State v. Johnson ( 2015 )

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STATE OF CONNECTICUT v. JENNIFER JOHNSON
(SC 19062)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued October 29, 2014—officially released March 31, 2015
Annacarina Jacob, senior assistant public defender,
for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Kevin Lawlor, state’s
attorney, and Paul O. Gaetano, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Jennifer Johnson, was
convicted of possession of narcotics in violation of Gen-
eral Statutes § 21a-279 (a), conspiracy to possess nar-
cotics in violation of General Statutes §§ 53a-48 (a) and
21a-279 (a), conspiracy to possess narcotics with intent
to sell in violation of General Statutes §§ 53a-48 (a)
and 21a-277 (a), possession of less than four ounces of
marijuana in violation of General Statutes (Rev. to 2007)
§ 21a-279 (c), and possession of drug paraphernalia in
violation of General Statutes (Rev. to 2007) § 21a-267
(a). The narcotics convictions related to oxycodone
pills that the police had found on the defendant’s girl-
friend, Tamara Burbridge, to whom they had been pre-
scribed, and in the apartment that the two women
shared. On appeal to the Appellate Court, the defendant
challenged her conviction on the three narcotics
offenses. The Appellate Court reversed the conviction
of conspiracy to possess narcotics on double jeopardy
grounds as a lesser included offense of conspiracy to
possess narcotics with intent to sell, but affirmed the
judgment in all other respects.1 State v. Johnson, 137
Conn. App. 733, 766, 49 A.3d 1046 (2012). In her certified
appeal to this court, the defendant seeks reversal of
her conviction on the two remaining narcotics charges
on the basis of instructional error. Specifically, this
court granted the defendant’s petition for certification
to appeal limited to the following questions: ‘‘1. Did the
Appellate Court properly determine that the defendant
implicitly waived her instructional claims as to nonex-
clusive possession and constructive possession even
though she had filed a request to charge for the instruc-
tions? [and] 2. If the answer to the first question is in
the negative, was the error harmless?’’ State v. Johnson,
307 Conn. 927, 55 A.3d 568 (2012). We conclude that
the defendant did not engage in the type of affirmative
conduct necessary to demonstrate that she effectively
withdrew her request to charge. We further conclude
that the instruction on possession was deficient, but
that the impropriety was harmless beyond a reasonable
doubt in light of the evidence and the state’s theory of
the case. Accordingly, we affirm the Appellate
Court’s judgment.
The record reveals the following undisputed facts
and procedural history.2 During the relevant period,
the defendant lived with Burbridge in a one bedroom
apartment on the second floor of a three-family house
in Seymour. In March, 2008, Wendy Carroll, a recovering
drug addict who had known the defendant for approxi-
mately twenty years, reported to the police that the
defendant and Burbridge had been selling oxycodone
pills from the apartment. Carroll stated that she had
come forward because the two women had sold narcot-
ics to Carroll’s nephew. The police thereafter enlisted
Carroll’s help as a confidential informant to conduct
controlled buys from the defendant and Burbridge. On
three separate occasions—March 26, March 27 and
April 24, 2008—Carroll reported that Burbridge had
called to let her know that Burbridge had filled prescrip-
tions and had oxycodone to sell. Thereafter, on each
occasion, the police gave Carroll marked bills to make
the buys, patted her down for contraband and money,
observed Carroll enter the apartment building, and
emerge shortly thereafter bearing two to four pills of
Roxicodone (a brand name for the narcotic oxycodone)
but none of the marked bills. Carroll reported that the
defendant had exchanged the pills for the money in the
two March buys, and that Burbridge had done so in the
April buy. The police declined to act at that time to
execute a search warrant at the apartment. They moni-
tored the apartment building, however, and observed
nonresidents entering and exiting from the entrance
to the second and third floors of the building within
minutes, activity that indicated to them that drug activ-
ity was taking place.
