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STATE OF CONNECTICUT v. PETER KALPHAT
(AC 32742)
Robinson, Bear and Schaller, Js.
Argued January 17—officially released March 13, 2012
(Appeal from Superior Court, judicial district of
Waterbury, Adelman, J.)
Adele V. Patterson, senior assistant public defender,
for the appellant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Maureen Platt, state’s attorney, and
Jason Germain, senior assistant state’s attorney, for
the appellee (state).
Opinion
BEAR, J. The defendant, Peter Kalphat, appeals from
the judgment of conviction, rendered after a jury trial,
of possession of a controlled substance with intent to
sell within 1500 feet of a public school in violation of
General Statutes § 21a-278a (b).1 On appeal, the defendant claims that (1) the evidence adduced at trial was
insufficient to support his conviction and (2) the trial
court failed to instruct the jury that the intended location of the sale had to be within a school zone. We
agree with the defendant’s first claim and, accordingly,
reverse in part the judgment of the trial court.2
The following facts, as reasonably could have been
found by the jury, are relevant to this appeal. On the
evening of August 6, 2008, an anonymous person telephoned 911 to report that people were smoking ‘‘weed’’
at 136 Central Avenue in Waterbury, which is located
within 1500 feet of Driggs Elementary school. In
response to the call, Officers Michael Modeen and Martin Scanlon were dispatched to the two-family home.
The defendant lived in the first floor apartment. Modeen
knocked on the front door of the house. He and Scanlon
both detected the odor of raw marijuana. They also
heard voices coming from the rear of the house. Scanlon
notified their supervisor, Sergeant Charles Sheperd, of
the situation, and Sheperd, thereafter, arrived at the
scene. Scanlon and Sheperd walked down the driveway
toward the rear of the house, while Modeen stayed
near the front door. Scanlon smelled burning marijuana
coming from the rear of the house. Errol Burke and
Sandy Kalphat were sitting on the back porch. Burke
was smoking marijuana. There also was a small, clear
plastic bag containing a green, plant-like substance on
the table, which Burke picked up and tried to hide on
his person. Scanlon placed Burke under arrest. Sandy
Kalphat attempted to interfere with Burke’s arrest, and
Scanlon arrested her as well.
As Burke and Sandy Kalphat were being arrested,
the defendant came through the back door but quickly
retreated back inside the house. The defendant grabbed
a large, clear plastic container, which held marijuana
in brick form, weighing approximately ten pounds, and
attempted to leave via the front door. Modeen, who
was waiting near the front door, told the defendant to
drop the container. The defendant ran into the common
front hallway of the house, and Modeen followed him,
tackling him to the floor. Scanlon, who from the rear
of the house heard Modeen’s efforts to restrain and
to arrest the defendant, went through the first floor
apartment, into the common hallway, and assisted
Modeen.
After members of the vice and intelligence division
of the Waterbury police department executed a search
warrant, their further investigation of the defendant’s
apartment revealed a scale and plastic wrap that had
traces of marijuana on it. In addition, a shoebox that
contained a smaller scale, plastic ziplock bags and
$3033 in cash was found on the kitchen table. A key to
the house was located on the table near the shoebox.
In a substitute long form information, the state
charged the defendant, in count one, with possession
of a cannabis-type substance with intent to sell by a
person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and 53a-8 and, in count two,
with possession of a controlled substance with intent
to sell within 1500 feet of a public school in violation
of § 21a-278a (b). Following a jury trial, the defendant
was convicted on both counts and was sentenced on
count one to a term of ten years incarceration, execution suspended after a mandatory five years, with three
years probation, and, on count two, to a consecutive
mandatory term of three years incarceration, for a total
effective sentence of thirteen years incarceration, execution suspended after a mandatory eight years, with
three years of probation.3 Following the imposition of
sentence, the defendant filed the present appeal, contesting only his conviction of possession of a controlled
substance with intent to sell within 1500 feet of a public school.
