State v. Padua

• Decision Date: 29 March 2005
• Docket Number: No. 16916., No. 16915
• Citation: 273 Conn. 138,869 A.2d 192
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bethzaida PADUA. State of Connecticut v. Wilfredo Calvente. State of Connecticut v. Miranda Virgilia Calvente.

869 A.2d 192

273 Conn. 138

STATE of Connecticut v. Bethzaida PADUA.

State of Connecticut v. Wilfredo Calvente.

State of Connecticut v. Miranda Virgilia Calvente.

Nos. 16915, 16916.

Supreme Court of Connecticut.

Argued September 3, 2004.

Decided March 29, 2005.

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 Dooley and Roger Caridad, senior assistant state's attorneys, for the appellant in Docket No. SC 16915, appellee in Docket No. SC 16916 (state).

Moira L. Buckley, assistant public defender, for the appellee in SC 16915, appellant in SC 16916 (defendant Miranda Virgilia Calvente).

Richard W. Callahan, special public defender, for the appellee in SC 16915 (defendant Bethzaida Padua).

Sol E. Mahoney, special public defender, for the appellee in SC 16915 (defendant Wilfredo Calvente).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

SULLIVAN, C.J.

This case involves two separate appeals. In the first, the state appeals, upon our grant of certification,¹ from the judgment of the Appellate Court reversing the convictions of the defendants Bethzaida Padua, Wilfredo Calvente and Miranda Virgilia Calvente (Miranda Calvente) of the crimes of conspiracy to sell marijuana within 1500 feet of a public housing project and risk of injury to a child. The state claims that the Appellate Court improperly concluded that: (1) the evidence was insufficient to sustain the defendants' convictions of risk of injury to a child because the state failed to introduce expert testimony to establish that the ingestion of raw marijuana is injurious to a child's physical health and because there was no testimony that the children were unsupervised in the presence of the marijuana; and (2) the defendants' convictions for conspiracy to sell marijuana within 1500 feet of a public housing project must be reversed because of instructional error. We agree with the state on both claims and reverse the judgment of the Appellate Court in each case.² In the second appeal, Miranda Calvente appeals, upon our grant of certification,³ from the judgment of the Appellate Court, claiming that the court improperly declined to review her claim that the evidence was insufficient to convict her of conspiracy to sell marijuana within 1500 feet of public housing project because it already had reversed that conviction because of instructional error. We agree that the Appellate Court improperly declined to review her insufficiency claim, but conclude that the state presented sufficient evidence to support her conviction.

As set forth by the Appellate Court, 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 Height Apartments, a federally subsidized multifamily housing project. The police, with the assistance of a confidential informant, effectuated `control 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 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."⁴ State v. Padua, 73 Conn.App. 386, 390-91, 808 A.2d 361 (2002). Additional facts will be set forth as necessary.

The defendants were charged with: (1) possession of marijuana with intent to sell in violation of General Statutes ?? 53a-8⁵ and 21a-277 (b);⁶ (2) possession of more than four ounces of marijuana in violation of General Statutes ?? 53a-8 and 21a-279 (b);⁷ (3) possession of marijuana with intent to sell within 1500 feet of a public housing project in violation of General Statutes ?? 53a-8, 21a-277 (b) and 21a-278a (b);⁸ (4) conspiracy to sell marijuana in violation of General Statutes ?? 53a-8⁹ and 21a-277 (b); (5) conspiracy to sell marijuana 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 General Statutes (Rev. to 1999) ? 53-21(1).¹⁰ The three defendants were tried jointly before a jury.¹¹ Wilfredo Calvente was found guilty of all charges. Padua and Miranda Calvente were found guilty of all charges except possession of more than four ounces of marijuana.

The defendants appealed from the judgments of conviction to the Appellate Court, which reversed the defendants' convictions of two counts of risk of injury to a child on the ground that there was insufficient evidence and ordered the trial court to render judgments of acquittal on those charges. State v. Padua, supra, 73 Conn.App. at 399, 808 A.2d 361. The Appellate Court also reversed the defendants' convictions of conspiracy to sell marijuana within 1500 feet of a public housing project because of instructional error and remanded the matter to the trial court for a new trial on that charge. Id., at 404, 808 A.2d 361. The Appellate Court declined to address Miranda Calvente's claim that the state had presented insufficient evidence to convict her of conspiracy to sell marijuana within 1500 feet of a public housing project, reasoning that it had already reversed that conviction because of instructional error. Id., at 415 n. 9. These certified appeals followed.

I

We first address the state's appeal. The state claims that the Appellate Court improperly reversed the defendants' convictions under ? 53-21(1) because the state failed to present expert testimony concerning the possible injurious effects of the oral consumption of marijuana and direct testimony concerning the extent of the children's supervision while in close proximity to the marijuana.¹² We agree with the state that neither type of evidence was required.

"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.... 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." (Internal quotation marks omitted.) State v. Garner, 270 Conn. 458, 472, 853 A.2d 478 (2004). "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 jury's factual inferences that support a guilty verdict need only be reasonable." (Internal quotation marks omitted.) Id.

"[A]s 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 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 jury'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.) Id., at 472-73, 853 A.2d 478.

General Statutes (Rev. to 1999) ? 53-21 provides in relevant part that "[a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child ... shall be guilty of a class C felony." (Emphasis added.) "The general purpose of ? 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults." State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997). Our case law has interpreted ? 53-21(1) as comprising two distinct parts and criminalizing "two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare ... and (2) acts directly perpetrated on the person of the minor...