In June, 2008, Carroll reported to the police that she
had confirmed with Burbridge that Burbridge had just
refilled a prescription and had more oxycodone for
sale. On the basis of that information and the previous
transactions, the police obtained a search warrant for
the apartment. When they arrived at the building, they
encountered the defendant and Burbridge in the drive-
way and patted the women down before proceeding to
the apartment. The police discovered on the defendant
a device for smoking marijuana and a small sum of
money, and on Burbridge they found a prescription
bottle in her name containing forty-six Roxicodone pills
that had been filled the previous day. In the apartment,
the police discovered scores of empty, partially full
and full prescription bottles for various narcotic and
nonnarcotic substances, prescribed to either the defen-
dant or Burbridge. The police seized from the living
room coffee table fourteen prescription bottles, a small
metal box containing two pills, and marijuana. The
police also seized from the bedroom, in dresser drawers
or on bedside tables, numerous other prescription pill
bottles in either the defendant’s or Burbridge’s name.
Tests confirmed the presence of oxycodone, a highly
addictive narcotic pain killer, in: (1) the pills presented
to the police by Carroll from each of the controlled
buys; (2) the two pills in the small metal box found
on the living room coffee table; (3) pills from three
prescription bottles in Burbridge’s name found in the
bedroom; and (4) pills from the prescription bottle in
Burbridge’s name found on her person.
The state thereafter charged the defendant in an eight
count long form information. Counts one through six
pertained to the June, 2008 search: possession of narcot-
ics with intent to sell; conspiracy to possess narcotics
with intent to sell; possession of narcotics; conspiracy
to possess narcotics; possession of less than four
ounces of marijuana; and possession of drug parapher-
nalia. Counts seven and eight pertained to the two
March, 2008 controlled buys, both alleging sale of nar-
cotics in violation of § 21a-277 (a). Although evidence
was adduced that the prescriptions for Burbridge’s oxy-
codone had been issued by more than one physician
and had been filled at more than one pharmacy, there
was no allegation that the prescriptions had been forged
or illegally prescribed.
At trial, the defendant’s theory was that Carroll had
lied out of a motivation for revenge, that Carroll had
produced pills that she had stolen from the apartment,
and that the police had not sufficiently monitored Car-
roll during the controlled buys. The defendant testified
that Carroll was a drug addict, that she previously had
lived with the defendant, that Carroll had been evicted
by the defendant due to Carroll’s possession of crack
cocaine, and that Carroll still had a key to the apartment.
The defendant attempted to impeach Carroll’s testi-
mony and motive by eliciting testimony from the police
that Carroll previously had worked for the police, that
she had been paid for each pill that she had produced
from the controlled buys, and that she only would have
been paid if she succeeded in making the buys. The
defendant also elicited an admission from Carroll that
she had lied during her initial testimony about not hav-
ing used drugs in recent years, but Carroll denied ever
having been evicted by the defendant or having a key
to the apartment. The defendant conceded that she had
smoked marijuana to treat pain related to disabilities
for which she receives Social Security benefits and that
she had been prescribed medications for those disabili-
ties. The defendant acknowledged that Burbridge had
oxycodone in the apartment in March, April, and June,
2008, and that Burbridge regularly filled a prescription
for oxycodone that was issued to treat pain. The defen-
dant denied that she had ever sold oxycodone, and
stated that, to her knowledge, Burbridge had not sold
oxycodone to Carroll in March or April, 2008.
The jury found the defendant not guilty of the two
charges relating to the controlled buys and the count
of possession of narcotics with intent to sell relating
to the evidence seized during the execution of the war-
rant. It found the defendant guilty on the remaining
counts. The trial court rendered judgment in accor-
dance with the verdict.
