact need not be proved in accordance with
that standard. . . .
‘‘Furthermore, [i]t is immaterial to the probative force
of the evidence that it consists, in whole or in part, of
circumstantial rather than direct evidence.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Otto, 305 Conn. 51, 65–66, 43 A.3d
629 (2012). In fact, ‘‘circumstantial evidence may be
more certain, satisfying and persuasive than direct evi-
dence.’’ (Internal quotation marks omitted.) State v.
Sienkiewicz, 162 Conn. App. 407, 410, 131 A.3d 1222,
cert. denied, 320 Conn. 924, 134 A.3d 621 (2016). ‘‘If
evidence, whether direct or circumstantial, should con-
vince a jury beyond a reasonable doubt that an accused
is guilty, that is all that is required for a conviction.’’
(Internal quotation marks omitted.) State v. Jackson,
257 Conn. 198, 206, 777 A.2d 591 (2001). ‘‘[P]roof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . .’’ (Internal quotation marks omit-
ted.) State v. Brown, 299 Conn. 640, 647, 11 A.3d 663
(2011).
Although the defendant claims that there was insuffi-
cient evidence to convict him of constructive posses-
sion of the gun, this is not a case in which the state
failed to present evidence regarding an element of the
crime. This is a case in which the defendant is looking
for a different interpretation of the evidence. This court
has stated many times that it does ‘‘not sit as the seventh
juror when [it] review[s] the sufficiency of the evidence
. . . rather, [it] must determine, in the light most favor-
able to sustaining the verdict, whether the totality of the
evidence, including reasonable inferences therefrom,
supports the jury’s verdict of guilt beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v.
Glasper, 81 Conn. App. 367, 372, 840 A.2d 48, cert.
denied, 268 Conn. 913, 845 A.2d 415 (2004). In the pre-
sent case, the state presented evidence of the defen-
dant’s proximity to the gun, which provided a DNA
profile from which the defendant could not be excluded.
There is circumstantial evidence that the gun recently
had been placed on the wall near the bushes. The defen-
dant, a convicted felon, had a reason not to want to be
found with the gun on his person, and, therefore, the
jury reasonably could have inferred that he had
‘‘stashed’’ it and remained in close proximity to it, so
that he could exercise dominion or control over it, if
he so intended.
On the basis of our review of the record, we conclude
that there was sufficient circumstantial evidence by
which the jury reasonably could have inferred that the
defendant was in possession of the gun when he entered
the courtyard, that he put it near the bushes when the
police arrived so that it would not be found on his
person, and that he intended to retrieve the gun when
the police left. Accordingly, the evidence was sufficient
to support the defendant’s conviction of criminal pos-
session of a pistol or revolver, and the court, therefore,
properly denied the defendant’s motion for a judgment
of acquittal.
II
The defendant also claims that he was deprived of a
fair trial because, during her final argument, the prose-
cutor (1) misstated the law of constructive possession
and (2) mischaracterized the DNA evidence. We dis-
agree that the defendant was denied his constitutional
right to a fair trial.
The defendant did not object to the prosecutor’s clos-
ing argument and did not request a curative instruction
from the court. We, therefore, review the law applicable
to unpreserved claims of prosecutorial impropriety.
When a defendant has not preserved his claims of
prosecutorial impropriety, ‘‘it is unnecessary for the
defendant to seek to prevail under the specific require-
ments of . . . [State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989)] and, similarly, it is unnecessary
for a reviewing court to apply the four-pronged Golding
test. . . . Our Supreme Court has articulated that fol-
lowing a determination that prosecutorial [impropriety]
has occurred, regardless of whether it was objected to,
an appellate court must apply the [State v. Williams,
204 Conn. 523, 540, 529 A.2d 653 (1987)] factors to the
entire trial. . . . [W]hen a defendant raises on appeal a
claim that improper remarks by the prosecutor deprived
the defendant of his constitutional right to a fair trial,
the burden is on the defendant to show, not only that
the remarks were improper, but also that, considered
in light of the whole trial, the improprieties were so
egregious that they amounted to a denial of due pro-
cess. . . . In analyzing whether the prosecutor’s com-
ments deprived the defendant of a fair trial, we generally
determine, first, whether the [prosecutor] committed
any impropriety and, second, whether the impropriety
or improprieties deprived the defendant of a fair
trial. . . .
‘‘When reviewing the propriety of a prosecutor’s
statements, we do not scrutinize each individual com-
ment in a vacuum but, rather, review the comments
complained of in the context of the entire trial. . . .
[Impropriety] is [impropriety], regardless of its ultimate
effect on the fairness of the trial; whether that [impro-
priety] [was harmful and thus] caused or contributed
to a due process violation is a separate and distinct
question . . . .
