State v. Padua

Decision Date05 November 2002
Citation73 Conn. App. 386,808 A.2d 361
CourtConnecticut Court of Appeals
PartiesSTATE OF CONNECTICUT v. BETHZAIDA PADUA. STATE OF CONNECTICUT v. WILFREDO CALVENTE. STATE OF CONNECTICUT v. MIRANDA VIRGILIA CALVENTE.

Foti, Flynn and McDonald, Js. Richard W. Callahan, special public defender, for the appellant (defendant in the first case).

Sol E. Mahoney, special public defender, for the appellant (defendant in the second case).

Moira L. Buckley, deputy assistant public defender, for the appellant (defendant in the third case).

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, Mark A. Stabile, supervisory assistant state's attorney, and Vincent J. Dooley and Roger Caridad, senior assistant state's attorneys, for the appellee (state).

Opinion

FLYNN, J.

The defendants, Bethzaida Padua, Wilfredo Calvente and Miranda Virgilia Calvente, were each convicted after a joint trial before a jury following the search and seizure by the police of marijuana and other items under authority of a warrant executed in an apartment in a Willimantic public housing project. We affirm in part, and reverse in part, the judgments of the trial court.

The defendant Padua appeals from the judgment of conviction of (1) possession of a controlled substance with the intent to sell in violation of General Statutes § 21a-277 (b), (2) possession of a controlled substance with intent to sell within 1500 feet of a public housing project in violation of General Statutes §§ 21a-277 (b) and 21a-278a (b), (3) conspiracy to sell a controlled substance in violation of General Statutes §§ 53a-48 and 21a-277 (b), (4) conspiracy to sell a controlled substance within 1500 feet of a public housing project in violation of §§ 53a-48, 21a-277 (b) and 21a-278a (b), and (5) two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21. The defendant Padua was acquitted of possession of more than four ounces of marijuana in violation of General Statutes §§ 53a-8 and 21a-279 (b).

The defendant Wilfredo Calvente appeals from the judgment of conviction of (1) possession of a controlled substance with intent to sell in violation of § 21a-279 (b), (2) possession of more than four ounces of marijuana in violation of § 21a-279 (b), (3) possession of a controlled substance with intent to sell within 1500 feet of a public housing project in violation of §§ 21a-277 (b) and 21a-278a (b), (4) conspiracy to sell a controlled substance in violation of §§ 53a-48 and 21a-277 (b), (5) conspiracy to sell a controlled substance within 1500 feet of a public housing project in violation of §§ 53a-48, 21a-277 (b) and 21a-278a (b), and (6) two counts of risk of injury to a child in violation of § 53-21.

The defendant Miranda Calvente appeals from the judgment of conviction of (1) possession of a controlled substance with intent to sell in violation of § 21a-277 (b), (2) possession of a controlled substance with intent to sell within 1500 feet of a public housing project in violation of §§ 21a-277 (b) and 21a-278a (b), (3) conspiracy to sell a controlled substance in violation of §§ 53a-48 and 21a-277 (b), (4) conspiracy to sell a controlled substance within 1500 feet of a public housing project in violation of §§ 53a-48, 21a-277 (b) and 21a-278a (b), and (5) two counts of risk of injury to a child in violation of § 53-21. The defendant Miranda Calvente was acquitted of possession of more than four ounces of marijuana in violation of §§ 53a-8 and 21a-279 (b).

The jury could have reasonably found the following facts. In 1999, the Willimantic police department was investigating marijuana trafficking at 171 Cameo Drive, an apartment in the Village Heights Apartments, a federally subsidized multifamily housing project. The police, with the assistance of a confidential informant, effectuated "controlled buys" of marijuana from 171 Cameo Drive. Before each buy, the police met with the informant, searched his vehicle for money, narcotics and weapons, and provided him with prerecorded money with which to purchase the marijuana. During one of the buys, the police followed the informant to the apartment and observed him go to the door and make a purchase. The next day, the police executed a search warrant for 171 Cameo Drive. Upon entering the apartment, the police observed marijuana on the kitchen table in the process of being packaged for sale. The police also found marijuana in different locations throughout the apartment totaling 10.41 ounces and a large amount of money in the purse of the defendant Miranda Calvente. The defendants were all present in the apartment as well as the defendant Padua's two children, ages seven and three. The children were found in the kitchen where marijuana was being packaged on the table near some cereal boxes, and some marijuana was seen on the floor under the table. Both Miranda Calvente and Padua were with the children in the kitchen, and Wilfredo Calvente was apprehended as he was attempting to leave the apartment through the kitchen. Additional facts will be set forth as necessary.

