Argued
January 9, 2019
Appeal
from Superior Court, Judicial District of Waterbury, Harmon,
J.
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James
B. Streeto, senior assistant public defender, with whom, on
the brief, was, Samantha L. Oden, former certified legal
intern, for the appellant (defendant).
Laurie
N. Feldman, special deputy assistant states attorney, with
whom, on the brief, were Maureen Platt, states attorney, and
David A. Gulick, senior assistant states attorney, for the
appellee (state).
Prescott,
Elgo and Harper, Js.
OPINION
HARPER,
J.
[191
Conn.App. 497] The defendant, Javier Valentin Porfil, appeals
from the judgment of conviction, rendered after [191
Conn.App. 498] a jury trial, of possession of narcotics with
intent to sell by a person who is not drug-dependent in
violation of General Statutes § 21a-278 (b), sale of
narcotics within 1500 feet of a school in violation of
General Statutes § 21a-278a (b), possession of drug
paraphernalia in violation of General Statutes § 21a-267, and
possession of narcotics in violation of
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General Statutes § 21a-279 (a).[1] The defendant claims on
appeal that (1) the evidence was insufficient to establish
that he was in constructive possession of
narcotics,[2] (2) the trial court deprived him of
his constitutional right to present a defense by improperly
excluding certain photographic evidence and (3) the trial
court deprived him of his constitutional right to present a
misidentification defense by preventing him from displaying a
scar to the jury. We disagree and, accordingly, affirm the
judgment of the trial court.
The
jury reasonably could have found the following facts. On
August 14, 2015, the Waterbury Police Department received an
anonymous telephone call, stating that the defendant, whom
the caller identified by first and last name, "had
warrants" and was selling narcotics from the porch of
126-128 Walnut Street in Waterbury. Located at this address
is a three-story multifamily house with an open front porch.
The house has two front doors; the door on the left opens to
a staircase leading to the second floor landing, and the door
on the right opens to a first floor apartment. The house also
has a back door that leads to the back door of the first
floor apartment and a back staircase to the second [191
Conn.App. 499] floor. The defendant did not live at this
address, but he was there often to visit family members.
After verifying that the defendant did indeed have active
warrants, Officer Scott Phelan obtained a photograph of the
defendant and headed to the house in an undercover vehicle.
Meanwhile, several other uniformed officers waited in
unmarked vehicles in the vicinity of the house, ready to
"move in" on the defendant on Phelans word.
Phelan
proceeded to drive past the house where he observed the
defendant sitting alone on the porch wearing shorts, a blue
tank top, and a baseball hat. Phelan then sought out a
location from which he could best observe the defendant. He
eventually took up a position across the street in the area
of the intersection of Walnut Street and Cossett Street,
approximately 150 or 175 feet southwest of the porch. From
this position, Phelan had a clear view of the porch through
his binoculars and was able to observe that the left front
door was open, revealing a "little bit" of the
staircase. He did not observe anyone in the stairway. After
watching the defendant for a time, Phelan observed a man
approach the house and engage in a brief conversation with
the defendant at the bottom of the porch stairs. The
defendant then walked through the open doorway, reappeared
after a time, descended the porch stairs, and
"exchange[d] ... an item for an item" with the man.
The man then left.
A few
minutes later, Phelan saw a vehicle pull up and park on the
corner of Catherine Avenue and Walnut Street and observed a
man exit the vehicle, approach the house, and engage in a
brief conversation with the defendant.[3] The defendant again
walked into the house through the open doorway, reappeared a
few seconds later, and engaged in another item-for-item
exchange. The man then walked back
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to his car and drove away. No one else was seen with the
defendant throughout [191 Conn.App. 500] this transaction
other than the person with whom he had made the exchange.
During
this time, Phelan was in constant radio communication with
the other officers positioned nearby and relayed to them that
he had observed the defendant engage in two hand-to-hand
exchanges. Meanwhile, the other officers waited to receive
notification from Phelan that the defendant had stepped far
enough away from the house to give the officers a good chance
of apprehending him in case he tried to run back inside.
