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*********************************************** 
STATE OF CONNECTICUT v. ANDRE DAWSON

(AC 40337)

Lavine, Bright and Harper, Js.

Syllabus

Convicted, after a jury trial, of the crimes of criminal possession of a pistol

or revolver and criminal trespass in the third degree, the defendant

appealed to this court. Police officers were patrolling a housing complex

when they entered a courtyard where they saw six individuals, including

the defendant. While two officers conversed with the defendant and

three others who were seated at a picnic table near a corner formed

by the cement walls of a planter, a third officer, L, stepped onto the

wall behind the defendant and immediately saw in plain view a gun

lying in the corner by the bushes, about four to five feet away from the

defendant. Subsequently, the police used swabs to collect DNA from

the gun and the ammunition that L had removed from the gun. The

swabs, as well as DNA samples provided by the defendant and the three

others were delivered to the state forensics laboratory, where R, a

forensic science examiner, conducted DNA analyses of the materials.

The quantity of the touch DNA on the swabs was small, and the DNA

was partially degraded, but R was able to compare the DNA from the

swabs with the samples provided in a scientifically accurate way and

to obtain scientifically viable and accurate results. R’s analysis eliminated the three other individuals as possible contributors to the DNA

profile she developed from the swabs, but the defendant could not be

eliminated as a contributor. Held:

1. The defendant could not prevail on his claim that there was insufficient

evidence to support his conviction of criminal possession of a pistol or

revolver because there was insufficient evidence of his knowledge of

the gun and no evidence to prove his dominion or control over it: even

though the defendant was not in exclusive control of the courtyard where

the gun was found, the circumstances established a nexus between the

defendant and the gun and permitted the jury reasonably to infer that

the defendant knew of the gun’s presence, that he was in a position to

exercise dominion or control over it, and that he intended to do so, as

the gun, which was discovered using a flashlight, was found in plain

view in the open, and was uncovered and appeared to have been placed

near the bushes just before L discovered it, the jury reasonably could

have inferred therefrom that the person who put the gun near the bushes

did not abandon it and leave the courtyard but, instead, was one of the

six individuals in the courtyard when the police officers arrived, L

testified that individuals who have a gun in their possession try to

discard or stash the gun in an area close to them when they become

aware of a police presence so that they will not be detected with it and,

thus, it was reasonable for the jury to infer that the defendant, a convicted

felon, quickly put the gun on the wall near the bushes to avoid being

found with the gun, which was found four to five feet from the defendant,

who was the only person at the picnic table who could not be eliminated

as a contributor to the DNA profile found on the gun and ammunition;

moreover, contrary to the defendant’s claim, the state did not rely on

DNA evidence alone to prove that the defendant knew of the gun’s

presence on the wall near the bushes, and although the defendant

claimed that the DNA evidence was insufficient due to the questionable

reliability of testing a small sample, the size of the DNA sample went

to the weight of the evidence, not its admissibility; furthermore, the

defendant could not prevail on his claim that even if the state produced

sufficient evidence that he knew of the gun’s presence, it failed to adduce

any evidence of his intent to exercise dominion or control of the gun,

as there was evidence of the defendant’s proximity to the gun, which

provided a DNA profile from which, among those present, only the

defendant could not be excluded, there was circumstantial evidence

that the gun recently had been placed on the wall near the bushes, the

defendant, a convicted felon, had a reason not to want to be found with

the gun on his person, and the jury, therefore, reasonably could have
inferred that he stashed the gun but remained in close proximity to it,

so that he could exercise dominion or control over it, and that he

intended to do so.

2. The defendant’s unpreserved claim that he was deprived of his constitutional right to a fair trial as a result of certain instances of prosecutorial

impropriety during closing argument was unavailing:

a. Even though the prosecutor provided the jury with an incomplete

and incorrect statement of the law of constructive possession by leaving

out the necessary element of intent when she incorrectly told the jury

that it could convict the defendant if he knew where the gun was located

and had access to it, that error did not deprive the defendant of his

right to a fair trial; the trial court’s jury instructions, which were nearly

identical to our model jury instructions for criminal possession of a

gun, corrected the prosecutor’s incorrect statement of the law of possession by giving a full and complete instruction on possession, the defendant failed to demonstrate how the model jury instruction that was used

in the present case was a source of constitutional error, and despite the

fact that the prosecutor’s inaccurate reference to the law of constructive

possession had the potential to confuse the jury, any perceived impropriety did not deprive the defendant of a fair trial, as the prosecutor’s

argument was not central to the theory of defense that focused on the

DNA evidence, the state’s case was convincing, and the court’s correct

charge on constructive possession, coupled with the repeated admonitions that the jury must follow the law as given to it by the court,

adequately cured the prosecutor’s error.

b. The defendant could not prevail on his claim that the prosecutor

mischaracterized the DNA evidence and R’s testimony, and improperly

suggested that there was no evidence to support the defense’s theory

that the defendant’s DNA on the gun or ammunition came to be there

in some incidental or accidental fashion; although R, who testified as

to a number of ways in which the defendant’s DNA could have been

transferred to the gun and that she did not know how his DNA was

deposited on it, described possibilities or hypotheticals, her testimony

was not evidence of how, in fact, the defendant’s DNA came to be on

the gun or the ammunition, and the state, which proved that the defendant’s DNA was contained in the DNA profile developed from the swab

of the gun and ammunition, and presented circumstantial evidence permitting the jury to find the defendant guilty of criminal possession of

a pistol or revolver, was not required to introduce evidence to corroborate that the DNA was placed on the gun or ammunition by direct contact.

Argued November 15, 2018—officially released March 19, 2019

Procedural History

Information, in the first case, charging the defendant

with the crime of criminal possession of a firearm, and

information, in the second case, charging the defendant

with the crime of criminal trespass in the third degree,

brought to the Superior Court in the judicial district of

Stamford-Norwalk, geographical area number twenty,

where the cases were consolidated; thereafter, the state

filed a substitute information charging the defendant

with the crimes of criminal possession of a pistol or

revolver and criminal trespass in the third degree; subsequently, the matter was tried to the jury before Hernandez, J.; thereafter, the court denied the defendant’s

motion for a judgment of acquittal as to the count of

criminal possession of a pistol or revolver; verdicts and

judgments of guilty, from which the defendant appealed

in part to this court. Affirmed.

Erica A. Barber, assigned counsel, with whom, on

the brief, was Allison M. Near, for the appellant

(defendant).

Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,

state’s attorney, and Suzanne M. Vieux, supervisory

assistant state’s attorney, for the appellee (state).
Opinion

LAVINE, J. The defendant, Andre Dawson, appeals

from the judgment of conviction, rendered after a jury

trial, of criminal possession of a pistol or revolver in

violation of General Statutes § 53a-217c (a) (1).1 On

appeal, the defendant claims that (1) there was insufficient evidence that he was in possession of a pistol or

revolver (gun), and (2) he was deprived of a fair trial by

the prosecutor’s final argument in which the prosecutor

allegedly (a) misstated the law of constructive possession and (b) mischaracterized the DNA evidence presented at trial.2 We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the

jury reasonably could have found the following facts.

At approximately 9:35 p.m. on August 10, 2014, Police

Officers Kyle Lipeika, Stephen Cowf, and Michael Pugliese (officers) were patrolling Washington Village, a

housing complex in Norwalk. The officers were members of the Street Crimes Task Force within the Special

Services Division (task force) of the Norwalk Police

Department (department).3 They had entered Washington Village from Day Street and walked through an alley

that led to a courtyard between buildings 104 and 304.

Lipeika was shining a flashlight in order for people in

the courtyard to see the officers approaching. Lipeika

and Cowf were wearing uniforms with yellow letters

identifying them as police. When the officers entered

the courtyard, they saw benches, a picnic table, a

cement retaining wall,4 bushes, a playground, and six

individuals.5

The defendant, Kason Sumpter, and Altolane Jackson

were seated at the picnic table near a corner formed

by the cement walls of a planter. The defendant was

seated with his back to the cement wall containing the

bushes. See footnote 4 of this opinion. Brian Elmore

first walked away from the officers, but turned back

and sat at the picnic table.6 To establish rapport with

the individuals sitting at the table, the officers engaged

them in conversation. As was their practice, the officers

scanned the area for firearms and narcotics that the

individuals may have tried to conceal.7 As Cowf and

Pugliese conversed with the individuals at the picnic

table, Lipeika stepped onto the wall behind the defendant and immediately saw in plain view a gun lying in

the corner by the bushes.

According to Lipeika, the gun looked like it had been

placed there just before he discovered it because the

gun was resting on top of leaves, was not covered with

dirt or debris, except a twig, and appeared to be free

of rust and dust. Jackson and Kason Sumpter were

seated closest to the gun, two or three feet away from

it. The defendant was seated four to five feet away from

the gun. None of the officers who testified had seen

the defendant touch the gun.
When Lipeika discovered the gun, he drew his

weapon and ordered the six individuals in the courtyard

to show their hands. Pugliese and Cowf detained the

individuals and moved them away from the gun. Lipeika

radioed for more officers and guarded the gun until the

scene was secured. The additional officers photographed the scene and the gun. Then Lipeika put on a

new pair of rubber gloves and seized the loaded gun

in accordance with department procedures. He

removed the ammunition from the gun, a revolver with

a two inch barrel, and took the ammunition and the

gun to the police station.