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . In determining whether such [impropriety]
has occurred, the reviewing court must give due defer-
ence to the fact that [c]ounsel must be allowed a gener-
ous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
[A]s the state’s advocate, a prosecutor may argue the
state’s case forcefully, [provided the argument is] fair
and based upon the facts in evidence and the reasonable
inferences to be drawn therefrom. . . . Nevertheless,
the prosecutor has a heightened duty to avoid argument
that strays from the evidence or diverts the jury’s atten-
tion from the facts of the case. . . . While the privilege
of counsel in addressing the jury should not be too
closely narrowed or unduly hampered, it must never
be used as a license to state, or to comment upon, or
to suggest an inference from, facts not in evidence, or
to present matters which the jury ha[s] no right to
consider.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) State v. Ruiz-Pacheco, 185
Conn. App. 1, 38–40, 196 A.3d 805, cert. granted on
other grounds, 330 Conn. 938, 195 A.3d 385 (2018).
An appellate court’s ‘‘determination of whether any
improper conduct by the state’s attorney violated the
defendant’s fair trial rights is predicated on the factors
set forth in State v. Williams, [supra, 204 Conn. 540],
with due consideration of whether that [impropriety]
was objected to at trial. . . . These factors include:
the extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Payne, 303 Conn. 538, 561, 34 A.3d 370
(2012).
‘‘[W]hen a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden
is on the defendant to show . . . that the remarks were
improper . . . .’’ (Emphasis added.) Id., 562–63. ‘‘This
allocation of the burden of proof is appropriate because,
when a defendant raises a general due process claim,
there can be no constitutional violation in the absence
of harm to the defendant caused by denial of his right
to a fair trial.’’ Id., 563–64. The ultimate question, there-
fore, is ‘‘whether the defendant has proven that the
improprieties, cumulatively, so infected the trial with
unfairness as to make the conviction[s] a denial of due
process.’’ (Internal quotation marks omitted.) Id., 567.
‘‘[T]he defendant’s failure to object at trial to each
of the occurrences that he now raises as instances of
prosecutorial impropriety, though relevant to our
inquiry, is not fatal to review of his claims. . . . This
does not mean, however, that the absence of an objec-
tion at trial does not play a significant role in the deter-
mination of whether the challenged statements were,
in fact, improper. . . . To the contrary, we continue
to adhere to the well established maxim that defense
counsel’s failure to object to the prosecutor’s argument
when it was made suggests that defense counsel did
not believe that it was [improper] in light of the record
of the case at the time.’’ (Internal quotation marks omit-
ted.) State v. Medrano, 308 Conn. 604, 612, 65 A.3d
503 (2013).
‘‘To prove prosecutorial [impropriety], the defendant
must demonstrate substantial prejudice. . . . In order
to demonstrate this, the defendant must establish that
the trial as a whole was fundamentally unfair and that
the [impropriety] so infected the trial with unfairness
as to make the conviction a denial of due process. . . .
In weighing the significance of an instance of prosecu-
torial impropriety, a reviewing court must consider the
entire context of the trial, and [t]he question of whether
the defendant has been prejudiced by prosecutorial
[impropriety] . . . depends on whether there is a rea-
sonable likelihood that the jury’s verdict would have
been different absent the sum total of the improprie-
ties.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Long, 293 Conn. 31, 37, 975 A.2d 660 (2009).
We now turn to the defendant’s prosecutorial impro-
priety claims.
A
The defendant claims that the prosecutor misstated
the law of constructive possession by failing to state
that the defendant had to intend to exercise dominion or
control over the gun. As a consequence, the defendant
argues that the prosecutor invited the jury to disregard
the dominion or control element of possession.
Although the prosecutor’s argument did contain an
incomplete and, therefore, incorrect statement of the
law of constructive possession, we conclude that the
error did not deprive the defendant of his constitutional
right to a fair trial.
To provide a context for the defendant’s claims, we
have reviewed the entire record, which discloses the
following procedural history that is relevant to the
defendant’s claim that the prosecutor misstated the law.
Before the presentation of evidence, the court
instructed the jury that ‘‘you should understand that
the arguments of the attorneys, including the closing
arguments and any arguments made during the trial to
the court in connection with questions of law, are not
evidence. . . . Closing arguments are intended to
assist you, the jury, in understanding the evidence and
the contentions of the parties in this case. . . . [A]t
the conclusion of the final arguments of the parties, I
will instruct you as to the principles of law which you
are to apply in your deliberations when you retire to
consider your verdicts.’’16 (Emphasis added.) Again, in
its final charge to the jury, after thanking the jury for
its service, the court gave the customary charge stating
that ‘‘it is exclusively the function of the court to state
the rules of law that govern the case. It is your obligation
to accept the law as I state it. You must follow all of
my instructions and not single out some and ignore
others. They are all equally important.’’
The record also discloses that the court held two on-
the-record charge conferences. The court gave counsel
a copy of a draft of its charge and time to review it.
The court and counsel subsequently went through the
draft page by page, and counsel made several sugges-
tions, none of which concerned constructive posses-
sion. As a result of the charge conference, the court
revised portions of its draft charge, presented counsel
with its revised charge and provided an opportunity for
counsel to review the revisions. At a second on-the-
record charge conference, the court and counsel went
through the revised charge page by page. Defense coun-
sel orally agreed with the court’s revised charge.
