State v. Gilligan

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STATE OF CONNECTICUT v. ERYN GILLIGAN
(AC 37031)
Beach, Sheldon and Pellegrino, Js.
Argued December 3, 2015—officially released April 5, 2016
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen, Graham,
J.)
Pamala J. Favreau, for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Andrew Reed Durham, assistant state’s
attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Eryn Gilligan, appeals from
the judgment of conviction, rendered following a jury
trial, of operating a motor vehicle while under the influ-
ence of alcohol or drugs or both in violation of General
Statutes § 14-227a (a) (1). The defendant claims that the
trial court erred by (1) admitting into evidence expert
testimony regarding the quantitative results of her urine
test and (2) finding that she was a second offender
pursuant to General Statutes § 14-227a (g). We affirm
the judgment of the trial court.
The following facts, as reasonably could have been
found by the jury, and procedural history are relevant.
At approximately 8:25 p.m. on December 29, 2011, while
Timothy Begley, a sergeant with the state police, was
patrolling Route 32 in Stafford, he noticed a vehicle
swerving back and forth within a lane of travel and
crossing the double yellow line. Begley stopped the
vehicle, which the defendant was driving. The defen-
dant was talking rapidly, her eyes were red and watery,
and her pupils were ‘‘very dilated.’’ Upon moving his
flashlight toward her eyes, Begley noticed that the
defendant’s pupils were ‘‘very slow to constrict’’ and
did so ‘‘only very slightly,’’ which indicated to Begley
that the defendant was possibly under the influence of
a central nervous system stimulant. Begley detected the
odor of alcohol on the defendant’s breath and asked
the defendant if she had been drinking. The defendant
responded that she had consumed one drink prior to
operating the vehicle. Begley asked the defendant if she
would submit to field sobriety tests, and he noticed that
the defendant was not very stable when exiting her
car. Begley performed three field sobriety tests on the
defendant: the horizontal gaze nystagmus test; the one
leg stand test; and the walk and turn test. The defendant
was not able to perform any of the three tests to stan-
dard.1 Begley placed the defendant under arrest.
While at the state police barracks in Tolland, the
defendant completed an implied consent form. When
Begley asked the defendant if she had been drinking,
she stated that she started drinking around 7 p.m. and
stopped drinking around 8:25 p.m., and during that time,
she drank two beers. When asked if she had taken any
drugs, she further stated that she had used one line of
cocaine at approximately 7:30 p.m. Beyer asked the
defendant if she would consent to chemical testing and
she agreed. At 8:59 p.m., a breath test was administered
to the defendant,2 and at 9:09 p.m., a urine test was con-
ducted.
The defendant was convicted by a jury of operating
a motor vehicle while under the influence of alcohol
or drugs or both. Following a trial to the court on a
part B information, the defendant was found guilty of
being a second offender. She was sentenced to two
years incarceration, execution suspended after six
months, and two years probation. This appeal followed.
I
The defendant first claims that the court erred in
admitting into evidence testimony by the state’s toxicol-
ogy expert, Dr. Robert Powers, regarding a chemical
analysis concerning cocaine found in the defendant’s
urine in violation of § 14-227a (b) (2) and (5). We con-
clude that the admission of Powers’ testimony at issue
was harmless error.
Section 14-227a (b) provides in relevant part: ‘‘Except
as provided in subsection (c) of this section, in any
criminal prosecution for violation of subsection (a) of
this section, evidence respecting the amount of alcohol
or drug in the defendant’s blood or urine at the time
of the alleged offense, as shown by a chemical analysis
of the defendant’s breath, blood or urine shall be admis-
sible and competent provided . . . (2) a true copy of
the report of the test result was mailed to or personally
delivered to the defendant within twenty-four hours or
by the end of the next regular business day, after such
result was known, whichever is later . . . (5) an addi-
tional chemical test of the same type was performed
at least ten minutes after the initial test was performed
or, if requested by the police officer for reasonable
cause, an additional chemical test of a different type
was performed to detect the presence of a drug or drugs
other than or in addition to alcohol, provided the results
of the initial test shall not be inadmissible under this
subsection if reasonable efforts were made to have such
additional test performed in accordance with the condi-
tions set forth in this subsection and such additional
test was not performed or was not performed within a
reasonable time, or the results of such additional test
are not admissible for failure to meet a condition set
forth in this subsection . . . .’’ (Emphasis added.)
At trial, the state called Powers as an expert witness.
