State v. Brunori, 7836

Citation22 Conn.App. 431,578 A.2d 139
Decision Date18 September 1990
Docket NumberNo. 7836,7836
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. Roger BRUNORI.

Neal Cone, Deputy Asst. Public Defender, for appellant (defendant).

Paul J. Ferenecek, Deputy Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., Steven J. Sedensky III, Asst. State's Atty., and Michael Granston, Legal Intern, for appellee (state).

Before DALY, LAVERY and LANDAU, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of drug paraphernalia in violation of General Statutes § 21a-267(a), and possession of a narcotic substance in violation of General Statutes § 21a-279(a). The dispositive issue is whether the trial court properly denied the defendant's motion for judgment of acquittal. 1 We conclude that the evidence adduced at trial was insufficient as a matter of law to support the guilty verdicts. Accordingly, we reverse the trial court's judgment.

The jury could reasonably have found the following facts. On the afternoon of July 16, 1987, Officers Joseph Sherbo and Robert Craw of the Bridgeport police department were dispatched to building number two of the Father Panik Village housing project in response to a report of a man armed with a gun. As they were driving toward the area, the officers first observed the defendant and two other men standing alongside that building. The three men saw the patrol car and went around the corner of the building, but were stopped by the officers a short distance from where they were initially observed. Sherbo, who was driving, had observed the defendant bend down with his arm stretched, come back up and then move back a few feet. The officers exited the vehicle and patted down the three individuals for weapons. Although no weapons were found, Craw did find two "folds" of a narcotic substance, which were later determined to contain cocaine, and a hypodermic needle in the proximate area where Sherbo had previously seen the defendant bend.

On appeal, the state argues that the jury could have made four reasonable inferences based on the evidence presented to find the defendant guilty. 2 First, the defendant was at Father Panik Village to buy drugs; second, Joseph Pirrelo, a person accompanying the defendant, warned him that the police were nearby; third, the defendant and his companions attempted to walk away from the scene inconspicuously to avoid detection; and fourth, the defendant bent down and placed the cocaine and hypodermic needle on the ground to disassociate himself from the incriminating evidence.

The defendant argues that, in the absence of any testimony that an officer actually saw him discard something, the jury had to resort to conjecture and speculation to connect him with the contraband. He contends that mere suspicious conduct in the vicinity of narcotics is not enough to establish criminal possession. The defendant relies on numerous cases from other jurisdictions involving situations in which the surrounding circumstances were found to be insufficient to indicate that the accused had constructive possession of contraband found in a public place. The common theme of these cases is that a defendant who was never observed placing or discarding the contraband in the location where it was later discovered cannot be found guilty of possession in the absence of other evidence that would tend to buttress such an inference. 3 We agree with the defendant.

It is well settled that in reviewing a defendant's challenge to a verdict based on insufficient evidence, we defer to the jury. We do not sit as a seventh juror empowered to cast an overriding vote over the jury of six that actually heard the case. State v. Holloway, 22 Conn.App. 265, 281, 577 A.2d 1064 (1990). Rather, when faced with an insufficiency claim, we review the record to determine whether the jury could reasonably have found guilt beyond a reasonable doubt based on the cumulative effect of all the evidence presented at trial. State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990); State v. Osman, 21 Conn.App. 299, 302-303, 573 A.2d 743 (1990). Our task is to review the evidence presented at trial, both established facts and inferences reasonably drawn from those facts, in the light most favorable to sustaining the verdict. State v. Osman, supra. We treat circumstantial evidence as having the same degree of probative force as direct evidence. Id. ; see also State v. Smith, 212 Conn. 593, 599, 563 A.2d 671 (1989).

