STATE v. DENBY, 35 Conn. App. 609 (1994)

646 A.2d 909

(12216)Appellate Court of Connecticut

LAVERY, LANDAU and HEIMAN, Js.

Convicted of the crimes of possession of cocaine with intent to sell by a person who is not drug-dependent and possession of cocaine with intent to sell within 1000 feet of a school, the defendant appealed to this court. Held:
1. The trial court properly instructed the jury on the intent necessary to support a conviction of the crime of possession of cocaine with intent to sell within 1000 feet of a school; the state was required to prove only that the defendant had the intent to sell the narcotics in his possession, not that he specifically intended to sell the narcotics within 1000 feet of a school. 2. The defendant could not prevail on his claim that the trial court improperly excluded certain testimony related to his defense of

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drug-dependency, he having failed to present an adequate record for review of that claim. 3. The defendant’s unpreserved challenge to the trial court’s jury instructions concerning drug dependency was not reviewable; the absence of drug dependency was not reviewable; the absence of drug dependency not being an element of the crime charged, the issue was not of constitutional magnitude so as to warrant review. 4. The trial court did not abuse its discretion in permitting the state to impeach the defendant’s testimony by referring to a prior conviction for conspiracy to distribute drugs, he having opened the door to that subject by testifying that he had never sold drugs.

Argued June 10, 1994

Decision released August 16, 1994

Substitute information charging the defendant with the crimes of possession of cocaine with intent to sell by a person who is not drug-dependent, and possession of cocaine with intent to sell within 1000 feet of a school, brought to the Superior Court in the judicial district of New Haven, geographical area number six, and tried to the jury before Clark, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

Donald D. Dakers, special public defender, for the appellant (defendant).

Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).

LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with the intent to sell or dispense by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b),[1] and of possession of cocaine

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with the intent to sell within 1000 feet of a school in violation of §§ 21a-278 and 21a-278a (b).[2] The defendant claims that the trial court improperly (1) instructed the jury as to an element of the crime charged, i.e., the intent to sell narcotics within one thousand feet of a school pursuant to General Statutes (Rev. to 1991) § 21a-278a (b), (2) refused to permit the defendant to elicit witness testimony as to his knowledge of the defendant’s drug dependency in violation of the defendant’s right to present a defense, (3) instructed the jury regarding the defendant’s drug dependency, and (4) permitted the state to impeach the defendant by referring to a prior conviction for conspiracy to sell narcotics. We affirm the judgment of the trial court.

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The jury reasonably could have found the following facts. On May 17, 1992, New Haven police officers Andrew Muro and Peter Carusone were working in the Newhallville section of New Haven. Muro received information from an informant that the defendant was selling drugs at 51 Lilac Street, which was approximately 820 feet from the Lincoln Bassett School. He and Carusone, both of whom knew the defendant, drove by the address and saw the defendant on the front porch. They set up a surveillance of the defendant’s activities. Muro watched the front porch from a nearby alley. Carusone remained at a police substation parking lot, ready to assist Muro upon apprehension of the defendant.

Muro observed a female walk up to the porch of the building and heard her say she “wanted one.” The defendant reached into his right pants pocket, pulled out a clear plastic bag, removed an item from it, and handed it to the female. The female then gave the defendant money. A short time later, Muro saw the defendant carry out a second transaction with another individual similar to the previous transaction.

After informing Carusone of his observations, the officers returned to the premises under surveillance where Muro encountered the defendant in the hallway and arrested him. In his right pocket, the defendant had a clear plastic bag containing packets of white powder that field-tested positive for cocaine.

I
The defendant first claims that the trial court improperly failed to instruct the jury on an essential element of the crime charged, thereby depriving him of his federal and state due process rights.[3] He asserts that the

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trial court failed to instruct the jury that a conviction pursuant to General Statutes (Rev. to 1991) § 21a-278a (b) required the state to prove beyond a reasonable doubt that the defendant specifically intended to sell narcotics in, on or within 1000 feet of the real property of a public or private elementary or secondary school. The defendant contends that a conviction pursuant to § 21a-278a (b) requires a dual intent: (1) the violator must intend to sell the narcotics in his possession; and (2) the violator must intend to sell the narcotics within 1000 feet of a school. This conclusion, the defendant asserts, is supported by the presence of an “irrebuttable presumption” in the statute that any defendant within the 1000 foot zone intended to sell the drugs in his possession. He finds this presumption in the following statutory language: “To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school.” General Statutes (Rev. to 1991) § 21a-278a (b). The defendant concedes that this claim was not properly preserved at trial, but contends that it is nonetheless reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).[4] The defendant’s claim

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is not of constitutional magnitude and, therefore, does not satisfy the second requirement of Golding.