‘‘A review of the statements made by the prosecutor,
in the context of the entire closing argument, is neces-
sary to address the defendant’s challenges.’’ State v.
Otto, supra, 305 Conn. 77. The record contains the argu-
ments of the prosecutor and defense counsel, and the
court’s instructions, which we have reviewed and here-
after summarize.
In the first portion of her argument, the prosecutor
first thanked the jury for its service and then stated
that the court will ‘‘remind you as to the elements of
the crimes that make up the charges.’’ (Emphasis
added.) The prosecutor then addressed the elements
of the crime of criminal trespass in the third degree
and the evidence related to that charge.
Thereafter, she stated, in part: ‘‘For you to find the
defendant guilty of criminal possession of a pistol or
revolver, the state must prove the following elements
beyond a reasonable doubt. The first element is that
the defendant possessed a pistol or revolver. The judge
will define possession as having control over an object.
That is, knowing where it is and being able to access
it. Again, possession in this case means knowing where
it is and being able to access it.’’17 (Emphasis added.)
The prosecutor continued: ‘‘You’ve heard that the gun
recovered from the scene was found only four to five
feet away from [the defendant]. It was lying on top of
the leaves, in good condition, as if it had been placed
there very recently. No dirt or leaves or other debris
were covering it. It was easily in [the defendant’s] reach.
He was about four to five feet away from it when the
police arrived. The state submits that it would have
been a matter of seconds for him to stand up, or lean
over, and drop the gun, or even pick it up again from
where it was lying.’’
Later in the first portion of her argument, the prosecu-
tor stated: ‘‘Here’s the thing, you’ll hear the judge
instruct you on the law of possession. And through
that you will learn that if [the defendant] walked up to
the gun and saw it there and was aware that it was
there, he’s still in violation of the law. Because as long
as he’s aware it’s there and aware it’s a gun, and could
grab it off the ground, that’s possession. If he walked
up to it and said ‘oh, no, a gun,’ and ran away, i.e., if he
immediately removes himself from the situation, that’s
different. Or if he saw it and immediately dialed 911 or
alerted the authorities, that’s different, too. But if he
sees the gun and remains at the picnic table anyway,
four to five feet away from it, not locked up or anything
like that, in an area where he could easily get to it,
that’s constructive possession. It’s that simple.’’
(Emphasis added.)
Immediately thereafter, the prosecutor argued: ‘‘So
for you to find him not guilty, you would have to believe
that despite his close proximity to the gun, despite the
fact that he’s trespassing in the exact location the gun
is found, and despite the fact that his DNA, and not the
DNA of any other person around the picnic table is on
it, he didn’t even know it was there. Ask yourselves,
based on common sense, is it reasonable and logical
to believe that?’’ The prosecutor also argued that the
jury reasonably could infer that the gun belonged to
the defendant.
In his closing argument, which immediately followed,
defense counsel addressed the evidence, particularly
what he considered to be the weakness in the state’s
case. He contended that the DNA evidence was not
enough to incriminate the defendant because the profile
was small, the DNA sample was touch DNA, and the
sample had been degraded. The theory of defense was
that the DNA evidence was problematic and insufficient
to prove that the defendant was guilty of felony posses-
sion of the gun. Defense counsel argued, in part, that
the state had ‘‘to prove, beyond a reasonable doubt, the
[the defendant] knew, or had knowledge of, that he was
in possession of [the gun], that he knew where it was
and that he had access to it.’’ See footnote 17 of this
opinion. He continued that the jury could not ‘‘infer or
assume that [the defendant] knew that a weapon was
there, unless there are other incriminating statements
or circumstances tending to support such an inference.
We argue that no such statements or circumstances
exist. . . . You need context, you need corroboration,
and you don’t have it. You don’t have eye witnesses.
You don’t have fingerprints. You don’t have enough.’’
In the rebuttal portion of her argument, the prosecu-
tor first stated: ‘‘I just want to touch on a few things
that the defense touched on. I want to start with some-
thing. The judge will instruct you . . . and I just want
to make sure it’s clear, that you will come to a separate
verdict on each charge. So, the state has to prove every
element of each individual charge.’’ (Emphasis added.)
She extensively addressed the DNA evidence, which
the defendant contended was problematic and insuffi-
cient to prove that the gun was his. She argued that
the presence of the defendant’s DNA on the gun or
ammunition and his proximity to the gun was enough
to prove his knowledge of it. The prosecutor concluded:
‘‘For you to accept the defense’s theory, you have to
accept the idea that [the defendant] is the unluckiest
man alive. That this set of coincidences has come out
of nowhere and each and every one of them has coinci-
dentally occurred on the same evening. The conver-
gence of him trespassing, at a time when unluckily a
gun was nearby, within four to five feet of him, only
his DNA, and no one else’s at the scene, gets on to it,
at a time when he happens to be trespassing and hap-
pens to be prohibited from possession of such a gun.’’
