State v. Walcott , 184 Conn. App. 863 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. IJAHMON WALCOTT
(AC 40252)
DiPentima, C. J., and Alvord and Bear, Js.
Syllabus
The defendant, who had been on probation in connection with his conviction
of the crimes of assault in the first degree and carrying a pistol without
a permit, appealed to this court from the judgment of the trial court
revoking his probation and committing him to the custody of the Com-
missioner of Correction. The defendant’s probation was revoked after
police found a revolver and narcotics in a closet in a bedroom where
the defendant stored his personal belongings, which was located in a
residence that the defendant shared with others, including K. The trial
court found that the state had established by a preponderance of the
evidence that the defendant had violated certain special conditions of
his probation and the standard condition of his probation that he not
violate any criminal law of this state. Specifically, the court found that
the defendant had committed the crimes of possession of a controlled
substance and criminal possession of a revolver while he was on proba-
tion. Held that the defendant could not prevail on his unpreserved claim
that there was insufficient evidence to support the trial court’s finding
that he constructively possessed the narcotics and the revolver and,
therefore, that the court abused its discretion by considering that
unproven fact during the dispositional stage of the revocation proceed-
ing: there was sufficient evidence to support that court’s finding, by
a preponderance of the evidence, that the defendant constructively
possessed the revolver and narcotics, as the evidence presented, includ-
ing testimony from a police officer that he and another officer observed
the defendant use a key to lock the door of his residence after exiting
that place in the morning before the police search of the premises, the
defendant’s admission that he had been storing his personal belongings
in the bedroom where the police found the revolver and narcotics for
approximately two months, and K’s statement to the police that although
his DNA may be found on the revolver and narcotics, those items
belonged to the defendant, supported the court’s reasonable inference
that the defendant had a considerable presence in the premises, was
aware of the presence and nature of the narcotics and the revolver, and
exercised dominion and control over those items by placing them in
the closet in the bedroom where he stored his personal belongings;
accordingly, the trial court having properly found that the defendant
constructively possessed the revolver and narcotics, the defendant’s
claim that the court abused its discretion by considering that fact during
the dispositional phase of the proceedings necessarily failed.
Argued April 10—officially released September 18, 2018
Procedural History
Substitute information charging the defendant with
violation of probation, brought to the Superior Court
in the judicial district of Hartford and tried to the court,
Hon. John F. Mulcahy, Jr., judge trial referee; judgment
revoking the defendant’s probation, from which the
defendant appealed to this court. Affirmed.
Dana H. Sanetti, assistant public defender, for the
appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Richard J. Rubino, senior assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Ijahmon Walcott, appeals
from the judgment of the trial court revoking his proba-
tion and imposing a sentence of thirteen years incarcer-
ation, execution suspended after four years, with three
years of probation. On appeal, the defendant claims
that the court abused its discretion by relying on
unproven facts when it revoked his probation and sen-
tenced him during the dispositional phase of the viola-
tion of probation proceeding. We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On September 9,
2005, the defendant pleaded guilty to one count of
assault in the first degree, in violation of General Stat-
utes § 53a-59 (a) (3), and one count of carrying a pistol
without a permit, in violation of General Statutes (Rev.
to 2003) § 29-35 (a). The two convictions arose from
an incident that occurred on November 10, 2003, when
the defendant was fifteen years old and shot a woman
in the chest. The court imposed a total effective sen-
tence of twenty-five years incarceration, suspended
after twelve years, followed by five years of probation.
In addition to the standard conditions of probation, the
sentencing court imposed special conditions of proba-
tion. The defendant was released from incarceration
on October 20, 2014, and his probationary period com-
menced.
The standard and special conditions of his probation
required, inter alia, the defendant to submit to random
urine testing and mental health evaluation and/or treat-
ment, not possess any drugs and/or narcotics, and ‘‘not
violate any criminal law of the United States, this state
or any other state or territory.’’ On October 23, 2014,
the defendant signed the conditions of probation form,
acknowledging that he read the form, and that he under-
stood the conditions and would abide by them.
On December 7, 2015, the defendant, who was still
on probation, was arrested and subsequently charged
with, inter alia, criminal possession of a revolver in
violation of General Statutes § 53a-217c, and possession
of a controlled substance in violation of General Stat-
utes § 21a-279 (a) (1). Thereafter, on March 31, 2016,
he was charged with violating the conditions of his
probation in violation of General Statutes § 53a-32.
