State v. Jones ( 2022 )

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STATE OF CONNECTICUT v. THEODORE JONES
(AC 42674)
Bright, C. J., and Elgo and Lavine, Js.
Syllabus
Convicted, following a jury trial, of the crimes of possession of narcotics
with intent to sell, criminal possession of a pistol, and carrying a pistol
without a permit, the defendant appealed to this court. At 5 p.m. on the
date of his arrest, Shot Spotter, a system of microphones around the
city of New Haven that uses sound to triangulate the location of gunshots,
detected a gunshot in the area of 17 Vernon Street. Approximately four
minutes later, an individual called the police and reported seeing the
defendant in the area with a handgun. Shortly thereafter, the police
arrived at the scene, encountered the defendant in an area that was
approximately three houses down from the location identified by Shot
Spotter, and detained him. Although the defendant did not have any
weapons on him, the police recovered a firearm from a snowbank on
the property located directly behind where the defendant was discov-
ered. The defendant was arrested and was found to have multiple packets
of heroin in his possession. Additionally, the defendant’s DNA and finger-
prints were found on the recovered handgun. After a jury found the
defendant guilty of all charges, he filed a motion for a judgment of
acquittal, which the trial court denied, and the defendant appealed to
this court. Held:
1. The evidence was sufficient to support the defendant’s conviction of
criminal possession of a pistol, and, accordingly, the trial court properly
denied the defendant’s motion for a judgment of acquittal with respect
to that charge: the state’s arguments on appeal were consistent with
the theory that it pursued at trial, namely, that the defendant had actual
possession of the pistol on the date in question; moreover, the state
was not compelled to prove constructive possession of the pistol because
there was substantial circumstantial evidence from which the jury could
have concluded beyond a reasonable doubt that, on the date of his arrest,
the defendant actually possessed the handgun, fired it, and attempted
to dispose of it, as Shot Spotter established that a gun was fired near
17 Vernon Street, less than five minutes later an officer arrived at the
scene and found the defendant in an area only three houses down from
the location registered by Shot Spotter, no other individuals were in
the immediate area, the defendant exhibited evasive conduct by mis-
leading the police regarding where he had been and where he was going,
and, shortly after he was detained, the police found a handgun containing
the defendant’s DNA and fingerprints in a snowbank just over a fence
from the location where he was apprehended.
2. There was sufficient evidence to support the jury’s finding that the defen-
dant was guilty of carrying a pistol without a permit, and, accordingly,
the trial court properly denied the defendant’s motion for a judgment
of acquittal with respect to that charge: the jury reasonably could have
found that the defendant carried a pistol on his person on the day in
question by holding it in his hand and firing it at 5 p.m. in the area of
Vernon Street and by carrying it and tossing it over a nearby fence in
an effort to dispose of it on the basis of the same evidence that was
sufficient for a jury to conclude that the defendant criminally possessed
a handgun on the date of his arrest.
3. Contrary to the defendant’s claim, the trial court did not commit plain
error in charging the jury on criminal possession of a pistol by omitting
from its charge that the state was required to prove that the defendant
intended to exercise control over the handgun because the error, if any,
was not so clear and so harmful that a failure to reverse the judgment
would result in manifest injustice: the defendant’s claim rested on an
incorrect premise, as the state was not required to prove constructive
possession, rather, it was sufficient to demonstrate that the defendant
actually possessed the firearm; moreover, the trial court’s charge dis-
cussing constructive possession was substantially similar to those exam-
ined in State v. Fasano (88 Conn. App. 17) and State v. Elijah (42 Conn.
App. 687), which this court found had sufficiently explained the elements
of the crimes charged to the jury.
4. This court declined to review the defendant’s claim that the trial court
erred by permitting two police officers to testify as to the ultimate issue
of whether the defendant had intent to sell the narcotics found on his
person because that claim was not properly preserved at trial: at trial,
the defendant objected to the officers’ testimony on the bases of rele-
vance and lack of foundation, which the court overruled, but failed to
object on the ground that the officers were testifying to an ultimate
issue of fact, and, accordingly, the defendant could not challenge on
appeal the proffered testimony as constituting improper opinion testi-
mony on an ultimate issue; moreover, the defendant’s alternative basis
for consideration of his unpreserved claim, that this court consider it
as a matter of plain error, was unavailing, as any error of the trial court
in not ruling on an objection that was not made did not rise to the level
required for plain error review, which is reserved for extraordinary
situations in which the existence of the error was so obvious that it
affected the fairness and integrity of and public confidence in the judicial
proceedings.
Argued October 7, 2021—officially released January 25, 2022
Procedural History
Substitute information charging the defendant with
the crimes of possession of narcotics with intent to sell,
criminal possession of a pistol, and carrying a pistol
without a permit, brought to the Superior Court in the
judicial district of New Haven, geographical area num-
ber twenty-three, and tried to the jury before Alander,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
Julia K. Conlin, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Devant Joiner, senior assistant state’s
attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Theodore Jones, appeals
from the judgment of conviction, rendered after a jury
trial, of possession of narcotics with intent to sell in
violation of General Statutes § 21a-278 (b), criminal pos-
session of a pistol in violation of General Statutes § 53a-
217c (a) (1), and carrying a pistol without a permit in
violation of General Statutes § 29-35. On appeal, the
defendant claims that (1) there was insufficient evi-
dence to support his conviction of criminal possession
of a pistol (handgun or firearm), (2) there was insuffi-
cient evidence to support his conviction of carrying a
pistol without a permit, (3) the court committed plain
error with respect to its jury instructions concerning
criminal possession of a pistol, and (4) the court erred
by allowing impermissible opinion testimony regarding
his intent to sell narcotics. 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.
On December 28, 2016, at 5 p.m., New Haven’s ‘‘Shot
Spotter’’ system was activated because a gunshot was
detected in the area of 17 Vernon Street in New Haven.
Shot Spotter is a system of microphones around a city
that uses sound to triangulate the location of gunshots
and relays the information back to patrol officers.
