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State v. Purvis
STATE OF CONNECTICUT v. CHEVALIER
TERRELL PURVIS
(AC 46058)
Alvord, Seeley and Bear, Js.
Syllabus
Convicted of the crimes of, inter alia, possession of a controlled substance
with intent to sell by a person who is not drug-dependent, possession
of a controlled substance, and possession of drug paraphernalia with
intent to use, the defendant appealed to this court. The defendant was
arrested during an investigation and search of an apartment. When the
police entered the apartment, the defendant turned and ran down a
hallway, dropping six small bags of crack cocaine, which were individually wrapped in plastic. He then fled to a bathroom, where he was found
attempting to ingest narcotics, which the arresting police officer forced
him to spit out. The narcotics that fell out of the defendant’s mouth
were six pieces of cocaine, each wrapped in plastic, and two glassine
bags containing a mixture of heroin and fentanyl. Held:
1. The defendant could not prevail on his claim that the evidence adduced
at trial was insufficient to sustain his conviction of possession of a
controlled substance with intent to sell: contrary to the defendant’s
argument, there was no requirement that an individual must have possessed a certain quantity of narcotics to support a finding of an intent
to sell; moreover, the fact that the state did not present any evidence
establishing that the defendant had engaged in a sale of narcotics was
not dispositive of a lack of intent to sell; furthermore, the state presented
sufficient circumstantial evidence to support an inference that the defendant intended to sell the narcotics found in his possession, as it was
undisputed that the defendant was present in a location known as a
crack house that was associated with narcotics dealing and use, that
he was in the company of four individuals known to law enforcement
as drug users, and he was in the possession of fourteen individually
packaged units of narcotics and $2126 in cash.
2. The defendant could not prevail on his claim that there was insufficient
evidence to sustain his conviction of possession of drug paraphernalia
with intent to use: although the defendant claimed that the pieces of
plastic surrounding the bits of crack cocaine were not ‘‘bags’’ and, thus,
could not constitute drug paraphernalia as defined in the statute (§ 21a-
240 (2) (A)), the state repeatedly referred to the plastic wrappings as
plastic bags throughout the trial, § 21a-240 (2) (A) does not require that
the paraphernalia constitute a bag, and the plastic wrapping material
in this case, which was tied in a knot at the top and used as a means
to contain the bits of crack cocaine, constituted ‘‘materials of any kind’’
that contained a ‘‘controlled substance’’ pursuant to § 21a-240 (2) (A);
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State v. Purvis
moreover, even if this court assumed without concluding that the plastic
did not constitute drug paraphernalia under the statute, the defendant’s
claim was unavailing as the defendant was also found in possession of
two glassine bags, which he used to hold or contain narcotics and which
fell within the definition of drug paraphernalia under § 21a-240 (2) (A);
furthermore, contrary to the defendant’s claim, the plain language of
§ 21-240 (20) (A) did not exempt from its coverage individual bags used
to contain the very narcotics the defendant was found to have possessed.
3. This court concluded that the defendant’s conviction of both possession of
a controlled substance with intent to sell and possession of a controlled
substance, violated his constitutional protection against double jeopardy
and deprived him of a fair trial: because possession of a controlled
substance is a lesser included offense of the crime of possession of a
controlled substance with intent to sell, the charged crimes are the same
offense for double jeopardy analysis; moreover, the conduct charged in
those counts arose out of the same act or transaction, as the jury could
not reasonably have found that the defendant committed a separate act
of possession of controlled substances when he ran into the bathroom
carrying some of the same narcotics that he had possessed in the kitchen/
hallway area; furthermore, the state, in its charging documents, its overall presentation of the case and in the evidence adduced at trial, did
not draw a distinction between the defendant’s conduct inside and
outside of the bathroom with respect to the defendant’s possession
of narcotics.
Argued March 13—officially released August 6, 2024
Procedural History
Substitute information charging the defendant with
the crimes of possession of a controlled substance with
intent to sell by a person who is not drug-dependent,
possession of a controlled substance, possession of
drug paraphernalia with intent to use, conspiracy to
possess a controlled substance with intent to sell, and
interfering with an officer, brought to the Superior
Court in the judicial district of Danbury, geographical
area number three, and tried to the jury before Pavia,
J.; verdict and judgment of guilty of possession of a
controlled substance with intent to sell by a person
who is not drug-dependent, possession of a controlled
substance, possession of drug paraphernalia with intent
to use, and interfering with an officer, from which the
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State v. Purvis
defendant appealed to this court. Reversed in part;
judgment directed in part.
Dina S. Fisher, assigned counsel, for the appellant
(defendant).
Alexander A. Kambanis, deputy assistant state’s
attorney, with whom, on the brief, were David R.
Applegate, state’s attorney, and Matthew Knopf, assistant state’s attorney, for the appellee (state).
Opinion
SEELEY, J. The defendant, Chevalier Terrell Purvis,
appeals from the judgment of conviction, rendered after
a jury trial, of possession of a controlled substance with
intent to sell by a person who is not drug-dependent1
in violation of General Statutes § 21a-278 (b) (1) (A),
possession of a controlled substance in violation of
General Statutes (Rev. to 2017) § 21a-279 (a) (1),2 possession of drug paraphernalia with intent to use in violation of General Statutes (Rev. to 2017) § 21a-267 (a),3
and interfering with an officer in violation of General
Statutes (Rev. to 2017) § 53a-167a. On appeal, the defendant claims that (1) the evidence adduced at trial was
insufficient to sustain his conviction of possession of
a controlled substance with intent to sell and possession
of drug paraphernalia with intent to use, and (2) if his
conviction of possession of a controlled substance with
intent to sell is upheld, then his conviction of both
possession of a controlled substance with intent to sell
and possession of a controlled substance violates his
constitutional protection against double jeopardy. We
Because the defendant’s drug dependency is not at issue, for convenience
1
we refer to this crime as possession of a controlled substance with intent
to sell.
2
In this opinion, our references to § 21a-279 (a) (1) are to the 2017 revision
of the statute.
3
In this opinion, our references to § 21a-267 (a) are to the 2017 revision
of the statute.
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State v. Purvis
agree with the defendant as to his second claim and,
accordingly, affirm in part and reverse in part the judgment of the trial court.
The jury reasonably could have found the following
facts based on the evidence presented at trial. On October 11, 2018, police officers assigned to the special
investigations division of the Danbury Police Department executed a search warrant at an apartment located
at 12 Bank Street in Danbury (premises). Law enforcement suspected that the premises was being used as a
‘‘crack house’’ by the person living there, Christopher
Maloney. Upon entering the premises, the officers found
five individuals—Maloney, the defendant, and three
other persons. Maloney and the three other individuals
were known to law enforcement as ‘‘drug users.’’ The
defendant and Maloney were standing in the kitchen/
hallway area of the premises, while the other three
individuals were seated in an area described as a living
room. Sergeant Stephen Hilderbrand of the Danbury
Police Department observed the defendant turn and
run down the hallway, dropping several items along the
way as he fled to a bedroom and then a bathroom
and attempted to barricade himself inside. Hilderbrand,
however, pursued the defendant into the bathroom and
found him attempting to ingest narcotics. Hilderbrand
wrestled the defendant into the bathtub and forced
the defendant to spit out the narcotics that he was
attempting to swallow. Thereafter, the defendant was
handcuffed and searched. The search of his person
revealed that the defendant was in possession of car
keys, a wallet containing $1970 in cash, $156 in cash
in his pocket, a multitool,4 a bag of marijuana, a cell
phone and cigarettes. The police subsequently conducted a search of the premises.
