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STATE OF CONNECTICUT v. AMELIA RHODES
(SC 20070)
Palmer, McDonald, D’Auria, Mullins, Ecker,
Vertefeuille and Prescott, Js.*
Syllabus
Convicted of, among other crimes, criminal possession of a firearm and
having a weapon in a motor vehicle, the defendant appealed. The defen-
dant had been driving a car with a passenger, S, a drug dealer with
whom the defendant had a long-standing relationship. They drove around
for approximately forty-five minutes, stopped at a gas station-conve-
nience store, and then drove for another forty-five minutes. The defen-
dant then stopped the car in the lane of travel as they approached a
large, outdoor social gathering, and S exited the car and fired multiple
gunshots from a gun he had been carrying. S then reentered the car
and instructed the defendant to drive. Police officers witnessed the
shooting, and a high-speed police chase ensued, after which the defen-
dant and S were ultimately apprehended. On appeal, the defendant
claimed that the state failed to prove beyond a reasonable doubt that
she possessed a firearm and, therefore, that there was insufficient evi-
dence to sustain her conviction of criminal possession of a firearm. The
defendant also contended that there was insufficient evidence to support
her conviction of having a weapon in a motor vehicle. Held:
1. There was sufficient evidence from which the jury reasonably could have
found that the defendant constructively possessed the firearm that S
used in the shooting, as the record contained sufficient circumstantial
evidence that the defendant knew that the firearm was in the car and
that she was in a position to and intended to control the firearm, and,
accordingly, this court upheld the defendant’s conviction of criminal
possession of a firearm: the jury reasonably could have inferred that,
by the time of the police chase, the defendant knew that the firearm
was in the vehicle, the defendant likely knew that S was a drug dealer
and that he, therefore, often carried a gun, the fact that the defendant
was driving and thereby controlling the car suggested that she was able
to and intended to control the firearm, the defendant’s attempt to flee
from the police after the shooting indicated a consciousness of guilt
stemming from her knowledge of and intent to exercise control over
the gun, the jury reasonably could have inferred that the defendant and
S were not just close friends but willing partners in a joint criminal
venture, and, in view of the fact that there was no evidence indicating
that the firearm was anywhere other than in the area of the front seat,
the jury reasonably could have inferred that she was physically in a
position to exercise control over it; moreover, there was no merit to
the defendant’s contention that, because S testified that he had actively
sought to conceal the firearm on his side of the car by sitting on it or
by keeping it between his seat and the passenger’s side door, her convic-
tion of criminal possession of a firearm could not stand, as the jury was
not required to credit the testimony of S, who lacked credibility and
whose testimony was at odds with other evidence presented and the
relationship between S and the defendant, whose interests were aligned;
furthermore, this court declined to adopt the defendant’s position that,
because S allegedly had actual possession of the firearm, she could not
have constructively possessed that firearm.
2. The defendant could not prevail on her claim that there was insufficient
evidence to support her conviction of having a weapon in a motor
vehicle on the ground that the ‘‘knowingly has’’ element of the statute
((Rev. to 2013) § 29-38 (a)) under which she was convicted should be
construed to mean ‘‘knowingly possesses’’: constructive possession of a
firearm would support a conviction even under the defendant’s proposed
reading of § 29-38 (a), as constructive possession requires knowledge
and control of the object, and, in light of this court’s conclusion that there
was sufficient evidence that the defendant constructively possessed a
firearm in connection with her conviction of criminal possession of a
firearm, the defendant also must have knowingly possessed that firearm
for purposes of her conviction under § 29-38 (a); moreover, the jury’s
finding that the defendant constructively possessed a firearm for pur-
poses of her conviction of criminal possession of a firearm rendered
any potential instructional error harmless, the trial court did not commit
plain error in applying the law concerning the construction of the term
‘‘knowingly has’’ in § 29-38 (a) that existed at the time of the defendant’s
trial, and this court declined the defendant’s request to exercise its
supervisory authority over the administration of justice to resolve an
issue of statutory construction and evidentiary sufficiency, as that
authority is generally reserved for the adoption of procedural rules.
(One justice concurring separately; three justices
concurring and dissenting in one opinion)
Argued September 12, 2018—officially released March 27, 2020**
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of attempt to
commit assault in the first degree, carrying a pistol
without a permit, having a weapon in a motor vehicle,
interfering with an officer, using a motor vehicle with-
out the owner’s permission and reckless driving, and, in
the second part, with criminal possession of a firearm,
brought to the Superior Court in the judicial district of
Fairfield, where the first part of the information was
tried to the jury before Kahn, J.; thereafter, the court,
Kahn, J., granted the defendant’s motion for a judgment
of acquittal as to the charge of carrying a pistol without
a permit; subsequently, verdict of guilty of having a
weapon in a motor vehicle, using a motor vehicle with-
out the owner’s permission and reckless driving; there-
after, the second part of the information was tried to
the jury before Kahn, J.; verdict of criminal possession
of a firearm; subsequently, the court, Kahn, J., rendered
judgment in accordance with the verdicts, from which
the defendant appealed. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Michael A. DeJoseph, senior assistant state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. The defendant, Amelia Rhodes, chal-
lenges her conviction of criminal possession of a fire-
arm in violation of General Statutes (Rev. to 2013) § 53a-
217 (a)1 and having a weapon in a motor vehicle in
violation of General Statutes (Rev. to 2013) § 29-38 (a).2
The evidence presented to the jury at her trial showed
that she drove an armed passenger, Lamar Spann,
around Bridgeport for ninety minutes, including to and
from the place where Spann discharged a weapon. The
defendant appeals, arguing that there was insufficient
evidence to establish that she constructively possessed
a firearm under § 53a-217 (a) or that she knowingly
had a firearm under § 29-38 (a). We disagree with the
defendant and affirm the judgment of the trial court.
As both of the defendant’s claims on appeal challenge
the sufficiency of the evidence, we first must construe
the evidence in the light most favorable to sustaining
the verdict and then determine whether, on the basis
of those facts and the inferences reasonably drawn from
them, the jury reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. See, e.g., State v. James
E., 327 Conn. 212, 218, 173 A.3d 380 (2017). ‘‘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 rea-
sonable view of the evidence that supports the [jury’s]
verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Taupier, 330 Conn. 149, 187, 193 A.3d 1 (2018),
cert. denied, U.S. , 139 S. Ct. 1188, 203 L. Ed.
2d 202 (2019).
With these principles in mind, our review of the
record discloses the following relevant facts that the
jury could have reasonably found. At the time of the
shooting at issue, the defendant and Spann had a rela-
tionship going back as many as seven years. Spann had
been a drug dealer for much of this time, and, because
of the risks involved in that enterprise and the need to
coerce payments from customers, he commonly carried
a firearm. According to Spann’s testimony, the defen-
dant ‘‘[m]aybe’’ knew he was a drug dealer. Between
July 29 and August 17, 2013, the two had once or twice
gone together to a rental car agency where Spann had
rented a black Chevrolet Impala.
On the afternoon of August 17, 2013, Spann left his
home, driving the Impala and carrying a nine millimeter
semiautomatic handgun that was not equipped with a
silencer. At about 4 p.m., he picked up the defendant
at her home. At the defendant’s request, she drove the
Impala while Spann sat in the front passenger seat.
The defendant and Spann were together in the car
for nearly all of the next ninety minutes. For the first
forty-five minutes, the defendant drove ‘‘around’’ with
no apparent destination. At about 4:45 p.m., they
stopped at a gas station-convenience store, and Spann
went inside. Surveillance images of him in the store are
inconclusive as to whether the gun was on his person
or whether it remained with the defendant in the Impala.
After Spann reentered the car, the defendant drove for
another forty-five minutes. Spann testified that he kept
the gun ‘‘under [his] lap’’ or sat on it during this portion
of their drive.
At about 5:30 p.m., they approached a large outdoor
social gathering near a housing complex on Trumbull
Avenue in Bridgeport. The defendant stopped the car
in the lane of travel rather than driving toward the
sidewalk and stopping there. Spann then exited the car,
fired multiple gunshots from the weapon, and reentered
the car.
After reentering the car, Spann told the defendant to
drive. Unbeknownst to them, however, police officers
had been stationed nearby and witnessed the shooting.
When the officers attempted to block the Impala with
their patrol car, the defendant maneuvered around them
and continued along Trumbull Avenue with the officers
in pursuit. She proceeded to weave between pedestri-
ans, drive past multiple stop signs without stopping and
drive at high rates of speed. After a 1.2 mile car chase,
the defendant crashed the car as she approached a
highway entrance ramp. Spann testified that, during the
car chase, the gun was ‘‘on the side of [him] . . . in
between the seat and the door.’’
After the crash, the defendant and Spann fled on foot.
