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State v. Dawson

Court of Appeals of Connecticut

March 19, 2019

STATE OF CONNECTICUT
v.
ANDRE DAWSON

          Argued November 15, 2018

         Procedural History

         Information, in the first case, charging the defendant with the crime of criminal possession of a firearm, and information, in the second case, charging the defendant with the crime of criminal trespass in the third degree, brought to the Superior Court in the judicial district of Stamford-Norwalk, geographical area number twenty, where the cases were consolidated; thereafter, the state filed a substitute information charging the defendant with the crimes of criminal possession of a pistol or revolver and criminal trespass in the third degree; subsequently, the matter was tried to the jury before Hernandez, J.; thereafter, the court denied the defendant's motion for a judgment of acquittal as to the count of criminal possession of a pistol or revolver; verdicts and judgments of guilty, from which the defendant appealed in part to this court. Affirmed.

          Erica A. Barber, assigned counsel, with whom, on the brief, was Allison M. Near, for the appellant (defendant).

          Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Suzanne M. Vieux, supervisory assistant state's attorney, for the appellee (state).

          Lavine, Bright and Harper, Js.

          OPINION

          LAVINE, J.

         The defendant, Andre Dawson, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1).[1] On appeal, the defendant claims that (1) there was insufficient evidence that he was in possession of a pistol or revolver (gun), and (2) he was deprived of a fair trial by the prosecutor's final argument in which the prosecutor allegedly (a) misstated the law of constructive possession and (b) mischaracterized the DNA evidence presented at trial.[2] We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. At approximately 9:35 p.m. on August 10, 2014, Police Officers Kyle Lipeika, Stephen Cowf, and Michael Pugliese (officers) were patrolling Washington Village, a housing complex in Norwalk. The officers were members of the Street Crimes Task Force within the Special Services Division (task force) of the Norwalk Police Department (department).[3] They had entered Washington Village from Day Street and walked through an alley that led to a courtyard between buildings 104 and 304. Lipeika was shining a flashlight in order for people in the courtyard to see the officers approaching. Lipeika and Cowf were wearing uniforms with yellow letters identifying them as police. When the officers entered the courtyard, they saw benches, a picnic table, a cement retaining wall, [4] bushes, a playground, and six individuals.[5]

         The defendant, Kason Sumpter, and Altolane Jackson were seated at the picnic table near a corner formed by the cement walls of a planter. The defendant was seated with his back to the cement wall containing the bushes. See footnote 4 of this opinion. Brian Elmore first walked away from the officers, but turned back and sat at the picnic table.[6] To establish rapport with the individuals sitting at the table, the officers engaged them in conversation. As was their practice, the officers scanned the area for firearms and narcotics that the individuals may have tried to conceal.[7] As Cowf and Pugliese conversed with the individuals at the picnic table, Lipeika stepped onto the wall behind the defendant and immediately saw in plain view a gun lying in the corner by the bushes.

         According to Lipeika, the gun looked like it had been placed there just before he discovered it because the gun was resting on top of leaves, was not covered with dirt or debris, except a twig, and appeared to be free of rust and dust. Jackson and Kason Sumpter were seated closest to the gun, two or three feet away from it. The defendant was seated four to five feet away from the gun. None of the officers who testified had seen the defendant touch the gun.

         When Lipeika discovered the gun, he drew his weapon and ordered the six individuals in the courtyard to show their hands. Pugliese and Cowf detained the individuals and moved them away from the gun. Lipeika radioed for more officers and guarded the gun until the scene was secured. The additional officers photographed the scene and the gun. Then Lipeika put on a new pair of rubber gloves and seized the loaded gun in accordance with department procedures. He removed the ammunition from the gun, a revolver with a two inch barrel, and took the ammunition and the gun to the police station.

         Days later, at Lipeika's request, the defendant, Kason Sumpter, Jackson, and Elmore went to the police station; each of them voluntarily provided a sample of his DNA. None of them claimed that the gun was his. The defendant also provided a written statement in which he stated that he ‘‘walked through Washington Village to Water Street, stopped to talk when officers came through and found a handgun in the bushes in the area [where] I was talking.''

         Jackson, too, provided a written statement and testified at trial that he was in the Washington Village courtyard when the defendant walked through and stopped to talk. He also stated that ten minutes later someone said ‘‘police, '' and everyone looked up. Jackson did not see the defendant with a gun, and he did not see the defendant walk toward the bushes where the gun was found. Jackson confirmed that the gun did not belong to him.

         On August 28, 2014, Arthur Weisgerber, a lieutenant in the department, tested the gun for latent fingerprints but did not find any suitable for identification. Thereafter, he used swabs to collect DNA from the gun and the ammunition that Lipeika had removed from the gun. He placed the swabs in an envelope. In addition, Weisgerber fired the gun and determined that it was operable. The swabs and the DNA samples provided by the defendant, Kason Sumpter, Jackson, and Elmore, were delivered to the state forensics laboratory (laboratory), where Melanie Russell, a forensic science examiner, conducted DNA analyses of the materials. Russell provided expert testimony at trial.

