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*********************************************** 
STATE v. RHODES—CONCURRENCE AND DISSENT

ECKER, J., with whom PALMER and McDONALD,

Js., join, concurring in part and dissenting in part. I

respectfully dissent from part I of the majority opinion

because I do not believe that the evidence was sufficient

to support the conviction of the defendant, Amelia

Rhodes, of criminal possession of a firearm in violation

of General Statutes (Rev. to 2013) § 53a-217 (a). I concur

in part II of the majority opinion, in which the majority

upholds the defendant’s conviction of having a weapon

in a motor vehicle in violation of General Statutes (Rev.

to 2013) § 29-38 (a), but on different grounds than those

relied on by the majority.

I

A

In no conventional sense of the word did the defendant ‘‘possess’’ the firearm carried by her friend and

passenger, Lamar Spann, on the afternoon of August 17,

2013.1 She did not own it and had no legally cognizable

possessory interest in it. She never was in actual physical possession of the firearm; she never physically held

it or touched it, even for a moment, and the state never

claimed otherwise. Likewise, the jury was presented

with no evidence that the defendant herself at any time

had the practical ability to obtain actual physical possession of the firearm. Nor was there any evidence that

she occupied a position of authority over Spann that

would have allowed her to direct him to use the firearm

at her command. No evidence was presented that Spann

previously had permitted the defendant to use his firearm or would have done so on this occasion upon

request. Finally, there was not a shred of evidence at

trial that the defendant intended to exercise control

over the firearm itself, as opposed to the car in which

it was located. Reversal of the defendant’s conviction

of criminal possession of a firearm is required under

these circumstances because these significant evidentiary gaps cannot be filled in without resort to impermissible speculation and surmise.

As in many appeals challenging the sufficiency of the

evidence supporting a criminal conviction, resolution

of the defendant’s claim requires us to determine the

point at which permissible inference becomes impermissible speculation. I agree with the majority that

where to draw this line in any particular case ultimately

is a matter of judgment. I further agree that a reviewing

court undertaking the task of line drawing must exercise maximum restraint and exhibit great deference to

the jury’s verdict due to the jury’s vital, constitutional

role in our system of justice; the majority rightly

reminds us that we do not sit as a seventh juror. See

State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).
But there is more to the picture, because the same

constitution also imposes limitations on the jury’s

power to convict an accused in a criminal case—there

are other constitutional values at stake in addition to the

jury right. In particular, a reviewing court is obligated

to ensure that a criminal conviction is supported by

evidence sufficient to find a defendant guilty of the

crime charged beyond a reasonable doubt. See, e.g., In

re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d

368 (1970); see also J. Newman, ‘‘Beyond ‘Reasonable

Doubt,’ ’’ 68 N.Y.U. L. Rev. 979, 980 (1993) (encouraging

appellate courts ‘‘to take the [reasonable doubt] standard seriously as a rule of law against which the validity

of convictions is to be judged’’). In my judgment, the

evidence in the present case fails to meet that high

standard.

The rules governing appellate review in this context

are well established. ‘‘The two part test this court

applies in reviewing the sufficiency of the evidence

supporting a criminal conviction is well established.

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.’’

(Footnote omitted; internal quotation marks omitted.)

State v. Lewis, 303 Conn. 760, 767, 36 A.3d 670 (2012).

‘‘In evaluating evidence that could yield contrary inferences, the trier of fact is not required to accept as

dispositive those inferences that are consistent with

the defendant’s innocence. . . . The trier [of fact] may

draw whatever inferences from the evidence or facts

established by the evidence it deems to be reasonable

and logical.’’ (Internal quotation marks omitted.) State

v. Drupals, 306 Conn. 149, 158, 49 A.3d 962 (2012).

However, ‘‘[b]ecause [t]he only kind of an inference

recognized by the law is a reasonable one . . . any

such inference cannot be based on possibilities, surmise

or conjecture. . . . It is axiomatic, therefore, that [a]ny

[inference] drawn must be rational and founded upon

the evidence. . . . [T]he line between permissible

inference and impermissible speculation is not always

easy to discern. When we infer, we derive a conclusion

from proven facts because such considerations as experience, or history, or science have demonstrated that

there is a likely correlation between those facts and the

conclusion. If that correlation is sufficiently compelling,

the inference is reasonable. But if the correlation

between the facts and the conclusion is slight, or if a

different conclusion is more closely correlated with the

facts than the chosen conclusion, the inference is less

reasonable. At some point, the link between the facts

and the conclusion becomes so tenuous that we call it

speculation.’’ (Internal quotation marks omitted.) State

v. Lewis, supra, 768–69.
No objective formula or uniform template tells us

how to distinguish reasonable inference from impermissible speculation. It should be clear, however, that our

appellate review may not rely on speculative guesswork

any more than may the jury’s verdict. This is not an

exercise in appellate storytelling. Yet, I fear that the

majority’s effort to conjure a basis for the jury’s verdict

at times propels the majority into the realm of speculation, as when the majority pictures the jurors rolling

their eyes or splitting their sides in laughter. See footnote 22 of the majority opinion and accompanying text.

There are limitations on the inferences that may be

drawn from the evidence. One such limitation is the

requirement that an inference be reasonable, which

means that it must be more than merely possible—it

must be probable. This court has explained that ‘‘[a]n

inference is not legally supportable . . . merely

because the scenario that it contemplates is remotely

possible under the facts. To permit such a standard

would be to sanction fact-finding predicated on mere

conjecture or guesswork. Proof by inference is sufficient, rather, only if the evidence produces in the mind

of the trier [of fact] a reasonable belief in the probability of the existence of the material fact.’’ (Emphasis

in original; internal quotation marks omitted.) State v.

Reynolds, 264 Conn. 1, 97, 836 A.2d 224 (2003), cert.

denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254

(2004); see also State v. Copas, 252 Conn. 318, 339–40,

746 A.2d 761 (2000) (although ‘‘[p]roof of a material

fact by inference from circumstantial evidence need

not be so conclusive as to exclude every other hypothesis,’’ it must be sufficient to produce ‘‘in the mind of

the trier [of fact] a reasonable belief in the probability

of the existence of the material fact’’ (internal quotation

marks omitted)). Anything less is mere ‘‘speculation

and conjecture,’’ which is ‘‘insufficient to sustain the

burden of proof beyond a reasonable doubt . . . .’’

(Internal quotation marks omitted.) State v. Sivri, 231

Conn. 115, 131–32, 646 A.2d 169 (1994).

The point is an important one because it operates to

prevent the dilution of a constitutional standard. The

constitution does not require that the subordinate facts

each be proven beyond a reasonable doubt, but it still

forbids criminal convictions to be based on guesswork;

a reviewing court will draw the line at verdicts resting

on merely possible factual scenarios as opposed to

probable ones. This key distinction explains why the

majority misses the point when it suggests that this

concurring and dissenting opinion reaches its conclusions by substituting its own ‘‘alternative explanations’’

and by preferring more ‘‘benign’’ and ‘‘innocent’’ interpretations of the evidence than those offered by the

majority. The alternatives are provided to demonstrate

the speculative nature of the inferences posited by the

majority. The analysis, in other words, is intended to

demand that the critical inculpatory inferences neces-
sary to reach a guilty verdict in this case were not

conjectural on this factual record.

Although the majority correctly points out that ‘‘[w]e

do not sit as the ‘seventh juror’ when we review the

sufficiency of the evidence’’; State v. Ford, supra, 230

Conn. 693; we also may not abdicate our constitutional

responsibility to ensure that a criminal conviction is

supported by sufficient evidence to find the defendant

guilty beyond a reasonable doubt. Our sufficiency

review ‘‘is not entirely toothless . . . for [w]e do not

. . . fulfill our duty through rote incantation of [the

principles governing a review of sufficiency of evidence] followed by summary affirmance.’’ (Citation

omitted; internal quotation marks omitted.) United

States v. Salamanca, 990 F.2d 629, 638 (D.C. Cir.), cert.

denied, 510 U.S. 928, 114 S. Ct. 337, 126 L. Ed. 2d 281

(1993). Although ‘‘[a] jury is entitled to draw a vast

range of reasonable inferences from [the] evidence, [it]

may not base a verdict on mere speculation’’; (internal

quotation marks omitted) id.; ‘‘and caution must be

taken that the conviction not be obtained by piling

inference on inference.’’ (Internal quotation marks

omitted.) United States v. Jones, 44 F.3d 860, 865 (10th

Cir. 1995).

B

I now turn to the law of constructive possession.2

Constructive possession is a ‘‘legal fiction . . . .’’

(Internal quotation marks omitted.) United States v.

Jones, 872 F.3d 483, 489 (7th Cir. 2017), cert. denied,

U.S. , 138 S. Ct. 936, 200 L. Ed. 2d 211 (2018),

and cert. denied, U.S. , 138 S. Ct. 1023, 200 L.

