State v. Mahon

• Decision Date: 11 May 1999
• Docket Number: (AC 18055)
• Citation: 729 A.2d 242,53 Conn. App. 231
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ABKNELL MAHON

53 Conn. App. 231

729 A.2d 242

STATE OF CONNECTICUT v. ABKNELL MAHON

(AC 18055)

Appellate Court of Connecticut.

Argued February 16, 1999.

Officially released May 11, 1999.

Foti, Spear and Hennessy, Js. John T. Walkley, special public defender, for the appellant (defendant).

Peter A. McShane, assistant state's attorney, with whom, on the brief, was Kevin T. Kane, state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, Abknell Mahon, appeals from the judgment of conviction, rendered after a jury trial, of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b),¹ conspiracy to sell a narcotic substance by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b), and possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b).² On appeal, the defendant claims that the trial court failed to instruct the jury on an essential element of the charge of sale of a narcotic substance by a person who is not drug-dependent in violation of § 21a-278 (b). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 10, 1998, Detective Carl Caler of the Willimantic police department was assigned to work undercover for the statewide narcotics task force. The target area on that date was the Greenville section of Norwich. Caler proceeded by motor vehicle to Norwich where he met with Bryant Downs and attempted to purchase crack cocaine from him. Downs, however, did not have the narcotics on his person and entered Caler's vehicle and directed him to the basketball courts on Prospect Street, which are approximately 1390 feet from the Greenville Elementary School.

Downs then exited the car, approached the basketball courts and said to the defendant, who was standing there, "Yo, Abe, give me two." The defendant then handed Downs two small packages, which Downs then sold to Caler after a third party vouched for him, confirming that Caler was not a police officer. The two packages purchased contained cocaine.

The defendant's sole claim on appeal is that the trial court improperly charged the jury on the sale of narcotics count by failing to charge that the state was required to prove beyond a reasonable doubt that the defendant knew that the substance that he handed to Downs, which Downs then sold to Caler, was cocaine. Because the defendant neither requested such a charge nor took exception to the charge as given, he has requested review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine pursuant to Practice Book § 60-5.

"It is ... constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged." (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). A claim that the trial court failed to instruct the jury adequately on an essential element of the crime charged necessarily involves the defendant's due process rights and implicates the fairness of his trial. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989). We will, therefore, review this claim.

The trial court instructed the jury as to the first count of sale of a narcotic substance by explaining that there "are two elements of this crime, each of which must be proven by the state by proof beyond a reasonable doubt. The first element is, one, the defendant sold a substance; two, the substance was cocaine." The trial court then instructed the jury as to the third count charged, possession of a controlled substance with intent to sell within fifteen hundred feet of a school, as follows: "There are five elements. Each of the five elements must be proved by proof beyond a reasonable doubt in order for you to find the defendant guilty. The five elements are [one] the defendant had possession of a substance; two, the substance was cocaine; three, the defendant knew it was cocaine; four, he possessed it with the intent to sell it; and five, the possession with intent to sell occurred within 1500 feet of a school." The defendant concedes that knowledge is not an expressed statutory element of the crime of sale of narcotics but submits that, impliedly, knowledge must be included as an essential element in the trial court's charge to the jury.

The defendant relies on a number of cases in support of his claim, including State v. Delossantos, 211 Conn. 258, 277, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), State v. Goodrum, 39 Conn. App. 526, 532, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995), and State v. Johnson, 26 Conn. App. 779, 784, 603 A.2d 440, cert. denied, 221 Conn. 925, 608 A.2d 690 (1992). Those cases, however, deal with the crime of possession of a narcotic substance with the intent to sell, which includes the element of knowledge. See State v. Delossantos, supra, 277 (to prove illegal possession of narcotic substance, it is necessary to establish that defendant knew character of substance).

A person may possess narcotics without intending to sell them, or possess narcotics legally and sell them illegally, or sell narcotics without possessing them, making the crimes different offenses. State v. Devino, 195 Conn. 70, 75, 485 A.2d 1302 (1985). "The offense of possession of a narcotic substance with intent to sell requires proof that the defendant possessed a narcotic substance. There is...