Immediately upon conclusion of the prosecutor’s
rebuttal argument, the court began its charge to the
jury, stating: ‘‘It is now my duty to instruct you as to
the law that you are to apply to the facts in this case.
. . . The charges [are] to be considered as a whole,
and individual instructions are not [to] be considered
[in] artificial isolation from the overall charge. . . . It
is exclusively the function of the court to state the rules
of law that govern the case. It is your obligation to
accept the law as I state it. You must follow all of my
instructions and not single out some and ignore others.
They are all equally important.’’ (Emphasis added.)
The court gave general instructions applicable in any
trial and then addressed the law related to the crimes
with which the defendant was charged.18 The court’s
instruction included definitions of knowledge and
intent. The court stated, in part: ‘‘A person acts know-
ingly with respect to conduct or to a circumstance
described by a statute defining an offense when he is
aware that his conduct is of such nature or that such
circumstance exists.’’ (Emphasis added.) It also stated
that ‘‘[i]ntent relates to the condition of the mind of
the person who commits the act, his or her purpose in
doing it. Here, the state is required to prove that the
defendant intentionally, and not inadvertently or acci-
dentally, engaged in his actions. In other words, the
state must prove that the defendant’s actions were
intentional, voluntary and knowing, rather than uninten-
tional, involuntary and unknowing.’’ (Emphasis added.)
The court continued: ‘‘A person is guilty of criminal
possession of a pistol or revolver when such person
possesses a pistol or revolver and has been convicted
of a felony. For you to find the defendant guilty of this
charge, the state must prove the following elements
beyond a reasonable doubt. . . . The first element is
that the defendant possessed a pistol or revolver. . . .
Possession means either having the object on one’s
person or otherwise having control over the object.
That is, knowing where it is and being able to access
it. Possession also requires that the defendant knew he
was in possession of the firearm. That is, that he was
aware that he was in possession of it and was aware
of its nature.
‘‘The state must prove, beyond a reasonable doubt,
that the defendant knew that he was in possession of
the pistol or revolver. Possession does not mean that
one must have the illegal object upon one’s person.
Rather, a person who, although not in actual possession,
knowingly has the power and the intention, at a given
time, to exercise control over a thing is deemed to be
in constructive possession of that item. As long as the
object is or was in a place where the defendant could,
if he wishes, go and get it, it is in his possession.’’19
(Emphasis added.) Neither the prosecutor nor defense
counsel took an exception to the charge. See footnote
17 of this opinion.
On appeal, the defendant claims that the prosecutor’s
argument concerning possession ‘‘completely disre-
gards the dominion [or] control element of possession
and was a direct invitation to the jury to disregard an
element of constructive possession that the state was
required to prove.’’ He argues that the prosecutor
improperly equated mere access with possession and
that her argument does not conform to the definition
of possession found in State v. Hill, supra, 201 Conn.
516, to wit, ‘‘[t]o possess, according to § 53a-3 (2), is
to have actual physical possession or otherwise to exer-
cise dominion or control . . . .’’ (Internal quotation
marks omitted.)
The state acknowledges that the prosecutor did not
state explicitly that the defendant must have, not only
the power, but also the intention to exercise dominion
or control over the gun. It contends, however, that the
defendant has not cited any authority that the prosecu-
tor needs to discuss all aspects of the relevant law in
summation. The state argues that it is the court’s duty
‘‘to give jury instructions that are accurate in law,
adapted to the issues and adequate to guide the jury in
reaching a correct verdict . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. Bellamy,
323 Conn. 400, 429, 147 A.3d 655 (2016). Although we
agree that the court is responsible for instructing the
jury on the law, that fact does not give the prosecutor
license to misstate the law to the jury. During closing
argument, the prosecutor three times incorrectly told
the jury that it could convict the defendant if he knew
where the gun was located and had access to it.
According to the prosecutor, ‘‘[i]t’s that simple.’’ Of
course, it is not that simple. The prosecutor’s statement
left out the necessary element of intent. See State v.
Hill, supra, 201 Conn. 512–17. Consequently, the prose-
cutor’s statement of the law was not just incomplete,
it was inaccurate.
Nevertheless, the jury was informed numerous times,
including by the prosecutor, that it was the court’s
responsibility to instruct the jury as to the law. In partic-
ular, at the beginning of trial and when it commenced
its charge, the court informed the jury that it was its
duty to instruct the jury on the law and that the jury
was bound to follow the law as given by the court. See
State v. Gordon, 104 Conn. App. 69, 83–84, 931 A.2d
939 (court reminded jury prior to trial and following
final argument that court, not counsel, was sole source
of applicable law), cert. denied, 284 Conn. 937, 937 A.2d
695 (2007).
‘‘In the absence of a showing that the jury failed or
declined to follow the court’s [general] instructions,
we presume that it heeded them.’’ (Internal quotation
marks omitted.) State v. Singleton, 95 Conn. App. 492,
505, 897 A.2d 636, cert. denied, 279 Conn. 904, 901 A.2d
1228 (2006).