Approximately four minutes after the Shot Spotter was
activated, Officer James Marcum received a dispatch
call that a woman had reported that there was a man
with a handgun near the intersection of Davenport Ave-
nue and Vernon Street, that the male was wearing a
black hat and black jacket, and that his name was Theo-
dore Jones.1
Within thirty seconds of receiving the dispatch call,
Marcum arrived at the Vernon Street location in his
police cruiser and immediately saw a black male wear-
ing a black hat and a black jacket in the driveway of a
parking lot. The individual saw Marcum and proceeded
to walk toward the rear of the driveway. Marcum then
exited his police cruiser and yelled to the individual to
show him his hands and asked the individual for his
name. The individual complied and informed Marcum
that his name was Theodore Jones. Marcum subse-
quently handcuffed the defendant and patted him down.
No firearm was found on him.
When asked where he was going, the defendant indi-
cated that he was heading to his girlfriend’s house north
on Vernon Street, which Marcum testified was inconsis-
tent with him walking toward the rear of the parking
lot at 9 Vernon Street. The rear portion of the parking
lot at 9 Vernon Street abuts the Howard Avenue Parking
Garage, which is owned by Yale University. The 9 Ver-
non Street property and the Howard Avenue Parking
Garage property are separated by a tall chain link fence.
Officer Brendan Canning, Jr., also received the weap-
ons complaint and soon learned that Marcum had
detained the defendant. Canning arrived at the scene,
conducted an investigation of the area, and spoke with
the defendant. According to Canning, the defendant
told him that he had been coming from the area of 27
Bond Street, which was near Water Street, but the offi-
cer testified that Bond Street was about six blocks
away and that Water Street was about two miles from
Vernon Street.
Officer Otilio Green, a Yale University police officer,
also was working on the night in question and heard the
weapons complaint and Shot Spotter activation through
the New Haven Police Department scanner. When he
learned that an individual was detained in a parking lot
on Vernon Street and that no firearm was found, Green
proceeded to the Howard Avenue Parking Garage prop-
erty, which is located directly behind the property
where the defendant was discovered, to see if he could
locate a firearm. During the search of the fence line
separating the two properties, which was captured on
Green’s body camera, he discovered a handgun sticking
out of a snowbank. The handgun was a .40 caliber Ruger
pistol with a barrel length between three and four inches
long. In addition to recovering the firearm, the police
located a bullet fragment in the vicinity of 17 Vernon
Street.
The defendant was arrested and brought to the New
Haven Police Department detention facility. Officer
Andre Lyew searched the defendant and found a plastic
bag tied to the defendant’s genitals that contained 139
individual packets of heroin and 2 additional bags of
it, weighing a total of 111 grams. The defendant also
was found with approximately $199 in small bills and
white plastic spoons.
Angela Przech, a forensic science examiner, later
compared a sample of the defendant’s DNA to two DNA
swabs from the handgun, one of which included a sam-
ple from the trigger. With respect to the trigger DNA
sample, Przech determined through testing that there
was a DNA mixture of four contributors, with at least
two contributors being male, and that it was at least
100 billion times more likely for this profile to occur if
it originated from the defendant and the three unknown
individuals than if it had originated from four unknown
individuals. In regard to the second swab of the hand-
gun, Przech concluded that there was a mixture of three
contributors, with at least two being male, and that it
was 100 billion times more likely for this profile to occur
if it originated from the defendant and two unknown
individuals than if it had originated from three unknown
individuals.
Finally, George Shelton, a latent print examiner,
examined fingerprints lifted from the handgun’s maga-
zine. On the basis of his examination, Shelton opined
that the latent print lifted from the magazine and the
known print from the defendant matched.
The defendant was charged with possession of nar-
cotics with intent to sell in violation of § 21a-278 (b),
criminal possession of a pistol in violation of § 53a-
217c (a) (1), and carrying a pistol without a permit in
violation of § 29-35. Following a trial, the jury found
the defendant guilty of all charges. Prior to sentencing,
the court considered and denied the defendant’s written
motion for judgment of acquittal on each of the charges.
The court thereafter sentenced the defendant to six
years of imprisonment, five years being a mandatory
minimum, on the conviction of possession of narcotics
with intent to sell; three years of imprisonment, two
years being a mandatory minimum, on the conviction
of criminal possession of a pistol; and a mandatory
minimum sentence of one year of imprisonment on the
conviction of carrying a pistol without a permit to be
served concurrently with the other sentences, for a
total effective sentence of nine years. The defendant
appealed.
I
The defendant first claims that there was insufficient
evidence to convict him of criminal possession of a
pistol. More specifically, the defendant argues that the
state was required, and failed, to establish that he con-
structively possessed the firearm at issue. For the rea-
sons set forth herein, we disagree with the defendant’s
argument.
The standard of review for this type of claim 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 examining a sufficiency of the evidence claim,
we apply a two part test. ‘‘First, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict. Second, we determine whether upon the facts so
construed and the inferences reasonably drawn there-
from the [jury] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt . . . . This court cannot
substitute its own judgment for that of the jury if there
is sufficient evidence to support the jury’s verdict.’’
(Internal quotation marks omitted.) State v. Grasso, 189
Conn. App. 186, 200–201, 207 A.3d 33, cert. denied, 331
Conn. 928, 207 A.3d 519 (2019).
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 reason-
able 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.’’ (Internal quotation marks omitted.) State v.
Robert S., 179 Conn. App. 831, 835, 181 A.3d 568, cert.
denied, 328 Conn. 933, 183 A.3d 1174 (2018), quoting
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). 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
[that] establishes guilt in a case involving substantial
circumstantial evidence.’’ (Internal quotation marks
omitted.) State v. Seeley, 326 Conn. 65, 73, 161 A.3d
1278 (2017).
‘‘It is within the province of the jury to draw reason-
able 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 estab-
lished by the evidence it deems to be reasonable and
logical.’’ (Internal quotation marks omitted.) State v.
