State v. Dawson

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 STATE OF CONNECTICUT v. ANDRE DAWSON
(SC 20361)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.

Syllabus

Convicted of criminal possession of a pistol or revolver and criminal trespass
in the third degree, the defendant appealed to the Appellate Court,
claiming, inter alia, that there was insufficient evidence to support his
conviction of criminal possession of a pistol or revolver. Police officers
had been patrolling a housing complex when they entered a courtyard
and saw six individuals, including the defendant. While two officers
spoke with the defendant and three others, S, J and E, who were seated
at a picnic table near a corner formed by cement walls, a third officer,
L, stepped onto the wall behind the defendant and immediately saw in
plain view a gun lying in the corner by some bushes. S and J were
closest to the gun, and the defendant was approximately four to five
feet away from it. A few days later, the defendant, S, J and E each
voluntarily provided the police with a DNA sample, and, thereafter, the
police used swabs to collect DNA from the gun and ammunition that
was removed from the gun. The swabs and the DNA samples were
delivered to the state forensics laboratory, where R, a forensic science
examiner, generated a partial DNA profile from a small, partially
degraded touch DNA sample extracted from the swabs and compared
it with the DNA samples provided by the defendant, S, J and E. R’s
analysis produced scientifically viable and accurate results that elimi-
nated S, J and E as possible contributors to the DNA profile but could
not eliminate the defendant as a contributor. On appeal to the Appellate
Court, the defendant specifically contended that there was insufficient
evidence of his knowledge of the gun and no evidence to prove his
dominion or control over it. The Appellate Court affirmed the judgment
of conviction, concluding, inter alia, that there was sufficient circumstan-
tial evidence from which the jury reasonably could have inferred that
the defendant was in possession of the gun when he entered the court-
yard, that he put it near the bushes when the police arrived so that it
would not be found on his person, and that he intended to retrieve it
when the police left the courtyard. On the granting of certification,
the defendant appealed to this court. Held that the Appellate Court
incorrectly concluded that the state had adduced sufficient evidence at
trial to support the defendant’s conviction of criminal possession of a
pistol or revolver: the fact that the gun was in plain view and appeared
to have been placed there just before the police arrived did not support
a reasonable inference that the defendant placed it there or had knowl-
edge of it and the intent to exercise dominion or control over it, it was
not reasonable to infer from the evidence that it was the defendant
rather than one of the other individuals seated at the picnic table who,
when alerted to the presence of the police, stashed the gun nearby to
avoid being found with it, and mere proximity to contraband, in the
absence of other incriminating conduct, statements, or circumstances,
is insufficient to support a finding of constructive possession, and it
was undisputed that the defendant did not display any incriminating
conduct; moreover, the DNA evidence presented by the state, standing
alone or in combination with other evidence, was insufficient to support
the defendant’s conviction insofar as there were too many unknowns
for the jury to have found beyond a reasonable doubt that the defendant
had even touched the gun, much less that he was aware of its presence
near where he was seated or that he intended to exercise dominion or
control over it, R having indicated during her testimony that she was
unable to determine how or when the defendant’s DNA was deposited
on the gun, that the DNA sample established that at least one other
person’s DNA was on the gun, that, although S, J and E had been
excluded as contributors to the DNA sample, that did not mean that
their DNA was not on the gun, but, rather, that it was not detected, that
two individuals who were present in the courtyard were not DNA tested,
 and that she could not definitively say that the DNA profile found on
the gun was that of the defendant, only that he could not be excluded
as a contributor.
(One justice dissenting)
Argued February 17—officially released August 13, 2021*

Procedural History

Substitute information charging the defendant with
the crimes of criminal possession of a pistol or revolver
and criminal trespass in the third degree, brought to
the Superior Court in the judicial district of Stamford-
Norwalk, geographical area number twenty, and tried
to the jury before Hernandez, J.; verdict and judgment
of guilty, from which the defendant appealed to the
Appellate Court, Lavine, Bright and Harper, Js., which
affirmed the trial court’s judgment, and the defendant,
on the granting of certification, appealed to this court.
Reversed in part; judgment directed.
Erica A. Barber, assigned counsel, for the appellant
(defendant).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Paul J. Ferencek, state’s attor-
ney, and Nadia Prinz, former assistant state’s attorney,
for the appellee (state).
 Opinion

KELLER, J. The defendant, Andre Dawson, appeals1
from the judgment of the Appellate Court affirming his
conviction, rendered following a jury trial, of criminal
possession of a pistol or revolver in violation of General
Statutes § 53a-217c.2 The defendant claims that the
Appellate Court incorrectly concluded that the state
had adduced sufficient evidence at trial to support his
conviction. We agree and, accordingly, reverse in part
the judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘At
approximately 9:35 p.m. on August 10, 2014, Police Offi-
cers Kyle Lipeika, Stephen Cowf, and Michael Pugliese
(officers) were patrolling Washington Village, a housing
complex in Norwalk. The officers were members of the
Street Crimes Task Force within the Special Services
Division (task force) of the Norwalk Police Department
(department).3 They had entered Washington Village
from Day Street and walked through an alley that led
to a courtyard between buildings 104 and 304. Lipeika
was shining a flashlight in order for people in the court-
yard to see the officers approaching. Lipeika and Cowf
were wearing uniforms with yellow letters identifying
them[selves] as police. When the officers entered the
courtyard, they saw benches, a picnic table, a cement
retaining wall,4 bushes, a playground, and six individu-
als.5
‘‘The defendant, Kason Sumpter, and Altolane Jack-
son were seated at the picnic table near a corner formed
by the cement walls of a planter. The defendant was
seated with his back to the cement wall without bushes.
. . . Brian Elmore first walked away from the officers
but turned back and sat at the picnic table.6 To establish
rapport with the individuals sitting at the table, the
officers engaged them in conversation. As was their
practice, the officers scanned the area for firearms and
narcotics that the individuals may have tried to con-
ceal.7 As Cowf and Pugliese conversed with the individ-
uals at the picnic table, Lipeika stepped onto the wall
behind the defendant and immediately saw in plain view
a gun lying in the corner by the bushes.