Ed. 2d 283 (2018); see id. (‘‘[c]onstructive possession

is a legal fiction whereby a person is deemed to possess

[a gun] even when he does not actually have immediate,

physical control of the [gun]’’ (internal quotation marks

omitted)); State v. Williams, 110 Conn. App. 778, 787,

956 A.2d 1176 (describing ‘‘the legal fiction of constructive possession that can be inferred from the circumstances and can be the equivalent of actual possession’’), cert. denied, 289 Conn. 957, 961 A.2d 424 (2008).

The doctrine of constructive possession was devised

to prevent individuals from evading culpability simply

by divesting themselves of physical possession of, or

title to, contraband while nonetheless maintaining

dominion or control over the contraband in fact. See,

e.g., Henderson v. United States, 575 U.S. 622, 627, 135

S. Ct. 1780, 191 L. Ed. 2d 874 (2015) (‘‘[t]he idea of

constructive possession is designed to preclude’’ individuals from divesting themselves of physical custody

and title by ‘‘arranging a sham transfer that leaves

[them] in effective control of [the contraband]’’); United

States v. Bentvena, 319 F.2d 916, 950 (2d Cir.) (‘‘Quite

frequently, the ringleaders or overlords of the narcotics

business do not stultify themselves by possession when

handlers can be so cheaply hired. Therefore, in an effort
to bring a modicum of reality into the picture,’’ the

courts created the doctrine of constructive possession.), cert. denied sub nom. Ormento v. United States,

375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963). The

doctrine ‘‘allow[s] the law to reach beyond puppets to

puppeteers.’’ (Internal quotation marks omitted.) Henderson v. United States, supra, 627.

At a conceptual level, the need for the doctrine of

constructive possession arises from an ambiguity in

the operative word, ‘‘possession.’’3 The ambiguity stems

from the fact that ‘‘to possess’’ connotes a direct physical relationship between the possessor and the item at

issue, at least when used in reference to tangible things;

to possess a thing is to have and hold it. See, e.g.,

Webster’s Third New International Dictionary (1961) p.

1770 (defining ‘‘possess’’ as, inter alia, ‘‘to have and

hold as property’’).4

It is this physical aspect of possession that created the need to develop a doctrine of

‘‘constructive’’ possession in the law, because the word

must extend beyond a purely physical meaning to serve

a useful role in structuring legal relations. Otherwise,

‘‘one could only possess what was under his hand.’’ O.

Holmes, The Common Law (1881) p. 236.

Jurists have long recognized that the modifier ‘‘constructive’’ must not be allowed to overwhelm the inherent limitation contained in the operative word, ‘‘possession.’’ Judge Edward A. Tamm wrote the following

cautionary words on this subject almost fifty years ago:

‘‘The rhetorical legerdemain compounded in this area

of the law invokes abstractions which appear more

designed to achieve a particular result in an individual

case than to stabilize and formalize a workable index

of objective standards. The more cases one reads on

constructive possession the deeper is he plunged into

a thicket of subjectivity. Successive cases enumerate a

continuing [reinterpretation] which can only be

described as judicial whimsy.’’ United States v. Holland,

445 F.2d 701, 703 (D.C. Cir. 1971) (Tamm, J., concurring); cf. Berkey v. Third Avenue Railway Co., 244 N.Y.

84, 94, 155 N.E. 58 (1926) (Cardozo, J.) (‘‘[m]etaphors

in law are to be narrowly watched, for starting as

devices to liberate thought, they end often by enslaving

it’’). The majority’s treatment of constructive possession in the present case, in my view, fails to adequately

police the outer boundaries of the doctrine and, in doing

so, fails to ensure that criminal laws of uncertain scope

are interpreted and applied narrowly rather than expansively. See, e.g., State v. LaFleur, 307 Conn. 115, 126, 51

A.3d 1048 (2012) (‘‘[w]hen the statute being construed

is a criminal statute, it must be construed strictly against

the state and in favor of the accused’’ (internal quotation

marks omitted)).

Because the very concept of constructive possession

is an abstraction, virtually every jurisdiction, including

Connecticut, has found it necessary to develop doc-
trinal aids to help facilitate its application to the facts

of any particular case. We begin with our penal code,

which provides that ‘‘ ‘[p]ossess’ means to have physical

possession or otherwise to exercise dominion or control over tangible property . . . .’’ (Emphasis added.)

General Statutes § 53a-3 (2). Courts have added a judicial gloss to the statutory ‘‘dominion or control’’ language because those words,5

like the word possession

itself, are too broad to illuminate the nature and degree

of control that equates to actual physical possession.

Some of these judicial refinements are more useful than

others. I see no value at all in borrowing, as the majority

does, from the formulation articulated in 1978 by the

United States Court of Appeals for the District Columbia, which asks if the evidence has the ‘‘capability plausibly to suggest the likelihood that in some discernable

fashion the accused had a substantial voice vis-a`-vis

the [contraband].’’ United States v. Staten, 581 F.2d

878, 884 (D.C. Cir. 1978). It is likewise unhelpful, in my

view, to ask whether the defendant has the ‘‘power or

authority to guide or manage’’ the contraband. (Internal

quotation marks omitted.) State v. Hill, 201 Conn. 505,

516, 523 A.2d 1252 (1986). These standards are fine as

generic statements describing the doctrine, but they

add no practical value because they do little more than

substitute one vague term for another and because they

fail to provide useful guidance for determining the

nature and degree of control, dominion, power or

authority that will be considered sufficient to equate

to actual physical possession.

Far greater assistance is provided by the simple principle that was invoked by the prosecutor, the defense,

and the trial court in the present case to define the

essence of constructive possession. The majority

describes the consensus in this way: ‘‘In addressing the

jury, the prosecutor, defense counsel, and the trial court

all referred to [constructive possession] as the practical

ability of the defendant to ‘go and get’ the gun [if she

wished to do so], or the practical ability to obtain actual

physical possession of it.’’ Constructive possession, in

other words, means that the defendant had both the

intention and the practical ability to reduce the contraband to her actual physical possession if she so desired.6

See, e.g., Henderson v. United States, supra, 575 U.S.

630 (defining constructive possession under federal

felon in possession statute, 18 U.S.C. § 922 (g), as ‘‘hav[-

ing] the ability to use or direct the use of [the] firearms’’); United States v. Chauncey, 420 F.3d 864, 873

(8th Cir. 2005) (‘‘[t]he linchpin of the ownership, dominion, or control required for constructive possession is

not direct, physical control, but the ability to reduce an

object to actual possession’’ (internal quotation marks

omitted)), cert. denied, 547 U.S. 1009, 126 S. Ct. 1480,

164 L. Ed. 2d 258 (2006); United States v. Jenkins, 90

F.3d 814, 822 (3d Cir. 1996) (Cowen, J., dissenting) (‘‘the

terms dominion and control are to be interpreted as
the ability to reduce an object to actual possession’’

(internal quotation marks omitted)); United States v.

Caballero, 712 F.2d 126, 129 (5th Cir. 1983) (‘‘[i]n

essence, constructive possession is the ability to reduce

an object to actual possession’’ (internal quotation

marks omitted)); State v. Richards, 286 S.W.3d 873,

884–85 (Tenn. 2009) (Koch, J., dissenting) (defining constructive possession as ‘‘the ability to reduce an object

to actual possession’’ (internal quotation marks omitted)); State v. Jones, 146 Wn. 2d 328, 333, 45 P.3d 1062

(2002) (‘‘A defendant has actual possession when he or

she has physical custody of the item and constructive

possession if he or she has dominion and control over

the item. . . . Dominion and control means that the

object may be reduced to actual possession immediately.’’ (Citation omitted.)); cf. Bulkley v. Dolbeare, 7

Conn. 232, 234–35 (1828) (to have constructive possession of property, ‘‘a plaintiff must have such a right as

to be entitled to reduce the goods to actual possession,

when he pleases’’ (internal quotation marks omitted)).

Our constructive possession jurisprudence provides

additional guidance when, as in the present case, the

state’s case is not predicated on a claim of exclusive

possession of the contraband but, instead, on the theory

that the defendant and another person were in joint

possession of the contraband. See footnote 1 of this

opinion. ‘‘[When] the defendant is not in exclusive possession of the premises where the [contraband is]

found, it may not be inferred that [the defendant] knew

of the presence of the [contraband] 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. Johnson,

316 Conn. 45, 58, 111 A.3d 436 (2015). ‘‘Accordingly,

[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).

‘‘In such cases, the government is required to present

direct or circumstantial evidence to show some connection or nexus individually linking the defendant to the

contraband.’’ (Internal quotation marks omitted.) State

v. Johnson, supra, 62. Furthermore, there must be ‘‘a

compelling correlation between the actions of a defendant prior to arrest and the conclusion of dominion and

control’’ in order for a reviewing court to ‘‘find that the

jury’s conclusion was a reasonable inference.’’ State v.