The police found the defendant hiding in an unlit sewer
in waist-deep water and arrested her. Spann, who ini-
tially evaded the police, testified that he disposed of
the gun while the police chased him but was arrested
after appearing at the Bridgeport police station and
falsely reporting that the Impala had been stolen. The
police never recovered the gun. Spann pleaded guilty
under the Alford doctrine3 to various charges related
to this incident and was sentenced. He did not face
additional criminal exposure as a result of his testimony
at the defendant’s trial. Additional facts will be set forth
as necessary.
The record also reveals the following procedural his-
tory. The state charged the defendant in a two part
substitute information with seven offenses stemming
from the incident: (1) attempt to commit assault in the
first degree in violation of General Statutes §§ 53a-59
(a) (1) and 53a-49 (a) (2); (2) carrying a pistol without
a permit in violation of General Statutes § 29-35 (a); (3)
having a weapon in a motor vehicle in violation of § 29-
38 (a); (4) interfering with a peace officer in violation
of General Statutes § 53a-167a (a); (5) using a motor
vehicle without the owner’s permission in violation of
General Statutes § 53a-119b (a) (1); (6) reckless driving
in violation of General Statutes § 14-222 (a); and (7)
criminal possession of a firearm in violation of § 53a-
217 (a).
After two days of evidence, the trial court granted
the defendant’s motion for a judgment of acquittal on
the charge of carrying a pistol without a permit, stating
that ‘‘the court certainly heard evidence from which a
jury could conclude that [the defendant] constructively
possessed the gun’’ but not that she had ‘‘carried [the
firearm] on . . . her person,’’ as required by § 29-35
(a).4 The jury found the defendant not guilty of
attempted assault and interfering with an officer but
found her guilty of having a weapon in a motor vehicle,
using a motor vehicle without the owner’s permission,
and reckless driving. The jury then separately heard
evidence of the defendant’s prior convictions for the
sale of hallucinogens or narcotics in violation of General
Statutes § 21a-277 (a) and stealing a firearm in violation
of General Statutes § 53a-212, and found her guilty of
criminal possession of a firearm.
The defendant appealed to the Appellate Court, and
the appeal was transferred to this court. See General
Statutes § 51-199 (c); Practice Book § 65-1. On appeal,
the defendant challenges her conviction of criminal pos-
session of a firearm and having a weapon in a motor
vehicle.5 We reject both of these claims.
I
The defendant claims first on appeal that the state
failed to prove beyond a reasonable doubt that she
‘‘possessed’’ a firearm and, therefore, that there was
insufficient evidence to convict her of criminal posses-
sion of a firearm under § 53a-217 (a). She argues that
the evidence established only that she and the firearm
were in the same car at the same time and that, on the
basis of this alone, the jury could not reasonably infer
that she possessed the firearm. We disagree and con-
clude that the record contains sufficient circumstantial
evidence, beyond mere proximity, that the defendant
knew the firearm was in the car, was in a position
to control it, and intended to control it. We therefore
conclude that there was sufficient evidence from which
the jury reasonably could have found that the defendant
constructively possessed a firearm.
‘‘A party challenging the validity of the jury’s verdict
on grounds that there was insufficient evidence to sup-
port such a result carries a difficult burden.’’ (Internal
quotation marks omitted.) Gagliano v. Advanced Spe-
cialty Care, P.C., 329 Conn. 745, 754, 189 A.3d 587
(2018). In particular, before this court may overturn a
jury verdict for insufficient evidence, it must conclude
that ‘‘no reasonable jury’’ could arrive at the conclusion
the jury did. State v. Terwilliger, 314 Conn. 618, 660,
104 A.3d 638 (2014). Although ‘‘the jury must find every
element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense . . .
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v.
Taupier, supra, 330 Conn. 187.
A
1
A defendant is guilty of criminal possession of a fire-
arm if (1) the defendant ‘‘possesses’’ a firearm, (2) the
defendant is a convicted felon, and (3) the firearm is
operable.6 The defendant disputes only whether she
‘‘possessed’’ the firearm for purposes of § 53a-217 (a).
‘‘ ‘Possess’ means to have physical possession or oth-
erwise to exercise dominion or control over tangible
property . . . .’’ General Statutes § 53a-3 (2). There-
fore, possession may be actual or constructive. See,
e.g., State v. Butler, 296 Conn. 62, 77, 993 A.2d 970
(2010). This court consistently has held that construc-
tive possession 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
[contraband]’’; (internal quotation marks omitted) id.,
62; and ‘‘contemplates a continuing relationship
between the controlling entity and the object being
controlled. Webster’s Third New International Diction-
ary defines the noun ‘control’ as the ‘power or authority
to guide or manage.’ . . . [It] is not the manifestation
of an act of control but instead it is the act of being in
a position of control coupled with the requisite mental
intent. . . . [T]his control must be exercised intention-
ally and with knowledge of the character of the con-
trolled object.’’ (Emphasis added.) State v. Hill, 201
Conn. 505, 516, 523 A.2d 1252 (1986).
In particular, and important to the defendant’s claim,
we have observed that ‘‘[i]ntent is often inferred from
conduct . . . and from the cumulative effect of the
circumstantial evidence and the rational inferences
drawn therefrom.’’ (Internal quotation marks omitted.)
State v. James E., supra, 327 Conn. 218. So, too, can
knowledge of the contraband and an intent to control
it be inferred. See State v. Simino, 200 Conn. 113, 119,
509 A.2d 1039 (1986) (knowledge is ‘‘[o]rdinarily’’
inferred). However, ‘‘mere control or dominion over
the place in which the contraband is found is not enough
to establish constructive possession . . . . [T]he gov-
ernment is required to present direct or circumstantial
evidence to show some connection or nexus individu-
ally linking the defendant to the contraband.’’ (Internal
quotation marks omitted.) State v. Johnson, supra, 316
Conn. 62. Under the doctrine of nonexclusive posses-
sion, more than one person can possess contraband.
State v. Williams, 258 Conn. 1, 7, 778 A.2d 186 (2001).
However, ‘‘[w]here the defendant is not in exclusive
possession of the premises where the [contraband is]
found, it may not be inferred that [the defendant] knew
of the presence of the [contraband] and had control of
[it], unless there are other incriminating statements or
circumstances tending to buttress such an inference.’’
(Internal quotation marks omitted.) Id.
2
Notably, the defendant has not raised a claim of
vagueness or instructional error. See State v. Luurt-
sema, 262 Conn. 179, 204, 811 A.2d 223 (2002) (declining
to address potential vagueness challenge to criminal
statute because ‘‘defendant has attacked only the suffi-
ciency of the evidence . . . without reference whatso-
ever to the constitutionality of the . . . statute’’), over-
ruled in part on other grounds by State v. Salamon, 287
Conn. 509, 513–14, 949 A.2d 1092 (2008). She also does
not argue, even with respect to her insufficiency claim,
that this court should revisit the definition of ‘‘construc-
tive possession’’ that we consistently have applied. In
fact, the language we cite appears almost verbatim
throughout her brief, which is consistent with both the
statutory definition of possession in our Penal Code;
General Statutes § 53a-3 (2); and with our prior deci-
sions interpreting that definition, which were based on
our well settled principles of statutory interpretation.
See, e.g., State v. Hill, supra, 201 Conn. 516 (defining
‘‘control’’ under § 53a-3 (2) as ‘‘power or authority to
guide or manage’’ (internal quotation marks omitted)).7
In addressing the jury, the prosecutor, defense counsel,
and the trial court all referred to this as the practical
ability of the defendant to ‘‘go and get’’ the gun, or the
practical ability to obtain actual physical possession
of it. Defense counsel made the defendant’s physical
access to the gun the sole point of his closing argument,
focusing specifically and exclusively on whether the
gun ‘‘was in a place where the defendant could, if she
wishes, go and get it . . . .’’8 The prosecutor responded
to defense counsel in rebuttal argument,9 and the court
instructed the jury on this theory.10
We agree with the United States Court of Appeals
for the District of Columbia Circuit that this standard
appropriately accounts for the deference we must
afford to the jury and the practical problems of proof
in the nonexclusive possession context: ‘‘[W]e would
adhere to that concept in preference to artificial rules
restricting evidence-sufficiency rules that would inevi-
tably invade the traditional province of the jury . . . .
The judge’s task intensifies . . . when the accused’s
relationship to the premises is shared with others, and
consequently the problems of knowledge and control
intensify. . . . [I]n full recognition of the increased dif-
ficulties that the [g]overnment then faces, we reiterate
that the sufficiency of the evidence for jury consider-
ation depends upon its capability plausibly to suggest
the likelihood that in some discernible fashion the
accused had a substantial voice vis-à-vis the [contra-
band].’’ (Emphasis added; footnotes omitted.) United
States v. Staten, 581 F.2d 878, 883–84 (D.C. Cir. 1978).
Because the defendant has not asked us to depart from
it, and because we are bound by our legislature’s defini-
tions and prior decisions of this court, we adhere to
our settled understanding of constructive possession.
B
With respect to the facts of the present case, the
defendant’s challenge is to the sufficiency of the evi-
dence in accordance with established Connecticut law.
