State v. Soto

• Citation: 175 Conn.App. 739,168 A.3d 605
• Decision Date: 22 August 2017
• Docket Number: (AC 38612).
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Luis Xavier SOTO

175 Conn.App. 739

168 A.3d 605

STATE of Connecticut

v.Luis Xavier SOTO

(AC 38612).

Appellate Court of Connecticut.

Argued April 19, 2017

Officially released August 22, 2017

W. Theodore Koch III, Lyme, assigned counsel, for the appellant (defendant).

Linda F. Currie–Zeffiro, assistant state's attorney, with whom, on the brief, were Jonathan M. Sousa, former special deputy assistant state's attorney, John C. Smriga, Bridgeport, state's attorney, and Nicholas J. Bove, Jr., Stamford, senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Mullins, Js.

MULLINS, J.

The defendant, Luis Xavier Soto, appeals from the judgment of conviction rendered after a jury trial of one count of criminal possession of a pistol in violation of General Statutes § 53a–217c (a) (1) and one count of risk of injury to a child in violation of General Statutes § 53–21 (a) (1). The defendant's sole claim on appeal is that this court should remand the case for a new trial because the jury's verdict was against the weight of the evidence. We decline to review the defendant's claim because it is unpreserved and not entitled to review under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989). Accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 11, 2014, at approximately 5 a.m., police officers with the Statewide Urban Violence Cooperative Crime Control Task Force (task force) executed a search warrant on the second floor apartment at 217 Hough Avenue in Bridgeport. The task force had obtained the warrant on the basis of a confidential informant's tip that Francisco Pineiro, the defendant's cousin, was in possession of a black semiautomatic handgun. When the task force officers applied for the warrant, they believed that, in addition to Pineiro, Christina Jimenez and her two children resided at the apartment.

Upon entering the apartment, task force officers encountered Pineiro, Jimenez, two children aged ten and five, and the defendant. Some of the task force officers detained the apartment's occupants in the kitchen while other officers searched the apartment. The apartment had three bedrooms, one of which eventually was determined to be the defendant's. In the closet of that bedroom, Detective David Edwards found a leather backpack containing a bag of cocaine, three loose .40 caliber rounds, and a semiautomatic pistol that was fully loaded with twelve rounds. The task force officers eventually determined that the pistol had been stolen several years earlier. Edwards also found the defendant's state identification card on a television stand in that bedroom and some clothes hanging in the bedroom closet.

While being detained in the kitchen, the defendant became aware that task force officers found a pistol in the bedroom. At that point, Officer Ilidio Pereira, who was detaining the apartment's occupants in the kitchen, overheard the defendant ask Pineiro in Spanish, "quién va a tomar," which means "who's going to take it."

After recovering the pistol, Edwards questioned Pineiro, Jimenez, and the defendant about the pistol. Both Pineiro and Jimenez denied possession and knowledge of the pistol. Additionally, Jimenez was "genuinely concerned and shocked" about the pistol's presence in the apartment and "placed the blame" on the defendant for the pistol. The defendant, who was a convicted felon, stated that the pistol was not his, that he had never seen it before, and that he did not know to whom it belonged. The defendant did indicate, however, that he was staying in that bedroom, that the clothes hanging in the closet belonged to him, and that he had been "in and out of the closet multiple times."

As a result of the search and questioning of the apartment's occupants, task force officers arrested the defendant on several gun and drug offenses. The state charged the defendant with stealing a firearm in violation of General Statutes § 53a–212 (a), criminal possession of a pistol in violation of § 53a–217c (a) (1), possession of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a–279 (b), and risk of injury to a child in violation of § 53–21 (a) (1). The defendant elected a jury trial.

At trial, the state sought to establish that the defendant constructively possessed the pistol, ammunition, and cocaine seized from Pineiro's apartment. Specifically, it sought to link the defendant to those items with statements he had made to Pineiro and to task force officers at Pineiro's apartment. The defendant's statements were introduced through the testimony of several task force officers who had participated in executing the warrant at Pineiro's apartment. In particular, those officers testified that the defendant asked Pineiro "who's going to take it" in reference to the pistol, that he indicated that he was staying in the bedroom in which the items were found, that he stated that the clothes hanging in the closet belonged to him, and that he admitted that he had been "in and out of the closet multiple times."