4
The multitool seized from the defendant is an object approximately five
and one-half inches long that resembles a hammer and contains a hammer,
knife, wrench, can opener and pliers.
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State v. Purvis
The narcotics that fell out of the defendant’s mouth
in the bathtub consisted of six ‘‘small, white rock-like
substances’’ that each were ‘‘tightly wrapped into small
slivers of plastic,’’ which later were determined to contain cocaine, as well as two glassine bags that each
contained a mixture of heroin and fentanyl. The items
the defendant dropped in the kitchen/hallway area similarly consisted of six ‘‘small bags of crack cocaine,’’
each of which was individually wrapped in plastic. In
all, the police seized fourteen individually packaged
narcotics from the defendant. The nature of those substances was confirmed through testing performed by a
state forensic examiner.5 The police also seized from
the bedroom in the premises empty clear plastic bags.6
Following his arrest, the defendant was charged in
an amended long form information with possession of
a controlled substance with intent to sell in violation
of § 21a-278 (b) (1) (A), possession of a controlled substance in violation of § 21a-279 (a) (1), possession of
drug paraphernalia with intent to use in violation of
§ 21a-267 (a), conspiracy to possess a controlled substance with intent to sell in violation of General Statutes
§§ 53a-48 (a) and 21a-278 (b) (1) (A), and interfering
with an officer in violation of § 53a-167a. A jury trial
was held, at which the state presented testimony from
Hilderbrand; Joanna Urban, the state forensic examiner
who tested the substances; Detective Kevin Zaloski of
the Danbury Police Department, who was the lead
5
Specifically, the forensic examiner testified as to the nature of the substances recovered from the bathtub. Those substances consisted of 1.220
grams of cocaine, including packaging, and 0.061 grams of heroin and fentanyl in a knotted plastic bag. The forensic examiner also testified as to the
nature of the substances found in the kitchen/hallway area, which consisted
of 0.880 grams of cocaine, including packaging.
6
The police also seized from the bedroom a note that was on a dresser,
which read, ‘‘Criss send the ha[l]f bag with Michael; now or she call the
cops for us. Tiger.’’ The defendant stipulated at trial that he went by the
nickname Tiger.
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State v. Purvis
investigator for the search warrant; and Detective Mark
Traholis, the evidence officer in connection with the
search who provided expert testimony concerning narcotics activities. The defendant testified in his own
defense. At the conclusion of the trial, the defendant
was found not guilty of the conspiracy charge and guilty
of the remaining four charges. On September 12, 2022,
the court sentenced him to a period of incarceration
of twelve years, execution suspended after six years,
five of which are a mandatory minimum, and five years
of probation.7 This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant claims that the evidence adduced at
trial was insufficient to establish his guilt for the
offenses of possession of a controlled substance with
intent to sell and possession of drug paraphernalia with
intent to use. We disagree.
We first set forth the relevant standard of review for
a sufficiency of the evidence challenge. ‘‘As this court
has observed, [a] defendant who asserts an insufficiency of evidence claim bears an arduous burden.’’
(Internal quotation marks omitted.) State v. Shawn G.,
208 Conn. App. 154, 158,
262 A.3d 835, cert. denied,
340 Conn. 907,
263 A.3d 822 (2021). ‘‘When a criminal
conviction is reviewed 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 determine whether
7
For the defendant’s conviction of possession of a controlled substance
with intent to sell, the court sentenced the defendant to twelve years of
incarceration, execution suspended after six years, and five years of probation. The court also sentenced the defendant to concurrent 364 day terms
for his conviction of the charges of possession of a controlled substance
and interfering with an officer, and imposed a $150 fine for his conviction
of the charge of possession of drug paraphernalia with intent to use.
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State v. Purvis
upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . . As
we previously have explained, proof 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 defendant that, had it been found credible
by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a
reasonable view of the evidence that would support a
reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the [fact finder’s] verdict of guilty.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Fisher, 342 Conn. 239, 249,
269 A.3d 104 (2022); see
also State v. Kyle A., 212 Conn. App. 239, 246,
274 A.3d
896 (2022) (‘‘We do not sit as a [seventh] juror who
may cast a vote against the verdict based upon our
feeling that some doubt of guilt is shown by the cold
printed record. We have not had the [fact finder’s]
opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.
. . . We are content to rely on the [fact finder’s] good
sense and judgment.’’ (Internal quotation marks omitted.)), aff’d, 348 Conn. 437,
307 A.3d 249 (2024).
We also must be mindful that ‘‘[i]t is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw
reasonable inferences based on other inferences drawn
from the evidence presented. . . . Our review is a fact
based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be
unjustifiable.’’ (Internal quotation marks omitted.) State
v. Jones, 210 Conn. App. 249, 256–57,
269 A.3d 870, cert.
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State v. Purvis
denied, 343 Conn. 901,
272 A.3d 199 (2022). Furthermore, ‘‘[w]e emphasize that the probative force of the
evidence is not diminished because it consists, in whole
or in part, of circumstantial evidence rather than direct
evidence. . . . It has been repeatedly stated that there
is no legal distinction between direct and circumstantial
evidence so far as probative force is concerned. . . .
It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving
substantial circumstantial evidence.’’ (Internal quotation marks omitted.) State v. Kyle A., supra, 212 Conn.
App. 255.
A
We first address the defendant’s sufficiency of the
evidence claim with respect to his conviction of possession of a controlled substance with intent to sell in
violation of § 21a-278 (b) (1) (A).8 The defendant argues
that there was insufficient evidence to sustain his conviction under this statute because the evidence presented failed to establish the requisite intent to sell
beyond a reasonable doubt. To support his argument,
the defendant points out that there was no evidence
presented that he had engaged in a sale of narcotics
and claims any circumstantial evidence is irrelevant in
the absence of such proof. Similarly, he claims that any
narcotics found in his possession were for personal use
only and that the total quantity of the narcotics found
on him was inconsistent with an intent to sell. We do
not agree.
‘‘To prove its case [of a violation of § 21a-278 (b)],
the state must prove beyond a reasonable doubt that (1)
8
General Statutes § 21a-278 (b) (1) provides in relevant part: ‘‘No person
may manufacture, distribute, sell, prescribe, dispense, compound, transport
with the intent to sell or dispense, possess with the intent to sell or dispense,
offer, give or administer to another person, except as authorized in this
chapter or chapter 420f, (A) a narcotic substance . . . .’’
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State v. Purvis
the defendant possessed a substance, (2) the substance
was a narcotic and (3) the defendant intended to sell
it.’’ (Internal quotation marks omitted.) State v. Bruno,
293 Conn. 127, 136,
975 A.2d 1253 (2009).9 The defendant’s claim in the present case focuses on the intent
element. ‘‘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). ‘‘It is well established that
[i]ntent is generally proven by circumstantial evidence
because direct evidence of the accused’s state of mind
is rarely available. . . . Therefore, intent 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. Stovall, 316 Conn. 514, 520–21,
115
A.3d 1071 (2015); see also State v. Nash,
316 Conn. 651,
672, 114 A.3d 128 (2015) (‘‘The state of mind of one
accused of a crime is often the most significant and, at
the same time, the most elusive element of the crime
charged. . . . Because it is practically impossible to
know what someone is thinking or intending at any
given moment, absent an outright declaration of intent,
a person’s state of mind is usually proved by circumstantial evidence . . . and is, except in rare cases, a question of fact.’’ (Internal quotation marks omitted.)).