‘‘According to Lipeika, the gun looked like it had been
placed there just before he discovered it because the
gun was resting on top of leaves, was not covered with
dirt or debris, except a twig, and appeared to be free
of rust and dust. Jackson and Kason Sumpter were
seated closest to the gun, two or three feet away from
it. The defendant was seated four to five feet away from
the gun.8 None of the officers who testified [at trial]
had seen the defendant touch the gun.
‘‘When Lipeika discovered the gun, he drew his
weapon and ordered the six individuals in the courtyard
to show their hands. Pugliese and Cowf detained the
individuals and moved them away from the gun. Lipeika
radioed for more officers and guarded the gun until the
scene was secured. The additional officers photo-
graphed the scene and the gun. Then, Lipeika put on a
new pair of rubber gloves and seized the loaded gun
in accordance with department procedures. He
removed the ammunition from the gun, a revolver with
a two inch barrel, and took the ammunition and the
gun to the police station.
‘‘Days later, at Lipeika’s request, the defendant, Kason
Sumpter, Jackson, and Elmore went to the police sta-
tion; each of them voluntarily provided a [DNA] sample
. . . . None of them claimed the gun was his. The
defendant also provided a written statement in which
he stated that he ‘walked through Washington Village
to Water Street, stopped to talk when officers came
through and [they] found a handgun in the bushes in
the area [where he] was talking.’
‘‘Jackson, too, provided a written statement and testi-
fied at trial that he was in the Washington Village court-
yard when the defendant walked through and stopped
to talk. He also stated that, ten minutes later, someone
said ‘police,’ and everyone looked up. Jackson did not
see the defendant with a gun, and he did not see the
defendant walk toward the bushes where the gun was
found. Jackson confirmed that the gun did not belong
to him.
‘‘On August 28, 2014, Arthur Weisgerber, a lieutenant
in the department, tested the gun for latent fingerprints
but did not find any suitable for identification. There-
after, he used swabs to collect DNA from the gun and
the ammunition that Lipeika had removed from the
gun. He placed the swabs in an envelope. In addition,
Weisgerber fired the gun and determined that it was
operable. The swabs and the DNA samples provided
by the defendant, Kason Sumpter, Jackson, and Elmore
were delivered to the state forensics laboratory (labora-
tory), where Melanie Russell, a forensic science exam-
iner, conducted DNA analyses of the materials. Russell
provided expert testimony at trial.
‘‘The laboratory has procedures to protect DNA sam-
ples and evidence from contamination. It also pre-
scribes how laboratory analysis of DNA is to be con-
ducted. The DNA that Weisgerber swabbed from the
gun and ammunition is touch DNA because it was
deposited on the gun or ammunition when someone
[either] touched them directly, [or his DNA became
present on them] through a secondary transfer or . . .
aerosolization, that is, coughing or sneezing. Touch
DNA comes from skin cells left behind when a person
touches an object. The quantity and quality of touch
DNA vary according to the character of the object’s
surface, i.e., rough or smooth, and the length of time
the DNA has been on the object. DNA degrades with
time due to environmental factors, such as heat and
moisture. Degradation makes it difficult to amplify the
DNA and, in some cases, even to detect DNA.
‘‘The quantity of DNA on the swabs was small, and
the DNA was partially degraded. Nonetheless, Russell
was able to extract a DNA solution of 7.16 picograms
per microliter from the swabs. Although she was able
to amplify a sample of about seventy picograms of DNA,
1000 picograms is the ideal amount for DNA analysis.
A low yield sample will provide a DNA profile but usu-
ally not a full profile. Russell was able to generate a
partial profile and obtained results at seven out of fif-
teen loci tested. The profile Russell obtained from the
gun and ammunition consisted of a mixture of DNA,
signifying the presence of more than one person’s DNA.
She was able to compare the DNA from the swabs with
the samples provided by the defendant, Kason Sumpter,
Elmore and Jackson in a scientifically accurate way
and to obtain scientifically viable and accurate results.
Her analysis eliminated Kason Sumpter, Elmore and
Jackson as possible contributors to the DNA profile
she developed from the swabs. The defendant, however,
could not be eliminated as a contributor. The expected
frequency of individuals who could not be eliminated
as a contributor to the DNA profile is approximately
one in 1.5 million in the African-American population,
one in 3.5 million in the Caucasian population, and one
in 930,000 in the Hispanic population.9 The defendant
is African-American.
‘‘A warrant was issued for the defendant’s arrest on
September 25, 2014. . . . Subsequently, the state filed
an amended long form information charging the defen-
dant with criminal possession of a pistol or revolver in
violation of § 53a-217c and criminal trespass in violation
of General Statutes § 53a-109 (a) (1). . . . [Following
a trial] [t]he jury found the defendant guilty of both
charges.’’ (Citation omitted; footnote added; footnotes
in original; footnote omitted.) State v. Dawson, 188
Conn. App. 532, 536–41, 205 A.3d 662 (2019). The court
sentenced the defendant to a term of ten years of impris-
onment, two years of which were a mandatory mini-
mum, on the conviction of criminal possession of a
pistol or revolver, and a term of three months of impris-
onment on the conviction of criminal trespass in the
third degree, with the sentences to run consecutively,
for a total effective sentence of ten years and three
months of imprisonment. Id., 541. Thereafter, the defen-
dant appealed to the Appellate Court.
On appeal to the Appellate Court, the defendant
claimed, inter alia, that ‘‘there was insufficient evidence
to convict him of criminal possession of a pistol or
revolver because there was insufficient evidence of his
knowledge of the gun and no evidence to prove his
dominion or control over it.’’ Id. The Appellate Court
rejected the defendant’s claim, concluding that ‘‘there
was sufficient circumstantial evidence [from] which the
jury reasonably could have inferred that the defendant
was in possession of the gun when he entered the court-
yard, that he put it near the bushes when the police
arrived so that it would not be found on his person,
and that he intended to retrieve the gun when the police
left.’’ Id., 555–56. Specifically, the court reasoned that,
because ‘‘the gun was found in plain view and appeared
to have been placed near the bushes recently,’’ the jury
reasonably could have ‘‘inferred that the person who
put the gun near the bushes did not abandon it and
leave the courtyard but, instead, was one of the six
individuals in the courtyard when the officers arrived.’’