Days later, at Lipeika’s request, the defendant, Kason

Sumpter, Jackson, and Elmore went to the police station; each of them voluntarily provided a sample of his

DNA. None of them claimed that the gun was his. The

defendant also provided a written statement in which

he stated that he ‘‘walked through Washington Village

to Water Street, stopped to talk when officers came

through and found a handgun in the bushes in the area

[where] I was talking.’’

Jackson, too, provided a written statement and testified at trial that he was in the Washington Village courtyard when the defendant walked through and stopped

to talk. He also stated that ten minutes later someone

said ‘‘police,’’ and everyone looked up. Jackson did not

see the defendant with a gun, and he did not see the

defendant walk toward the bushes where the gun was

found. Jackson confirmed that the gun did not belong

to him.

On August 28, 2014, Arthur Weisgerber, a lieutenant

in the department, tested the gun for latent fingerprints

but did not find any suitable for identification. Thereafter, he used swabs to collect DNA from the gun and

the ammunition that Lipeika had removed from the

gun. He placed the swabs in an envelope. In addition,

Weisgerber fired the gun and determined that it was

operable. The swabs and the DNA samples provided

by the defendant, Kason Sumpter, Jackson, and Elmore,

were delivered to the state forensics laboratory (laboratory), where Melanie Russell, a forensic science examiner, conducted DNA analyses of the materials. Russell

provided expert testimony at trial.

The laboratory has procedures to protect DNA samples and evidence from contamination. It also prescribes how laboratory analysis of DNA is to be

conducted. The DNA that Weisgerber swabbed from

the gun and ammunition is touch DNA because it was

deposited on the gun or ammunition when someone

touched them directly, through a secondary transfer or

through aerosolization, that is, coughing or sneezing.

Touch DNA comes from skin cells left behind when a

person touches an object. The quantity and quality of

touch DNA varies according to the character of the
object’s surface, i.e., rough or smooth, and the length

of time the DNA has been on the object. DNA degrades

with time due to environmental factors, such as heat

and moisture. Degradation makes it difficult to amplify

the DNA and, in some cases, even to detect DNA.

The quantity of DNA on the swabs was small, and

the DNA was partially degraded. Nonetheless, Russell

was able to extract a DNA solution of 7.16 picograms

per microliter from the swabs. Although she was able

to amplify a sample of about seventy picograms of DNA,

1000 picograms is the ideal amount for DNA analysis.

A low yield sample will provide a DNA profile but usually not a full profile. Russell was able to generate a

partial profile and obtained results at seven out of fifteen loci tested. The profile Russell obtained from the

gun and ammunition consisted of a mixture of DNA,

signifying the presence of more than one person’s DNA.

She was able to compare the DNA from the swabs with

the samples provided by the defendant, Kason Sumpter,

Elmore and Jackson in a scientifically accurate way

and to obtain scientifically viable and accurate results.

Her analysis eliminated Kason Sumpter, Elmore, and

Jackson as possible contributors to the DNA profile

she developed from the swabs. The defendant, however,

could not be eliminated as a contributor. The expected

frequency of individuals who could not be eliminated

as a contributor to the DNA profile is approximately

one in 1.5 million in the African-American population,

one in 3.5 million in the Caucasian population, and one

in 930,000 in the Hispanic population.8 The defendant

is African-American.

A warrant was issued for the defendant’s arrest on

September 25, 2014. He was charged in separate informations with criminal possession of a firearm in violation of General Statutes § 53a-2179 and criminal trespass

in the third degree in violation of General Statutes § 53a109 (a) (1). The informations were consolidated for

trial. Subsequently, the state filed an amended long

form information charging the defendant with criminal

possession of a pistol or revolver in violation of § 53a217c and criminal trespass in the third degree in violation of § 53a-109 (a) (1). At the conclusion of the state’s

case-in-chief, the defendant moved for a judgment of

acquittal on the charge of criminal possession of a pistol

or revolver. The court denied the motion for a judgment

of acquittal. The jury found the defendant guilty of both

charges. The court sentenced the defendant to consecutive terms of ten years imprisonment, two years being

a mandatory minimum, on the conviction of criminal

possession of a pistol or revolver, and three months

imprisonment on the conviction of criminal trespass in

the third degree, for a total effective sentence of ten

years and three months to serve. Thereafter, the defendant appealed.

I
The defendant claims that there was insufficient evidence to convict him of criminal possession of a pistol

or revolver because there was insufficient evidence of

his knowledge of the gun and no evidence to prove his

dominion or control over it.10 We disagree.

The defendant was charged, in part, with violation

of § 53a-217c, which provides in relevant part: ‘‘(a) A

person is guilty of criminal possession of a pistol or

revolver when such person possesses a pistol or

revolver . . . and (1) has been convicted of a felony

. . . .’’11 General Statutes § 53a-3 (2) defines ‘‘possess’’

as ‘‘to have physical possession or otherwise to exercise

dominion or control over tangible property . . . .’’

Because the gun was not found on the defendant’s person, the state prosecuted the subject charge under the

theory of constructive possession.

‘‘There are two types of possession, actual possession

and constructive possession. . . . Actual possession

requires the defendant to have had direct physical contact with the [gun].’’ (Citation omitted; internal quotation marks omitted.) State v. Johnson, 137 Conn. App.

733, 740, 49 A.3d 1046 (2012), rev’d in part on other

grounds, 316 Conn. 34, 111 A.3d 447, and aff’d, 316

Conn. 45, 111 A.3d 436 (2015). ‘‘Where . . . the [gun

is] not found on the defendant’s person, the state must

proceed on the theory of constructive possession, that

is, possession without direct physical contact. . . .

Where the defendant is not in exclusive possession of

the premises where the [gun is] found, it may not be

inferred that [the defendant] knew of the presence of

the [gun] and had control of [it], unless there are other

incriminating statements or circumstances tending to

buttress such an inference.’’ (Internal quotation marks

omitted.) State v. Winfrey, 302 Conn. 195, 210–11, 24

A.3d 1218 (2011). ‘‘The essence of exercising control is

not the manifestation of an act of control but instead

it is the act of being in a position of control coupled

with the requisite mental intent. In our criminal statutes

involving possession, this control must be exercised

intentionally and with knowledge of the character of

the controlled object.’’ State v. Hill, 201 Conn. 505, 516,

523 A.2d 1252 (1986).

‘‘[T]o mitigate the possibility that innocent persons

might be prosecuted for . . . possessory offenses . . .

it is essential that the state’s evidence include more

than just a temporal and spatial nexus between the

defendant and the contraband.’’ (Internal quotation

marks omitted.) State v. Bowens, 118 Conn. App. 112,

121, 982 A.2d 1089 (2009), cert. denied, 295 Conn. 902,

988 A.2d 878 (2010). ‘‘[M]ere proximity to a gun is not

alone sufficient 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.’’
(Internal quotation marks omitted.) Id., 125.

The standard of review for sufficiency of the evidence

claims is well known. ‘‘A defendant who asserts an

insufficiency of the evidence claim bears an arduous

burden.’’ State v. Hopkins, 62 Conn. App. 665, 669–70,

772 A.2d 657 (2001). ‘‘In reviewing a sufficiency [of the

evidence] claim, we apply a two part test. First, we

construe the evidence in the light most favorable to

sustaining the verdict. Second, we determine whether

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.’’ (Internal

quotation marks omitted.) State v. Abraham, 64 Conn.

App. 384, 400, 780 A.2d 223, cert. denied, 258 Conn. 917,

782 A.2d 1246 (2001).

‘‘It 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. Bradley, 60 Conn.

App. 534, 540, 760 A.2d 520, cert. denied, 255 Conn. 921,

763 A.2d 1042 (2000). ‘‘The trier [of fact] may draw

whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and

logical. . . . This does not require that each subordinate conclusion established by or inferred from the

evidence, or even from other inferences, be proved

beyond a reasonable doubt . . . .’’ (Internal quotation

marks omitted.) State v. Fagan, 280 Conn. 69, 80, 905

A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct.

1491, 167 L. Ed. 2d 236 (2007). ‘‘[T]his court has held

that a jury’s factual inferences that support a guilty

verdict need only be reasonable.’’ (Internal quotation

marks omitted.) State v. Hector M., 148 Conn. App. 378,

384, 85 A.3d 1188, cert. denied, 311 Conn. 936, 88 A.3d

550 (2014).

As our Supreme Court has often noted, ‘‘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 trier, would have resulted in an

acquittal. . . . Furthermore, [i]n [our] process of

review, it does not diminish the probative force of the

evidence that it consists, in whole or in part, of evidence

that is circumstantial rather than direct. . . . It is not

one fact, but the cumulative impact of a multitude of

facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, 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.

Robert S., 179 Conn. App. 831, 835–36, 181 A.3d 568,

cert. denied, 328 Conn. 933, 183 A.3d 1174 (2018), citing

State v. Fagan, supra, 280 Conn. 79–81.

