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*********************************************** 
STATE OF CONNECTICUT v. JAVIER

VALENTIN PORFIL

(AC 40305)

Prescott, Elgo and Harper, Js.

Syllabus

Convicted, after a jury trial, of the crimes of possession of narcotics with

intent to sell by a person who is not drug-dependent, sale of narcotics

within 1500 feet of a school, possession of drug paraphernalia, possession of narcotics and interfering with an officer, the defendant appealed

to this court, claiming, inter alia, that the evidence was insufficient to

support his conviction and that the trial court deprived him of his

constitutional right to present a defense by improperly excluding certain

photographic evidence. The police had received an anonymous telephone call, stating that the defendant, whom the caller identified by

first and last name, had warrants and was selling narcotics from the

open front porch of a three-story multifamily house. After verifying

that the defendant had active warrants, a police officer, P, obtained a

photograph of the defendant and drove to the subject house, where he

observed the defendant sitting alone on the porch wearing shorts, a

blue tank top and a baseball hat. P then positioned himself across the

street from the house, where he had a clear view of the porch through

his binoculars and was able to see that the left front door was open,

revealing a little part of a staircase leading to the second floor landing.

After watching the defendant for a while, P observed a man approach

the house and engage in a brief conversation with the defendant at the

bottom of the porch stairs. P then observed the defendant walk through

the open doorway, reemerge after a time, descend the porch stairs and

engage in an item-for-item exchange with the man, who then left. A few

minutes later, P saw a car park at an intersection near the house and

observed a man exit the car, approach the house and engage in a brief

conversation with the defendant, who again walked into the house

through the open doorway, reappeared a few seconds later and engaged

in another item-for-item exchange. The man then walked back to his

car and drove away. No one else was seen with the defendant throughout

this transaction other than the person with whom he had made the

exchange. During this time, P was in constant radio communication with

other officers positioned nearby, who, upon receiving P’s notification,

approached the front and the rear of the house. T and two other officers

found the defendant alone on the porch, dressed in a blue tank top,

shorts and a baseball cap, with the left front door to the house open.

Upon seeing the officers, the defendant turned around and ran through

the open doorway up the staircase and entered the second floor apartment. As the officers pursued the defendant, they observed that there

was no one else in the stairwell. Meanwhile, S and another officer had

positioned themselves on the back porch near the exterior rear door.

After a short time, S observed the defendant begin to exit through the

door, but, upon seeing the officers, he retreated back into the house

and shut the door. The police subsequently searched the entire house,

but the defendant could not be located. In searching the house, however,

they found a brown paper bag in plain view in the second floor hallway,

which contained a digital scale, rubber bands, and 171 bags of heroin,

packaged in bundles of ten glassine packets, tied with rubber bands,

and packed in rice. The total street value of the heroin was between

approximately $1000 and $1150. P subsequently arrested the defendant. Held:

1. The defendant could not prevail on his claim that the evidence was

insufficient to support his conviction, which was based on his claim

that the state failed to produce sufficient evidence to prove beyond a

reasonable doubt that he had constructive possession of the narcotics

recovered by the police from the common area of the subject house:

the defendant’s reliance on State v. Nova (161 Conn. App. 708) for his

contention that the state failed to establish, in addition to his spatial and

temporal proximity to the narcotics, the existence of other incriminating
statements or circumstances linking him to them was misplaced, as

unlike in Nova, there was evidence in the present case of hand-to-hand

exchanges in a high crime area with substantial narcotic activity, which

transformed the defendant’s prior presence on the porch and movement

toward the second floor hallway into something more than mere proximity to the narcotics seized from that hallway, the state did not did not

rely solely on the hand-to-hand exchanges and the defendant’s proximity

to the narcotics, as the street value of the heroin recovered, the particular

location in which it was found and the absence of other individuals

observed in that location provided additional support for an inference

that the defendant had been selling the narcotics from the porch of the

house, and provided a basis for the jury reasonably to conclude that

the most likely explanation for why the narcotics were found in plain

view in a common area of the house was that whoever claimed ownership

or possession of them had placed them there intentionally and actively

was engaged in selling them; moreover, given the tip from the anonymous

caller and the testimony of P and T that the defendant had been alone

on the porch throughout the transactions and that no one else had been

seen in the stairwell, the jury reasonably could have concluded further

that it was the defendant who had been actively engaged in selling the

narcotics, and, on the basis of the defendant’s flight, the jury reasonably

could have inferred that he possessed a guilty conscience with respect

to both the conduct underlying his outstanding arrest warrants against

him and the conduct underlying the present case; accordingly, considering all of this evidence together with the defendant’s temporal and

physical proximity to the narcotics recovered by the police, the jury

reasonably could have inferred that the defendant had been selling the

subject narcotics from the porch of the house during the time in question

and, by necessary implication, concluded that he was aware of the

nature and presence of the narcotics and had dominion and control

over them.

2. The defendant’s claim that the trial court committed evidentiary error

and deprived him of his constitutional right to present a defense by

improperly excluding certain photographs of the front and back of the

house was unavailing:

a. The trial court’s exclusion of the photograph of the front of the house,

which depicts what appear to be two trees with lush foliage completely

obstructing the view of the porch from where P had observed the defendant engaging in the two hand-to-hand exchanges, did not deprive the

defendant of his constitutional right to present a defense: even if this

court assumed that the exclusion of the photograph was improper, the

defendant was able to adequately present his defenses of misidentification and lack of possession by other means and had additional, alternative avenues available to him to further bolster his defenses, and, therefore, the exclusion of the photograph did not rise to the level of a

constitutional violation; moreover, this court had a fair assurance that

any impropriety in excluding the defendant’s photograph of the front

of the house did not substantially affect the jury’s verdict because, even

without P’s testimony regarding the hand-to-hand exchanges, there was

compelling substantial evidence tending to prove the defendant’s identity

as the suspect and of his constructive possession of the narcotics, and,

contrary to the defendant’s contention that the excluded photograph

likely would have significantly undermined P’s testimony that he had

a clear view of the porch, there was strong evidence corroborating

P’s testimony.

b. The trial court properly excluded the photograph of the rear of the

house, that court having correctly determined that the defendant failed

to authenticate the photograph; at trial, defense counsel represented to

the court that the defendant was prepared to testify that the front of

the house, as depicted in his photograph, looked substantially similar

to the way it looked at the time the offenses were committed, but he

made no similar offer of proof with respect to the photograph of the

back of the house, and, therefore, the defendant failed to make the

prima facie showing required to authenticate the photograph of the back

of the house.

3. The defendant could not prevail on his claim that the trial court improperly

prevented him from showing a scar on his back to the jury, thereby

depriving him of this constitutional right to present his defense that he

was misidentified as the suspect seen running from the police at the

house, as that court did not abuse its discretion by excluding the demon-
stration of the scar as needlessly cumulative; although the defendant’s

medical records, which were admitted into evidence by agreement of

the parties, did not disclose the condition of the defendant’s back at

the time of the offenses, the jury reasonably could have inferred from

the records that a spinal surgery undergone by the defendant had left

a scar on his back, and the jury did not need to rely solely on inferences,

as the defendant explicitly testified that, as a result of the spinal surgery,

he had a scar on his back, and the state did not contest that aspect of

the defendant’s testimony.

Argued January 9—officially released July 30, 2019

Procedural History

Substitute information charging the defendant with

the crimes of possession of narcotics with intent to sell

by a person who is not drug-dependent, sale of narcotics

within 1500 feet of a school, possession of drug paraphernalia, possession of narcotics and interfering with

an officer, brought to the Superior Court in the judicial

district of Waterbury and tried to the jury before Harmon, J.; verdict and judgment of guilty, from which the

defendant appealed to this court. Affirmed.