Circumstantial evidence that is probative of a defendant’s intent to sell narcotics includes evidence of the
‘‘quantity of narcotics found in the defendant’s possession . . . the manner in which the narcotics are packaged [and] [e]vidence demonstrating that the defendant
was present in a known drug trafficking area . . . .’’
9
‘‘The law . . . is clear that the absence of drug dependency is not an
element of the offense of sale of narcotics under § 21a-278 (b).’’ (Emphasis
omitted; internal quotation marks omitted.) State v. Walker, 90 Conn. App.
737, 740,
881 A.2d 406, cert. denied,
275 Conn. 930,
883 A.2d 1252 (2005).
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State v. Purvis
(Internal quotation marks omitted.) State v. Billie, 123
Conn. App. 690, 704,
2 A.3d 1034 (2010). Also relevant
to the issue of an intent to sell is the ‘‘amount of . . .
cash the defendant possessed . . . .’’ (Internal quotation marks omitted.) State v. Garcia, 108 Conn. App.
533, 539,
949 A.2d 499, cert. denied,
289 Conn. 916,
957
A.2d 880 (2008). Additionally, a defendant’s possession
of a weapon at the time of the arrest is circumstantial
evidence that can support a jury’s finding of an intent
to sell. See State v. Avila, 166 Conn. 569, 580,
353 A.2d
776 (1974) (‘‘[i]t may reasonably be inferred that an
armed possessor of drugs has something more in mind
than mere personal use’’ (internal quotation marks omitted)).
Contrary to the defendant’s argument, evidence of a
sale or transaction is not required to satisfy the intent
to sell element of a charge pursuant to § 21a-278 (b)
(1) (A). See State v. Jimenez, 73 Conn. App. 664, 667–68,
808 A.2d 1190 (affirming conviction pursuant to § 21a-
278 (b) (1) (A) when only evidence presented was plastic bag of cocaine found in backseat of police cruiser
after defendant’s transport to police station), cert.
denied, 262 Conn. 929,
814 A.2d 381 (2002); see also
State v. Francis, 90 Conn. App. 676, 682–83,
879 A.2d
457 (concluding that evidence was sufficient to support
conviction of possession of narcotics with intent to sell
within 1500 feet of school when no sale was alleged to
have been made), cert. denied, 275 Conn. 925,
883 A.2d
1248 (2005). Moreover, given that intent ‘‘usually is
inferred from conduct,’’ it follows that the lack of evidence of a sale is simply one of ‘‘a multitude of facts’’
that a jury may consider in reaching its conclusion.
(Internal quotation marks omitted.) State v. Billie,
supra,123 Conn. App. 704. Therefore, in the present
case, the fact that the state did not present any evidence
establishing that the defendant had engaged in a sale
of narcotics is not dispositive of a lack of intent to sell.
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State v. Purvis
With respect to the defendant’s argument that the
amount of narcotics he possessed was not consistent
with an intent to sell, there is no requirement that a
defendant must have possessed a certain quantity of
narcotics to support a finding of an intent to sell. See
State v. Jeffreys, 78 Conn. App. 659, 676–77,
828 A.2d
659 (acknowledging that ‘‘[t]he quantity of drugs is not
. . . the sole dispositive factor’’ because intent can be
inferred through circumstantial evidence), cert. denied,
266 Conn. 913,
833 A.2d 465 (2003), overruled in part
on other grounds by State v. Polanco, 308 Conn. 242,
248, 253, 61 A.3d 1084 (2013). ‘‘Moreover, [a] large number of packets in the defendant’s possession is [a] fact
from which the inference of possession with intent to
sell can be drawn.’’ State v. Bowens, 24 Conn. App. 642,
649,
591 A.2d 433, cert. denied,
220 Conn. 906,
593 A.2d
971 (1991).
The defendant relies on Billie in support of his argument that an intent to sell cannot be found based on
the quantity of narcotics he possessed. Billie, however,
is inapposite to the present case, as the defendant in
Billie possessed only ‘‘a single package’’ of narcotics;
State v. Billie, supra,123 Conn. App. 704; whereas, in
the present case, the defendant was in possession of
fourteen individually packaged units of narcotics. Significantly, the amount of narcotics in the defendant’s
possession in the present case exceeds the quantity of
narcotics possessed by defendants in similar cases in
which this court has determined that the evidence was
sufficient for the jury to infer that the defendant
intended to sell narcotics. See State v. Jeffreys, supra,
78 Conn. App. 676–77 ( where defendant possessed two
‘‘separate, small plastic bags’’ of cocaine, ‘‘the evidence
was sufficient to permit the fact finder reasonably to
find that the defendant possessed the intent to sell the
drugs found in his possession’’); State v. Clark, 56 Conn.
App. 108, 111, 113,
741 A.2d 331 (1999) (defendant’s
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State v. Purvis
possession of ‘‘cellophane wrapper containing seven
pieces of crack cocaine and three small bags of heroin’’
was sufficient evidence of intent to sell); State v. Conley,
31 Conn. App. 548, 551, 561,
627 A.2d 436 (defendant’s
possession of six glassine packets of heroin was sufficient to establish intent to sell), cert. denied, 227 Conn.
907,
632 A.2d 696 (1993); see also State v. Abreu,
34
Conn. App. 629, 631, 634,
643 A.2d 871 (affirming conviction of possession of narcotics with intent to sell when
defendant possessed ball of white powder cocaine
wrapped in cellophane that weighed 2.2 grams), cert.
denied, 230 Conn. 915,
645 A.2d 1019 (1994).10
In the present case, the state presented sufficient
circumstantial evidence to support an inference that
the defendant intended to sell the narcotics found in
his possession. It is undisputed that, at the time of his
arrest, the defendant was present in a location known
as a crack house that is associated with narcotics dealing and use, and he was in the company of four individuals known to law enforcement as drug users. He was
also in possession of fourteen individually packaged
units of narcotics, an object described as a multitool
and $2126 in cash. Further, Trohalis, an expert witness
for the state, testified that low-level narcotics dealers
generally carry large amounts of cash and smaller quantities of packaged narcotics, that a ‘‘crack house’’ is a
location where addicts know they can find a dealer to
purchase narcotics from, and that the defendant was
the only individual at the location with narcotics found
on his person. During the state’s cross-examination of
the defendant, he answered affirmatively when asked
if he brought $2000 in cash with him to ‘‘that crack den.’’
As we have stated, ‘‘[p]roof of intent is usually established through circumstantial evidence, from which the
10
We note that the amount of narcotics that the defendant possessed in
Abreu is comparable to the amount involved in the present case. See footnote
5 of this opinion.
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State v. Purvis
[jury] may draw reasonable and logical inferences.’’
(Internal quotation marks omitted.) State v. Brown, 90
Conn. App. 835, 840,
879 A.2d 466, cert. denied,
276
Conn. 901,
844 A.2d 1026 (2005). Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have
inferred from the defendant’s possession of fourteen
individually packaged units of narcotics, a large sum
of cash and a multitool,11 at a location associated with
drug dealing in the company of known addicts who
themselves did not possess any narcotics, that he
intended to sell the narcotics in his possession. See
State v. Williams, 110 Conn. App. 778, 792,
956 A.2d
1176 (evidence sufficient to support conviction of possession of narcotics with intent to sell when defendant
possessed ‘‘forty-three individually packaged bags that
contained various forms of cocaine,’’ state’s expert witness testified that manner in which cocaine was packaged and amount of cocaine defendant possessed ‘‘were
consistent with packaging for sale, rather than for personal use,’’ and ‘‘defendant was arrested in an area
known for drug activity’’), cert. denied, 289 Conn. 957,
961 A.2d 424 (2008); State v.
Clark, supra, 56 Conn.