Fagan, supra, 280 Conn. 80.
In the present case, the defendant was charged, in
part, with violation of § 53a-217c, which provides in
relevant part: ‘‘(a) A person is guilty of criminal posses-
sion of a pistol or revolver when such person possesses
a pistol or revolver . . . and (1) has been convicted of
a felony . . . .’’2 General Statutes § 53a-3 (2) defines
‘‘ ‘possess’ ’’ as ‘‘to have physical possession or other-
wise to exercise dominion or control over tangible prop-
erty . . . .’’
Possession of a firearm may be proved through either
actual or constructive possession. See State v. Rhodes,
335 Conn. 226, 233, 249 A.3d 683 (2020). Both actual
possession and constructive possession may be estab-
lished by direct or circumstantial evidence. See, e.g.,
State v. Coleman, 114 Conn. App. 722, 730, 971 A.2d
46, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009).
Indeed, ‘‘there is no legal distinction between direct
and circumstantial evidence so far as probative force
is concerned . . . .’’ (Citations omitted.) State v. Wil-
son, 178 Conn. 427, 434, 423 A.2d 72 (1979). Actual
possession, on the one hand, ‘‘requires the defendant to
have had direct physical contact with the [contraband].’’
(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(2015), and aff’d, 316 Conn. 45, 111 A.3d 436 (2015).
Alternatively, ‘‘constructive possession is possession
without direct physical contact. . . . It can mean an
appreciable ability to guide the destiny of the [contra-
band] . . . and contemplates a continuing relationship
between the controlling entity and the object being
controlled.’’ (Citations omitted; internal quotation
marks omitted.) State v. Rhodes, supra, 233–34. ‘‘To
establish constructive possession, the control must be
exercised intentionally and with knowledge of the char-
acter of the controlled object.’’ (Internal quotation
marks omitted.) State v. Dawson, 340 Conn. 136, 148,
263 A.3d 779 (2021). ‘‘A person acts ‘intentionally’ with
respect to a result or to conduct described by a statute
defining an offense when his conscious objective is to
cause such result or to engage in such conduct . . . .’’
General Statutes § 53a-3 (11). ‘‘A person acts ‘know-
ingly’ with respect to conduct or to a circumstance
described by a statute defining an offense when he is
aware that his conduct is of such nature or that such
circumstance exists . . . .’’ General Statutes § 53a-3
(12).
Before we turn to the merits of the defendant’s claim,
we must first clarify a fundamental issue: upon what
theory did the state proceed in proving the element of
possession? The defendant argues that because he did
not have actual, physical possession of the firearm at
the time of arrest, the state’s theory at trial necessarily
must have been one of constructive possession. Citing
to State v. Robert H., 273 Conn. 56, 82–83, 866 A.2d
1255 (2005), the defendant argues that the state should
not be permitted to press an actual possession argument
on appeal because it did not pursue that theory at trial.
When questioned at oral argument before this court
on whether the state proceeded solely on a theory of
constructive possession at trial, however, the defen-
dant’s counsel conceded that ‘‘there really was no dis-
cussion of one versus the other . . . .’’ Defense counsel
argued that the trial court instructed on constructive
possession but acknowledged, after questioning, that
the court explained to the jury the difference between
actual physical possession and constructive possession.
On the basis of our review of the record, we conclude
that the state’s arguments on appeal are consistent with
the theory pursued at trial—that the defendant pos-
sessed the Ruger firearm on the date in question by
firing it and tossing it over a nearby fence in an attempt
to dispose of it.3
Nevertheless, the defendant argues that, because he
was not observed or found with the firearm at the time
of arrest, the state was required (and failed) to prove
that the defendant constructively possessed the fire-
arm. The state disagrees that it was compelled to prove
constructive possession and claims that the jury, on
the basis of circumstantial evidence, could conclude
beyond a reasonable doubt that the defendant actually
possessed the handgun. We agree with the state.
In support of his contention that the state was
required to prove constructive possession, the defen-
dant relies on our Supreme Court’s decision in State v.
Winfrey, 302 Conn. 195, 24 A.3d 1218 (2011). In Winfrey,
the court explained that, ‘‘[b]ecause there was no direct
evidence that the drugs found in the center console
belonged to the defendant, the state argued the case
under a theory of nonexclusive possession.’’ Id., 210.
In setting forth the standard of proving illegal posses-
sion, the court stated, inter alia, that, ‘‘[w]here . . . the
[controlled substances were] not found on the defen-
dant’s person, the state must proceed on the theory
of constructive possession, that is, possession without
direct physical contact.’’ (Emphasis added; internal quo-
tation marks omitted.) Id. Citing to this proposition,
the defendant argues in this appeal that the state was
required to proceed on a theory of constructive posses-
sion.
The defendant is correct that Winfrey (and other
similar cases) states that ‘‘[w]here . . . the [contra-
band was] not found on the defendant’s person, the
state must proceed on the theory of constructive pos-
session, that is, possession without direct physical con-
tact.’’ (Emphasis added; internal quotation marks omit-
ted.) Id. We disagree with the defendant, however, that
this pronouncement requires the state prove construc-
tive possession in each and every case in which a defen-
dant is not seen or found by the police at the time of
arrest with the contraband on his person. Rather, we
read this language to mean that when there is insuffi-
cient evidence—direct or circumstantial—to establish
that the defendant actually possessed (i.e., had direct
physical contact with) the contraband, the state neces-
sarily is required to proceed on a theory of constructive
possession in order to satisfy its burden of proof.
There is little question that the state will, in many,
perhaps most, cases, pursue a constructive possession
theory when the defendant was not found or seen with
the contraband at the time of arrest or when there is
no evidence that the defendant actually possessed the
contraband. See, e.g., State v. Bowens, 118 Conn. App.