James B. Streeto, senior assistant public defender,

with whom, on the brief, was, Samantha L. Oden, former certified legal intern, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were Maureen Platt,

state’s attorney, and David A. Gulick, senior assistant

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

HARPER, J. The defendant, Javier Valentin Porfil,

appeals from the judgment of conviction, rendered after

a jury trial, of possession of narcotics with intent to

sell by a person who is not drug-dependent in violation

of General Statutes § 21a-278 (b), sale of narcotics

within 1500 feet of a school in violation of General

Statutes § 21a-278a (b), possession of drug paraphernalia in violation of General Statutes § 21a-267, and possession of narcotics in violation of General Statutes

§ 21a-279 (a).1 The defendant claims on appeal that (1)

the evidence was insufficient to establish that he was

in constructive possession of narcotics,2

(2) the trial

court deprived him of his constitutional right to present

a defense by improperly excluding certain photographic

evidence and (3) the trial court deprived him of his

constitutional right to present a misidentification

defense by preventing him from displaying a scar to

the jury. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On August 14, 2015, the Waterbury Police Department received an anonymous telephone call, stating

that the defendant, whom the caller identified by first

and last name, ‘‘had warrants’’ and was selling narcotics

from the porch of 126–128 Walnut Street in Waterbury.

Located at this address is a three-story multifamily

house with an open front porch. The house has two

front doors; the door on the left opens to a staircase

leading to the second floor landing, and the door on

the right opens to a first floor apartment. The house

also has a back door that leads to the back door of the

first floor apartment and a back staircase to the second

floor. The defendant did not live at this address, but

he was there often to visit family members. After verifying that the defendant did indeed have active warrants, Officer Scott Phelan obtained a photograph of

the defendant and headed to the house in an undercover

vehicle. Meanwhile, several other uniformed officers

waited in unmarked vehicles in the vicinity of the house,

ready to ‘‘move in’’ on the defendant on Phelan’s word.

Phelan proceeded to drive past the house where he

observed the defendant sitting alone on the porch wearing shorts, a blue tank top, and a baseball hat. Phelan

then sought out a location from which he could best

observe the defendant. He eventually took up a position

across the street in the area of the intersection of Walnut

Street and Cossett Street, approximately 150 or 175 feet

southwest of the porch. From this position, Phelan had

a clear view of the porch through his binoculars and

was able to observe that the left front door was open,

revealing a ‘‘little bit’’ of the staircase. He did not

observe anyone in the stairway. After watching the

defendant for a time, Phelan observed a man approach

the house and engage in a brief conversation with the
defendant at the bottom of the porch stairs. The defendant then walked through the open doorway, reappeared after a time, descended the porch stairs, and

‘‘exchange[d] . . . an item for an item’’ with the man.

The man then left.

A few minutes later, Phelan saw a vehicle pull up

and park on the corner of Catherine Avenue and Walnut

Street and observed a man exit the vehicle, approach

the house, and engage in a brief conversation with the

defendant.3 The defendant again walked into the house

through the open doorway, reappeared a few seconds

later, and engaged in another item-for-item exchange.

The man then walked back to his car and drove away.

No one else was seen with the defendant throughout

this transaction other than the person with whom he

had made the exchange.

During this time, Phelan was in constant radio communication with the other officers positioned nearby

and relayed to them that he had observed the defendant

engage in two hand-to-hand exchanges. Meanwhile, the

other officers waited to receive notification from Phelan

that the defendant had stepped far enough away from

the house to give the officers a good chance of apprehending him in case he tried to run back inside. After

receiving such notification, Officer Jerome Touponse

and two other officers ran to the front porch, and two

officers went to the back of the house to secure the

rear door.

Upon approaching the front of the house, Touponse

and the other officers found the defendant alone on the

porch, dressed in a blue tank top, shorts, and a baseball

cap, with the left front door to the house open. The

defendant then turned around and ran through the open

left front doorway up the staircase and entered the

second floor apartment.4 The officers gave chase. There

was no one else in the stairwell as they pursued the

defendant. The officers eventually made their way

inside the second floor apartment, where the occupants

pointed the police to the back door of the apartment.

Touponse went to the back door, but the defendant

was nowhere to be seen.

Meanwhile, the two officers tasked with covering the

back of the house, Rose5 and David Shaban, positioned

themselves on the back porch near the exterior rear

door; Shaban stood directly in front of the door, with

Rose a few steps behind him. After a short time, Shaban

observed the defendant, who was wearing a blue shirt

and a baseball cap, begin to exit through the door, but,

upon seeing the officers, he retreated back into the

house and shut the door. When the officers were eventually able to get through the door, they found the back

door to the first floor apartment was open. The front

door to the apartment was also open, which indicated

to Shaban that the defendant had run right through

the apartment.
The police subsequently searched the entire house,

but the defendant could not be located. In searching

the house, however, they found a brown paper bag in

plain view in the hallway extending to the right of the

entrance to the second floor apartment. See footnote

4 of this opinion. The bag contained a digital scale,

rubber bands, and 171 bags of heroin, packaged in bundles of ten glassine packets, tied with rubber bands,

and packed in rice. The total street value of the heroin

was between approximately $1000 and $1150.

Officer Phelan arrested the defendant several months

later, in February, 2016. After Phelan explained to him

that he was being arrested in connection with the events

of August 14, 2015, the defendant stated that he was

‘‘sorry for running.’’ The defendant subsequently was

charged with, inter alia, possession of narcotics with

intent to sell by a person who is not drug-dependent

in violation of § 21a-278 (b), sale of narcotics within

1500 feet of a school in violation of § 21a-278a (b),

possession of drug paraphernalia in violation of § 21a267, and possession of narcotics in violation of § 21a279 (a). A jury trial was held beginning on October

11, 2016, at which the defendant testified in his own

defense.6 On October 13, 2016, the jury returned a verdict of guilty on all counts, and the defendant was sentenced on January 20, 2017.7 This appeal followed. Additional facts and procedural history will be set forth

as necessary.

I

The defendant first claims that the evidence adduced

at trial was insufficient to support his conviction

because the state did not produce sufficient evidence

to prove beyond a reasonable doubt that he had constructive possession of the narcotics recovered by the

police from 126–128 Walnut Street. We disagree.

‘‘In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force

of the evidence established guilt beyond a reasonable

doubt. . . .

‘‘We note that the 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, 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. . . . In evaluating

evidence, the [finder] of fact is not required to accept

as dispositive those inferences that are consistent with

the defendant’s innocence. . . . The [finder of fact]

may draw whatever inferences from the evidence or

facts established by the evidence it deems to be reasonable and logical. . . .

‘‘Finally, [a]s we have 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 [finder of fact], would have resulted in

an acquittal. . . . On appeal, we do not ask whether

there is a reasonable view of the evidence that would

support a reasonable hypothesis of innocence. We ask,

instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of

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

Griffin, 184 Conn. App. 595, 613–14, 195 A.3d 723, cert.

denied, 330 Conn. 941, 195 A.3d 692 (2018) and cert.

denied, 330 Conn. 941, 195 A.3d 693 (2018).

‘‘[T]o prove illegal possession of a narcotic substance,

it is necessary to establish that the defendant knew the

character of the substance, knew of its presence and

exercised dominion and control over it. . . . Where

. . . the [narcotics were] not found on the defendant’s

person, the state must proceed on the theory of constructive possession, that is, possession without direct

physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found.

. . . Where the defendant is not in exclusive possession

of the premises where the narcotics are found, it may

not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless

there are other incriminating statements or circumstances tending to buttress such an inference. . . .

While mere presence is not enough to support an inference of dominion or control, where there are other

pieces of evidence tying the defendant to dominion and

control, the [finder of fact is] entitled to consider the

fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances

linking [the defendant] to the crime. . . . [T]he test for

illegal possession of drugs is that the accused must

know that the substance in question is a drug, must
know of its presence and exercise dominion and control

over it. . . .

‘‘Importantly, [k]nowledge of the presence of narcotics and control may be proved circumstantially. . . .

Knowledge that drugs are present and under a defendant’s control when found in a defendant’s home or car

is more easily shown, of course, if the defendant has

exclusive possession of the area in which the drugs are

found. The difficult cases . . . arise when possession

of an area, such as a car or home or an apartment, is

shared with another person or persons. In situations in

which the putative offender is not in exclusive possession of the premises where the narcotics are found, we

may not infer that he or she knew of the presence of

the narcotics or that he or she had control over them,

without incriminating statements or circumstances to

support that inference.’’ (Internal quotation marks omitted.) State v. Bischoff, 182 Conn. App. 563, 571–72, 190

A.3d 137, cert. denied, 330 Conn. 912, 193 A.3d 48 (2018).