App. 110–13 (sufficient circumstantial evidence existed
to demonstrate that defendant intended to sell narcotics
when evidence showed that defendant possessed ‘‘$205
in mostly $10 and $20 bills,’’ ‘‘seven pieces of crack
11
Construing the evidence in the light most favorable to upholding the
verdict, we conclude that the jury reasonably could have inferred that the
multitool in the defendant’s possession was meant to serve as a weapon.
See State v. Ryan, 23 Conn. Supp. 425, 428–29,
184 A.2d 183 (1962) (‘‘[a]rticles
which are manufactured and generally used for peaceful and proper purposes, such as baseball bats, axes, hammers, ordinary pocketknives, razors,
or other articles too numerous to mention, may become dangerous or deadly
weapons when they are used or carried for the purpose of assault or
defense’’); see also State v. Ramos, 271 Conn. 785, 789–90, 798,
860 A.2d
249 (2004) (evidence was sufficient to support conviction for having weapon
in motor vehicle where defendant used hammer in vehicle during altercation).
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State v. Purvis
cocaine and three small bags of heroin,’’ and was present in high drug trafficking area). This view of the evidence is entirely reasonable and supports the jury’s
guilty verdict on this charge. See State v. Fisher, supra,
342 Conn. 249. Accordingly, the evidence was sufficient
to support the defendant’s conviction of possession of
a controlled substance with intent to sell.
B
The defendant next claims that the evidence was
insufficient to support his conviction under count three
of possession of drug paraphernalia with intent to use
in violation of § 21a-267 (a).12 The defendant’s claim is
premised on his assertion that the evidence presented
was not sufficient to establish that he was in possession
of drug paraphernalia. Specifically, the defendant
claims that the court’s jury instruction ‘‘limited the definition of ‘drug paraphernalia’ to encompass only packaging materials,’’13 and that there was no evidence that
he was actively or constructively in possession of any
packaging materials. The state counters that the jury
was ‘‘within its prerogative to find [the defendant] guilty
12
General Statutes (Rev. to 2017) § 21a-267 (a) provides in relevant part:
‘‘No person shall use or possess with intent to use drug paraphernalia, as
defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert, produce, process, prepare,
test, analyze, pack, repack, store, contain or conceal, or to ingest, inhale
or otherwise introduce into the human body, any controlled substance, as
defined in subdivision (9) of section 21a-240, other than a cannabis-type
substance in a quantity of less than one-half ounce. . . .’’
13
We note that, during the trial, there were several references to broken,
smaller glass pipes that are used to consume crack cocaine, which were
found in and around the premises. The amended long form information,
however, alleged that the defendant ‘‘possessed with the intent to use drug
paraphernalia, to prepare, pack, repack, store, contain and conceal any
controlled substance, in violation of . . . § 21a-267 (a).’’ Additionally, the
court’s jury charge defined drug paraphernalia to include material used ‘‘to
prepare, pack, repack, store, contain or conceal any controlled substance
other than cannabis.’’ Accordingly, count three was not prosecuted under
a theory that the drug paraphernalia possessed by the defendant included
the broken pipes.
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State v. Purvis
on count three vis-à-vis the plastic bags that contained
his narcotics.’’ The state also argues that the jury reasonably could have found that the defendant constructively possessed the larger plastic bags found in the
bedroom, which, the state contends, the defendant was
using ‘‘to package his narcotics into smaller, sellable
units.’’ Thus, according to the state, the jury could have
based its guilty verdict with respect to this charge on
either ‘‘the plastic bags that contained his narcotics’’
or ‘‘the empty plastic bags . . . that were discovered
inside the bedroom.’’
In his appellate reply brief, the defendant responds
by making the following argument: ‘‘The . . . bits of
plastic wrap [surrounding the various bits of crack
cocaine] were not ‘bags’ and do not qualify as ‘paraphernalia’ under the meaning of the statute. . . . Arguably,
the pile of empty plastic bags in . . . Maloney’s bedroom ([exhibit 16]) that the prosecutor pointed to as
comprising drug paraphernalia would constitute drug
paraphernalia, but they were never tied to [the defendant] and that is not what the defendant was found to
have possessed. All [the defendant] possessed by way
of ‘containers’ was the slivers of plastic wrap on the
individual bits of crack, and the two glassine envelopes
holding the . . . heroin. . . . It makes no sense that
wrappings of individual ‘doses’ . . . would constitute
‘paraphernalia.’ . . . The defendant respectfully submits that it is not a sensible reading of the statute to
conclude that an individual container or wrapping is
‘paraphernalia’ within the meaning of the Model Drug
Paraphernalia Act and as defined in [General Statutes
§ 21a-240 (20)].’’ (Emphasis altered.) We disagree.
The following additional facts and procedural history
are relevant to our analysis of this issue. As we stated
previously in this opinion, the defendant was found to
be in possession of the narcotics that fell out of his
mouth in the bathtub, which consisted of six ‘‘small,
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State v. Purvis
white rock-like substances’’ that were each ‘‘tightly
wrapped into small slivers of plastic’’ and later were
determined to contain cocaine, as well as two glassine
bags that each contained a mixture of heroin and fentanyl. The items the defendant dropped in the kitchen/
hallway area similarly consisted of six ‘‘small bags of
crack cocaine,’’ each of which was individually wrapped
in plastic. The police also seized from the bedroom in
the premises empty clear plastic bags. In the amended
long form information charging the defendant with,
inter alia, possession of drug paraphernalia with intent
to use, the state alleged the following: ‘‘[I]n the city of
Danbury, in the area of #12 Bank Street, on or about
October 11, 2018, at approximately 6:50 p.m., [the defendant] possessed with the intent to use drug paraphernalia, to prepare, pack, repack, store, contain and conceal
any controlled substance . . . .’’
With respect to this charge, the court instructed the
jury in relevant part as follows: ‘‘The defendant is
charged in count three with possessing with intent to
use drug paraphernalia. The statute defining this
offense reads in pertinent part as follows: No person
shall possess with the intent to use drug paraphernalia
to prepare, pack, repack, store, contain or conceal any
controlled substance other than cannabis. Again, this
is one of the times where I’ve indicated to you there
were alternative methods given by the state. . . . For
you to find the defendant guilty of this charge, the
state must prove beyond a reasonable doubt that the
defendant possessed with intent to use drug paraphernalia. The drug paraphernalia must have been used to
prepare, pack, repack, store, contain or conceal any
controlled substance other than cannabis. . . . The
state must prove beyond a reasonable doubt that the
defendant knew that he was in possession of the drug
paraphernalia. The defendant must have specifically
intended that the object was to be used to prepare,
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State v. Purvis
pack, repack, store, contain or conceal a controlled
substance. . . . In conclusion, the state must prove
beyond a reasonable doubt that the defendant possessed with the intent to use drug paraphernalia to
prepare, pack, repack, store, contain or conceal a controlled substance.’’