On appeal to the Appellate Court, the defendant chal-
lenged her narcotics conviction on evidentiary, consti-
tutional and instructional grounds. State v. Johnson,
supra, 137 Conn. App. 736. With respect to the instruc-
tional claim at issue in this certified appeal, the defen-
dant contended that the trial court had failed to charge
the jury properly on constructive and nonexclusive pos-
session, for which the defendant had filed a request to
charge. Id., 758. In response, the state contended that
the defendant had negated her request to charge and
implicitly waived any objection under State v. Kitchens,
299 Conn. 447, 482–83, 10 A.3d 942 (2011), because
defense counsel had been given an opportunity to
review and comment on the court’s proposed and final
drafts of the charge, had asked for changes and other-
wise expressly indicated that he had no objection to
the instruction, and had not objected to the charge
actually given. State v. Johnson, supra, 759.
The Appellate Court agreed with the state and there-
fore declined to review the instructional claim. Id., 760–
63. It held that ‘‘post-Kitchens, where defense counsel
formally acquiesces to a charge that he has had an
adequate opportunity to review, he waives on behalf
of the defendant any later appellate claim that might
have otherwise been preserved by an earlier request to
charge.’’ Id., 763. The court reversed the judgment of
conviction on the count of conspiracy to possess narcot-
ics on double jeopardy grounds, but affirmed the judg-
ment as to the remaining charges. Id., 766. This certified
appeal followed.
I
Our rules of practice provide that ‘‘[a]n appellate
court shall not be bound to consider error as to the
giving of, or the failure to give, an instruction unless
the matter is covered by a written request to charge
or exception has been taken by the party appealing
immediately after the charge is delivered. . . .’’ Prac-
tice Book § 42-16. In State v. Kitchens, supra, 299 Conn.
462–63, the defendant had not undertaken either
method, and he therefore sought review under State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
whereby a party may seek relief for an unpreserved
constitutional claim. This court determined that, in such
circumstances, an implied waiver is manifested under
the following conditions: ‘‘[W]hen the trial court pro-
vides counsel with a copy of the proposed jury instruc-
tions, allows a meaningful opportunity for their review,
solicits comments from counsel regarding changes or
modifications and counsel affirmatively accepts the
instructions proposed or given, the defendant may be
deemed to have knowledge of any potential flaws
therein and to have waived implicitly the constitutional
right to challenge the instructions on direct appeal.’’
State v. Kitchens, supra, 482–83. The court explained
that affirmative acceptance meant that counsel would
need to express satisfaction with the instruction, not
merely acquiesce to it. Id., 483 and n.23.
In concluding that the defendant in that case implic-
itly waived any purported instructional defect, the court
noted both the repeated statements by defense counsel
indicating his affirmative acceptance of the proposed
instruction and counsel’s failure to file a request to
charge. Id., 498. With respect to the latter, the court
noted: ‘‘Although we agree that the effect of filing a
request to charge is to preserve properly a claim of
instructional error, we note, with respect to the present
case, that defense counsel, by declining twice to file
a request to charge in response to the court’s direct
invitation, indicated that he had no special concerns
regarding the instructions on intent that he wished to
discuss with the court.’’ Id., 498 n.30; see also State
v. Akande, 299 Conn. 551, 557–58, 11 A.3d 140 (2011)
(concluding that defense counsel’s express agreement
to trial court’s supplemental instruction constituted
waiver of claim of instructional error, when ‘‘[d]efense
counsel failed to submit a request to charge or to take
exception to any instructional language during the
trial’’).
Thereafter, in State v. Paige, 304 Conn. 426, 40 A.3d
279 (2012), this court explained that different circum-
stances are presented when a defendant has filed such
a request: ‘‘The issue of waiver in the context of a claim
of instructional error typically arises when considering
whether a defendant is entitled to review of an unpre-
served claim. . . . In such cases, the defendant has
failed to follow one of the two routes by which he or
she could preserve the claim of instructional error, by
either submitting a written request to charge on the
matter at issue or taking an exception immediately after
the charge is given. . . . We never have required, how-
ever, a defendant who has submitted a request to charge
also to take an exception to a contrary charge, and such
a requirement would contravene the plain language of
[Practice Book § 42-16].