112, 121, 982 A.2d 1089 (2009) (‘‘[t]ypically, the state
will proceed under a theory of constructive possession
when the [contraband is] not found on the defendant’s
person at the time of arrest, but the accused still exer-
cises dominion [or] control’’ (internal quotation marks
omitted)), cert. denied, 295 Conn. 902, 988 A.2d 878(2010). There are times, however, when there is suffi-
cient evidence—direct or circumstantial—to establish
that the defendant actually possessed the contraband
on the day and at the time in question, despite not being
seen or found physically possessing the contraband on
his person at the exact time of arrest. See, e.g., State
v. Coleman, supra, 114 Conn. App. 728 (‘‘[t]he state may
in some circumstances proceed on a theory of actual
possession, however, even if the defendant did not phys-
ically possess narcotics at the exact time of arrest’’);
see also State v. Ellis T., 92 Conn. App. 247, 251 n.3, 884
A.2d 437 (2005) (although defendant did not physically
possess narcotics at time of arrest, facts were sufficient
to support actual possession theory); State v. Thomas,
56 Conn. App. 573, 577, 745 A.2d 199 (‘‘The state pre-
sented a strong circumstantial case. While it is true that
the state presented no witness who saw the defendant
in possession of the pistol, such lack of direct evidence
is not fatal to the state’s burden of proof.’’), cert. denied,
252 Conn. 953, 749 A.2d 1204 (2000).
Our case law has explained that constructive posses-
sion is ‘‘possession without direct physical contact.’’
(Internal quotation marks omitted.) State v. Johnson,
316 Conn. 45, 58, 111 A.3d 436 (2015). It can mean ‘‘an
appreciable ability to guide the destiny of the [contra-
band]’’ and ‘‘contemplates a continuing relationship
between the controlling entity and the object being
controlled.’’ (Internal quotation marks omitted.) State
v. Rhodes, supra, 335 Conn. 233–34. There will be cases
like this one, however, in which there is substantial
circumstantial evidence to show that the defendant
actually possessed the contraband and attempted to
dispose of it. See, e.g., State v. Thomas, supra, 56 Conn.
App. 575–77 (gun found in alleyway shortly after defen-
dant’s arrest). It would be peculiar to require the state
to prove constructive possession—a legal fiction
whereby a person is deemed to possess contraband
even when he does not actually have immediate, physi-
cal control of the contraband—when the facts indicate
that the defendant had physical, actual contact with
and control of the firearm on the day and at the time
in question and then purposefully relinquished control
over it so as not to be caught with it. See State v. Rhodes,
supra, 268 (Ecker, J., concurring) (‘‘[c]onstructive pos-
session is a ‘legal fiction’ ’’); see also State v. Buhl,
321 Conn. 688, 713, 138 A.3d 868 (2016) (‘‘it does not
diminish the probative force of the evidence that it
consists, in whole or in part, of evidence that is circum-
stantial rather than direct’’ (internal quotation marks
omitted)).
Furthermore, in the present case, the state proceeded
on a theory that the defendant possessed the Ruger
firearm on the date in question by firing it and tossing
it over a nearby fence in an attempt to dispose of it.
After there is an act of disposal, like the one here, there
may not always be a ‘‘continuing relationship between
the controlling entity and the object being controlled.’’
(Internal quotation marks omitted.) State v. Rhodes,
supra, 335 Conn. 234. Put differently, after an attempt
to dispose of contraband, a defendant may no longer
intend to exercise dominion or control over it. See State
v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986) (‘‘this
control must be exercised intentionally and with knowl-
edge of the character of the controlled object’’). It would
thus be illogical in those circumstances to require the
state to prove constructive possession when the evi-
dence is sufficient to support a conviction based on
actual possession.
We recognize that the case law in this area has not
been crystal clear. Our review of it, however, leads us
to conclude that, although certain cases will require
the state to pursue a constructive possession theory in
order for it to sustain its burden of proof, there are
occasions when the evidence better supports the theory
of actual possession. We accordingly agree with the
state that it was not required in this case to prove
constructive possession as opposed to actual posses-
sion.
We turn now to the merits of the claim to determine
whether there was sufficient evidence, including cir-
cumstantial evidence, to establish beyond a reasonable
doubt that the defendant actually possessed the firearm
on the day and at the time in question. The state’s
information charged the defendant, in part, with crimi-
nal possession of a pistol ‘‘in the [c]ity of New Haven
on or about December 28, 2016 in the area of 17 Vernon
Street . . . .’’ We thus review whether the evidence
supports a finding beyond a reasonable doubt that on
or about the day of his arrest, the defendant possessed
a pistol in the city of New Haven in the area of 17
Vernon Street. We conclude that it does.
When, as here, the evidence is largely circumstantial,
the relevant inquiry asks whether the cumulative force
of the evidence, along with plausible inferences favor-
able to sustaining the verdict, warrants a reasonable
jury in concluding that the state has proved the elements
of the offense beyond a reasonable doubt. See, e.g.,
State v. Shawn G., 208 Conn. App. 154, 158, 262 A.3d
835, cert. denied, 340 Conn. 907, 263 A.3d 822 (2021).
Viewed through this prism, we conclude that a reason-
able jury could find—as this jury did—that the state
proved beyond a reasonable doubt that the defendant
possessed the firearm on the date and at the time in
question.