In the present case, there is no dispute that the defendant did not have the gun on his person at the time

Lipeika discovered it in the courtyard of Washington

Village on August 10, 2014, and that he was not in

exclusive possession of the courtyard where Lipeika

found the gun. The state, therefore, was required to

establish that the defendant was in constructive possession of the gun. To prove constructive possession under

§ 53a-217c (a) (1), the state had to present evidence

beyond a reasonable doubt that the defendant had

knowledge of the gun and intended to exercise dominion or control over it. See State v. Hernandez, 254 Conn.

659, 669, 759 A.2d 79 (2000); State v. Davis, 84 Conn.

App. 505, 510, 854 A.2d 67, cert. denied, 271 Conn. 922,

859 A.2d 581 (2004). The defendant argues on appeal

that although the gun was found near him and his DNA

was found on it, his proximity to it and the presence

of his DNA on the gun and ammunition are not sufficient

evidence to prove that he had knowledge of the gun,

knew of its presence or exercised dominion or control

over it. In particular, the defendant argues that the

presence of his DNA on the gun merely means that at

some unknown time and under unknown circumstances

his DNA was transferred to the gun, but that is insufficient to support a finding that he knew of the gun’s

presence.

The state acknowledges that because the defendant

was not in exclusive control of the courtyard, the jury

could not infer properly from that circumstance that

the defendant knew of the gun’s presence without

incriminating statements or other circumstances to buttress the inference. See State v. Butler, 296 Conn. 62,

78, 993 A.2d 970 (2010). The state, however, contends

that there were four circumstances that established a

nexus between the defendant and the gun and permitted

the jury reasonably to infer that the defendant knew of

the gun’s presence, that he was in a position to exercise

dominion or control over it, and that he intended to do

so. See State v. Hill, supra, 201 Conn. 516. We agree

with the state.

First, the state notes that the gun was found in plain

view and appeared to have been placed near the bushes

recently. The jury, therefore, reasonably could have

inferred that the person who put the gun near the bushes

did not abandon it and leave the courtyard but, instead,

was one of the six individuals in the courtyard when

the officers arrived. In response, the defendant argues

that the gun was not in plain view because Lipeika

needed a flashlight to see it.12 The defendant’s argument
lacks merit. The police were patrolling the courtyard

pursuant to the department’s agreement with the housing authority. The officers needed artificial light both

to be seen as they approached the courtyard and to see

what was in the courtyard. The gun was lying on a wall

in a public space, and it was dark. The gun was in the

open and uncovered, and, therefore, it was in plain

view. It clearly would have been visible in daylight.

Under the circumstances, there is no difference

between Lipeika’s using a flashlight and turning on a

light in a dark room. Furthermore, the state’s argument

is not that the location of the gun is evidence that the

defendant saw it there. Instead, the state’s argument is

that the location of the uncovered gun near the bushes

close to the defendant supports the inference that the

defendant had placed the gun there. Thus, the lighting

conditions at the time were immaterial.

Second, the state points out that Lipeika was shining

his flashlight when the officers walked through the alley

into the courtyard. In his statement to the police, Jackson stated that someone saw the light and called out

‘‘police,’’ causing individuals in the courtyard to look

up. According to Lipeika, when individuals who have

a gun in their possession become aware of a police

presence, they try to ‘‘discard . . . or stash’’ the gun

so that they will not be detected with it. The state,

therefore, argues that it was reasonable for the jury to

infer that the defendant quickly put the gun on the wall

near the bushes to avoid being found with it. The jury

reasonably could have inferred from the evidence that

the defendant, whom it knew to be a convicted felon,

was motivated to ‘‘stash’’ the gun because he is not

entitled to possess a gun.

Third, the state cites Lipeika’s testimony that, when

individuals with a gun seek to ‘‘discard . . . or stash’’

it, they put the gun in a place close enough to be ‘‘accessible’’ to them. In this instance, the gun was four to five

feet from the defendant, who was sitting at a picnic

table next to the wall and bushes.

Fourth, the defendant was the only person at the

picnic table who could not be eliminated as a contributor to the DNA profile found on the gun and ammunition. The chance that a random individual, someone

other than the defendant, could have contributed to the

DNA was one in 1.5 million in the African-American

population. On the basis of these four circumstances,

the state argues that the jury reasonably could have

inferred that the defendant knew of the gun’s presence

and could have exercised dominion or control over it,

and intended to do so. Although none of the factors

alone is direct evidence of the defendant’s knowledge

of the gun’s presence or his intent to possess it, the

cumulative force of the circumstantial evidence was

sufficient for the jury reasonably to infer that the defendant knew of the gun and was in constructive posses-
sion of it. ‘‘Where a group of facts [is] relied upon for

proof of an element of the crime it is [the] cumulative

impact [of those facts] that is to be weighed in deciding

whether the standard of proof beyond a reasonable

doubt has been met and each individual fact need not

be proved in accordance with that standard.’’ (Internal

quotation marks omitted.) State v. McDonough, 205

Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485

U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Evidence of the defendant’s DNA on the gun and ammunition, plus his proximity to the gun, leads to a reasonable

inference that the defendant once had the gun on his

person and intended to do so again when the police

left the courtyard.

The defendant argues, citing State v. Payne, 186

Conn. 179, 440 A.2d 280 (1982), that the state cannot

rely on the DNA evidence alone to prove that he knew

of the gun’s presence on the wall near the bushes. He

compares the presence of DNA on the gun to fingerprints found on a vehicle in Payne. ‘‘[A] conviction may

not stand on fingerprint evidence alone unless the prints

were found under such circumstances that they could

have only been impressed at the time the crime was

perpetrated.’’ Id., 182. In Payne, the defendant’s fingerprints were found on the driver’s door of a motor vehicle

in which the victim had been restrained. Id., 181. The

victim was unable to identify the defendant in a photographic array or at trial. Id. Our Supreme Court reversed

the defendant’s conviction because ‘‘[t]he evidence in

the present case does not reasonably exclude the

hypothesis that the defendant’s fingerprints were

placed on the car at a time other than during the perpetration of the crime.’’ Id., 184; see also State v. Mayell,

163 Conn. 419, 426, 311 A.2d 60 (1972) (where defendant

was regularly employed to drive vehicle and rightfully

in it six hours before crime defendant’s fingerprints

on rearview mirror of abandoned vehicle were of no

moment unless circumstances were such that fingerprints only could have been impressed at time of crime).

The facts of the present case, however, are distinguishable from both Payne and Mayell. Here, the defendant not only was at the scene at the time the gun was

found, but he also was in close proximity to it. Others

were in close proximity to the gun too, but the defendant was the only one of them who was a contributor

to the DNA obtained from the surface of the gun or the

ammunition, or both. Moreover, the defendant had at

least two reasons to ‘‘stash’’ the gun. The defendant

stipulated to the fact that he was a convicted felon. We

discern that the jury reasonably could have inferred

that because the defendant was trespassing13 and, more

importantly, because he was a convicted felon, he had

‘‘stashed’’ the gun to avoid being found with the gun

on his person.

The defendant also argues that the DNA evidence
is insufficient due to ‘‘the questionable reliability of a

sample containing only 70 picograms of DNA, when the

ideal amount is 1000 picograms of DNA.’’ The defendant

did not object to the admission of the DNA evidence

at trial, but cites Russell’s testimony regarding problems

that are inherent in testing small samples of DNA.

Despite the small sampling, however, Russell testified

that she was able to analyze the DNA from the gun,

and that she obtained scientifically viable and accurate

results that revealed a high likelihood that the defendant

was a contributor to the sample. Her findings were

reviewed by a forensic science examiner in the laboratory and no problems were identified. Defense counsel

vigorously cross-examined Russell. Although the burden was on the state to prove its case, the defendant

presented no evidence to contradict Russell’s testimony

regarding the accuracy of her analysis.14

The defendant’s claim is not that Russell’s testimony

regarding the results of her DNA analysis was improperly admitted. The evidence, therefore, properly was

before the jury to be considered along with the other

evidence. The size of the sample went to the weight of

the evidence, not its admissibility. ‘‘It is axiomatic that

it is the jury’s role as the sole trier of the facts to weigh

the conflicting evidence and to determine the credibility

of witnesses. . . . It is the right and duty of the jury

to determine whether to accept or to reject the testimony of a witness . . . and what weight, if any, to

lend to the testimony of a witness and the evidence

presented at trial.’’ (Internal quotation marks omitted.)

State v. Osbourne, 138 Conn. App. 518, 533–34, 53 A.3d

284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012).

The essence of the defendant’s argument is that this

court should override the inferences drawn by the jury.

This we may not, and will not, do. See State v. Davis,

160 Conn. App. 251, 265–66, 124 A.3d 966 (court on

appeal does not sit as seventh juror), cert. denied, 320

Conn. 901, 127 A.3d 185 (2015).