Id., 546. The court further reasoned that the jury reason-
ably could have found, on the basis of Lipeika’s testi-
mony, that ‘‘the defendant quickly put the gun on the
wall near the bushes to avoid being found with it’’ when
the police arrived because, ‘‘when individuals who have
a gun in their possession become aware of a police
presence, they try to ‘discard . . . or stash’ the gun so
that they will not be detected with it,’’ and they will
typically ‘‘put the gun in a place close enough to be
‘accessible’ to them.’’ Id., 547. Finally, the court rea-
soned that, because ‘‘the defendant was the only person
at the picnic table who could not be eliminated as a
contributor to the DNA profile found on the gun and
ammunition’’; id.; it was reasonable to infer that ‘‘the
defendant once had the gun on his person and intended
to do so again when the police left the courtyard.’’
Id., 548.
Although the Appellate Court acknowledged that
‘‘none of the [aforementioned] factors alone is direct
evidence of the defendant’s knowledge of the gun’s
presence or his intent to possess it’’; id., 547; it con-
cluded that ‘‘the cumulative force of the circumstantial
evidence was sufficient for the jury reasonably to infer
that the defendant knew of the gun and was in construc-
tive possession of it.’’ Id., 547–48.
On appeal, the defendant claims that the Appellate
Court incorrectly determined that the evidence was
sufficient to support his conviction. Specifically, the
defendant argues that the Appellate Court incorrectly
reasoned that, merely because he was in a place where
the gun was present and trace amounts of DNA consis-
tent with his DNA profile came into contact with the
gun at an unknown time and in an unknown manner,
a rational jury reasonably could have found beyond a
reasonable doubt that he constructively possessed the
gun. In so arguing, the defendant asserts that, without
further corroborative proof, the DNA evidence was
insufficient as a matter of law to establish his guilt
because DNA evidence, standing alone, does not estab-
lish that he knowingly exercised dominion or control
over the gun. The state counters that the Appellate
Court correctly concluded that the cumulative evidence
and inferences logically flowing therefrom support the
jury’s conclusion that the defendant constructively pos-
sessed the gun beyond a reasonable doubt. We agree
with the defendant.
In reviewing criminal convictions for the sufficiency
of the evidence, we apply a well established two part
test. ‘‘First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we deter-
mine whether upon the facts so construed and the infer-
ences reasonably drawn therefrom the [jury] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.’’
(Internal quotation marks omitted.) 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). Although ‘‘proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . [or] require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier [of fact], would have resulted
in an acquittal’’; (internal quotation marks omitted)
State v. Fagan, 280 Conn. 69, 80, 905 A.2d 1101 (2006),
cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed.
2d 236 (2007); it does not ‘‘satisfy the [c]onstitution to
have a jury determine that the defendant is probably
guilty.’’ (Emphasis in original; internal quotation marks
omitted.) United States v. Valle, 807 F.3d 508, 515 (2d
Cir. 2015). ‘‘[When] the evidence is in equipoise or equal,
the [s]tate has not sustained its burden [of proof]
. . . .’’ (Internal quotation marks omitted.) State v. Sto-
vall, 316 Conn. 514, 527, 115 A.3d 1071 (2015).
Section 53a-217c provides in relevant part that a
defendant is guilty of criminal possession of a pistol or
revolver if the defendant ‘‘possesses’’ a pistol or
revolver, and he has had a prior felony conviction. On
appeal, the defendant challenges only the jury’s finding
that he possessed a pistol or revolver within the mean-
ing of § 53a-217c.10
The term ‘‘ ‘[p]ossess’ means to have physical posses-
sion or otherwise to exercise dominion or control over
tangible property . . . .’’ General Statutes § 53a-3 (2).
We have previously explained that there are two kinds
of possession, actual and constructive. Actual posses-
sion ‘‘requires the defendant to have had direct physical
contact with the [contraband].’’ (Internal quotation
marks omitted.) State v. Johnson, 137 Conn. App. 733,
740, 49 A.3d 1046 (2012), rev’d in part on other grounds,
316 Conn. 34, 111 A.3d 447 (2015), and aff’d, 316 Conn.
45, 111 A.3d 436 (2015). Alternatively, ‘‘constructive
possession is possession without direct physical con-
tact. . . . It can mean an appreciable ability to guide
the destiny of the [contraband] . . . and contemplates
a continuing relationship between the controlling entity
and the object being controlled.’’ (Citations omitted;
internal quotation marks omitted.) State v. Rhodes, 335
Conn. 226, 233–34, 249 A.3d 683 (2020). To establish
constructive possession, the control ‘‘must be exercised
intentionally and with knowledge of the character of
the controlled object.’’ State v. Hill, 201 Conn. 505, 516,
523 A.2d 1252 (1986). ‘‘A person acts ‘intentionally’ with
respect to a result or to conduct described by a statute
defining an offense when his conscious objective is to
cause such result or to engage in such conduct . . . .’’
General Statutes § 53a-3 (11).
Moreover, ‘‘[when] 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.) State v. Winfrey,
302 Conn. 195, 210–11, 24 A.3d 1218 (2011). Such evi-
dence may include, for example, ‘‘connection with a
gun, proof of motive, a gesture implying control, evasive
conduct, or a statement indicating involvement in an
enterprise . . . .’’ (Internal quotation marks omitted.)
State v. Bowens, 118 Conn. App. 112, 125, 982 A.2d 1089
(2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010).
Accordingly, although ‘‘mere presence is not enough to
support an inference of dominion or control, [when]
there are other pieces of evidence tying the defendant
to dominion [or] control, the [finder of fact is] entitled
to consider the fact of [the defendant’s] presence and
to draw inferences from that presence and the other
circumstances linking [the defendant] to the crime.’’