In considering these facts in the light most favorable
to upholding the verdict, the totality of the evidence
supports an inference that the defendant actually pos-
sessed the handgun on or about December 28, 2016, in
the area of 17 Vernon Street. The jury heard testimony
that the Shot Spotter activated at 5 p.m. on December
28, 2016, which established that a gun was fired near
17 Vernon Street in New Haven. Marcum, who received
a dispatch call at 5:04 p.m., arrived on scene only thirty
seconds later to find the defendant in the driveway of
9 Vernon Street, walking toward the rear of the property
to the fence line that separated that property and the
Howard Avenue Parking Garage property. 17 Vernon
Street, where the Shot Spotter registered, was merely
three houses down from this location. No other individ-
uals were in the immediate area. Although the defen-
dant complied with Marcum’s directives, he exhibited
evasive conduct by offering an implausible explanation
about where he had been coming from and where he
was going. Soon thereafter, Green found a .40 caliber
Ruger handgun, which contained the defendant’s DNA
and fingerprints, in a snowbank just over the fence from
where the defendant was stopped and near the location
where the Shot Spotter had activated. After being
arrested and brought to the detention center, the defen-
dant later was found with 139 individual packets of
heroin and 2 additional bags of it on him.4
On the basis of our review of the record, we conclude
that there was sufficient circumstantial evidence by
which the jury reasonably could conclude that the
defendant actually possessed the .40 caliber Ruger fire-
arm on the day in question, fired it, and tossed it over
a nearby fence in an effort to dispose of it just before
Marcum arrived at the scene.5 Accordingly, the evidence
was sufficient to support the defendant’s conviction of
criminal possession of a pistol, and the court, therefore,
properly denied the defendant’s motion for a judgment
of acquittal.6
II
The defendant next claims that this court should
vacate his conviction of carrying a pistol without a
permit because the evidence was insufficient to support
his conviction for that offense. We disagree.
We again review the principles that guide us when we
consider claims of insufficient evidence. ‘‘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 defen-
dant 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. . . . 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 disposi-
tive those inferences that are consistent with the defen-
dant’s innocence. . . . The [finder of fact] may draw
whatever inferences from the evidence or facts estab-
lished 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 possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence 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 evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Citations omitted; internal quotation marks
omitted.) State v. Campbell, 328 Conn. 444, 503–505,
180 A.3d 882 (2018).
We turn now to the essential elements of the offense.
Section 29-35 (a) provides in relevant part: ‘‘No person
shall carry any pistol or revolver upon his or her person,
except when such person is within the dwelling house
or place of business of such person, without a permit
to carry the same issued as provided in section 29-28.
. . .’’ ‘‘[T]o obtain a conviction for carrying a pistol
without a permit, the state was required to prove
beyond a reasonable doubt that the defendant (1) car-
ried a pistol, (2) for which he lacked a permit, (3)
while outside his dwelling house or place of business.’’7
(Internal quotation marks omitted.) State v. Covington,
184 Conn. App. 332, 339, 194 A.3d 1224 (2018), aff’d,
335 Conn. 212, 229 A.3d 1036 (2020).
This court has explained that carrying a pistol and
possession of a pistol are different concepts. See id.Although ‘‘a person can possess an item without car-
rying it on his person, § 29-35 is designed to prohibit
the carrying of a pistol without a permit and not the
[mere] possession of one.’’ (Internal quotation marks
omitted.) State v. Crespo, 145 Conn. App. 547, 573, 76
A.3d 664 (2013), aff’d, 317 Conn. 1, 115 A.3d 447 (2015).
Thus, ‘‘constructive possession of a pistol or revolver
will not suffice to support a conviction under § 29-35.’’
Id.; see also State v. L’Minggio, 71 Conn. App. 656, 672,
803 A.2d 408, cert. denied, 262 Conn. 902, 810 A.2d 270(2002). Rather, ‘‘[t]o establish that a defendant carried
a pistol or revolver, the state must prove beyond a
reasonable doubt that he bore a pistol or revolver upon
his person . . . while exercising control or dominion
of it.’’ (Internal quotation marks omitted.) State v. Brad-
bury, 196 Conn. App. 510, 517, 230 A.3d 877, cert.
denied, 335 Conn. 925, 234 A.3d 980 (2020). ‘‘Because
there is no temporal requirement in § 29-35 . . . and
no requirement that the pistol or revolver be moved
from one place to another to prove that it was carried
. . . a defendant can be shown to have carried a pistol
or revolver upon his person, within the meaning of the
statute, by evidence proving, inter alia, that he grasped
or held it in his hands, arms or clothing or otherwise
bore it upon his body for any period of time while
maintaining dominion or control over it.’’ (Internal quo-
tation marks omitted.) State v. Covington, supra, 184
Conn. App. 339–40.
The state’s information charged the defendant, in
part, with carrying a pistol without a permit ‘‘in the
[c]ity of New Haven on or about December 28, 2016 in
the area of 17 Vernon Street . . . .’’ We thus review
whether the evidence supports a finding beyond a rea-
sonable doubt that on or about the day of his arrest,
the defendant bore a pistol on his person in the city of
New Haven in the area of 17 Vernon Street.
For largely the same reasons set forth in part I of
this opinion, we conclude that the jury reasonably could
have found that the defendant carried the pistol in
violation of § 29-35. As discussed previously, the jury
heard testimony that the Shot Spotter activated at 5
p.m. on December 28, 2016, which established that a
gun was fired near 17 Vernon Street in New Haven.
Marcum, who received a dispatch call at 5:04 p.m.,
arrived on scene only thirty seconds later to find the
defendant in the driveway of 9 Vernon Street walking
toward the fence line at the rear of the property that
separated it from the Howard Avenue Parking Garage
property. No other individuals were in the immediate
area. Although the defendant was compliant with Mar-
cum’s directives, he exhibited evasive conduct by mis-
leading Marcum and another officer about where he
had been coming from and where he was going. Soon
thereafter, Green found a .40 caliber Ruger handgun,
which contained the defendant’s DNA and fingerprints,
in a snowbank just over the fence from where the defen-
dant was stopped and near the location where the Shot
Spotter had activated.
On the basis of the previously described evidence
and the inferences to be drawn therefrom, the jury
reasonably could have found that the defendant carried
a pistol on his person on the day in question by holding
it in his hand and firing it at 5 p.m. in the area of Vernon
Street, and further carrying it and tossing it over a
nearby fence in an effort to dispose of it. See State v.
Covington, supra, 184 Conn. App. 339–40 (‘‘a defendant
can be shown to have carried a pistol or revolver upon
his person . . . by evidence proving, inter alia, that he
grasped or held it in his hands, arms or clothing or
otherwise bore it upon his body for any period of time
while maintaining dominion or control over it’’ (internal
quotation marks omitted)). We accordingly conclude
that there was sufficient evidence to support the jury’s
finding that the defendant was guilty of carrying a pistol
without a permit and that the court properly denied
the defendant’s motion for judgment of acquittal with
respect to that charge.