Billie, 123 Conn. App. 690, 701, 2 A.3d 1034 (2010).

C

The remaining task is to apply the foregoing legal

principles to determine whether the evidence of constructive possession was sufficient to support the jury’s
verdict. I agree with the majority that, after the shooting,

the evidence plainly was sufficient to support a reasonable inference that the defendant knew that Spann was

in actual physical possession of a firearm. As I have

discussed, however, driving a car with the knowledge

that a passenger is in actual physical possession of a

firearm is not enough to support an inference of constructive possession; the state must adduce evidence

‘‘individually linking’’ the defendant to the passenger’s

firearm. (Emphasis added; internal quotation marks

omitted.) State v. Johnson, supra, 316 Conn. 62. The

majority believes that ‘‘four circumstances’’ provided

the crucial link between the defendant and Spann’s

firearm: (1) her control of the car; (2) her flight from

the police; (3) her relationship with Spann; and (4) her

physical access to Spann’s firearm. I address each of

these circumstances in turn and conclude, for the reasons that follow, that they are insufficient, both individually and collectively, to sustain the defendant’s conviction.

First, as the majority acknowledges, when the defendant is not in exclusive possession of the residence or

vehicle in which the contraband is found,7 mere proximity to the contraband and knowledge of its presence

are ‘‘not enough to establish constructive possession.’’

(Internal quotation marks omitted.) Id. ‘‘The driver of a

vehicle can transport passengers and their possessions

without’’ being in constructive possession of ‘‘every

object in the vehicle.’’ Flores-Abarca v. Barr, 937 F.3d

473, 483 (5th Cir. 2019); see also State v. Foster, 128

Haw. 18, 30, 282 P.3d 560 (2012) (holding that evidence

was insufficient to support defendant driver’s conviction of being felon in possession of firearm, even though

he knew his passenger was in actual physical possession of firearm, because control over car ‘‘is not by

itself enough to establish constructive possession of

contraband found there’’ (internal quotation marks

omitted)). The United States Court of Appeals for the

Fifth Circuit has aptly observed that dominion and control ‘‘over the vehicle . . . alone cannot establish constructive possession of a weapon found in the vehicle,

particularly in the face of evidence that strongly suggests that somebody else exercised dominion and control over the weapon. . . . Although knowledge of a

firearm’s presence may be evidence of possession,

knowing transportation does not conclusively establish

constructive possession as a matter of law.’’ (Citations

omitted; emphasis in original; internal quotation marks

omitted.) Flores-Abarca v. Barr, supra, 483.

The majority states that there are ‘‘additional circumstances under which the defendant operated the vehicle’’ in the present case that ‘‘buttressed an inference

of an intent to control the gun contained within the

vehicle . . . .’’ Footnote 13 of the majority opinion.

According to the majority, these additional circumstances include ‘‘that she drove the vehicle to the place
where Spann discharged the gun’’ and that she ‘‘waited

for him to get back in the vehicle with the gun after

the shooting, notwithstanding that she was a felon

. . . .’’8

Id. The flaw in the majority’s reasoning is that

these particular facts have no probative value, unless

one assumes that the defendant was Spann’s knowing

accomplice to a premeditated crime using Spann’s firearm, which, as I discuss later in this opinion, is a theory

that the jury affirmatively rejected by acquitting the

defendant of the crime of attempt to commit assault in

the first degree in violation of General Statutes §§ 53a59 (a) (1) and 53a-49 (a) (2). There is no evidence that

the defendant even knew about Spann’s firearm, much

less that he intended to use it, until the moment the

shooting occurred. By all accounts, Spann was back in

the vehicle within a matter of seconds thereafter. In

my view, it is speculative and, therefore, unreasonable

to conclude that the defendant’s operation of a motor

vehicle under these factual circumstances was indicative of an intent to exercise control over Spann’s firearm, as opposed to the vehicle in which Spann carried

his firearm.

Simply put, the state failed to adduce any evidence

linking the defendant to either Spann’s firearm or any

related criminality at any time prior to the shooting.

There was no evidence, for example, that the defendant

was involved in Spann’s drug dealing enterprise. There

were no drugs, drug packaging materials or significant

amounts of cash found on the defendant’s person or

recovered from the interior of the vehicle. The state

offered no evidence of any historical connection

between the defendant and Spann’s drug dealing. Likewise, there was no forensic evidence, such as fingerprint, DNA or ballistic evidence, individually linking the

defendant to Spann’s firearm, there was not any direct

or circumstantial evidence indicating that the defendant

had handled Spann’s firearm that day or on any prior

occasion, and there was no evidence that the defendant

requested access to the firearm, reached out for the

firearm, or leaned across the front seat in an effort to

acquire the firearm from Spann. Nor was there any

evidence indicating that Spann would have been willing

to surrender physical possession of the firearm to the

defendant upon request. The state, moreover, was

unable to fill in these gaps using any inculpatory statements made by Spann or the defendant to the police

regarding the defendant’s possession of the firearm or

participation in the shooting. This case, in other words,

is devoid of the type of evidence that the courts of this

state have found sufficient to link a defendant individually to contraband in nonexclusive possession cases.

Cf. State v. Winfrey, 302 Conn. 195, 210–13, 24 A.3d

1218 (2011) (evidence was sufficient to establish that

defendant driver knew of and exercised dominion and

control over drugs found in center console of vehicle

registered to defendant’s wife when, following stop for
motor vehicle violation, defendant was seen dropping

and swallowing package of suspected heroin to escape

criminal liability and had more than $550 in cash and

rolling papers on his person at time of arrest); State v.

Butler, 296 Conn. 62, 79, 993 A.2d 970 (2010) (evidence

was sufficient to support inference that defendant

driver possessed narcotics found in console of vehicle

because defendant’s ‘‘manipulation of the console

within which the narcotics were discovered, presumably to conceal that contraband, buttressed the jury’s

inference that the defendant knew about the narcotics

and had control over them,’’ and ‘‘there was significant

evidence from which it was reasonable for the jury to

infer that the defendant was a narcotics dealer’’); State

v. Bowens, supra, 118 Conn. App. 123–26 (evidence

was sufficient to support defendant driver’s criminal

possession of firearm conviction because, in addition

to fleeing from police, heroin and marijuana were found

in car, defendant was in possession of $1293 in cash,

shell casing found in car matched bullet from firearm

recovered by police, and defendant had personal motive

to carry firearm because he had been involved in shooting earlier that day); State v. Sanchez, 75 Conn. App.

223, 237–42, 815 A.2d 242 (evidence was sufficient to

support inference that defendant driver had constructive possession of drugs because defendant was seen

smoking marijuana filled cigar, officers smelled marijuana, defendant fled police while discarding cigar, and

narcotics were found in plain view in open ashtray),

cert. denied, 263 Conn. 914, 821 A.2d 769 (2003); State

v. Grant, 51 Conn. App. 824, 829, 725 A.2d 367 (evidence

was sufficient to support inference of constructive possession because ‘‘[t]wo experienced detectives familiar

with the defendant identified him as the driver of the

car and observed him receive money from a female and

give her an item from a paper bag in a high drug traffic

area,’’ defendant ‘‘fled in his car when [a police officer]

ordered him to shut off his engine,’’ and defendant was

observed ‘‘throw[ing] the paper bag from his car’’), cert.

denied, 248 Conn. 916, 734 A.2d 568 (1999). But cf. State

v. Cruz, 28 Conn. App. 575, 580–81, 611 A.2d 457 (1992)

(reversing defendant driver’s conviction for possession

of marijuana and possession of drug paraphernalia

because defendant did not own vehicle in which marijuana seed and rolling papers were found, defendant’s

statement about past marijuana use was ‘‘minimally

probative of the issue of dominion and control of the

seed,’’ and ‘‘[t]he evidence . . . equally supported a

conclusion that the defendant was unaware of the presence of either the seed or the rolling papers and did

not exercise dominion and control over them’’).9

This brings us to what I consider the heart of the

case. The majority attributes great significance to the

fact that the defendant ‘‘drove the vehicle 1.2 miles

while being chased by the police in an effort to evade

arrest’’ and considers this evasive conduct to be the
second circumstance supporting the inference that the

defendant was in constructive possession of Spann’s

firearm. Footnote 13 of the majority opinion. More specifically, the majority concludes that the defendant’s

flight from the police (1) supported a reasonable inference that she drove the car with an intent to control

the firearm itself in order to prevent the police from

seizing the firearm after the shooting, and (2) revealed

the defendant’s consciousness of guilt with respect to

the possession charge. I disagree. The issue is not

whether the defendant’s flight was criminal in nature

or whether it may have been punishable under some

other provision of the penal law, such as having a

weapon in a motor vehicle in violation of § 29-38 (a).

