State v. Crewe ( 2019 )

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STATE OF CONNECTICUT v. JEFFREY
ORLANDO CREWE
(AC 40882)
Keller, Moll and Beach, Js.
Syllabus
Convicted, after a jury trial, of the crime of possession of a narcotic sub-
stance, the defendant appealed to this court, claiming that the evidence
was insufficient to support his conviction. The defendant’s conviction
stemmed from an incident in which two police officers, C and R, while
patrolling an area known for drug use, located the defendant and two
other individuals, Y and M, inside of a van that was parked behind
bushes. After C observed two bundles of heroin on the center console
next to the defendant’s left leg, the police conducted a search of the
van, which revealed the presence of heroin. Heroin was also found on
the person of M. In prosecuting the case, the state pursued the theory
that although the defendant did not physically possess narcotic sub-
stances on his person at the time of the arrest, he constructively pos-
sessed at least some of the narcotics found in the van. Held that there
was sufficient evidence for the jury to draw a reasonable inference that
the defendant constructively possessed at least some of the narcotics
to support the defendant’s conviction, as the jury reasonably could have
inferred, on the basis of the totality of the circumstances, that the
defendant knew of the presence of the narcotics in the van and exercised
dominion and control over the narcotics: C testified that the van was
parked in the rear of an otherwise vacant parking lot in broad daylight
and was concealed by a cluster of bushes so that it was not visible from
the street, the area was known for traffic in narcotics, the location of
the van raised C’s suspicions, the defendant quickly reached behind the
driver’s seat as C approached the van, and a subsequent search of the
vehicle revealed that a large bag containing small rubber bands and a
white powder that later tested positive for heroin was present where
the defendant had reached, which supported the inference that the
defendant hastily attempted to conceal the substance he knew was
illegal and exercised dominion and control over it; moreover, other
evidence found at the scene, as well as the wealth of evidence seized
by the officers at the time of the arrest and the testimony of the witnesses,
further provided a sufficient basis for the jury reasonably to find that
the defendant knew that heroin was in the van and that he exercised
dominion and control over at least a portion of it.
Argued March 7—officially released October 15, 2019
Procedural History
Substitute information charging the defendant with
the crimes of possession of a narcotic substance, pos-
session of a narcotic substance with intent to sell, and
conspiracy to possess a narcotic substance with the
intent to sell, brought to the Superior Court in the judi-
cial district of New Haven and tried to the jury before
Klatt, J.; verdict of guilty of possession of a narcotic
substance; thereafter, the court denied the motion filed
by the defendant for a judgment of acquittal; judgment
in accordance with the verdict, from which the defen-
dant appealed to this court. Affirmed.
Timothy H. Everett, assigned counsel, with whom
were Adam Antar, certified legal intern, and, on the
brief, Karen Mitchell, certified legal intern, Julie Mos-
cato, certified legal intern, and Uriel Lloyd, certified
legal intern, for the appellant (defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Robert F. Mullins, assistant state’s attor-
ney, for the appellee (state).
Opinion
BEACH, J. The defendant, Jeffrey Orlando Crewe,
appeals from the judgment of conviction, rendered after
a jury trial, of possession of a narcotic substance in
violation of General Statutes § 21a-279 (a). The defen-
dant’s sole claim on appeal is that the evidence pre-
sented at trial was insufficient to support his conviction.
We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On August 18, 2014, Hamden Police Officers Greg
Curran and Enrique Rivera were patrolling by bicycle
in the area of Dixwell Avenue and the Farmington Canal
Trail (trail). The officers were assigned to this specific
area in response to reports of bicycle thefts and drug
use by teens and young adults. At approximately 6:12
p.m., Curran and Rivera observed a young man walk
across the trail in a westerly direction toward Dixwell
Avenue and cut through a hole in a six-foot fence that
separated the trail from the adjacent property. Rivera,
who was familiar with the cut in the fence, pointed it
out to Curran because he thought knowledge of the
hole might be useful in a future pursuit situation.