During deliberations, the jury sent a note to the court
asking: ‘‘Are the bags that contain the controlled substances . . . considered drug paraphernalia?’’ Due to
their prior knowledge of the judge’s unavailability at
the time, the parties had agreed that, ‘‘if there was a
note . . . that could be answered by both attorneys,
without the need for [the court’s] involvement, they
would do that . . . .’’ Therefore, the parties agreed to
the following answer: ‘‘[W]ith regard to your question,
please refer to the jury instructions. Any further questions, please send another note.’’ No further questions
were submitted by the jury.
A conviction pursuant to § 21a-267 (a) requires the
state to prove beyond a reasonable doubt that the defendant was in possession of drug paraphernalia. Our
determination of whether the materials possessed by
the defendant constitute drug paraphernalia for purposes of § 21a-267 (a) involves a matter of statutory
interpretation, which concerns a question of law over
which this court exercises plenary review. See National
Bank Trust v. Yurov, 223 Conn. App. 637, 643,
309 A.3d
1259, cert. denied,
348 Conn. 961,
312 A.3d 37 (2024).
‘‘When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent
of the legislature. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship
to other statutes. If, after examining such text and considering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
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State v. Purvis
unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test
to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reasonable interpretation.’’ (Internal quotation marks omitted.) Avon v. Sastre, 224 Conn. App. 155, 167,
312 A.3d
40, cert. denied,
349 Conn. 905,
312 A.3d 1058 (2024).
We first look at the text of the statute. Although the
definition of drug paraphernalia in § 21a-240 (20) (A)14
is expansive, the state limited the statutory definition
in the amended long form information. Relevant to the
present case, therefore, the statute provides in relevant
part that ‘‘ ‘[d]rug paraphernalia’ means equipment,
products and materials of any kind that are used,
intended for use or designed for use in . . . packaging,
repackaging, storing, containing or concealing . . .
any controlled substance . . . .’’ General Statutes
§ 21a-240 (20) (A). Consistent with that definition, the
trial court in the present case limited the jury’s consideration of drug paraphernalia to those items that are used
to ‘‘prepare, pack, repack, store, contain or conceal any
controlled substance other than cannabis.’’ The statute,
however, does not further define the terms ‘‘prepare,
pack, repack, store, contain or conceal . . . .’’ General
Statutes § 21a-240 (20) (A). ‘‘[I]n the absence of a definition of terms in the statute itself, [w]e may presume
. . . that the legislature intended [a word] to have its
ordinary meaning in the English language, as gleaned
from the context of its use. . . . Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary. . . .
Braasch v. Freedom of Information Commission, 218
14
Although § 21a-240 (20) (A) was amended by No. 22-108, § 2, of the 2022
Public Acts and No. 23-79, § 1, of the 2023 Public Acts, those amendments
have no bearing on this appeal. For convenience, we refer to the current
revision of the statute.
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State v. Purvis
Conn. App. 488, 510, 292 A.3d 711 (2023); see also General Statutes § 1-1 (a) ([i]n the construction of the statutes, words and phrases shall be construed according
to the commonly approved usage of the language).’’
(Internal quotation marks omitted.) Avon v. Sastre,
supra, 224 Conn. App. 169. The term ‘‘contain’’ is defined
in Merriam-Webster’s Collegiate Dictionary as ‘‘to have
within: hold . . . .’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2014) p. 269.
On appeal, the defendant first argues that the pieces
of plastic wrap surrounding the bits of crack cocaine
were not ‘‘bags’’ and, thus, cannot constitute drug paraphernalia under the statute. The state counters that
the ‘‘plastic wrappings were repeatedly referred to as
plastic bags throughout the trial.’’ (Emphasis omitted.)
First, the record supports the state’s contention regarding the repeated references, by both the state and the
defense, to the ‘‘plastic bags’’ containing the narcotics
that were dropped by the defendant in the kitchen/
hallway area and that were recovered from him in the
bathroom. Second, we note that the statute does not
require that the paraphernalia constitute a bag; instead,
all that is required for it to be drug paraphernalia under
the statute as charged in this case is that it was used
to ‘‘prepare, pack, repack, store, contain or conceal
any controlled substance other than cannabis . . . .’’
Photographs of those plastic bags or wrappings that
were entered into evidence demonstrate that the plastic, which was tied in a knot at the top, was used as a
means to contain the bits of crack cocaine. These bags
or plastic wrappings, albeit small, undeniably were used
to pack, store or contain narcotics within the meaning
of § 21a-240 (20) (A), which pertains to ‘‘equipment,
products and materials of any kind that are used,
intended for use or designed for use in . . . packaging,
repackaging, storing, containing or concealing . . .
any controlled substance . . . .’’ (Emphasis added.)
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Nevertheless, even if we were to assume without
concluding that they do not constitute drug paraphernalia under the statute, the defendant also was found in
possession of two glassine bags, each of which contained a mixture of heroin and fentanyl, which the
defendant acknowledged in his appellate reply brief.
Glassine bags are commonly used to package and sell
narcotics; see State v. Elijah, 42 Conn. App. 687, 690,
682 A.2d 506, cert. denied,
239 Conn. 936,
684 A.2d 709
(1996); and are considered to be drug paraphernalia.
See State v. Rosario, 238 Conn. 380, 383,
680 A.2d 237
(1996); State v. DeFusco, 224 Conn. 627, 644–45,
620
A.2d 746 (1993); State v. Slaughter,
151 Conn. App. 340,
344, 95 A.3d 1160, cert. denied,
314 Conn. 916,
100 A.3d
405 (2014); State v. Hernandez,
53 Conn. App. 706, 709,
736 A.2d 137 (1999), aff’d,
254 Conn. 659,
759 A.2d
79 (2000). The glassine bags, which were used by the
defendant to hold or contain narcotics, fall within the
definition of drug paraphernalia under the statute and
provided by the court; therefore, the defendant’s claim
is unavailing.
The defendant further argues that ‘‘it is not a sensible
reading of the statute to conclude that an individual
container or wrapping is ‘paraphernalia’ within the
meaning of the Model Drug Paraphernalia Act and as
defined in . . . § 21a-267 (a).’’ The state, in response,
points to the broad language of § 21a-240 (20) (A) and
argues that ‘‘the plastic bags at issue squarely fall within
the definition of paraphernalia provided for in § 21a-
240 (20) (A), insofar as these bags were expressly used
to package, repackage, store, contain, and/or conceal
the defendant’s crack cocaine.’’ We agree with the state.
The definition of drug paraphernalia in § 21a-240 (20)
(A) is based on the Model Drug Paraphernalia Act; S.
Gersten, ‘‘Drug Paraphernalia: Illustrative of the Need
for Federal-State Cooperation in Law Enforcement in
an Era of New Federalism,’’ 26 Sw. U. L. Rev. 1067,
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State v. Purvis
1079 n.80 (1997); which was ‘‘promulgated in 1979 by
the Drug Enforcement Administration in an effort to
help local governments draft legislation to deal with
the problem of drug paraphernalia retailers’’; United
States v. Main Street Distributing, Inc., 700 F. Supp.