See part II of this opinion. More narrowly still, the

issue is not whether the defendant’s flight is evidence

connecting her to the shooting committed by Spann or

whether it reflects a guilty mind with regard to the

shooting. Rather, the one issue that matters on appeal is

whether the defendant’s conduct supports a reasonable

inference that she likely was fleeing the scene—not

merely to avoid capture, and not merely to avoid her

friend being arrested—with the intention to exercise

dominion or control over Spann’s firearm. On this

record, I consider such a conclusion wholly speculative.

‘‘[T]he probative value of evidence of flight is, in large

part, dependent upon facts pointing to the motive [that]

prompted it.’’ State v. Piskorski, 177 Conn. 677, 723,

419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283,

62 L. Ed. 2d 194 (1979). ‘‘We repeatedly have recognized

that evidence of flight from the scene of a crime inherently is ambiguous.’’ State v. Luster, 279 Conn. 414, 423,

902 A.2d 636 (2006). These observations apply fully to

our consideration of the defendant’s flight as evidence

of her specific intention to control Spann’s firearm. The

defendant’s flight under the circumstances of this case

might have been prompted by various possible motivations or some combination thereof. Perhaps she simply

was trying to help her friend escape apprehension. Or

maybe she fled the scene out of pure undifferentiated

fear, resulting from nothing more complicated than the

obvious and overwhelming fact that she suddenly found

herself in the middle of a highly volatile situation involving criminal activity perpetrated by her friend sitting

in the passenger seat. In other words, the defendant

could have been motivated by a ‘‘fight or flight’’ instinct,

which prompted her to flee rather than to remain at

the scene. The defendant might have been motivated

by a sense of self-preservation, upon realizing that her

very presence in the car, under the circumstances, created a high risk that she herself would be implicated

in Spann’s criminal activity. In addition, we have come

to recognize that social factors unrelated to actual guilt

or innocence often will also figure into a person’s decision to flee due to that person’s concerns about the

perceptions that the police may formulate as a result
of demographic considerations. See State v. Edmonds,

323 Conn. 34, 74, 145 A.3d 861 (2016) (‘‘[a]mong some

citizens, particularly minorities and those residing in

high crime areas, there is also the possibility that the

fleeing person is entirely innocent but, with or without

justification, believes that contact with the police can

itself be dangerous, apart from any criminal activity

associated with the officer’s sudden presence’’ (internal

quotation marks omitted)). Of course, I cannot say

which of these (or any other) possibilities describe the

actual motivations behind the defendant’s flight

because I have no way to know. But this is precisely

the point. A jury’s preference for one psychological

explanation over another, like my own, could only be

based on guesswork under the present factual circumstances.

If only to demonstrate that we are left merely to

speculate among possibilities, I note my own view that,

of the various possible inferences that have been proposed to explain why the defendant fled the scene and

sought to evade the police, I consider the least plausible

to be the idea that her flight, more likely than not, was

motivated by a conscious desire to exercise control

over Spann’s firearm, as distinct from the car in which

Spann’s firearm happened to be located. Without

more—and there is not more on this record—the supposition strikes me as particularly far-fetched. Again, there

is no evidence that the defendant exhibited any particularized interest in Spann’s firearm or that she, by words

or action, demonstrated any ‘‘individualized’’ connection to the firearm. She did not, for example, reach out

for the firearm, lean across the front seat and across

(or under) Spann’s body to grab the firearm, or engage

in any other conduct indicating any particularized concern regarding the firearm. Cf. State v. Bowens, supra,

118 Conn. App. 123–24 (noting, among other indicia of

intent, that ‘‘the defendant fled from the police and

only the revolver was discarded, leaving the heroin and

marijuana in the car,’’ which ‘‘suggest[ed] that the motivation in fleeing was to jettison the revolver’’); McDaniels v. United States, 718 A.2d 530, 531–32 (D.C. 1998)

(upholding defendant’s conviction because jury reasonably could have inferred from defendant’s flight from

police and attempted concealment of weapon that he

was part of ‘‘an ongoing criminal operation’’ involving

possession of weapon); Logan v. United States, 489

A.2d 485, 491–92 (D.C. 1985) (evidence was sufficient

to support inference of constructive possession

because jury reasonably could have found that defendant driver ‘‘pulled the car over and slowed down to

permit [the front seat passenger] to open—and hold

open—the passenger door (of a two-door vehicle) from

the front seat while [the back seat passenger] . . .

tossed out the gun from the rear, lower portion of the

door’’). On this evidentiary record, there are ‘‘so many

reasons’’ for the defendant’s flight ‘‘that it scarcely
comes up to the standard of evidence tending to establish guilt . . . .’’ (Internal quotation marks omitted.)

Alberty v. United States, 162 U.S. 499, 510, 16 S. Ct.

864, 40 L. Ed. 1051 (1896); see also State v. Billie, supra,

123 Conn. App. 700 (inference of dominion and control

over contraband must be based on more than ‘‘possibilities, surmise or conjecture’’).

The defendant was not in constructive possession of

Spann’s firearm at the moment prior to taking flight,

and she did not acquire constructive possession of the

firearm by driving away with Spann still in possession

of that firearm. Stated another way, her flight did not

change her possessory status vis-a`-vis Spann’s firearm.

The circumstances would be different if the defendant

had been involved in the shooting as a principal or

accessory, if Spann’s firearm was stowed within her

reach during the police chase, if Spann had fled and

left the defendant with unobstructed access to the firearm, or if the defendant’s flight had caused some other

change in circumstances creating a direct nexus

between the defendant and the firearm itself. But the

state established none of these things, by reasonable

inference or otherwise.

For much the same reason, flight cannot serve to

demonstrate the defendant’s consciousness of guilt on

these facts. ‘‘[C]onsciousness of guilt [is not] an element

of the crime charged; the [g]overnment ha[s] to show

that [the defendant intentionally] possessed [the contraband], not that she was aware that she might be involved

in some sort of criminal activity.’’ United States v.

Morales, 577 F.2d 769, 773 (2d Cir. 1978). Evidence of

this nature is generally understood to be of dubious

probative value, and for good reason.10 See, e.g., State

v. Jones, 234 Conn. 324, 356, 662 A.2d 1199 (1995) (consciousness of guilt evidence ‘‘is a species of evidence

that should be viewed with caution; it should not be

admitted mechanically’’ (internal quotation marks

omitted)).

One reason that the probative value of flight evidence

is regarded with caution is that the conclusion that

flight indicates guilt requires four intermediate inferential steps. ‘‘The probative value of flight as evidence of

a defendant’s guilt depends on the degree of confidence

with which four inferences can be drawn: (1) from

behavior to flight; (2) from flight to consciousness of

guilt; (3) from consciousness of guilt to consciousness

of guilt concerning the crime charged; and (4) from

consciousness of guilt concerning the crime charged

to actual guilt of the crime charged.’’ (Internal quotation

marks omitted.) State v. Scott, 270 Conn. 92, 105, 851

A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S. Ct.

1861, 161 L. Ed. 2d 746 (2005). Numerous courts have

observed that ‘‘[t]he use of evidence of flight has been

criticized on the grounds that the second and fourth

inferences are not supported by common experience
and it is widely acknowledged that evidence of flight

or related conduct is ‘only marginally probative as to

the ultimate issue of guilt or innocence.’ ’’ United States

v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), quoting

United States v. Robinson, 475 F.2d 376, 384 (D.C. Cir.

1973). For this and related reasons, it is well established

that consciousness of guilt alone is insufficient to support a criminal conviction. See State v. Rosa, 170 Conn.

417, 433, 365 A.2d 1135 (‘‘[t]he flight of the person

accused of [a] crime . . . when considered together

with all the facts of the case, may justify an inference of

the accused’s guilt’’ (emphasis added; internal quotation

marks omitted)), cert. denied, 429 U.S. 845, 97 S. Ct.

126, 50 L. Ed. 2d 116 (1976); see also United States v.

Paga ́n-Ferrer, 736 F.3d 573, 594 (1st Cir. 2013) (trial

court’s instruction that ‘‘[n]o one can be convicted of

a crime on the basis of consciousness of guilt alone’’

was proper (internal quotation marks omitted)), cert.

denied sub nom. Vidal-Maldonado v. United States, 573

U.S. 933, 134 S. Ct. 2839, 189 L. Ed. 2d 810 (2014); United

States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975) (holding that evidence of consciousness of guilt is ‘‘insufficient proof on which to convict where other evidence

of guilt is weak and the evidence before the court is

as hospitable to an interpretation consistent with the

defendant’s innocence as it is to the [g]overnment’s

theory of guilt’’); People v. Kelly, 1 Cal. 4th 495, 531,

822 P.2d 385, 3 Cal. Rptr. 2d 677 (under California law,

jury may consider evidence of consciousness of guilt,

‘‘but it is not sufficient by itself to prove guilt’’ (emphasis in original)), cert. denied, 506 U.S. 881, 113 S. Ct.