         The laboratory has procedures to protect DNA samples and evidence from contamination. It also prescribes how laboratory analysis of DNA is to be conducted. The DNA that Weisgerber swabbed from the gun and ammunition is touch DNA because it was deposited on the gun or ammunition when someone touched them directly, through a secondary transfer or through aerosolization, that is, coughing or sneezing. Touch DNA comes from skin cells left behind when a person touches an object. The quantity and quality of touch DNA varies according to the character of the object's surface, i.e., rough or smooth, and the length of time the DNA has been on the object. DNA degrades with time due to environmental factors, such as heat and moisture. Degradation makes it difficult to amplify the DNA and, in some cases, even to detect DNA.

         The quantity of DNA on the swabs was small, and the DNA was partially degraded. Nonetheless, Russell was able to extract a DNA solution of 7.16 picograms per microliter from the swabs. Although she was able to amplify a sample of about seventy picograms of DNA, 1000 picograms is the ideal amount for DNA analysis. A low yield sample will provide a DNA profile but usually not a full profile. Russell was able to generate a partial profile and obtained results at seven out of fifteen loci tested. The profile Russell obtained from the gun and ammunition consisted of a mixture of DNA, signifying the presence of more than one person's DNA. She was able to compare the DNA from the swabs with the samples provided by the defendant, Kason Sumpter, Elmore and Jackson in a scientifically accurate way and to obtain scientifically viable and accurate results. Her analysis eliminated Kason Sumpter, Elmore, and Jackson as possible contributors to the DNA profile she developed from the swabs. The defendant, however, could not be eliminated as a contributor. The expected frequency of individuals who could not be eliminated as a contributor to the DNA profile is approximately one in 1.5 million in the African-American population, one in 3.5 million in the Caucasian population, and one in 930, 000 in the Hispanic population.[8] The defendant is African-American.

         A warrant was issued for the defendant's arrest on September 25, 2014. He was charged in separate informations with criminal possession of a firearm in violation of General Statutes § 53a-217[9] and criminal trespass in the third degree in violation of General Statutes § 53a-109 (a) (1). The informations were consolidated for trial. Subsequently, the state filed an amended long form information charging the defendant with criminal possession of a pistol or revolver in violation of § 53a-217c and criminal trespass in the third degree in violation of § 53a-109 (a) (1). At the conclusion of the state's case-in-chief, the defendant moved for a judgment of acquittal on the charge of criminal possession of a pistol or revolver. The court denied the motion for a judgment of acquittal. The jury found the defendant guilty of both charges. The court sentenced the defendant to consecutive terms of ten years imprisonment, two years being a mandatory minimum, on the conviction of criminal possession of a pistol or revolver, and three months imprisonment on the conviction of criminal trespass in the third degree, for a total effective sentence of ten years and three months to serve. Thereafter, the defendant appealed.

         I

         The defendant claims that there was insufficient evidence to convict him of criminal possession of a pistol or revolver because there was insufficient evidence of his knowledge of the gun and no evidence to prove his dominion or control over it.[10] We disagree.

         The defendant was charged, in part, with violation of § 53a-217c, which provides in relevant part: ‘‘(a) A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver . . . and (1) has been convicted of a felony . . . .''[11] General Statutes § 53a-3 (2) defines ‘‘possess'' as ‘‘to have physical possession or otherwise to exercise dominion or control over tangible property . . . .'' Because the gun was not found on the defendant's person, the state prosecuted the subject charge under the theory of constructive possession.

         ‘‘There are two types of possession, actual possession and constructive possession. . . . Actual possession requires the defendant to have had direct physical contact with the [gun].'' (Citation omitted; internal quotation marks omitted.) State v. Johnson, 137 Conn.App. 733, 740, 49 A.3d 1046 (2012), rev'd in part on other grounds, 316 Conn. 34, 111 A.3d 447, and aff'd, 316 Conn. 45, 111 A.3d 436 (2015). ‘‘Where . . . the [gun is] not found on the defendant's person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . Where the defendant is not in exclusive possession of the premises where the [gun is] found, it may not be inferred that [the defendant] knew of the presence of the [gun] and had control of [it], unless there are other incriminating statements or circumstances tending to buttress such an inference.'' (Internal quotation marks omitted.) State v. Winfrey, 302 Conn. 195, 210-11, 24 A.3d 1218 (2011). ‘‘The essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent. In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object.'' State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986).