‘‘Nonetheless, even if a claim of instructional error
is initially preserved by compliance with Practice Book
§ [42-16], the defendant may thereafter engage in con-
duct that manifests an intention to abandon that claim.3
See State v. Thomas W., [301 Conn. 724, 732, 22 A.3d
1242 (2011)] (waiver found when, after defendant
objected to proposed instruction, he expressed satisfac-
tion with trial court’s proposed curative instruction and
did not thereafter object to instruction as given); State
v. Mungroo, 299 Conn. 667, 676, 11 A.3d 132 (2011)
(waiver found when, after reviewing court’s charge that
differed from defendant’s proposed instruction at
charging conference, defense counsel withdrew his
request to charge and accepted trial court’s charge);
State v. Whitford, 260 Conn. 610, 632–33, 799 A.2d 1034
(2002) (waiver found when defendant objected to initial
instruction, trial court issued supplemental instruction
after receiving input from defense counsel, and defense
counsel did not object to instruction as given); State v.
Jones, 193 Conn. 70, 87–88, 475 A.2d 1087 (1984) (waiver
found when defendant timely took exception after
instruction was given, court consulted with defendant
in fashioning supplemental instruction and defendant
raised no further objection to either initial charge or
supplemental instruction). In each of these cases, the
trial court had taken some curative action to address
the defendant’s initial objection or the defendant had
engaged in affirmative conduct that unequivocally
demonstrated his intention to abandon the previously
preserved objection, such as withdrawing a request to
charge.’’ (Citations omitted; emphasis added; footnote
added.) State v. Paige, supra, 442–43. In concluding that
there was no such unequivocal demonstration in the
case before it, the court noted that ‘‘[t]he defendant
never withdrew her request to charge and there is noth-
ing in the record to suggest that the trial court under-
stood her to have done so.’’ Id., 444. The court further
noted that the evidence was ambiguous as to ‘‘whether
the defendant effectively withdrew her request to
charge that initially preserved this issue for appeal.’’ Id.
With this heightened standard in mind, we turn to
the record in the present case. The trial court provided
both a ‘‘rough’’ draft instruction and its proposed final
instruction to counsel, and asked them on several occa-
sions to review and comment on them. The court’s
instruction on possession did not substitute different
language for that proposed by the defendant, but
instead selectively omitted certain paragraphs alto-
gether. There was never any discussion relating to this
change or this element of the offenses. The defendant
never stated that she was withdrawing her request to
charge on possession. After the initial draft was submit-
ted for counsel’s review, the defendant requested and
successfully obtained the addition of an instruction on
inconsistent statements, a matter on which the defen-
dant also had filed a request to charge. When the court
twice asked in succession whether the defendant had
objections to the instructions just before the charge
was given to the jury, defense counsel twice stated that
he had no objection.
We are not persuaded that these facts rise to the level
of the type of affirmative conduct that unequivocally
demonstrated an intention to abandon the request for
a more comprehensive charge on possession. The
defendant reasonably could have interpreted the trial
court’s selective adoption of parts of her possession
instruction as a purposeful rejection of the omitted
language. Under Paige, the defendant was not required
to object to the truncated instruction to preserve her
request for the more comprehensive instruction. See
State v. Paige, supra, 304 Conn. 443. Counsel’s state-
ment that he had no objection to the final instruction
may simply have been intended to convey agreement
that the language provided, much of which related to
matters on which the defendant submitted no requests
to charge, was a correct statement of the law, rather
than satisfaction with the omission of language that
defense counsel specifically had requested and reason-
ably could have believed had been intentionally
rejected. Moreover, to infer an implied waiver under
such circumstances would be to apply the same stan-
dard for preserved and unpreserved claims, contrary
to Paige. Finally, defense counsel’s request for the addi-
tion of an instruction on inconsistent statements, which
defense counsel reasonably could have interpreted as
having been inadvertently omitted, does not unambigu-
ously indicate that he was effectively withdrawing his
request for a more expansive instruction on possession.
Accordingly, we conclude that the defendant did not
abandon her request for a more comprehensive jury
instruction on possession.