In the present case, there is no dispute that narcotics

were found in the second floor hallway of 126–128 Walnut Street, and the defendant concedes in his appellate

brief that the quantity of narcotics recovered permits

an inference that they were intended for sale.8 There is

also no dispute—at least for purposes of the defendant’s

evidentiary insufficiency claim—that, shortly before the

discovery of the narcotics by the police, the defendant

repeatedly entered 126–128 Walnut Street through the

doorway leading to the second floor hallway. As previously stated, however, spatial and temporal proximity

to contraband, without more, is insufficient to establish

constructive possession if, as in the present case, the

contraband is found in a common area over which the

defendant did not have exclusive possession. The state,

therefore, was required to establish the existence of

other incriminating statements or circumstances linking him to the narcotics. According to the defendant,

the state failed to introduce evidence of any such statements or circumstances, and, therefore, his conviction

must be reversed. In support of this claim, the defendant

relies primarily on this court’s decision in State v. Nova,

161 Conn. App. 708, 129 A.3d 146 (2015). This reliance

is misplaced.

In Nova, the defendant had been the subject of an

ongoing police investigation, and the police had

obtained a warrant to search the defendant and an

apartment to which he was linked for narcotics. Id.,

710. In preparation for execution of the warrant, police

officers conducted surveillance of the building. Id. During the surveillance, the defendant was observed entering the apartment through the main entry door, which

opened into the kitchen. Id., 711. He reemerged a few

moments later and ascended an external staircase to a

balcony on the third floor of the building that adjoined

the upper level of the apartment, where he remained
for approximately one minute. Id. The defendant then

returned to his car in the apartment building’s parking

lot. Id.

‘‘Shortly after the defendant returned to his car,

police observed a brief meeting between the defendant

and another individual in the building’s parking lot.

Specifically, the officers saw a white male drive a

pickup truck into the parking lot and park next to the

defendant’s car. The defendant opened the pickup

truck’s passenger side door, leaned in, and spoke to

the driver for approximately one minute. During the

meeting, police did not observe any hand-to-hand contact or the exchange of any item. Afterward, the pickup

truck left the parking lot.’’ Id. Moments later, a police

officer observed the driver of the pickup truck appear

to snort something and wipe his nose while stopped at

a red traffic signal. Id. The officer, however, did not

see any drugs or hear the driver snorting, and the police

did not attempt to stop the truck. Id.

The defendant was then detained and arrested; he

did not resist or make any incriminating statements,

and no cash or drugs were found on his person or in

his car. Id., 711–12, 713. ‘‘The search of the apartment

revealed drugs and drug paraphernalia throughout. In

the kitchen, a knotted plastic bag containing crack

cocaine and a plastic bag containing powder cocaine

were in a kitchen cabinet; and clear plastic bags, aluminum foil, and colored tape containing cocaine residue

were in a garbage can. On the third floor balcony . . .

officers found a clear plastic sandwich bag containing

twelve small yellow ziplock bags in a Wal-Mart shopping

bag.’’ Id., 712.

Following a trial to the court, the defendant was

convicted of possession of narcotics and possession of

narcotics within 1500 feet of a school. Id., 710. ‘‘In

reaching its judgment, the court relied on several factors that it deemed sufficiently incriminating to support

an inference of constructive possession: the defendant’s

status as the target of the police investigation; his presence in the areas of the apartment where drugs and

paraphernalia were found—namely, the kitchen and the

balcony; his meeting with the driver of the pickup truck;

and his unfettered access to the apartment . . . .’’ Id.,

720. On appeal to this court, the defendant claimed that

this evidence was insufficient to sustain his conviction

because the state had failed to prove beyond a reasonable doubt that he constructively possessed the drugs

found in the common areas of the apartment. Id., 716.

This court agreed, holding that none of these factors,

alone or in combination with the others, established

anything more than a temporal and spatial nexus

between the defendant and the cocaine. Id., 720, 725.

With regard to the defendant’s presence in the kitchen

and balcony, the court concluded that this ‘‘evidence

established merely that he briefly appeared in those
areas.’’ Id., 721. More specifically, the court stated that,

given the absence of ‘‘evidence show[ing] the [defendant] making suspicious movements toward the narcotics, or carrying a bag similar to one later found to

contain narcotics, or engaging in a drug sale near the

narcotics,’’ the state had failed to show ‘‘a compelling

correlation between the defendant’s actions . . . and

the conclusion that he controlled the narcotics in the

apartment.’’ (Emphasis added.) Id., 722. As to the evidence regarding the defendant’s meeting with the driver

of the pickup truck and the driver’s apparent snorting

of some substance thereafter, the court concluded that

such evidence fell short of supporting an inference that

the defendant had controlled the cocaine in the apartment. Id., 723. In so concluding, the court stressed that,

‘‘[w]ithout evidence of any item changing hands or of

the substance the driver was supposedly consuming,

his suspicious movements did not transform the defendant’s prior presence on the balcony and in the kitchen

into something more than mere proximity to the contraband seized from those places.’’ (Emphasis added.) Id.,

724. Accordingly, this court reversed the defendant’s

conviction. Id., 725.

Contrary to the defendant’s contention, Nova is materially distinguishable from the present case. Most significantly, the defendant in the present case was observed

by Officer Phelan engaging in two hand-to-hand transactions. In each instance, the defendant was approached

by an individual from the street. After a brief conversation with the individual, the defendant entered the

house through the open left front door, reemerged

moments later, and proceeded to exchange ‘‘an item

for an item’’ with the individual, who then promptly

left. In Phelan’s experience, this behavior was indicative

of hand-to-hand drug transactions.

Officer Gary Angon, an expert on heroin sales, likewise testified that the defendant’s behavior on the porch

was consistent with heroin dealing. Angon testified that

sellers generally keep the heroin they sell in a location

near the point of sale but not on their person, so as

to avoid detection by the police. According to Angon,

‘‘[u]sually they like to keep it within sight so they can

tell if anyone is going to try and take their product,’’

‘‘usually in a spot that’s within a few seconds so they

can be able to make their interaction with a customer,

find out what it is they need to get and go to that

spot, retrieve it and come back.’’ Phelan’s and Angon’s

opinions at trial were supported further by testimony

that 126–128 Walnut Street is situated in a high crime

area with substantial narcotics activity. See State v.

Slaughter, 151 Conn. App. 340, 349, 95 A.3d 1160 (detectives’ conclusions that defendant’s conduct was consistent with that of drug sellers were supported by testimony that neighborhood in which purported sales

occurred was known to be high crime area in which

drug sales took place), cert. denied, 314 Conn. 916, 100
A.3d 405 (2014); see also State v. Barber, 64 Conn. App.

659, 667, 781 A.2d 464 (‘‘[e]vidence demonstrating that

the defendant was present in a known drug trafficking

area further suggests an intent to sell’’ [internal quotation marks omitted]), cert. denied, 258 Conn. 925, 783

A.2d 1030 (2001). Consequently, unlike in Nova, there

was evidence in the present case of items changing

hands, thus transforming the defendant’s prior presence

on the porch and movement toward the second floor

hallway into something more than mere proximity to

the contraband seized from that hallway. See State v.

Nova, supra, 161 Conn. App. 724.

The defendant further argues, however, that the evidence of the hand-to-hand exchanges fails to show a

compelling correlation between his actions and the conclusion that he controlled the narcotics found in the

hallway because there was no evidence that the items

exchanged were either money or contraband.

According to the defendant, ‘‘[i]n those cases in which

observed, alleged drug sales have formed a basis for

sustaining a defendant’s conviction, additional circumstantial evidence establishing a direct connection has

been introduced. Usually this involves a view of either

the object or of the currency.’’ Specifically, the defendant points to this court’s decisions in State v. Slaughter, supra, 151 Conn. App. 340, and State v. Forde, 52

Conn. App. 159, 726 A.2d 132, cert. denied, 248 Conn.

918, 734 A.2d 567 (1999).

In Slaughter, the defendant was observed engaging

in what police officers believed to be a hand-to-hand

drug transaction. State v. Slaughter, supra, 151 Conn.