232, 121 L. Ed. 2d 168 (1992); Commonwealth v. Toney,

385 Mass. 575, 585, 433 N.E.2d 425 (1982) (jury cannot

‘‘convict a defendant on the basis of evidence of flight

or concealment alone’’); People v. Yazum, 13 N.Y.2d

302, 304, 196 N.E.2d 263, 246 N.Y.S.2d 626 (1963) (distinguishing between admissibility and sufficiency of consciousness of guilt evidence).

In the present case, the defendant’s flight is not probative of her consciousness of guilt with respect to the

theory that she was in possession of Spann’s firearm

for the same reasons it is not probative of her intent

to possess Spann’s firearm. Whether she fled out of

undifferentiated fear, because she understood immediately that any claim of innocence, however truthful,

would not be accepted by law enforcement under the

circumstances, because she wanted to protect her

friend Spann, or even because she believed herself to

be actually guilty of some criminal act relating to the

shooting (such as attempted assault or interfering with

a police officer, for which she ultimately was acquitted

by the jury), it is not reasonable to conclude on this

record that she probably fled because she believed herself to be guilty of possessing Spann’s firearm. ‘‘[T]he

interpretation to be gleaned from an act of flight should

be made with a sensitivity to the facts of the particular
case’’ because flight might be indicative of an intent to

flee ‘‘an entirely different crime . . . .’’ United States

v. Ramon-Perez, 703 F.2d 1231, 1233 (11th Cir.), cert.

denied, 464 U.S. 841, 104 S. Ct. 136, 78 L. Ed. 2d 130

(1983). When a criminal defendant has been charged

with multiple crimes, evidence of consciousness of guilt

as to one crime does not equate to evidence of consciousness of guilt of a different crime. See, e.g., United

States v. Atchley, 474 F.3d 840, 853 (6th Cir.) (observing

that defendant’s ‘‘alleged flight could have been due to

the murder charge and not the charges here’’), cert.

denied, 550 U.S. 965, 127 S. Ct. 2447, 167 L. Ed. 2d 1145

(2007); United States v. Hernandez-Bermudez, 857 F.2d

50, 53 (1st Cir. 1988) (‘‘[T]here is a difference between

a consciousness of guilt about possessing cocaine and

guilt about intending to distribute the drug. [The]

[d]efendant’s testimony acknowledged the former, but

not the latter. But we doubt that [the defendant’s] flight

could any more show consciousness of guilt over the

distribution of cocaine than over its conceded possession.’’ (Emphasis in original.)). I doubt it, but the defendant’s flight might have been indicative of her consciousness of actual guilt as to certain criminal offenses

that are not at issue in this appeal, such as using a motor

vehicle without the owner’s permission. See General

Statutes § 53a-119b (a). It is not indicative of her consciousness of guilt of the specific crime under consideration—criminal possession of Spann’s firearm in violation of § 53a-217 (a).

The majority, quoting State v. Otto, 305 Conn. 51, 74,

43 A.3d 629 (2012), relies on the uncontroverted but

also unhelpful premise that the jury was ‘‘ ‘not required

to draw only those inferences consistent with innocence’ ’’ to conclude that ‘‘the possibility of other, innocent ‘inferences from these facts is not sufficient to

undermine [the jury’s] verdict . . . .’ ’’ Of course that

is true. It does not follow, however, that the plausibility

of the inculpatory inferences is immaterial to our sufficiency review. As we explained in State v. Reynolds,

supra, 264 Conn. 1, ‘‘[a]n inference is not legally supportable . . . merely because the scenario that it contemplates is remotely possible under the facts. To permit

such a standard would be to sanction fact-finding predicated on mere conjecture or guesswork. Proof by inference is sufficient, rather, only if the evidence produces

in the mind of the trier a reasonable belief in the probability of the existence of the material fact.’’ (Emphasis

in original; internal quotation marks omitted.) Id., 97.

Under the factual circumstances of the present case,

an inference that the defendant fled the scene of the

shooting in order to exercise dominion or control over

Spann’s firearm is possible but by no means reasonably

probable. See id., 97–98 (holding that evidence was

insufficient to establish aggravating factor under General Statutes (Rev. to 1991) § 53a-46a (h) (4), even

though ‘‘it probably would not have been impossible
for the defendant to have formulated the intent to torture [the victim] in the extremely brief period of time

between the firing of the first shot and the firing of

additional gunshots’’ because ‘‘the likelihood that the

defendant had changed his intent . . . is too remote

to be reasonable’’ (emphasis in original)).

In summary, the evidence of flight adds no force

to the otherwise insufficient evidence of constructive

possession. Pointing to the defendant’s consciousness

of guilt or her subjective belief that she may be guilty

of a crime cannot provide the state with the evidence

of constructive possession that it otherwise lacks.

The third circumstance that the majority relies on,

the defendant’s relationship with Spann, fares no better

and supplies no additional weight to support the defendant’s conviction. It is a fundamental precept that mere

friendship or association with a known criminal ‘‘does

not establish a logical connection with the [criminal’s]

crime.’’ State v. Kelsey, 160 Conn. 551, 553, 274 A.2d

151 (1970). Indeed, we previously have observed that

it ‘‘would clearly be improper’’ for the jury to infer guilt

on the basis of ‘‘mere association . . . .’’ Id., 554; see

also United States v. Di Re, 332 U.S. 581, 593, 68 S.

Ct. 222, 92 L. Ed. 210 (1948) (reversing defendant’s

conspiracy conviction, even though he was present in

car in which counterfeit ration coupons were found,

because ‘‘[p]resumptions of guilt are not lightly to be

indulged from mere meetings’’); United States v. Nusraty, 867 F.2d 759, 764 (2d Cir. 1989) (reversing defendant’s conviction of conspiracy to possess heroin with

intent to distribute because ‘‘mere association with

those implicated in an unlawful undertaking is not

enough to prove knowing involvement’’).

The claim is especially weak in the present case

because the jury affirmatively rejected the state’s theory

that the defendant intended to facilitate the shooting

by acting as Spann’s getaway driver. The state pursued

its getaway driver theory with respect to the charge of

attempt to commit assault in the first degree, but the

jury was not persuaded and found the defendant not

guilty of aiding Spann in the shooting. Because the

trial was bifurcated, the jury considered the charge of

criminal possession of a firearm after the defendant

had been found not guilty of aiding Spann’s attempted

assault and interfering with an officer but guilty of having a weapon in a motor vehicle, using a motor vehicle

without the owner’s permission, and reckless driving.

With respect to the criminal possession charge, the jury

was not instructed on accessorial liability, and the state

did not argue that the defendant constructively possessed Spann’s firearm by acting as his getaway driver.

Instead, the state argued that the defendant constructively possessed Spann’s firearm because ‘‘she was

aware of . . . the presence of the gun’’ and she easily

could ‘‘get it’’ within the close confines of the motor
vehicle. Thus, although the majority declines to accept

this simple fact, the state in its closing argument entirely

abandoned its joint criminal venture theory, premised

on the defendant being Spann’s getaway driver, in favor

of a theory that the defendant was in constructive possession of Spann’s firearm because she could ‘‘exercise

dominion and control [over it] within [the] relatively

small space of the interior of the [vehicle].’’

The majority thus advances a ‘‘getaway driver’’ theory

in support of the possessory crime that the state itself

did not make in its argument to the jury on that charge.

The risk of becoming a seventh juror, it seems, is open

to all comers. Our duty to construe the evidence in the

light most favorable to sustaining the verdict should

not, in my view, be taken as an invitation to substitute

new legal theories for the arguments used by the state

to obtain the conviction at trial. Cf. State v. Carter, 317

Conn. 845, 853–54, 120 A.3d 1229 (2015) (‘‘When the

state advances a specific theory of the case at trial . . .

sufficiency of the evidence principles ‘cannot be applied

in a vacuum. Rather, they must be considered in conjunction with an equally important doctrine, namely,

that the state cannot change the theory of the case

on appeal.’ ’’). Moreover, the state did not advance a

getaway driver theory on the possession charge for

good reason, namely, because the jury already had

rejected that theory when it acquitted the defendant of

attempted assault by acting as Spann’s accomplice in

the shooting. The majority’s efforts to resurrect the

state’s abandoned and rejected theory are unavailing.11

This brings me to the fourth and weakest circumstance relied on by the majority—the fact that ‘‘the

defendant sat within arm’s reach of the gun throughout

the afternoon.’’ What this theory ignores is that there

was, at all times, an animate physical mass separating

the defendant’s arm from the firearm, and his name

was Lamar Spann. There is no evidence of any kind

that Spann’s firearm was even momentarily stowed in

the center console, the glove compartment, or any other

communal space within the vehicle to which the defendant had access. Instead, the evidence before the jury

established that Spann had the firearm either on or

under his person at all relevant times.12 Because the

firearm was in Spann’s exclusive physical possession,

the defendant’s proximity to Spann in the relatively

small confines of the interior of the car is insufficient

to support a reasonable inference that she had the ability and intent to exercise dominion and control over

his firearm, that is, to ‘‘go and get it.’’ As the District

of Columbia Court of Appeals explained: ‘‘[T]here is no

‘automobile’ exception to the settled general rule that

knowledge and proximity alone are insufficient to prove

constructive possession of [contraband] beyond a reasonable doubt. . . . As in all other constructive possession cases, there must be something more in the totality

of the circumstances—a word or deed, a relationship or
other probative factor—that, considered in conjunction

with the evidence of proximity and knowledge, proves

beyond a reasonable doubt that the [defendant]

intended to exercise dominion or control over the [contraband], and was not a mere bystander.’’ (Emphasis

in original.) Rivas v. United States, 783 A.2d 125, 128

(D.C. 2001). Although ‘‘[i]t may be foolish to stand by

when others are acting illegally, or to associate with

those who have committed a crime . . . [s]uch conduct or association . . . without more, does not establish’’ constructive possession. (Emphasis in original;

internal quotation marks omitted.) Id., 130; see State v.