The defendant also claims that even if the state produced sufficient evidence that he knew of the gun’s

presence, it failed to adduce any evidence of his intent

to exercise dominion or control of the gun. ‘‘The phrase

‘to exercise dominion or control’ as commonly used

contemplates a continuing relationship between the

controlling entity and the object being controlled. Webster’s Third New International Dictionary defines the

noun ‘control’ as the ‘power or authority to guide or

manage.’ The essence of exercising control is not the

manifestation of an act of control but instead it is the

act of being in a position of control coupled with the

requisite mental intent. In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the

controlled object.’’ (Emphasis added.) State v. Hill,

supra, 201 Conn. 516.
The defendant relies on the federal case of United

States v. Beverly, 750 F.2d 34 (6th Cir. 1984), to support

his claim of insufficient evidence of control. Although

Beverly also concerned constructive possession of a

firearm by a convicted felon, the facts of that case are

distinguishable. In the present case, a police officer

found the gun in plain sight in a public space in close

proximity to the defendant. In Beverly, a police officer

executed a search warrant at the apartment of a third

party. Id., 35. When the officer entered the apartment,

he found two men in the kitchen, one of whom was

Herbert Collins Beverly, the defendant in that case. Id.

The officer instructed the men to place their hands on

the wall while he patted them down. Id. As he was

conducting the pat down, the officer noticed a waste

basket between the two men, and that it contained two

guns. Id. The guns later were examined in the state

police crime laboratory, where one identifiable, latent

fingerprint was discovered on one of the guns. Id. The

fingerprint belonged to Beverly. Id. He was charged

with violation of 18 U.S.C. § 922 (h) (1) (1982), which

prohibits ‘‘the receipt by a convicted felon of a weapon

that has been shipped in interstate commerce.’’ Id. At

the close of the government’s case, Beverly moved for

a judgment of acquittal, arguing that the evidence demonstrated that he must have touched the gun at some

point, but that it did not establish that he had received

the gun within the meaning of the statute. Id. The trial

court denied the motion. Id.

On appeal, the United States Court of Appeals for

the Sixth Circuit reversed the judgment of conviction.

Id. At trial, the government had relied on the testimony

of the officer who found the gun and the fingerprint

expert. Id., 36. It argued that before the search warrant

was executed, Beverly had ‘‘received the gun within

the meaning of [§] 922 because he exercise[d] control

over’’ it. (Emphasis omitted; internal quotation marks

omitted.) Id. The government argued that it, therefore,

was entitled to prove Beverly received the gun by inference of his constructive possession. Id. The Court of

Appeals disagreed, concluding that the evidence did

not prove that Beverly was in constructive possession

of the gun because the government had not proven that

(1) Beverly had indirect control of the kitchen, waste

basket, or gun; (2) Beverly was in direct control of any

of them; and (3) he was in constructive possession of

the gun. Id., 38. The evidence established only that

Beverly was one of two men standing on either side of

a waste basket in the kitchen, that the waste basket

contained two guns, and that, at some time, he had

touched one of the guns. Id. The Court of Appeals,

therefore, reversed Beverly’s conviction. Id. ‘‘Presence

alone near a gun . . . does not show the requisite

knowledge, power, or intention to exercise control over

the gun to prove constructive possession.’’ (Emphasis

omitted; internal quotation marks omitted.) United
States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007), cert.

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

736 (2008).

More than twenty years later, the United States Court

of Appeals for the Sixth Circuit, sitting en banc, limited

the scope of Beverly. See id., 183–84. ‘‘As an en banc

court, we have subsequently distinguished Beverly as a

proximity-only case without any evidence connect[ing]

the gun to the defendant. [Id., 184]. We filled the evidentiary gap in Arnold with statements by the victim connecting the gun to the defendant. [Id., 184–85].’’

(Internal quotation marks omitted.) United States v.

Vichitvongsa, 819 F.3d 260, 276 (6th Cir.), cert. denied,

U.S. , 137 S. Ct. 79, 196 L. Ed. 2d 70 (2016).15

‘‘While the Government is not required to prove exclusive possession, constructive possession may not be

shown merely by introducing evidence of proximity.’’

United States v. Lynch, 459 Fed. Appx. 147, 151 (3d

Cir. 2012). In Lynch, the defendant was a convicted

felon on parole who was not permitted to possess a

firearm. Id., 148. The defendant’s parole officer became

aware that the defendant had violated the terms of his

parole. Id., 148–49. During a permissible warrantless

search of the defendant’s home; id., 149–50; police

found a pistol in the top drawer of a dresser in his

bedroom, concealed beneath the defendant’s clothing.

Id., 149. ‘‘A DNA test conducted on a swab from the

handle of the firearm revealed a mixture of profiles

from which [the defendant’s] profile could not be

excluded.’’ Id. At trial, the defendant stipulated that he

had been convicted of a felony. Id., 150. A jury found

the defendant guilty of felony possession of a firearm.

Id., 148. On appeal, the defendant argued that there was

insufficient evidence that he knowingly possessed the

firearm. Id., 151. In support of his position, he cited

Beverly. The United States Court of Appeals for the

Third Circuit distinguished Beverly in that the gun was

found in a dresser drawer in the defendant’s home, not

the kitchen of a third person. Id. The court stated that

it was not bound to follow Beverly, and that although

Beverly might mitigate the importance of the DNA evidence, there was other evidence tending to show the

defendant’s constructive possession of the gun. Id.

In the present case, there is evidence of the defendant’s proximity to the gun, which provided a DNA

profile from which, among those present, only the

defendant could not be excluded. There is circumstantial evidence that the gun recently had been placed on

the wall near the bushes. The defendant, a convicted

felon, had a reason not to want to be found with the

gun on his person. The jury, therefore, reasonably could

have inferred that he ‘‘stashed’’ the gun but remained

in close proximity to it, so that he could exercise control

over it, and that he intended to do so.

We acknowledge that the facts of this case presented
some subtle issues for the jury and that the case against

the defendant is grounded in circumstantial evidence.

The jury, however, was fully entitled to rely on the

circumstantial evidence in reaching its verdict. ‘‘[T]he

jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the

charged offense, [but] each of the basic and inferred

facts underlying those conclusions need not be proved

beyond a reasonable doubt. . . . If it is reasonable and

logical for the jury to conclude that a basic fact or an

inferred fact is true, the jury is permitted to consider

the fact proven and may consider it in combination

with other proven facts in determining whether the

cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged

beyond a reasonable doubt. . . . Moreover, [w]here a

group of facts [is] relied upon for proof of an element

of the crime it is [its] cumulative impact that is to

be weighed in deciding whether the standard of proof

beyond a reasonable doubt has been met and each

individual fact need not be proved in accordance with

that standard. . . .

‘‘Furthermore, [i]t is immaterial to the probative force

of the evidence that it consists, in whole or in part, of

circumstantial rather than direct evidence.’’ (Citations

omitted; emphasis in original; internal quotation marks

omitted.) State v. Otto, 305 Conn. 51, 65–66, 43 A.3d

629 (2012). In fact, ‘‘circumstantial evidence may be

more certain, satisfying and persuasive than direct evidence.’’ (Internal quotation marks omitted.) State v.

Sienkiewicz, 162 Conn. App. 407, 410, 131 A.3d 1222,

cert. denied, 320 Conn. 924, 134 A.3d 621 (2016). ‘‘If

evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused

is guilty, that is all that is required for a conviction.’’

(Internal quotation marks omitted.) State v. Jackson,

257 Conn. 198, 206, 777 A.2d 591 (2001). ‘‘[P]roof beyond

a reasonable doubt does not mean proof beyond all

possible doubt . . . .’’ (Internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 647, 11 A.3d 663

(2011).

Although the defendant claims that there was insufficient evidence to convict him of constructive possession of the gun, this is not a case in which the state

failed to present evidence regarding an element of the

crime. This is a case in which the defendant is looking

for a different interpretation of the evidence. This court

has stated many times that it does ‘‘not sit as the seventh

juror when [it] review[s] the sufficiency of the evidence

. . . rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the

evidence, including reasonable inferences therefrom,

supports the jury’s verdict of guilt beyond a reasonable

doubt.’’ (Internal quotation marks omitted.) State v.

Glasper, 81 Conn. App. 367, 372, 840 A.2d 48, cert.

denied, 268 Conn. 913, 845 A.2d 415 (2004). In the pre-
sent case, the state presented evidence of the defendant’s proximity to the gun, which provided a DNA

profile from which the defendant could not be excluded.

There is circumstantial evidence that the gun recently

had been placed on the wall near the bushes. The defendant, a convicted felon, had a reason not to want to be

found with the gun on his person, and, therefore, the

jury reasonably could have inferred that he had

‘‘stashed’’ it and remained in close proximity to it, so

that he could exercise dominion or control over it, if

he so intended.

On the basis of our review of the record, we conclude

that there was sufficient circumstantial evidence by

which the jury reasonably could have inferred that the

defendant was in possession of the gun when he entered

the courtyard, that he put it near the bushes when the

police arrived so that it would not be found on his

person, and that he intended to retrieve the gun when

the police left. Accordingly, the evidence was sufficient

to support the defendant’s conviction of criminal possession of a pistol or revolver, and the court, therefore,

properly denied the defendant’s motion for a judgment

of acquittal.

II

The defendant also claims that he was deprived of a

fair trial because, during her final argument, the prosecutor (1) misstated the law of constructive possession

and (2) mischaracterized the DNA evidence. We disagree that the defendant was denied his constitutional

right to a fair trial.

The defendant did not object to the prosecutor’s closing argument and did not request a curative instruction

from the court. We, therefore, review the law applicable

to unpreserved claims of prosecutorial impropriety.

