State v. Webster, 18787.

• Decision Date: 26 February 2013
• Docket Number: No. 18787.,18787.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth WEBSTER.

308 Conn. 43

60 A.3d 259

STATE of Connecticut

v.Kenneth WEBSTER.

No. 18787.

Supreme Court of Connecticut.

Argued Nov. 1, 2012.

Decided Feb. 26, 2013.

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Devin T. Stilson, supervisory assistant state's attorney, for the appellant (state).

Richard S. Cramer, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, ZARELLA, BEACH and ROBINSON, Js.

NORCOTT, J.

The principal issue in this certified appeal is whether criminal liability under General Statutes § 21a–278a (b),¹ which prohibits, inter alia, the sale of narcotics within 1500 feet of a school, attaches when a drug transaction begins within 1500 feet of a school, but culminates elsewhere. The state appeals, following our grant of certification, ² from the judgment of the Appellate Court reversing the conviction of the defendant, Kenneth Webster, of sale of narcotics within 1500 feet of a school in violation of § 21a–278a (b). State v. Webster, 127 Conn.App. 264, 267, 13 A.3d 696 (2011). On appeal, the state claims that: (1) the Appellate Court construed the statutory definition of sale of a controlled substance under General Statutes § 21a–240 (50)³ too narrowly when it concluded that the state had failed to present sufficient evidence to support the defendant's conviction; and (2) if this court determines, under a broader definition of a sale of narcotics, that there was sufficient evidence to support the defendant's conviction for the sale of narcotics within 1500 feet of a school, the defendant has waived his claim that the trial court improperly instructed the jury regarding the intent element of that offense. We agree with the state in both respects and, therefore, reverse the judgment of the Appellate Court.

The record and the Appellate Court opinion reveal the following facts, which the jury reasonably could have found, and procedural history. On June 1, 2007, Jeanne Pereira telephoned the defendant seeking to purchase $80 worth of crack cocaine. Id., at 267, 13 A.3d 696. Pereira had purchased illegal drugs from the defendant on a number of occasions in the past and, in accordance with the defendant's preferred transaction process, arranged to meet him that evening on Prospect Street in Torrington, behind St. Francis School,⁴ to complete the transaction. Id., at 272 n. 3, 13 A.3d 696. The defendant drove his vehicle to meet Pereira at the agreed upon location at approximately 8 p.m. Id., at 267, 13 A.3d 696. When he arrived, Pereira approached the defendant's vehicle and saw that he had a quantity of crack cocaine in his hand. Id., at 272 n. 3, 13 A.3d 696. The defendant invited Pereira into his vehicle and then drove around the block with her, following a route that, for a brief time, took the vehicle beyond 1500 feet of the school. Id., at 267, 273, 13 A.3d 696. At some point while the defendant was driving, he gave Pereira two small bags and several loose pieces of crack cocaine in exchange for the $80 that she had brought with her. Id., at 267, 13 A.3d 696. Thereafter, the defendant returned to the original location behind the school, Pereira exited the vehicle and the defendant drove away. Id.

Shortly after Pereira exited the defendant's vehicle, she was stopped by Steve Rousseau and Thomas Rouleau, both sergeants with the Torrington police department, who, while conducting surveillance in the area, had observed some of Pereira's activities with the defendant. Id., at 268, 13 A.3d 696. After she exited the defendant's vehicle, the officers approached Pereira, at which time she dropped the two small bags and the several loose pieces of crack cocaine and voluntarily admitted to the officers that she had obtained the drugs from the defendant. Id. The officers then arrested Pereira and recovered the crack cocaine.⁵Id. Thereafter, Rousseau and Rouleau proceeded to the defendant's residence, where, after a brief foot chase, they arrested him. Id. The officers recovered several bags of crack cocaine with a street value of approximately $450, which were packaged in a manner similar to the drugs recovered from Pereira and were dropped or discarded by the defendant during the foot chase, and $407, which the defendant had in his possession at the time of his arrest. Id.

On the basis of the foregoing evidence, a jury found the defendant guilty of, inter alia,⁶ sale of narcotics within 1500 feet of a school in violation of § 21a–278a (b). Id., at 266, 13 A.3d 696. The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of twenty-three years imprisonment, suspended after nine years, followed by five years of probation and noted that there was a five year mandatory minimum sentence.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming, inter alia,⁷ that: (1) the evidence did not support his conviction for sale of narcotics within 1500 feet of a school in violation of § 21a–278a (b) because a portion of the route that he had traveled while driving with Pereira was beyond 1500 feet of the school and the state had conceded that it could not prove exactly where the actual, physical transfer of drugs had occurred; and (2) the trial court improperly instructed the jury as to the intent element of the crime of sale of narcotics within 1500 feet of a school. Id., at 266–67, 13 A.3d 696. The Appellate Court agreed that the evidence was insufficient to support the defendant's conviction for the sale of narcotics within 1500 feet of a school because the statute required the state to prove that the defendant had effected a delivery-an actual, constructive or attempted transfer-of crack cocaine to Pereira within 1500 feet of St. Francis School, and the state had failed to prove that the physical transfer occurred within that 1500 foot zone. Id., at 276, 13 A.3d 696. Accordingly, the Appellate Court reversed the judgment of conviction rendered by the trial court as to the count of sale of narcotics within 1500 feet of a school.⁸Id., at 293, 13 A.3d 696. This certified appeal followed. See footnote 2 of this opinion. Additional facts will be set forth as necessary.

I

The state first claims that the Appellate Court construed the definition of a sale too narrowly when it concluded that the state had failed to present sufficient evidence to support the defendant's conviction for sale of narcotics within 1500 feet of a school. Specifically, the state argues that, consistent with the legislature's intent to keep drug dealers—along with the danger and violence that pervades their activities—away from children, the statutory definition of sale within the context of drug transactions is much broader than its common definition, and includes even mere offers and attempts to transfer drugs. Thus, the state argues that it was not required to prove that the actual transfer occurred within 1500 feet of the school. In response, the defendant argues that the Appellate Court properly determined that the unambiguous language of the relevant statutes limits criminal liability to an actual delivery or exchange within the 1500 foot zone, and does not impose liability for conduct at locations associated with a continuous course of conduct that begins within 1500 feet of a school but culminates in a physical transfer of drugs outside the 1500 foot zone. The defendant further argues that the state improperly raised its argument that an offer to sell constitutes a prohibited sale for the first time on appeal to the Appellate Court and that, even if this court were to consider the state's argument, there is insufficient evidence to establish that he, in fact, made an offer to sell narcotics within the meaning of the statute. We agree with the state, and conclude that the plain language of the relevant statutes does not limit criminal liability to an actual, physical transfer of narcotics within 1500 feet of a school, but rather, also imposes criminal liability for offers and attempts to sell narcotics within the 1500 foot zone.

Generally, “[i]n 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.” (Internal quotation marks omitted.) State v. Ward, 306 Conn. 698, 714–15, 52 A.3d 591 (2012). When, as in the present case, the claim of insufficient evidence turns on the appropriate interpretation of a statute, however, our review is plenary. See, e.g., Ugrin v. Cheshire, 307 Conn. 364, 379, 54 A.3d 532 (2012) (“[i]ssues of statutory construction raise questions of law, over which we exercise plenary review” [internal quotation marks omitted] ).

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case.... In seeking to determine that meaning ... [General Statutes] § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment,...