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State v. Covington

Court of Appeals of Connecticut

August 21, 2018

STATE OF CONNECTICUT
v.
JEFFREY COVINGTON

          Argued March 21, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of murder, assault in the first degree, carrying a pistol without a permit and criminal possession of a firearm, brought to the Superior Court in the judicial district of New Haven, where the charges of murder, assault in the first degree and carrying a pistol without a permit were tried to the jury before Alander, J.; verdict of guilty of carrying a pistol without a permit; thereafter, the court declared a mistrial as to the charges of murder and assault in the first degree; subsequently, the defendant was tried to the court on the charge of criminal possession of a firearm; judgment of guilty of carrying a pistol without a permit and criminal possession of a firearm, from which the defendant appealed to this court. Affirmed.

          Naomi T. Fetterman, assigned counsel, for the appellant (defendant).

          Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and John P. Doyle, Jr., and Seth Garbarsky, senior assistant state's attorneys, for the appellee (state).

          Alvord, Keller and Bright, Js.

          OPINION

          KELLER, J.

         The defendant, Jeffrey Covington, appeals from the judgment of conviction, rendered following a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35, and the judgment of conviction, rendered following a court trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1).[1] The defendant claims that (1) this court should vacate his conviction of carrying a pistol without a permit because the evidence was insufficient to support his conviction for that offense; (2) this court should vacate his conviction of criminal possession of a firearm because, in finding guilt with respect to that offense, the court impermissibly contravened the jury's ‘‘verdict'' with respect to murder and assault counts with which he also had been charged, thereby violating his right to a trial by jury and his right to a fair trial; and (3) this court should afford him a new sentencing hearing because, at the time of sentencing, the trial court impermissibly relied on facts that contravened the jury's ‘‘verdict'' with respect to the murder and assault charges. We affirm the judgment of the trial court.

         The state presented evidence of the following facts. At or about 8 p.m., on March 24, 2014, the defendant was operating an automobile that was owned by his friend, Derek Robinson. When the defendant drove Robinson's automobile away from the intersection of Whalley Avenue and the Ella T. Grasso Boulevard in New Haven, Robinson was in the passenger's seat. A short time later, at approximately 8:50 p.m., Robinson's automobile was parked along Shelton Avenuein New Haven, near the intersection of Shelton Avenue and Ivy Street. At that time, the victims, Trayvon Washington and Taijhon Washington, were walking home from a friend's house. They walked past Robinson's automobile while someone was getting into it. The victims continued walking from Shelton Avenue to Butler Street. Approximately two minutes after they had passed the automobile, as they were walking along Butler Street in the vicinity of the Lincoln-Bassett School, the automobile approached them at a high rate of speed. Taijhon Washington, who was walking just behind his half brother, Trayvon Washington, stated, ‘‘watch out, bro.'' Then, several gunshots emanated from the automobile. Taijhon Washington suffered fatal gunshot injuries to his chest. Trayvon Washington was shot in the head, resulting in a fractured skull. Although he survived the shooting, he endured extensive medical treatment, and a bullet from that incident remained lodged in his head at the time of trial.

         Following the shooting, the defendant drove to the residence of his girlfriend's family on Poplar Street in New Haven. He was accompanied by Robinson. The defendant's girlfriend along with some of her family members, including her sister, Dajah Crenshaw, were present at the residence. The defendant arrived shortly before the shootings were reported on the evening news.[2] When the defendant entered the residence, he was holding the keys to Robinson's automobile. Crenshaw observed Robinson remove a handgun from his waistband and hand it to the defendant. Thereafter, the defendant concealed the handgun in a dresser in his girlfriend's bedroom.

         The following day, Crenshaw overheard the defendant having a telephone conversation with Robinson's brother. During the conversation the defendant referred to a gun, and he asked Robinson's brother if he had buried it. In the days that followed, the defendant made various statements that reflected his involvement in and responsibility for the shooting.[3] Significantly, the defendant admitted to a longtime acquaintance, Margaret Flynn, that he happened to catch Taijhon Washington off guard and had killed him. The defendant elaborated, stating that the shooting occurred while he was in Robinson's automobile, but that Robinson was not involved and was unaware that the shooting was going to happen. Moreover, the defendant told Flynn that he retaliated against Taijhon Washington because, in February, relatives of Taijhon Washington assaulted him. Additional facts will be set forth, as necessary.

         I

         First, the defendant claims that this court should vacate his conviction of carrying a pistol without a permit because the evidence was insufficient to support his conviction for that offense. We disagree.