The record reveals that the following events led to
the defendant’s arrest on December 7, 2015. Officer
Robert Fogg, a member of the shooting task force for
the Hartford Police Department, testified that he was
conducting surveillance in the vicinity of 80 Cabot
Street in Hartford on December 7, 2015. He was accom-
panied by Detective Brian Connaughton from the Wind-
sor Police Department. They were dressed in plain
clothes and sat in an unmarked truck preparing to exe-
cute an arrest warrant for Antonio Keane and a search
warrant for 80 Cabot Street. Although the defendant
was not the target of the search warrant, Fogg and
Connaughton observed the defendant leave through the
front door of 80 Cabot Street and lock the door behind
him with a key. Fogg and Connaughton drove closer
to the defendant, determined that he was not Keane,
and continued to observe 80 Cabot Street.
The defendant walked past the officers’ truck multi-
ple times, and Fogg and Connaughton, believing that
the defendant had identified them as police officers,
called upon other officers to continue the surveillance
of 80 Cabot Street before they left the area. Later that
day, officers saw Keane leaving 80 Cabot Street, and
took him into custody while other members of the
shooting task force secured the house. Fogg and Con-
naughton returned to 80 Cabot Street with the search
warrant, and they joined the other officers. Keane did
not have a key on his person, and the officers had to
break down the door in order to execute the search
warrant.
The officers searched the apartment that is located
on the second and third floors, which has two bedrooms
on each floor. In one of the bedrooms on the second
floor, which Fogg identified as Keane’s bedroom, the
officers found plastic bags next to a glass container,
which contained a razor blade and a digital scale; there
was a white residue on the razor blade, scale, and con-
tainer. In the drawer of a nightstand in Keane’s bed-
room, the officers found a plate containing a white,
rock-like substance, another razor blade, and a second
digital scale. Officers also found several individually
packaged pieces of a white, rock-like substance. Con-
naughton performed a field test on the rock-like sub-
stances, and they tested positive for the presumptive
presence of crack cocaine.
Fogg also testified that, in a pair of athletic shoes in
a closet in one of the bedrooms on the third floor,
they found a small revolver, a few bullets, and a bag
containing a white, rock-like substance; the revolver
was sticking out of the right shoe with the bullets resting
on top of the shoe, and the white, rock-like substance
was protruding from the left shoe. Connaughton per-
formed a field test on the substance, and it tested posi-
tive for the presumptive presence of crack cocaine.
Fogg further testified that officers found additional
ammunition throughout that bedroom, including a
loaded magazine for a firearm. In that same bedroom,
among various personal items and clothing, the officers
also found a letter addressed to the defendant with his
address listed as 391 Shaker Road in Enfield, which,
Fogg testified, is the location of a prison facility.
After completing the search of the premises, the offi-
cers exited the house and observed the defendant play-
ing basketball on the street in front of 80 Cabot Street.
The officers identified the defendant and arrested him
on the basis of an unrelated warrant, but they subse-
quently also charged the defendant with possession of
the revolver and narcotics that were found in the third
floor bedroom closet at 80 Cabot Street. The defendant
signed a form acknowledging that he received Miranda1
warnings and waived his right to an attorney. Fogg then
conducted an interview, during which the defendant
stated that the clothes and personal items in the third
floor bedroom at 80 Cabot Street, the same room in
which the revolver and narcotics had been found,
belonged to him. Although he stated that his posses-
sions had been there for two months, he said that the
revolver, ammunition, and narcotics did not belong to
him. Keane, however, told the police that all of the
illegal items found at 80 Cabot Street belonged to the
defendant, and that the defendant had been living at
80 Cabot Street for more than one year. Keane also
stated that his DNA likely would be found on the
revolver, ammunition, and drugs because he had han-
dled them in the past.
A probation revocation hearing was held over the
course of two days, on September 15 and 28, 2016. On
September 28, 2016, the court issued its oral decision.
The court found, and the defendant does not contest
on appeal, that the state had established by a preponder-
ance of the evidence that the defendant had violated
the special conditions of his probation2 and the standard
condition of his probation that he not violate any crimi-
nal law of this state. Specifically, the court found ‘‘by
a preponderance of the evidence and on the reliable
and credible evidence and the reasonable inferences to
be drawn therefrom’’ that the defendant committed two
crimes while he was on probation: possession of a con-
trolled substance, in violation of § 21a-279 (a) (1), and
criminal possession of a revolver, in violation of § 53a-
217c (a).