General Statutes §§ 21a-267(a) 4 and 21-279(a) 5 require proof that the defendant possessed drug paraphernalia or a narcotic substance, respectively. Under § 21a-267(a), the state must prove that the defendant possessed the drug paraphernalia with an intent to use it, while under § 22a-267(a), possession of a narcotic substance, intent to use is of no import. Notwithstanding this distinction, to establish possession under either offense, the state must prove beyond a reasonable doubt that the defendant knew the character of the contraband, knew of its presence and exercised dominion and control over it. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Melillo, 17 Conn.App. 114, 117-18, 550 A.2d 319 (1988). Where, as in the present case, 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. See, e.g., State v. Santiago, 17 Conn.App. 273, 278-79, 552 A.2d 438 (1989) (constructive possession where drugs found in automobile); State v. Melillo, supra, 17 Conn.App. at 118, 550 A.2d 319 (constructive possession where drugs found in base of tree).

Further, it is well settled that if the contraband is found in a place where the defendant does not have exclusive possession, the presence of the defendant near the contraband without more is insufficient to support an inference of possession. See State v. Alfonso, supra, 195 Conn. at 634-35, 490 A.2d 75 (without supporting evidence, no inference could be made that the defendant possessed the marihuana found in the common area of an apartment). Under such circumstances, the state must offer some additional evidence that would tend to buttress an inference of possession. Id.

We consider this proof requirement to hold true especially where, as here, the contraband was found in a public area. Unlike contraband found either in an automobile with multiple passengers or in a shared premises, contraband found in a public area could have been secreted there by virtually anyone. It would be a frightening scenario indeed for a person to be prosecuted for a possessory offense simply because he was unfortunate enough to be in the wrong public area at the wrong time; that is, in the proximity of contraband when a police officer discovers it. To mitigate the possibility that innocent persons might be prosecuted for such possessory offenses and to assure that proof exists beyond a reasonable doubt, it is essential that the state's evidence include more than just a temporal and spatial nexus between the defendant and the contraband. See, e.g., State v. Thompson, 20 Conn.App. 290, 291-93, 567 A.2d 837 (1989) (evidence sufficient to attribute possession of cocaine found underneath an abandoned car to a defendant who, while under surveillance, repeatedly picked up something underneath the car and exchanged items with persons who stopped nearby in waiting vehicles); State v. Melillo, supra, 17 Conn.App. at 116-18, 550 A.2d 319 (evidence sufficient to attribute possession of cocaine found at the base of a tree to a defendant who, while under surveillance, was observed walking directly to the tree and moving around it).

In order to establish a possessory connection for drugs found in a public place, the state need not, of course, show that the defendant was under continuous surveillance as in Thompson and Melillo. If a person is observed by a police officer discarding a package of some sort, and the officer then determines that the abandoned property is contraband, such evidence, although admittedly not as strong as that obtained in a continuous surveillance case, would nevertheless pass muster for purposes of denying a motion for judgment of acquittal. See, e.g., State v. Ruth, 16 Conn.App. 148, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989) (observing a defendant discarding objects, which turned out to be contraband, near a dumpster in the course of a pursuit on foot). Cf. State v. Jennings, 19 Conn.App. 265, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989) (observing a defendant discarding a brown paper bag after having seen a marked police car was sufficient to justify an investigative stop of the defendant and retrieval of the bag). 6

After carefully reviewing this record in the light most favorable to sustaining the verdict, we conclude that, given the insufficiency of the evidence concerning the element of possession, the state has failed, as a matter of law, to introduce sufficient evidence for the jury to reasonably have found beyond a reasonable doubt that the defendant possessed the contraband. The court, therefore, should not have denied the defendant's motion for judgment of acquittal. Significantly, the state produced no testimony that established that either officer actually witnessed the defendant discarding anything as he was bent over. The testimony viewed in its best light toward sustaining the verdict was that the defendant bent down as if he were dropping something. 7

There is not a scintilla of evidence in the record to support the state's first inference that the defendant was at Father Panik Village to buy drugs. We cannot accept the state's implication that the defendant's walking on a sidewalk in a high crime area gives rise to an inference that he...

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