(Internal quotation marks omitted.) State v. Martin, 285
Conn. 135, 150, 939 A.2d 524, cert. denied, 555 U.S. 859,
129 S. Ct. 133, 172 L. Ed. 2d 101 (2008); see also State
v. Rhodes, supra, 335 Conn. 241 (‘‘some connection or
nexus individually linking the defendant to the contra-
band is required’’ (internal quotation marks omitted));
State v. Delossantos, 211 Conn. 258, 278, 559 A.2d 164
(‘‘[p]resence alone, unilluminated by other facts is insuf-
ficient proof of possession’’ (internal quotation marks
omitted)), cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107
L. Ed. 2d 142 (1989).
In the present case, there was no direct evidence
that the defendant actually possessed the gun, and,
accordingly, the state proceeded at trial under a theory
of constructive possession. Thus, to convict the defen-
dant under § 53a-217c, the state had the burden of prov-
ing beyond a reasonable doubt that the defendant knew
that the gun was on the retaining wall and that he
intended to exercise dominion or control over it. See,
e.g., State v. Hill, supra, 201 Conn. 516–17. Further,
because the defendant was not in exclusive possession
of the location where the gun was found,11 the state
was required to present other evidence from which the
jury reasonably could have inferred knowledge of and
intent to exercise dominion or control over the gun.
See, e.g., State v. Winfrey, supra, 302 Conn. 210–11.
As we have previously explained, ‘‘[a] case for con-
structive possession of a firearm often is necessarily
built on inferences, and a jury may draw whatever infer-
ences from the evidence or facts established by the
evidence it deems to be reasonable and logical.’’ (Inter-
nal quotation marks omitted.) State v. Rhodes, supra,
335 Conn. 237. Although ‘‘[p]roof of a material fact by
inference from circumstantial evidence need not be so
conclusive as to exclude every other hypothesis . . .
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.)
Id., 238. ‘‘[I]f the correlation between the facts and the
conclusion is slight, or if a different conclusion is more
closely correlated with the facts than the chosen conclu-
sion, the inference is less reasonable. At some point,
the link between the facts and the conclusion becomes
so tenuous that we call it speculation.’’ (Internal quota-
tion marks omitted.) State v. Lewis, 303 Conn. 760,
768–69, 36 A.3d 670 (2012). Therefore, ‘‘[b]ecause [t]he
only kind of an inference recognized by the law is a
reasonable one . . . any such inference cannot be
based on possibilities, surmise or conjecture. . . . It
is axiomatic . . . that [a]ny [inference] drawn must be
rational and founded upon the evidence.’’ (Internal quo-
tation marks omitted.) Id., 768. In sum, although we
do not ‘‘sit as the ‘seventh juror’ when we review the
sufficiency of the evidence’’; State v. Ford, 230 Conn.
686, 693, 646 A.2d 147 (1994); we also must ‘‘be faithful
to the constitutional requirement that no person be
convicted unless the [g]overnment has proven guilt
beyond a reasonable doubt [and] take seriously our
obligation to assess the record to determine . . .
whether a jury could reasonably find guilt beyond a
reasonable doubt.’’ (Emphasis in original; internal quo-
tation marks omitted.) United States v. Valle, supra,
807 F.3d 515.
Our review of the cumulative force of the evidence
leads us to the conclusion that the jury could not reason-
ably have concluded beyond a reasonable doubt that the
defendant had knowledge of the gun and, with intent,
exercised dominion or control over it. Therefore, the
jury could not reasonably have found, beyond a reason-
able doubt, that he constructively possessed the gun
for purposes of a conviction under § 53a-217c.
The state claims, and the Appellate Court concluded,
that the following three circumstances supported the
jury’s finding that the defendant constructively pos-
sessed the gun: Lipeika’s testimony that the gun was
found in plain view and appeared to have been placed
near the bushes recently; Lipeika’s testimony that, when
individuals who have an illegal gun in their possession
become aware of a police presence, they try to discard
or stash the gun so that they are not found with it; and
Lipeika’s testimony that, when individuals with a gun
seek to discard or stash it, they put it in a place close
enough to be accessible to them. None of these circum-
stances, alone or in combination with the others, sup-
ports the conclusion that the defendant constructively
possessed the gun.
The record indicates that the defendant was seated
at a picnic table with two other individuals, Kason
Sumpter and Jackson. A third individual, Elmore, was
originally seated at the picnic table, walked away when
the police officers approached, and then returned. Nota-
bly, the defendant was seated approximately four to
five feet from the gun, whereas Jackson and Kason
Sumpter were seated approximately two to three feet
from it. Moreover, there were two other individuals,
Jefferson Sumpter and Janet Cruz, who were seated
nearby on a bench. The fact that the gun was ‘‘in plain
view’’ and appeared to have been placed there recently
does not support a reasonable inference that the defen-
dant placed it there or had knowledge of it and the
power and intent to exercise dominion or control
over it.
The second and third circumstances similarly do not
implicate the defendant more than any of the other
five individuals present in the courtyard that night. As
mentioned, the defendant was seated furthest away
from the gun, with Jackson seated between him and
the retaining wall where the gun was located and Kason
Sumpter seated with his back to the bushes, approxi-
mately two to three feet from where the gun was
located. Lipeika conceded that the defendant was not
within arm’s reach of the gun, stating, ‘‘I believe [he
was] like four to five feet away. . . . So, I don’t think
that that would be within an arm’s reach . . . .’’ Fur-
ther, when asked if it was his testimony that the defen-
dant was not close enough to reach out and grab the
gun, Lipeika responded, ‘‘[y]eah.’’ On the other hand,
both Jackson and Kason Sumpter were, according to
Lipeika, ‘‘within arm’s reach of [the gun],’’ approxi-
mately two to three feet away. Accordingly, there is
simply no reason to think, on the basis of Lipeika’s
testimony, that it was the defendant rather than one of
the other individuals seated at the picnic table who had
stashed the gun nearby to avoid being found with it, as
the state argued at trial. In fact, to the extent that Lipei-
ka’s testimony is probative of who placed the gun near
the bushes, it would seem to suggest Jackson or Kason
Sumpter, given their closer proximity to the retaining
wall.