After finding that the defendant violated conditions of
his probation, the court proceeded to the dispositional
phase of the proceeding. The court heard from the state
and defense counsel before issuing its oral decision.
The court stated in relevant part: ‘‘It’s significant also
that after beginning probation he violated the condi-
tions almost immediately, almost right away, those con-
ditions dealing with drug treatment and so on, all have
been gone into on the record earlier. So, with reference
to the [constructive possession] crimes, the possession
of a narcotic substance and, of course, the possession
of a revolver by a convicted felon, those occurred very
early on in probation, during probation, roughly perhaps
a little bit over a year when that particular incident
occurred with the execution of the search warrant at
80 Cabot Street, and the drugs and the revolver were
found. And even before that, while on probation, there
was the domestic offense, as the state pointed out, and
that involved, I’m told, assaultive conduct. So, right out
of the state’s prison and then there were these matters,
negative matters, concerning his performance on pro-
bation.
***
‘‘On the nonmitigating side of this is, as I alluded to,
the seriousness of the possession of a revolver by a
convicted felon . . . . And this court has an obligation,
a very serious obligation, balanced against rehabilita-
tion, and a very serious obligation to undertake to effec-
tuate the protection of society. And the possession of
guns, particularly under these circumstances, in a prem-
ises which, as far as I can see from the evidence, was
almost awash with drugs, illegal drugs. In any event,
that’s a very serious consideration and a very serious
offense.
‘‘Weighing all of those circumstances, it’s my opinion
that a split sentence is still appropriate. As I said, I
recognize the probation officer’s position, but I don’t
think probation should give up quite at this point with
somebody this age. And I would be inclined, in imposing
a split sentence, to also impose a period of probation
as opposed to the special parole, a sensible suggestion
also, but I just think that perhaps probation would be
more appropriate at this point.’’ The court revoked the
defendant’s probation and sentenced him to thirteen
years incarceration, execution suspended after four
years, followed by three years of probation. This
appeal followed.
‘‘[U]nder § 53a-32, a probation revocation hearing has
two distinct components. . . . The trial court must
first conduct an adversarial evidentiary hearing to deter-
mine whether the defendant has in fact violated a condi-
tion of probation. . . . If the trial court determines that
the evidence has established a violation of a condition
of probation, then it proceeds to the second component
of probation revocation, the determination of whether
the defendant’s probationary status should be revoked.
On the basis of its consideration of the whole record,
the trial court may continue or revoke the sentence of
probation . . . [and] . . . require the defendant to
serve the sentence imposed or impose any lesser sen-
tence. . . . In making this second determination, the
trial court is vested with broad discretion. . . .
‘‘To support a finding of probation violation, the evi-
dence must induce a reasonable belief that it is more
probable than not that the defendant has violated a
condition of his or her probation. . . . In making its
factual determination, the trial court is entitled to draw
reasonable and logical inferences from the evidence.
. . . This court may reverse the trial court’s initial fac-
tual determination that a condition of probation has
been violated only if we determine that such a finding
was clearly erroneous. . . . A finding of fact is clearly
erroneous when there is no evidence to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling. . . . A fact is more probable than
not when it is supported by a fair preponderance of the
evidence.’’ (Internal quotation marks omitted.) State v.
Sherrod, 157 Conn. App. 376, 381–82, 115 A.3d 1167,
cert. denied, 318 Conn. 904, 122 A.3d 633 (2015).
On appeal, the defendant’s sole claim is that the court
abused its discretion by relying on unproven facts in
sentencing him.3 The defendant argues that there was
insufficient evidence to support the court’s finding that
he constructively possessed the narcotics and the
revolver and, therefore, that the court abused its discre-
tion by considering that unproven fact during the dispo-
sitional stage of the revocation proceeding.4 We
disagree.
As a preliminary matter, the defendant did not object
to the court’s consideration of the allegedly unproven
facts, and, therefore, he requests that we review his
unpreserved claim pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989).5 The state argues
that the record is inadequate for review because ‘‘it is
not clear from the record whether the defendant’s illegal
possession of the firearm and narcotics was dispositive
of the court’s decision to revoke his probation and
impose the sentence it ultimately [imposed], in light of
its determination that the defendant also had violated
the conditions of his probation in a number of other
ways as well, based on the domestic assault and his
failure to comply with treatment and his possession
of narcotics as proven by the failed urine tests.’’ We,
however, conclude that the record is adequate for
review, and that the defendant’s claim is of constitu-
tional magnitude. See State v. Fletcher, 183 Conn. App.