When a defendant has not preserved his claims of

prosecutorial impropriety, ‘‘it is unnecessary for the

defendant to seek to prevail under the specific requirements of . . . [State v. Golding, 213 Conn. 233, 239–40,

567 A.2d 823 (1989)] and, similarly, it is unnecessary

for a reviewing court to apply the four-pronged Golding

test. . . . Our Supreme Court has articulated that following a determination that prosecutorial [impropriety]

has occurred, regardless of whether it was objected to,

an appellate court must apply the [State v. Williams,

204 Conn. 523, 540, 529 A.2d 653 (1987)] factors to the

entire trial. . . . [W]hen a defendant raises on appeal a

claim that improper remarks by the prosecutor deprived

the defendant of his constitutional right to a fair trial,

the burden is on the defendant to show, not only that

the remarks were improper, but also that, considered

in light of the whole trial, the improprieties were so

egregious that they amounted to a denial of due process. . . . In analyzing whether the prosecutor’s comments deprived the defendant of a fair trial, we generally
determine, first, whether the [prosecutor] committed

any impropriety and, second, whether the impropriety

or improprieties deprived the defendant of a fair

trial. . . .

‘‘When reviewing the propriety of a prosecutor’s

statements, we do not scrutinize each individual comment in a vacuum but, rather, review the comments

complained of in the context of the entire trial. . . .

[Impropriety] is [impropriety], regardless of its ultimate

effect on the fairness of the trial; whether that [impropriety] [was harmful and thus] caused or contributed

to a due process violation is a separate and distinct

question . . . .

‘‘[P]rosecutorial [impropriety] of a constitutional

magnitude can occur in the course of closing arguments. . . . In determining whether such [impropriety]

has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate

argument and fair comment cannot be determined precisely by rule and line, and something must be allowed

for the zeal of counsel in the heat of argument. . . .

[A]s the state’s advocate, a prosecutor may argue the

state’s case forcefully, [provided the argument is] fair

and based upon the facts in evidence and the reasonable

inferences to be drawn therefrom. . . . Nevertheless,

the prosecutor has a heightened duty to avoid argument

that strays from the evidence or diverts the jury’s attention from the facts of the case. . . . While the privilege

of counsel in addressing the jury should not be too

closely narrowed or unduly hampered, it must never

be used as a license to state, or to comment upon, or

to suggest an inference from, facts not in evidence, or

to present matters which the jury ha[s] no right to

consider.’’ (Citations omitted; emphasis added; internal

quotation marks omitted.) State v. Ruiz-Pacheco, 185

Conn. App. 1, 38–40, 196 A.3d 805, cert. granted on

other grounds, 330 Conn. 938, 195 A.3d 385 (2018).

An appellate court’s ‘‘determination of whether any

improper conduct by the state’s attorney violated the

defendant’s fair trial rights is predicated on the factors

set forth in State v. Williams, [supra, 204 Conn. 540],

with due consideration of whether that [impropriety]

was objected to at trial. . . . These factors include:

the extent to which the [impropriety] was invited by

defense conduct or argument . . . the severity of the

[impropriety] . . . the frequency of the [impropriety]

. . . the centrality of the [impropriety] to the critical

issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s

case.’’ (Citation omitted; internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 561, 34 A.3d 370

(2012).

‘‘[W]hen a defendant raises on appeal a claim that

improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden

is on the defendant to show . . . that the remarks were

improper . . . .’’ (Emphasis added.) Id., 562–63. ‘‘This

allocation of the burden of proof is appropriate because,

when a defendant raises a general due process claim,

there can be no constitutional violation in the absence

of harm to the defendant caused by denial of his right

to a fair trial.’’ Id., 563–64. The ultimate question, therefore, is ‘‘whether the defendant has proven that the

improprieties, cumulatively, so infected the trial with

unfairness as to make the conviction[s] a denial of due

process.’’ (Internal quotation marks omitted.) Id., 567.

‘‘[T]he defendant’s failure to object at trial to each

of the occurrences that he now raises as instances of

prosecutorial impropriety, though relevant to our

inquiry, is not fatal to review of his claims. . . . This

does not mean, however, that the absence of an objection at trial does not play a significant role in the determination of whether the challenged statements were,

in fact, improper. . . . To the contrary, we continue

to adhere to the well established maxim that defense

counsel’s failure to object to the prosecutor’s argument

when it was made suggests that defense counsel did

not believe that it was [improper] in light of the record

of the case at the time.’’ (Internal quotation marks omitted.) State v. Medrano, 308 Conn. 604, 612, 65 A.3d

503 (2013).

‘‘To prove prosecutorial [impropriety], the defendant

must demonstrate substantial prejudice. . . . In order

to demonstrate this, the defendant must establish that

the trial as a whole was fundamentally unfair and that

the [impropriety] so infected the trial with unfairness

as to make the conviction a denial of due process. . . .

In weighing the significance of an instance of prosecutorial impropriety, a reviewing court must consider the

entire context of the trial, and [t]he question of whether

the defendant has been prejudiced by prosecutorial

[impropriety] . . . depends on whether there is a reasonable likelihood that the jury’s verdict would have

been different absent the sum total of the improprieties.’’ (Citation omitted; internal quotation marks omitted.) State v. Long, 293 Conn. 31, 37, 975 A.2d 660 (2009).

We now turn to the defendant’s prosecutorial impropriety claims.

A

The defendant claims that the prosecutor misstated

the law of constructive possession by failing to state

that the defendant had to intend to exercise dominion or

control over the gun. As a consequence, the defendant

argues that the prosecutor invited the jury to disregard

the dominion or control element of possession.

Although the prosecutor’s argument did contain an

incomplete and, therefore, incorrect statement of the

law of constructive possession, we conclude that the
error did not deprive the defendant of his constitutional

right to a fair trial.

To provide a context for the defendant’s claims, we

have reviewed the entire record, which discloses the

following procedural history that is relevant to the

defendant’s claim that the prosecutor misstated the law.

Before the presentation of evidence, the court

instructed the jury that ‘‘you should understand that

the arguments of the attorneys, including the closing

arguments and any arguments made during the trial to

the court in connection with questions of law, are not

evidence. . . . Closing arguments are intended to

assist you, the jury, in understanding the evidence and

the contentions of the parties in this case. . . . [A]t

the conclusion of the final arguments of the parties, I

will instruct you as to the principles of law which you

are to apply in your deliberations when you retire to

consider your verdicts.’’

16 (Emphasis added.) Again, in

its final charge to the jury, after thanking the jury for

its service, the court gave the customary charge stating

that ‘‘it is exclusively the function of the court to state

the rules of law that govern the case. It is your obligation

to accept the law as I state it. You must follow all of

my instructions and not single out some and ignore

others. They are all equally important.’’

The record also discloses that the court held two onthe-record charge conferences. The court gave counsel

a copy of a draft of its charge and time to review it.

The court and counsel subsequently went through the

draft page by page, and counsel made several suggestions, none of which concerned constructive possession. As a result of the charge conference, the court

revised portions of its draft charge, presented counsel

with its revised charge and provided an opportunity for

counsel to review the revisions. At a second on-therecord charge conference, the court and counsel went

through the revised charge page by page. Defense counsel orally agreed with the court’s revised charge.

‘‘A review of the statements made by the prosecutor,

in the context of the entire closing argument, is necessary to address the defendant’s challenges.’’ State v.

Otto, supra, 305 Conn. 77. The record contains the arguments of the prosecutor and defense counsel, and the

court’s instructions, which we have reviewed and hereafter summarize.

In the first portion of her argument, the prosecutor

first thanked the jury for its service and then stated

that the court will ‘‘remind you as to the elements of

the crimes that make up the charges.’’ (Emphasis

added.) The prosecutor then addressed the elements

of the crime of criminal trespass in the third degree

and the evidence related to that charge.

Thereafter, she stated, in part: ‘‘For you to find the

defendant guilty of criminal possession of a pistol or
revolver, the state must prove the following elements

beyond a reasonable doubt. The first element is that

the defendant possessed a pistol or revolver. The judge

will define possession as having control over an object.

That is, knowing where it is and being able to access

it. Again, possession in this case means knowing where

it is and being able to access it.’’17 (Emphasis added.)

The prosecutor continued: ‘‘You’ve heard that the gun

recovered from the scene was found only four to five

feet away from [the defendant]. It was lying on top of

the leaves, in good condition, as if it had been placed

there very recently. No dirt or leaves or other debris

were covering it. It was easily in [the defendant’s] reach.

He was about four to five feet away from it when the

police arrived. The state submits that it would have

been a matter of seconds for him to stand up, or lean

over, and drop the gun, or even pick it up again from

where it was lying.’’

Later in the first portion of her argument, the prosecutor stated: ‘‘Here’s the thing, you’ll hear the judge

instruct you on the law of possession. And through

that you will learn that if [the defendant] walked up to

the gun and saw it there and was aware that it was

there, he’s still in violation of the law. Because as long

as he’s aware it’s there and aware it’s a gun, and could

grab it off the ground, that’s possession. If he walked

up to it and said ‘oh, no, a gun,’ and ran away, i.e., if he

immediately removes himself from the situation, that’s

different. Or if he saw it and immediately dialed 911 or

alerted the authorities, that’s different, too. But if he

sees the gun and remains at the picnic table anyway,

four to five feet away from it, not locked up or anything

like that, in an area where he could easily get to it,

that’s constructive possession. It’s that simple.’’