         ‘‘[T]o mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses . . . it is essential that the state's evidence include more than just a temporal and spatial nexus between the defendant and the contraband.'' (Internal quotation marks omitted.) State v. Bowens, 118 Conn.App. 112, 121, 982 A.2d 1089 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010). ‘‘[M]ere proximity to a gun is not alone sufficient to establish constructive possession, evidence of some other factor-including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise-coupled with proximity may suffice.'' (Internal quotation marks omitted.) Id., 125.

         The standard of review for sufficiency of the evidence claims is well known. ‘‘A defendant who asserts an insufficiency of the evidence claim bears an arduous burden.'' State v. Hopkins, 62 Conn.App. 665, 669-70, 772 A.2d 657 (2001). ‘‘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.'' (Internal quotation marks omitted.) State v. Abraham, 64 Conn.App. 384, 400, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001).

         ‘‘It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.'' (Internal quotation marks omitted.) State v. Bradley, 60 Conn.App. 534, 540, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). ‘‘The trier [of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . 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 . . . .'' (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 80, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007). ‘‘[T]his court has held that a jury's factual inferences that support a guilty verdict need only be reasonable.'' (Internal quotation marks omitted.) State v. Hector M., 148 Conn.App. 378, 384, 85 A.3d 1188, cert. denied, 311 Conn. 936, 88 A.3d 550 (2014).

         As our Supreme Court has 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. . . . 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. . . . Indeed, direct evidence of the accused's state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.'' (Internal quotation marks omitted.) State v. Robert S., 179 Conn.App. 831, 835-36, 181 A.3d 568, cert. denied, 328 Conn. 933, 183 A.3d 1174 (2018), citing State v. Fagan, supra, 280 Conn. 79-81.

         In the present case, there is no dispute that the defendant did not have the gun on his person at the time Lipeika discovered it in the courtyard of Washington Village on August 10, 2014, and that he was not in exclusive possession of the courtyard where Lipeika found the gun. The state, therefore, was required to establish that the defendant was in constructive possession of the gun. To prove constructive possession under § 53a-217c (a) (1), the state had to present evidence beyond a reasonable doubt that the defendant had knowledge of the gun and intended to exercise dominion or control over it. See State v. Hernandez, 254 Conn. 659, 669, 759 A.2d 79 (2000); State v. Davis, 84 Conn.App. 505, 510, 854 A.2d 67, cert. denied, 271 Conn. 922, 859 A.2d 581 (2004). The defendant argues on appeal that although the gun was found near him and his DNA was found on it, his proximity to it and the presence of his DNA on the gun and ammunition are not sufficient evidence to prove that he had knowledge of the gun, knew of its presence or exercised dominion or control over it. In particular, the defendant argues that the presence of his DNA on the gun merely means that at some unknown time and under unknown circumstances his DNA was transferred to the gun, but that is insufficient to support a finding that he knew of the gun's presence.

         The state acknowledges that because the defendant was not in exclusive control of the courtyard, the jury could not infer properly from that circumstance that the defendant knew of the gun's presence without incriminating statements or other circumstances to buttress the inference. See State v. Butler, 296 Conn. 62, 78, 993 A.2d 970 (2010). The state, however, contends that there were four circumstances that established a nexus between the defendant and the gun and permitted the jury reasonably to infer that the defendant knew of the gun's presence, that he was in a position to exercise dominion or control over it, and that he intended to do so. See State v. Hill, supra, 201 Conn. 516. We agree with the state.

         First, the state notes that the gun was found in plain view and appeared to have been placed near the bushes recently. The jury, therefore, reasonably could have inferred that the person who put the gun near the bushes did not abandon it and leave the courtyard but, instead, was one of the six individuals in the courtyard when the officers arrived. In response, the defendant argues that the gun was not in plain view because Lipeika needed a flashlight to see it.[12] The defendant's argument lacks merit. The police were patrolling the courtyard pursuant to the department's agreement with the housing authority. The officers needed artificial light both to be seen as they approached the courtyard and to see what was in the courtyard. The gun was lying on a wall in a public space, and it was dark. The gun was in the open and uncovered, and, therefore, it was in plain view. It clearly would have been visible in daylight. Under the circumstances, there is no difference between Lipeika's using a flashlight and turning on a light in a dark room. Furthermore, the state's argument is not that the location of the gun is evidence that the defendant saw it there. Instead, the state's argument is that the location of the uncovered gun near the bushes close to the defendant supports the inference that the defendant had placed the gun there. Thus, the lighting conditions at the time were immaterial.