In his reply brief, the defendant takes exception to
the state’s position that the court’s instructions cured
the prosecutor’s incorrect statement of the law of pos-
session by giving a full and complete instruction on
possession. The state represented that the court’s
instruction was ‘‘nearly identical to the model jury
instructions for possession and criminal possession’’ of
a gun.20 The defendant recognizes that the court’s
charge conformed to the model jury instructions on the
elements of possession, but he argues, citing State v.
Reyes, 325 Conn. 815, 821–22 n.3, 160 A.3d 323 (2017),21
that the model jury instructions are not indicative of
their correctness, and, citing State v. Bellamy, supra,
323 Conn. 500 (Palmer, J., concurring),22 that the model
instructions have been the source of constitutional
error. Despite this argument, the defendant has not
demonstrated how the model jury instruction used in
the present case is a source of constitutional error, as
the model charge for constructive possession, which is
explicitly referenced in the model charge for criminal
possession of a pistol or revolver, requires that the state
prove knowledge of the gun’s presence and an intent
to possess it.23 Moreover, defense counsel had the
opportunity to review the court’s charge prior to an
initial on-the-record charge conference, participated in
that charge conference, and offered suggestions. None
of the suggestions offered related to the charge on con-
structive possession. The court made several changes
to its charge pursuant to the suggestions of counsel,
distributed its revised charge to counsel and held a
second on-the-record charge conference. At the conclu-
sion of the second charge conference, defense counsel
agreed to the revised charge.24
In any event, the court specifically instructed the jury
that ‘‘a person who, although not in actual possession,
knowingly has the power and the intention, at a given
time, to exercise control over a thing is deemed to be
in constructive possession of that item.’’ ‘‘The jury [is]
presumed to follow the court’s directions in the absence
of a clear indication to the contrary.’’ (Internal quotation
marks omitted.) State v. Fields, 265 Conn. 184, 207, 827
A.2d 690 (2003). ‘‘[P]rosecutorial [impropriety] claims
[are] not intended to provide an avenue for the tactical
sandbagging of our trial courts, but rather, to address
gross prosecutorial improprieties . . . .’’ (Emphasis
added; internal quotation marks omitted.) State v. Ste-
venson, 269 Conn. 563, 576, 849 A.2d 626 (2004). In
this case, the court’s charge corrected the prosecutor’s
misstatement of the law of constructive possession.
‘‘[T]he prosecutor’s choice of words, at best, was
inartful, but . . . when viewed in the context of his
entire closing argument . . . even if . . . improper,
that impropriety did not deprive the defendant of a fair
trial.’’ (Citation omitted.) State v. Nicholson, 155 Conn.
App. 499, 516, 109 A.3d 1010, cert. denied, 316 Conn.
913, 111 A.3d 884 (2015). Although the prosecutor’s
inaccurate reference to the law of constructive posses-
sion had the potential to confuse the jury, applying
the Williams factors, we conclude that any perceived
impropriety did not deprive the defendant of a fair trial.
But we take this opportunity to remind prosecutors
that during the course of argument, they must take
care to accurately discuss the elements of the crimes
charged. See State v. Gonzalez, 188 Conn. App. 304,
339, A.3d (2019) (prosecutor summarized law
on home invasion). In examining the Williams factors,
we find that the prosecutor’s argument, although not
invited by defense counsel, was not central to the theory
of defense that focused on the DNA evidence. Further-
more, the state’s case was convincing in that the defen-
dant could not be excluded as a contributor to the DNA
mixture obtained from the gun or ammunition. Most
importantly, the court’s correct charge on constructive
possession coupled with the repeated admonitions that
the jury must follow the law as given to it by the court,
adequately cured the prosecutor’s error.
For the foregoing reasons, we conclude that the pros-
ecutor’s statement regarding the law of constructive
possession fell well short of misleading the jury with
respect to constructive possession and did not deprive
the defendant of a fair trial.
B
The defendant also claims that the prosecutor’s mis-
characterization of the DNA evidence deprived him of
a fair trial. We do not agree.
The defendant claims that the state mischaracterized
the DNA evidence and improperly suggested that there
was no evidence to support the defense’s theory that
although his DNA may have been on the gun or ammuni-
tion, it came to be there in some incidental or accidental
fashion. The defendant contends that Russell testified
as to the various ways in which DNA can be transferred,
and that she could not conclude how the defendant’s
DNA came to be on the gun and that, therefore, the
following portion of the prosecutor’s final argument
was improper: ‘‘You’ve heard no evidence that [the
defendant], for instance, sneezed on the gun. And you
can’t assume that happened because it’s not in evidence.
. . . Secondary transfer would require someone to
touch [the defendant], or an object, with his DNA on
it, and then to touch the gun. But there’s no evidence
that ever occurred. No evidence for you to consider
with regard to that. . . . So, there is no evidence before
you that Officer Lipeika, or anyone else for that matter,
touched some object that [the defendant] touched and
then touched the gun soon thereafter. You haven’t heard
any evidence to that effect. . . . Again, I would reiter-
ate, you haven’t heard any evidence of a transfer DNA.