(Emphasis added.)

Immediately thereafter, the prosecutor argued: ‘‘So

for you to find him not guilty, you would have to believe

that despite his close proximity to the gun, despite the

fact that he’s trespassing in the exact location the gun

is found, and despite the fact that his DNA, and not the

DNA of any other person around the picnic table is on

it, he didn’t even know it was there. Ask yourselves,

based on common sense, is it reasonable and logical

to believe that?’’ The prosecutor also argued that the

jury reasonably could infer that the gun belonged to

the defendant.

In his closing argument, which immediately followed,

defense counsel addressed the evidence, particularly

what he considered to be the weakness in the state’s

case. He contended that the DNA evidence was not

enough to incriminate the defendant because the profile

was small, the DNA sample was touch DNA, and the

sample had been degraded. The theory of defense was

that the DNA evidence was problematic and insufficient

to prove that the defendant was guilty of felony posses-
sion of the gun. Defense counsel argued, in part, that

the state had ‘‘to prove, beyond a reasonable doubt, the

[the defendant] knew, or had knowledge of, that he was

in possession of [the gun], that he knew where it was

and that he had access to it.’’ See footnote 17 of this

opinion. He continued that the jury could not ‘‘infer or

assume that [the defendant] knew that a weapon was

there, unless there are other incriminating statements

or circumstances tending to support such an inference.

We argue that no such statements or circumstances

exist. . . . You need context, you need corroboration,

and you don’t have it. You don’t have eye witnesses.

You don’t have fingerprints. You don’t have enough.’’

In the rebuttal portion of her argument, the prosecutor first stated: ‘‘I just want to touch on a few things

that the defense touched on. I want to start with something. The judge will instruct you . . . and I just want

to make sure it’s clear, that you will come to a separate

verdict on each charge. So, the state has to prove every

element of each individual charge.’’ (Emphasis added.)

She extensively addressed the DNA evidence, which

the defendant contended was problematic and insufficient to prove that the gun was his. She argued that

the presence of the defendant’s DNA on the gun or

ammunition and his proximity to the gun was enough

to prove his knowledge of it. The prosecutor concluded:

‘‘For you to accept the defense’s theory, you have to

accept the idea that [the defendant] is the unluckiest

man alive. That this set of coincidences has come out

of nowhere and each and every one of them has coincidentally occurred on the same evening. The convergence of him trespassing, at a time when unluckily a

gun was nearby, within four to five feet of him, only

his DNA, and no one else’s at the scene, gets on to it,

at a time when he happens to be trespassing and happens to be prohibited from possession of such a gun.’’

Immediately upon conclusion of the prosecutor’s

rebuttal argument, the court began its charge to the

jury, stating: ‘‘It is now my duty to instruct you as to

the law that you are to apply to the facts in this case.

. . . The charges [are] to be considered as a whole,

and individual instructions are not [to] be considered

[in] artificial isolation from the overall charge. . . . It

is exclusively the function of the court to state the rules

of law that govern the case. It is your obligation to

accept the law as I state it. You must follow all of my

instructions and not single out some and ignore others.

They are all equally important.’’ (Emphasis added.)

The court gave general instructions applicable in any

trial and then addressed the law related to the crimes

with which the defendant was charged.18 The court’s

instruction included definitions of knowledge and

intent. The court stated, in part: ‘‘A person acts knowingly with respect to conduct or to a circumstance

described by a statute defining an offense when he is
aware that his conduct is of such nature or that such

circumstance exists.’’ (Emphasis added.) It also stated

that ‘‘[i]ntent relates to the condition of the mind of

the person who commits the act, his or her purpose in

doing it. Here, the state is required to prove that the

defendant intentionally, and not inadvertently or accidentally, engaged in his actions. In other words, the

state must prove that the defendant’s actions were

intentional, voluntary and knowing, rather than unintentional, involuntary and unknowing.’’ (Emphasis added.)

The court continued: ‘‘A person is guilty of criminal

possession of a pistol or revolver when such person

possesses a pistol or revolver and has been convicted

of a felony. For you to find the defendant guilty of this

charge, the state must prove the following elements

beyond a reasonable doubt. . . . The first element is

that the defendant possessed a pistol or revolver. . . .

Possession means either having the object on one’s

person or otherwise having control over the object.

That is, knowing where it is and being able to access

it. Possession also requires that the defendant knew he

was in possession of the firearm. That is, that he was

aware that he was in possession of it and was aware

of its nature.

‘‘The state must prove, beyond a reasonable doubt,

that the defendant knew that he was in possession of

the pistol or revolver. Possession does not mean that

one must have the illegal object upon one’s person.

Rather, a person who, although not in actual possession,

knowingly has the power and the intention, at a given

time, to exercise control over a thing is deemed to be

in constructive possession of that item. As long as the

object is or was in a place where the defendant could,

if he wishes, go and get it, it is in his possession.’’19

(Emphasis added.) Neither the prosecutor nor defense

counsel took an exception to the charge. See footnote

17 of this opinion.

On appeal, the defendant claims that the prosecutor’s

argument concerning possession ‘‘completely disregards the dominion [or] control element of possession

and was a direct invitation to the jury to disregard an

element of constructive possession that the state was

required to prove.’’ He argues that the prosecutor

improperly equated mere access with possession and

that her argument does not conform to the definition

of possession found in State v. Hill, supra, 201 Conn.

516, to wit, ‘‘[t]o possess, according to § 53a-3 (2), is

to have actual physical possession or otherwise to exercise dominion or control . . . .’’ (Internal quotation

marks omitted.)

The state acknowledges that the prosecutor did not

state explicitly that the defendant must have, not only

the power, but also the intention to exercise dominion

or control over the gun. It contends, however, that the

defendant has not cited any authority that the prosecu-
tor needs to discuss all aspects of the relevant law in

summation. The state argues that it is the court’s duty

‘‘to give jury instructions that are accurate in law,

adapted to the issues and adequate to guide the jury in

reaching a correct verdict . . . .’’ (Citation omitted;

internal quotation marks omitted.) State v. Bellamy,

323 Conn. 400, 429, 147 A.3d 655 (2016). Although we

agree that the court is responsible for instructing the

jury on the law, that fact does not give the prosecutor

license to misstate the law to the jury. During closing

argument, the prosecutor three times incorrectly told

the jury that it could convict the defendant if he knew

where the gun was located and had access to it.

According to the prosecutor, ‘‘[i]t’s that simple.’’ Of

course, it is not that simple. The prosecutor’s statement

left out the necessary element of intent. See State v.

Hill, supra, 201 Conn. 512–17. Consequently, the prosecutor’s statement of the law was not just incomplete,

it was inaccurate.

Nevertheless, the jury was informed numerous times,

including by the prosecutor, that it was the court’s

responsibility to instruct the jury as to the law. In particular, at the beginning of trial and when it commenced

its charge, the court informed the jury that it was its

duty to instruct the jury on the law and that the jury

was bound to follow the law as given by the court. See

State v. Gordon, 104 Conn. App. 69, 83–84, 931 A.2d

939 (court reminded jury prior to trial and following

final argument that court, not counsel, was sole source

of applicable law), cert. denied, 284 Conn. 937, 937 A.2d

695 (2007).

‘‘In the absence of a showing that the jury failed or

declined to follow the court’s [general] instructions,

we presume that it heeded them.’’ (Internal quotation

marks omitted.) State v. Singleton, 95 Conn. App. 492,

505, 897 A.2d 636, cert. denied, 279 Conn. 904, 901 A.2d

1228 (2006).

In his reply brief, the defendant takes exception to

the state’s position that the court’s instructions cured

the prosecutor’s incorrect statement of the law of possession by giving a full and complete instruction on

possession. The state represented that the court’s

instruction was ‘‘nearly identical to the model jury

instructions for possession and criminal possession’’ of

a gun.20 The defendant recognizes that the court’s

charge conformed to the model jury instructions on the

elements of possession, but he argues, citing State v.

Reyes, 325 Conn. 815, 821–22 n.3, 160 A.3d 323 (2017),21

that the model jury instructions are not indicative of

their correctness, and, citing State v. Bellamy, supra,

323 Conn. 500 (Palmer, J., concurring),22 that the model

instructions have been the source of constitutional

error. Despite this argument, the defendant has not

demonstrated how the model jury instruction used in

the present case is a source of constitutional error, as
the model charge for constructive possession, which is

explicitly referenced in the model charge for criminal

possession of a pistol or revolver, requires that the state

prove knowledge of the gun’s presence and an intent

to possess it.23 Moreover, defense counsel had the

opportunity to review the court’s charge prior to an

initial on-the-record charge conference, participated in

that charge conference, and offered suggestions. None

of the suggestions offered related to the charge on constructive possession. The court made several changes

to its charge pursuant to the suggestions of counsel,

distributed its revised charge to counsel and held a

second on-the-record charge conference. At the conclusion of the second charge conference, defense counsel

agreed to the revised charge.24

In any event, the court specifically instructed the jury

that ‘‘a person who, although not in actual possession,

knowingly has the power and the intention, at a given

time, to exercise control over a thing is deemed to be

in constructive possession of that item.’’ ‘‘The jury [is]

presumed to follow the court’s directions in the absence

of a clear indication to the contrary.’’ (Internal quotation

marks omitted.) State v. Fields, 265 Conn. 184, 207, 827

A.2d 690 (2003). ‘‘[P]rosecutorial [impropriety] claims

[are] not intended to provide an avenue for the tactical

sandbagging of our trial courts, but rather, to address

gross prosecutorial improprieties . . . .’’ (Emphasis

added; internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 576, 849 A.2d 626 (2004). In

this case, the court’s charge corrected the prosecutor’s

misstatement of the law of constructive possession.