The officers proceeded through the hole in the fence
and entered an adjacent parking lot situated behind
several businesses. Upon approaching the parking lot,
Curran noticed a van parked behind bushes that con-
cealed the van’s presence from passersby on Dixwell
Avenue. Curran testified that ‘‘[i]t was odd for them to
be sitting there so [he] went over to check on them.’’
As Curran approached the van he could see that there
were two people in the front seats.1 As Curran
approached the van, the front seat passenger, later iden-
tified as the defendant, quickly reached down behind
the driver’s seat. Curran, for safety concerns, asked the
defendant what he was reaching for. In response, the
defendant held up a used car magazine.
As Curran was talking to the defendant, he noticed
a third individual, later identified as JonMichael Young,
in the back seat. At that point, Young reached down
toward his seat, but Curran asked him to place his
hands on the headrest in front of him. He complied.
Curran questioned the driver, later identified as Lachee
McGee, as to why they were parked in that area. She
said that they were looking for frogs in a nearby puddle.
As Curran was talking to the occupants, he observed
two bundles of heroin on the center console next to
the defendant’s left leg.2 At this point, Rivera
approached the van on bicycle and Curran said ‘‘104’’
to him, which was a police signal indicating that drugs
were present.
Curran asked the defendant to exit the vehicle and
stand near Rivera, and he complied. As the defendant
exited the vehicle, Curran stood at the driver’s window.
He testified that McGee looked down at the center
console and, seeing the bundles of heroin, picked up
the used car magazine that the defendant had displayed
and placed it on top of the bundles of heroin.3 At this
point, Curran asked McGee to turn over the keys to the
vehicle. Curran then was able to take possession of the
drugs that he had seen on the center console.4 The
remaining occupants of the van were removed from the
vehicle and were detained by other officers who had
arrived on the scene.5 The police searched the defen-
dant and found nothing of note on his person.
When McGee exited the van and was patted down,
police observed a small pink glassine bag sticking out
of the front of her pants. The bag resembled the bags
found on the center console. When McGee was asked if
she had any other drugs in her possession, she answered
positively and said that she had shoved drugs down the
front of her pants. A female officer who had been called
to the scene retrieved the drugs from the front of
McGee’s pants. The officers seized nine bags of narcot-
ics from the person of McGee. Curran continued to
search the vehicle and discovered several other bags
of heroin on top of the center console, as well as a
bottle of a substance known as Super Mannitol.6 In
total, twenty-five pink glassine bags were retrieved from
the center console. A search of the back seat revealed
a white dinner plate, two metal strainers, sixty pink
glassine bags each filled with a substance that later
field-tested positive as heroin, and a Ziploc type of bag
with a large amount of the same substance. Rivera also
found bags stuffed between the seats in the rear passen-
ger area of the van where Young had been sitting. On
the basis of his training and experience, Curran believed
that he had interrupted the occupants while they were
mixing the heroin with the Super Mannitol in order to
package the narcotics for sale.
The police seized ninety-four small bags and one
larger bag, all containing heroin. At trial, the seized
evidence was introduced as five exhibits as follows: (1)
twenty-five pink glassine bags containing powder that
tested positive for heroin and Super Mannitol and
weighed 1.09 grams; (2) sixty pink glassine bags that
tested positive for heroin and weighed 2.415 grams and
contained Super Mannitol; (3) a Ziploc bag containing
powder that tested positive for heroin and weighed
1.892 grams; (4) a white bottle containing Super Manni-
tol, a mixing agent, which contained no controlled sub-
stance; and (5) nine pink glassine bags containing pow-
der that tested positive for heroin and weighed .399
grams.
The defendant was charged with possession of a nar-
cotic substance in violation of § 21a-279 (a), possession
of a narcotic substance with the intent to sell in violation
of General Statutes § 21a-277 (a), and conspiracy to
possess a narcotic substance with the intent to sell in
violation of General Statutes §§ 53a-48 and 21a-277 (a).
