Possession

As used in these criminal statutes “possession” means an intentional control of the controlled substance accompanied by a knowledge of its character. Thus, in order for the state to convict of possession of any controlled substance, it must prove three separate things: (1) that the defendant knew the character of the substance, (2) knew of its presence, and (3) exercised dominion and control over it.

The essence of exercising control over a controlled substance is not the act of control but the act of being in a position of control coupled with the requisite mental state. The control must be exercised intentionally and with the knowledge of the character of the controlled substance. Depending on the circumstances the jury may infer, from the fact that the defendant was in possession of the substance, that he knew of its character and presence.

Constructive Possession

Possession of a controlled substance may be actual, or it may be constructive. Although both actual and constructive possession require the elements of knowledge and control described above, the concept of constructive possession involves the situation in which the defendant, although not in actual possession of the substance—e.g., it is not on his person or so close to him as to be functionally on his person—knowingly has the power and the intention at a given time of exercising dominion and control over the substance.

Where the defendant is in exclusive possession of the premises where the illegal substance is found, it may be inferred from that possession that he knew of its presence and character, and that he had control of it. State v. Alfonso, 195 Conn. 624, 490 A.2d 75 (1985). One who owns or exercises dominion over an automobile in which an illegal substance is concealed may be deemed to possess the substance. State v. Delossantos, 211 Conn. 258, 559 A.2d 164 (1989). Thus, where the defendant was in exclusive possession of an automobile and had exclusive access to its locked glove compartment in which the substance was found, the jury could infer that he had control over the substance and knew of its character. State v. Lee, 32 Conn.App. 84, 628 A.2d 1318 (1993).

Where, however, the defendant is not in exclusive possession of the premises where the illegal substance is found, it may not be inferred that he knew of its presence and character, and had control of the substance, unless there are other incriminating statements or circumstances tending to support such an inference. State v. Alfonso, 195 Conn. 624, 490 A.2d 75. Thus, where the substance was found in a common area of the defendant’s room that he shared with roommates, it was not found among his personal belongings, and there was no evidence that he had used the substance in the past, there was insufficient evidence of constructive possession by the defendant. Id.

Similarly, it cannot be reasonably inferred solely from the fact that the defendant was one of several occupants of a vehicle that he knew of the presence of contraband in the vehicle. State v. Delossantos, 211 Conn. 258, 559 A.2d 164. Where, however, there are such additional incriminating statements or circumstances indicating the defendant’s knowledge of the presence of the contraband and of its character, the fact that the defendant was not the sole occupant of the vehicle will not preclude a finding of constructive possession. State v. Pena, 16 Conn. App. 518 (1988).

On the same principle, the mere presence of the defendant in the vicinity of an illegal substance is insufficient to support an inference of possession without some additional fact connecting him to the contraband. Thus, where the drugs were found under the siding of a house adjacent to a public street on which there was a history of heavy drug activity, the fact that the defendant was observed in front of the house, bending over as if to tie his shoe when approached by the police, was insufficient to support an inference that he had constructive possession of the contraband under the house siding. Although there was evidence that several cars had approached the defendant over a short period of time as he stood in front of the house, there was no evidence that the defendant had given anything to their occupants, that there was any connection between the defendant and the drugs found under the house siding, or that the defendant had said anything incriminating. In re Benjamin C., 22 Conn. App. 458 (1990). Furthermore, there is no minimum amount of illegal substance that is required to constitute illegal possession. A trace amount or residue will suffice. State v. Johnson, 26 Conn. App. 779 (1992).

Possession Statutory Definition

“Possess” means to have physical possession or otherwise to exercise dominion or control over tangible property. Conn. Gen. Stat. § 53a-3(2).

