State v. Jackson

• Decision Date: 28 October 1993
• Docket Number: No. 11417,11417
• Citation: 32 Conn.App. 724,630 A.2d 164
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Glen JACKSON.

Page 164

630 A.2d 164

32 Conn.App. 724

STATE of Connecticut v. Glen JACKSON.

No. 11417.

Appellate Court of Connecticut.

Argued April 29, 1993.

Decided Aug. 31, 1993.

Certification Denied Oct. 28, 1993.

David F. Egan, Public Defender, for appellant (defendant).

David J. Sheldon, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Mary Reidy, Asst. State's Atty., for appellee (state).

Before LAVERY, LANDAU and SCHALLER, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), ¹ possession of a narcotic substance with intent to sell by a person who is not drug-dependent within 1000 feet of a school in violation of General Statutes (Rev. to 1991) § 21a-278a(b), ² criminal impersonation in violation of General Statutes § 53a-130, ³ and possession of a pistol without a permit in violation of General Statutes § 29-35. The defendant makes no claim challenging the conviction of possession of a pistol. The defendant claims that the trial court improperly (1) found that he did not show substantial evidence of drug dependency, and (2) denied his motion for judgment of acquittal on the charge of criminal impersonation. We agree and reverse the judgment of the trial court in part.

The jury could reasonably have found the following facts. On May 21, 1991, Officers Ramano Ratti, Clarence Willoughby and Thomas Trocchio of the New Haven police department were on patrol at approximately 6:30 p.m. in the area of 68-70 Sylvan Avenue in New Haven. ⁴ As they approached 68-70 Sylvan Avenue, Ratti observed what appeared to be the handle of a revolver protruding from the waistband of the defendant, who was standing on the sidewalk. Ratti and Willoughby jumped out of their vehicle, pursued the defendant for several blocks, and apprehended him in the area of 66 Orchard Street. A search of the defendant revealed twenty-six glassine bags, each containing a white powdery substance, later identified as cocaine, and $491 in cash. An operable Colt Python .357 magnum revolver was seized from the defendant, for which he did not have a permit. When arrested, the defendant identified himself as John Williams. It was subsequently determined from fingerprints that the person who identified himself as John Williams is also known as Glen Jackson.

At a hearing before the trial court, the defendant offered testimony from Sonya Cherry that she has known the defendant for one year, that she saw him use drugs on a daily basis, that he free-based cocaine three or four times a day, and that drug use affected his behavior such that he would act moody when he was not under the influence of drugs. She further testified that she was his girlfriend and that she free-based cocaine and smoked marijuana with the defendant every now and then.

The trial judge ruled at the end of the witness' testimony that the defendant had not made a threshold showing of "substantial evidence" that the defendant was a drug-dependent person at the time of his arrest. The trial court then allowed a substitute information that deleted all language dealing with drug dependency in the counts alleging violations of General Statutes §§ 21a-278(b) and 21a-278a(b). At the trial, there was no evidence presented by the state to show that the defendant intended to impersonate a real person in violation of General Statutes § 53a-130 other than that the defendant told the arresting officers that his name was John Williams.

We review the defendant's second claim first because the state concedes error and, upon review, we agree.

Section 53a-130(a) provides in relevant part: "A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another...."

In State v. Smith, 194 Conn. 213, 479 A.2d 814 (1984), our Supreme Court held that because § 53a-130(a) prohibits impersonating "another," it does not prohibit merely giving a false name. The plain meaning of "another" is "some other real person." Therefore, giving a false name is not impersonation unless the name given is that of a real person. Id., at 220-22, 479 A.2d 814. For this reason, the state must adduce evidence at trial that the name a defendant gives belongs to a real person. Id.

In this case, when the defendant was arrested, he gave his name to the police as John Williams. The defendant had given this name to the police in the past, and, at the time of his arrest, they knew him by this name. Fingerprint analysis subsequently established that the defendant was Glen Jackson. Although the state introduced evidence of the defendant's real name and the false name he gave, the state did not produce any evidence that John Williams is a real person. Thus, the trial court should have granted the defendant's motion for a judgment of acquittal on the basis of insufficiency of evidence. We reverse the judgment of conviction of criminal impersonation and direct a judgment of acquittal on that count.