In an effort to refute the officers' testimony with his own version of the events as to what had transpired at Pineiro's apartment, the defendant testified on his own behalf. The defendant's decision to do so rendered this case, in large part, a credibility contest between the defendant and the task force officers. The thrust of the defendant's testimony was a blanket denial of the inculpatory statements the task force officers alleged he had made, including his asking Pineiro "who's going to take it" with respect to the pistol that the officers had discovered.

Furthermore, the defendant denied that the officers asked him whether he had been staying in the bedroom in which the pistol was found, whether the backpack in which the pistol was stored belonged to him, whether the cocaine stored in the backpack belonged to him, and whether the clothes in the bedroom belonged to him. According to the defendant, the only question the officers asked him was if the gun belonged to him. The defendant testified that, in response to that question, he stated "that's not my gun, I never saw it."

The jury found the defendant guilty of criminal possession of a pistol and risk of injury to a child, but not guilty of stealing a firearm and possession of a controlled substance within 1500 feet of a school. After the jury returned its verdict, the defendant did not file any postverdict motions challenging the verdict, such as a motion for a judgment of acquittal,¹ a motion to set aside the verdict, or a motion for a new trial. The court sentenced the defendant to twelve years incarceration, two years of which were mandatory. This appeal followed.

The defendant's sole claim on appeal is that this court should order a new trial because the jury's verdict was against the weight of the evidence presented at trial. He argues that the "[s]tate's case against [him] was inherently weak." Specifically, the defendant contends that the evidentiary basis supporting the state's theory of constructive possession was a "paltry foundation" because it essentially consisted of a single piece of evidence—proof that the defendant had asked Pineiro "who's going to take it" in reference to the pistol found by police. At trial, the state had asked the jury to infer from the defendant's asking of that question that he knew about the pistol's presence and incriminating nature.

The defendant argues that he undermined this "paltry [evidentiary] foundation" by denying, during his testimony at trial, that he asked Pineiro "who's going to take it." Furthermore, even if the jury believed that the defendant asked Pineiro that question, the defendant contends that the question is not necessarily inculpatory in nature. Thus, according to the defendant, "to have a conviction rest on the foundation of four words ... [testified to] by a police officer and denied by a defendant creates too great a risk of wrongful conviction."

The defendant also acknowledges that his failure to move to set aside the verdict and for a new trial raises an issue as to whether his claim is preserved and reviewable. The defendant argues, nevertheless, that his claim is preserved because he filed a motion for a judgment of acquittal at the close of the state's case-in-chief. He further argues in the alternative that even if his claim is unpreserved, Golding review is appropriate.

The state's principal response is that the defendant's claim is unpreserved and unreviewable because "the defendant never moved to set aside the jury's verdict." In particular, it argues that a reviewing court cannot consider an unpreserved weight of the evidence claim because it has not had, like the trial court, "the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence." (Internal quotation marks omitted.) Furthermore, the state contends that the defendant is not entitled to Golding review because the record is inadequate to review his claim in the absence of any findings by the trial court.² Because we agree with the state that the defendant's claim is unpreserved and not entitled to Golding review, we decline to review it.

We begin our analysis of the defendant's claim with a review of the legal principles governing claims challenging a verdict as against the weight of the evidence. At the outset, we note that a challenge to the weight of the evidence is not the same as a challenge to the sufficiency of the evidence. A sufficiency claim "dispute[s] that the state presented sufficient evidence, if found credible by the jury, to sustain [the defendant's] conviction." State v. Hammond , 221 Conn. 264, 267, 604 A.2d 793 (1992), overruled on other grounds by State v. Ortiz , 280 Conn. 686, 720 n.19 and 722 n.22, 911 A.2d 1055 (2006). In contrast, a weight claim "does not contend that the state's evidence ... was insufficient, as a matter of...