Opinion
H15NCR130270260
01-06-2017
State of Connecticut v. Robert Cane
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
Maureen M. Keegan, JUDGE
The defendant, Robert Cane, stands convicted by a jury of the following crimes: two counts of criminal possession of a firearm, three counts of criminal possession of ammunition, one count of possession of a controlled substance with intent to distribute or sell, and one count of possession of a controlled substance with intent to distribute or sell within 1, 500 feet of a school. He has filed this motion for judgment of acquittal on the two drug counts. The defendant argues that the state failed to prove beyond a reasonable doubt both that he (1) possessed or controlled the marijuana found in his home, and (2) that he so possessed or controlled the marijuana with the intent to distribute or sell. For the reasons stated herein, the motion is denied as to count six and granted as to count seven.
General Statutes 53a-217(a)(1).
General Statutes 53a-217(a)(1).
General Statutes 21a-277(b).
General Statutes 21a-278a(b).
The jury reasonably could have found the following facts based upon the evidence presented. On October 7, 2013, the New Britain police were dispatched to the home of the defendant to investigate an allegation of a kidnapping and assault that occurred at his home over the weekend of October 5 to October 7, 2013. The complaint included statements from the alleged victim that guns were present inside the defendant's home. After an approximately forty-five-minute standoff at the residence between the highly agitated defendant and the police, the defendant was taken into custody and the police conducted a protective sweep of the house. The police obtained a search and seizure warrant, and on October 8, 2013, seized the following items pursuant to the warrant: a garbage bag weighing approximately ten pounds containing marijuana plants; numerous empty plastic zip lock baggies; a beam scale; and two separate quantities of marijuana from a plate and a wooden box.
The validity of the sweep was argued and ruled upon by the court after a motion on a hearing to suppress. It is not the subject of this motion.
Evidence presented established that the plant-like materials were tested and showed the presence of THC; the defendant does not contest this finding for purposes of this motion.
All of the items were entered as full exhibits at trial. The garbage bag of marijuana was seized from the attic of the defendant's home. At the time of trial, the marijuana contained in the garbage bag was three years old. An inspection of the contents of the bag showed that the marijuana was dried and crumbled. The scale, box and plate with marijuana were found in a second-floor bedroom. These items were seized from the same table, all located within inches of the other as depicted in exhibit 109. The baggies, exhibit 41, are in fact two types of numerous smaller plastic baggies found within one larger baggie. There is one loose blue baggie and fifty-four pairs of blue baggies attached at the perforation between the zip lock ends. There are three loose black spade baggies and twenty-four similar pairs attached. The size of the individual baggie is two inches by two and one-half inches. The total number of individual baggies is one hundred sixty.
The defendant argues that the jury relied upon speculation in order to find proven the elements of possession and control over the marijuana, as well as intent to distribute or sell the marijuana, because of the lack of evidence presented by the state.
In order to prove possession with intent to distribute or sell a controlled substance, the state must prove the following elements beyond a reasonable doubt: the defendant knowingly possessed, either actually or constructively, a controlled substance with the specific intent to distribute or sell. Our courts have long recognized that " knowledge" and " intent" are legal principles whose proof often depends upon inference; that is, if the proven facts and circumstances form a logical basis for the inference, the jury is permitted to infer " knowledge" and " intent" on the part of a defendant.
In the present case, the evidence was unequivocal that the marijuana, scale and baggies were seized inside of the defendant's home pursuant to a search warrant on Tuesday, October 8, 2013. The evidence also established that on September 30, 2013 the defendant invited two women, previously unknown to him, to " live" in his home, until he kicked them out of the house on Sunday October 6, 2013. One witness, a friend and former girlfriend of the defendant's, credibly testified that she observed two women leaving the defendant's home with their belongings at approximately 10:30 p.m. on October 6, 2013. She further testified that the women made " three to four trips" to their car with their belongings. Testimony from this former girlfriend, as well as from one of the women invited to " live" in the house and the defendant's videotaped statement to the police all established that during the week in question, the defendant and the women ingested narcotic pills. Testimony from the former girlfriend also established that the defendant moved into the house in 2009 in order to take care of elderly parents, who were deceased at the time of the incident.
At the time of the seizure of the items, the evidence presented supports the conclusion that the defendant was the sole occupant of the home and therefore possessed the marijuana. It is a reasonable inference that as the owner and sole occupant of the home, the defendant knew where marijuana was located and he was able to access it. The two women had left his home, at least sixteen hours prior to his arrest, with numerous belongings gathered in three to four trips. In his videotaped statement, the defendant told the police numerous times that the two women stole from him coins and jewelry. The jury reasonably could have inferred that the defendant, convinced he had valuable items stolen from him, would have checked his home to make sure nothing else was taken. The fact that the contraband was still present when the police entered pursuant to the search and seizure warrant permits the logical and reasonable finding that the defendant was in possession of the marijuana. Moreover, the defendant's behavior with the police supports an inference that he knew what was inside his house, as he went to great lengths to keep the police at bay. See, e.g., State v. Williams, 110 Conn.App. 778, 787, 956 A.2d 1176 (2008) (the behavior of a defendant may be considered in determining constructive possession). The jury reasonably concluded that the defendant was in exclusive possession of the home.