The record clearly entitled the jury to find that the
defendant possessed the car she was driving.11 Thus,
the issue is whether it was reasonable for the jury to
infer that she also possessed the firearm within the car.
A case for constructive possession of a firearm often
is necessarily built on inferences, and a jury ‘‘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.
James E., supra, 327 Conn. 218. A jury also ‘‘may draw
factual inferences on the basis of already inferred
facts.’’ (Internal quotation marks omitted.) State v. Coc-
como, 302 Conn. 664, 670, 31 A.3d 1012 (2011).
The ‘‘line between permissible inference and imper-
missible speculation is not always easy to discern.’’
(Internal quotation marks omitted.) State v. Lewis, 303
Conn. 760, 768, 36 A.3d 670 (2012). ‘‘[P]roof of a material
fact by inference from circumstantial evidence need
not be so conclusive as to exclude every other hypothe-
sis,’’ but it must suffice to produce ‘‘in the mind of
the trier a reasonable belief in the probability of the
existence of the material fact.’’ (Internal quotation
marks omitted.) State v. Copas, 252 Conn. 318, 339–40,
746 A.2d 761 (2000). ‘‘When we infer, we derive a conclu-
sion from proven facts because such considerations as
experience, or history, or science have demonstrated
that there is a likely correlation between those facts
and the conclusion. If that correlation is sufficiently
compelling, the inference is reasonable. But if the corre-
lation between the facts and the conclusion is slight,
or if a different conclusion is more closely correlated
with the facts than the chosen conclusion, the inference
is less reasonable. At some point, the link between the
facts and the conclusion becomes so tenuous that we
call it speculation. When that point is reached is,
frankly, a matter of judgment.’’ (Internal quotation
marks omitted.) State v. Lewis, supra, 768–69. We there-
fore also must bear in mind that ‘‘jurors are not expected
to lay aside matters of common knowledge or their own
observations and experiences . . . . [C]ommon sense
does not take flight when one enters a courtroom.’’
(Citation omitted; internal quotation marks omitted.)
State v. Otto, 305 Conn. 51, 70 n.17, 43 A.3d 629 (2012).
Our review of the evidence finds several ‘‘circum-
stances tending to buttress . . . an inference’’; (inter-
nal quotation marks omitted) State v. Williams, supra,
258 Conn. 7; that the defendant had the knowledge of
and intent to control the firearm that our law requires
for a finding of constructive possession, including facts
and inferences that reasonably permitted the jury to
conclude that, in all probability, she had the ability to
‘‘go and get’’ the gun.
1
There was no serious argument at trial that the defen-
dant lacked knowledge of the gun. At the very least,
the jury reasonably could have inferred from the evi-
dence that, by the time of the car chase, the defendant
knew that a gun was in the vehicle. Spann exited the
car openly carrying the firearm in his hand and fired
multiple gunshots within no more than twenty feet of
the car. In his testimony, Spann acknowledged that the
defendant ‘‘[p]robably’’ heard the gunshots.12 Spann also
testified that he got back into the car with the gun.
Spann’s testimony was corroborated, in part, by the
testimony of the police officers who witnessed the
shooting and testified that, immediately after firing his
weapon, Spann entered the vehicle.
Additionally, the defendant likely knew Spann was a
drug dealer and, therefore, that he often carried a gun.
See, e.g., State v. Clark, 255 Conn. 268, 284, 764 A.2d
1251 (2001) (‘‘Connecticut courts repeatedly have noted
that [t]here is a well established correlation between
drug dealing and firearms’’ (internal quotation marks
omitted)). The jury is permitted to ‘‘rely on its common
sense, experience and knowledge of human nature in
drawing inferences’’; State v. Rodgers, 198 Conn. 53, 59,
502 A.2d 360 (1985); and ‘‘may draw factual inferences
on the basis of already inferred facts.’’ (Internal quota-
tion marks omitted.) State v. Coccomo, supra, 302 Conn.
670. On the basis of the defendant’s knowledge that
Spann was a drug dealer who often carried a gun, it
was not ‘‘so unreasonable [an inference] as to be unjusti-
fiable’’ for the jury to infer that she knew that he pos-
sessed a gun in the car. (Internal quotation marks omit-
ted.) Id. This evidence and the inferences that rea-
sonably could be drawn therefrom make it impossible
for this court to conclude that ‘‘no reasonable jury’’
could have found that the defendant had knowledge of
the gun. Thus, the jury reasonably could have inferred
that, at the very least, the defendant became aware that
the firearm was in the car after the shooting.
2
Our review of the record in the light most favorable
to sustaining the verdict leads us to find at least four
circumstances, which the jury could have reasonably
relied on, that ‘‘tend[ed] to buttress . . . an inference’’;
(internal quotation marks omitted) State v. Williams,
supra, 258 Conn. 7; that the defendant was intentionally
‘‘in a position of control’’ over the gun; State v. Hill,
supra, 201 Conn. 516; or did exercise control over the
gun: her control of the car, her flight from the police,
her relationship with Spann, and her physical access
to the gun. We discuss each in turn.
First, the fact that the defendant was driving, and
thereby controlling, the car that she knew contained
the gun suggests that she was able to and intended to
control the gun. Although we are mindful that ‘‘mere
control or dominion over the place in which the contra-
band is found is not enough to establish constructive
possession’’13 and that ‘‘some connection or nexus indi-
vidually linking the defendant to the contraband’’ is
required; (internal quotation marks omitted) State v.
Johnson, supra, 316 Conn. 62; the facts and circum-
stances of this case provided the jury with ample justifi-
cation to conclude that the defendant’s control of the
car, at least in part, supported the jury’s conclusion
that she also controlled the firearm. Coupled with other
evidence, ‘‘[o]ne who owns or exercises dominion or
control over a motor vehicle in which [contraband] is
concealed may be deemed to possess the contraband.’’
(Internal quotation marks omitted.) State v. Delossan-
tos, 211 Conn. 258, 277–78, 559 A.2d 164, cert. denied,
493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989);
see, e.g., State v. Winfrey, 302 Conn. 195, 211, 24 A.3d
1218 (2011) (fact that defendant was driving vehicle in
which contraband was found supported inference of
constructive possession of that contraband); State v.
Bowens, 118 Conn. App. 112, 123, 982 A.2d 1089 (2009)
(‘‘defendant was driving the [car] containing the
revolver, which itself suggests control of the firearm’’),
cert. denied, 295 Conn. 902, 988 A.2d 878 (2010); State
v. Sanchez, 75 Conn. App. 223, 241, 815 A.2d 242 (‘‘[t]he
drugs were found in a car [the defendant] was operating
and, thus, had control over’’), cert. denied, 263 Conn.
914, 821 A.2d 769 (2003).
Second, after Spann had discharged the weapon, the
defendant attempted to evade the police, who had
begun pursuit, first in the car and then on foot. The
jury reasonably could have found that these attempts
at flight, coming right after Spann had fired the gun
and gotten back in the car, indicated a consciousness
of guilt stemming from her knowledge of and intent to
exercise control over the gun, leading the jury to find
that she possessed it. Specifically, the jury reasonably
could have inferred that her maneuver around the patrol
car and the ensuing car chase were deliberate—and
successful—efforts to prevent the police from finding
the firearm and, thus, exertions of dominion or control
over it. See, e.g., State v. Butler, supra, 296 Conn. 79
(defendant’s effort to ‘‘conceal’’ contraband supported
inference of control); State v. Bowens, supra, 118 Conn.
App. 124 (defendant’s effort to ‘‘jettison the revolver’’
supported inference of control); United States v. Cham-
bers, 918 F.2d 1455, 1458 (9th Cir. 1990) (‘‘[c]onduct by
the driver of a vehicle that appears intended to aid a
passenger in disposing of the [contraband] is probative
of joint possession’’).
Notably, because of her prior felony convictions, the
defendant had been expressly informed that it was ille-
gal for her to possess a firearm14—a fact the prosecutor
highlighted in his closing argument. The jury was asked
to view the car chase in the context of the entire after-
noon. Evidence about the periods before, during and
after the car chase set forth throughout this opinion
bolster the conclusion that the defendant—who dis-
claimed any argument that she acted under duress—
was not just passively following orders when she sped
away from the police, weaved around pedestrians, and
passed multiple stop signs without stopping over the
course of 1.2 miles. To the extent that the jury found
her high-speed exit from the crime scene was an effort
to escape capture, it reasonably could have inferred
her consciousness of guilt on the basis of this evidence.
See, e.g., State v. Wright, 198 Conn. 273, 281, 502 A.2d
911 (1986). ‘‘The probative value of evidence of flight
depends upon all the facts and circumstances and is a
question of fact for the jury.’’ (Internal quotation marks
omitted.) Id. Particularly in light of her knowledge that
it was illegal for her to possess a gun, it was reasonable
for the jury to infer that the defendant’s flight was
motivated by a belief that she had broken the law by
possessing a gun and a desire to escape prosecution
for it.