App. 342–43. Narcotics were later discovered in an

apartment in which the defendant had been seen entering during the course of the transaction, and $1559 in

cash was found on the defendant’s person. Id., 343–44.

In Forde, the police observed the defendant approach

a truck, take money from the driver, and then discreetly

give a signal to the defendant’s associate, who then

approached a nearby stone wall before handing an

unidentified item to the driver. State v. Forde, supra,

52 Conn. App. 161. The police subsequently found $460

on the defendant’s person. Id., 162. The police also

retrieved a paper bag containing cocaine from the wall

that the defendant’s associate had approached, and the

bag had the associate’s fingerprints on it. Id., 162 and

n.5.

Contrasting the circumstances in the present case

with those in Slaughter and Forde, the defendant contends that ‘‘[t]he fact that neither money nor contraband

were identified as part of the transaction [in the present

case] establishes that they may only be labeled drug

transactions by speculation.’’ We disagree. Although

the evidence deemed sufficient in Slaughter and Forde

included certain facts and circumstances not found in

the present case, nothing in those opinions indicates
that such evidence would be necessary in every case

involving an observed hand-to-hand exchange. See

State v. Stephen J. R., 309 Conn. 586, 595 and n.8, 72 A.3d

379 (2013) (defendant’s reliance on State v. Thomas H.,

101 Conn. App. 363, 922 A.2d 214 [2007], for proposition

that victim’s testimony must be corroborated to be sufficient to support sexual assault conviction, was misplaced; ‘‘[a]lthough the evidence deemed sufficient in

[Thomas H.] included a bloodstain on the victim’s

underwear . . . nothing in the opinion indicates that

the Appellate Court deemed this evidence relevant to

its conclusion or that such evidence would be necessary

in every case’’ [internal quotation marks omitted]).

Moreover, the state in the present case did not rely

solely on the hand-to-hand exchanges and the defendant’s proximity to the contraband.

The street value of the heroin recovered, the particular location in which it was found, and the absence

of other individuals observed in that location provide

additional support for an inference that the defendant

had been selling the heroin from the porch of 126–128

Walnut Street. As the state’s expert on heroin sales,

Officer Angon, testified, the street value of the heroin

recovered was between approximately $1000 and

$1150. Consequently, the jury reasonably could have

concluded that, given the value of the drugs and their

illicit nature, the most likely explanation for why they

were found in plain view in a common area of the house

was that whoever claimed ownership or possession of

them had not simply left them there carelessly but,

rather, had placed them there intentionally and actively

was engaged in selling them. Given the testimony of

Officers Phelan and Touponse that the defendant had

been alone on the porch throughout the transactions

and that no one else had been seen in the stairwell, the

jury reasonably could have concluded further that it

was the defendant who had been actively engaged in

selling the drugs.

There was also testimony from Officers Phelan, Touponse, and Shaban that, on the day in question, the

Waterbury Police Department had received a telephone

call from an anonymous caller, stating that the defendant, whom the caller identified by first and last name,

‘‘was selling narcotics from the porch of [126–128] Walnut Street, and that he had a couple of warrants . . . .’’

Upon receiving this tip, the police confirmed that the

defendant did indeed have several active felony warrants out for his arrest, and Phelan’s subsequent driveby confirmed that the defendant was indeed present

on the porch of 126–128 Walnut Street. See Navarette

v. California, 572 U.S. 393, 398, 134 S. Ct. 1683, 188 L.

Ed. 2d 680 (2014) (‘‘officers’ corroboration of certain

details made the anonymous tip sufficiently reliable to

create reasonable suspicion of criminal activity’’). The

defendant did not object to the admission of this testimony as substantive evidence that the defendant was
selling drugs from the porch. Consequently, it ‘‘enter[ed]

the case as part of the evidence and [could] be considered by the jury.’’ State v. Hickey, 23 Conn. App. 712,

718, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d

1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115

L. Ed. 2d 1058 (1991); see Clougherty v. Clougherty,

131 Conn. App. 270, 274, 26 A.3d 704, cert. denied, 302

Conn. 948, 31 A.3d 383 (2011).

Moreover, the defendant’s flight from 126–128 Walnut

Street upon seeing the police approach the front porch

supports ‘‘an inference of consciousness of guilt, suggesting that the defendant knew of the presence and

character of the narcotics . . . nearby . . . and

sought to distance himself from them.’’ State v. Bischoff,

supra, 182 Conn. App. 573; see State v. Jefferson, 67

Conn. App. 249, 258, 786 A.2d 1189 (2001) (‘‘[w]hen

considered together with all the facts of the case, flight

may justify an inference of the accused’s guilt’’ [internal

quotation marks omitted]), cert. denied, 259 Conn. 918,

791 A.2d 566 (2002). The defendant contends, however,

that such an inference is unjustified in the present case

because, at the time of his flight, there were several

unrelated warrants out for his arrest, ‘‘suggesting a reason to flee the police [that] had nothing at all to do

with any alleged illegal conduct on August 14, 2015.’’

We are not persuaded.

Our Supreme Court rejected a similar argument in

State v. Kelly, 256 Conn. 23, 57, 770 A.2d 908 (2001),

noting: ‘‘[R]equiring the state to prove which crime

caused a defendant to flee would place upon the [s]tate

an impossible burden to prove that one charged with

multiple violations of the law fled solely because of his

consciousness that he committed one particular crime.

It is better logic to infer that the defendant, who is

charged with several offenses, fled because of a conscious knowledge that he is guilty of them all.’’ (Emphasis in original; internal quotation marks omitted.) Thus,

we conclude that the jury in the present case reasonably

could have inferred from the defendant’s flight that he

possessed a guilty conscience with respect to both the

conduct underlying his outstanding arrest warrants and

the conduct underlying the present case.9

Considering this evidence together with the defendant’s temporal and physical proximity to the narcotics

recovered by the police, the jury reasonably could have

inferred that the defendant had been selling those narcotics from the porch of 126–128 Walnut Street during

the time in question. See State v. Slaughter, supra, 151

Conn. App. 347 (finder of fact reasonably could infer

defendant’s knowledge of presence of drugs in apartment from observations by police of apparent drug

transactions, including his frequent trips to and from

apartment in course of these transactions). By necessary implication, the jury reasonably could have concluded that the defendant was aware of the nature and
presence of the narcotics and had dominion and control

over them. Accordingly, we conclude that the state presented sufficient evidence at trial to prove beyond a

reasonable doubt that the defendant had constructive

possession of the narcotics.

II

The defendant next claims that the trial court

deprived him of his constitutional right to present a

defense under the sixth amendment to the United States

constitution10 by improperly excluding photographs of

the front and back of the house. We disagree.

The following additional procedural history is relevant to this claim. During its case-in-chief, the state

presented evidence regarding the police officers’ views

of the front and back of the house. Regarding the front

of the house, Officer Phelan pointed out on a map the

location where he had positioned himself during his

undercover observation of the defendant and testified

that he had had a clear view of the defendant from this

position. During this testimony, the state’s exhibit 2, a

Google Maps photograph of the front of 126–128 Walnut

Street, was admitted as a full exhibit by agreement of

the parties. Exhibit 2 shows what appear to be one tree

at the edge of the property line abutting Walnut Street

and another, smaller tree at the edge of the property

line abutting Catherine Avenue. Although the branches

of the trees partially obstruct the view of the porch,

the foliage as depicted in the exhibit is not dense, and

the porch is largely visible. Phelan testified that this

photograph depicts the house at roughly the same angle

from which he had observed the defendant. Phelan

could not say when the photograph was taken, but

Officer Angon testified that it showed the house as it

was at the time of the offenses in August, 2015. Angon

did not state the basis for this assertion, and defense

counsel did not cross-examine him on the matter.

Regarding the back of the house, Officer Shaban testified that while he and Officer Rose were positioned

near the rear door, Rose alerted him that he had seen

the defendant through a window descending the back

staircase. Shaban did not testify regarding his own view

of the back windows, and defense counsel did not crossexamine him on the matter. Nor did defense counsel

call Rose to testify.

