State v. Myers, 26740.

• Decision Date: 15 May 2007
• Docket Number: No. 26740.,26740.
• Citation: 921 A.2d 640,101 Conn.App. 167
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kenneth MYERS.

921 A.2d 640

101 Conn.App. 167

STATE of Connecticut v. Kenneth MYERS.

No. 26740.

Appellate Court of Connecticut.

Argued November 28, 2006.

Decided May 15, 2007.

Alice Osedach, assistant public defender, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Stephen J. Sedensky III, senior assistant state's attorney, for the appellee (state).

BISHOP, DiPENTIMA and BERDON, Js.

BISHOP, J.

The defendant, Kenneth Myers, 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-277(a), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b), and possession of narcotics in violation of General Statutes § 21a-279(a). On appeal, the defendant raises the following claims: (1) the evidence was insufficient to sustain his conviction under § 21a-278a(b); (2) the court improperly instructed the jury as to the elements of § 21a-278a(b); (3) the court improperly convicted and sentenced him as a repeat offender; and (4) the court improperly admitted evidence of prior misconduct. We disagree with claims one, two and four and agree with claim three. Accordingly, we affirm the conviction for the violation of § 21a-277(a) and § 21a-278a(b), but we vacate the imposed sentence and remand the matter for a hearing on the part B information and for sentencing.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our discussion of the issues on appeal. On June 18, 2004, as Susan Curtis was walking to the Super Food Mart (store) located in the North Street Shopping Plaza (plaza) in Danbury to cash a paycheck, she saw the defendant in his car and asked him for a ride. The defendant agreed and brought her to the store where she cashed her check and then returned to the defendant's vehicle.

At approximately 4:40 p.m., while Officer Isaiah Pitts of the Danbury police department was on duty in his marked police vehicle at the plaza, he noticed that the rear license plate of the defendant's vehicle was not properly secured. After checking with the department of motor vehicles and ascertaining that the license plate belonged to another vehicle, Pitts decided to follow the defendant, who had departed from the plaza onto Padanaram Road, driving southbound.¹ Once the defendant had traveled through one traffic light, Pitts activated his vehicle's lights and siren and directed the defendant to drive into the parking lot of a Texaco gasoline station, which was located less than 700 feet from Henry Abbott Technical School.

Before Pitts approached the vehicle, the defendant took a plastic bag out of his pocket and told Curtis to hold onto it for him. Curtis quickly put the bag in her mouth because, she claimed, she "did not know what else to do." Once Pitts arrived, he asked the defendant for his license, registration and insurance card. The defendant provided his license but stated that he had no other documentation. Returning to his vehicle, Pitts ascertained that the defendant's operator's license was suspended. Pitts then returned to the defendant's vehicle, arrested the defendant and placed him in the police vehicle.

After the defendant had been removed from his vehicle, Curtis took the bag from her mouth and placed it into her underwear. She later claimed that she had held onto the bag because she knew the defendant was a drug dealer and because she was afraid of him. Once the defendant had been placed in the police cruiser, a second officer, Ted Zalenski, arrived on the scene. Upon checking Curtis' name through their database, they discovered that she had an outstanding warrant for her arrest for failure to appear relating to a motor vehicle case in 1997. On this basis, Curtis was arrested and placed into Zalenski's vehicle.

Both the defendant and Curtis were then taken to the Danbury police department and placed in separate cells. Curtis asked to speak to Pitts and told him how she had come into possession of a bag of "stuff" in her underwear. Following this conversation, Curtis was searched and the bag was seized. Curtis thereafter gave the police a statement regarding the circumstances that caused her to be present in the defendant's vehicle and in possession of the bag and its contents. Subsequently, the bag was discovered to contain fourteen smaller bags, eleven holding a yellow rock like substance and three containing a white powdery substance. Subsequent laboratory testing confirmed that the various bags contained two controlled substances, crack cocaine and powdered cocaine.

On the basis of the preceding facts, the defendant was charged in a four count information with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (a), possession of narcotics with intent to sell in violation of § 21a-277(a), possession of narcotics with intent to sell within 1500 feet of a school in violation of § 21a-278a(b) and possession of narcotics in violation of § 21a-279(a). On March 23, 2005, after a jury trial, the defendant was found not guilty on the first count and guilty on the remaining counts. On May 25, 2005, the court imposed a total effective sentence of thirty years on the defendant as a subsequent offender, suspended after thirteen years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims² that there was insufficient evidence for the jury to find him guilty of possession of narcotics with intent to sell within 1500 feet of a school in violation of § 21a-278a(b).³ Specifically, the defendant argues that the evidence was inadequate to establish that he possessed narcotics with the intent to sell them while he was within 1500 feet of Henry Abbott Technical School. We are not persuaded.

We begin by setting forth the applicable 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"While ... every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.... Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... As we have 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 [jury], 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 jury's verdict of guilty." (Internal quotation marks omitted.) State v. Williams, 93 Conn.App. 844, 852-53, 890 A.2d 630 (2006).

We begin with the language of § 21a-278a(b), the applicable statute. Our Supreme Court in State v. Denby, 235 Conn. 477, 481, 668 A.2d 682 (1995), found that the meaning of § 21a-278a(b) is clear. The court stated that "[t]he first sentence [of § 21a-278a(b)] provides that if any person who is not drug-dependent violates § 21a-277 or § 21a-278 in one of the ways set forth therein, and does so within [1500] feet of a school, that person will receive an additional three year term of imprisonment. The second sentence of § 21a-278a(b) places an additional limitation on the location requirement: `To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within [1500] feet of, the real property comprising a public or private elementary or secondary school.' This sentence further defines two of the ways previously described—that is, `transporting or possessing a controlled substance' —by adding that they `shall be with intent to sell or dispense in or on, or within' the [1500] foot zone. Therefore, the plain language of § 21a-278a(b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within [1500] feet of a school." Id., at 481-82, 668 A.2d 682.

Accordingly, to prove that the defendant was guilty of § 21a-278a(b), the state was required to prove beyond a reasonable doubt that he possessed narcotics with the intent to "sell" them and that he did so within 1500 feet of Henry Abbott Technical School. The defendant does not challenge the sufficiency of the evidence that he possessed cocaine within 1500 feet of the school. Rather, and as noted previously, his sole argument concerning this claim is that there was insufficient evidence that he possessed the narcotics with the intent to sell them while he was within 1500 feet of Henry Abbott Technical School.

"[T]he question of intent is purely a question of fact.... The state of mind of one accused of a crime is often the...