II
The defendant’s request to charge on possession sub-
stantially mirrored the full model jury instruction. See
Connecticut Criminal Jury Instructions (Rev. to 2007)
§ 2.11-1. The preface to that model instruction provides
in relevant part: ‘‘A complete instruction on possession
may require explanations of constructive possession
and nonexclusive possession if relevant to the case.
Tailor this instruction according to the specific allega-
tions of possession.’’ The defendant contends that the
trial court’s instruction was incomplete and misleading
because it failed to provide a complete explanation
of constructive possession and omitted entirely any
explanation of the different burden of proof when there
is nonexclusive possession of the premises where the
contraband was located. The defendant argues that the
incomplete charge could have allowed the jury to con-
clude that she was in possession of the oxycodone
simply based on her joint residence in the apartment
in which Burbridge’s prescription narcotics were found
and her presence with Burbridge when oxycodone pills
were found on Burbridge. The state concedes that its
‘‘simple theory of the case was that the defendant and
Burbridge conspired to jointly possess and sell oxyco-
done pills from their shared apartment’’ and that it was
proceeding under a theory of constructive possession.
Nonetheless, it contends that the instruction was suffi-
cient to guide the jury as to constructive possession
and that no instruction on the heightened burden of
proof for nonexclusive possession was required
because the defendant did not assert a theory of defense
that the drugs were Burbridge’s and not hers. We agree
with the defendant that the charge was incomplete
and misleading.
Possession is an essential element of the two charges
at issue: possession of narcotics and conspiracy to pos-
sess narcotics with intent to sell. ‘‘It is . . . constitu-
tionally axiomatic that the jury be [properly] instructed
on the essential elements of a crime charged. . . . If
an improper jury instruction is of constitutional magni-
tude, the burden is on the state to prove harmlessness
beyond a reasonable doubt.’’ (Citation omitted; internal
quotation marks omitted.) State v. Padua, 273 Conn.
138, 166, 869 A.2d 192 (2005).
In previous cases, this court has explained: ‘‘[T]o
prove illegal possession of a narcotic substance, it is
necessary to establish that the defendant knew the char-
acter of the substance, knew of its presence and exer-
cised dominion and control over it. . . . [When] . . .
the [narcotics are] not found on the defendant’s person,
the state must proceed on the theory of constructive
possession, that is, possession without direct physical
contact. . . . [When] 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.’’
(Internal quotation marks omitted.) State v. Mangual,
311 Conn. 182, 215, 85 A.3d 627 (2014); accord State v.
Butler, 296 Conn. 62, 77–78, 993 A.2d 970 (2010); State
v. Bruno, 293 Conn. 127, 136, 975 A.2d 1253 (2009).
‘‘The doctrine of nonexclusive possession was
designed to prevent a jury from inferring a defendant’s
possession of [an illegal item] solely from the defen-
dant’s nonexclusive possession of the premises where
the [illegal item was] found. State v. Nesmith, 220 Conn.
628, 636 n.11, 600 A.2d 780 (1991). When the doctrine
applies, an instruction focuses the jury’s attention on
the defendant’s knowledge and intent to possess, pre-
cluding it from inferring possession from the mere fact
that the defendant, along with others, occupied or had
access to the premises wherein the contraband was
found.’’ (Internal quotation marks omitted.) State v. Wil-
liams, 258 Conn. 1, 7–8, 778 A.2d 186 (2001).
The trial court’s instruction on possession, which
adopted excerpts of the model instruction, provided as
follows: ‘‘Possession means actual possession or con-
structive possession. Actual possession means actual
physical possession, such as having the substance on
one’s person. Constructive possession means having
the substance in a place under one’s dominion and
control. Constructive possession may be exclusive or
shared by others. The latter is known as joint pos-
session.
‘‘Possession, whether actual or constructive, also
requires that the defendant knew that she was in posses-
sion of the oxycodone; that is, that the defendant was
aware that she was in possession of it, and was aware
of the nature—its nature. The state must prove beyond
a reasonable doubt that the defendant knew she was
in possession of oxycodone.