655, 661 (E.D.N.Y. 1988); and adopted by a majority of
states. See N. Golding, ‘‘The Needle and the Damage
Done: Indiana’s Response to the 2015 HIV Epidemic
and the Need to Change State and Federal Policies
Regarding Needle Exchanges and Intravenous Drug
Users,’’ 14 Ind. Health L. Rev. 173, 188 (2017) (noting
that thirty-seven states and Washington, D.C., have
adopted drug paraphernalia statutes based on the Model
Drug Paraphernalia Act). Notably, other states that have
adopted drug paraphernalia statutes based on the Model
Drug Paraphernalia Act and have similar definitions of
drug paraphernalia as the one in § 21a-240 (20), have
construed those statutes in a manner consistent with
the position advanced by the state in the present case,
namely, that individual bags containing narcotics and/
or residue do in fact constitute drug paraphernalia. See
Heydenrich v. State, 379 S.W.3d 507, 512 (Ark. App.
2010) (‘‘[t]he discovery of the baggies containing drugs
and drug residue on [the defendant’s] person constitutes substantial evidence to support the possessionof-drug-paraphernalia conviction’’); State v. Boone, 108
Ohio App. 3d 233, 238,
670 N.E.2d 527 (1995) (holding
that plastic bag or bags containing marijuana or residue
were containers under drug paraphernalia statute and
noting that, ‘‘[t]hough the result—that the possession
of the drug itself is a minor misdemeanor, while possession of the bag in which it is carried is a misdemeanor of
the fourth degree—is absurd, this particular absurdity
must have been intended by the legislature, and we
cannot depart from the plain meaning of the statute’’
(emphasis in original)); see also Ramirez v. United
States, 49 A.3d 1246, 1250–51 (D.C. 2012) (trial court’s
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State v. Purvis
instruction that jury could convict for possession of
drug paraphernalia based on single ziplock bag containing cocaine was not based on incorrect statement
of law); A.B. v. State, 679 So. 2d 1299, 1299 (Fla. App.
1996) (stating in dicta that defendant in possession of
baggie containing cocaine can be convicted of both
possession of narcotic and possession of drug paraphernalia); State v. Purves, Docket No. 56600-1-II, 2023 WL
2263293, *6 (Wn. App. February 28, 2023) (‘‘both the
baggy and the substance [inside it] are evidence that
[the defendant] violated the drug paraphernalia statute’’), review denied, 1 Wn. 3d 1021, 532 P.3d 149 (2023).
Likewise, in the present case, under the plain language of § 21a-240 (20) (A), the glassine bags containing
narcotics that were found in the defendant’s possession
constitute drug paraphernalia. We recognize that prosecutions under the drug paraphernalia statute typically
involve other tools or items connected with the use,
packaging and sale of narcotics; however, the plain
language of § 21a-240 (20) (A) does not exempt from
its coverage individual bags used to contain the very
narcotics a defendant is found to have possessed.
We conclude, therefore, that there was sufficient evidence from which the jury reasonably could have found
beyond a reasonable doubt that the defendant was in
possession of drug paraphernalia. Accordingly, the
defendant’s sufficiency of the evidence claim fails with
respect to his conviction of possession of drug paraphernalia with intent to use.15
15
Having determined that the evidence was sufficient for the jury to find
the defendant guilty of possession of drug paraphernalia with intent to use
on the basis of the defendant’s possession of the small bags of crack cocaine
that he dropped in the kitchen/hallway area and in the bathroom, as well
as the two glassine bags containing narcotics, we need not decide whether
the evidence was sufficient to support a finding that the defendant constructively possessed the empty plastic bags found in the bedroom of the premises.
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State v. Purvis
II
We next address the defendant’s claim that his conviction of both possession of a controlled substance
with intent to sell, as alleged in count one of the
amended long form information, and possession of a
controlled substance, as alleged in count two, violates
the constitutional protection against double jeopardy.
He asserts that, under Blockburger v. United States,
284 U.S. 299, 304,
52 S. Ct. 180,
76 L. Ed. 306 (1932),
his conviction of possession of a controlled substance
in violation of § 21a-279 (a) (1) must be vacated. Specifically, the defendant claims that because possession of
a controlled substance is a lesser included offense of
the crime of possession of a controlled substance with
intent to sell, and because the conduct charged in
counts one and two arose out of the same act or transaction, his right to be free from double jeopardy was
violated when he was convicted and sentenced separately on both counts. We agree.
The defendant acknowledges that he did not preserve
this claim before the court and accordingly requests
review pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781,
120 A.3d 1188 (2015). ‘‘Under
Golding . . . a defendant can prevail on a claim of
constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt. . . . The first two [Golding]
requirements involve a determination of whether the
claim is reviewable; the second two requirements
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State v. Purvis
involve a determination of whether the defendant may
prevail.’’ (Citation omitted; internal quotation marks
omitted.) State v. Mallozzi, 225 Conn. App. 787, 814,
317 A.3d 131 (2024).
In the present case, we conclude that the defendant’s
claim is reviewable under the first two prongs of Golding because the record is adequate for review ‘‘and the
defendant’s claim that his conviction violated his right
against being placed in double jeopardy is of constitutional magnitude . . . .’’ State v. Bumgarner-Ramos,
187 Conn. App. 725, 744,
203 A.3d 619, cert. denied,
331 Conn. 910,
203 A.3d 570 (2019); see also State v.
Schovanec, 326 Conn. 310, 325,
163 A.3d 581 (2017)
(reviewing unpreserved double jeopardy claim under
Golding). We, therefore, initially focus our inquiry on
the question of whether the alleged constitutional violation exists and deprived him of a fair trial. See State v.
Bumgarner-Ramos, supra, 744.
The following additional facts and procedural history
are relevant to our analysis of this issue. The amended
long form information charged the defendant with, inter
alia, possession of a controlled substance with intent
to sell and possession of a controlled substance. With
respect to the possession with intent to sell charge, the
state alleged the following: ‘‘[I]n the city of Danbury,
in the area of #12 Bank Street, on or about October
11, 2018, at approximately 6:50 p.m., [the defendant]
possessed with the intent to sell and dispense, offer
and give to another person a narcotic substance, to wit:
heroin, fentanyl and cocaine . . . .’’ As to the charge of
possession of a controlled substance, the state alleged:
‘‘[I]n the city of Danbury, in the area of #12 Bank Street,
on or about October 11, 2018, at approximately 6:50
p.m., [the defendant] did possess and have under his
control a controlled substance, to wit: heroin, fentanyl
and cocaine . . . .’’ During closing arguments, the
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State v. Purvis
prosecutor told the jury that the inquiry on the possession of narcotics with intent to sell charge is whether
‘‘[the defendant] possessed [the narcotics] . . . constructively by having control and knowing where they
are or directly on his person.’’ In explaining the possession of narcotics charge as alleged in count two during
closing argument, the prosecutor told jurors: ‘‘I’ve
described what it means to possess something and what
direct control versus circumstantial evidence is, and I
don’t want to belabor the point, but again in this case,
we have the officers’ testimony, which the evidence
shows the defendant possessed them. It doesn’t really
get much more direct possession than having something
in [one’s] mouth . . . .’’
We begin by setting forth the appropriate standard
of review and the principles of law that guide our analysis of the defendant’s claim. ‘‘[O]ur standard of review
for analyzing constitutional claims such as double jeopardy violations prohibited by the fifth amendment to
the United States constitution presents an issue of constitutional and statutory interpretation over which our
review is plenary.’’ (Internal quotation marks omitted.)
State v. Bumgarner-Ramos, supra,187 Conn. App. 747.