If, however, the jury found that the defendant was not in sole possession of the home because of the presence of the two women in the house in the week prior to the seizure, the credible evidence supports the reasonable and logical conclusion that the defendant was in constructive possession of the marijuana. It is well established that " mere presence" at the location where contraband is found is insufficient to establish possession. Presence, however, may be a material and probative factor for a factfinder to consider along with other evidence. This is not a case of " mere presence." The court is guided by the decision in State v. Mangual, 311 Conn. 182, 215-16, 85 A.3d 627 (2014), wherein our Supreme Court found insufficient evidence of exclusive possession and control of narcotics. In Mangual, supra, the defendant's inculpatory statement showing her knowledge of the location of narcotics was suppressed. A review of the remaining evidence presented to the jury demonstrated that although the defendant lived in the apartment where the drugs were found, no other evidence linked the defendant to the narcotics. Rather, the evidence linked another resident of the apartment to the narcotics. As long as the contraband is in a place where it is subject to the defendant's dominion and control, where the defendant can go and get it, it is in his possession and that possession is illegal, if he knew of the character of the substance and knew its presence.
The court was not persuaded that the hearsay statement of a confidential informant, contained in a search warrant affidavit which became a full exhibit, could be characterized as " powerful evidence of the defendant's guilt." State v. Mangual, 311 Conn. at 216.
In the present case, the defendant was the owner and occupier of the home where the marijuana was found. He had just kicked out two women he suspected of stealing from him. The garbage bag was large, and when seized weighed approximately ten pounds. The garbage bag was found in the attic, an area not commonly accessible to visitors. The other marijuana seized was found in plain view, on a table in a bedroom on the same floor as the defendant's bedroom, in direct proximity to a gram-measuring beam scale. If the defendant is alleging that the marijuana was brought by the two women into his home, isn't a logical and reasonable inference that they would have taken it with them, when they were allowed to remove their other items? These incriminating circumstances support the conclusion that the defendant was the one in possession of the marijuana, whether it was actual or constructive.
The defendant also argues that there was insufficient evidence, and only speculation, to support the jury's finding that he possessed the marijuana with the intent to distribute or sell. Further evidence presented at trial is relevant here. Detective Adam Rembisz of the New Britain police department testified as an expert witness on the pattern of conduct that could show intent to possess with the intent to sell as opposed to intent to possess for oneself. See, State v. Walton, 227 Conn. 32, 60, 630 A.2d 990 (1993). Rembisz, on the basis of his training and experience, opined that drug sellers commonly use a scale to weigh their product for sale and use zip lock baggies to package their substance for sale. He also testified that individuals who possess marijuana for personal use commonly possess the means to ingest the drug, such as rolling papers or a bong. Finally, he opined that users of marijuana typically possess small amounts of the drug. The presence in the defendant's home of a scale, numerous zip lock baggies, and a garbage bag of marijuana was sufficient evidence for the jury to conclude that the defendant possessed the substance with the intent to sell it. Moreover, that conclusion was supported by the close physical proximity of the marijuana to the beam scale and the logical inference therefrom that the scale's purpose was to weigh marijuana.
Although not raised by the defendant in his motion, the court reviews the evidence presented for sufficiency to sustain a conviction on the seventh count of the information, possession with intent to sell within a school zone. On the basis of State v. Stovall, 316 Conn. 514, 524, 115 A.3d 1071 (2015), the court holds that the state has failed to meet its burden of proof on the element of the defendant's intent to sell the marijuana at some location within 1500 feet of the Gaffney elementary school. As in Stovall, the state produced no evidence from which the jury reasonably could have inferred that the defendant intended to sell within 1, 500 feet of the school. The evidence established that the defendant's home was within 1, 500 feet of the school, that he possessed and controlled the marijuana, and did so with the intent to sell. That body of evidence, however, failed to provide any probative value as to an intent to sell from the location. See also, State v. Kalphat, 134 Conn.App. 232, 241, 38 A.3d 209 (2012) (the fact that the contraband was stored in the defendant's home within the prohibited area was not probative of whether the defendant intended to sell the drugs there). The defendant is entitled to a judgment of acquittal on the seventh count.
Therefore, the motion for judgment of acquittal is denied as to count six and granted as to count seven.