On October 13, 2016, during the defendant’s case-inchief, defense counsel sought to have two photographs

of the house at 126–128 Walnut Street admitted into

evidence. The first photograph is of the front of the

house and depicts what appear to be two trees with

lush foliage completely obstructing the view of the

porch from which the defendant was purportedly

observed by Officer Phelan engaging in the two handto-hand exchanges. The second photograph is of the

back of the house and depicts one or more windows
on each story. According to defense counsel, this photograph demonstrates that there was no window through

which Officer Rose could have observed the defendant

running down the back staircase.

The state objected to the admission of these photographs, arguing that, because they had been taken in

October, 2016—approximately fourteen months after

the offenses occurred—they did not ‘‘fairly and accurately represent that location . . . .’’11 In other words,

the state was concerned about the authenticity of the

photographs. See State v. Walker, 180 Conn. App. 291,

326, 183 A.3d 1 (to satisfy authentication requirement,

photograph ‘‘[must] be introduced through a witness

competent to verify it as a fair and accurate representation of what it depicts’’ [emphasis added; internal quotation marks omitted]), cert. granted on other grounds,

328 Conn. 934, 183 A.3d 637 (2018). Specifically, the

state noted its concern about the possibility that, during

this fourteen month period, the condition of the trees

could have changed and the house could have been

remodeled.

As to the photograph of the front of the house,

defense counsel offered to have the defendant testify

that he is familiar with the property at 126–128 Walnut

Street, that the photograph ‘‘accurately reflect[ed] the

way the house and the tree looked’’12 when he took the

photograph, and that ‘‘the way the tree looks in [his]

photograph is substantially similar to the way it looked

in August of 2014.’’13 Defense counsel therefore argued

that the state’s concern regarding this photograph went

to the weight of the evidence, not its admissibility. As

to the photograph of the back of the house, defense

counsel discounted the state’s concern about the possibility of subsequent remodeling, noting that there was

no evidence that any repair work had been done on

the house. Defense counsel, however, made no offer

of proof that such work had not been done or that the

back of the house as depicted in the photograph looked

substantially similar to the way it did at the time of

the offenses.

The court issued its ruling from the bench, stating:

‘‘The court’s concern is in the delay in the time frame

of the photograph[s] and the concern that [these] photograph[s] [were] taken over one year from when the

actual incident allegedly occurred here in this matter.

Based upon that, I’m not considering [these] photograph[s] to be relevant at this time.’’ Later in the proceeding, the court clarified that it had also excluded

the photographs due to (1) the fact that the photographs

were taken in the autumn whereas the offenses

occurred during the summer and (2) the possibility that

there may have been repairs to the property. The court

did, however, permit the defendant to testify as to the

condition of the house and trees at the time of the

offenses.
On appeal, the defendant claims that the trial court

committed evidentiary error and deprived him of his

constitutional right to present a defense by excluding

these two photographs. To resolve this claim we must

determine, ‘‘[f]irst, whether the court’s ruling was

improper. State v. Saunders, 267 Conn. 363, 385, 838

A.2d 186, cert. denied, 541 U.S. 1036, 124 S. Ct. 2113,

158 L. Ed. 2d 722 (2004). Should we answer that question

in the negative, we need go no further. Should we

answer that question in the affirmative, the second question we must answer is whether that impropriety rises

to the level of a constitutional violation. Id. Should we

answer that question in the affirmative as well, the

third question we must answer is whether the state has

demonstrated that the constitutional impropriety was

harmless beyond a reasonable doubt. State v. William

C., 267 Conn. 686, 706, 841 A.2d 1144 (2004). A negative

answer to this third question will warrant a new trial.

E.g., id., 709–10.’’ State v. Tutson, 84 Conn. App. 610,

622, 854 A.2d 794 (2004), rev’d on other grounds, 278

Conn. 715, 899 A.2d 598 (2006). Alternatively, if the

impropriety is not constitutional in nature, the burden

is on the defendant to demonstrate that the evidentiary

error was harmful. State v. William C., supra, 706.

With this framework in mind, we next address each

of the excluded photographs in turn.

A

Beginning with the photograph of the front of the

house, we first must determine whether the trial court’s

ruling was improper. ‘‘We review the trial court’s decision to admit evidence, if premised on a correct view

of the law . . . for an abuse of discretion. . . . It is

axiomatic that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . In

this regard, the trial court is vested with wide discretion

in determining the admissibility of evidence . . . .

Accordingly, [t]he trial court’s ruling on evidentiary

matters will be overturned only upon a showing of a

clear abuse of the court’s discretion. . . . Furthermore, [i]n determining whether there has been an abuse

of discretion, every reasonable presumption should be

made in favor of the correctness of the trial court’s

ruling, and we will upset that ruling only for a manifest

abuse of discretion.’’ (Citation omitted; internal quotation marks omitted.) State v. Smith, 179 Conn. App.

734, 761, 181 A.3d 118, cert. denied, 328 Conn. 927, 182

A.3d 637 (2018).

The evidentiary ruling at issue in the present case

implicates the requirement of authentication.14 ‘‘The

requirement of authentication . . . is satisfied by evidence sufficient to support a finding that the offered

evidence is what its proponent claims it to be.’’ Conn.

Code Evid. § 9-1 (a). This requirement applies to all

types of evidence, including demonstrative evidence
such as photographs. See Conn. Code Evid. § 9-1 (a),

commentary; State v. Papineau, 182 Conn. App. 756,

788, 190 A.3d 913, cert. denied, 330 Conn. 916, 193 A.3d

1212 (2018). In order to satisfy the authentication

requirement of § 9-1 of the Connecticut Code of Evidence, ‘‘[t]he proponent need only advance evidence

sufficient to support a finding that the proffered evidence is what it is claimed to be.’’ (Emphasis added;

internal quotation marks omitted.) Conn. Code Evid.

§ 9-1 (a), commentary. In the case of photographs, ‘‘all

that is required is that [the] photograph be introduced

through a witness competent to verify it as a fair and

accurate representation of what it depicts.’’ (Internal

quotation marks omitted.) State v. Walker, supra, 180

Conn. App. 326.

The defendant argues that his offer to testify to the

appearance of the trees at the front of the property was

sufficient to satisfy the authentication requirement and

that, therefore, the photograph should have been admitted. According to the defendant, ‘‘[t]he fact that there

is conflicting evidence as to the accuracy of [a photograph] does not require [its] exclusion. If the [witness]

for the party offering the [photograph] testif[ies] that

[it is] substantially correct [it] may be admitted, and

[its] correctness then becomes a jury question.’’ In other

words, the defendant appears to argue that, in determining whether the authentication requirement has been

met with respect to photographic evidence, the trial

court’s role is limited to ensuring that sufficient evidence of authenticity has been made and that it may

not pass upon the credibility of such evidence.

The defendant’s argument finds some support in

appellate precedent. Our appellate courts consistently

have described the evidentiary burden that must be met

in order to satisfy the authentication requirement as ‘‘a

prima facie showing of authenticity.’’ See, e.g., State v.

Garcia, 299 Conn. 39, 57, 7 A.3d 355 (2010) (‘‘Both

courts and commentators have noted that the showing

of authenticity is not on a par with the more technical

evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege. . . .

Rather, there need only be a prima facie showing of

authenticity to the court.’’ [Internal quotation marks

omitted.]); State v. Manuel T., 186 Conn. App. 51, 67–68,

198 A.3d 648 (2018) (same), cert. granted, 330 Conn.

968, 200 A.3d 189 (2019). As this court repeatedly has

recognized, ‘‘[t]he phrase prima facie evidence means

evidence which, if credited, is sufficient to establish the

fact or facts which it is adduced to prove.’’ (Emphasis

added; internal quotation marks omitted.) In re Cheyenne A., 59 Conn. App. 151, 158, 756 A.2d 303, cert.

denied, 254 Conn. 940, 761 A.2d 759 (2000). Thus, our

case law appears to suggest that the trial court’s role

in the context of the authentication requirement is to

determine whether the proof of authenticity offered by

the proponent of evidence is sufficient for the trier of
fact to find the evidence authentic—not whether, in

the court’s view, the proof of authenticity is credible.