I

The defendants each claim that the state failed to present sufficient evidence to support their convictions on the counts of risk of injury to a child. They claim that the state failed to present expert testimony to establish that being near marijuana can be injurious to the health of a child and failed to present sufficient evidence that the children had access to marijuana. We agree that the evidence was insufficient for the reasons that follow.

The defendants concede that this claim is unpreserved and seek review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).1 "Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim." (Citations omitted; internal quotation marks omitted.) State v. Trotter, 69 Conn. App. 1, 4, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002).

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In this 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.) Id., 5.

The state charged each defendant with two counts of risk of injury to a child because two children, ages seven and three, were "placed in a situation where [their] health was likely to be impaired, to wit, by allowing said [children] to be near and have access to large quantities of marijuana in violation of General Statutes [Rev. to 1999] § 53-21 (1)."2 It is important to note here that the state chose to charge the defendants in this case not with endangering the morals of a child but with placing each child in a situation likely to endanger the health of a child, although that statute would have permitted the state to have selected either likelihood as constituting the violation. See General Statutes (Rev. to 1999) § 53-21 (1). In this case, there was no evidence presented that the children were given marijuana to smoke, or that they were given matches, lighters or other devices with which to ignite the marijuana, or that they knew how to smoke the marijuana. Rather, the state contends on appeal that the children could have eaten the marijuana that was present in the apartment. Although exposing a child, old enough to appreciate what was transpiring, to selling marijuana might be considered as endangering the morals of that child, the state chose to charge under the health aspect of the statute. Endangerment of health is, therefore, an element of the offense, and some evidence that ingesting marijuana likely would have a deleterious effect on the child is required.

It is well settled that an expert witness may testify if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue. C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.5.3, p. 517. Although expert testimony is permitted in a great many instances, it is required only when the question involved goes beyond the field of ordinary knowledge and experience of judges and jurors. Id., § 7.5.4. "The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on these matters." (Emphasis in original; internal quotation marks omitted.) State v. Green, 62 Conn. App. 217, 253, 774 A.2d 157 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002).

In State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), our Supreme Court stated that "the second part [of § 53-21 (1)], which prohibits acts likely to injure the health or morals of a child, was limited to protecting the bodily integrity of a child. Thus, [t]o have violated the statute... the defendant had to have committed acts directly perpetrated on the person of a [child].... ...

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29 cases
  • State v. Padua, No. 16915
    • United States
    • Supreme Court of Connecticut
    • 29 Marzo 2005
    ...kitchen, and Wilfredo Calvente was apprehended as he was attempting to leave the apartment through the kitchen."4 State v. Padua, 73 Conn.App. 386, 390-91, 808 A.2d 361 (2002). Additional facts will be set forth as The defendants were charged with: (1) possession of marijuana with intent to......
  • State v. Pond, 19074.
    • United States
    • Supreme Court of Connecticut
    • 10 Febrero 2015
    ...apparently resided in the public housing project from which they sold drugs over a matter of months. See State v. Padua, 73 Conn.App. 386, 411–12 n. 6, 808 A.2d 361 (2002), rev'd, 273 Conn. 138, 869 A.2d 192 (2005). The state's theory, then, rests on the rather tenuous assumption that the d......
  • State v. Hampton, 17715.
    • United States
    • Supreme Court of Connecticut
    • 15 Septiembre 2009
    ...of elements between counts, reasonably would have led jury to conclude that element applied to both counts); State v. Padua, 73 Conn.App. 386, 402, 808 A.2d 361 (2002) ("[b]ecause the jury was fully instructed on the sale of a controlled substance in count one, we conclude that it is not re......
  • State v. Padua
    • United States
    • Supreme Court of Connecticut
    • 29 Marzo 2005
    ...kitchen, and Wilfredo Calvente was apprehended as he was attempting to leave the apartment through the kitchen."4 State v. Padua, 73 Conn. App. 386, 390-91, 808 A.2d 361 (2002). Additional facts will be set forth as The defendants were charged with: (1) possession of marijuana with intent t......
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