‘‘[T]he prosecutor’s choice of words, at best, was

inartful, but . . . when viewed in the context of his

entire closing argument . . . even if . . . improper,

that impropriety did not deprive the defendant of a fair

trial.’’ (Citation omitted.) State v. Nicholson, 155 Conn.

App. 499, 516, 109 A.3d 1010, cert. denied, 316 Conn.

913, 111 A.3d 884 (2015). Although the prosecutor’s

inaccurate reference to the law of constructive possession had the potential to confuse the jury, applying

the Williams factors, we conclude that any perceived

impropriety did not deprive the defendant of a fair trial.

But we take this opportunity to remind prosecutors

that during the course of argument, they must take

care to accurately discuss the elements of the crimes

charged. See State v. Gonzalez, 188 Conn. App. 304,

339, A.3d (2019) (prosecutor summarized law

on home invasion). In examining the Williams factors,

we find that the prosecutor’s argument, although not

invited by defense counsel, was not central to the theory

of defense that focused on the DNA evidence. Furthermore, the state’s case was convincing in that the defendant could not be excluded as a contributor to the DNA

mixture obtained from the gun or ammunition. Most

importantly, the court’s correct charge on constructive

possession coupled with the repeated admonitions that
the jury must follow the law as given to it by the court,

adequately cured the prosecutor’s error.

For the foregoing reasons, we conclude that the prosecutor’s statement regarding the law of constructive

possession fell well short of misleading the jury with

respect to constructive possession and did not deprive

the defendant of a fair trial.

B

The defendant also claims that the prosecutor’s mischaracterization of the DNA evidence deprived him of

a fair trial. We do not agree.

The defendant claims that the state mischaracterized

the DNA evidence and improperly suggested that there

was no evidence to support the defense’s theory that

although his DNA may have been on the gun or ammunition, it came to be there in some incidental or accidental

fashion. The defendant contends that Russell testified

as to the various ways in which DNA can be transferred,

and that she could not conclude how the defendant’s

DNA came to be on the gun and that, therefore, the

following portion of the prosecutor’s final argument

was improper: ‘‘You’ve heard no evidence that [the

defendant], for instance, sneezed on the gun. And you

can’t assume that happened because it’s not in evidence.

. . . Secondary transfer would require someone to

touch [the defendant], or an object, with his DNA on

it, and then to touch the gun. But there’s no evidence

that ever occurred. No evidence for you to consider

with regard to that. . . . So, there is no evidence before

you that Officer Lipeika, or anyone else for that matter,

touched some object that [the defendant] touched and

then touched the gun soon thereafter. You haven’t heard

any evidence to that effect. . . . Again, I would reiterate, you haven’t heard any evidence of a transfer DNA.

You haven’t heard evidence of someone spitting on the

gun. And if [the defendant] had spit on the gun, he

would have spat around . . . Jackson from four to five

feet away. Does that seem likely? The same thing with

a sneeze. He would have sneezed around . . . Jackson

from four to five feet away. That’s not likely.’’

Defense counsel did not object to the prosecutor’s

argument. As stated previously, a defendant’s failure to

object is not fatal to his claim, but this court has stated

that we continue ‘‘to adhere to the well established

maxim that defense counsel’s failure to object to the

prosecutor’s argument when it was made suggests that

defense counsel did not believe that it was [improper]

in light of the record of the case at the time. . . . This

is particularly true if, as in the present case, a defendant

claims prosecutorial impropriety stemming from a prosecutor’s discussion of DNA evidence. Such discussions

require precise and nuanced distinctions in nomenclature that easily may be misconveyed or misunderstood,

especially in light of the zealous advocacy that is part
and parcel of a closing argument. If a prosecutor’s arguments do not portray accurately the DNA evidence as

it was presented to the jury or stray too far from reasonable inferences that may be drawn from such evidence,

a contemporaneous objection by defense counsel

would permit any misstatements, whether inadvertent

or intentional, to be remedied immediately.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Brett B., 186 Conn. App. 563, 572, A.3d (2018),

cert. denied, 330 Conn. 961, 199 A.3d 560 (2019).25 ‘‘[If]

a defendant raises on appeal a claim that improper

remarks by the prosecutor deprived the defendant of

his constitutional right to a fair trial, the burden is on

the defendant to show . . . that the remarks were

improper . . . .’’ (Internal quotation marks omitted.)

State v. Grant, 154 Conn. App. 293, 319, 112 A.3d 175

(2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).

On appeal, the defendant argues that the state offered

Russell’s testimony to aid the jury in its understanding

of the DNA evidence. On cross-examination, defense

counsel explored the problematic issues with the DNA

profile that were critical to the defendant’s theory of

the case, i.e., that his DNA was deposited on the gun

by secondary transfer or aerosolization. The defendant

argues that the prosecutor’s final argument that there

was no evidence of a secondary transfer or aerosolization for the jury to consider mischaracterized Russell’s

testimony. We disagree with the defendant.

Russell testified as to a number of ways in which the

defendant’s DNA could have been transferred to the

gun and that she did not know how his DNA was deposited on it. Russell’s testimony described possibilities or

hypotheticals, but such testimony is not evidence of

how, in fact, the defendant’s DNA came to be on the

gun or the ammunition. Russell, however, testified that

the most common way for touch DNA to occur is

through direct contact. The prosecutor’s argument simply was that there was no evidence to support the defendant’s theory that the defendant’s DNA was deposited

on the gun by a secondary transfer or aerosolization.

The court instructed the jury that its verdicts had to

be based on evidence that it heard. ‘‘While the jury may

not speculate to reach a conclusion of guilt, [it] may

draw reasonable, logical inferences from the facts

proven to reach a verdict.’’ (Internal quotation marks

omitted.) State v. Stovall, 142 Conn. App. 562, 567–68,

64 A.3d 819 (2013), rev’d in part on other grounds, 316

Conn. 514, 115 A.3d 1071 (2015).

The defendant also argues on appeal that the state

never introduced evidence to corroborate that the DNA

was placed on the gun or ammunition by direct contact.

It was not required to do so.26 The state proved that

the defendant’s DNA was contained in the DNA profile

developed from the swab of the gun and ammunition.

That fact was in evidence. The state also presented
circumstantial evidence permitting the jury to find the

defendant guilty of criminal possession of a pistol or

revolver. Pursuant to Russell’s testimony, the jury reasonably could have found that it was more likely that

the defendant’s DNA on the gun and ammunition came

from his direct contact with them than from either

secondary transfer or aerosolization.

For the foregoing reasons, we conclude that, although

the prosecutor misstated the law of constructive possession, the defendant has failed to carry his burden

to demonstrate that he was denied due process. We

also conclude that the prosecutor did not mischaracterize the DNA evidence. The defendant, therefore, has

failed to demonstrate that he was deprived of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Although § 53a-217c (a) (1) was the subject of technical amendments in

2015; see Public Acts, Spec. Sess., June, 2015, No. 15-2, § 7; those amendments have no bearing on the merits of this appeal. In the interest of

simplicity, we refer to the current revision of the statute.

2 The defendant was also convicted under a separate docket number of

criminal trespass in the third degree in violation of General Statutes § 53a109 (a) (1). He has not challenged that judgment of conviction on appeal.

3 The task force’s objective was to deter street level crime by providing

‘‘high visibility police patrol in high crime areas throughout’’ the city of

Norwalk. The department had an agreement with the Norwalk Housing

Authority to deter trespassing in housing complexes. The task force undertook foot patrols in housing complexes to put the residents at ease, to let

them know that there was a police presence and to fulfill the department’s

agreement with the housing authority. According to Lipeika, the majority

of problems within housing complexes were created by people who did not

live there and were trespassing.

4 Lipeika described a ‘‘cement retaining wall with bushes in, like, the

retaining wall area.’’ Photographs of the courtyard were placed into evidence

and published to the jury. The photographs depict a courtyard surrounded

by large concrete planters. One of the planters consists of two arms of a

right angle bounding two sides of the courtyard. A long bench is set next

to one arm of the planter and a picnic table is situated close to the corner

of the angle. A shrubbery hedge is planted in the arm of the planter behind

the bench and one side of the picnic table.

5 The individuals in the courtyard were the defendant, Kason Sumpter,

Altolane Jackson, Brian Elmore, Jefferson Sumpter, and Janet Cruz. Lipeika’s

subsequent investigation disclosed that none of the individuals was a resident of Washington Village.