The concurring and dissenting justice takes issue
with our conclusion that the record supports the jury’s
reasonable reliance on the defendant’s flight as evi-
dence supporting her intent to control the gun. He pre-
fers his own alternative explanation for the defendant’s
leading the police on a 1.2 mile high-speed car chase,
ending in a crash after which the defendant and Spann
fled on foot separately. We are told there are several
more benign reasons for her flight, including that she
was helping Spann, that she feared Spann, that she
feared the police or that she was escaping before
another crime she had committed was discovered.15
Defense counsel argued some of these alternative expla-
nations to the jury. In the concurring and dissenting
justice’s view, the ‘‘least plausible’’ motive was a desire
to exercise control over the gun. To judge the plausibil-
ity of these explanations, the concurring and dissenting
justice relies on and credits the entirety of Spann’s
testimony, which, as we explain in part I B 3 of this
opinion, the jury was not required to credit. Even if the
record supported the concurring and dissenting jus-
tice’s speculative accounting of the defendant’s actions,
this court consistently has explained that the possibility
of other, innocent ‘‘inferences from these facts is not
sufficient to undermine [the jury’s] verdict . . . .’’
(Internal quotation marks omitted.) State v. Otto, supra,
305 Conn. 74. ‘‘[I]n viewing evidence [that] could yield
contrary inferences, the jury is not barred from drawing
those inferences consistent with guilt and is not
required to draw only those inferences consistent with
innocence.’’ (Internal quotation marks omitted.) Id.16
Third, the state’s overarching theory of the whole
case was that the defendant intended to facilitate the
shooting by acting as Spann’s getaway driver. The pros-
ecutor specifically asked the jury to draw this inference
on the basis of evidence of the defendant’s yearslong
friendship with Spann. The evidence was not just that
she associated with a known criminal. Rather, she had
made recent trips to the car rental agency with Spann.
Spann trusted her enough to allow her to drive the car
he rented in his name on the day of the incident.17 Spann
began shooting almost immediately upon getting out of
the car, and the defendant waited for Spann to get back
in the car after she witnessed the shooting and then
drove him from the scene. She could have driven away
without him. Instead, she fled from the police, both
with Spann and then apart from him, after crashing the
car.18 From all of the evidence, the jury reasonably could
have inferred that the defendant and Spann were not
just close friends but willing partners in a joint criminal
venture: specifically, that she was driving him and his
weapon to and from the scene of a shooting. ‘‘[A] defen-
dant’s knowing participation in a joint criminal venture
in which a particular firearm is intended to play a central
part permits the jury to reasonably conclude that the
defendant constructively possessed that gun. . . . This
is true even if the defendant never intended to use the
firearm [her]self . . . .’’ (Citation omitted.) United
States v. Perez, 661 F.3d 568, 576–77 (11th Cir. 2011),
cert. denied, 566 U.S. 952, 132 S. Ct. 1943, 182 L. Ed.
2d 799 (2012), and cert. denied sub nom. Davila v.
United States, 568 U.S. 874, 133 S. Ct. 355, 184 L. Ed.
2d 133 (2012); see, e.g., State v. Williams, 110 Conn.
App. 778, 789, 956 A.2d 1176 (driver’s ‘‘complicity with
the occupants of the car in a criminal enterprise’’ sup-
ported inference of constructive possession), cert.
denied, 289 Conn. 957, 961 A.2d 424 (2008); Logan v.
United States, 489 A.2d 485, 492 (D.C. 1985) (evidence
that driver ‘‘acted in concert’’ with passenger to dispose
of firearm supported inference of constructive posses-
sion); United States v. Chambers, supra, 918 F.2d 1458
(driver’s conduct ‘‘intended to aid a passenger,’’ and
‘‘cooperating’’ with passenger with actual possession
supported inference of constructive possession);
United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.
1982) (evidence of ‘‘cooperative venture’’ and ‘‘working
relationship’’ supported inference of constructive pos-
session). That the defendant was the getaway driver,
spiriting the gun and Spann away from the scene of the
shooting, was a reasonable inference from these facts
and supports a finding that the defendant intended to
control the gun.19
Finally, the defendant sat within arm’s reach of the
gun throughout the afternoon. Spann testified to this.
He also testified that, after firing the gun, he brought
it back into the car and sat in the front passenger seat
during the car chase, taking the gun with him when he
fled from the police on foot after the crash. The two
officers who witnessed the shooting corroborated
Spann’s account, testifying that, after the car stopped,
Spann exited the car, fired the gun almost immediately,
and reentered the car. Despite the defendant’s having
Spann testify in her defense, there was never any evi-
dence that the gun was anywhere other than in the area
of the front seat, and, therefore, the jury reasonably
could have inferred that she was physically ‘‘in a posi-
tion of control’’ over it, given her proximity to the gun.
State v. Hill, supra, 201 Conn. 516; cf. State v. Boyd,
115 Conn. App. 556, 568, 973 A.2d 138 (evidence that
contraband was found ‘‘ ‘right at [defendant’s] feet’ ’’
supported inference of constructive possession), cert.
denied, 293 Conn. 912, 978 A.2d 1110 (2009); State v.
Williams, supra, 110 Conn. App. 787–88 (evidence that
contraband was ‘‘within arm’s reach’’ of defendant sup-
ported inference of constructive possession). There
was no evidence that the gun was anywhere other than
in the front passenger seat area at all relevant times,
and the defendant does not contend otherwise.
On the basis of these four inferences, we cannot
conclude that ‘‘no reasonable jury’’ could have found
that the defendant was in a position of control over the
gun. The concurring and dissenting justice disagrees,
arguing that there was no evidence of particular facts—
such as that the defendant was involved in Spann’s drug
enterprise or that the defendant previously had handled
the gun—that would have established a link between
the defendant and the gun. Although such facts might
have helped to establish constructive possession, the
absence of this evidence does not require the conclu-
sion that there was insufficient evidence. See, e.g., State
v. Ayala, 333 Conn. 225, 236, 215 A.3d 116 (2019)
(although physical evidence linking defendant to mur-
der would have made state’s case stronger, lack of such
evidence did not necessarily render state’s case weak).
3
If the defendant were alone in the car and knew a
gun was located in the front seat area—for example, if
Spann had fired the gun and placed it under the passen-
ger seat of the car, between the seats or in the trash
receptacle of the passenger’s door, but did not get in
the car, and the defendant sped away—there would be
no serious argument that the defendant could not ‘‘go
and get’’ the gun and, therefore, that she possessed
the gun. However, the defendant responds that Spann’s
testimony that he had exclusive possession of the gun
prevented the jury from finding that she was in a posi-
tion of control over the gun. Specifically, she contends
that the pains Spann asserts he took to hide the gun
from her defeat the state’s attempt to prove her guilty
of the possession charge.
The defendant called Spann as a witness in an effort
to exonerate her on the gun possession charge on the
basis of his testimony that the gun was with him in the
front passenger seat and in his exclusive possession
during the entire ninety minutes he and the defendant
were in the car before the shooting, as well as after the
shooting. Specifically, Spann testified that he actively
hid or kept the gun from the defendant all afternoon
by sitting on it, holding it or keeping it next to him
between the seat and the passenger’s side door. The
jury did not have to credit this evidence, however, which
was based entirely on the testimony of an unreliable
witness and was at odds with the rest of the evidence
of the day’s events and the relationship between Spann
and the defendant, which suggested that their interests
were aligned.
In fact, staking the success of her defense on Spann’s
testimony could very well have backfired on the defen-
dant. Spann’s testimony can be seen as a textbook
example of a case of a jury exercising its prerogative
to ‘‘credit part of a witness’ testimony and [to] reject
other parts.’’ Hicks v. State, 287 Conn. 421, 435, 948
A.2d 982 (2008). Specifically, the jury was entitled to
credit Spann’s testimony that the gun was located in
the area of the front seat while discrediting his claims
that he physically held the gun in a way that prevented
the defendant from accessing it, such as by keeping it
hidden ‘‘under [his] lap’’ the whole time or by holding
it ‘‘on the side of [him] . . . in between the seat and
the door’’ during the car chase.
Spann was hardly a credible witness. The jury heard
that he previously had lied to the police about the inci-
dent (e.g., his false claim that the Impala had been
stolen) and heard about his potential biases (e.g., that
he only came forward to exonerate the defendant after
his own conviction and sentencing and, thus, testified
without the threat of additional criminal exposure). The
jury also heard several inconsistencies within his own
testimony (e.g., his inconsistent responses about
whether the defendant knew he had a gun) and the
contradictory testimony of other witnesses (e.g., his
testimony that he fired the gunshots five to ten minutes
after getting out of the car against the testimony of two
police officers that he fired almost immediately after
getting out of the car). The jury repeatedly was made
aware of these credibility issues throughout the ques-
tioning and reminded of them during the prosecutor’s
summations.