‘‘The fifth amendment to the United States constitution
provides in relevant part: No person shall . . . be subject for the same offense to be twice put in jeopardy
of life or limb . . . . The double jeopardy clause of
the fifth amendment is made applicable to the states
through the due process clause of the fourteenth
amendment. . . . Although the Connecticut constitution has no specific double jeopardy provision, we have
held that the due process guarantees of [the Connecticut constitution] include protection against double
jeopardy.’’ (Internal quotation marks omitted.) State v.
Underwood, 142 Conn. App. 666, 681,
64 A.3d 1274, cert.
denied, 310 Conn. 927,
78 A.3d 146 (2013).
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‘‘It is well established that [d]ouble jeopardy prohibits
not only multiple trials for the same offense, but also
multiple punishments for the same offense. . . . Double jeopardy analysis in the context of a single trial is
a [two step] process, and, to succeed, the defendant
must satisfy both steps. . . . First, the charges must
arise out of the same act or transaction [step one].
Second, it must be determined whether the charged
crimes are the same offense [step two]. Multiple punishments are forbidden only if both conditions are met.
. . . At step two, we [t]raditionally . . . have applied
the Blockburger test to determine whether two statutes
criminalize the same offense, thus placing a defendant
prosecuted under both statutes in double jeopardy:
[When] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses
or only one, is whether each provision requires proof
of a fact [that] the other does not.’’ (Citation omitted;
internal quotation marks omitted.) State v. Abraham,
343 Conn. 470, 488,
274 A.3d 849 (2022).
The state concedes, and we agree, that because possession of a controlled substance is a lesser included
offense of the crime of possession of a controlled substance with intent to sell, the charged crimes are the
same offense for double jeopardy purposes. See, e.g.,
State v. Arokium, 143 Conn. App. 419, 435,
71 A.3d 569
(‘‘[b]ecause one cannot commit the greater offense of
possession of narcotics with intent to sell without first
committing the lesser offense of possession of narcotics, the defendant’s conviction of this latter offense is
violative of double jeopardy principles’’), cert. denied,
310 Conn. 904,
75 A.3d 31 (2013). We need only determine, therefore, whether the charges arose out of the
same act or transaction.
In determining whether the charges arise out of the
same act or transaction, ‘‘it is not uncommon that we
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State v. Purvis
look to the evidence at trial and to the state’s theory
of the case . . . in addition to the information against
the defendant, as amplified by the bill of particulars.’’16
(Citation omitted; internal quotation marks omitted.)
State v. Porter, 328 Conn. 648, 662,
182 A.3d 625 (2018).
‘‘When determining whether two charges arose from
the same act or transaction, our Supreme Court has
asked whether a jury reasonably could have found a
separate factual basis for each offense charged.’’ (Internal quotation marks omitted.) State v. Jarmon, 195
Conn. App. 262, 284,
224 A.3d 163, cert. denied,
334
Conn. 925,
223 A.3d 379 (2020); see also State v. Crawley,
93 Conn. App. 548, 557,
889 A.2d 930 (‘‘separate
convictions for possession of the same controlled substance . . . will not violate the [d]ouble [j]eopardy
[c]lause if the possessions are sufficiently differentiated
by time, location, or intended purpose’’ (internal quotation marks omitted)), cert. denied, 277 Conn. 925,
895
A.2d 799 (2006).
The state claims that the two charges stemmed from
different acts. Specifically, the state argues that the
charge in count one, possession of a controlled substance with intent to sell in violation of § 21a-278 (b)
(1) (A), pertains to the narcotics that the defendant
possessed when he was standing in the kitchen/hallway
area at the time that the officers first entered the premises, which consisted of two glassine bags that each
contained a mixture of heroin and fentanyl, as well as
six ‘‘small, white rock-like substances’’ of cocaine and
six ‘‘small bags of crack cocaine,’’ whereas the charge
in count two, possession of a controlled substance in
violation of § 21a-279 (a) (1), pertains to the narcotics
that the defendant subsequently attempted to swallow
16
In the present case, the defendant filed a motion for a bill of particulars
on February 10, 2020. The court, however, was not requested to issue a ruling,
and therefore, there was no bill of particulars to amplify the information.
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State v. Purvis
in the bathroom, which consisted of the same two glassine bags that contained a mixture of heroin and fentanyl
and the same six ‘‘small, white rock-like substances’’
of cocaine that he had had in his possession in the
kitchen/hallway area.17 According to the state, ‘‘it was
reasonable for the jury to infer that, after attempting
to ingest [the] narcotics [in the bathroom], [the defendant] no longer possessed an intent to sell’’ but, rather,
‘‘at that point his intent was simply to consume his
narcotics, albeit to avoid detection.’’ We are not persuaded.
Because the amended long form information does
not resolve the question as to whether the charges arise
out of the same act or transaction in the present case,
and there was no bill of particulars to amplify the information, we look to the evidence presented at trial and
to the state’s theory of the case. On the basis of our
review of the evidence presented at trial, we conclude
that both offenses arose from a single act of possession
of narcotics. The narcotics that were in the defendant’s
possession when he was in the bathroom were also in
his possession when the police first entered the premises and the defendant was standing in the kitchen/
hallway area. The state suggests that, after the defendant attempted to ingest the narcotics, his intent had
changed from an intent to sell to an intent merely to
possess. This contention, however, lacks merit because
the proper inquiry is ‘‘whether separate [criminal] acts
have been committed with the requisite criminal
intent.’’ (Emphasis in original.) State v. Sullivan, 220
Conn. App. 403, 429,
298 A.3d 1238, cert. granted,
348
Conn. 927,
305 A.3d 631 (2023). The defendant, while
dropping some of the narcotics in the hallway, continuously possessed the remaining narcotics in a single
17
As stated previously in this opinion, the defendant dropped six ‘‘small
bags of crack cocaine’’ onto the floor as he ran down the hallway away
from the officers.
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State v. Purvis
course of conduct and, therefore, the jury could not
reasonably have found that the defendant committed
a separate act of possession of controlled substances
when he ran into the bathroom carrying some of the
same narcotics that he had possessed in the kitchen/
hallway area. See, e.g., State v. Crawley, supra, 93 Conn.
App. 556–57 (‘‘possession, in itself, might more accurately be viewed as a course of conduct, rather than as
an act’’). Accordingly, we conclude that the offenses
in question—possession of controlled substances with
intent to sell and possession of controlled substances—
arose out of the same act. Therefore, the defendant has
established a constitutional violation that deprived him
of a fair trial because his conviction and separate punishments violated the prohibition against double jeopardy.
The state also contends that the defendant possessed
‘‘separate stashes’’ of narcotics for each respective
count in support of its claim that the charges arise
from different acts. The considerations raised in State
v. Crawley, supra,93 Conn. App. 557, however, persuade us that the state’s claim that counts one and two
pertained to different stashes of narcotics is flawed
because nothing in the state’s case established that the
defendant possessed separate stashes that were ‘‘sufficiently differentiated by time, location, or intended purpose.’’ (Internal quotation marks omitted.) Id. In Crawley, ‘‘[t]he state charged the defendant with possessing
two separate quantities of cocaine powder, in two separate locations, on the same day.’’ Id., 555. The state
presented evidence that when the police stopped the
defendant’s vehicle, the defendant possessed cocaine
powder located in the front pocket of his pants. Id. The
state also presented evidence that when different law
enforcement officers searched the defendant’s room at
another location, the defendant possessed additional
cocaine powder that was located in a closet. Id., 556.