A jury convicted the defendant of possession of a nar-
cotic substance and acquitted him of the remaining two
counts. The court imposed a sentence of seven years
of incarceration, execution suspended, and three years
of probation.
On appeal, the defendant claims that the evidence
at trial was insufficient to sustain his conviction of
possession of a narcotic substance on the theory of
nonexclusive constructive possession. The state argues
that there was ample evidence that the defendant knew
the character of the narcotic substances and exercised
dominion and control over at least some of the narcotics
in the vehicle. We agree with the state.
‘‘The standard of review employed in a sufficiency
of the evidence claim is well settled. [W]e 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 reasonably drawn therefrom the [finder of
fact] reasonably could have concluded that the cumula-
tive force of the evidence established guilt beyond a
reasonable doubt. . . . This court cannot substitute its
own judgment for that of the [finder of fact] if there
is sufficient evidence to support the [finder of fact’s]
verdict.’’ (Internal quotation marks omitted.) State v.
Andriulaitis, 169 Conn. App. 286, 292, 150 A.3d 720(2016).
Section 21a-279 (a) (1) provides: ‘‘Any person who
possesses or has under such person’s control any quan-
tity of any controlled substance, except less than one-
half ounce of a cannabis-type substance and except as
authorized in this chapter, shall be guilty of a class A
misdemeanor.’’
‘‘[T]he jury must find every element proven beyond
a reasonable 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 rea-
sonable 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 combi-
nation with other proven facts in determining whether
the cumulative effect of all evidence proves the defen-
dant guilty of all 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 multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . . In
evaluating evidence, the [jury] is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts estab-
lished by the evidence [that] it deems to be reasonable
and logical. . . .
‘‘Finally, 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 evidence that
supports the jury’s verdict of guilty.’’ (Citation omitted;
internal quotation marks omitted.) State v. Leniart, 166
Conn. App. 142, 170, 140 A.3d 1026 (2016), rev’d on
other grounds, 333 Conn. 88, A.3d (2019).
In the prosecution of the present case, the state pur-
sued the theory that, although the defendant did not
physically possess narcotics on his person at the time
of the arrest, he constructively possessed at least some
of the narcotics in the van. ‘‘[T]o prove illegal posses-
sion 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 con-
trol over it. . . . Where . . . the contraband is not
found on the defendant’s person, the state must proceed
on the alternate theory of constructive possession, that
is, possession without direct physical contact. . . .
Where the defendant is not in exclusive possession of
the [place] where the narcotics are found, it may not
be inferred that [the defendant] knew of the presence
of the narcotics and had control over them, unless there
are other incriminating statements or circumstances
tending to buttress such an inference. . . . [T]he state
had to prove that the defendant, and not some other
person, possessed a substance that was of narcotic
character with knowledge both of its narcotic character
and the fact that he possessed it.’’ (Citation omitted;
internal quotation omitted.) State v. Walcott, 184 Conn.
App. 863, 873, 196 A.3d 379 (2018).
‘‘[I]t is a function of the jury to draw whatever infer-
ences from the evidence or facts established by the
evidence it deems to be reasonable and logical. . . .
Because [t]he only kind of an inference recognized by
the law is a reasonable one . . . any such inference
cannot be based on possibilities, surmise or conjecture.
. . . It is axiomatic, therefore, that [a]ny [inference]
drawn must be rational and founded upon the evidence.
. . . However, [t]he line between permissible inference
and impermissible speculation is not always easy to
discern. When we infer, we derive a conclusion from
proven facts because such considerations as experi-
ence, or history, or science have demonstrated that
there is a likely correlation between those facts and the
conclusion. If that correlation is sufficiently compelling,
the inference is reasonable. But if the correlation
between the facts and the conclusion is slight, or if a
different conclusion is more closely correlated with the
facts than the chosen conclusion, the inference is less
reasonable. At some point, the link between the facts
and the conclusion becomes so tenuous that we call it
speculation. When that point is reached is, frankly, a
matter of judgment. . . .