         We begin our analysis of the defendant's claim by setting forth the principles that guide us when we consider claims of insufficient evidence. ‘‘The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

         ‘‘We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] 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, 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. . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

         ‘‘Finally, [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 [finder of fact], 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 [finder of fact's] verdict of guilty.'' (Citations omitted; internal quotation marks omitted.) State v. Campbell, 328 Conn. 444, 503-505, 180 A.3d 882 (2018).

         Next, we examine the essential elements of the offense. Section 29-35 (a) provides in relevant part: ‘‘No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .'' ‘‘[T]o obtain a conviction for carrying a pistol without a permit, the state was required to prove beyond a reasonable doubt that the defendant (1) carried a pistol, (2) for which he lacked a permit, (3) while outside his dwelling house or place of business.'' State v. Douglas, 126 Conn.App. 192, 209, 11 A.3d 699, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011); see also State v. Tinsley, 181 Conn. 388, 403, 435 A.2d 1002 (1980) (explaining essential elements of § 29-35), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981).

         ‘‘This court has explained that carrying and possession are different concepts. . . . While a person can possess an item without carrying it on his person, § 29-35 is designed to prohibit the carrying of a pistol without a permit and not the [mere] possession of one. . . . Accordingly, constructive possession of a pistol or revolver will not suffice to support a conviction under § 29-35. . . . Instead, to establish that a defendant carried a pistol or revolver, the state must prove beyond a reasonable doubt that he bore a pistol or revolver upon his person . . . while exercising control or dominion of it. . . . Because there is no temporal requirement in § 29-35 . . . and no requirement that the pistol or revolver be moved from one place to another to prove that it was carried . . . a defendant can be shown to have carried a pistol or revolver upon his person, within the meaning of the statute, by evidence proving, inter alia, that he grasped or held it in his hands, arms or clothing or otherwise bore it upon his body for any period of time while maintaining dominion or control over it.'' (Citations omitted; internal quotation marks omitted.) State v. Crespo, 145 Conn.App. 547, 573-74, 76 A.3d 664 (2013), aff'd, 317 Conn. 1, 115 A.3d 447 (2015).

         ‘‘The term ‘pistol' and the term ‘revolver', as used in sections 29-28 to 29-38, inclusive, mean any firearm having a barrel less than twelve inches in length.'' General Statutes § 29-27. In cases in which a violation of § 29-35 is charged, ‘‘the length of the barrel is . . . an element of [the] crime and must be proven beyond a reasonable doubt.'' State v. Hamilton, 30 Conn.App. 68, 73, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994); see also State v. Fleming, 111 Conn.App. 337, 346-47, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009). We observe, however, that, like the other essential elements of the offense, the length of the barrel of a pistol or revolver may be proven by circumstantial, rather than direct, evidence. ‘‘Direct numerical evidence is not required to establish the length of the barrel of a handgun in question.'' State v. Miles, 97 Conn.App. 236, 242, 903 A.2d 675 (2006).

         In challenging the sufficiency of the evidence, the defendant argues that the state failed to present evidence from which the jury could have found that he possessed a pistol, as defined in § 29-27, at the time and place of the alleged shooting. In a long form information, the state alleged that the defendant committed this offense at or about 8:50 p.m., on March 24, 2014, in the area of Lilac and Butler Streets in New Haven. Moreover, with respect to the essential elements of the offense, the court instructed the jury with respect to the specific time and place the state alleged that the crime was committed and that, to convict the defendant, the state bore the burden of proving beyond a reasonable doubt, inter alia, that he carried the pistol when he was not within his dwelling or place of business. The court stated that the state bore the burden of proving that he ‘‘possessed the pistol or revolver upon his person in a public place.''

         In arguing that the evidence was insufficient to convict him of carrying a pistol without a permit, the defendant relies on the undisputed fact that the state did not introduce into evidence what it believed to be the gun used in the shooting. He argues that the evidence that Robinson handed him a pistol or a revolver while he was at Crenshaw's residence shortly after the alleged shooting was insufficient to convict him of the offense. Moreover, the defendant argues, the state did not present any evidence from which the jury reasonably could have found that the barrel of the gun that he allegedly used in the shooting was less than twelve inches in length.

         The defendant argues that, to the extent that the state relies on evidence that he was the shooter, it failed to present evidence to demonstrate that he was, in fact, the shooter. The defendant argues that there was ‘‘[a] lack of objective evidence . . . to independently support the conviction, '' and he supports this argument primarily by his belief that, ‘‘[i]n this case, the jury's verdict with respect to the murder and assault charges was ‘not guilty.' '' The defendant argues that ‘‘the jury's acquittal on the ...


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