Indeed, what the state’s argument essentially boils
down to, at least insofar as it rests on Lipeika’s testi-
mony, is that, because the defendant was in close prox-
imity to the gun, it was reasonable for the jury to infer
that he constructively possessed it. We repeatedly have
stated, however, that mere proximity to contraband, in
the absence of other incriminating conduct, statements,
or circumstances, is insufficient to support a finding of
constructive possession. See, e.g., State v. Martin,
supra, 285 Conn. 150. In the present case, it is undis-
puted that the defendant did not display any kind of
incriminating conduct. To the contrary, the police, as
they approached the courtyard, observed no furtive
movements by the defendant toward the location of
the gun. The defendant, moreover, did not distinguish
himself from others by attempting to flee, cooperated
with the police when they detained him, did not provide
any incriminating statements, and voluntarily provided
a DNA sample. Accordingly, we conclude that the jury
could not reasonably have found, without resort to
impermissible surmise or conjecture, that the defendant
had knowledge of the gun and the intent to exercise
dominion or control over it merely because, according
to Lipeika, individuals in possession of an illegal firearm
will often seek to ‘‘discard . . . or stash’’ it nearby
when alerted to the presence of the police.
The state contends, however, and the Appellate Court
concluded, that, because ‘‘the defendant was the only
person at the picnic table who could not be eliminated
as a contributor to the DNA profile found on the gun
and ammunition’’; State v. Dawson, supra, 188 Conn.
App. 547; it was reasonable for the jury to infer that the
defendant constructively possessed the gun. On appeal,
the defendant argues that the DNA evidence, standing
alone or in combination with any other evidence, does
not establish that he constructively possessed the gun.
We agree with the defendant.
The following additional facts are relevant to our
analysis. The DNA evidence presented by the state at
trial is classified as ‘‘touch DNA,’’ which the state’s DNA
expert, Russell, testified is a term ‘‘used to describe
DNA that is left behind just by touching an object
. . . .’’ Notwithstanding its name, however, touch DNA
does not necessarily indicate a person’s direct contact
with the object. Rather, according to Russell, aban-
doned skin cells, which make up touch DNA, can be left
behind through primary transfer, secondary transfer,
or aerosolization. Primary or ‘‘touch’’ transfer occurs,
for example, when you directly touch or pick up an
object. Secondary transfer, alternatively, occurs when,
for example, person A bleeds onto a table and, subse-
quently, person B walks by the table, accidentally
brushes against it, and then sits in a chair. Person A’s
blood can potentially be on that chair via secondary
transfer, although person A personally never came into
contact with the chair. Finally, skin cells can be depos-
ited on an object through aerosolization, which, Russell
explained, occurs when, for example, a person speaks,
breathes, coughs, or sneezes on or near an item. Import-
antly, Russell testified that, when analyzing a sample,
there is no way to determine whether DNA was depos-
ited through primary transfer, secondary transfer, or
aerosolization. Moreover, DNA is not always detectable,
meaning that it is possible to have someone touch an
object but not leave behind detectable DNA because,
Russell testified, some people leave more of their skin
cells behind than others, i.e., some people are better
‘‘shedders’’ of their DNA than others. There are also
other factors that affect the amount of DNA left on an
object, such as the length of contact, the roughness or
smoothness of the surface, the type of contact, the
existence or nonexistence of fluids, such as sweat, and
degradation on the object. Russell testified that the DNA
sample taken from the gun in this case was partially
degraded. Degradation, Russell testified, is the process
of material breaking down over time. Russell explained
that, if a gun is properly handled by the police once
seized and is not exposed to sunlight or warm tempera-
tures, degradation would not be expected. If degrada-
tion is occurring under such circumstances, that could
be an indication that the DNA had been on the object
for some period of time, although there is no way to
determine how long. In the present case, the DNA sam-
ple was consistent with experiencing degradation over
time because there was no evidence that the gun was
improperly handled by the police or was exposed to
sunlight or heat after being seized.
Russell further testified that there was a very low
quantity of touch DNA retrieved from the gun.12 She
explained that, to properly analyze touch DNA, a very
small amount of genetic material is amplified to create
a usable DNA profile. Then, employing a polymerase
chain reaction process, the forensic examiner will iden-
tify and copy a specific DNA sequence at particular
locations (loci), repeating the cycle to create a larger
quantity of DNA. Russell testified that the optimal
amount of DNA to amplify during the testing process
is approximately 1000 picograms; however, in this case,
she could test only seventy picograms of DNA, a low
yielding sample, which she stated was common for
touch DNA testing. Nonetheless, Russell was able to
develop a partial DNA profile out of this low yield sam-
ple. She testified that it is ‘‘pretty rare’’ to obtain a full
profile from a sample containing less than 100 pico-
grams of DNA. Russell explained that, in most cases,
and, specifically, in this case, contributors can still be
eliminated from a low yield sample.
Russell also testified that the sample in the present
case was consistent with being a mixture, meaning that
there is DNA from more than one person on the object.
Russell was able to determine that the mixture defi-
nitely included at least two people but could have
included as many as four or more. Russell explained
that mixtures are very common with forensic samples
and that they can occur for a variety of reasons. Notably,
Russell testified that, ‘‘if it’s an object that multiple
people have touched, especially if it’s something that
is found in a public place, a lot of times, there’ll be
mixtures of many people’s DNA on a single sample
. . . .’’
Russell further testified that, based on her analysis,
the defendant’s DNA profile could not be eliminated as
a contributor to the DNA mixture found on the gun.
Conversely, the other three individuals at the picnic
table—Kason Sumpter, Jackson, and Elmore—were
able to be eliminated as contributors.13 Russell explained
that the conclusion that the sample was a mixed sample
was based on the fact that there were alleles present
at certain loci that matched the evidentiary profile but
did not match the defendant’s known profile. Therefore,
Russell explained, ‘‘there would have to be someone
else contributing . . . to the evidentiary profile
. . . .’’ Moreover, Russell conceded that, although
Kason Sumpter, Jackson, and Elmore were eliminated
as contributors, she could not say definitively that none
of their DNA was on the gun; just that there was none
detected.
On the basis of the foregoing forensic testimony, we
agree with the defendant that the DNA evidence pre-
sented by the state was insufficient to support his con-
viction, even when combined with Lipeika’s testimony.
Indeed, the sheer lack of conclusiveness regarding the
DNA evidence in this case as it relates to the charged
crime is troubling for many reasons. First, Russell was
not able to determine how the defendant’s DNA ended
up on the gun; she could not say whether it was via
primary transfer, secondary transfer, or aerosolization.