Possession with Intent to Sell

Where the state charges the defendant with possession with intent to sell, the defendant’s intent, as in other cases in the criminal law, may be inferred from circumstantial evidence. Thus, such intent may be inferred from evidence such as a large amount of drugs found in the defendant’s possession inconsistent with an amount held for personal use, the evidence that the defendant was not a personal user, and the evidence that a gun was found with the drugs. State v. Avila, 166 Conn. 569 (1974). Other circumstantial evidence bearing on the question of an intent to sell is the absence of any drug paraphernalia indicating personal use, the packaging of the drugs consistent with sales, and the defendant’s interaction with other persons at the time of the possession. State v. Conley, 31 Conn. App. 548 (1993). It has been recognized as common knowledge that cocaine is often packaged as a white powder in small plastic bags. State v. Delossantos, 211 Conn. 258 (1989). The fact alone that the amount found was small will not, however, preclude a finding of an intent to sell, if there is other evidence indicating such an intent, such as the manner of packaging consistent with selling, and the fact that the defendant maintained three addresses, a behavior characteristic of drug dealers. State v. Whittingham, 18 Conn. App. 406 (1989). Under C.G.S.A. § 21a-278(a), it is a specific offense to sell or possess with the intent to sell a compound or substance, “containing an aggregate weight of one ounce or more” of certain controlled substances. It has not yet been decided whether this means whether (1) the state must prove that the compound or substance contains one ounce or more of the controlled substance in its pure form, or (2) the compound or substance containing the controlled substance must weigh one ounce or more. The Supreme Court found it unnecessary to decide the question in the case in which it was raised, because the unchallenged evidence indicated that the compound or substance contained more than one ounce of pure cocaine. State v. Delossantos, 211 Conn. 258 (1989).

The Elements of Possession With Intent to Sell

The statute sets up three elements, all of which must be established beyond a reasonable doubt in order to justify a finding of guilty: (1) the defendant had possession of a substance; (2) the substance was a narcotic substance; and (3) he possessed it with the intent to sell it.The first element is that the defendant had possession of a substance. This element of possession means that the defendant knew of the narcotic character of the substance, that he knew of its presence, and that he exercised dominion and control over it. It is not necessary, however, that the defendant actually had the substance on his person, although that is one form of possession. It means having dominion and control over the substance, even though it is not on the defendant’s person. As long as the substance is in a place where it is subject to the defendant’s dominion and control, where the defendant can, if he wishes, go and get it, it is in his possession; and that possession is illegal if the defendant knew of the narcotic character of the substance, and knew of its presence.

The second element is that the substance of which the defendant had possession was a narcotic substance. The amount of the narcotic substance which the defendant possessed is immaterial. Any amount, however slight, is sufficient.

The third element of this offense is that the defendant possessed the narcotic substance with the intent to sell it. The word “sell” here has a much broader meaning than it does in ordinary usage. It is not confined to a delivery of narcotics which is paid for by someone else. Under our statute (§ 21a-240(50)), a sale is any form of delivery, and it includes a barter, which is a trade of one thing for another. It also includes any exchange of narcotics for something else. It also includes a gift of the narcotic substance, which does not require that the defendant received or expected to receive anything in payment or exchange for it.

A “delivery” of a narcotic substance, insofar as that word applies here, means an actual or an attempted transfer from one person to another. It may be that the defendant intended to make the delivery personally, but that is not necessary. It is also sufficient if the defendant intended that the delivery be done by the defendant’s agent, that is, by someone else who is acting for him and under his control. It is not necessary that any sale actually occurred. It is only necessary that the defendant intended that a sale, as defined here, occur.

Furthermore, it is not necessary that the defendant intended to make the sale in person. The statutory definition of “sale,” insofar as it applies here, includes “each such transaction made by any person whether as principal, agent, servant or employee.” Therefore, if the defendant intended that the sale was to be carried out by someone else who was in fact his agent, servant or employee, the defendant would be legally responsible for the sale.

Possession Near a Prohibited Place

The statute defining this offense imposes punishment on any person who (sells/possesses with the intent to sell) to another person any controlled substance in or on, or within one thousand five hundred feet of the real property comprising (a public or private elementary or secondary school/a public housing project/a licensed child day care center that is identified as a child day care center by a sign posted in a conspicuous place).

The state must prove beyond a reasonable doubt that 1) the defendant (sold/possessed with the intent to sell) a controlled substance and 2) that this occurred in or on, or within 1500 feet of the real property of a specific prohibited place.