‘‘[P]roof of a material fact by inference from the cir-
cumstantial evidence need not be so conclusive as to
exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact. . . . Thus, in determining whether the evidence
supports a particular inference, we ask whether the
inference is so unreasonable as to be unjustifiable. . . .
In other words, the inference need not be compelled
by the evidence; rather, the evidence need only be rea-
sonably susceptible of such an inference. Equally well
established is our holding that a jury may draw factual
inferences on the basis of already inferred facts. . . .
Moreover, [i]n viewing evidence which could yield con-
trary inferences, the jury is not barred from drawing
those inferences consistent with guilt and is not
required to draw only those inferences consistent with
innocence.’’ (Internal quotation marks omitted.) State
v. Niemeyer, 258 Conn. 510, 518–19, 782 A.2d 658 (2001).
Additionally, ‘‘[w]e do not sit as the ‘seventh juror’
when we review the sufficiency of the evidence . . .
rather, we must determine, in the light most favorable
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. Moreover, [i]n reviewing the jury verdict, it is
well to remember that [j]urors are not expected to lay
aside matters of common knowledge or their own
observation and experience of the affairs of life, but,
on the contrary, to apply them to the evidence or facts
in hand, to the end that their action may be intelligent
and their conclusions correct.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Ford, 230 Conn.
686, 693, 646 A.2d 147 (1994).
In the present case, there was sufficient evidence to
support the inference that the defendant constructively
possessed narcotics. Curran testified that the van was
parked in the rear of an otherwise vacant parking lot
in broad daylight and was concealed by a cluster of
bushes so that it was not visible from the street. The
area was known for traffic in narcotics. The location
of the van raised Curran’s suspicions, as he thought it
was unusual for a vehicle to be parked in such a manner.
The secluded and screened location could have been
selected to avoid detection. Additionally, as Curran
approached the vehicle, the defendant quickly reached
behind the driver’s seat. A subsequent search of the
vehicle revealed that a large Ziploc bag containing small
rubber bands and a white powder that later tested posi-
tive for heroin was present where the defendant had
reached.7 The evidence seized from behind the driver’s
seat further supported the inference that the defendant
hastily attempted to conceal the substance he knew
was illegal and exercised dominion and control over it.
Other evidence found at the scene further supported
an inference that the defendant exercised dominion and
control over at least some of the narcotics. Located
directly next to the defendant near the center console
of the vehicle were two bundles of heroin, several indi-
vidual bags of heroin, and a bottle of Super Mannitol.
Additionally, a subsequent search of the back seat of the
vehicle yielded a white dinner plate, two metal strainers,
sixty pink glassine bags filled with heroin, and a larger
Ziploc type of bag that also contained heroin. These
items customarily were used in the packaging of heroin.
In total, ninety-four individual small glassine bags were
found, along with the larger Ziploc type of bag. Curran
testified that he believed that he had interrupted the
occupants of the van while they were using the sifters
in the process of mixing the heroin with the Super
Mannitol to package the narcotics for sale.
We conclude that there was sufficient evidence for
the jury to draw a reasonable inference that the defen-
dant constructively possessed at least some of the nar-
cotics found in the van. As noted, this court gives defer-
ence to inferences made by a jury, so long as those
inferences are not so unreasonable as to be unjustifi-
able. The wealth of evidence seized by the officers at
the time of arrest and the testimony of the witnesses
provided a sufficient basis for the jury reasonably to
find that the defendant knew that heroin was in the
van and that he exercised control over at least a portion
of it. Although some factors, viewed in a vacuum, might
militate against a finding of constructive possession,
the jury reasonably could have inferred on the basis of
the totality of the circumstances that the defendant
knew of the presence of the narcotics in the van and
that he exercised dominion and control over narcotics.8
The defendant relies primarily on State v. Fermaint,
91 Conn. App. 650, 881 A.2d 539, cert. denied, 276 Conn.
922, 888 A.2d 90 (2005), to support his contention that
the evidence presented at trial was insufficient to estab-
lish that he was in constructive possession of the heroin
found in the van at the time of his arrest. In Fermaint,
the police received a tip from a confidential informant
that the owner of a vehicle possessed crack cocaine
and that she was accompanied by two males, one of
whom the informant identified as ‘‘Hector.’’ Id., 652.