In other words, she could not determine whether the
defendant’s DNA ended up on the gun because he
touched the gun, because he touched something that
subsequently came into contact with the gun, or
because he breathed, sneezed, or coughed near the
gun. Second, Russell was unable to determine when
the defendant’s DNA was deposited on the gun; she
could not say if it was deposited on or about August
10, 2014, or at some other undetermined time. Third,
Russell was clear that the DNA sample was consistent
with being a mixture, meaning that at least one other
person’s DNA was on the gun and possibly as many
as three or four other people’s DNA. Fourth, Russell
conceded that, although the other three individuals at
the picnic table were able to be excluded as contribu-
tors to the sample, that did not mean that their DNA
was not on the gun; rather, it simply meant that it was
not detected. Fifth, two individuals also present in the
courtyard that night were not DNA tested. See footnote
13 of this opinion. Finally, Russell testified that she
could not definitively say that the DNA profile devel-
oped was that of the defendant; she could determine
only that he could not be excluded as a contributor.
Accordingly, there were simply too many unknowns for
the jury to find beyond a reasonable doubt that the
defendant had even touched the gun, much less that
he was aware of its presence near where he was seated
on the night in question and intended to exercise domin-
ion or control over it.14
The state nonetheless argues, citing State v. Rhodes,
supra, 335 Conn. 226, and State v. Bowens, supra, 118
Conn. App. 112, that ‘‘[t]he circumstances here are at
least as compelling as those in [which] our courts have
found sufficient evidence of possession.’’ We disagree
that either case is remotely factually similar to the pres-
ent case.
In Rhodes, the defendant was convicted of criminal
possession of a firearm on the basis of evidence that
she had driven ‘‘an armed passenger . . . around
Bridgeport for ninety minutes [in her vehicle], including
to and from the place where [the passenger] discharged
[the] weapon.’’ State v. Rhodes, supra, 335 Conn. 228.
Although there was no evidence that the defendant
physically touched the gun, we noted that there was
‘‘no serious argument at trial’’ that the defendant was
unaware that the gun was in the vehicle. Id., 239. Indeed,
the passenger had fired it in her presence. Id. We con-
cluded that the jury reasonably could have found that
the defendant had exercised dominion or control over
the gun because, among other things, she had control
over the vehicle in which the gun was located and
attempted to evade the police both in the vehicle and
on foot following the shooting. Id., 241–42.
Similarly, in Bowens, the evidence revealed that,
‘‘immediately after gunshots had been fired in two sepa-
rate locations just a few blocks away from each other,
witnesses saw a white car leaving the area of one of
the shootings, the defendant was driving a white Ford
Taurus, and he ran from the police after being stopped.
Subsequently, a revolver was found along the route
[along which] the police had chased the defendant as
he fled from them, and the shell casing in the backseat
of the Taurus was from a bullet fired from the revolver
. . . .’’ State v. Bowens, supra, 118 Conn. App. 122. On
the basis of that evidence, the Appellate Court held that
‘‘it [was] reasonable to infer from the evidence that the
. . . revolver found along the chase route was in the
Taurus that the defendant had been driving on the night
in question’’; id.; and, further, that ‘‘the evidence sup-
port[ed] a conclusion that the defendant knew of the
revolver’s presence in the Taurus and was aware of its
character.’’ Id., 122–23.
Unlike in Rhodes and Bowens, the state here failed
to produce any evidence of the defendant’s conduct or
statements from which the jury reasonably could have
found that he was aware of the gun’s presence in the
courtyard and that he intended to exercise dominion
or control over it. Indeed, in both of those cases, the
evidence established beyond any doubt that the guns
had been in vehicles operated by the defendants shortly
before their arrests. See State v. Rhodes, supra, 335
Conn. 241 (‘‘the defendant’s control of the car, at least
in part, supported the jury’s conclusion that she also
controlled the firearm’’); see also State v. Delossantos,
supra, 211 Conn. 277–78 (‘‘[o]ne who owns or exercises
dominion or control over a motor vehicle in which . . .
contraband . . . is concealed may be deemed to pos-
sess the contraband’’ (internal quotation marks omit-
ted)); State v. Bischoff, 182 Conn. App. 563, 572, 190
A.3d 137 (‘‘[k]nowledge that [contraband is] present and
under a defendant’s control when found in a defendant’s
home or car is more easily shown, of course, if the
defendant has exclusive possession of the area in which
the [contraband is] found’’ (internal quotation marks
omitted)), cert. denied, 330 Conn. 912, 193 A.3d 48
(2018).
In addition, in both Rhodes and Bowens, the defen-
dants also exhibited highly incriminating behavior by
exiting their vehicles and fleeing when the police
approached them, leading the juries in those cases rea-
sonably to conclude that the defendants both knew of
the presence of the guns in their vehicles and had the
requisite intent to possess and control them. See State
v. Scott, 270 Conn. 92, 104–105, 851 A.2d 291 (2004)
(‘‘[f]light, when unexplained, tends to prove a con-
sciousness of guilt . . . [and] is a form of circumstan-
tial evidence’’ (internal quotation marks omitted)), cert.
denied, 544 U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746
(2005). Suffice it to say that the present case is wholly
lacking the kind of evidence that courts have found
sufficient to establish constructive possession of con-
traband. See, e.g., State v. Butler, 296 Conn. 62, 78–79,
993 A.2d 970 (2010) (evidence sufficient to support find-
ing that defendant driver exercised dominion and con-
trol over narcotics found in center console of vehicle
when defendant moved toward and closed console after
being detained by police, coupled with evidence that
defendant was drug dealer); State v. Bruno, 293 Conn.
127, 137–38, 975 A.2d 1253 (2009) (jury reasonably could
have found that defendant had dominion and control
over narcotics when defendant possessed key to trunk
where narcotics were found and twice opened trunk
in response to requests to purchase narcotics); State
v. Crewe, 193 Conn. App. 564, 572–73, 219 A.3d 886
(evidence supported inference that defendant construc-
tively possessed narcotics found in vehicle when vehi-
cle was parked in vacant parking lot behind cluster of
bushes, in area known for narcotics trafficking, and
defendant moved furtively when he was approached by
police), cert. denied, 334 Conn. 901, 219 A.3d 800 (2019).