         Second, the state points out that Lipeika was shining his flashlight when the officers walked through the alley into the courtyard. In his statement to the police, Jackson stated that someone saw the light and called out ‘‘police, '' causing individuals in the courtyard to look up. According to Lipeika, when individuals who have a gun in their possession become aware of a police presence, they try to ‘‘discard . . . or stash'' the gun so that they will not be detected with it. The state, therefore, argues that it was reasonable for the jury to infer that the defendant quickly put the gun on the wall near the bushes to avoid being found with it. The jury reasonably could have inferred from the evidence that the defendant, whom it knew to be a convicted felon, was motivated to ‘‘stash'' the gun because he is not entitled to possess a gun.

         Third, the state cites Lipeika's testimony that, when individuals with a gun seek to ‘‘discard . . . or stash'' it, they put the gun in a place close enough to be ‘‘accessible'' to them. In this instance, the gun was four to five feet from the defendant, who was sitting at a picnic table next to the wall and bushes.

         Fourth, the defendant was the only person at the picnic table who could not be eliminated as a contributor to the DNA profile found on the gun and ammunition. The chance that a random individual, someone other than the defendant, could have contributed to the DNA was one in 1.5 million in the African-American population. On the basis of these four circumstances, the state argues that the jury reasonably could have inferred that the defendant knew of the gun's presence and could have exercised dominion or control over it, and intended to do so. Although none of the factors alone is direct evidence of the defendant's knowledge of the gun's presence or his intent to possess it, the cumulative force of the circumstantial evidence was sufficient for the jury reasonably to infer that the defendant knew of the gun and was in constructive possession of it. ‘‘Where a group of facts [is] relied upon for proof of an element of the crime it is [the] cumulative impact [of those facts] that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard.'' (Internal quotation marks omitted.) State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1079, 99 L.Ed.2d 238 (1988). Evidence of the defendant's DNA on the gun and ammunition, plus his proximity to the gun, leads to a reasonable inference that the defendant once had the gun on his person and intended to do so again when the police left the courtyard.

         The defendant argues, citing State v. Payne, 186 Conn. 179, 440 A.2d 280 (1982), that the state cannot rely on the DNA evidence alone to prove that he knew of the gun's presence on the wall near the bushes. He compares the presence of DNA on the gun to fingerprints found on a vehicle in Payne. ‘‘[A] conviction may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could have only been impressed at the time the crime was perpetrated.'' Id., 182. In Payne, the defendant's fingerprints were found on the driver's door of a motor vehicle in which the victim had been restrained. Id., 181. The victim was unable to identify the defendant in a photographic array or at trial. Id. Our Supreme Court reversed the defendant's conviction because ‘‘[t]he evidence in the present case does not reasonably exclude the hypothesis that the defendant's fingerprints were placed on the car at a time other than during the perpetration of the crime.'' Id., 184; see also State v. Mayell, 163 Conn. 419, 426, 311 A.2d 60 (1972) (where defendant was regularly employed to drive vehicle and rightfully in it six hours before crime defendant's fingerprints on rear view mirror of abandoned vehicle were of no moment unless circumstances were such that fingerprints only could have been impressed at time of crime).

         The facts of the present case, however, are distinguishable from both Payne and Mayell. Here, the defendant not only was at the scene at the time the gun was found, but he also was in close proximity to it. Others were in close proximity to the gun too, but the defendant was the only one of them who was a contributor to the DNA obtained from the surface of the gun or the ammunition, or both. Moreover, the defendant had at least two reasons to ‘‘stash'' the gun. The defendant stipulated to the fact that he was a convicted felon. We discern that the jury reasonably could have inferred that because the defendant was trespassing[13] and, more importantly, because he was a convicted felon, he had ‘‘stashed'' the gun to avoid being found with the gun on his person.

         The defendant also argues that the DNA evidence is insufficient due to ‘‘the questionable reliability of a sample containing only 70 picograms of DNA, when the ideal amount is 1000 picograms of DNA.'' The defendant did not object to the admission of the DNA evidence at trial, but cites Russell's testimony regarding problems that are inherent in testing small samples of DNA. Despite the small sampling, however, Russell testified that she was able to analyze the DNA from the gun, and that she obtained scientifically viable and accurate results that revealed a high likelihood that the defendant was a contributor to the sample. Her findings were reviewed by a forensic science examiner in the laboratory and no problems were identified. Defense counsel vigorously cross-examined Russell. Although the burden was on the state to prove its case, the defendant presented no evidence to contradict Russell's testimony regarding the accuracy of her analysis.[14]

         The defendant's claim is not that Russell's testimony regarding the results of her DNA analysis was improperly admitted. The evidence, therefore, properly was before the jury to be considered along with the other evidence. The size of the sample went to the weight of the evidence, not its admissibility. ‘‘It is axiomatic that it is the jury's role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses. . . . It is the right and duty of the jury to determine whether to accept or to reject the testimony of a witness . . . and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial.'' (Internal quotation marks omitted.) State v. Osbourne, 138 Conn.App. 518, 533-34, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012). The essence of the defendant's argument is that this court ...


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