‘‘Now, a person acts knowingly with respect to con-
duct or to a circumstance described by a statute defin-
ing offense when she is aware that her conduct is of
such nature or that such circumstance exists. An act
is done knowingly if done voluntarily and purposely,
and not because of mistake, inadvertence, or accident.
‘‘Ordinarily, knowledge can be established only
through an inference from other proven facts and cir-
cumstances. The inference may be drawn if the circum-
stances are such that a reasonable person of honest
intention in the situation of the defendant would’ve
concluded that the oxycodone pills were a narcotic
substance. The determinative question is whether the
circumstances in the particular case form a basis for a
sound inference as to the knowledge of the defendant
and the transaction under inquiry.’’ (Emphasis added.)
The court gave this instruction in connection with its
charge on count one, possession with intent to sell a
narcotic substance, and repeated it or referred back to
it in setting forth the elements of the other charges.
The defendant’s request to charge included several
additional paragraphs, of which we find the following
particularly significant: ‘‘[A] person who, although not
in actual possession, knowingly has the power and
the intention at a given time to exercise dominion or
control over a thing is deemed to be in constructive
possession of that item. It means having something
under one’s control or dominion. As long as it is or
was in a place where the defendant could, if he wishes,
go and get it, it is in his possession and that possession
is illegal if the defendant knew of the unlawful character
of the . . . narcotics and knew of [their] presence.
. . .
‘‘The state has submitted evidence to show that the
defendant had control over the premises where the
narcotics . . . were found. Control of the premises
gives rise to the inference of unlawful possession, and
the mere access by others is insufficient to defeat
this inference.
‘‘If it is proven that the defendant is the exclusive
owner of the premises, then you may infer that [she]
controlled the premises. However, when it is shown
that ownership or occupancy of the premises is shared,
you may no longer make this inference. The ability to
control the premises must be established by indepen-
dent proof.’’ (Emphasis added.)
It is clear that the court’s instruction on possession
was deficient. The trial court’s single sentence
explaining constructive possession addressed the
defendant’s dominion and control over a place, rather
than the defendant’s dominion and control over the
contraband. See General Statutes § 53a-3 (2) (defining
‘‘ ‘[p]ossess’ ’’ for purposes of Penal Code as ‘‘to have
physical possession or otherwise to exercise dominion
or control over tangible property’’). The court’s instruc-
tion on knowledge directed the jury to consider whether
the defendant knew she was in ‘‘possession’’ of oxyco-
done, but the preceding explanation of possession sim-
ply would have required the jury to find that the
defendant knew that Burbridge’s prescription pills were
in the shared apartment.4 Also lacking is any direction
that the defendant must have intended to exercise con-
trol, which must be proved in addition to the defen-
dant’s knowledge of the presence of the narcotics. See
State v. Martin, 285 Conn. 135, 149, 939 A.2d 524 (‘‘[t]o
prove illegal possession of a narcotic substance, it is
necessary to establish that the defendant knew the char-
acter of the substance, knew of its presence and exer-
cised dominion and control over it’’ [internal quotation
marks omitted]), cert. denied, 555 U.S. 859, 129 S. Ct.
