State v. Jones

• Decision Date: 25 January 2022
• Docket Number: AC 42674
• Citation: 210 Conn.App. 249,269 A.3d 870
• Parties: STATE of Connecticut v. Theodore JONES
• Court: Connecticut Court of Appeals

210 Conn.App. 249

269 A.3d 870

STATE of Connecticut

v.Theodore JONES

AC 42674

Appellate Court of Connecticut.

Argued October 7, 2021

Officially released January 25, 2022

Julia K. Conlin, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant).

Brett R. Aiello, deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Devant Joiner, senior assistant state's attorney, for the appellee (state).

Bright, C. J., and Elgo and Lavine, Js.

LAVINE, J.

The defendant, Theodore Jones, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), criminal possession of a pistol in violation of General Statutes § 53a-217c (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of criminal possession of a pistol (handgun or firearm), (2) there was insufficient evidence to support his conviction of carrying a pistol without a permit, (3) the court committed plain error with respect to its jury instructions concerning criminal possession of a pistol, and (4) the court erred by allowing impermissible opinion testimony regarding his intent to sell narcotics. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On December 28, 2016, at 5 p.m., New Haven's "Shot Spotter" system was activated because a gunshot was detected in the area of 17 Vernon Street in New Haven. Shot Spotter is a system of microphones around a city that uses sound to triangulate the location of gunshots and relays the information back to patrol officers. Approximately four minutes after the Shot Spotter was activated, Officer James Marcum received a dispatch call that a woman had reported that there was a man with a handgun near the intersection of Davenport Avenue and Vernon Street, that the male was wearing a black hat and black jacket, and that his name was Theodore Jones.¹

Within thirty seconds of receiving the dispatch call, Marcum arrived at the Vernon Street location in his police cruiser and immediately saw a black male wearing a black hat and a black jacket in the driveway of a parking lot. The individual saw Marcum and proceeded to walk toward the rear of the driveway. Marcum then exited his police cruiser and yelled to the individual to show him his hands and asked the individual for his name. The individual complied and informed Marcum that his name was Theodore Jones. Marcum subsequently handcuffed the defendant and patted him down. No firearm was found on him.

When asked where he was going, the defendant indicated that he was heading to his girlfriend's house north on Vernon Street, which Marcum testified was inconsistent with him walking toward the rear of the parking lot at 9 Vernon Street. The rear portion of the parking lot at 9 Vernon Street abuts the Howard Avenue Parking Garage, which is owned by Yale University. The 9 Vernon Street property and the Howard Avenue Parking Garage property are separated by a tall chain link fence.

Officer Brendan Canning, Jr., also received the weapons complaint and soon learned that Marcum had detained the defendant. Canning arrived at the scene, conducted an investigation of the area, and spoke with the defendant. According to Canning, the defendant told him that he had been coming from the area of 27 Bond Street, which was near Water Street, but the officer testified that Bond Street was about six blocks away and that Water Street was about two miles from Vernon Street.

Officer Otilio Green, a Yale University police officer, also was working on the night in question and heard the weapons complaint and Shot Spotter activation through the New Haven Police Department scanner. When he learned that an individual was detained in a parking lot on Vernon Street and that no firearm was found, Green proceeded to the Howard Avenue Parking Garage property, which is located directly behind the property where the defendant was discovered, to see if he could locate a firearm. During the search of the fence line separating the two properties, which was captured on Green's body camera, he discovered a handgun sticking out of a snowbank. The handgun was a .40 caliber Ruger pistol with a barrel length between three and four inches long. In addition to recovering the firearm, the police located a bullet fragment in the vicinity of 17 Vernon Street.

The defendant was arrested and brought to the New Haven Police Department detention facility. Officer Andre Lyew searched the defendant and found a plastic bag tied to the defendant's genitals that contained 139 individual packets of heroin and 2 additional bags of it, weighing a total of 111 grams. The defendant also was found with approximately $199 in small bills and white plastic spoons.

Angela Przech, a forensic science examiner, later compared a sample of the defendant's DNA to two DNA swabs from the handgun, one of which included a sample from the trigger. With respect to the trigger DNA sample, Przech determined through testing that there was a DNA mixture of four contributors, with at least two contributors being male, and that it was at least 100 billion times more likely for this profile to occur if it originated from the defendant and the three unknown individuals than if it had originated from four unknown individuals. In regard to the second swab of the handgun, Przech concluded that there was a mixture of three contributors, with at least two being male, and that it was 100 billion times more likely for this profile to occur if it originated from the defendant and two unknown individuals than if it had originated from three unknown individuals.

Finally, George Shelton, a latent print examiner, examined fingerprints lifted from the handgun's magazine. On the basis of his examination, Shelton opined that the latent print lifted from the magazine and the known print from the defendant matched.

The defendant was charged with possession of narcotics with intent to sell in violation of § 21a-278 (b), criminal possession of a pistol in violation of § 53a-217c (a) (1), and carrying a pistol without a permit in violation of § 29-35. Following a trial, the jury found the defendant guilty of all charges. Prior to sentencing, the court considered and denied the defendant's written motion for judgment of acquittal on each of the charges. The court thereafter sentenced the defendant to six years of imprisonment, five years being a mandatory minimum, on the conviction of possession of narcotics with intent to sell; three years of imprisonment, two years being a mandatory minimum, on the conviction of criminal possession of a pistol; and a mandatory minimum sentence of one year of imprisonment on the conviction of carrying a pistol without a permit to be served concurrently with the other sentences, for a total effective sentence of nine years. The defendant appealed.

I

The defendant first claims that there was insufficient evidence to convict him of criminal possession of a pistol. More specifically, the defendant argues that the state was required, and failed, to establish that he constructively possessed the firearm at issue. For the reasons set forth herein, we disagree with the defendant's argument.

The standard of review for this type of claim is well known. "A defendant who asserts an insufficiency of the evidence claim bears an arduous burden."

State v. Hopkins , 62 Conn. App. 665, 669–70, 772 A.2d 657 (2001). In examining 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt .... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Grasso , 189 Conn. App. 186, 200–201, 207 A.3d 33, cert. denied, 331 Conn. 928, 207 A.3d 519 (2019).

As our Supreme Court has 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." (Internal quotation marks omitted.) State v. Robert S. , 179 Conn. App. 831, 835, 181 A.3d 568, cert. denied, 328 Conn. 933, 183 A.3d 1174 (2018), quoting State v. Fagan , 280 Conn. 69, 80, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). 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 [that] establishes guilt in a case involving substantial circumstantial evidence." (Internal quotation marks omitted.) State v. Seeley , 326 Conn. 65, 73, 161 A.3d 1278 (2017).

"It is within the province of the jury to draw reasonable and logical inferences from the facts proven. ... The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. ... Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable." (Internal quotation marks omitted.) State v. Bradley , 60 Conn. App. 534, 540, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). "The trier [of fact] may draw whatever inferences from the...