Indeed, it is well established, albeit in the context of a

motion for a judgment of dismissal under Practice Book

§ 15-8, that a trial court may not pass upon the credibility of the evidence presented in determining whether

a prima facie case has been made. See Sonepar Distribution New England, Inc. v. T & T Electrical Contractors, Inc., 133 Conn. App. 752, 758, 37 A.3d 789 (2012).

The defendant’s contention is further supported by

our rules of evidence. Section 1-3 (a) of the Connecticut

Code of Evidence provides in relevant part that ‘‘[p]reliminary questions concerning . . . the admissibility of

evidence shall be determined by the court.’’ As noted

in the commentary to § 1-3 (a), this rule operates in

conjunction with the rules of evidence governing

authentication: ‘‘The preliminary issue, decided by the

court, is whether the proponent has offered a satisfactory foundation from which the finder of fact could

reasonably determine that the evidence is what it purports to be. The court makes this preliminary determination in light of the authentication requirements of

Article IX [of the Connecticut Code of Evidence]. Once

a prima facie showing of authenticity has been made

to the court, the evidence, if otherwise admissible, goes

to the fact finder, and it is for the fact finder ultimately

to resolve whether evidence submitted for its consideration is what the proponent claims it to be.’’ Conn. Code

Evid. § 1-3 (a), commentary.

Ultimately, however, we need not definitively determine whether the trial court in the present case improperly excluded the photograph of the front of the house.

Even if we assume that the photograph was excluded

improperly, we cannot conclude that such impropriety

rose to the level of a constitutional violation. ‘‘[T]he

federal constitution require[s] that criminal defendants

be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses,

and to compel their attendance, if necessary, [and] is

in plain terms the right to present a defense, the right

to present the defendant’s version of the facts as well

as the prosecution’s to the jury so that it may decide

where the truth lies. . . . When defense evidence is

excluded, such exclusion may give rise to a claim of

denial of the right to present a defense.’’ (Internal quotation marks omitted.) State v. Jackson, 183 Conn. App.

623, 655–56, 193 A.3d 585, cert. granted on other

grounds, 330 Conn. 922, 193 A.3d 1214 (2018).

Whether a trial court’s exclusion of evidence offered

by a criminal defendant deprives him of his constitutional right to present a defense ‘‘is a question that must

be resolved on a case by case basis. . . . The primary

consideration in determining whether a trial court’s

ruling violated a defendant’s right to present a defense
is the centrality of the excluded evidence to the claim

or claims raised by the defendant at trial.’’ (Internal

quotation marks omitted.) State v. Andrews, 313 Conn.

266, 276, 96 A.3d 1199 (2014). Moreover, ‘‘[a] defendant

may not successfully prevail on a claim of a violation

of his right to present a defense if he has failed to take

steps to exercise the right or if he adequately has been

permitted to present the defense by different means.

See State v. Tomas D., 296 Conn. 476, 498, 995 A.2d

583 (2010) (‘a defendant may not successfully establish

a violation of his [right] to present a defense . . . without first taking reasonable steps to exercise [that

right]’), overruled in part on other grounds by State v.

Payne, 303 Conn. 538, 564, 34 A.3d 370 (2012); State v.

Shabazz, 246 Conn. 746, 758 n.7, 719 A.2d 440 (1998)

(no deprivation of constitutional right to present

defense when ‘defendant was adequately permitted to

present his claim of self-defense by way of his own

testimony, by cross-examining the state’s witnesses,

and by the opportunity to present any other relevant

and admissible evidence bearing on that question’), cert.

denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111

(1999).’’ State v. Santana, 313 Conn. 461, 470–71, 97

A.3d 963 (2014).

In the present case, the defendant argues that the

photograph of the front of the house was central to

his arguments regarding misidentification and lack of

possession because it ‘‘would have considerably undercut’’ Officer Phelan’s testimony that he had a sufficiently

good view of the porch to be able to recognize the

suspect as the defendant and to observe him walk into

the house where the drugs were found before engaging

in two hand-to-hand exchanges. The state counters that

the defendant was not deprived of his right to present

his defenses because he was adequately permitted to

present the defenses by different means and there were

additional, alternative avenues that he could have taken

to exercise his right. We agree with the state.

In support of his misidentification argument, the

defendant was able to testify that (1) there are two

berry trees at the front of 126–128 Walnut Street that

block the entire front of the house in July and August,

(2) a person standing at the intersection of Cosset and

Walnut Streets where Phelan had been positioned

would not have been able to see the front porch in

August, 2015, (3) he had not been on the porch of

126–128 Walnut Street on the day in question, (4) he has

been unable to run since being injured in an automobile

accident in 2009, and (5) upon being arrested in February, 2016, he never acknowledged having run away from

the police on the day in question. In addition, defense

counsel was able to elicit during his cross-examination

of Officer Phelan that Phelan had been positioned so

far away from the porch that he had required binoculars

to observe the defendant. Defense counsel also was able

to elicit from Phelan that the person he had observed
on the porch had been wearing a blue tank top, shorts,

and a baseball hat, whereas one of the defendant’s witnesses, Castille Morales, testified that she had been

present in the second floor apartment of 126–128 Walnut Street at the time in question when a man dressed

in a black or blue hoodie and long black pants ran

through the apartment. Morales, who is the grandmother of the defendant’s wife, also testified that the

man who ran through her apartment was taller than

the defendant and that, in the five or six years that she

had known the defendant, she had never seen him

running.

In support of the defendant’s argument that he did

not possess the narcotics, defense counsel was able to

cross-examine Phelan regarding his inability to identify

the items exchanged during the two suspected handto-hand transactions and the fact that police made no

attempt to identify or arrest the two suspected narcotics

buyers. Defense counsel also elicited testimony from

Officer Touponse that he had not seen the suspect

throw anything away as he chased the suspect into the

house. Moreover, the defendant testified that no drugs,

money, or paraphernalia were found on him when he

was arrested.

There also were additional avenues that the defendant could have pursued to support his defenses. He

could have cross-examined Phelan regarding the

appearance of the foliage on the day in question and

cross-examined Angon regarding the basis for his testimony that the photograph of the front of the house

submitted into evidence by the state represented the

appearance of the foliage on the day in question. He

also could have questioned Morales and Carmen

Cruz15—both of whom testified for the defense and

claimed to have lived at 126–128 Walnut Street—regarding the appearance of the foliage.

In sum, we agree with the state that the defendant

was able to adequately present his defenses of misidentification and lack of possession by other means and

had additional, alternative avenues available to him to

further bolster his defenses. Accordingly, we conclude

that the exclusion of the defendant’s photograph of the

front of 126–128 Walnut Street did not deprive him of

his constitutional right to present a defense.

Because the defendant has not established that the

exclusion of the photograph rose to the level of a constitutional violation, the burden is on the defendant to

demonstrate that the alleged evidentiary error was

harmful. See State v. William C., supra, 267 Conn. 706

(‘‘If . . . a constitutional right is implicated [by the

improper exclusion of defense evidence], [t]he state

bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt.

. . . Conversely, if the evidentiary impropriety is not

constitutional in nature, the defendant bears the burden
of demonstrating harm.’’ [Citation omitted; internal quotation marks omitted.]). The defendant has failed to

meet that burden.

‘‘[W]hether [the improper exclusion of defense evidence] is harmless in a particular case depends upon

a number of factors, such as the importance of the

[excluded evidence] in the . . . case, whether the [evidence] was cumulative, the presence or absence of

[other] evidence corroborating or contradicting the

[excluded evidence] on material points . . . and, of

course, the overall strength of the prosecution’s case.

. . . Most importantly, we must examine the impact of

the . . . evidence on the trier of fact and the result of

the trial. . . . [T]he proper standard for determining

whether an erroneous evidentiary ruling is harmless

should be whether the jury’s verdict was substantially

swayed by the error. . . . Accordingly, a nonconstitutional error is harmless when an appellate court has a

fair assurance that the error did not substantially affect

the verdict.’’ (Internal quotation marks omitted.) State

v. Eleck, 314 Conn. 123, 129, 100 A.3d 817 (2014).