Nova, 161 Conn. App. 708, 724, 129 A.3d 146 (2015)

(reversing defendant’s possession of narcotics conviction because defendant’s ‘‘mere proximity’’ to contraband and interaction with individual who had snorted

some unknown substance was insufficient to establish

dominion or control over contraband, and ‘‘[t]o conclude otherwise required the [trial] court to engage

in impermissible speculation’’); State v. Fermaint, 91

Conn. App. 650, 657–63, 881 A.2d 539 (evidence was

insufficient to establish that defendant violated his probation by possessing narcotics because driver of vehicle

was in actual physical possession of narcotics, and evidence that defendant, who was passenger in vehicle,

engaged in ‘‘nondescript furtive movement’’ before traffic stop and was in proximity to crumbs of crack cocaine

found on seat did not establish individual connection

between defendant and narcotics), cert. denied, 276

Conn. 922, 888 A.2d 90 (2005).

The majority points out that ‘‘[t]he jury did not have

to credit’’ Spann’s testimony that the firearm was in his

exclusive physical possession before, during, and after

the shooting, and that it was ‘‘entitled to credit Spann’s

testimony that the gun was located in the area of the

front seat while discrediting his claims that he physically held the gun in a way that prevented the defendant

from accessing it . . . .’’ The argument is that Spann

was a drug dealer, a convicted felon, a liar, and the

defendant’s loyal friend, and, therefore, ‘‘[t]he jury had

good reason to question [his] credibility . . . .’’

According to the majority’s hypothesis, Spann’s ‘‘tale

seeking to exonerate the defendant’’ not only ‘‘strained

credibility’’; it was ‘‘risible,’’ ‘‘sidesplitting,’’ and would

cause ‘‘the jurors’ eyes [to roll] . . . .’’ I agree with the

majority that the jury was free to discredit all, a portion,

or none of Spann’s testimony. I decline, however, to

engage in a fictional account of the jury’s conduct at

trial, and I strenuously disagree with the majority’s suggestion that Spann’s testimony can be dissected in a

manner that inculpates the defendant in his possessory

crime. The argument itself would be risible if the occasion was less solemn. The jury, of course, was free to

disbelieve Spann’s testimony that he ‘‘assiduously kept

the gun where [the defendant] could not get it,’’ but it

was not free to infer the opposite, namely, that Spann
placed the gun in a location to which the defendant

had physical access. See, e.g., Woodall v. State, 97 Nev.

235, 236–37, 627 P.2d 402 (1981) (holding that evidence

was insufficient to support defendant’s conviction of

possession of firearm when defendant’s companion

‘‘acknowledged that the weapon was his and that [the

defendant] knew nothing about its existence,’’ reasoning that ‘‘a rational trier of fact could not reject a plausible explanation consistent with [the defendant’s] innocence, and thereupon infer [the defendant] to be guilty

based on evidence from which only uncertain inferences may be drawn’’). ‘‘[I]t is axiomatic under Connecticut law that, while a [trier of fact] may reject a defendant’s testimony, a [trier of fact] in rejecting such

testimony cannot conclude that the opposite is true.

. . . Thus, under Connecticut law, the [trier of fact] is

not permitted to infer, from its disbelief of the defendant’s testimony that any of the facts which he denied

were true.’’13 (Internal quotation marks omitted.) State

v. McCarthy, 105 Conn. App. 596, 619, 939 A.2d 1195,

cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). This

rule ‘‘has been applied uniformly in both criminal and

civil contexts’’; (internal quotation marks omitted) id.,

620; regardless of whether the witness’ testimony was

proffered by the plaintiff or the defendant. See, e.g.,

State v. Hart, 221 Conn. 595, 605–606, 605 A.2d 1366

(1992) (although jury was free to disbelieve testimony

of defense witnesses that defendant was not drugdependent, it was not free to infer opposite); see also

State v. Alfonso, 195 Conn. 624, 634–35, 490 A.2d 75

(1985) (‘‘[e]ven if the jury did not credit the defendant’s

denial, it was not entitled to conclude that the marijuana

was his without positive evidence supporting such a

conclusion,’’ and ‘‘the state offered no supporting evidence that would have justified an inference that the

defendant possessed the marijuana’’); Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979) (‘‘While it

is true that it is within the province of the jury to accept

or reject a defendant’s testimony, a jury in rejecting

such testimony cannot conclude that the opposite is

true. . . . A jury cannot, from a disbelief of a defendant’s testimony, infer that a plaintiff’s allegation is

correct.’’ (Citations omitted.)). ‘‘Our rule barring the

inference of the opposite of testimony’’ is evidentiary

in nature and ensures ‘‘the proper method of measuring

the sufficiency of the evidence.’’ State v. Hart, supra,

605–606. Thus, even if the jury disregarded Spann’s

testimony,14 given that the state failed to adduce any

‘‘[positive] evidence that would have justified an inference that the defendant possessed’’ Spann’s firearm;

State v. Alfonso, supra, 634–35; the evidence was insufficient to support the defendant’s criminal possession of

a firearm conviction.15

In my view, the majority piles speculative inference

on top of speculative inference to uphold the defendant’s criminal possession of a firearm conviction. For
the reasons previously explained, a driver’s knowledge

that his or her front seat passenger is in actual physical

possession of contraband is insufficient to support a

reasonable inference that the driver had dominion or

control over that contraband; flight from the police

does not vest a driver with constructive possession of

contraband that he or she did not possess before taking

flight; a defendant’s knowing association with a person

in actual physical possession of contraband is insufficient to establish that the defendant had the power and

intent to control that contraband; disbelief of a witness’

testimony cannot supply the state with the positive

evidence of guilt that it otherwise lacks; and the accumulated weight of these flawed inferences will not support a criminal conviction that cannot rest independently on any one of them. Accordingly, I dissent from

part I of the majority opinion.

II

I agree with the majority that the evidence was sufficient to convict the defendant of the crime of having

a weapon in a motor vehicle in violation of § 29-38 (a).

In light of what already has been said, however, it should

be clear that I do not agree with the majority that the

defendant’s conviction can be sustained on the basis

of a finding that she constructively possessed Spann’s

firearm. I nonetheless would uphold the defendant’s

conviction because possession is not an essential element of the crime. What is required instead is proof

that the defendant ‘‘(1) owned, operated or occupied

the vehicle; (2) had a weapon in the vehicle; (3) knew

the weapon was in the vehicle; and (4) had no permit

or registration for the weapon.’’ State v. Davis, 324

Conn. 782, 801, 155 A.3d 221 (2017); see also State v.

Owens, 25 Conn. App. 181, 186, 594 A.2d 991 (‘‘[t]here

are four elements that the state must prove in a prosecution for a violation of . . . § 29-38: (1) that the defendant owned, operated or accepted the vehicle; (2) that

he had a weapon in the vehicle; (3) that he knew the

weapon was in the vehicle; and (4) that he had no

permit or registration for the weapon’’), cert. denied,

220 Conn. 910, 597 A.2d 337 (1991). The state is not

required to prove possession—actual or constructive—

to obtain a conviction under § 29-38 (a). See State v.

Owens, supra, 187–88 (‘‘[t]he clear intent of § 29-38 is

to make it a crime to have a weapon in a motor vehicle,

and ‘[t]he statute is not concerned with possession or

ownership of a weapon, but rather aims to penalize

those who know that there is a weapon inside a motor

vehicle’ ’’), quoting State v. Mebane, 17 Conn. App. 243,

246, 551 A.2d 1268, cert. denied, 210 Conn. 811, 556

A.2d 609, cert. denied, 492 U.S. 919, 109 S. Ct. 3245, 106

L. Ed. 2d 591 (1989).

The defendant concedes that, under our current case

law, the evidence is sufficient to sustain her conviction

because the jury reasonably could have found that she
operated a motor vehicle, there was a weapon inside

the vehicle, she knew there was a weapon inside the

vehicle, and the weapon had no permit or registration.