You haven’t heard evidence of someone spitting on the
gun. And if [the defendant] had spit on the gun, he
would have spat around . . . Jackson from four to five
feet away. Does that seem likely? The same thing with
a sneeze. He would have sneezed around . . . Jackson
from four to five feet away. That’s not likely.’’
Defense counsel did not object to the prosecutor’s
argument. As stated previously, a defendant’s failure to
object is not fatal to his claim, but this court has stated
that we continue ‘‘to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time. . . . This
is particularly true if, as in the present case, a defendant
claims prosecutorial impropriety stemming from a pros-
ecutor’s discussion of DNA evidence. Such discussions
require precise and nuanced distinctions in nomencla-
ture that easily may be misconveyed or misunderstood,
especially in light of the zealous advocacy that is part
and parcel of a closing argument. If a prosecutor’s argu-
ments do not portray accurately the DNA evidence as
it was presented to the jury or stray too far from reason-
able inferences that may be drawn from such evidence,
a contemporaneous objection by defense counsel
would permit any misstatements, whether inadvertent
or intentional, to be remedied immediately.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Brett B., 186 Conn. App. 563, 572, A.3d (2018),
cert. denied, 330 Conn. 961, 199 A.3d 560 (2019).25 ‘‘[If]
a defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show . . . that the remarks were
improper . . . .’’ (Internal quotation marks omitted.)
State v. Grant, 154 Conn. App. 293, 319, 112 A.3d 175
(2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).
On appeal, the defendant argues that the state offered
Russell’s testimony to aid the jury in its understanding
of the DNA evidence. On cross-examination, defense
counsel explored the problematic issues with the DNA
profile that were critical to the defendant’s theory of
the case, i.e., that his DNA was deposited on the gun
by secondary transfer or aerosolization. The defendant
argues that the prosecutor’s final argument that there
was no evidence of a secondary transfer or aerosoliza-
tion for the jury to consider mischaracterized Russell’s
testimony. We disagree with the defendant.
Russell testified as to a number of ways in which the
defendant’s DNA could have been transferred to the
gun and that she did not know how his DNA was depos-
ited on it. Russell’s testimony described possibilities or
hypotheticals, but such testimony is not evidence of
how, in fact, the defendant’s DNA came to be on the
gun or the ammunition. Russell, however, testified that
the most common way for touch DNA to occur is
through direct contact. The prosecutor’s argument sim-
ply was that there was no evidence to support the defen-
dant’s theory that the defendant’s DNA was deposited
on the gun by a secondary transfer or aerosolization.
The court instructed the jury that its verdicts had to
be based on evidence that it heard. ‘‘While the jury may
not speculate to reach a conclusion of guilt, [it] may
draw reasonable, logical inferences from the facts
proven to reach a verdict.’’ (Internal quotation marks
omitted.) State v. Stovall, 142 Conn. App. 562, 567–68,
64 A.3d 819 (2013), rev’d in part on other grounds, 316
Conn. 514, 115 A.3d 1071 (2015).
The defendant also argues on appeal that the state
never introduced evidence to corroborate that the DNA
was placed on the gun or ammunition by direct contact.
It was not required to do so.26 The state proved that
the defendant’s DNA was contained in the DNA profile
developed from the swab of the gun and ammunition.
That fact was in evidence. The state also presented
circumstantial evidence permitting the jury to find the
defendant guilty of criminal possession of a pistol or
revolver. Pursuant to Russell’s testimony, the jury rea-
sonably could have found that it was more likely that
the defendant’s DNA on the gun and ammunition came
from his direct contact with them than from either
secondary transfer or aerosolization.
For the foregoing reasons, we conclude that, although
the prosecutor misstated the law of constructive pos-
session, the defendant has failed to carry his burden
to demonstrate that he was denied due process. We
also conclude that the prosecutor did not mischaracter-
ize the DNA evidence. The defendant, therefore, has
failed to demonstrate that he was deprived of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although § 53a-217c (a) (1) was the subject of technical amendments in
2015; see Public Acts, Spec. Sess., June, 2015, No. 15-2, § 7; those amend-
ments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
2
The defendant was also convicted under a separate docket number of
criminal trespass in the third degree in violation of General Statutes § 53a-
109 (a) (1). He has not challenged that judgment of conviction on appeal.
3
The task force’s objective was to deter street level crime by providing
‘‘high visibility police patrol in high crime areas throughout’’ the city of
Norwalk. The department had an agreement with the Norwalk Housing
Authority to deter trespassing in housing complexes. The task force under-
took foot patrols in housing complexes to put the residents at ease, to let
them know that there was a police presence and to fulfill the department’s
agreement with the housing authority. According to Lipeika, the majority
of problems within housing complexes were created by people who did not
live there and were trespassing.