III
The defendant next claims that that the court commit-
ted plain error in charging the jury on criminal posses-
sion of a pistol.8 We disagree.
We begin our analysis of the defendant’s claim by
setting forth the legal principles that govern our review
of the claim. It is well known that ‘‘the plain error
doctrine, codified at Practice Book § 60-5, is an extraor-
dinary remedy used by appellate courts to rectify errors
committed at trial that, although unpreserved [and non-
constitutional in nature], are of such monumental pro-
portion that they threaten to erode our system of justice
and work a serious and manifest injustice on the
aggrieved party. [T]he plain error doctrine . . . is not
. . . a rule of reviewability. It is a rule of reversibility.
That is, it is a doctrine that this court invokes in order
to rectify a trial court ruling that, although either not
properly preserved or never raised at all in the trial
court, nonetheless requires reversal of the trial court’s
judgment . . . for reasons of policy. . . . In addition,
the plain error doctrine is reserved for truly extraordi-
nary situations [in which] the existence of the error is
so obvious that it affects the fairness and integrity of
and public confidence in the judicial proceedings. . . .
Plain error is a doctrine that should be invoked spar-
ingly. . . . Implicit in this very demanding standard is
the notion . . . that invocation of the plain error doc-
trine is reserved for occasions requiring the reversal of
the judgment under review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record.’’ (Footnote omit-
ted; internal quotation marks omitted.) State v. Jami-
son, 320 Conn. 589, 595–96, 134 A.3d 560 (2016).
‘‘Although a complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining the patent nature of the error,
the reviewing court must examine that error for the
grievousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice.’’ (Internal quotation marks
omitted.) State v. Sanchez, 308 Conn. 64, 77, 60 A.3d
271 (2013). Accordingly, a defendant ‘‘cannot prevail
under [the plain error doctrine] . . . unless he demon-
strates that the claimed error is both so clear and so
harmful that a failure to reverse the judgment would
result in manifest injustice.’’ (Internal quotation marks
omitted.) State v. Fagan, supra, 280 Conn. 87.
The defendant argues that the court committed plain
error when it omitted from its charge that the state
was required to prove that the defendant intended to
exercise control over the handgun to establish construc-
tive possession. After reviewing the defendant’s claim
against the plain error standard, we discern no error,
plain or otherwise.
First, the defendant’s plain error claim fails for the
fundamental reason that it rests on an incorrect prem-
ise. As we discussed in part I of this opinion, the state
was not required to prove constructive possession in
this instance. It was sufficient for the state to demon-
strate that the defendant actually possessed the firearm
in question. To that end, the court instructed the jury
in relevant part: ‘‘Possession means either actual pos-
session or constructive possession. Actual possession
means actual physical possession, such as having the
object on one’s person.’’ See footnote 3 of this opinion.
Second, on our examination of the court’s charge
discussing constructive possession; see footnote 3 of
this opinion; we find it substantially similar to those
examined in State v. Fasano, 88 Conn. App. 17, 22–24
n.7, 868 A.2d 79, cert. denied, 274 Conn. 904, 876 A.2d
15 (2005), cert. denied, 546 U.S. 1101, 126 S. Ct. 1037,
163 L. Ed. 2d 873 (2006), and State v. Elijah, 42 Conn.
App. 687, 691–92, 682 A.2d 506, cert. denied, 239 Conn.
936, 684 A.2d 709 (1996). In both cases, this court con-
cluded that those instructions sufficiently explained to
the jury the elements of the crimes charged. State v.
Fasano, supra, 33; State v. Elijah, supra, 694; see also
State v. Jarrett, 82 Conn. App. 489, 496, 845 A.2d 476(‘‘hold[ing] that a separate instruction on the require-
ment of intentional control need not be provided in
every instance’’), cert. denied, 269 Conn. 911, 852 A.2d
741 (2004). Accordingly, we cannot conclude that the
court plainly erred in the present case because the error,
if any, was not so clear and so harmful that a failure to
reverse the judgment would result in manifest injustice.
IV
The defendant’s final claim is that the court erred by
permitting two police officers to testify to the ultimate
issue of whether the defendant had intent to sell the
narcotics found on him. This claim was not properly
preserved at trial and we therefore decline to review
it on appeal.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must prop-
erly articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling. . . . Once counsel states the
authority and ground of [the] objection, any appeal will
be limited to the ground asserted.’’ (Internal quotation
marks omitted.) State v. Jorge P., 308 Conn. 740, 753,
66 A.3d 869 (2013).
The defendant takes exception to certain testimony
of Marcum and Canning about the heroin found on the
defendant’s person. He argues that the court erred by
permitting them to testify as to the ultimate issue of
whether the defendant had the intent to sell the narcot-
ics found on him. The state argues that this claim is
unpreserved because the defendant failed to object to
the evidence on this basis before the trial court. We
agree with the state.
We first begin with testimony of Marcum. During
direct examination, the prosecutor asked him: ‘‘[B]ased
on your training and experience, did you come to any
conclusions based on the way these items were pack-
aged?’’ Marcum responded, ‘‘[y]es,’’ and defense coun-
sel objected. Following this objection, the court
excused the jury and the following colloquy occurred:
‘‘[Defense Counsel]: There’s been no foundation laid,
he’s going make a conclusion that this is sale of drugs.
‘‘The Court: Well, let me—let me hear an offer of
proof. What is the answer going to be?
‘‘[The Prosecutor]: That based on the packaging and
the way it was secreted, that it was—his indication that
it was packaged in a way that was for sale and not
personal use.
‘‘The Court: Okay; and your objection is foundation?
‘‘[Defense Counsel]: Yeah, there’s no foundation that
he can make that conclusion.
‘‘The Court: Okay. You want to—do you want to
make—lay that foundation?