He was the deputy director for controlled substances
and toxicology and chemistry at the Connecticut Foren-
sic Laboratory in the Department of Emergency Ser-
vices and Public Protection. Outside the presence of
the jury, the state responded that it intended to offer
one page of the laboratory report that concerned only
the presence of cocaine and benzoylecgonine and that it
did not intend to introduce evidence concerning precise
amounts found. When the state indicated that it might
question Powers about his findings ‘‘regarding quanti-
ties’’ of cocaine and benzoylecgonine in the urine sam-
ple ‘‘but not in terms of specific numbers,’’ the
defendant objected on the ground that such testimony
was inadmissible because § 14-227a (b) (2) and (5) had
not been complied with. Upon the court’s request and
outside of the presence of the jury, the state proffered
the testimony from Powers that it expected to elicit in
the presence of the jury.
In response to testimony elicited from Powers during
the proffer, the court ruled that § 14-227a (b) (2) had
not been satisfied. Powers was directed not to testify
regarding the quantity of cocaine, or of its metabolite,
in the urine sample, nor could he testify using terms
such as high, medium, or low in reference to those
substances. The state then elicited testimony from Pow-
ers that once cocaine is ingested, the body starts to
form the metabolite of cocaine, benzoylecgonine. The
greater the ratio of cocaine to benzoylecgonine, the
more recent the ingestion of cocaine would be, as
cocaine is replaced over time by its metabolite, which
is created by the body’s metabolism of cocaine. The
state argued that the proffered testimony made no refer-
ence to actual numbers or quantities and, therefore,
was not precluded by application of § 14-227a (b). The
defendant objected on the ground that the testimony
‘‘goes to the ratio.’’ The court ruled that such testimony
was permissible because ‘‘[t]he language of the statute
says evidence respecting the amount of drug in the
defendant’s urine. He is not quantifying—he is not cate-
gorizing the amount of drug, he is simply saying it’s
more or less than a metabolite, and that really doesn’t
say anything about the amount.’’
At trial and in the presence of the jury, Powers testi-
fied that an analysis of the defendant’s urine sample
revealed that the sample contained cocaine and ben-
zoylecgonine, the metabolite of cocaine. He stated that
a ‘‘metabolite’’ is ‘‘a molecule that the body produces
from another molecule; it’s what we break a molecule
down into.’’ He explained that the ratio between cocaine
and benzoylecgonine can determine how recently the
ingestion of cocaine occurred. He testified that ‘‘there
was more cocaine in the defendant’s urine than metabo-
lite’’ and opined that this fact indicated ‘‘a relative[ly]
recent ingestion’’ of cocaine by the defendant.
The defendant argues that Powers’ testimony regard-
ing the ratio of cocaine to its metabolite was inadmissi-
ble because a copy of the report was not mailed to or
personally delivered to the defendant within twenty-
four hours of the testing or by the end of the next
regular business day after such result was known, in
violation of § 14-227a (b) (2); and a second chemical
test of the same type was not performed on the urine
sample at least ten minutes after the first test in viola-
tion of § 14-227a (b) (5). The state agrees that the toxi-
cology lab did not send the defendant a copy of the
report setting forth the specific amount of cocaine in
the urine sample and did not perform a second chemical
test on the sample within the requisite time frame. The
defendant contends that the term ‘‘amount’’ is not nar-
rowly defined in § 14-227a (b). She maintains that the
process of computing the ‘‘ratio’’ of cocaine to benzoyle-
cgonine necessarily requires the use of the ‘‘amount’’
of the drug in the body. Testimony regarding ratio of
cocaine to metabolite, then, should have been pre-
cluded in this case by § 14-227a (b). The state argues
that Powers’ testimony regarding the general ratio of
cocaine to its metabolite was nonetheless admissible
because § 14-227a (b) bars the admission only of evi-
dence regarding the ‘‘amount’’ of alcohol or drug in the
defendant’s urine. Powers’ testimony did not address
the amount of cocaine, the state argues, but rather the
time frame in which the defendant ingested the cocaine.
The state argues alternatively that any error was
harmless.
‘‘[I]n order to establish reversible error on an eviden-
tiary impropriety, the defendant must prove both an
abuse of discretion and a harm that resulted from such
abuse.’’ (Internal quotation marks omitted.) State v.
Swinton, 268 Conn. 781, 797–98, 847 A.2d 921 (2004).
In this case, the question of whether the court erred in
admitting the testimony at issue into evidence requires
us to interpret § 14-227a (b). ‘‘Issues of statutory con-
struction raise questions of law, over which we exercise
plenary review.’’ (Internal quotation marks omitted.)
State v. Boysaw, 99 Conn. App. 358, 362, 913 A.2d
1112 (2007).
‘‘The process of statutory interpretation involves the
determination of the meaning of the statutory language
as applied to the facts of the case, including the question
of whether the language does so apply. . . . When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, [we]
first . . . consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered.’’
(Internal quotation marks omitted.) State v. Custer, 110
Conn. App. 836, 840, 956 A.2d 604 (2008).