133, 172 L. Ed. 2d 101 (2008); State v. Hill, 201 Conn. 505,
516, 523 A.2d 1252 (1986) (‘‘[t]he essence of exercising
control is . . . the act of being in a position of control
coupled with the requisite mental element’’). Finally,
although, as a general matter, one could infer dominion
and control over contraband when a defendant exer-
cises exclusive dominion and control over the place in
which the contraband is found, our case law, previously
cited, clearly establishes that more is required when
there is joint possession of the premises. In United
States v. McKissick, 204 F.3d 1282 (10th Cir. 2000),
cited favorably by this court in State v. Williams, supra,
258 Conn. 8, the United States Court of Appeals for the
Tenth Circuit explained: ‘‘Constructive possession may
be established by circumstantial evidence and may be
joint among several individuals. . . . Possession is
constructive, rather than actual, when the defendant
knowingly has ownership, dominion or control over the
narcotics and the premises where the narcotics are
found. . . . See also United States v. Ruiz-Castro, 92
F.3d 1519, 1531 (10th Cir. 1996) (defining constructive
possession of a narcotic as an appreciable ability to
guide the destiny of the drug) . . . . In cases involving
joint occupancy of a place where contraband is found,
mere control or dominion over the place in which the
contraband is found is not enough to establish construc-
tive possession. . . . In such cases, the government is
required to present direct or circumstantial evidence
to show some connection or nexus individually linking
the defendant to the contraband.’’ (Citations omitted;
internal quotation marks omitted.) United States v.
McKissick, supra, 1291. A complete instruction on con-
structive possession would have been especially
important in a case in which the narcotics had been
lawfully prescribed to the person with whom the defen-
dant shared the apartment. Therefore, on its face, the
instruction as given would have permitted the jury to
find that the defendant’s joint possession of the prem-
ises and her knowledge that Burbridge was in posses-
sion of her prescribed oxycodone would be a sufficient
basis on which to find the defendant in possession of
the oxycodone.
We are not persuaded by the state’s argument that
the defendant was not entitled to an instruction on
nonexclusive possession because she did not point the
finger at Burbridge and claim that she was merely an
innocent bystander, but instead asserted that neither
of them had engaged in any wrongdoing. We first
observe that the defendant’s testimony left open the
possibility that Burbridge could have sold narcotics to
Carroll without the defendant’s knowledge.5 We further
note that, contrary to the state’s view, the jury would
have been free to credit Carroll’s testimony only in
part and as a result conclude that there was sufficient
evidence of Burbridge’s participation in the controlled
buys, but not the defendant’s. See State v. Andrews,
313 Conn. 266, 313, 96 A.3d 1199 (2014) (‘‘[t]he trier of
fact may credit part of a witness’ testimony and reject
other parts’’ [internal quotation marks omitted]); State
v. Nathan J., 294 Conn. 243, 262, 982 A.2d 1067 (2009)
(‘‘a defendant may be entitled to jury instructions
reflecting inconsistent theories of defense even if evi-
dence presented by the defendant directly contradicts
one of the theories of defense’’).
Having concluded that the instruction was deficient,
we turn to the question of whether the state proved
that the improper instruction was harmless beyond a
reasonable doubt. ‘‘[T]he test for determining whether
a constitutional error is harmless . . . is whether it
appears beyond a reasonable doubt that the error com-
plained of did not contribute to the verdict obtained.’’
(Internal quotation marks omitted.) State v. Fields, 302
Conn. 236, 245–46, 24 A.3d 1243 (2011). ‘‘When a jury
is misinstructed on an essential element of a crime and
a reviewing court can find that the record developed
at trial establishes guilt beyond a reasonable doubt, the
interest in fairness has been satisfied and the judgment
should be affirmed.’’ (Internal quotation marks omit-
ted.) State v. Padua, supra, 273 Conn. 167.
We are persuaded that the deficient instruction was
harmless beyond a reasonable doubt. The jury’s verdict
on the two conspiracy charges reflects that it found
that the state had proved beyond a reasonable doubt
that the defendant and Burbridge jointly agreed to pos-
sess and to sell narcotics. This required the jury to
find that the defendant had the specific intent to sell
oxycodone. One part of the court’s instruction on those
charges stated that: ‘‘The mere knowledge, acquies-
cence, or approval of the object of the agreement with-
out cooperation or agreement to cooperate, however,
is not sufficient to make one a party to a conspiracy
to commit the criminal act. Mere presence at the scene
of the crime, even when coupled with knowledge of
the crime, is insufficient to establish guilt of the conspir-
acy to commit the crime.’’ Moreover, with respect to
those charges, the trial court instructed the jury that
the overt acts in furtherance of the conspiracy were
‘‘possession with intent to sell a narcotic substance by
. . . Burbridge’’ and ‘‘the possession of narcotics by
. . . Burbridge.’’ There was no dispute that Burbridge
was in possession, both actual and constructive, of oxy-
codone.6 Therefore, the jury’s verdict on the conspiracy
charges would not have been influenced by the deficient
possession instruction and clearly evidenced that the
jury did not fully accept the defendant’s theory of the
case.