Next, we take up the defendant's claim that because he presented substantial evidence of drug dependency, the trial court should have instructed the jury on that issue. We agree.

The trial court, in its ruling on substantial evidence of drug dependency, said: "As far as the court is concerned, the defendant--the burden that the defendant bears initially is to show substantial evidence. The only testimony in this case was the testimony that ... we heard yesterday from Sonya Cherry. Sonya Cherry is certainly--she is not a medical person; she is not a doctor; she is not an expert and the only thing I heard in this court was that in fact she is aware of or was aware of the fact that the defendant had imbibed in the consumption of freebasing coke and smoking marijuana.

"The statute also talks in terms of who is not at the time of such action a drug-dependent person. Of course that time would have to refer to May 21, 1991. I really--I don't recall hearing anything specifically testified to about his use of any drugs concerning that particular date.

"The court does not feel that the testimony that was elicited yesterday in court is sufficient or does not amount to, as far as this court is concerned, to substantial evidence. One might then say how would a person go about proving such a thing? Well, there [are] several different ways. The defendant could testify about it but I only heard the one person and, as I say, the court does not feel that produced substantial evidence to turn this thing the other way.

"And as far as the defendant is concerned, he has the choice whether he wishes to testify or not testify and that's a matter solely within his own discretion.

"So my ruling on this matter is that the defendant has not produced substantial evidence to turn this thing the other way."

The judge's ruling on substantial evidence and the verdict took place prior to our Supreme Court's ruling in State v. Hart, 221 Conn. 595, 605 A.2d 1366 (1992). The sentencing in this case took place subsequent to the publication of State v. Hart, supra. We conclude that under the Hart standard, the trial court's ruling was improper. ⁵

The jury verdict convicting the defendant was reached on February 21, 1992. On April 10, 1992, the defendant was sentenced. Our Supreme Court released its opinion in State v. Hart, supra, on April 7, 1992. "In a criminal proceeding, there is no final judgment until the imposition of a sentence. State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987); State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980)." State v. Ayala, 222 Conn. 331, 339, 610 A.2d 1162 (1992). The holding in Hart became the law of this state before the judgment of the trial court became an appealable final judgment. Because final judgment was not rendered in this case until after Hart was decided by our Supreme Court, a retroactive application of Hart is not involved. ⁶

The Hart court made two significant holdings. First, in a departure from the burden shifting scenario set out in the earlier cases, the court held that "[General Statutes] § 21a-269 ⁷ assigns to the defendant the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent." State v. Hart, supra, 221 Conn. at 610-11, 605 A.2d 1366. Second, and more significant to the circumstances of this case, the court stated: "In the future, the trial court should instruct the jury concerning the issue of drug dependency and the defendant's burden of proof if it determines that there is any foundation in the evidence, no matter how weak or incredible.... State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986)." (Emphasis added; internal quotation marks omitted.) Id., 221 Conn. at 613, 605 A.2d 1366. Hart significantly lowers the standard of what constitutes sufficient evidence, produced by the defendant, to send the issue of drug dependency to the jury.

We conclude, applying the Hart standard, that the testimony of Cherry regarding the defendant's asserted drug dependency was clearly a "foundation in the evidence" sufficient to require the trial court to instruct the jury on the issue of drug dependency.

The judgment is reversed only as to the charges of possession of a narcotic substance with intent to sell by a person who is not drug-dependent, possession of a narcotic substance within 1000 feet of a school by a person who is not drug-dependent and criminal impersonation, and the case is remanded for a new trial on the two narcotics charges, and with direction to render a judgment of acquittal on the charge of criminal impersonation.

In this opinion the other Judges concurred.

1 General Statutes § 21a-278(b) provides: "Any person who manufactures, distributes, sells, prescribes, dispenses, compounds,...