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State v. Purvis
On appeal, the defendant claimed that his convictions
under both counts violated the prohibition against double jeopardy because ‘‘ ‘[t]he evidence presented [did]
not comprise two separate acts of possession’ ’’ but,
rather, ‘‘ ‘the defendant possessed both stashes [of
cocaine] concurrently, one constructively and one actually on his person.’ ’’ Id., 552.
In Crawley, in determining ‘‘whether the defendant’s
conduct with regard to the two stashes of cocaine
reflected a single course of conduct or whether his
conduct reflected distinct acts’’; id., 556; this court
stated: ‘‘Generally, courts which have considered the
issue [of multiple prosecutions under controlled substance statutes] have determined that separate convictions for possession of the same controlled substance
. . . will not violate the [d]ouble [j]eopardy [c]lause if
the possessions are sufficiently differentiated by time,
location, or intended purpose.’’ (Internal quotation
marks omitted.) Id., 557. The court in Crawley determined that ‘‘there was no evidence suggesting that both
stashes of cocaine were in any way related to a single
drug transaction’’ and that ‘‘[t]he police did not discover
the cocaine during one encounter with the defendant.’’
Id. Rather, the evidence reflected that ‘‘one stash was
discovered during a search incident to an arrest’’ at one
location, ‘‘and the other was discovered [later in the
day] during a search of the defendant’s residence.’’ Id.
As a result, this court concluded that the defendant
failed to demonstrate on appeal ‘‘that his possession of
the two stashes of cocaine on [the same date at different
locations] was linked to a single course of conduct.’’
Id., 558. This court also noted that ‘‘[e]ach of the charges
required distinct legal instructions by the court and
factual findings by the jury.’’ Id. This court concluded
that because the two charges did not arise from the
same act or transaction, the defendant’s two criminal
acts of possession were separately punishable and ‘‘did
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State v. Purvis
not put him in jeopardy twice for a single criminal
act.’’ Id.
In the present case, by contrast, the state’s claim that
counts one and two relate to two different ‘‘stashes’’
of narcotics is unpersuasive because the evidence presented showed that the narcotics that the defendant
possessed in the bathroom were among the same narcotics that he possessed just moments earlier when he
was standing in the kitchen/hallway area. The narcotics
in the present case were ‘‘linked to a single course of
conduct’’ and were discovered by the police during a
single encounter with the defendant. Additionally, the
court did not provide the jury with distinct instructions
as to two separate stashes of narcotics. See, e.g., Williams v. State, 104 So. 3d 254, 262 (Ala. App. 2012) (acts
of possession were not separate where ‘‘[b]oth stashes
were found at essentially the same location’’ and ‘‘at the
same time’’ and were ‘‘the same controlled substance’’
(internal quotation marks omitted)); see also Commonwealth v. Harris, Docket No. 15-P-1569, 2017 WL
715128, *2–3 (Mass. App. February 23, 2017) (unpublished opinion) (no duplicative punishment where
charges were based on different quantities of cocaine
found in different areas of defendant’s vehicle and judge
differentiated between two quantities of narcotics at
issue during final instructions to jury), review denied,
476 Mass. 1114,
80 N.E.3d 980 (2017).
The state also relies on language from its closing
argument regarding the defendant’s attempt to consume
certain narcotics in the bathroom to support its claim
that counts one and two were based on different acts.
That language, however, did not distinguish between
the conduct charged in the two counts in any meaningful way because it did not clearly articulate a theory that
the two charges were each based on separate stashes
of narcotics, which the state now claims on appeal. To
be sure, the statement made by the prosecutor during
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State v. Purvis
closing argument regarding count one—that the charge
is proven if ‘‘[the defendant] possessed [the narcotics]
whether constructively by having control and knowing
where they are or directly on his person’’—indicates
that the possession with intent to sell charge was being
prosecuted on the theory that both the narcotics the
defendant dropped and the narcotics that he attempted
to ingest constituted the narcotics that he intended to
sell. Although the state’s later discussion of the possession charge at closing argument referenced the defendant’s attempted ingestion of narcotics, that single reference is not enough to support the state’s claim that
it clearly distinguished between the conduct that gave
rise to counts one and two during closing argument.
Moreover, a review of the record reveals that, in its
theory of the case, the state did not draw a distinction
between the defendant’s conduct inside and outside of
the bathroom with respect to his possession of narcotics. For instance, the amended long form information
does not draw a distinction between the conduct, or
the particular narcotics, that counts one and two are
based on, and according to it, both offenses arose out
of the same transaction—the defendant’s possession of
heroin, fentanyl and cocaine at the premises on October
11, 2018. Indeed, none of the evidence presented at trial
indicated that counts one and two pertained to different
stashes of narcotics possessed by the defendant, and
the trial court’s jury instructions on counts one and
two did not draw any distinction between the particular
narcotics that the defendant dropped outside of the
bathroom and those that the defendant attempted to
ingest inside the bathroom.
Given the lack of support for the state’s argument in
the charging documents, the evidence adduced at trial
and the state’s overall presentation of its case, the jury
could not reasonably have found a separate factual
basis for counts one and two. Therefore, we conclude
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State v. Purvis
that a constitutional violation exists that deprived the
defendant of a fair trial.18
With respect to Golding’s fourth prong, we further
conclude, and the state does not argue to the contrary,
that the error is not harmless. ‘‘Although we acknowledge that the court sentenced the defendant to serve
a concurrent sentence for the lesser and greater
offenses, we recognize that the conviction of both of
the separate offenses, in their own right, impermissibly
harms the defendant.’’ State v. Bumgarner-Ramos,
supra,187 Conn. App. 751. Consequently, pursuant to
State v. Polanco, supra, 308 Conn. 260,19 we remand
the case to the trial court with direction to vacate the
defendant’s conviction of the lesser included offense
of possession of a controlled substance. In vacating the
defendant’s conviction of possession of a controlled
substance, we note that the sentence imposed for his
conviction of that offense was to run concurrently with
the sentences imposed for the other offenses of which
the defendant was convicted. Accordingly, it is unnecessary to remand this case to the trial court for resentencing. See State v. Graham S., 149 Conn. App. 334, 346,
87 A.3d 1182 (‘‘[w]e have held that when some of a
defendant’s convictions are reversed, and the trial court
18
We note that, if the ‘‘legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court’s task of statutory
construction is at an end and the prosecutor may seek and the trial court
or jury may impose cumulative punishment under such statutes in a single
trial’’; (internal quotation marks omitted) State v. Burgos, 170 Conn. App.
501, 551,
155 A.3d 246, cert. denied,
325 Conn. 907,
156 A.3d 538 (2017);
however, ‘‘the burden is on the state to present evidence of clear legislative
intent to specifically authorize cumulative punishments,’’ and the state has
made no such argument in the present case. Id., 552.
19
In State v. Polanco, supra, 308 Conn. 260, our Supreme Court exercised
its supervisory authority and adopted a rule ‘‘that when a defendant is
convicted of greater and lesser included offenses, the trial court shall vacate
the conviction for the lesser offense rather than merging it with the conviction for the greater offense.’’
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State v. Purvis
clearly intended that a nonreversed conviction control
its sentencing scheme, remand for resentencing is not
necessary where reversing the improper convictions
and vacating the accompanying sentences will not frustrate the trial court’s intent’’ (internal quotation marks
omitted)), cert. denied, 312 Conn. 912,
93 A.3d 595
(2014).
The judgment is reversed only as to the conviction
of possession of a controlled substance and the case
is remanded with direction to render judgment vacating
the defendant’s conviction of that offense; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