6

Jefferson Sumpter and Janet Cruz were ‘‘hanging over by the bench’’ in

a different part of the courtyard. According to Lipeika, they appeared to be

highly intoxicated and did not approach the picnic table.

7 Lipeika testified on the basis of his training and experience that when

armed subjects are approached by police, they ‘‘usually try to discard . . .

or stash’’ a firearm so that it is not detected on their person. Depending on

the circumstances, a subject usually places the gun close enough to access it.

8 Russell’s work was reviewed for accuracy by a technical reviewer at

the laboratory.

9 Although § 53a-217 (a) (1) was the subject of technical amendments in

2015; see Public Acts, Spec. Sess., June, 2015, No. 15-2, § 6; those amendments have no bearing on the merits of this appeal. In the interest of

simplicity, we refer to the current revision of the statute.

10 Throughout his briefs on appeal, the defendant has used the term ‘‘exercised dominion and control.’’ (Emphasis added.) The language of General

Statutes § 53a-3 (2) is ‘‘exercise dominion or control . . . .’’ (Emphasis

added.)

11 The parties stipulated that the defendant had a prior felony conviction.

12 Most often, plain view, or the plain view doctrine, arises in the context

of a fourth amendment illegal search and seizure claim, which is not present

in this case. The defendant has not claimed that he had a reasonable expecta-
tion of privacy in the courtyard. ‘‘The plain view doctrine is based upon the

premise that the police need not ignore incriminating evidence in plain view

while they are . . . entitled to be in a position to view the items seized.’’

(Internal quotation marks omitted.) State v. Arokium, 143 Conn. App. 419,

433, 71 A.3d 569, cert. denied, 310 Conn. 904, 75 A.3d 31 (2013); see also

Coolidge v. New Hampshire, 403 U.S. 443, 464–73, 91 S. Ct. 2022, 29 L. Ed.

2d 564 (1971); State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980).

13 The state placed into evidence photographs of three signs posted in

the courtyard: one sign stated ‘‘PRIVATE PROPERTY NO TRESPASSING’’;

another stated ‘‘NOTICE NO TRESPASSING LOITERING SOLICITING ON

THIS PROPERTY’’; and another sign stated in part ‘‘The Community Policing

Division has a partnership with the Norwalk Housing Authority . . . . We

are committed to making our communities a better, safer, drug free environment where residents and their children can enjoy their right to peace of

mind. Officers will be conducting random patrols to specifically address

issues . . . .’’

14 Following oral argument in this court, defense counsel submitted a

letter pursuant to Practice Book § 67-10, in which she brought the case of

State v. Skipper, 228 Conn. 610, 613–24, 637 A.2d 1101 (1994), to our attention,

claiming that the case was pertinent to the state’s argument regarding the

manner in which the defendant’s DNA came in contact with the gun. Skipper

concerned the determination of paternity. The statistical probability of paternity at issue is distinguishable from the present case in that the probability

of paternity was calculated from DNA evidence on the fifty-fifty assumption

that intercourse had occurred.

15 In Arnold, the victim stated to a 911 operator and responding police

that the defendant had a gun. United States v. Arnold, supra, 486 F.3d

179–80. In Vichitvongsa, the defendant made telephone calls from jail in

which he stated that he had been pulled over and the police caught him

with a gun that he referred to as ‘‘[t]he Smitty’’ and ‘‘my burner,’’ which are

common references to handguns. (Emphasis omitted; internal quotation

marks omitted.) United States v. Vichitvongsa, supra, 819 F.3d 276.

16 In their final arguments, both the prosecutor and defense counsel stated

that the jury was to follow the court’s instructions as to the law.

17 The record discloses that defense counsel also argued that the state

had ‘‘to prove, beyond a reasonable doubt, that [the defendant] knew, or

had knowledge of, that he was in possession of this weapon, that he knew

where it was and that he had access to it.’’ We note that neither argument

mirrors State v. Hill, supra, 201 Conn. 516 (‘‘control is not the manifestation

of an act of control but instead it is the act of being in a position of control

coupled with the requisite mental intent’’).

18 On appeal, the defendant does not claim that the court improperly

charged the jury, but argues that the instruction was insufficient to clarify

the element of dominion or control. ‘‘[A] defendant is entitled to have the jury

correctly and adequately instructed on the pertinent principles of substantive

law. . . . Nonetheless, [the] instructions need not be perfect, as long as

they are legally correct, adapted to the issues and sufficient for the jury’s

guidance.’’ (Citation omitted; internal quotation marks omitted.) State v.

Roger B., 297 Conn. 607, 618, 999 A.2d 752 (2010). More significantly, appellate courts do not review a waived claim of instructional error that is folded

into a claim of prosecutorial impropriety. See State v. Hearl, 182 Conn. App.

237, 253 n.18, 190 A.3d 42, cert. denied, 330 Conn. 903, 192 A.3d 425 (2018).

The defendant also criticizes the trial court for not issuing a curative

instruction for the prosecutor’s alleged misstatement of the law but acknowledges that he did not request a curative instruction. See State v. Fauci, 282

Conn. 23, 53, 917 A.2d 978 (2007) (trial court did not give curative instruction,

as defense did not object or request curative instruction). ‘‘Given the defendant’s failure to object, only instances of grossly egregious [impropriety]

will be severe enough to mandate reversal.’’ (Internal quotation marks omitted.) State v. Singleton, 95 Conn. App. 492, 504, 897 A.2d 636, cert. denied,

279 Conn. 904, 901 A.2d 1228 (2006).

19 The court instructed the jury that the parties had stipulated that at the

time of the charged offense, the defendant previously had been convicted of

a felony and was, therefore, prohibited from possessing a pistol or revolver.

20 Although the parties refer to the ‘‘model’’ jury instructions, the Judicial

Branch does not. The collection of jury charges for criminal cases prepared

by the Judicial Branch is simply referred to as ‘‘Criminal Jury Instructions’’

and contains the following disclaimer: ‘‘This collection of jury instructions

. . . is intended as a guide for judges and attorneys in constructing charges

and requests to charge. The use of these instructions is entirely discretionary
and their publication by the Judicial Branch is not a guarantee of their legal

sufficiency.’’ (Emphasis added.) Connecticut Judicial Branch Criminal Jury

Instructions, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf

(last visited March 4, 2019). Nevertheless, because the parties use the shorthand term ‘‘model’’ charges, we adopt that nomenclature in this opinion.

21 In Reyes, the defendant asked our Supreme Court to exercise its supervisory authority over the administration of justice to require judges to use

the pattern criminal jury instructions found on the Judicial Branch website.

State v. Reyes, supra, 325 Conn. 821 n.3. Our Supreme Court declined the

defendant’s invitation, noting the express caution on the website that the

instructions are intended as a guide in constructing charges and requests

to charge, and that their use is entirely discretionary and ‘‘their publication

by the Judicial Branch is not a guarantee of their legal sufficiency.’’ (Emphasis in original; internal quotation marks omitted.) Id., 821–22 n.3.

22 The issue in Bellamy was whether the defendant had waived his unpreserved jury instruction claim under the rule established in State v. Kitchens,

299 Conn. 447, 482–83, 10 A.3d 942 (2011), and whether the Kitchens rule

should be overturned. State v. Bellamy, supra, 323 Conn. 402–403. Our

Supreme Court declined to overturn the Kitchens rule. Id., 439.

23 The example cited by Justice Palmer in Bellamy concerned a jury

instruction given in the case of State v. Johnson, supra, 137 Conn. App. 760.

On appeal in Johnson, our Supreme Court concluded that the standard jury

instructions on nonexclusive constructive possession of contraband that

the trial court used at the defendant’s trial was constitutionally deficient.

State v. Bellamy, supra, 323 Conn. 501 (Palmer, J., concurring). The instruction at issue in the present case was not the instruction given in Johnson.

See State v. Johnson, supra, 761 n.9.

24 Again, the defendant does not claim that the court improperly charged

the jury, but if he had, the state may well have contended that he waived

any instructional error pursuant to State v. Kitchens, 299 Conn. 447, 482–83,

10 A.3d 942 (2011).

25 In the present case, the defendant’s claim concerns the DNA evidence,

but it is not specifically directed toward the prosecutor’s discussion of the

DNA evidence itself. The defendant’s claim is directed toward the logic of

the prosecutor’s argument.

26 In his brief on appeal, the defendant states in one sentence that the

state not only improperly argued that the hypotheticals posited to Russell

were not evidence, but that ‘‘it also improperly shifted the burden to the

defense to proffer evidence of a sneeze, or that someone else touched

[the defendant] and transferred the DNA.’’ The state properly argued that

Russell’s testimony merely provided the jury with examples of how DNA

can be transferred, and because there was no evidence in the present case

of the defendant’s DNA being transferred under the circumstances of any

hypothetical, the jury could not speculate. The defendant was under no

obligation to provide any evidence as to how the DNA came to be on the

gun, but he certainly could have done so if such evidence was available to

him. Moreover, defense counsel was not ‘‘precluded from arguing that the

inconclusive nature of the DNA evidence left reasonable doubt about the

defendant’s guilt . . . .’’ State v. Brett B., supra, 186 Conn. App. 583–84.