The defendant asks this court to reconsider and overrule our case law defining the essential elements of the

crime of having a weapon in a motor vehicle, arguing

that ‘‘[t]his court has misinterpreted the legislative

intent of [the] statute’’ because the legislature intended

the term ‘‘knowingly has’’ in § 29-38 (a) to be construed

as ‘‘knowingly possesses.’’

The defendant failed to preserve her statutory construction claim in the trial court, and it is well established that this court generally will not review claims

raised for the first time on appeal unless the requirements for review under State v. Golding, 213 Conn. 233,

239–40, 567 A.2d 823 (1989), as modified by In re Yasiel

R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),16 have

been satisfied or reversal is warranted under the plain

error doctrine or our supervisory authority. The defendant’s statutory construction claim fails under the second prong of Golding because it is not a claim of constitutional magnitude alleging the violation of a

fundamental right. See State v. Golding, supra, 240

(observing that nonconstitutional claims ‘‘do not warrant special consideration simply because they bear

a constitutional label’’); see also State v. RodriguezRoman, 297 Conn. 66, 93, 3 A.3d 783 (2010) (declining

to review insufficiency of evidence and instructional

impropriety claims because ‘‘the defendant has clothed

what can only be described as a nonconstitutional claim

in constitutional garb’’). The defendant also cannot prevail under the plain error doctrine because ‘‘[i]t is axiomatic that the trial court’s proper application of the

law existing at the time of trial cannot constitute reversible error under the plain error doctrine.’’ State v. Diaz,

302 Conn. 93, 104 n.8, 25 A.3d 594 (2011). Lastly, this

is not one of those rare cases that merits the invocation

of the ‘‘extraordinary remedy’’ of reversal under our

supervisory authority. (Internal quotation marks omitted.) State v. Reyes, 325 Conn. 815, 822–23, 160 A.3d

323 (2017); see id. (‘‘[T]he supervisory authority of this

state’s appellate courts is not intended to serve as a

bypass to the bypass, permitting the review of unpreserved claims of case specific error—constitutional or

not—that are not otherwise amenable to relief under

Golding or the plain error doctrine. . . . Consistent

with this general principle, we will reverse a conviction

under our supervisory powers only in the rare case that

fairness and justice demand it. [T]he exercise of our

supervisory powers is an extraordinary remedy to be

invoked only when circumstances are such that the

issue at hand, while not rising to the level of a constitutional violation, is nonetheless of [the] utmost seriousness, not only for the integrity of a particular trial

but also for the perceived fairness of the judicial system

as a whole.’’ (Citations omitted; internal quotation
marks omitted.)). There being no basis for reversal, I

would uphold the defendant’s conviction of having a

weapon in a motor vehicle.

For the foregoing reasons, I dissent from part I of

the majority opinion upholding the defendant’s conviction of criminal possession of a firearm in violation of

§ 53a-217 (a) and concur in part II of the majority opinion upholding the defendant’s conviction of having a

weapon in a motor vehicle in violation of § 29-38 (a).

1 The record reflects that Spann was convicted of various crimes arising

out of the August 17, 2013 shooting, including criminal possession of the

firearm in question. The primary issue on appeal is whether the evidence

is legally sufficient to establish beyond a reasonable doubt that the defendant

jointly possessed Spann’s firearm by operating the vehicle in which Spann

was a passenger while he was in actual physical possession of the firearm.

2

It is undisputed that the defendant in this case never had actual physical

possession of Spann’s firearm. Indeed, the trial court granted the defendant’s

motion for a judgment of acquittal on the charge of carrying a pistol without

a permit in violation of General Statutes § 29-35 (a) on the ground that there

was no evidence that the defendant had ‘‘carried [the firearm] on . . . her

person . . . .’’

3 This court long ago observed that, ‘‘[a]s to ‘possession,’ there is no word

more ambiguous in its meaning.’’ Hancock v. Finch, 126 Conn. 121, 122–23,

9 A.2d 811 (1939), citing National Safe Deposit Co. v. Stead, 232 U.S. 58,

34 S. Ct. 209, 58 L. Ed. 504 (1914). Hancock is a civil case, but courts and

commentators alike often have made the same point in connection with the

law of criminal possession. One scholarly article begins with this oft-quoted

observation: ‘‘The word ‘possession,’ though frequently used in both ordinary

speech and at law, remains one of the most elusive and ambiguous of

legal constructs.’’ C. Whitebread & R. Stevens, ‘‘Constructive Possession in

Narcotics Cases: To Have and Have Not,’’ 58 Va. L. Rev. 751, 751 (1972);

see also Henderson v. United States, supra, 575 U.S. 625–30 (addressing

definitional difficulty in case requiring court to decide whether person lawfully can transfer gun to third party without thereby illegally possessing it);

State v. Schmidt, 110 N.J. 258, 266–70, 540 A.2d 1256 (1988) (discussing

definitional difficulty and wide spectrum of views); State v. Barber, 135

N.M. 621, 626, 92 P.3d 633 (2004) (‘‘The legal definition of possession is not

necessarily rooted in common discourse. . . . Courts differ on whether the

legal concept of possession is a common term with no artful meaning or

the most vague of all vague terms.’’ (Citation omitted; internal quotation

marks omitted.)); 1 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 6.1

(e), p. 432 (‘‘[t]he word ‘possession’ is often used in the criminal law without

definition, which perhaps reflects only the fact that it is ‘a common term

used in everyday conversation that has not acquired any artful meaning’ ’’).

‘‘Of this chameleon-hued word,’’ says legal lexicographer Bryan A. Garner,

‘‘a legal philosopher pessimistically states: The search for [its] proper meaning . . . is likely to be a fruitless one.’’ (Internal quotation marks omitted.)

B. Garner, Dictionary of Legal Usage (3d Ed. 2011) p. 688, quoting G. Paton,

A Textbook of Jurisprudence (4th Ed. 1972) p. 553.

4

In light of Spann’s testimony that he was sitting on the firearm during

most of the relevant time, it is noteworthy that the origin of the word

‘‘possession’’ traces back to the Latin words for ‘‘able to sit upon.’’ See

Webster’s Third New International Dictionary, supra, p. 1770 (‘‘fr[om] potis

able, possible [and] sedre to sit’’). No doubt Spann possessed the gun.

5 As the trial court properly instructed the jury, the terms ‘‘dominion’’

and ‘‘control’’ are ‘‘synonymous, meaning they are different terms used to

describe the same thing.’’

6

It is not necessary that the defendant manifest the requisite intention

by exercising her practical ability to obtain actual physical possession of

the contraband, only that she could do so if she so desired. As this court

explained in State v. Hill, supra, 201 Conn. 516, ‘‘[t]he 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.’’

7 The majority’s reliance on State v. Delossantos, 211 Conn. 258, 277–78,

559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d

142 (1989), to support the proposition that ‘‘[o]ne who owns or exercises
dominion or control over a motor vehicle in which [contraband] is concealed

may be deemed to possess the contraband’’ is misplaced. In Delossantos,

the defendant was the ‘‘lone occupant of the automobile’’; id., 261; and,

when a driver is in exclusive possession of an automobile, it is reasonable

to infer that he or she had both the power and intent to exercise dominion or

control over the contents of that automobile. As we explained in Delossantos,

however, ‘‘[w]here the defendant is not in exclusive possession of the premises where the [contraband is] found, it may not be inferred that [the defendant] knew of the presence of the [contraband] and had control of [it],

unless there are other incriminating statements or circumstances tending

to buttress such an inference.’’ (Emphasis added; internal quotation marks

omitted.) Id., 277. Thus, in the absence of additional evidence—which, for

the reasons explained in the body of this opinion, I believe is lacking in

this case—the defendant’s knowledge of Spann’s firearm and her control

of the car do not support a reasonable inference that she constructively

possessed Spann’s firearm.

8 The majority also observes that the defendant ‘‘drove the vehicle 1.2

miles while being chased by the police in an effort to evade arrest for her

participation in the shooting . . . .’’ Footnote 13 of the majority opinion. I

address this point later in this opinion in connection with the majority’s

discussion regarding the significance of the defendant’s ‘‘flight’’ immediately

following the shooting incident.

9 The difference between the majority opinion and this concurring and

dissenting opinion can be summarized as the difference between the view

that such additional evidence ‘‘might have helped to establish constructive

possession,’’ as the majority acknowledges, and my view that the conviction

cannot be sustained in the absence of at least some additional evidence of

this nature.