“It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). “The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). . . .” (Citations omitted.) State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984). Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right “`to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.'” Id., 414.[5]

Proof that the defendant specifically intended to sell narcotics within 1000 feet of the real property of a school is not an element of the crime charged. In interpreting § 21a-278a (b), we must adhere to “`well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature.’ . . . To determine the intent of the legislature, we first consider whether the statutory language `yields a plain and unambiguous resolution.’ . . . `If the words are clear and unambiguous, “it is assumed that [they] express the intention of the legislature”; Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); and we need inquire no further . . . .'” (Citations omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).

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The language of General Statute (Rev. to 1991) § 21a-278a (b) is clear that any person who violates General Statutes § 21a-278, and who does so within 1000 feet of a school shall be subject to an additional penalty of three years imprisonment. The provision that the defendant characterizes as an “irrebuttable presumption” serves instead to reinforce the requirement that, for an accused to be subject to the additional penalty, any act of transporting or possessing narcotics must be with the intent to sell the same.

The relationship between General Statutes §§ 21a-278a (b) and 21a-278 is similar to that between General Statutes §§ 53a-59a[6] and 53a-59.[7] Section

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53a-59a provides for an enhanced penalty if a person commits an assault in the first degree pursuant to § 53a-59 (a)(2) or § 53a-59 (a)(3) and the victim is sixty years old or older. In State v. Campbell, 180 Conn. 557, 564, 429 A.2d 960 (1980), our Supreme Court stated that “[b]y providing for a mandatory one year term of imprisonment, which term may not be suspended or reduced, for the crime of assault in the third degree where the victim is sixty or over the legislature clearly expressed its intent to punish one convicted of that crime more severely than one convicted of assault in the third degree where the victim is under sixty.” Similarly, the legislature designed § 21a-278a to punish one convicted of a violation of § 21a-278 more severely when the prohibited activity occurred within a prescribed distance from a school.

To obtain a conviction pursuant to § 21a-278a (b), as with § 53a-59a, the state is required to prove the defendant’s intent to commit the substantive underlying crime — in this case, the intent to sell the narcotics in his possession. The fact that the defendant sold narcotics within 1000 feet of a school subjects him to the enhanced penalty. It was not required to prove that the defendant specifically intended to sell within the 1000 foot zone because, by the clear language of the statute, such an intent is not an element of the crime.[8]

We conclude that the trial court properly instructed the jury as to the intent necessary to support a conviction of the crime charged. Because the defendant’s claim is not one of constitutional dimension, State v. Golding, supra, 213 Conn. 239-40, we decline to review the defendant’s unpreserved claim.

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II
The defendant further claims that the trial court improperly refused to allow the defendant to elicit certain testimony relating to his defense of drug dependency. He claims that the court’s refusal violated his constitutional right to present a defense.

The following facts are necessary for the resolution of this claim. The defendant and his brother-in-law, Willie Garvin, testified as to the defendant’s drug dependence. The defendant sought to elicit further testimony as to his dependency from Lester Moore. During the defendant’s direct examination of Moore, the defendant inquired as to whether the witness had ever used drugs with the defendant, and the state objected.[9] The trial court, after excusing the jury, heard the parties’ arguments, sustained the state’s objection, and noted the defendant’s exception. The defendant, however, failed to present an offer of proof as to Moore’s testimony, and failed to request that the trial court articulate its reason for sustaining the state’s objection.

In order to evaluate any claim of error, this court must be furnished with “an adequate record on which to review the rulings of the trial court.” State v. James L., 26 Conn. App. 81, 86, 598 A.2d 663 (1991).

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It is the appellant’s burden to create an adequate appellate record to support his claim. Id., 84. The defendant has failed to meet this burden. “If he wanted to provide this court with an adequate appellate record, he should have presented an offer of proof. An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” (Internal quotation marks omitted.) Id., 84-85.

“In the absence of an appropriate offer of proof, this court cannot speculate as to what line of questioning defense counsel intended to follow. A claim on appeal cannot be based on an assumption that the trial court acted improperly. . . . Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly.” Id., 85-86.

III
The defendant next claims that the trial court improperly instructed the jury regarding the defendant’s drug dependency. He concedes that this claim is unpreserved but again seeks review pursuant to State v. Golding, supra, 213 Conn. 233.[10]

A Golding review permits an appellant tribunal “to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240.