After locating and stopping the vehicle, officers
observed the occupants of the vehicle engaging in fur-
tive movements, including the defendant’s bending
from the back seat toward the front seat passenger. Id.
As one officer approached, the front seat passenger
was observed putting something in her pants. Id. An
officer observed several crumbs of a rock like sub-
stance, which later tested positive for cocaine, on the
back seat next to the defendant. Id., 652–53. The officer
testified that it was possible that the defendant could
have sat in the back seat without noticing the crumbs.
Id., 653 n.3. A green leafy substance, later found to be
marijuana, was found in the front carpet area. Id., 653.
A plastic bag containing a large rock like substance,
which tested positive for cocaine, and $120 were found
on the person of the front passenger. Id. An address
book and $2 were found on the person of the defendant,
but no drugs. Id., 653. This court reversed the trial
court’s judgment revoking the defendant’s probation.
Id., 650. It held that the minimal nexus between the
defendant and the drugs, along with the perhaps ambig-
uous movements observed by the officers, was insuffi-
cient to establish constructive possession of a narcotic
substance. Id., 662–63.
Review of a claim of insufficient evidence is necessar-
ily fact specific and, as stated previously, the evaluation
of the strength of inferences involves an exercise of
judgment. The facts of the present case are different
from those of Fermaint. We previously noted that
‘‘[w]here the defendant is not in exclusive possession
of the [place] where the narcotics are found, it may not
be inferred that [the defendant] knew of the presence
of the narcotics and had control over them, unless there
are other incriminating statements or circumstances
tending to buttress such an inference.’’ (Internal quota-
tion marks omitted.) State v. Walcott, supra, 184 Conn.
App. 873. Sufficient incriminating circumstances exist
in the present case. As in Fermaint, the defendant here
moved furtively upon being approached by police, but
there was considerably more evidence that he was
aware of the presence of heroin. Unlike in Fermaint,
the defendant was found in a vehicle that was parked
in an unusual location in an area known for drug traffic
and was concealed from the street by bushes. Further,
the amount of narcotics located next to the defendant
in Fermaint appeared to have been trace amounts that
easily could have been overlooked; here, two bundles
of heroin, each containing ten individual baggies, were
found immediately next to the defendant’s leg. A bottle
of Super Mannitol was located next to the defendant.
Other items commonly used in the packaging of heroin
were found in the van.
Viewing the evidence in its totality and in the light
most favorable to sustaining the jury’s verdict, we con-
clude that there was sufficient evidence for the jury
reasonably to have drawn the inference that the defen-
dant constructively possessed heroin.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Curran testified that the weather was bright.
2
Curran had received special training on how narcotics are packaged and
how to identify narcotics. Curran testified that the bundles of heroin he
observed on the center console of the van were packed in pink glassine bags.
3
Curran further testified that McGee appeared very nervous when Curran
asked the defendant to exit the van.
4
While Curran was taking possession of the drugs on the center console,
his finger hit one of the bundles and knocked it to the passenger side floor.
He was able to retrieve this bundle upon a subsequent search of the car.
5
Because they were on bicycles and did not have any way to secure the
detained individuals, Curran and Rivera requested backup.
6
Curran testified that Super Mannitol is commonly used as a mixing agent
that is added to increase the volume of heroin.
7
Rivera found a white dinner plate and two metal sifters behind the
driver’s seat.
8
We also note that the other two occupants of the van likewise attempted
hastily to conceal narcotics from the officers. As stated in United States v.
Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991), ‘‘the factfinder may fairly
infer . . . that it runs counter to human experience to suppose that criminal
conspirators would welcome innocent nonparticipants as witnesses to
their crimes.’’