The jury had good reason to question Spann’s credi-
bility: it reasonably could have found his testimony
evasive or, at best, ambiguous,20 and his story about
the gun’s location not just unbelievable and uncorrobo-
rated, but risible. His tale seeking to exonerate the
defendant, including his claim that, for the ninety
minutes he was with the defendant in the car that day,
he assiduously kept the gun where she could not get
it, including by sitting on it for stretches of time, strained
credibility. Given their relationship, the jury was enti-
tled to view this explanation with skepticism.21
This is an excellent example of why we repeatedly
admonish appellate courts to leave credibility determi-
nations to the jury and not become a ‘‘ ‘seventh juror’
. . . .’’ State v. Ford, 230 Conn. 686, 693, 646 A.2d 147
(1994); see id. (‘‘[w]e do not sit as the ‘seventh juror’
when we review the sufficiency of the evidence’’). The
prosecutor’s examination is peppered with frustration
and acerbic exchanges as Spann engaged in evasion,
sarcasm or flippancy, or so the jury reasonably could
have found. In relevant part, the transcript reads:
‘‘Q. All right. Now, you’re familiar with the sound that
firearms make, correct?
‘‘A. Mm-hmm.
‘‘Q. And you’d agree that from twenty feet away, you
can hear a nine millimeter being fired?
‘‘A. Probably.
‘‘Q. All right. So, you fired the shots and then get
back in the car?
‘‘A. Yeah.
‘‘Q. And when you get back in the car, the gun’s not
underneath your—your—the gun’s in your hand, still,
when you get back in the car?
‘‘A. Yeah.
‘‘Q. So, at that point, [the defendant] knows you have
a gun? Right?
‘‘A. Well—
‘‘Q. It’s a yes or no question.
‘‘A. Maybe.
’’Q. Come on. You just fired two or three shots, you
get back in the car, you’re yelling at her to go—
‘‘A. I wasn’t yelling—
‘‘Q. You—she knows what you do for a living, right?
‘‘A. I mean, I didn’t yell at her.
‘‘Q. But she knows what you do for a living, right?
‘‘A. Say that again.
‘‘Q. She knows what you do for a living?
‘‘A. Maybe.’’ (Emphasis added.)
The reader can be forgiven for imagining the jurors’
eyes rolling during this exchange.22
In considering this testimony, which the defendant
advanced for the jury’s consideration, the jury reason-
ably could have questioned why Spann would go to
such lengths to prevent her from having access to the
gun. Was he afraid she would use the gun on him? There
was no evidence of this. Was he anticipating getting
caught and wanting to ensure that she had no criminal
liability, or that he would? Using common sense, as the
state urged in evaluating this after-the-fact,23 concocted
story, the jury could have rejected that he was that
noble,24 or prescient. In fact, that Spann would have
felt the need to hide or keep the gun from the defendant
is at odds with evidence suggesting that his and the
defendant’s interests were aligned. For example, the
jury heard that Spann and the defendant had a yearslong
friendship; they had recently gone to the car rental
agency together at least once and possibly multiple
times regarding the Impala; Spann knew where the
defendant lived and drove there to pick her up; Spann
trusted the defendant enough to let her drive a car
rented in his name; Spann and the defendant had spent
the previous ninety minutes together in the car; and
the defendant waited for Spann to get back in the car
after the shooting before fleeing from the police. Con-
versely, no evidence (other than Spann’s claims) sug-
gested that he would have felt the need to keep or hide
the gun from the defendant.
If the jury in fact rejected Spann’s uncorroborated
claim of exclusive possession, not believing that for
every moment of the afternoon Spann was carefully
holding, sitting on, or secreting the gun in a fashion so
that the defendant was never in a position to go and
get it, it remains unrefuted that the gun was in the front
passenger compartment of the car, within arm’s reach
of the defendant. Surely, the jury was not compelled
to conclude that the gun magically disappeared just
because it disbelieved Spann’s story of his own exclu-
sive possession. The jury was therefore entitled to infer
that the defendant would have had access to and control
over it.25
Thus, under this court’s definition of ‘‘possession,’’
and viewing the evidence in the light most favorable to
sustaining the verdict, as we must, we conclude that
the facts and inferences reasonably drawn from these
facts sufficiently established the defendant’s construc-
tive possession of the firearm beyond a reasonable
doubt. ‘‘[P]roof beyond a reasonable doubt does not
mean proof beyond all possible doubt . . . nor does
proof beyond a reasonable doubt require acceptance
of every hypothesis of innocence posed by the defen-
dant that, had it been found credible by the [jury], would
have resulted in an acquittal.’’ (Internal quotation marks
omitted.) State v. Taupier, supra, 330 Conn. 187. The
defendant, the prosecutor and the court each asked the
jury to consider whether the defendant could ‘‘go and
get’’ the gun. The jury concluded that she could. There
is certainly ‘‘a reasonable view of the evidence’’ that
supports this conclusion. (Internal quotation marks
omitted.) State v. Taupier, supra, 187. Therefore, we
affirm her conviction of criminal possession of a
firearm.
C
Alternatively, the defendant argues that the nonexclu-
sive possession doctrine does not apply in this case
because Spann actually possessed the firearm. She
maintains that actual possession is exclusive—that is,
if one party has actual possession, another party may
not also have constructive possession. She cites no
authority for this proposition, however, basing this
argument on the fact that no Connecticut court has yet
applied the doctrine in a scenario involving a third party
who actually possessed the firearm. She notes that Con-
necticut courts have applied the nonexclusive posses-
sion doctrine only in situations in which the firearm
was unattended or there was evidence that the defen-
dant had actually possessed it previously.
We decline to adopt the defendant’s position. Even
if we assume that Spann actually possessed the firearm
for the entire afternoon—which the parties dispute,
which the jury may very well have rejected, and which
we do not decide—we find nothing in the doctrine itself,
its policy, or its application in this or other jurisdictions
to suggest that it is limited to cases involving construc-
tive possessors only. As a general concept in our crimi-
nal law, ‘‘[p]ossession may be joint as where two or
more persons have dominion and control over the arti-
cles involved and where such persons are all acting at
the time pursuant to a common purpose.’’ (Internal
quotation marks omitted.) State v. Gabriel, 192 Conn.
405, 422–23, 473 A.2d 300 (1984). More specifically, this
court has tacitly recognized on at least one occasion
that ‘‘circumstances tending to buttress . . . an infer-
ence’’ of constructive possession; (internal quotation
marks omitted) State v. Williams, supra, 258 Conn. 7;
may arise regardless of who physically holds contra-
band at a given time, citing favorably to a case in which
a defendant constructively possessed contraband when
she drove a vehicle but a third party ‘‘sitting beside her,
had the [contraband] in a gym bag . . . .’’ United States
v. Crockett, 813 F.2d 1310, 1316 (4th Cir.) (cited by State
v. Delossantos, supra, 211 Conn. 278), cert. denied, 484
U.S. 834, 108 S. Ct. 112, 98 L. Ed. 2d 71 (1987), and cert.
denied sub nom. Crews v. United States, 484 U.S. 834,
108 S. Ct. 112, 98 L. Ed. 2d 71 (1987).
Outside of Connecticut, courts have applied the non-
exclusive possession doctrine in scenarios similar to
the present case—namely, to hold that a driver con-
structively possessed a firearm held by a passenger.
E.g., United States v. Richardson, Docket No. 87-5006,
1987 WL 38924, *3 (4th Cir. November 2, 1987); Logan
v. United States, supra, 489 A.2d 492. Other courts have
gone further, holding that a defendant constructively
possessed a firearm even though someone else held it
and the defendant lacked any physical connection to
it. See, e.g., People v. Casanas, 170 App. Div. 2d 257,
258, 566 N.Y.S.2d 7 (defendant constructively possessed
firearm pointed at victim by codefendant during rob-
bery because ‘‘[codefendant’s] display of the weapon
was part of the original robbery plan’’), appeal denied,
77 N.Y.2d 959, 573 N.E.2d 581, 570 N.Y.S.2d 493 (1991);
State v. Jennings, 335 S.C. 82, 87, 515 S.E.2d 107 (App.
1999) (defendant constructively possessed firearm used
by friend during robbery because he ‘‘directed’’ and
‘‘instructed’’ friend to retrieve it, display it during rob-
bery, and hide it after robbery). Accordingly, we reject
the defendant’s argument and affirm the conviction of
criminal possession of a firearm.
II
The defendant’s second claim on appeal is that there
was insufficient evidence to support her conviction of
having a weapon in a motor vehicle in violation of § 29-
38 (a). A person who ‘‘knowingly has’’ a weapon in a
vehicle without a permit is guilty of violating that stat-
ute.26 The defendant argues that, contrary to the legisla-
ture’s intent, Connecticut courts have misconstrued the
phrase ‘‘knowingly has’’ to criminalize mere knowledge
of a firearm’s presence in a vehicle ‘‘owned, operated
or occupied by’’ the defendant. This construction has
arisen from the Appellate Court’s interpretation of the
statute in State v. Mebane, 17 Conn. App. 243, 551 A.2d
1268, cert. denied, 210 Conn. 811, 556 A.2d 609, cert.
denied, 492 U.S. 919, 109 S. Ct. 3245, 106 L. Ed. 2d 591
(1989). In Mebane, a defendant convicted under General
Statutes (Rev. to 1985) § 29-38 argued that the jury
should have been instructed that ‘‘knowingly has’’
meant ‘‘knowingly possesses . . . .’’ (Internal quota-
tion marks omitted.) Id., 245. The court declined to
‘‘limit the scope of the statute’’ in this way, reasoning:
‘‘The statute is not concerned with possession or owner-
ship of a weapon, but rather aims to penalize those who
know that there is a weapon inside a motor vehicle.’’