‘‘[The Prosecutor]: Well, Your Honor, it’s my under-
standing that any officer can testify to what his training
and experience tells him—
‘‘The Court: Yeah, but—correct, but you haven’t laid
any foundation that he has either training or experience
as it relates to how drugs are packaged for sale.
‘‘[The Prosecutor]: Well—
‘‘The Court: Okay, so you would need to lay that
foundation.
‘‘[The Prosecutor]: We can lay that foundation with
this—
‘‘The Court: Okay. I mean, for all I know, he was in
the evidence for the last seven years; what do I know?
‘‘[The Prosecutor]: Okay.
‘‘The Court: So if we could have—or he did crime
scenes, I don’t know. There’s lots of things he could’ve
done. So if we could have the jury back.’’
On the jury’s return, the court indicated that the
defendant’s objection was sustained. The prosecutor
then elicited from Marcum details of his training and
experience and, in response to further questioning, he
testified that the manner in which the drugs were hidden
on the defendant’s body, the quantity of wax paper folds
found, and the presence of $199 in small bills, were all
indicative of narcotics being sold.
We turn next to the testimony of Canning, who testi-
fied that he was the arresting officer in this case and that
Lyew was the officer who actually physically located
the narcotics on the defendant. The following colloquy
then occurred:
‘‘[The Prosecutor]: Based on your experience, Officer
Canning, what would you say the way the drugs were
packaged, what their intent was for this?
‘‘[Defense Counsel]: Your Honor, I’m going to have
to—there’s been no foundation. I don’t even know if
he even saw the drugs. He just said he got information
that they—
‘‘The Court: Yeah, fair enough.’’
The prosecutor then elicited from Canning testimony
that, although he never reviewed the narcotics that were
found on the defendant, he was informed that the defen-
dant was found with 139 individual packets of heroin,
which were located in his crotch area. The prosecutor
later asked Canning what he charged the defendant
with. Defense counsel objected on the basis of rele-
vance, but the court overruled that objection. The prose-
cutor then asked Canning why he charged the defendant
with possession of narcotics with intent to sell. Defense
counsel objected again, this time on the basis of lack
of foundation. The court overruled that objection, con-
cluding that the state laid the requisite foundation with
respect to Canning’s training and experience. Canning
then testified that he charged the defendant as he did
because street level narcotics sales are typically han-
dled in the same manner.
On the basis of our review of the record, we conclude
that the defendant failed to object on the ground that
the two police officers were testifying to an ultimate
issue of fact, the applicable objection. We agree with
the state that the defendant cannot now challenge the
proffered testimony as constituting improper opinion
testimony on an ultimate issue where the only objec-
tions raised before the trial court were on the bases of
relevance and foundation. See State v. Stenner, 281
Conn. 742, 755, 917 A.2d 28 (‘‘[t]o permit a party to raise
a different ground on appeal than [that] raised during
trial would amount to trial by ambuscade, unfair both
to the trial court and to the opposing party’’ (internal
quotation marks omitted)), cert. denied, 552 U.S. 883,
128 S. Ct. 290, 169 L. Ed. 2d 139 (2007).
As an alternative basis for our consideration of this
unpreserved claim, the defendant asks that we consider
it as a matter of plain error pursuant to Practice Book
§ 60-5. Although we fail to see how the court could have
erred by not ruling on an objection never made, suffice
it to say that such an error, if any, does not rise to the
level required for plain error review. See, e.g., State v.
Smith, 209 Conn. 423, 425, 427, 551 A.2d 742 (1988)
(finding no plain error where police officer gave opinion
testimony concerning defendant’s intent to sell narcot-
ics). ‘‘Such review is reserved for truly extraordinary
situations where the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings.’’ State v. Hinckley,
198 Conn. 77, 87–88, 502 A.2d 388 (1985). This clearly
is not such a case.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The dispatch was admitted only for its effect on the listener and not for
the truth of the matter asserted.
2
The parties stipulated that the defendant had a prior felony conviction.
3
The court’s instruction provided in relevant part: ‘‘In count two of the
information, the state accuses the defendant of the crime of criminal posses-
sion of a pistol, in violation of . . . § 53a-217c (a) (1) and alleges that on
or about December 28, 2016, in the city of New Haven, in the area of 17
Vernon Street, the defendant possessed a pistol and has been convicted of
a felony. . . .
‘‘Section 53a-217c (a) (1) states in relevant part that a person is guilty of
criminal possession of a pistol when such person possesses a pistol or
revolver and has been convicted of a felony.
‘‘To convict the defendant of criminal possession of a pistol, the state
must prove two essential elements beyond a reasonable doubt: (1) the
defendant possessed a pistol; and (2) the defendant had been convicted of
a felony.
‘‘The first essential element is that the defendant possessed a pistol. A
pistol is defined by statute to mean any firearm having a barrel less than
twelve inches in length. Possession means either actual possession or con-
structive possession. Actual possession means actual physical possession,
such as having the object on one’s person.
‘‘Constructive possession means having control over the object. As long
as the object is in a place where it is subject to the defendant’s dominion
and control, where the defendant can, if he wishes, go and get it is, it is in
his possession. Mere presence of the defendant in the vicinity is not sufficient
by itself to establish constructive possession. However, presence is a factor
you may consider along with all the other evidence in determining posses-
sion. Where the defendant was not the only person who had access to the
area where the handgun was found, you may not infer that he knew of its
presence and that he had control of it, unless he made some incriminating
statement or unless there are some other circumstances which tend to
support such an inference.
‘‘Possession also requires knowledge. The defendant must have knowingly
possessed the pistol. I defined the terms knowledge and knowingly for
you in my instruction to you in count one. You should apply those same
instructions here.