After receiving such notification, Officer Jerome Touponse
and two other officers ran to the front porch, and two
officers went to the back of the house to secure the rear
door.
Upon
approaching the front of the house, Touponse and the other
officers found the defendant alone on the porch, dressed in a
blue tank top, shorts, and a baseball cap, with the left
front door to the house open. The defendant then turned
around and ran through the open left front doorway up the
staircase and entered the second floor
apartment.[4] The officers gave chase. There was no
one else in the stairwell as they pursued the defendant. The
officers eventually made their way inside the second floor
apartment, where the occupants pointed the police to the back
door of the apartment. Touponse went to the back door, but
the defendant was nowhere to be seen.
Meanwhile,
the two officers tasked with covering the back of the house,
Rose[5] and David Shaban, positioned
themselves on the back porch near the exterior rear door;
Shaban stood directly in front of the door, with Rose a few
steps behind him. After a short time, Shaban [191 Conn.App.
501] observed the defendant, who was wearing a blue shirt and
a baseball cap, begin to exit through the door, but, upon
seeing the officers, he retreated back into the house and
shut the door. When the officers were eventually able to get
through the door, they found the back door to the first floor
apartment was open. The front door to the apartment was also
open, which indicated to Shaban that the defendant had run
right through the apartment.
The
police subsequently searched the entire house, but the
defendant could not be located. In searching the house,
however, they found a brown paper bag in plain view in the
hallway extending to the right of the entrance to the second
floor apartment. See footnote 4 of this opinion. The bag
contained a digital scale, rubber bands, and 171 bags of
heroin, packaged in bundles of ten glassine packets, tied
with rubber bands, and packed in rice. The total street value
of the heroin was between approximately $1000 and $1150.
Officer
Phelan arrested the defendant several months later, in
February, 2016. After Phelan explained to him that he was
being arrested in connection with the events of August 14,
2015, the defendant stated that he was "sorry for
running." The defendant subsequently was charged with,
inter alia, possession of narcotics with intent to sell by a
person who is not drug-dependent in violation of § 21a-278
(b), sale of narcotics within 1500 feet of a school in
violation of § 21a-278a (b), possession of drug paraphernalia
in violation of § 21a-267, and possession of narcotics in
violation of § 21a-279 (a). A jury trial was
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held beginning on October 11, 2016, at which the defendant
testified in his own defense.[6] On October 13, 2016, the
jury returned a verdict of guilty on all counts, and the
defendant was sentenced [191 Conn.App. 502] on January 20,
2017.[7] This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The
defendant first claims that the evidence adduced at trial was
insufficient to support his conviction because the state did
not produce sufficient evidence to prove beyond a reasonable
doubt that he had constructive possession of the narcotics
recovered by the police from 126-128 Walnut Street. We
disagree.
"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.... [191
Conn.App. 503] 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 defendants 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 facts] verdict of
guilty." (Internal quotation marks omitted.) State
v. Griffin, 184 Conn.App. 595, 613-14, 195 A.3d 723,
cert. denied, 330 Conn. 941, 195 A.3d 692 (2018)
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and cert. denied, 330 Conn. 941, 195 A.3d 693 (2018).
"[T]o prove illegal possession of a narcotic substance,
it is necessary to establish that the defendant knew the
character of the substance, knew of its presence and
exercised dominion and control over it.... Where ... the
[narcotics were] not found on the defendants person, the
state must proceed on the theory of constructive possession,
that is, possession without direct physical contact.... One
factor that may be considered in determining whether a
defendant is in constructive possession of narcotics is
whether he is in possession of the premises where the
narcotics are found.... Where the defendant is not in
exclusive possession of the premises where the narcotics are
found, it may [191 Conn.App. 504] not be inferred that [the
defendant] knew of the presence of the narcotics and had
control of them, unless there are other incriminating
statements or circumstances tending to buttress such an
inference.... While mere presence is not enough to support an
inference of dominion or control, where there are other
pieces of evidence tying the defendant to dominion and
control, the [finder of fact is] entitled to consider the
fact of [the defendants] ...