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State v. Porfil

Court of Appeals of Connecticut

July 30, 2019

STATE OF CONNECTICUT
v.
JAVIER VALENTIN PORFIL

          Argued January 9, 2019

         Procedural History

         Substitute information charging the defendant with the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent, sale of narcotics within 1500 feet of a school, possession of drug paraphernalia, possession of narcotics and interfering with an officer, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Harmon, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

          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 state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and David A. Gulick, senior assistant state's attorney, for the appellee (state).

          Prescott, Elgo and Harper, Js.

          OPINION

          HARPER, J.

         The defendant, Javier Valentin Porfil, appeals from the judgment of conviction, rendered after 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 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 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 Phelan's 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 to his car and drove away. No one else was seen with the defendant throughout 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 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 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 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. . . . 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.'' (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) 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 defendant's 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 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 defendant's] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime. . . . [T]he test for illegal possession of drugs is that the accused must know that the substance in question is a drug, must know of its presence and exercise dominion and control over it. . . .

         ‘‘Importantly, [k]nowledge of the presence of narcotics and control may be proved circumstantially. . . . Knowledge that drugs are present and under a defendant's control when found in a defendant's home or car is more easily shown, of course, if the defendant has exclusive possession of the area in which the drugs are found. The difficult cases . . . arise when possession of an area, such as a car or home or an apartment, is shared with another person or persons. In situations in which the putative offender is not in exclusive possession of the premises where the narcotics are found, we may not infer that he or she knew of the presence of the narcotics or that he or she had control over them, without incriminating statements or circumstances to support that inference.'' (Internal quotation marks omitted.) State v. Bischoff, 182 Conn.App. 563, 571-72, 190 A.3d 137, cert. denied, 330 Conn. 912, 193 A.3d 48 (2018).

         In the present case, there is no dispute that narcotics were found in the second floor hallway of 126-128 Walnut Street, and the defendant concedes in his appellate brief that the quantity of narcotics recovered permits an inference that they were intended for sale.[8] There is also no dispute-at least for purposes of the defendant's evidentiary insufficiency claim-that, shortly before the discovery of the narcotics by the police, the defendant repeatedly entered 126-128 Walnut Street through the doorway leading to the second floor hallway. As previously stated, however, spatial and temporal proximity to contraband, without more, is insufficient to establish constructive possession if, as in the present case, the contraband is found in a common area over which the defendant did not have exclusive possession. The state, therefore, was required to establish the existence of other incriminating statements or circumstances linking him to the narcotics. According to the defendant, the state failed to introduce evidence of any such statements or circumstances, and, therefore, his conviction must be reversed. In support of this claim, the defendant relies primarily on this court's decision in State v. Nova, 161 Conn.App. 708, 129 A.3d 146 (2015). This reliance is misplaced.

         In Nova, the defendant had been the subject of an ongoing police investigation, and the police had obtained a warrant to search the defendant and an apartment to which he was linked for narcotics. Id., 710. In preparation for execution of the warrant, police officers conducted surveillance of the building. Id. During the surveillance, the defendant was observed entering the apartment through the main entry door, which opened into the kitchen. Id., 711. He reemerged a few moments later and ascended an external staircase to a balcony on the third floor of the building that adjoined the upper level of the apartment, where he remained for approximately one minute. Id. The defendant then returned to his car in the apartment building's parking lot. Id.

         ‘‘Shortly after the defendant returned to his car, police observed a brief meeting between the defendant and another individual in the building's parking lot. Specifically, the officers saw a white male drive a pickup truck into the parking lot and park next to the defendant's car. The defendant opened the pickup truck's passenger side door, leaned in, and spoke to the driver for approximately one minute. During the meeting, police did not observe any hand-to-hand contact or the exchange of any item. Afterward, the pickup truck left the parking lot.'' Id. Moments later, a police officer observed the driver of the pickup truck appear to snort something and wipe his nose while stopped at a red traffic signal. Id. The officer, however, did not see any drugs or hear the driver snorting, and the police did not attempt to stop the truck. Id.

         The defendant was then detained and arrested; he did not resist or make any incriminating statements, and no cash or drugs were found on his person or in his car. Id., 711-12, 713. ‘‘The search of the apartment revealed drugs and drug paraphernalia throughout. In the kitchen, a knotted plastic bag containing crack cocaine and a plastic bag containing powder cocaine were in a kitchen cabinet; and clear plastic bags, aluminum foil, and colored tape containing cocaine residue were in a garbage can. On the third floor balcony . . . officers found a clear plastic sandwich bag containing twelve small yellow ziplock bags in a Wal-Mart shopping bag.'' Id., 712.

         Following a trial to the court, the defendant was convicted of possession of narcotics and possession of narcotics within 1500 feet of a school. Id., 710. ‘‘In reaching its judgment, the court relied on several factors that it deemed sufficiently incriminating to support an inference of constructive possession: the defendant's status as the target of the police investigation; his presence in the areas of the apartment where drugs and paraphernalia were found-namely, the kitchen and the balcony; his meeting with the driver of the pickup truck; and his unfettered access to the apartment . . . .'' Id., 720. On appeal to this court, the defendant claimed that this evidence was insufficient to sustain his conviction because the state had failed to prove beyond a reasonable doubt that he constructively possessed the drugs found in the common areas of the apartment. Id., 716. This court agreed, holding that none of these factors, alone or in combination with the others, established anything more than a temporal and spatial nexus between the defendant and the cocaine. Id., 720, 725.

         With regard to the defendant's presence in the kitchen and balcony, the court concluded that this ‘‘evidence established merely that he briefly appeared in those areas.'' Id., 721. More specifically, the court stated that, given the absence of ‘‘evidence show[ing] the [defendant] making suspicious movements toward the narcotics, or carrying a bag similar to one later found to contain narcotics, or engaging in a drug sale near the narcotics, '' the state had failed to show ‘‘a compelling correlation between the defendant's actions . . . and the conclusion that he controlled the narcotics in the apartment.'' (Emphasis added.) Id., 722. As to the evidence regarding the defendant's meeting with the driver of the pickup truck and the driver's apparent snorting of some substance thereafter, the court concluded that such evidence fell short of supporting an inference that the defendant had controlled the cocaine in the apartment. Id., 723. In so concluding, the court stressed that, ‘‘[w]ithout evidence of any item changing hands or of the substance the driver was supposedly ...


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