‘‘The second essential element is that at the time the defendant possessed
the pistol, if you find that he did so, he was prohibited from possessing a
pistol because he had been convicted of a felony. Convicted means having
a judgment of conviction entered by a court of competent jurisdiction. This
conviction must have occurred prior to the date it is alleged the defendant
possessed the pistol. A felony is a crime for which a person may be sentenced
to prison for more than one year. In this case, the state and the defendant
have stipulated that, prior to December 28, 2016, the defendant had been
convicted of a felony. A stipulation is an agreement between the parties
concerning the existence of a fact. You will treat this fact as true. This
stipulation, however, has been admitted for a limited purpose, that purpose
being to establish the second essential element of this offense. The stipula-
tion may not be used for any other purpose. The fact that the defendant
was previously convicted of a felony cannot—cannot be used by—cannot
be used to show or prove any element of any other crime that the defendant
is presently charged with. It also may not be used as evidence to show the
defendant had a bad character or criminal tendencies.
‘‘The state asserts that on or about December 28, 2016, the defendant had
constructive possession of a pistol in the area of 17 Vernon Street in New
Haven. The state further asserts that the parties have stipulated that the
defendant had been previously convicted of a felony.
‘‘The defendant, by pleading not guilty to this charge, has placed all of
the essential elements of the crime at issue, but has assumed no burden
whatsoever of disproving them by any standard. The burden remains on
the state to prove beyond a reasonable doubt each of the essential elements
of the offense charged.’’
Although the court made one isolated statement during its instruction
that the state was proceeding on a constructive possession theory, we find
such statement of no moment. A simple review of the court’s instruction
discloses that the court accurately instructed on both actual and constructive
possession, so such statement was inconsequential. Neither the charging
conference nor the record suggests that the state exclusively pursued a
constructive possession theory. In fact, during the charging conference, the
court and the prosecutor acknowledged that the state was required to prove
that he had physical possession of the firearm for purposes of the charge
of carrying a pistol without a permit in violation of § 29-35. It would thus
be anomalous for the state to have proceeded on a constructive possession
theory for the criminal possession charge while it was required to prove
that the defendant actually carried the weapon on his person for the carrying
a pistol without a permit charge.
4
Connecticut courts repeatedly have recognized that ‘‘[t]here is a well
established correlation between drug dealing and firearms.’’ State v. Cooper,
227 Conn. 417, 426 n.5, 630 A.2d 1043 (1993). Although this correlation
cannot by itself establish an element of a crime, it may ‘‘support the reason-
ableness of the inferences drawn by the jury.’’ State v. Gonzalez, 311 Conn.
408, 426, 87 A.3d 1101 (2014); see also United States v. White, 356 F.3d 865,
870 (8th Cir. 2004) (‘‘[w]e allow a [fact finder] to infer a connection between
drugs and firearms when a defendant distributes quantities of illegal drugs
because firearms are viewed as a tool of the trade for drug dealers’’). Thus,
the fact that 139 individual packets of heroin and 2 additional bags of it
were found on the defendant bears some relevance to the issue of whether
the defendant was in possession of the firearm.
5
We conclude that, even if the state had exclusively pursued a constructive
possession theory at trial, there was still sufficient evidence to establish
beyond a reasonable doubt that the defendant constructively possessed the
firearm on the day in question. First, there was evidence that the defendant
had a temporal and spatial connection to the handgun, having been detained
by the police near the weapon with no other individuals around, only minutes
after the Shot Spotter had registered a gunshot in the immediate area in
which he was located. Second, the defendant’s DNA and fingerprints were
on the firearm, further linking him to the weapon. See State v. Martin, 285
Conn. 135, 150, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172
L. Ed. 2d 101 (2008) (‘‘mere presence is not enough to support an inference
of dominion or control, [when] there are other pieces of evidence tying the
defendant to dominion [or] 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’’
(internal quotation marks omitted)). Third, the defendant exhibited evasive
conduct by misleading the police about where he had been coming from
and where he was going when he was stopped. Fourth, on his arrival,
Marcum discovered the defendant walking back toward the area where the
handgun was discarded.
On the basis of the foregoing, we conclude that the defendant’s location
in close proximity to the handgun, with no other individuals in the immediate
area, after the Shot Spotter activated only four minutes earlier, along with
his DNA and fingerprints on the handgun, and his decision to remain in the
vicinity of where the handgun was discarded, would allow the jury reason-
ably to infer that that he possessed the weapon.
6
On August 13, 2021, our Supreme Court released its decision in State v.
Dawson, supra, 340 Conn. 138. This decision came after the parties in the
present case had submitted their briefs but before oral arguments. In Daw-
son, our Supreme Court reversed this court’s decision affirming the defen-
dant’s conviction of criminal possession of a pistol in violation of § 53a-217c.
Id., 139. Our Supreme Court concluded that the evidence was insufficient
to convict the defendant on the basis of constructive possession because,
among other reasons, the gun the defendant was accused of having control
over was found by the police in a public place, within reach of several
individuals who were with the defendant, and, although the defendant’s
DNA profile was on the gun, it was mixed with the DNA of others who
were not identified. Id., 156–57, 162. At oral argument before us in the
present case, the defendant argued that this case is controlled by Dawson and
that his conviction should be reversed for the same reasons that supported
reversal in Dawson. The defendant’s reliance on Dawson is misplaced. First,
as discussed in this opinion, we view the state’s theory in the present
case as being based on actual possession, not exclusively on constructive
possession, as was the case in Dawson. See id., 152. Second, the circumstan-
tial evidence connecting the defendant to the gun in the present case is
much stronger than was the circumstantial evidence in Dawson. See footnote
5 of this opinion.
7
The parties stipulated that the defendant did not have a valid Connecticut
pistol permit on December 28, 2016, as required by General Statutes § 29-
28, which satisfied that element of carrying a pistol without a permit.
8
The defendant recognizes that he did not distinctly raise an objection
to the jury instruction before the trial court. Citing to State v. McClain, 324
Conn. 802, 815, 155 A.3d 209 (2017), which held that an implicit waiver of
the constitutional right to challenge jury instructions on direct appeal in
accordance with State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942(2011), does not preclude appellate relief under the plain error doctrine,
the defendant seeks review solely under the plain error doctrine.