The Elements of Possession Near a Prohibited Place

The first element is that the defendant (sold/possessed with the intent to sell) to another person a controlled substance. “Sale” is any form of delivery, which includes barter, exchange or gift, or offer therefore, and each such transaction made by any person whether as principal, proprietor, agent, servant, or employee.”Possession” means either actual possession or constructive possession. Actual possession means actual physical possession, such as having the object on one’s person. Constructive possession means having the object in a place under one’s dominion and control. Possession also requires that the defendant knew that (he/she) was in possession of the controlled substance. That is, that (he/she) was aware that (he/she) was in possession of it and was aware of its nature. The state must prove beyond a reasonable doubt that the defendant knew that (he/she) was in possession of the controlled substance.

Conviction for possession of a controlled substance with the intent to sell requires proof of the specific intent to sell the controlled substance. A person acts “intentionally” with respect to a result when (his/her) conscious objective is to cause such result. A jury should consider all of the surrounding circumstances in determining whether the defendant had the intent to sell.

The second element is that the defendant (sold/possessed with the intent to sell) the controlled substance in or on, or within 1500 feet of the real property of a specific prohibited place. For purposes of this statute “prohibited place” includes:

(1) a (public/private) (elementary/secondary) school; or (2) a public housing project; or (3) a licensed child day care center that is identified as a child day care center by a sign posted in a conspicuous place.For purposes of this crime, an elementary school is a school for any combination of grades below grade seven. A secondary school is a school for any combination of grades seven through twelve, and may also include any separate combination of grades five and six or grade six with grades seven and eight. (See General Statutes § 10-282). A public housing project means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer. (See

General Statutes § 21a-278a (b))

A child day care center means a center that offers or provides a program of supplementary care to more than twelve related or unrelated children outside their own homes on a regular basis. (See General Statutes § 19a-77 (a) (1)).

Drug Dependent Person

Drug dependency, or being a “drug dependent person,” is an affirmative defense to the sale and possession of controlled substance. As an affirmative defense to these charges a defendant claiming drug dependence will be required to prove such dependence by a preponderance of the evidence. Conversely, the fact that a person is not drug dependent is not an element or aggravating factor of the underlying drug offense that the prosecution will be required to prove beyond a reasonable doubt. See State v. Ray, 290 Conn. 602 (2009).

In order for a defendant to prove they are drug dependent, they must show, by a preponderance of the evidence, that they have at least three of the seven factors described in the Diagnostic Statistical Manual of Mental Disorders, 4th ed., revised, and they must be occurring at anytime in the same 12th month period. The defendant must have a qualified witness testify to these facts. The seven factors to be considered are:

1. Tolerance, as defined by either of the following:

• A need for markedly increased amounts of the substance to achieve intoxication or desired effect; or
• Markedly diminished effect with continued use of the same amount of the substance;

2. Withdrawal, as manifested by either of the following;

• The characteristic withdrawal syndrome for the substance (refer to Criteria A and B of the criteria sets for Withdrawal from the specific substances); or
• The same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms;

3. The substance is often taken in larger amounts or over a longer period than was intended;

4. There is a persistent desire or unsuccessful efforts to cut down or control substance use;

5. A great deal of time is spent in activities necessary to obtain the substance (e.g. visiting multiple doctors or driving long distances), use the substance (e.g. chain smoking), or recover from its effects;

6. Important social, occupational, or recreational activities are given up or reduced because of substance abuse;

7. The substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worse by alcohol consumption).

If you are a drug dependent person, you are not exempt from the typical penalties. However, this defense allows the court to consider alternative sentencing supervision options that will allow and encourage the defendant’s rehabilitation.

Conn. Gen. Stat. § 21a-240 Definitions

(18) “Drug dependence” means a psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the “Diagnostic and Statistical Manual of Mental Disorders” of the American Psychiatric Association; (19) “Drug-dependent person” means a person who has a psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the “Diagnostic and Statistical Manual of Mental Disorders” of the American Psychiatric Association

Conn. Gen. Stat. § 21a-269. Burden of proof of exception, excuse, proviso or exemption.

n any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.