1, 16, A.3d (2018) (‘‘[w]e will review the claim
under Golding because the record is adequate for
review and the claim implicates the defendant’s due
process right not to be sentenced on the basis of
improper factors or erroneous information’’). Accord-
ingly, we proceed to the third prong of Golding to deter-
mine whether a constitutional violation exists, thereby
depriving the defendant of a fair trial. See footnote
4 of this opinion. We conclude that a constitutional
violation does not exist.
The following legal principles are relevant to the
defendant’s claim. Section 21a-279 (a) (1) provides in
relevant part that ‘‘[a]ny person who possesses or has
under such person’s control any quantity of any con-
trolled substance . . . shall be guilty of a class A mis-
demeanor.’’
‘‘[T]o prove illegal possession of a narcotic substance,
it is necessary to establish that the defendant knew the
character of the substance, knew of its presence and
exercised dominion and control over it.’’ (Internal quo-
tation marks omitted.) State v. Ellis T., 92 Conn. App.
247, 251, 884 A.2d 437 (2005). ‘‘Where . . . the contra-
band 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 of them,
unless there are other incriminating statements or cir-
cumstances 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.’’ (Emphasis
omitted; internal quotation marks omitted.) State v.
Diaz, 109 Conn. App. 519, 524–25, 952 A.2d 124, cert.
denied, 289 Conn. 930, 958 A.2d 161 (2008).
Section 53a-217c (a) provides in relevant part: ‘‘A
person is guilty of criminal possession of a . . .
revolver when such person possesses a . . . revolver
. . . and (1) has been convicted of a felony . . . .’’
‘‘ ‘Possess,’ as defined in General Statutes § 53a-3 (2),
‘means to have physical possession or otherwise to
exercise dominion or control over tangible property
. . . .’ ’’ State v. Diaz, supra, 109 Conn. App. 525. ‘‘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.
. . . To prove that the defendant constructively pos-
sessed the [revolver], it was the state’s burden to prove
that he knowingly [had] the power and the intention at
a given time of exercising dominion and control over
[the revolver]. . . . When, as here, the doctrine of non-
exclusive possession also is implicated, the state bears
the burden of proving that there were incriminating
statements or circumstances . . . other than the dis-
covery of the [revolver] in the residence he shared with
[others], tending to buttress the inference that he knew
of the [revolver’s] presence and had control over it.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Id., 525–26.
Because the revolver and the narcotics in this case
were not found on the defendant’s person, it was neces-
sary for the state to prove that he constructively pos-
sessed those items; the defendant claims that the state
failed to do so. We disagree.
In its oral ruling, the court found that ‘‘all the elements
of both crimes have been proven by a fair preponder-
ance of the evidence; that is, on the credible, probative,
and reliable evidence.’’ The court also explained: ‘‘Now,
both of these crimes are possessory offenses . . . .
And the central issue here is constructive possession.
It is my view that the credible, probative, and reliable
evidence establishes by a preponderance, that is, more
probable than not, that [the] defendant knowingly had
constructive possession of the cocaine and the revolver
and, for that matter, all of the items seized by the
[police] officers executing the search warrant on that
third floor of the premises.’’
The court noted several factors indicating that the
defendant constructively possessed the revolver and
narcotics, including: the officers observed the defen-
dant leave 80 Cabot Street and lock the door behind
him with a key; the revolver was ‘‘very visible’’ in a
sneaker in the bedroom closet; the officers found a
letter addressed to the defendant in the same bedroom
in which the revolver and narcotics were found; and,
after the defendant had been arrested, he told the offi-
cers that he had kept his belongings at 80 Cabot Street
for more than two months. On the basis of that evidence,
the court concluded that ‘‘the reasonable inference is
that [the defendant] had control over those premises,
that he did, during that period, have considerable pres-
ence in those premises. In my opinion, an inference
can be drawn that that’s where he was residing at that
point in time. But in any event, he certainly was in an
area where he had dominion and control. I think the
key and the letter certainly indicate what I’ve just said,
together with the defendant’s statements to the police
. . . . As I said, the gun and the drugs, the gun found
in a pair of sneakers—again, we’re getting into the area
of personal belongings, and that’s all consistent with
the defendant’s statement or admission to the police
. . . .’’