Id., 246.
The defendant now asks this court to overrule Meb-
ane and to interpret ‘‘knowingly has’’ to mean ‘‘know-
ingly possesses.’’ She thereby argues that her conviction
must be reversed for insufficient evidence, on the basis
of her mere knowledge of the firearm’s presence in the
Impala. Relying on the same grounds, she alternatively
raises claims of instructional error and plain error; see
Practice Book § 60-5; and asks this court to exercise
its supervisory authority over the administration of jus-
tice to reverse her conviction.
Even if we were to assume, without deciding, that
‘‘knowingly has’’ means ‘‘knowingly possesses,’’ con-
structive possession of a firearm would support a con-
viction even under the defendant’s proposed reading
of the statute. As set forth in part I of this opinion,
possession may be actual or constructive, with con-
structive possession requiring knowledge and control
of the object. Because knowledge is a necessary ele-
ment of constructive possession, a person who con-
structively possesses an object also knowingly pos-
sesses it. Thus, in light of our conclusion that there was
sufficient evidence that the defendant constructively
possessed a firearm in connection with her conviction
under § 53a-217 (a), we reach the same conclusion to
support her conviction under § 29-38 (a).
Similarly, the jury’s finding that the defendant con-
structively possessed a firearm under § 53a-217 (a) ren-
ders any potential instructional error harmless. Nor do
we find plain error in the proper application of the law
existing at the time of trial, which was the construction
announced in Mebane. See State v. Turner, 334 Conn.
660, 684, 224 A.3d 129 (2020) (it is axiomatic that proper
application of law existing at time of trial cannot consti-
tute reversible error under plain error doctrine); State
v. Diaz, 302 Conn. 93, 104 n.8, 25 A.3d 594 (2011) (same).
Finally, recognizing that the exercise of our supervisory
authority over the administration of justice is generally
reserved for the adoption of procedural rules, we
decline to exercise it to resolve this issue of statutory
construction and evidentiary sufficiency. See, e.g., In
re Yasiel R., 317 Conn. 773, 790–91, 120 A.3d 1188 (2015)
(adopting procedural safeguard requiring trial courts
to canvass parents who do not consent to termination
of their parental rights prior to start of termination trial
to ensure fairness). Therefore, we affirm the conviction
without reaching the merits of the defendant’s argu-
ment.
The judgment is affirmed.
In this opinion MULLINS, VERTEFEUILLE and PRES-
COTT, Js., concurred.
* This case was originally argued before a panel of this court consisting
of Justices Palmer, McDonald, D’Auria, Mullins, Ecker and Vertefeuille.
Thereafter, Judge Prescott was added to the panel and has read the briefs
and appendices, and listened to a recording of the oral argument prior to
participating in this decision.
** March 27, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Hereinafter, all references to § 53a-217 are to the 2013 revision.
2
Hereinafter, all references to § 29-38 are to the 2013 revision.
3
Pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27
L. Ed. 2d 162 (1970), a defendant who enters a guilty plea does not admit
guilt but, rather, acknowledges that the state’s case is so strong that he is
willing to enter a plea of guilty.
4
General Statutes § 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. . . .’’
5
The defendant does not challenge her conviction of using a motor vehicle
without the owner’s permission and reckless driving.
6
General Statutes (Rev. to 2013) § 53a-217 (a) provides in relevant part:
‘‘A person is guilty of criminal possession of a firearm or electronic defense
weapon when such person possesses a firearm or electronic defense weapon
and . . . has been convicted of a felony . . . .’’
7
In State v. Hill, supra, 201 Conn. 505, we went on to conclude: ‘‘The
New York construction of an identical statute, however, combined with our
approval of the same interpretation in a related context . . . and the com-
mon usage of the phrase ‘to exercise dominion or control,’ ineluctably lead[s]
us to conclude that the trial judge’s instructions in the present case were
not erroneous.’’ (Citation omitted.) Id., 517; see also People v. Manini, 79
N.Y.2d 561, 573, 594 N.E.2d 563, 584 N.Y.S.2d 282 (1992) (‘‘the [p]eople must
show that the defendant exercised ‘dominion or control’ over the property
by a sufficient level of control over the area in which the contraband is
found’’); United States v. Brown, 422 F.3d 689, 692 (8th Cir. 2005) (‘‘[c]on-
structive possession of the firearm is established if the defendant [had]
dominion over the premises where the firearm was located’’ (internal quota-
tion marks omitted)).
8
In his closing argument, defense counsel made the following statements
about the defendant’s physical access to the gun: ‘‘As long as the object is
or was in a place where the defendant could, if she wishes, could go and
get it, it is in her possession’’; ‘‘[the defendant has constructive possession]
[a]s long as the object is or was in a place where the defendant, if she
wishes to, could go and get it’’; ‘‘could [the defendant] get that gun?’’;
‘‘[t]here’s no information that was presented to you that . . . she can go
and get it’’; and, ‘‘[d]o you think that [Spann] would relinquish that weapon?’’
9
In his rebuttal argument, the prosecutor stated: ‘‘It’s a Chevy Impala,
this is not—it’s a limited space. You have pictures of the car. Could she get
it? It’s right there in the car where she is. She’s—she can exercise dominion
and control within this relatively small space of the interior of the Chevy
Impala.’’
10
The court instructed the jury in part: ‘‘As long as the object is or was
in a place where the defendant could, if she wishes, go and get it, it is in
her possession’’; the court repeated the instruction after a question from
the jury during its deliberations.
11
Apart from disputing her intent to control the firearm, the defendant
appears to argue that she even may have lacked the intent to control the
car during the chase. At trial, her counsel argued to the jury that she merely
was following Spann’s orders to drive away from the shooting. Similarly,
in her reply brief and at oral argument before this court, her appellate
counsel argued that she had no choice but to drive away after the shooting
out of fear for her personal safety. The defendant did not raise the affirmative
defense of duress in the trial court, however, and, in fact, specifically dis-
claimed it. The trial court therefore did not instruct the jury on duress. We
are not bound to consider a claim not raised until the defendant’s reply
brief and oral argument. See State v. Jose G., 290 Conn. 331, 341 n.8, 963
A.2d 42 (2009); Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005),
cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). Nonethe-
less, her counsel argued to the jury that she was merely following Spann’s
orders to drive away from the shooting. The jury quite clearly rejected this
argument. At any rate, the issue of intent to control the gun pervaded the
trial and was for the jury to determine. Given that she continued to drive
the car after the shooting until it crashed, we are not persuaded that the
evidence, viewed in the light most favorable to sustaining the verdict, pre-
vented the jury from rejecting the argument that she was acting strictly at
Spann’s behest and finding instead that she intended to control the car.
12
It is undisputed that Spann fired the gun after exiting the car, but he
and other witnesses gave conflicting accounts of the details. According to
Spann himself, he exited the Impala with the gun in his hand, walked behind
the car, and spoke to some acquaintances for five to ten minutes. Then,
standing about twenty feet from the car, he fired two or three gunshots up
in the air, then ‘‘[c]almly, coolly’’ walked to the car, and got back in. Although
Spann testified that the defendant ‘‘[p]robably’’ heard the gunshots and was
‘‘shocked’’ when he reentered the car, he initially claimed that she did not
know he was carrying a gun at this point. Later in his testimony, however,
he conceded that ‘‘[m]aybe’’ the defendant knew he had a gun by this time.
Three witnesses contradicted the specifics of Spann’s story. Two Bridge-
port police officers each claimed to have witnessed the shooting from a
patrol car parked a few buildings away from where the defendant stopped
the car. They testified that Spann fired almost immediately after getting out
of the Impala, that he was only a few steps outside of the car when he did
so, that he aimed toward either a crowd of people or a building, and that
he fired five gunshots. The third witness, a forensics expert, confirmed that
five shell casings were found at the scene and that each had been fired
from the same nine millimeter semiautomatic handgun. He did not testify as
to whether the casings were fired specifically from Spann’s gun, presumably
because the gun was never recovered. The jury reasonably could have chosen
to believe these witnesses instead of Spann.
13
Our conclusion on these facts does not suggest that the driver of a
vehicle is deemed to be in constructive possession of every item she knows
to be in a passenger’s actual possession. Intent to control contraband—an
element of constructive possession in Connecticut—may not be inferred
‘‘unless there are other incriminating statements or circumstances tending
to buttress such an inference.’’ (Internal quotation marks omitted.) State v.