10 See, e.g., Wong Sun v. United States, 371 U.S. 471, 483 n.10, 83 S. Ct.

407, 9 L. Ed. 2d 441 (1963) (‘‘we have consistently doubted the probative

value in criminal trials of evidence that the accused fled the scene of an

actual or supposed crime’’); Alberty v. United States, supra, 162 U.S. 511

(‘‘it is a matter of common knowledge that men who are entirely innocent do

sometimes fly from the scene of a crime through fear of being apprehended

as the guilty parties, or from an unwillingness to appear as witnesses’’). In

support of its view that evidence of flight ‘‘is a species of evidence that

should be viewed with caution,’’ the United States Court of Appeals for the

First Circuit explained: ‘‘Although it is undisputed that flight of an accused

can properly be admitted as having a tendency to prove guilt . . . it also

is acknowledged widely that, at least in many cases, such evidence is only

marginally probative as to the ultimate issue of guilt or innocence. . . .

[The inference of guilt] has been questioned by some courts, one of which

asserted that men who are entirely innocent do sometimes fly from the

scene of a crime for a multitude of reasons, including, for example, hesitation

to confront even false accusations, fear that they will be unable to prove

their innocence, or protection of a guilty party.’’ (Citations omitted; internal

quotation marks omitted.) United States v. Hernandez-Bermudez, 857 F.2d

50, 54 (1st Cir. 1988); see also United States v. Chipps, 410 F.3d 438, 449

(8th Cir. 2005) (‘‘courts should be cautious in admitting evidence of flight

because it is often only marginally probative of guilt’’); United States v.

Rodriguez, 53 F.3d 1439, 1451 (7th Cir. 1995) (‘‘[w]e have long adhered to

the [United States] Supreme Court’s counsel that courts be wary of the

probative value of flight evidence’’ (internal quotation marks omitted)). Chief

Judge David L. Bazelon, quoting Sigmund Freud, provided a psychological

basis for questioning the assumption that a suspect’s flight necessarily

reflects his actual guilt, as sometimes the suspect ‘‘is really not guilty of

the specific misdeed of which he is being accused, but he is guilty of a

similar [misdemeanor] of which [the authorities] know nothing and of which

[the authorities] do not accuse him. He therefore quite truly denies his guilt

in the one case, but in doing so betrays his sense of guilt with regard to

the other.’’ (Internal quotation marks omitted.) Miller v. United States, 320

F.2d 767, 772 (D.C. Cir. 1963).

11 The majority points out that the verdict finding the defendant guilty on

the possession charge is not necessarily inconsistent with the verdict finding

the defendant not guilty of attempted assault as an accessory. See footnote

18 of the majority opinion. The majority posits that the jury may have

concluded that the defendant shared Spann’s intention with regard to shooting the firearm but not his intention to cause serious physical injury. This

‘‘asymmetrical intentions’’ scenario is not impossible as a matter of abstract

logic, but it is unlikely, to say the least, that a lay jury entertained (much less
adopted) the needle threading theory posited by the majority—particularly

when the state itself never promoted that theory. Logical possibility is not

the same as reasonable probability, and it remains highly improbable on

this record that the jury decided to convict the defendant of criminal possession of a firearm on the basis of a theory that was never even advanced by

the state with respect to that charge.

The question, moreover, is not one of theoretical consistency but of

evidentiary sufficiency. Even if we were to assume that the jury logically

could have adopted a theory of accessorial guilt not argued by the state in

support of the charge at issue, by crediting the state’s getaway driver theory

on the criminal possession charge after rejecting that theory with respect

to the attempted assault charge, I disagree with the majority that the jury

reasonably could have done so on this evidentiary record. As I previously

explained, there was no evidence that the defendant had any knowledge

that Spann even was carrying a firearm prior to the shooting; nor was there

any evidence of a prior joint criminal activity or any prior planning. I am

left to conclude under these circumstances that the evidence necessarily

was insufficient to support a reasonable inference that ‘‘[the defendant] and

Spann brought the gun to Trumbull Avenue for the purpose of firing it and

that the defendant would serve as the getaway driver.’’ Footnote 18 of the

majority opinion. It seems likely that the state did not argue this inference

because the evidence did not support it.

12 Prior to the shooting, Spann testified that he kept the firearm concealed

‘‘under [his] lap . . . .’’ After the shooting, Spann either held or briefly

lodged the firearm ‘‘on the side of the door . . . in between the seat and

the door.’’

13 The prohibition against the antithesis inference is not unique to Connecticut; it is ‘‘hornbook law’’ recognized in state and federal courts throughout

the country. Walker v. New York, 638 Fed. Appx. 29, 31 (2d Cir. 2016); see,

e.g., id. (‘‘it is hornbook law that a plaintiff does not carry his burden of

proving a fact merely by having witnesses deny that fact and asking the

jury to decline to believe the denials’’); Grimm v. State, 135 A.3d 844, 859

(Md. 2016) (‘‘[m]any jurisdictions, including Maryland, recognize the doctrine

that disbelief of testimony may not alone support a finding in civil and

criminal litigation’’ (internal quotation marks omitted)); Chapman v. Troy

Laundry Co., 47 P.2d 1054, 1062 (Utah 1935) (‘‘[w]hile the demeanor of the

witness in testifying is very important and should be given consideration

by the trier of fact, still there must be something more than the batting of

an eye, the coloring of the cheek, or the twiddling of the thumbs as a basis

for finding facts’’); A. Pollis, ‘‘The Death of Inference,’’ 55 B.C. L. Rev. 435,

461–62 (2014) (‘‘[C]ourts, including the [United States] Supreme Court, have

generally been hostile to accepting the probative value of the antithesis

inference, especially without other evidence in support of the party carrying

the burden of proof. For example, in 1891, the [c]ourt in Bunt v. Sierra

Butte Gold Mining Co. [138 U.S. 483, 485, 11 S. Ct. 464, 34 L. Ed. 1031

(1891)] held that a plaintiff could not meet his burden of proof by calling

the defendant’s employees as witnesses in the hope that the jury would

disbelieve them. Over the years, numerous cases have similarly rejected the

antithesis inference as an adequate basis for submitting a case to the jury.

The First Circuit explained that the danger of permitting the antithesis

inference was ‘obvious,’ as it would allow a plaintiff to prove its case solely

through impeachment.’’ (Footnotes omitted.)).

14 The majority states that my analysis ‘‘relies on and credits the entirety

of Spann’s testimony’’ and ‘‘accept[s] Spann’s testimony at face value . . . .’’

Footnote 22 of the majority opinion. I do not understand what prompts this

statement, and it is not true. To repeat, the jury was entitled to accept all,

some, or none of Spann’s testimony. Regardless of whether, and to what

extent, the jury credited Spann’s testimony, there simply is no evidence in

the record that the firearm at any time was located anywhere except for

where the police saw it—in Spann’s physical possession. Without relying

on pure speculation, in other words, no reasonable juror could find that

Spann probably left his firearm, however briefly, in an area of the vehicle

where the defendant could ‘‘go and get it’’ during the high-speed police

chase. Guesswork is not the same as reasonable inference.

15 The majority’s reliance on Maryland v. Pringle, 540 U.S. 366, 124 S. Ct.

795, 157 L. Ed. 2d 769 (2003), in support of its definition and application of

the constructive possession doctrine is misplaced. In Pringle, drugs were

found in the common area of a motor vehicle, and the United States Supreme

Court observed that the ‘‘quantity of drugs and cash in the car indicated

the likelihood of [all occupants being involved in] drug dealing . . . .’’ Id.,
373. Importantly, there was no evidence ‘‘singling out’’ any one of the occupants of the vehicle as the owner of the drugs, and the court cautioned that

‘‘ ‘[a]ny inference that everyone on the scene of a crime is a party to it must

disappear if the [g]overnment . . . singles out the guilty person.’ ’’ Id., 374,

quoting United States v. Di Re, supra, 332 U.S. 594. In the present case,

Spann not only confessed to his exclusive ownership and possession of the

firearm, he also pleaded guilty to carrying the firearm without a permit and

criminal possession of the firearm. Given that the state ‘‘single[d] out’’ and

convicted ‘‘the guilty person,’’ any inference that the defendant was involved

in Spann’s criminal possession of the firearm ‘‘must disappear’’ in the present

case. (Internal quotation marks omitted.) Id.

16 Under State v. Golding, supra, 213 Conn. 233, ‘‘a defendant can prevail

on a claim of constitutional error not preserved at trial only if all of the

following conditions are met: (1) the record is adequate to review the alleged

claim of error; (2) the claim is of constitutional magnitude alleging the

violation of a fundamental right; (3) the alleged constitutional violation . . .

exists and . . . deprived the defendant of a fair trial; and (4) if subject to

harmless error analysis, the state has failed to demonstrate harmlessness

of the alleged constitutional violation beyond a reasonable doubt. In the

absence of any one of these conditions, the defendant’s claim will fail.’’

(Emphasis in original; footnote omitted.) Id., 239–40; see In re Yasiel R.,

supra, 317 Conn. 781 (modifying third prong of Golding).