We further disagree with the Appellate Court and the
state that the decision by the United States Court of
Appeals for the Sixth Circuit in United States v. Beverly,
750 F.2d 34 (6th Cir. 1984)15 is inapposite to this case.
The defendant argued to the Appellate Court that Bev-
erly supports his claim that the DNA evidence, alone
or in combination with other evidence, was insufficient
to prove his constructive possession of the gun. The
Appellate Court determined that Beverly was distin-
guishable because, ‘‘[i]n the present case, a police offi-
cer found the gun in plain sight in a public space in
close proximity to the defendant’’; State v. Dawson,
supra, 188 Conn. App. 551; whereas, in Beverly, a police
officer, when executing a search warrant at the apart-
ment of a third party, found the defendant and another
man standing on either side of a waste basket that
contained two guns, one of which had the defendant’s
fingerprint on it. Id. The state argues that the Appellate
Court properly distinguished Beverly from the present
case because Beverly is a ‘‘ ‘proximity-only’ ’’16 case, and
‘‘the defendant’s conviction [in the present case] does
not rest on DNA evidence alone . . . .’’
We disagree. Indeed, in our view, the evidence in the
present case is considerably weaker than that which
was found insufficient to support the defendant’s con-
viction in Beverly. Notably, the defendant here was in
a public place, whereas the defendant in Beverly was
in a private residence (albeit not his own). Moreover,
the defendant here was four to five feet from the gun,
with others sitting closer, whereas the defendant in
Beverly was within arm’s reach of the gun and one of
only two people in the room. Finally, in the present case,
only trace amounts of DNA from which the defendant’s
DNA profile could not be excluded was found on the
gun, and it could not be established that he actually
touched the gun, whereas the defendant in Beverly left
a definitive latent fingerprint on the gun in question.
Moreover, we are not persuaded by the Appellate
Court’s conclusion that United States v. Lynch, 459
Fed. Appx. 147 (3d Cir. 2012),17 an unreported decision
by the United States Court of Appeals for the Third
Circuit, is analogous to the present case. Rather, we
find Lynch readily distinguishable because, in addition
to evidence of the defendant’s DNA on the gun, there
was evidence in Lynch that the gun and ammunition
were found in the defendant’s own home, specifically
concealed under his clothing in a dresser drawer in
his bedroom. Id., 151–52. There is no such comparable
evidence in the present case.
In sum, we are unpersuaded that, even taking the
cumulative force of all the evidence together and con-
struing it in the light most favorable to sustaining the
verdict, it establishes anything more than a temporal
and spatial nexus between the defendant and the gun
found in a public area. See State v. Rhodes, supra, 335
Conn. 241. Therefore, we conclude that the evidence
was insufficient to establish beyond a reasonable doubt
that the defendant had knowledge of the gun and the
intent to exercise dominion or control over it.
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to reverse the judgment of the trial court as to the
conviction of criminal possession of a pistol or revolver
and to remand the case to that court with direction to
render judgment of acquittal on that charge; the judg-
ment of the Appellate Court is affirmed in all other
respects.
In this opinion McDONALD, D’AURIA, KAHN and
ECKER, Js., concurred.
* August 13, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
This court granted the defendant’s petition for certification to appeal,
limited to the following issue: ‘‘Did the Appellate Court correctly conclude
that the evidence was sufficient to support the defendant’s conviction of
criminal possession of a pistol or revolver?’’ State v. Dawson, 333 Conn.
906, 215 A.3d 731 (2019).
2
Although § 53a-217c has been the subject of certain technical amend-
ments since 2014; see, e.g., Public Acts 2016, No. 16-34, §16; those amend-
ments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of § 53a-217c.
The defendant was also convicted of criminal trespass in the third degree
in violation of General Statutes § 53a-109 (a) (1). He did not challenge that
conviction on appeal to the Appellate Court; nor does he do so here.
3
‘‘The task force’s objective was to deter street level crime by providing
‘high visibility police patrol in high crime areas throughout’ . . . Norwalk.
The department had an agreement with the Norwalk Housing Authority to
deter trespassing in housing complexes. The task force undertook foot
patrols in housing complexes to put the residents at ease, to let them know
that there was a police presence and to fulfill the department’s agreement
with the housing authority. According to Lipeika, the majority of problems
within housing complexes were created by people who did not live there
and were trespassing.’’ State v. Dawson, 118 Conn. App. 532, 536 n.3, 205
A.3d 662 (2019).
4
‘‘Lipeika described a ‘cement retaining wall with bushes in . . . the
retaining wall area.’ Photographs of the courtyard were placed into evidence
and published to the jury. The photographs depict a courtyard surrounded
by large concrete planters. One of the planters consists of two arms of a
right angle bounding two sides of the courtyard. A long bench is set next
to one arm of the planter, and a picnic table is situated close to the corner
of the angle. A shrubbery hedge is planted in the arm of the planter behind
the bench and one side of the picnic table.’’ State v. Dawson, 188 Conn.
App. 532, 537 n.4, 215 A.3d 731 (2019).
5
‘‘The individuals in the courtyard were the defendant, Kason Sumpter,
Altolane Jackson, Brian Elmore, Jefferson Sumpter, and Janet Cruz. Lipeika’s
subsequent investigation disclosed that none of the individuals was a resi-
dent of Washington Village.’’ State v. Dawson, 188 Conn. App. 532, 537 n.5,
215 A.3d 731 (2019).
6
‘‘Jefferson Sumpter and Janet Cruz were [seated on a] bench in a different
part of the courtyard. According to Lipeika, they appeared to be highly
intoxicated and did not approach the picnic table.’’ (Internal quotation marks
omitted.) State v. Dawson, 188 Conn. App. 532, 537 n.6, 215 A.3d 731 (2019).
7
‘‘Lipeika testified on the basis of his training and experience that, when
armed subjects are approached by police, they ‘usually try to discard . . .
or stash’ a firearm so that it is not detected on their person. Depending on
the circumstances, a subject usually places the gun close enough to access
it.’’ State v. Dawson, 188 Conn. App. 532, 537 n.7, 215 A.3d 731 (2019).