4
Lipeika described a ‘‘cement retaining wall with bushes in, like, the
retaining wall area.’’ Photographs of the courtyard were placed into evidence
and published to the jury. The photographs depict a courtyard surrounded
by large concrete planters. One of the planters consists of two arms of a
right angle bounding two sides of the courtyard. A long bench is set next
to one arm of the planter and a picnic table is situated close to the corner
of the angle. A shrubbery hedge is planted in the arm of the planter behind
the bench and one side of the picnic table.
5
The individuals in the courtyard were the defendant, Kason Sumpter,
Altolane Jackson, Brian Elmore, Jefferson Sumpter, and Janet Cruz. Lipeika’s
subsequent investigation disclosed that none of the individuals was a resi-
dent of Washington Village.
6
Jefferson Sumpter and Janet Cruz were ‘‘hanging over by the bench’’ in
a different part of the courtyard. According to Lipeika, they appeared to be
highly intoxicated and did not approach the picnic table.
7
Lipeika testified on the basis of his training and experience that when
armed subjects are approached by police, they ‘‘usually try to discard . . .
or stash’’ a firearm so that it is not detected on their person. Depending on
the circumstances, a subject usually places the gun close enough to access it.
8
Russell’s work was reviewed for accuracy by a technical reviewer at
the laboratory.
9
Although § 53a-217 (a) (1) was the subject of technical amendments in
2015; see Public Acts, Spec. Sess., June, 2015, No. 15-2, § 6; those amend-
ments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
10
Throughout his briefs on appeal, the defendant has used the term ‘‘exer-
cised dominion and control.’’ (Emphasis added.) The language of General
Statutes § 53a-3 (2) is ‘‘exercise dominion or control . . . .’’ (Emphasis
added.)
11
The parties stipulated that the defendant had a prior felony conviction.
12
Most often, plain view, or the plain view doctrine, arises in the context
of a fourth amendment illegal search and seizure claim, which is not present
in this case. The defendant has not claimed that he had a reasonable expecta-
tion of privacy in the courtyard. ‘‘The plain view doctrine is based upon the
premise that the police need not ignore incriminating evidence in plain view
while they are . . . entitled to be in a position to view the items seized.’’
(Internal quotation marks omitted.) State v. Arokium, 143 Conn. App. 419,
433, 71 A.3d 569, cert. denied, 310 Conn. 904, 75 A.3d 31 (2013); see also
Coolidge v. New Hampshire, 403 U.S. 443, 464–73, 91 S. Ct. 2022, 29 L. Ed.
2d 564 (1971); State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980).
13
The state placed into evidence photographs of three signs posted in
the courtyard: one sign stated ‘‘PRIVATE PROPERTY NO TRESPASSING’’;
another stated ‘‘NOTICE NO TRESPASSING LOITERING SOLICITING ON
THIS PROPERTY’’; and another sign stated in part ‘‘The Community Policing
Division has a partnership with the Norwalk Housing Authority . . . . We
are committed to making our communities a better, safer, drug free environ-
ment where residents and their children can enjoy their right to peace of
mind. Officers will be conducting random patrols to specifically address
issues . . . .’’
14
Following oral argument in this court, defense counsel submitted a
letter pursuant to Practice Book § 67-10, in which she brought the case of
State v. Skipper, 228 Conn. 610, 613–24, 637 A.2d 1101 (1994), to our attention,
claiming that the case was pertinent to the state’s argument regarding the
manner in which the defendant’s DNA came in contact with the gun. Skipper
concerned the determination of paternity. The statistical probability of pater-
nity at issue is distinguishable from the present case in that the probability
of paternity was calculated from DNA evidence on the fifty-fifty assumption
that intercourse had occurred.
15
In Arnold, the victim stated to a 911 operator and responding police
that the defendant had a gun. United States v. Arnold, supra, 486 F.3d
179–80. In Vichitvongsa, the defendant made telephone calls from jail in
which he stated that he had been pulled over and the police caught him
with a gun that he referred to as ‘‘[t]he Smitty’’ and ‘‘my burner,’’ which are
common references to handguns. (Emphasis omitted; internal quotation
marks omitted.) United States v. Vichitvongsa, supra, 819 F.3d 276.
16
In their final arguments, both the prosecutor and defense counsel stated
that the jury was to follow the court’s instructions as to the law.
17
The record discloses that defense counsel also argued that the state
had ‘‘to prove, beyond a reasonable doubt, that [the defendant] knew, or
had knowledge of, that he was in possession of this weapon, that he knew
where it was and that he had access to it.’’ We note that neither argument
mirrors State v. Hill, supra, 201 Conn. 516 (‘‘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’’).
18
On appeal, the defendant does not claim that the court improperly
charged the jury, but argues that the instruction was insufficient to clarify
the element of dominion or control. ‘‘[A] defendant is entitled to have the jury
correctly and adequately instructed on the pertinent principles of substantive
law. . . . Nonetheless, [the] instructions need not be perfect, as long as
they are legally correct, adapted to the issues and sufficient for the jury’s
guidance.’’ (Citation omitted; internal quotation marks omitted.) State v.
