State v. Johnson

• Decision Date: 04 September 2012
• Docket Number: AC 33199
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JENNIFER JOHNSON

STATE OF CONNECTICUT v. JENNIFER JOHNSON

AC 33199

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued March 6, 2012

Officially released September 4, 2012

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and 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 Publications, Judicial Branch, State of Connecticut.Robinson, Alvord and Flynn, Js.

(Appeal from Superior Court, judicial district of

Ansonia-Milford, geographical area number five, Keegan, J.)

Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Paul O. Gaetano, supervisory assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J. The principal issues to be decided in this case are (1) whether the evidence presented sufficed to convict the defendant and (2) what remedy should be given on appeal where the court renders a judgment of conviction of both a crime and a lesser included offense and imposes a separate sentence on both.

On October 25, 2010, in the judicial district of Ansonia-Milford, a jury found the defendant, Jennifer Johnson, guilty of conspiracy to commit possession of narcotics with intent to sell in violation of General Statutes §§ 21a-277 (a) and 53a-48 (a); possession of narcotics in violation of General Statutes § 21a-279 (a); conspiracy to commit possession of narcotics in violation of General Statutes §§ 21a-279 (a) and 53a-48 (a); possession of less than four ounces of marijuana in violation of General Statutes § 21a-279 (c); and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). The trial court sentenced the defendant on each narcotics charge to five years imprisonment, execution suspended after eighteen months, with three years of probation, to run concurrently. On the charge of possession of less than four ounces of marijuana, the sentence imposed was imprisonment of one year to be served concurrently with the other sentences.

On appeal, the defendant claims that (1) there was insufficient evidence to sustain her conviction of possession of narcotics, conspiracy to possess narcotics, and conspiracy to possess narcotics with intent to sell; (2) separate conspiracy convictions of possession and possession with intent to sell must be reversed because they represent but one agreement and violate the constitutional double jeopardy clause; (3) the court erred in various ways in its instructions to the jury on constructive possession; (4) the trial court erred in failing to disclose all relevant material for cross-examination of the state's principal witness. We agree with the defendant's double jeopardy claim and will grant her relief related to that claim, but otherwise affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Using a confidential informant, Wendy Carroll, Officer Dedrick Wilcox of the Seymour police department, assigned to the statewide narcotics task force, made three controlled purchases of Roxicodone tablets, described by a state chemist as a synthetic form of opium and containing the active ingredient of oxycodone. In the first and second of these buys, occurring on March 26 and 27, 2008, the defendant handed Carroll green Roxicodone pills in exchange for money. The third controlled buy occurred on April 24, 2008, but this time Tamara Burbridge sold the pills. All three buys occurred at the defendant's second floor apartment,which she shared with Burbridge, at 3 Hill Street in Seymour.

Wilcox applied for a search warrant for the second floor apartment at 3 Hill Street on June 24, 2008, after learning that Burbridge had informed Carroll that she had more prescription pills for sale. Wilcox and Detective Brian Marino executed the search warrant at approximately 6:19 p.m., whereupon they encountered the defendant and Burbridge in their driveway. Wilcox and Marino identified themselves as police officers and explained that they had a warrant to search the premises. Wilcox then patted down the defendant and Burbridge for weapons to ensure the safety of the officers before executing the search. On the defendant, Wilcox discovered a small sum of money and a "bong," a device used to smoke marijuana. On Burbridge, Wilcox discovered a prescription bottle in her name containing forty-six Roxicodone pills. Inside the apartment, the officers seized a wide array of controlled substances. The following seized items are relevant to this appeal: thirteen or fourteen prescription pill bottles in the defendant's and Burbridge's names, a small ''dragon box'' containing two pills, two prescription bottles containing Roxicodone in Burbridge's name and one prescription bottle containing oxycodone with acetaminophen, sometimes called Percocet, in Burbridge's name. Pursuant to an arrest warrant, Wilcox arrested Burbridge and the defendant approximately one month after the June 24, 2008 search.

The following procedural history is pertinent. The state charged the defendant with one count each of possession of narcotics with intent to sell on June 24, 2008, in violation of § 21a-277 (a); conspiracy to possess narcotics with intent to sell on June 24, 2008, in violation of §§ 53a-48 (a) and 21a-277 (a); possession of narcotics on June 24, 2008, in violation of § 21a-279 (a); conspiracy to possess narcotics on June 24, 2008, in violation of §§ 53a-48 (a) and 21a-279 (a); possession of less than four ounces of marijuana on June 24, 2008, in violation of § 21a-279 (c); possession of drug paraphernalia in violation of § 21a-267 (a); and two counts of sale of narcotics on March 26 and 27, 2008, in violation of § 21a-277 (a). The jury found the defendant not guilty of possession of narcotics with intent to sell on June 24, 2008, and the two counts of sale of narcotics on March 26 and 27, 2008, but found her guilty on all the remaining counts. This appeal followed.¹

I

We address first the defendant's claim that the evidence was insufficient to sustain her conviction of possession of narcotics on June 24, 2008, in violation of § 21a-279 (a), conspiracy to possess narcotics on June 24, 2008, in violation of §§ 53a-48 (a) and 21a-279 (a), and conspiracy to possess narcotics with intent to sell on June 24, 2008, in violation of §§ 53a-48 (a) and 21a-277 (a). We do so because if the evidence is insufficient on any of the charges, it would end our inquiry. See State v. Gonzalez, 74 Conn. App. 580, 593, 814 A.2d 384, cert. denied, 263 Conn. 915, 821 A.2d 771 (2003). We disagree with the defendant and conclude that the evidence presented at trial sufficed to sustain the convictions.

We begin by setting forth the relevant standard of review. ''In reviewing a sufficiency of the evidence claim, we 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier's] factual inferences that support a guilty verdict need only be reasonable.

''As . . . often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . 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 [trier's] verdict of guilty. . . . Furthermore, [i]n [our] process of review, 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.'' (Internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

A

We turn...