8
At trial, Officer Lipeika testified to the seating arrangement of the individ-
uals at the picnic table and the approximate distance each individual was
from the location where the gun was found. Kason Sumpter was sitting on
the side of the picnic table running parallel to the retaining wall bordered
by the bushes, with the gun to his right, approximately two to three feet
away. Jackson was sitting on the other side of the picnic table, which
ran parallel to the retaining wall without bushes. The gun was to his left,
approximately two to three feet away. The defendant was seated directly
next to Jackson, approximately four to five feet from the gun. It is unclear
from the record where Elmore was sitting before the officers arrived, and
he walked away from the picnic table.
9
‘‘Russell’s work was reviewed for accuracy by a technical reviewer at
the laboratory.’’ State v. Dawson, 188 Conn. App. 532, 540 n.8, 215 A.3d
731 (2019).
10
The parties stipulated to the fact that the defendant had a prior felony
conviction for purposes of § 53a-217c.
11
Of course, there can be no serious argument that the defendant was in
exclusive possession of the courtyard in Washington Village. After all, he
was charged with and convicted of trespassing as a result of his presence
there on the night in question.
12
We note that Lieutenant Weisgerber, who swabbed the gun for DNA,
testified that he took two swabs and swabbed the portions of the gun that
are typically swabbed for DNA, such as the cylinder, handle, barrel, and
trigger area, and subsequently swabbed the ammunition found in the gun
using the same two swabs. He explained that, because he swabbed the gun
and ammunition using the same swabs, it would be impossible to know
whether the DNA recovered from the gun came from the outside of the gun
or from the ammunition. Russell similarly testified that she could not say
if the DNA found on the gun came solely from the exterior of the gun or
whether it came from the ammunition found in the gun. Of course, if there
were evidence that the defendant’s DNA could not be excluded from DNA
found on the ammunition, a more reasonable inference could be drawn
that he possessed the gun.
13
The two individuals who were seated nearby on a bench, Jefferson
Sumpter and Cruz, were not DNA tested. It is unclear whether they refused
to be tested, or whether the police failed to request a DNA sample from
them. They were, however, detained on the night in question when the
police seized the gun.
14
The dissenting justice disagrees with our conclusion that the evidence
was insufficient to support a finding that the defendant intended to exercise
dominion or control over the gun. He asserts that, in reviewing the defen-
dant’s sufficiency claim, we have violated the cardinal rule that a reviewing
court ‘‘not sit as a ‘seventh juror’ . . . .’’ To the contrary, we have viewed
the evidence in the light most favorable to the state, as we must, and simply
have concluded that no rational trier of fact could have found proven beyond
a reasonable doubt the essential elements of the crime of criminal possession
of a pistol or revolver.
The dissenting justice’s disagreement with us appears to be rooted in a
fundamental misapprehension as to the state’s theory at trial and the infer-
ences that reasonably could be drawn from the evidence. Specifically, he
argues, quoting State v. Rhodes, supra, 335 Conn. 236, that our resolution
of the defendant’s claim ‘‘is wholly inconsistent with our recent emphasis
in Rhodes of ‘the deference we must afford to the jury and the practical
problems of proof in the nonexclusive possession context . . . when the
accused’s relationship to the premises is shared with others, and conse-
quently the problems of knowledge and control intensify.’ ’’ Unlike Rhodes,
this is a not a nonexclusive possession or shared premises case, in which
the issue is whether the defendant’s control over or relationship to the
location where contraband was found was such as to support a reasonable
inference that the contraband was under the defendant’s dominion or con-
trol, even if nonexclusively. In Rhodes, we concluded that the defendant’s
ownership and operation of the vehicle in which the gun was transported,
together with her knowledge that the gun was in the vehicle, in plain view and
within arm’s reach, supported a reasonable inference that she constructively
possessed the gun, albeit nonexclusively. State v. Rhodes, supra, 335 Conn.
254–58. In the present case, the defendant had no such relationship to or
control over the housing complex where the gun was found on the night
in question such that the jury reasonably could infer dominion or control
over the gun on the basis of that relationship. Cf. United States v. Staten,
581 F.2d 878, 883–84 (D.C. Cir. 1978) (defendant’s constructive possession
of drugs and drug paraphernalia was proven when defendant was found
inside apartment where drugs were found, with key to apartment in his
pocket). Nor was the state’s theory of guilt premised on nonexclusive posses-
sion. Contrary to the dissenting justice’s assertion, therefore, there were no
‘‘practical problems of proof in the nonexclusive possession [or shared
premises] context’’ confronting the jury in this case. (Internal quotation
marks omitted.)
15
In Beverly, a police officer executed a search warrant on the apartment
of a third person and, in so doing, found the defendant and another man
in the kitchen. United States v. Beverly, supra, 750 F.2d 35. Between the
two men was a waste basket containing two guns, one of which had the
defendant’s fingerprint on it. Id. The court determined that this evidence
was insufficient to support a finding of constructive possession, stating that
the evidence ‘‘establishes only that [the defendant] was in the kitchen of
[the third party’s] residence, that [the defendant] was standing close to a
waste basket [that] contained two guns, and that [the defendant] had at some
point touched one of the guns,’’ which fell short of establishing constructive
possession. Id., 37.
16
The state, in arguing that Beverly is distinguishable, relies primarily on
the fact that Beverly was later limited by the Sixth Circuit in United States
v. Vichitvongsa, 819 F.3d 260, 276 (6th Cir.), cert. denied, U.S. , 137
S. Ct. 79, 196 L. Ed. 2d 70 (2016), in which the court clarified that Beverly
is ‘‘a proximity-only case without any evidence connect[ing] the gun to the
defendant,’’ and, thus, Beverly is inapposite when the government fills the
evidentiary gap by connecting the gun to the defendant. (Internal quotation
marks omitted.) Id.
17
In Lynch, police officers recovered a pistol during a permissible war-
rantless search of the defendant’s home. United States v. Lynch, supra, 459
Fed. Appx. 149. Subsequent forensic testing revealed a mixture of DNA on
the pistol from which the defendant’s profile could not be excluded. Id. After
the defendant argued, citing Beverly, that there was insufficient evidence
to support his conviction of possession of a firearm and ammunition, the
Third Circuit held that, although Beverly ‘‘might mitigate the importance of
the DNA evidence, it does little to change our view of the other evidence
tending to show that [the defendant] constructively possessed the firearm
. . . .’’ Id., 151.