“[T]he language of § 21a-269, which places the `burden of proof’ on a defendant invoking the exemption specified by § 21a-278 (b), requires the defendant to

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carry the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent.”State v. Hart, 221 Conn. 595, 609, 605 A.2d 1366 (1992). In Hart, the court “conclude[d] that the state did not have the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent . . . .” Id., 611-12.

“[T]he absence of drug dependency is not an element of the offense of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278(b). Rather, it is an exemption from liability under § 21a-269. State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981). Therefore, it was not necessary for the state to negate drug dependency, but, rather, the defendant had the burden of proving that she was drug-dependent.” State v. Hart, supra, 221 Conn. 608.

Because the claimed error does not involve an element of the offense, it is not of constitutional magnitude. The defendant’s claim does not satisfy the second prong of Golding and we decline to review it.

IV
The defendant finally claims that the trial court improperly permitted the state to impeach his testimony by referring to a prior conviction for conspiracy to sell narcotics. The defendant, citing State v. Geyer, 194 Conn. 1, 480 A.2d 489 (1984), argues that the admission of the prior narcotics conviction in a trial in which he is charged with narcotics offenses was unfairly prejudicial.

The defendant testified in his own behalf. His testimony sought to demonstrate that he was drug-dependent, thereby rendering inconsistent the police officers’ account of his intention to sell drugs. When asked on

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the state’s cross-examination whether he had ever sold drugs, the defendant replied that he had not. The state also asked the defendant whether he dealt drugs to maintain his lifestyle. The trial court ruled that a proper foundation for introducing the defendant’s prior conviction had been laid for the purposes of impeaching his credibility, and allowed the state to question the defendant about his 1989 conviction for conspiracy to distribute narcotics.[11]

“Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . It is well established that the trial court has discretion on the admissibility of prior convictions. In such instances, the test is whether the prejudicial effect of the evidence did not outweigh its probative value. State v. Rivera, [supra, 72].” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 29 Conn. App. 584, 588, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993).

“Three factors should be examined to determine whether a prior criminal conviction properly has been

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admitted: (1) the extent to which admission is likely to prejudice the defendant’s cause; (2) the significance of the prior crime as bearing on the defendant’s truthfulness; and (3) the remoteness in time of the prior conviction.”State v. Geyer, supra, 194 Conn. 11.[12]

“`As to the first criterion, a high degree of prejudice can be expected when the prior crime is quite similar to the crime charged because of the jury’s tendency to believe that “if he did it before, he probably did it again.” State v. Carter, [189 Conn. 631, 644, 458 A.2d 379 (1983)].'” State v. Rivera, supra, 221 Conn. 73. The defendant argues that it is for this reason that the evidence is overly prejudicial, citing State v. Geyer, supra, 194 Conn. 1. In Geyer, the court held that evidence of the defendant’s prior convictions was inadmissible because they were similar to the charges pending, and, therefore, the resulting prejudice outweighed the probative value as to the defendant’s credibility. The Geyer court, however, was faced with four rather remote prior convictions that tended to engender “a greater prejudice than a single prior conviction might create.” State v. Geyer, supra, 14. The court weighed the prejudicial possibility of the multiple, similar prior convictions. The court did not hold that if a defendant had a prior conviction or convictions similar to the pending charges, evidence of those convictions were inadmissible as a per se rule. See State v. Rivera, supra, 221 Conn. 74.[13]

In State v. Johnson, supra, 29 Conn. App. 588, the court was presented with evidence of a similar prior conviction, but determined that “[w]here . . . a party
`opens the door’ to a subject that goes directly to the

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credibility of the witness, he does so at his risk.” (Emphasis added.) In this case, the state questioned the defendant and he testified that he had never sold drugs and that he did not deal drugs to maintain his lifestyle. He also testified that he did whatever handy work necessary to get drugs for his alleged dependency, and that because of his dependency, he would fight to retain drugs rather than consider exchanging them for money. “This testimony suggested the nonexistence of the defendant’s prior conviction [for conspiracy to distribute drugs] and squarely implicated the defendant’s credibility.” Id., 589. Therefore, the defendant opened the door to the introduction of a prior conviction because it went directly to his credibility as a witness. We conclude, therefore, that the trial court did not abuse its discretion in permitting the state to elicit testimony from the defendant with regard to his prior drug related conviction.

The judgment is affirmed.

In this opinion the other judges concurred.