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STATE v. RHODES—CONCURRENCE

MULLINS, J., concurring. I agree with and join the

majority opinion. I write separately to emphasize that

the question of whether the state presented sufficient

evidence that the defendant, Amelia Rhodes, constructively possessed the firearm in the vehicle, in violation

of General Statutes (Rev. to 2013) § 53a-217 (a), is a

close one and to comment on the use of flight evidence

in this case.

In particular, the majority and the state highlight the

fact that the defendant drove the vehicle 1.2 miles, while

being chased by the police, in an effort to evade arrest

as evidence of her constructive possession of a firearm,

which supports her conviction of criminal possession

of a firearm.1 For the reasons set forth in the majority

opinion, I ultimately agree that a rational fact finder

could have concluded from this evidence that a reasonable explanation for the defendant’s decision to flee

was her intention to keep the firearm away from the

police, thereby establishing her constructive possession

of that firearm. See footnote 1 of this opinion. Nonetheless, the circumstances surrounding the use of flight

evidence in this case give me pause.

Lamar Spann had just committed a shooting in broad

daylight and in full view of the police. He then reentered

the vehicle while armed, and the police officers, who

had just witnessed Spann commit the shooting, were

sharply focused on the vehicle and its occupants. Under

these circumstances, it is not difficult to understand

why someone in the defendant’s position might have

been reluctant to immediately surrender to the police.

The defendant undoubtedly was well aware that the

officers could have perceived her as armed and dangerous and, therefore, could have used deadly force against

her. Indeed, the police have used deadly force on

unarmed suspects for far less. Beyond that, Spann was

sitting right next to her with a gun, telling her to ‘‘drive,

go.’’ Given these facts, it is entirely plausible that the

defendant resorted to flight out of fear that surrendering

would have placed her personal safety at risk—either

at the hands of the police pursuing an armed suspect

or the armed suspect sitting next to her.

Nevertheless, in reviewing the sufficiency of the evidence, ‘‘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

[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). Applying this standard, this court

cannot substitute its judgment for that of the jury about

what significance to accord the defendant’s evasive con-
duct. ‘‘[T]he fact that ambiguities or explanations [for

the defendant’s flight] may exist which tend to rebut

an inference of guilt . . . simply constitutes a factor

for the jury’s consideration. . . . The probative value

of evidence of flight depends upon all the facts and

circumstances and is a question of fact for the jury.’’

(Citation omitted; internal quotation marks omitted.)

State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).

Indeed, regardless of the alternative theories proposed

by the defendant, ‘‘the critical point is that the jury

could have drawn different inferences from [the] evidence, and our mandate is to affirm when the jury’s

choice was a rational one—which it was here.’’ United

States v. Arnold, 486 F.3d 177, 182 (6th Cir. 2007), cert.

denied, 552 U.S. 1103, 128 S. Ct. 871, 169 L. Ed. 2d

736 (2008).

Thus, the presence of alternative explanations for the

defendant’s flight does not render the evidence insufficient. Ultimately, the motivation for the defendant’s

flight was a question for the jury. Because the jury

rationally could have concluded that disposing of the

firearm was a reasonable explanation for the defendant’s decision to flee from the police, I am compelled

to conclude that there was sufficient evidence of constructive possession of a firearm in the present case.

Accordingly, I respectfully concur.

1 After Lamar Spann, the armed passenger in the vehicle driven by the

defendant, committed the shooting and got back into the vehicle with the

gun, the defendant drove the vehicle onto the curb to avoid the officers’

vehicle, which they had attempted to use to block her escape. She then

continued to flee at a high rate of speed with the officers in pursuit, narrowly

avoiding pedestrians and speeding past stop signs without stopping. It has

been established that, ‘‘[a]lthough mere proximity to a gun is insufficient to

establish constructive possession, evidence of some other factor—including

connection with a gun, proof of motive, a gesture implying control, evasive

conduct, or a statement indicating involvement in an enterprise—coupled

with proximity may suffice.’’ (Emphasis added; internal quotation marks

omitted.) United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003). A

driver of a vehicle who evades the police for the purpose of assisting a

passenger to dispose of a firearm properly may be found to have constructively possessed that firearm. See United States v. Witcher, 753 Fed. Appx.

159, 161 (4th Cir. 2018); State v. Bowens, 118 Conn. App. 112, 123–24, 982

A.2d 1089 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878 (2010); McDaniels

v. United States, 718 A.2d 530, 531–32 (D.C. 1998); Logan v. United States,

489 A.2d 485, 491–92 (D.C. 1985); cf. United States v. Chambers, 918 F.2d

1455, 1458 (9th Cir. 1990) (‘‘[c]onduct by the driver of a vehicle that appears

intended to aid a passenger in disposing of the drug is probative of joint

possession of the drug’’).