Section 14-227a (b) unambiguously provides that
‘‘evidence respecting the amount of alcohol or drug in
the defendant’s blood or urine at the time of the alleged
offense’’ is admissible provided that certain require-
ments have been satisfied. The term ‘‘amount,’’ how-
ever, is not further defined in the statute. ‘‘When a
statutory term is not defined, or cannot be ascertained
by means of related statutory provisions, courts must
apply its plain and ordinary meaning. . . . [I]t is a
cardinal rule of statutory construction that statutory
words and phrases are to be given their ordinary mean-
ing in accordance with the commonly approved usage
of the language . . . . To ascertain the commonly
approved usage of a word, we look to the dictionary
definition of the term.’’ (Citation omitted; internal quo-
tation marks omitted.) In re Pedro J. C., 154 Conn. App.
517, 535, 105 A.3d 943 (2014).
In the context of this case, we necessarily consider
the concepts of ‘‘ratio,’’ the subject of the testimony
admitted in court, and ‘‘amount,’’ the relevant word in
the applicable statute. The term ‘‘ratio’’ is defined, in
part, as ‘‘the relationship in quantity, amount, or size
between two or more things;’’ and the term ‘‘amount’’
is defined, in part, as ‘‘the total number or quantity
. . . .’’ (Emphasis added.) Merriam-Webster’s Colle-
giate Dictionary (11th Ed. 2003). A ratio, by definition
applicable in the circumstances of this case, expresses
the relationship between two or more amounts.
Although Powers’ testimony as to ratio did not express
the amount of cocaine in the defendant’s system in
terms of an absolute quantity, it did state the amount
of cocaine in her system in relation to the quantity of
metabolite. The integrity of the testimony regarding
ratio depended entirely on the integrity of the underly-
ing ‘‘amount’’ used in the computation. Because evi-
dence of amount was properly excluded by application
of § 14-227a (b), then evidence of ratio, dependent upon
amount, likewise should have been precluded in the
circumstances of this case.3
The state argues, alternatively, that any error was
harmless. ‘‘Where an evidentiary ruling has been found
to be incorrect, but the improper ruling, as here, does
not implicate a constitutional right of the defendant,
the burden rests on the defendant to establish the harm-
fulness of the claimed impropriety. . . . In order to
establish the harmfulness of a trial court ruling, the
defendant must show that it is more probable than not
that the improper action affected the result. . . . The
question is whether the trial court’s error was so preju-
dicial as to deprive the defendant of a fair trial, or, stated
another way, was the court’s ruling, though erroneous,
likely to affect the result?’’ (Citations omitted; internal
quotation marks omitted.) State v. Russo, 62 Conn. App.
129, 137, 773 A.2d 965 (2001).
We agree with the state and conclude that the defen-
dant has not shown that Powers’ disputed testimony
was harmful. The import of the testimony regarding
ratio was that the defendant had, in quite vague terms,
‘‘recently’’ ingested cocaine. The evidence of a recent
ingestion was only cumulative of other evidence at trial,
the admission of which was not contested on appeal.
While at the police barracks, the defendant stated to
Begley that she had ingested one line of cocaine at
approximately 7:30 p.m. that night, approximately one
hour prior to her arrest and one and one-half hours
before the sample was obtained.
There was also substantial evidence of intoxication.
Begley testified that the defendant failed three field
sobriety tests; he smelled alcohol on the defendant’s
breath; he noticed rapid speech and red watery eyes
with ‘‘very dilated’’ pupils that were ‘‘very slow to con-
strict’’ when Begley moved his flashlight toward her
eyes; and the defendant said that she drank two beers
between 7 p.m. and 8:25 p.m. and had ingested one line
of cocaine at 7:30 p.m. Further, a portion of the lab
report, to which the defendant did not object, estab-
lished the presence of cocaine and benzoylecognine in
the defendant’s urine sample.
Finally, the testimony as to the ratio was itself only
mildly inculpatory. A conclusion of ‘‘recent’’ ingestion—
especially where ingestion itself was not in issue—cov-
ered a lot of potential territory. The jury received little
guidance from the testimony in any event. We conclude
that the admission of Powers’ testimony as to the ratio
of cocaine in relation to benzoylecognine in the defen-
dant’s urine was harmless error.
II
The defendant next claims that the state did not pre-
sent sufficient evidence as to identity in the context of
her conviction as a second time offender pursuant to
§ 14-227a (g). We disagree.
After a trial to the court on the part B information,
the court concluded that the state had proved beyond
a reasonable doubt that the defendant previously had
been convicted, specifically on June 27, 2006, of
operating a motor vehicle while under the influence of
alcohol or drugs. The court noted, and the defendant
stresses, that the 2006 offense was committed by ‘‘Eryn
Eaton’’ and the offense in the present case was commit-
ted by ‘‘Eryn Gilligan.’’ The court stated, ‘‘The evidence
far exceeds the question of the congruity of name; social
security number is the same; driver’s license number
is the same; date of birth is the same throughout the
documents, including the documents relating to both
this conviction and the prior conviction of June 27,
2006.’’ The court concluded: ‘‘[A] name change alone
does not . . . indicate that it’s not the same person; it
clearly is the same person proven beyond a reason-
able doubt.’’