In addition to these facts, we note that all of the
oxycodone found in the apartment was in places over
which the defendant and Burbridge presumably would
have had shared access—a box on the living room cof-
fee table and a drawer in the bedroom they jointly
occupied. The defendant herself testified that she and
Burbridge both put their pills in the small metal box
found on the living room table; two oxycodone pills
were found in that box. Although the defendant testified
that oxycodone had been prescribed to Burbridge, the
defendant neither offered evidence that her access to
the pills was restricted in any way nor argued that such
an inference was permissible from the evidence. Indeed,
the defendant’s testimony reflected specific knowledge
regarding Burbridge’s prescriptions in that, in confirm-
ing to the prosecutor on cross-examination that a pre-
scription bottle containing forty-six Roxicodone pills
had been found on Burbridge, the defendant responded:
‘‘Yeah, because she only got fifty, and I guess she took
a couple.’’
The defendant’s argument that the error was not
harmless relies almost exclusively on her contention
that, if properly instructed, the jury reasonably could
have concluded that she did not have exclusive posses-
sion of the oxycodone. Although that may be true, as the
defendant’s own request to charge reflects, constructive
possession may be nonexclusive.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
In the state’s certified appeal from the Appellate Court’s judgment,
Docket No. SC 19139, which we heard concurrently with the defendant’s
certified appeal, this court held that the Appellate Court improperly ordered
the trial court to hold a resentencing hearing after the Appellate Court
vacated the defendant’s conviction and sentence for the lesser included
offense of conspiracy to possess narcotics on double jeopardy grounds.
State v. Johnson, 316 Conn. 34, A.3d (2015).
2
We note that the Appellate Court opinion recites the facts reasonably
found by the jury for purposes of evaluating the sufficiency of the evidence
to include the defendant’s participation in the actual sale of narcotics, despite
the fact that the jury found the defendant not guilty of sale of narcotics,
assuming the possibility of a compromise verdict. State v. Johnson, supra,
137 Conn. App. 744–45. We make no such assumption for purposes of our
consideration of the issues on appeal.
3
We note that abandonment is a manifestation of waiver. See State v.
Kitchens, supra, 299 Conn. 469 (‘‘[w]aiver is an intentional relinquishment
or abandonment of a known right or privilege’’ [internal quotation marks
omitted]).
4
We note that, in its subsequent instruction on the charge of possession
of a narcotic substance, the court stated that ‘‘the state must prove beyond
a reasonable doubt that the defendant knowingly possessed or had under
her control oxycodone.’’ (Emphasis added.) The court then repeated its
earlier charge on possession.
5
The testimony elicited from the defendant about Burbridge’s sale of
narcotics came in the following exchange on cross-examination:
‘‘[The Prosecutor]: So it’s your claim that . . . Burbridge sold to . . .
Carroll on [March 26]?’’
‘‘[The Defendant]: Not to my knowledge, no. [Burbridge] was doing nothing
unlawful at all.’’
6
Because the jury found the defendant not guilty of sale of narcotics or
possession of narcotics with intent to sell, it is unclear to what extent the
jury credited Carroll’s testimony with regard to the defendant’s role in the
sale of narcotics. The jury may have inferred the intent to sell from the
numerous prescription bottles located throughout the apartment, as well
as the fact that Burbridge had obtained prescriptions for oxycodone from
more than one physician and filled those prescriptions at more than one
pharmacy within one month’s time. In its closing argument, the state empha-
sized these facts as evidence of intent to sell.