The defendant argues that his ‘‘considerable pres-
ence’’ at 80 Cabot Street ‘‘does not rise to the level of
dominion and control over an area, let alone over items
contained within that area. . . . [T]he state did not
provide sufficient evidence of a reliable nexus between
the defendant and the premises, and certainly not
between the defendant and the contraband.’’ The defen-
dant relies on several cases to support his argument.
These cases, cited as relevant examples of constructive
possession, however, involve appeals from criminal
convictions, where the burden on the state is much
higher, as it is required to prove possession beyond a
reasonable doubt. See, e.g., State v. Nova, 161 Conn.
App. 708, 716–18, 129 A.3d 146 (2015); State v. Gainey,
116 Conn. App. 710, 719–21, 977 A.2d 257 (2009); State
v. Williams, 110 Conn. App. 778, 783–93, 956 A.2d 1176,
cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). By
contrast, in a revocation of probation case, the state is
required to prove a violation only by a preponderance
of the evidence. See, e.g., State v. Milner, 130 Conn.
App. 19, 35, 21 A.3d 907 (2011) (‘‘The court could have
found by a preponderance of the evidence that the
defendant constructively possessed the gun. Accord-
ingly, the court did not err by taking into consideration
the defendant’s constructive possession of the gun
when revoking the defendant’s probation . . . .’’),
appeal dismissed, 309 Conn. 744, 72 A.3d 1068 (2013).
We, therefore, are not persuaded that the cases relied
on by the defendant control or assist us in our resolution
of his claim in the present case.
After applying the applicable law to the record before
us, we conclude that the court’s factual finding that the
defendant constructively possessed the revolver and
narcotics was not clearly erroneous. The evidence pre-
sented established that the defendant had a key to 80
Cabot Street, which both Fogg and Connaughton
observed the defendant use to lock the door after exit-
ing that address in the morning before the search of
the premises. In addition, the defendant admitted that
he had been storing his personal belongings in the third
floor bedroom at 80 Cabot Street for approximately two
months, and the revolver and narcotics were found in a
pair of sneakers in the closet in that third floor bedroom.
Moreover, Keane told the police that although his DNA
may be found on the revolver and narcotics, those items
belonged to the defendant. All of the aforementioned
facts support the court’s reasonable inference that the
defendant had a considerable presence in the premises,
was aware of the presence and nature of the narcotics
and the revolver, and exercised dominion and control
over those items by placing them in the closet in the
bedroom where he stored his personal belongings. Con-
sequently, we conclude that there was sufficient evi-
dence to support the court’s finding, by a
preponderance of the evidence, that the defendant pos-
sessed a revolver and narcotics.
Because we conclude that the court properly found,
by a fair preponderance of the evidence, that the defen-
dant constructively possessed the revolver and narcot-
ics, the defendant’s claim that the court abused its
discretion by considering that fact during the disposi-
tional phase of the proceedings necessarily fails. The
defendant has failed to demonstrate that a constitu-
tional violation exists.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
The court found that the defendant violated the following special condi-
tions of his probation: receive mental health evaluation and/or treatment,
as recommended by the Office of Adult Probation; do not possess any drugs
and/or narcotics; and submit to random urine tests.
3
We note that defense counsel appeared to agree that there was sufficient
evidence to support the court’s findings when, during the dispositional phase
of the proceeding, he stated: ‘‘With respect to the underlying conduct, you’ve
heard the evidence. Your Honor found by a preponderance of the evidence
that he did possess those things. I would submit to Your Honor that there’s
obviously evidence that’s beyond a preponderance of the evidence that he
constructively possessed those things. But—and I think the state would
agree that it’s not the strongest case in the world against my client.’’ (Empha-
sis added.)
4
Although the defendant claims that the evidence does not support the
court’s finding that he constructively possessed a revolver and narcotics,
he does not claim that the court improperly found that he violated his
probation on this ground, likely because the finding of a probation violation
was based on multiple grounds. See footnote 1 of this opinion; see also
State v. Fowler, 178 Conn. App. 332, 343–44, 175 A.3d 76 (2017) (‘‘[A] violation
of any one condition of probation would suffice to serve as a basis for
revoking the defendant’s probation. . . . Our law does not require the state
to prove that all conditions alleged were violated; it is sufficient to prove
that one was violated.’’ [Internal quotation marks omitted.]), cert. denied,
327 Conn. 999, 176 A.3d 556 (2018). Rather, he focuses on the court’s reliance
on this ground during the dispositional phase of the revocation hearing.
5
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis omitted; footnote omitted.)
State v. Golding, supra, 213 Conn. 239–40, as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015).