Williams, supra, 258 Conn. 7. Driving the vehicle in which the contraband
is located is one such circumstance, but we have not suggested that it is
dispositive. See, e.g., State v. Martin, 285 Conn. 135, 149–50, 939 A.2d 524
(‘‘[o]ne factor that may be considered in determining whether a defendant
is in constructive possession of [contraband] is whether he is in possession
of the premises where the [contraband is] found’’ (internal quotation marks
omitted)), cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101 (2008).
In the present case, additional circumstances under which the defendant
operated the vehicle—most notably, that she drove the vehicle to the place
where Spann discharged the gun, waited for him to get back in the vehicle
with the gun after the shooting, notwithstanding that she was a felon, and
drove the vehicle 1.2 miles while being chased by the police in an effort
to evade arrest for her participation in the shooting—in our view clearly
buttressed an inference of an intent to control the gun contained within the
vehicle but perhaps would not support an intent to control, for instance,
Spann’s cell phone or wallet.
14
The shooting involved in this case is an excellent example of the reasons
supporting the legislature’s proscription of felons exercising control over
guns.
15
Without a hint of irony, the concurring and dissenting justice suggests
that, after the defendant’s friend, Spann, fired several gunshots on a city
street, the defendant led the police on a dangerous high-speed chase because
she was worried she might get pinched for unlawfully driving a car she had
not rented herself.
16
In support of his argument about flight, the concurring and dissenting
justice cites Alberty v. United States, 162 U.S. 499, 510, 16 S. Ct. 864, 40 L.
Ed. 1051 (1896), for the proposition that, when there are ‘‘ ‘so many reasons’ ’’
for the defendant’s flight, evidence of flight does not establish guilt. Alberty
is distinguishable. It was not a sufficiency of the evidence case. Rather, it
concerned a jury instruction that ‘‘created a legal presumption of guilt so
strong and so conclusive that it was the duty of the jury to act on it as
axiomatic truth . . . .’’ Id. There was no such instruction given or challenged
in this case. In fact, the concurring and dissenting justice quotes selectively
from Alberty, which recognized that the weight of flight evidence is up to
the jury: ‘‘[B]ut [flight] and similar evidence has been allowed upon the
theory that the jury will give it such weight as it deserves, depending upon
the surrounding circumstances.’’ (Internal quotation marks omitted.) Id. In
the present case, the jury was instructed consistent with the holding in
Alberty: ‘‘The [s]tate claims that the defendant fled from the scene of the
shooting, that she engaged in a police pursuit, and ran from the vehicle
. . . . It is for you to decide what that conduct was and what the defendant’s
purpose or reason was for acting as she did.’’
17
Applying its common sense, the jury likely knew that most rental agree-
ments do not permit a person to drive a car rented in another’s name. The
jury heard evidence that this rental agreement was no exception.
18
Critical to his insufficiency point, the concurring and dissenting justice
insists that the state did not argue its getaway driver theory to the jury on
the gun possession charge but only on the attempted assault charge. He
attempts to use the jury’s acquittal of the defendant on the attempted assault
charge to suggest that the jury did not find, on the basis of the evidence of
the defendant’s close relationship with Spann, that the defendant was the
getaway driver as support for its determination that the defendant construc-
tively possessed the gun. This ignores the record and a fundamental maxim
of appellate review.
The trial court bifurcated the trial, submitting the criminal possession
charge to the jury after it had returned a verdict on the other charges,
including finding the defendant not guilty on the charges of attempted assault
and interfering with a police officer. Although the prosecutor specifically
made the getaway driver argument in his closing relating to the charges the
jury first considered, and did not directly repeat it in his closing argument
relating to the possession charge, he did argue in connection with the
possession charge that the defendant was ‘‘well aware of the gun . . . before
the shots were discharged’’ and that the jury could find joint possession,
both of which suggest that the shooting was a collaborative effort. Moreover,
the prosecutor and the court both noted that the jury could rely on evidence
from the first portion of the trial. Forced to admit that it was ‘‘not impossible’’
for the jury to have arrived at what the concurring and dissenting justice
contends were inconsistent verdicts, the concurring and dissenting justice
nonetheless insists that it was ‘‘unlikely, to say the least . . . .’’ But when
we read the record in the light most favorable to sustaining the jury’s
verdict, the acquittal on the attempted assault charge was not at all factually
inconsistent with the jury’s guilty verdict on the possession charge, and
surely not far-fetched. In fact, there is good reason to believe the jury did
just as defense counsel implored it to do on the attempted assault charge,
the most serious of the charges the defendant faced: found her not guilty
for lack of intent, not because she was not the getaway driver.
An element of assault is intent to cause serious physical injury to another
person. See General Statutes § 53a-59 (a) (1). Witnesses to the shooting
gave conflicting testimony about where Spann was aiming when he fired
the gun. The testimony of the two witnessing police officers was substantially
similar in almost all respects but differed on this point—one officer said
that Spann fired his gun in the direction of several pedestrians on the
sidewalk; the other said that Spann fired toward a building. Spann himself
testified that he fired up in the air. See footnote 12 of this opinion. This is
not a testimonial discrepancy of an alternative theory the state would be
expected to argue to the jury concerning the attempted assault charge—
which exposed the defendant to the longest sentence among all of the
charges. But defense counsel did make this very argument, underscoring
this evidentiary discrepancy to the jury in closing, along with the absence
of other eyewitness and forensic evidence of where Spann was aiming.
Finally, factually inconsistent jury verdicts are not just permissible, but
unreviewable. See, e.g., State v. Arroyo, 292 Conn. 558, 585–86, 973 A.2d
1254 (2009) (claims of factual, logical and legal inconsistency between con-
viction and acquittal are not reviewable), cert. denied, 559 U.S. 911, 130 S.
Ct. 1296, 175 L. Ed. 2d 1086 (2010). Rather, a court reviewing the sufficiency
of the evidence on one count ‘‘should examine only whether the evidence
provided sufficient support for the conviction, and not whether the convic-
tion could be squared with verdicts on other counts.’’ State v. Blaine, 168
Conn. App. 505, 512, 147 A.3d 1044 (2016), remanded in part on other
grounds, 325 Conn. 918, 163 A.3d 618 (2017); see State v. Arroyo, supra,
576–83. The main thesis of the concurring and dissenting justice’s alternative
narrative—that the jury must have rejected the getaway driver theory in
finding the defendant not guilty on the attempted assault charge—conflicts
with this elementary rule. On this record, the jury reasonably could have
concluded that the state failed to prove beyond a reasonable doubt that,
like Spann, the defendant had the intent to cause serious physical injury to
another person while still concluding that she and Spann brought the gun
to Trumbull Avenue for the purpose of firing it and that the defendant
would serve as the getaway driver. But regardless, that is not a question
appropriately before us. The only question we may examine is whether there
was sufficient evidence for the jury to have found the defendant guilty on
the criminal possession charge.
19
Possession under these circumstances does not depend on a criminal
conviction of a related offense. But, even if it did, the defendant was in fact
convicted of related criminal offenses directly or indirectly involving the
gun: having a weapon in a motor vehicle, using a motor vehicle without the
owner’s permission, and reckless driving.
20
Spann’s testimony that the gun was between his passenger seat and the
side door during the car chase was ambiguous as to whether he was physi-
cally holding the gun. The following colloquy occurred during the prosecu-
tor’s cross-examination of Spann:
‘‘Q. All right. So, you fire off these shots. You agree the noise is so much
she would have heard. You get back in the car, tell her to go, go, go. And
the gun’s still in your hand?
‘‘A. It was on the side of me.
‘‘Q. It’s in your hand, it’s not underneath you like it was when you were
driving around for forty-five minutes with the gun under your lap?
‘‘A. No, it was on the side—it was on the side of the door. Like on the
side—in between the seat and the door.’’
21
Because the defendant—not the state—called Spann as a witness, this
is not a case in which the danger arises that the state might make its case
simply by ‘‘calling [its] adversary and arguing to the jury that he was not
to be believed.’’ Janigan v. Taylor, 344 F.2d 781, 784–85 (1st Cir.), cert.
denied, 382 U.S. 879, 86 S. Ct. 163, 15 L. Ed. 2d 120 (1965). This risk is the
main justification for the rule, sometimes referred to as the ‘‘antithesis
inference,’’ that, when there is no ‘‘positive evidence’’ otherwise supporting
the witness’ testimony, the jury is not free to infer the opposite of what the
witness testified simply because it disbelieved Spann. See, e.g., State v.
Alfonso, 195 Conn. 624, 634, 490 A.2d 75 (1985); Edwards v. Grace Hospital
Society, 130 Conn. 568, 575, 36 A.2d 273 (1944). That is not what occurred
here. Spann himself indicated that the gun was located in a part of the car
(the area of the front passenger seat) where the defendant could ‘‘go and
get it’’ but for Spann’s supposed efforts to prevent her from doing so. That
was the ‘‘positive evidence.’’ Spann’s testimony that he immediately got
back into the car after firing his weapon was corroborated by the police
officers’ testimony. The jury could have believed the ‘‘positive evidence’’ of
the gun’s location without believing Spann’s account of his preventative
efforts.