Roger B., 297 Conn. 607, 618, 999 A.2d 752 (2010). More significantly, appel-
late courts do not review a waived claim of instructional error that is folded
into a claim of prosecutorial impropriety. See State v. Hearl, 182 Conn. App.
237, 253 n.18, 190 A.3d 42, cert. denied, 330 Conn. 903, 192 A.3d 425 (2018).
The defendant also criticizes the trial court for not issuing a curative
instruction for the prosecutor’s alleged misstatement of the law but acknowl-
edges that he did not request a curative instruction. See State v. Fauci, 282
Conn. 23, 53, 917 A.2d 978 (2007) (trial court did not give curative instruction,
as defense did not object or request curative instruction). ‘‘Given the defen-
dant’s failure to object, only instances of grossly egregious [impropriety]
will be severe enough to mandate reversal.’’ (Internal quotation marks omit-
ted.) State v. Singleton, 95 Conn. App. 492, 504, 897 A.2d 636, cert. denied,
279 Conn. 904, 901 A.2d 1228 (2006).
19
The court instructed the jury that the parties had stipulated that at the
time of the charged offense, the defendant previously had been convicted of
a felony and was, therefore, prohibited from possessing a pistol or revolver.
20
Although the parties refer to the ‘‘model’’ jury instructions, the Judicial
Branch does not. The collection of jury charges for criminal cases prepared
by the Judicial Branch is simply referred to as ‘‘Criminal Jury Instructions’’
and contains the following disclaimer: ‘‘This collection of jury instructions
. . . is intended as a guide for judges and attorneys in constructing charges
and requests to charge. The use of these instructions is entirely discretionary
and their publication by the Judicial Branch is not a guarantee of their legal
sufficiency.’’ (Emphasis added.) Connecticut Judicial Branch Criminal Jury
Instructions, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf
(last visited March 4, 2019). Nevertheless, because the parties use the short-
hand term ‘‘model’’ charges, we adopt that nomenclature in this opinion.
21
In Reyes, the defendant asked our Supreme Court to exercise its supervi-
sory authority over the administration of justice to require judges to use
the pattern criminal jury instructions found on the Judicial Branch website.
State v. Reyes, supra, 325 Conn. 821 n.3. Our Supreme Court declined the
defendant’s invitation, noting the express caution on the website that the
instructions are intended as a guide in constructing charges and requests
to charge, and that their use is entirely discretionary and ‘‘their publication
by the Judicial Branch is not a guarantee of their legal sufficiency.’’ (Empha-
sis in original; internal quotation marks omitted.) Id., 821–22 n.3.
22
The issue in Bellamy was whether the defendant had waived his unpre-
served jury instruction claim under the rule established in State v. Kitchens,
299 Conn. 447, 482–83, 10 A.3d 942 (2011), and whether the Kitchens rule
should be overturned. State v. Bellamy, supra, 323 Conn. 402–403. Our
Supreme Court declined to overturn the Kitchens rule. Id., 439.
23
The example cited by Justice Palmer in Bellamy concerned a jury
instruction given in the case of State v. Johnson, supra, 137 Conn. App. 760.
On appeal in Johnson, our Supreme Court concluded that the standard jury
instructions on nonexclusive constructive possession of contraband that
the trial court used at the defendant’s trial was constitutionally deficient.
State v. Bellamy, supra, 323 Conn. 501 (Palmer, J., concurring). The instruc-
tion at issue in the present case was not the instruction given in Johnson.
See State v. Johnson, supra, 761 n.9.
24
Again, the defendant does not claim that the court improperly charged
the jury, but if he had, the state may well have contended that he waived
any instructional error pursuant to State v. Kitchens, 299 Conn. 447, 482–83,
10 A.3d 942 (2011).
25
In the present case, the defendant’s claim concerns the DNA evidence,
but it is not specifically directed toward the prosecutor’s discussion of the
DNA evidence itself. The defendant’s claim is directed toward the logic of
the prosecutor’s argument.
26
In his brief on appeal, the defendant states in one sentence that the
state not only improperly argued that the hypotheticals posited to Russell
were not evidence, but that ‘‘it also improperly shifted the burden to the
defense to proffer evidence of a sneeze, or that someone else touched
[the defendant] and transferred the DNA.’’ The state properly argued that
Russell’s testimony merely provided the jury with examples of how DNA
can be transferred, and because there was no evidence in the present case
of the defendant’s DNA being transferred under the circumstances of any
hypothetical, the jury could not speculate. The defendant was under no
obligation to provide any evidence as to how the DNA came to be on the
gun, but he certainly could have done so if such evidence was available to
him. Moreover, defense counsel was not ‘‘precluded from arguing that the
inconclusive nature of the DNA evidence left reasonable doubt about the
defendant’s guilt . . . .’’ State v. Brett B., supra, 186 Conn. App. 583–84.