The defendant argues that the evidentiary error was

harmful because the state’s case was weak in that it

relied solely on the testimony of police officers that

would have been undermined had the defendant’s photograph of the front of the house been admitted into

evidence. More specifically, the defendant asserts that

the state’s proof of identity and possession depended

primarily on Officer Phelan’s testimony that he had

observed the defendant entering and exiting the house

from the front porch of 126–128 Walnut Street before

engaging in two hand-to-hand transactions, which testimony, according to the defendant, would have been

called into doubt by his excluded photograph.16 We

disagree.

Having reviewed the record in the present case, we

have a fair assurance that any impropriety in excluding

the defendant’s photograph of the front of 126–128 Walnut Street did not substantially affect the verdict in this

case. First, contrary to the defendant’s suggestion, the

state did not rely solely on Officer Phelan’s testimony

to prove identity and possession. As to the issue of

identity, Officer Touponse testified that he had been

familiar with the defendant from prior encounters with

him and had reviewed photographs of the defendant

immediately prior to approaching 126–128 Walnut

Street and that, upon approaching the front of the property, he had observed the defendant on the porch wearing a blue tank top, shorts, and a baseball cap. Officer

Shaban similarly testified that he had been familiar with

the defendant from prior interactions with him and that,

while waiting at the back of the property during the time

in question, he had observed the defendant, dressed in

a blue shirt and baseball cap, attempt to exit the house

from the back door. Shaban also testified that, during
the subsequent search of the building, the residents of

the second floor apartment, Ronnie Morales and Brenda

Rivera, had related to him that the defendant had passed

through their apartment. Moreover, the defendant testified that he often visits family members at 126–128

Walnut Street and will sometimes ‘‘hang out’’ on the

front porch. Indeed, the grandmother of the defendant’s

wife, Castille Morales, confirmed that he hangs out on

the front porch between one to three times a week.

Thus, there was substantial evidence aside from Phelan’s testimony tending to prove the defendant’s identity

as the suspect seen fleeing police at 126–128 Walnut

Street.

On the issue of possession, we first note that, had

the state relied exclusively on the defendant’s temporal

and spatial proximity to the narcotics and Phelan’s

observation of the hand-to-hand exchanges, the exclusion of evidence tending to undermine the accuracy of

Phelan’s observation likely would have had a significant

impact on the jury’s verdict. If such were the case, the

defendant’s reliance on State v. Nova, supra, 161 Conn.

App. 708, would be well taken. See id., 724 (without

evidence of any items changing hands, defendant’s mere

proximity to contraband was insufficient to support

finding of constructive possession). In the present case,

however, the state also presented police testimony

regarding an anonymous telephone call that the Waterbury Police Department had received earlier in the day.

The caller informed the police that the defendant, whom

the caller identified by first and last name, was selling

narcotics from the porch of 126–128 Walnut Street and

had active warrants out for his arrest. The police confirmed the existence of several active felony warrants,

and Officer Touponse confirmed that the defendant was

present on the porch when he and the other officers

approached the front of 126–128 Walnut Street. The

defendant did not object to the admission of this testimony, and, accordingly, the jury was entitled to consider this evidence in conjunction with the other evidence of possession noted in part I of this opinion.

Thus, even without Phelan’s testimony regarding the

two hand-to-hand exchanges, there was compelling evidence of the defendant’s constructive possession of

the narcotics.

We also disagree with the defendant’s contention that

the excluded photograph likely would have significantly

undermined Phelan’s testimony that he had had a clear

view of the porch of 126–128 Walnut Street, as there

was strong evidence corroborating Phelan’s testimony.

In the photograph of the front of the house offered by

the state, which was admitted into evidence by agreement of the parties, the front porch is clearly visible.

In addition, the descriptions of the defendant’s clothing

given by Officers Touponse and Shaban, whose views

of the suspect were unobstructed, matches that given

by Phelan. Moreover, the defendant conceded at trial
that the front porch was not obstructed from every

angle. More specifically, he testified that, whereas one

can see only ‘‘peeks’’ of Walnut Street from the porch,

Catherine Avenue was ‘‘somewhat’’ visible. Given Phelan’s testimony that he had been able to see a car pull

up and park on the corner of Catherine Avenue, the

defendant’s concession that the porch was somewhat

visible from Catherine Avenue tends to support Phelan’s

testimony that he had had a clear view of the porch.

In light of the foregoing circumstances, we are not

persuaded that the exclusion of the photograph of the

front of the house substantially affected the jury’s

verdict.

B

The defendant also claims that the court improperly

excluded the photograph of the back of the house and

thereby deprived him of his ability to present his misidentification defense. We conclude that, because the

defendant failed to authenticate this photograph, the

trial court properly excluded it.

At trial, defense counsel represented to the court that

the defendant was prepared to testify that the front of

the house as depicted in his photograph looks substantially similar to the way it looked at the time of the

offenses. Defense counsel made no similar offer of

proof with respect to the photograph of the back of the

house. The defendant, therefore, failed to make the

prima facie showing required to authenticate the photograph of the back of the house, and, consequently, the

trial court properly excluded it. Because we conclude

that the trial court’s evidentiary ruling was proper, ‘‘we

need go no further.’’ State v. Tutson, supra, 84 Conn.

App. 622.

III

Finally, the defendant claims that the court improperly prevented him from displaying a scar to the jury

and that this deprived him of his constitutional right to

present his misidentification defense. We disagree.

The following additional facts and procedural history

are relevant to this claim. During his case-in-chief, the

defendant testified that he had undergone spinal surgery in 2009 after shattering his spine in an automobile

accident. As summarized in his Waterbury Hospital

medical records, which were admitted into evidence

by agreement, the defendant sustained several vertebral

fractures in the accident. In order to treat an unstable

compression fracture to one of the vertebrae, a posterior spinal fusion was performed. As detailed in the

surgeon’s report, the procedure required ‘‘[a] midline

longitudinal incision . . . from the low thoracic region

down into the lumbar area,’’ which was closed with

staples following the procedure. As to the defendant’s

postsurgical prognosis, the surgeon stated in his report

that he ‘‘would anticipate some long-term aches and
pains’’ but that, ‘‘typically, these types of injuries heal

sufficiently so that people can return to a productive

and active lifestyle.’’ Despite this prognosis, the defendant testified at trial that he was no longer able to run.

The defendant further testified that the surgery had

left him with a scar on his back, whereupon defense

counsel requested the court’s permission for the defendant to display the scar to the jury. The state objected,

arguing that the defendant already had testified regarding his condition and that the scar was irrelevant. The

court sustained the state’s objection on the ground that

demonstrating the scar to the jury would be cumulative,

ruling: ‘‘I think just the defendant’s testimony regarding

the scar itself . . . is sufficient. I don’t think it’s necessary for him to demonstrate that to the jury at this

time . . . .’’

On appeal, the defendant claims that the court

improperly excluded this evidence as cumulative17 and

thereby deprived him of his right to present a defense,

namely, that he was misidentified as the suspect seen

running from the police at 126–128 Walnut Street. As

explained in part II of this opinion, such a claim requires

us to first determine the propriety of the court’s ruling.

See State v. Tutson, supra, 84 Conn. App. 622. On this

point, the defendant argues, in relevant part, that demonstration of his scar would not have been cumulative

because, ‘‘although [he] was able to admit his medical

records into evidence, these records did not describe

the current condition of his back.’’18 We are not persuaded, and, accordingly, ‘‘we need go no further’’ in

addressing the defendant’s claim. State v. Tutson, supra,

84 Conn. App. 622.

‘‘Evidence may be precluded if its probative value is

outweighed by the ‘needless presentation of cumulative

evidence.’ Conn. Code Evid. § 4-3. Evidence is cumulative if it multiplies witnesses or documentary matter to

any one or more facts that were the subject of previous

proof. . . . The court’s power in that area is discretionary. . . . In precluding evidence solely because it is

cumulative, however, the court should exercise care to

avoid precluding evidence merely because of an overlap

with the evidence previously admitted.’’ (Citations omitted.) Glaser v. Pullman & Comley, LLC, 88 Conn. App.