The other main reason for barring an antithesis inference is also absent
here: reliance on demeanor evidence. If a jury concluded that a witness
was lying on the basis of demeanor alone, and inferred the opposite of what
the witness claimed, an appellate court would not be able to judge the
sufficiency of that inference; on review, nothing in the record could support
it. See State v. Hart, 221 Conn. 595, 605–606, 605 A.2d 1366 (1992) (‘‘[o]ur
rule barring the inference of the opposite of testimony . . . is an evidentiary
issue concerning the proper method of measuring the sufficiency of the
evidence’’ (citations omitted)). Here, however, we do not have to resort to
Spann’s demeanor for evidence of his lack of credibility. As previously
discussed—and more importantly, in the transcript—the jury heard Spann
admit that he had lied to the police about the same incident, admit that he
had a motive to be untruthful, provide inconsistent responses to questioning,
and contradict the testimony of other witnesses.
22
Other examples of Spann’s recalcitrance abound, making it hard to
imagine that the jury believed much of his testimony in the defendant’s
defense. Here is one example the jury could have justifiably found to be
not just eye-rolling but sidesplitting. Critical to Spann’s exoneration of the
defendant on the criminal possession charge was that she did not have
physical access to the gun or, in the words of defense counsel and the jury
instructions, that she could not ‘‘go and get it . . . .’’ So, Spann went to
great lengths to insist there was no way the defendant could ‘‘go and get’’
the gun. The following colloquy occurred during the prosecutor’s cross-
examination of Spann:
‘‘Q. Okay. So, after being out of the car for five to ten minutes, you then
remove the nine millimeter from where you had it?
‘‘A. I—I got—I removed it, when I got out of the car. When I got out [of]
the car, I took it with me.
‘‘Q. Oh, okay. So, it was not on your person in the car?
‘‘A. It was under my lap, so, when I got out, I took it with me.
‘‘Q. What do you mean, under your lap? You were sitting on it?
‘‘A. Yeah.
‘‘Q. You were sitting on a gun?
‘‘A. Yeah.
‘‘Q. That had to be uncomfortable?
‘‘A. It’s not that uncomfortable.
‘‘Q. Driving around for forty-five minutes with a piece of metal under you?
‘‘A. It’s not that uncomfortable.
‘‘Q. All right. So—so, you get out of the car and you have to reach back
to get the gun off—off the seat?
‘‘A. No.
‘‘Q. Okay. And before you get out of the car, you have to reach under
your lap to pull the gun out?
‘‘A. No.
‘‘Q. Hmm. All right. How does the gun then get from under your lap to
into your hand?
‘‘A. Open the door, and when I get out, I—it’s all one motion. Just—
‘‘Q. Okay.
‘‘A. Yeah.
‘‘Q. With your right hand?
‘‘A. Yeah.
‘‘Q. And then you put the gun in your waistband?
‘‘A. I held it in my hand.
‘‘Q. Okay. So, you get out of the car holding this gun in your hand?
‘‘A. Yeah.’’ (Emphasis added.)
The concurring and dissenting justice and the majority agree that identi-
fying the line between fair inference and speculation is challenging. We
obviously both believe that the other engages in speculation. Ironically, it
is at this part of our opinion—where we recount in great detail Spann’s
actual testimony, not repackaged descriptions of his testimony—that we
are accused of ‘‘appellate storytelling,’’ ‘‘conjur[ing] a basis for the jury’s
verdict’’ and ‘‘engag[ing] in a fictional account of the jury’s conduct . . . .’’
The objective reader will have to decide who is telling stories. The point
our opinion emphasizes is that, reading the record in the light most favorable
to sustaining the verdict, not this court but the jury had good reason to
question Spann’s credibility; the jury reasonably could have found Spann’s
testimony evasive, ambiguous, sarcastic or flippant; and the jury could
have found his tale exculpating the defendant ‘‘risible.’’ To accept Spann’s
testimony at face value, as the concurring and dissenting justice does, is
simply to substitute a different account than the jury was entitled to believe.
It is true that an inference is permissible only ‘‘if the evidence produces in
the mind of the trier [of fact] a reasonable belief in the probability of the
existence of the material fact.’’ (Emphasis altered; internal quotation marks
omitted.) State v. Reynolds, 264 Conn. 1, 97, 836 A.2d 224 (2003), cert.
denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). The key for
an appellate court is that the ‘‘reasonable belief in the probability’’ of that
fact is for the trier to determine. Appellate review of the trier’s determination
requires studied objectivity. Otherwise, we are simply substituting our view
of probability for the trier’s. Proof of a material fact ‘‘by inference from
circumstantial evidence need not be so conclusive as to exclude every
other hypothesis.’’ (Internal quotation marks omitted.) Id. Simply because
an appellate court can conceive of other possible factual scenarios does
not mean that the jury’s determination crosses the line from inference into
speculation. We may reverse only if the trier’s determination of that probabil-
ity is ‘‘so unreasonable [an inference] as to be unjustifiable.’’ (Internal quota-
tion marks omitted.) State v. Coccomo, supra, 302 Conn. 670.
23
As support that this version of events was concocted after the fact,
immediately after the crash, Spann reported the car stolen to the Bridgeport
Police Department. Spann admitted that he lied about the car being stolen.
Spann also admitted that he never called the police to provide information
that would have shielded the defendant from liability. For example, he never
informed the police that the defendant did not know about the gun in the
car and had nothing to do with the shooting.
24
In fact, Spann wore his lack of altruism on his sleeve before the jury.
Witness this exchange between the prosecutor and Spann about why, after
Spann ditched the gun in a neighborhood yard while eluding the police, he
did not go back and recover it or warn others:
‘‘Q. Why didn’t you tell anyone where you ditched the gun?
‘‘A. Why?
‘‘Q. I’m asking you why?
‘‘A. Why would I do that?
‘‘Q. Well, let’s see, you just dropped a loaded firearm in a residential
neighborhood. There could be children around. Don’t you think it would
be a good idea to let people know; hey, there’s a loaded gun in a back-
yard somewhere.
‘‘A. It would be a good idea. But, I mean, I’m a criminal, that’s not what
I was thinking at the time.’’
25
In Henderson v. United States, 575 U.S. 622, 135 S. Ct. 1780, 191 L. Ed.
2d 874 (2015), the United States Supreme Court defined control of firearms
under the federal felon-in-possession statute, 18 U.S.C. § 922 (g), as ‘‘whether
[a] felon will have the ability to use or direct the use of his firearms’’; id.,
630; and offered examples of when someone might have such control. Id.,
630–31. The court stated that a felon could control guns that were actually
possessed by a third party if the third party was not ‘‘independent of the
felon’s control’’; id., 630; or would ‘‘allow the felon to exert any influence
over [the guns’] use.’’ Id. Here, the gun was in the actual possession of a
third party, Spann. But, by allowing the defendant to drive while Spann had
the gun, Spann was not ‘‘himself independent of [the defendant’s] control’’
and did not prevent her from ‘‘exert[ing] any influence over [the gun’s]
use.’’ Id.
On a record similar to this case, the United States Supreme Court viewed
constructive possession consistently with our definition and application. In
Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003),
the issue was whether the police had probable cause to arrest the defendant
for constructive possession of cocaine. Id., 370. The defendant, sitting in
the front passenger seat of a car, was one of three occupants of a car the
police stopped for speeding at about 3 a.m. Id., 368. Upon a search, the
police found $763 in the glove compartment in front of the defendant and five
bags of cocaine ‘‘behind the [backseat] armrest’’ next to another occupant;
no occupant claimed possession of the cash or cocaine. Id. The court held:
‘‘We think it an entirely reasonable inference from these facts that any or
all three of the occupants had knowledge of, and exercised dominion and
control over, the cocaine.’’ Id., 372. It added: ‘‘[A] car passenger . . . will
often be engaged in a common enterprise with the driver, and have the
same interest in concealing the fruits or the evidence of their wrongdoing.’’
(Internal quotation marks omitted.) Id., 373.
26
General Statutes (Rev. to 2013) § 29-38 (a) provides in relevant part:
‘‘Any person who knowingly has, in any vehicle owned, operated or occupied
by such person, any weapon, any pistol or revolver for which a proper
permit has not been issued as provided in section 29-28 or any machine
gun which has not been registered as required by section 53-202, shall be
fined not more than one thousand dollars or imprisoned not more than five
years or both, and the presence of any such weapon, pistol or revolver, or
machine gun in any vehicle shall be prima facie evidence of a violation of
this section by the owner, operator and each occupant thereof. . . .’’
The defendant claims that there was insufficient evidence only as to the
‘‘knowingly has’’ element. She does not argue that there was insufficient
evidence to establish that a proper permit had not been issued. The jury
heard uncontested evidence that neither Spann nor the defendant had a
permit to carry a firearm.