Conspiracy

To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are “knowingly engaged in a mutual plan to do a forbidden act.” State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153. A conviction of the crime of conspiracy can be based on circumstantial evidence, for conspiracies, by their very nature, are formed in secret and only rarely can be proved otherwise than circumstantial evidence.

The crime of conspiracy is a separate crime from the crime which is the object of the conspiracy. The crime of conspiracy consists essentially of an agreement to perform conduct which itself is criminal, followed by one or more overt acts in pursuance of that agreement. Section 53a-48(a) of our statutes provides as follows: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

There are, therefore, three elements to this crime: (1) an intent that criminal conduct be performed; (2) an agreement with one or more persons to engage in or cause the performance of that conduct; and (3) the commission of an overt act in pursuance of the agreement, by any one or more of the persons who made the agreement.

The first element is that the defendant had the intent that conduct constituting a crime be performed. The defendant must be proven to have been actuated by criminal intent. It is not necessary, however, that the defendant intended to commit a crime. It is only necessary that he intended that certain conduct, which if performed would constitute a crime, be performed or take place.

The second element is that the defendant, acting with that criminal intent, agreed with one or more persons to engage in or cause the performance of that conduct which constituted a crime. The agreement may have been explicit or expressed, or it may have been implicit or unexpressed. It need not have been a formal agreement, or an agreement in words or in writing. It is sufficient to show that the persons involved were knowingly engaged in a mutual plan to do a forbidden act. It is not necessary that the defendant knew the complete plan of the conspiracy in all its details. Nor is it necessary that he agreed with all the parties to the agreement. It is enough if he knew that an agreement existed or that he was creating an agreement; and that he joined with at least one other person into an agreement to commit the crime or cause it to be committed.

It is sufficient if the parties reached an understanding that they should work together with a single design for the attainment of a common purpose. A person does not become a member of a conspiracy simply because he knows that a group of persons have combined for unlawful purposes and does nothing about it.

The mere knowledge, acquiescence or approval of an unlawful act, without agreement, is not sufficient to make someone a party to a conspiracy. It requires more than proof of the defendant’s mere passive knowledge of a crime to sustain a charge of conspiracy.
The defendant must have had a guilty intent and knew that what he was doing was part of a general scheme to commit one or more of the unlawful acts alleged in the information.

Such an agreement may be proven by direct evidence—that is, by testimony of one of the conspirators about the agreement. Or it may also be shown by circumstantial evidence; for conspiracies by their very nature are formed in secret and only rarely can be proven by direct as opposed to circumstantial evidence. Thus, a conspiracy may also be proven by showing a sequence or combination of acts of such nature that they tend to show a mutual purpose. In a conspiracy, it may be that one act, taken by itself, may not tend to show an unlawful agreement. But when it is looked at in connection with other acts, the totality of the acts may be sufficient to show the unlawful agreement. Thus, an unlawful agreement may be proven by proof of separate acts by members of the conspiracy, and by proof of their surrounding circumstances, from which you may infer the existence of an illegal agreement.

The third element is that any one or more of the persons who were parties to the agreement committed an overt act in pursuance or in furtherance of the conspiracy. At least one of the conspirators must have done at least one overt act to further the purpose of the conspiracy. It makes no difference which one did the overt act. Nor is it necessary that the defendant himself committed the overt act; or that all of the conspirators did so. It is sufficient if any one or more of the persons who entered into the illegal agreement committed at least one overt act to further its purpose.

An overt act is an open act which manifests or shows that it is part of a design or intent. It must be something more than the mere act of agreeing. It must be something that goes beyond merely making preparations in a general way. It must be something done after the agreement has been formed, which furthers the purpose of the agreement. If it furthers the purpose of the illegal agreement, it makes no difference that the overt act itself may not be criminal. Of course, if the act itself is criminal that would be sufficient, but it is not necessary that the act taken by itself be criminal.

Conn. Gen. Stat. § 53a-48. Conspiracy. Renunciation.

(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.

(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
Conn. Gen. Stat. § 53a-51. Classification of attempt and conspiracy.

Attempt and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or is an object of the conspiracy, except that an attempt or conspiracy to commit a Class A felony is a Class B felony.