615, 627, 871 A.2d 392 (2005). Nevertheless, ‘‘[b]ecause

of the difficulties inherent in this balancing process,

the trial court’s decision will be reversed only whe[n]

abuse of discretion is manifest or whe[n] an injustice

appears to have been done. . . . On review by this

court, therefore, every reasonable presumption should

be given in favor of the trial court’s ruling.’’ (Internal

quotation marks omitted.) State v. Morquecho, 138

Conn. App. 841, 853–54, 54 A.3d 609, cert. denied, 307

Conn. 941, 56 A.3d 948 (2012); see State v. Gutierrez,

132 Conn. App. 233, 237, 31 A.3d 412 (2011) (‘‘[t]he

trial court is vested with wide and liberal discretion in
determining the admissibility of evidence claimed to be

repetitious, remote or irrelevant’’ [internal quotation

marks omitted]).

In the present case, the defendant’s medical records

established that the spinal surgery he underwent had

required an incision that had to be stapled closed after

the surgery. As the defendant notes, the medical records

do not disclose ‘‘the current condition of his back.’’

Nevertheless, the jury reasonably could have inferred

from this evidence that the surgery left a scar on the

defendant’s back; it is a matter of common knowledge

that surgical incisions generally leave permanent scars.

At any rate, the jury in this instance had no need to rely

solely on inferences—the defendant explicitly testified

that, as a result of the spinal surgery, he now has a scar

on his back. The state did not contest this aspect of

the defendant’s testimony, and, therefore, the trial court

found it unnecessary to have the defendant demonstrate

the scar to the jury. Under these circumstances, we

cannot conclude that it was an abuse of discretion for

the court to exclude the demonstration as needlessly

cumulative. See State v. Book, 155 Conn. App. 560, 574,

109 A.3d 1027 (notice of appeal form offered by defendant was properly excluded on ground that it represented needless presentation of cumulative evidence

where he ‘‘had already testified that he had appealed

from the prior convictions, and the court found it unnecessary to admit the notice of appeal form’’), cert. denied,

318 Conn. 901, 122 A.3d 632 (2015), cert. denied,

U.S. , 136 S. Ct. 2029, 195 L. Ed. 2d 219 (2016).

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also was convicted of interfering with an officer in violation of General Statutes § 53a-167a. He does not challenge this conviction

on appeal.

2 As relief under this claim, the defendant seeks reversal of his conviction

and a judgment of acquittal on the narcotics related charges and the charge

of possession of drug paraphernalia. The defendant, however, does not

separately analyze the question of sufficiency of the evidence of possession

of drug paraphernalia. Accordingly, neither do we.

3 The house is located on the northeast corner of the intersection of

Catherine Avenue and Walnut Street.

4 At the top of the staircase, a hallway extending to the right leads to the

front door of the second floor apartment. From this point, the hallway

extends to the right parallel to the first stairwell and leads to a stairway to

the third floor.

5 The record does not identity Officer Rose’s first name.

6 The defendant moved for a judgment of acquittal after the state’s casein-chief and again upon the conclusion of all of the evidence. The court

denied both motions.

7 The defendant was sentenced to a total effective sentence of twenty

years of incarceration, execution suspended after ten years, eight years of

which are mandatory, followed by five years of probation.

8 The evidence supporting such an inference is as follows. The police

recovered 171 bags of heroin and a digital scale from the second floor

landing at 126–128 Walnut Street. The heroin was packaged in bundles of

ten glassine packets, tied with rubber bands, and packed in rice. According

to Officer Gary Angon, an expert on heroin sales, heroin sellers typically

possess the drug in quantities larger than that usually possessed by an

individual user—often in conjunction with a scale—and typically package

the drug in individual bags or ten bag bundles tied by rubber bands. Angon
also testified that sellers typically use substances like rice to protect the

drugs from being ruined by moisture. In Angon’s expert opinion, someone

in possession of 171 bags of heroin is likely a dealer.

9 The defendant further argues that no inference of consciousness of guilt

was warranted in the present case because, rather than run away from the

contraband when the police approached, he ran toward it. See State v.

Bischoff, supra, 182 Conn. App. 573 (‘‘[t]he defendant’s act of running away

upon the officers’ entry reasonably could have been found to support an

inference of consciousness of guilt, suggesting that the defendant knew of

the presence and character of the narcotics on the nearby TV stand and

sought to distance himself from them’’ [emphasis added]). We are not persuaded. The jury reasonably could have determined that, given the defendant’s position on the front porch when the police approached him, his only

viable path away from the scene of the crime was through the house.

Consequently, the fact that this path led past evidence of the crime does

not render unreasonable an inference of consciousness of guilt.

10 ‘‘A defendant’s right to present a defense is rooted in the compulsory

process and confrontation clauses of the sixth amendment . . . [which]

are made applicable to state prosecutions through the due process clause

of the fourteenth amendment.’’ (Internal quotation marks omitted.) State v.

Andrews, 313 Conn. 266, 272 n.3, 96 A.3d 1199 (2014). The sixth amendment

to the United States constitution provides in relevant part: ‘‘In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him; [and] to have compulsory process for obtaining

witnesses in his favor . . . .’’

11 With respect to the photograph of the front of the house in particular,

the state noted that the defendant’s photograph was ‘‘a complete[ly] different

photograph from the Google Earth map of August, 2015, when this incident

occurred’’ and argued that its prejudicial effect, therefore, outweighed its

probative value.

12 It is unclear from the transcript which tree defense counsel was referring to.

13 Presumably, defense counsel meant August, 2015, the date of the

offenses.

14 The basis for the state’s objection to the admission of the photographs

was the lack of authentication. The court, in excluding the evidence, echoed

the substance of the state’s objection but couched its ruling in terms of

relevancy. ‘‘Authentication and identification are aspects of relevancy that

are a condition precedent to admissibility.’’ (Emphasis added; internal quotation marks omitted.) State v. Morales, 78 Conn. App. 25, 47–48, 826 A.2d

217, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003); see E. Prescott, Tait’s

Handbook of Connecticut Evidence (6th Ed. 2019) § 9.1.2 (‘‘[t]o be relevant,

all items of evidence offered as exhibits must be authenticated’’). Accordingly, we construe the trial court’s ruling as being based in the requirement

of authentication more specifically.

15 Cruz testified that she is the defendant’s aunt and lives in the first floor

apartment at 126–128 Walnut Street.

16 The defendant appears to totally discount the testimony of Officers

Touponse and Shaban identifying the suspect as the defendant because,

according to the defendant, these officers ‘‘saw the suspect for mere seconds,

as he ran.’’

17 The defendant also claims that his scar was relevant demonstrative

evidence and that, therefore, it was improper for the court to exclude it.

The court, however, did not exclude the evidence on the basis of relevancy;

the court excluded it on the ground that it was cumulative. Consequently,

we need not determine whether such evidence was relevant. Our review is

limited to determining whether the court properly excluded the evidence

of the scar as cumulative.

18 The defendant also claims that demonstration of his scar would not

have been cumulative of his trial testimony because the prosecutor, during

cross-examination, ‘‘continuously, and incorrectly, discounted the seriousness of the defendant’s injuries.’’ This claim is unreviewable. The defendant sought to demonstrate his scar to the jury during direct examination,

and the court ruled on the admissibility of the proposed demonstration

on the basis of the facts and circumstances then existing. Following the

prosecutor’s cross-examination, the defendant did not ask the court to reconsider its prior ruling. Thus, the defendant’s claim, that the prosecutor’s line

of questioning during cross-examination somehow rendered demonstration

of his scar no longer cumulative, was never presented to the court. ‘‘Our

rules of practice require a party, as a prerequisite to appellate review, to
distinctly raise its claim before the trial court. See Practice Book § 5-2 (‘[a]ny

party intending to raise any question of law which may be the subject of

an appeal must . . . state the question distinctly to the judicial authority’);

Practice Book § 60-5 (‘[t]he [reviewing] court shall not be bound to consider

a claim unless it was distinctly raised at trial or arose subsequent to trial’).

For that reason, we repeatedly have held that ‘we will not decide an issue

that was not presented to the trial court. To review claims articulated for

the first time on appeal and not raised before the trial court would be

nothing more than a trial by ambuscade of the trial judge.’ ’’ Samuel v.

Hartford, 154 Conn. App. 138, 145–46, 105 A.3d 333 (2014). We, therefore,

decline to consider the defendant’s claim.