The standard of review employed in a sufficiency of
the evidence claim is well settled. We apply ‘‘a two part
test. First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we deter-
mine whether upon the facts so construed and the infer-
ences reasonably drawn therefrom the [finder of fact]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt.’’ (Internal quotation marks omitted.) State
v. Glasper, 81 Conn. App. 367, 371, 840 A.2d 48, cert.
denied, 268 Conn. 913, 845 A.2d 415 (2004).
The defendant argues that the state presented insuffi-
cient evidence to show that she was the perpetrator of
the first offense of operating a motor vehicle while
under the influence of alcohol or drugs, on June 27,
2006. She contends that no direct evidence was pre-
sented by the state in the part B trial about her part A
conviction the day before, that there was neither an in-
court identification of her as the perpetrator of the part
A conviction the day before nor an in-court identifica-
tion of her as the perpetrator of the 2006 offense. She
further contends that there was no testimonial evidence
that the photographs entered by the state into evidence
in the part B trial, state’s exhibits B-3 and B-4, depicted
the defendant.
It is clear from the record, however, that overwhelm-
ing evidence of identity was introduced. Christopher
Cwikla, an analyst employed by the Department of
Motor Vehicles, testified that state’s exhibits B-3 and
B-4 had been culled from a database that stores images
for the Department of Motor Vehicles. State’s exhibit
B-3 showed the license renewal photograph taken of
‘‘Eryn Gilligan,’’ along with other identifying informa-
tion; and state’s exhibit B-4 included, along with other
identifying information, the license renewal photograph
of ‘‘Eryn Eaton,’’ taken in 2005.
Further, the state introduced evidence of a divorce
decree, which stated that Eryn Gilligan had married
Mark Eaton in 1994, and that, by judgment dated August
2, 2007, the marriage between the two had been dis-
solved. The state introduced evidence that ‘‘Eryn Gilli-
gan’’ and ‘‘Eryn Eaton’’ had the same date of birth,
social security number and driver’s license number. The
state also submitted driver’s license photographs for
both Eryn Gillian and Eryn Eaton, which were taken
approximately six years apart. The court found that
‘‘[e]ven without the photos, it would be clear . . .
beyond a reasonable doubt’’ that the defendant is the
same person who had been convicted on June 27, 2006,
and, thus, that the state had proven beyond a reasonable
doubt that the sentence enhancement applied. We con-
clude that the state presented overwhelming evidence
at trial on the part B information as to the identity of
the defendant. The defendant’s contrary assertion, on
the facts of this case, is meritless.
The defendant’s identity as the perpetrator of the
instant offense was established during the trial on the
part A information. Although the proceeding was bifur-
cated into two stages, it was nonetheless one proceed-
ing. ‘‘A two part information is required under our rules
of practice whenever the state seeks an enhanced pen-
alty. Practice Book § 36-14. The purpose of this rule is
to ensure that the defendant is given adequate notice
of the charge against him so that he properly may pre-
pare his defense. . . . Thus, although a prosecution
involving a two part information requires two separate
proceedings, it nevertheless remains a single prosecu-
tion under one information. . . . The second part of
the information must be proven, however, before the
enhanced penalty can be imposed.’’ (Citations omitted.)
State v. Fagan, 280 Conn. 69, 92–93, 905 A.2d 1101
(2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167
L. Ed. 2d 236 (2007); see also State v. Nasheed, 121
Conn. App. 672, 683, 997 A.2d 623 (where jury found
defendant guilty of robbery in first degree in part A
proceeding and court in part B proceeding found that
defendant had previously been convicted of robbery in
second degree, evidence was sufficient to conclude that
defendant was persistent dangerous felony offender
under sentence enhancement statute, General Statutes
§ 53a-40), cert. denied, 298 Conn. 902, 3 A.3d 73 (2010).
Having presided over the immediately preceding jury
trial on the first part of the proceeding, the court was
fully entitled to conclude that the person sitting in court
in the part B trial was the person who had just been
convicted. We conclude that the court had before it
sufficient evidence in the part B proceeding to establish
the defendant’s identity as a second offender.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant informed Begley that she had a neurological disorder that
causes dizziness but that she was not dizzy at the time of the tests.
2
The results of the breath test were not admitted at trial.
3
A purpose of § 14-227a (b) quite clearly is to allow an accused to probe
the accuracy of conclusions regarding intoxication. A conclusion of a toxicol-
ogist regarding the time of ingestion, a fact which might bear on intoxication
at the time of the offense, may be difficult to probe in the absence of timely
notification of the predicate quantities.