The defendant claims that the evidence was insufficient to prove that the location of the intended sale of
the seized marijuana was within 1500 feet of a public
school. He argues: ‘‘The fact that drugs are seized at a
particular location is not, alone, sufficient to prove the
intent to sell it at that location.’’ He contends that,
although the state put forth sufficient evidence to convict him of possession of marijuana with intent to sell,
there was no evidence that any sale or distribution of
the marijuana was intended to occur in a public school
zone.4 We agree.
‘‘The standard of review [that] we [ordinarily] apply
to a claim of insufficient evidence is well established.
In reviewing the sufficiency of the evidence to support
a criminal conviction we apply a two-part test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.
. . . In evaluating evidence, the trier of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to
be reasonable and logical. . . . This does not require
that each subordinate conclusion established by or
inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . .
because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
trier, would have resulted in an acquittal. . . . On
appeal, we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
jury’s verdict of guilty. . . . Furthermore, [i]n [our]
process of review, it does not diminish the probative
force of the evidence that it consists, in whole or in
part, of evidence that is circumstantial rather than
direct. . . . It is not one fact, but the cumulative impact
of a multitude of facts [that] establishes guilt in a case
involving substantial circumstantial evidence. . . .
Indeed, direct evidence of the accused’s state of mind
is rarely available. . . . Therefore, intent is often
inferred from conduct . . . and from the cumulative
effect of the circumstantial evidence and the rational
inferences drawn therefrom. . . . [A]ny such inference
cannot be based on possibilities, surmise or conjecture.
. . . It is axiomatic, therefore, that [a]ny [inference]
drawn must be rational and founded [on] the evidence.’’
(Citation omitted; internal quotation marks omitted.)
State v. Hedge, 297 Conn. 621, 656–58, 1 A.3d 1051
(2010).
The defendant challenges his conviction of one count
of possession of a controlled substance with intent to
sell within 1500 feet of a public school in violation of
§ 21a-278a (b). Section 21a-278a (b) prohibits in relevant
part any person from ‘‘possessing with the intent to sell
or dispense . . . any controlled substance in or on,
or within one thousand five hundred feet of, the real
property comprising . . . a public or private secondary
or elementary school . . . .’’ Section 21a-278a (b) further provides in relevant part: ‘‘To constitute a violation
of this subsection, an act of . . . possessing a controlled substance shall be with intent to sell or dispense
in or on, or within one thousand five hundred feet of,
the real property comprising a public or private secondary or elementary school . . . .’’ Pursuant to § 21a-278a
(b), therefore, the state is required to prove ‘‘that the
defendant intended to sell or dispense [the] drugs in his
or her possession at a specific location, which location
happens to be within 1500 feet of a public [elementary
school], among other geographical designations.’’
(Internal quotation marks omitted.) State v. Hedge,
supra, 297 Conn. 658.
‘‘Intent is a question of fact, the determination of
which should stand unless the conclusion drawn by the
trier is an unreasonable one.’’ (Internal quotation marks
omitted.) State v. Silva, 285 Conn. 447, 460, 939 A.2d
581 (2008), aff’d after remand, 113 Conn. App. 488, 966
A.2d 798 (2009). ‘‘The state of mind of one accused of
a crime is often the most significant and, at the same
time, the most elusive element of the crime charged.
. . . Because it is practically impossible to know what
someone is thinking or intending at any given moment,
absent an outright declaration of intent, a person’s state
of mind is usually proven by circumstantial evidence.
. . . Intent may be and usually is inferred from conduct.
. . . [W]hether such an inference should be drawn is
properly a question for the jury to decide.’’ (Internal
quotation marks omitted.) State v. Francis, 90 Conn.
App. 676, 681, 879 A.2d 457, cert. denied, 275 Conn. 925,
883 A.2d 1248 (2005).
The state argues that the jury reasonably inferred
that the defendant intended to sell marijuana at the
location where he and the marijuana were seized, 136
Central Avenue, which the evidence established was
within 1500 feet of a public elementary school. The
state contends that ‘‘given the presence of nearly ten
[pounds] of marijuana, two scales, ziplock bags and
$3033 cash at 1[3]6 Central Avenue, it was reasonable
for the jury to infer that the defendant intended to
package and sell the marijuana. Because the defendant
does not dispute these facts, he also cannot dispute the
reasonable inference that the defendant intended to
package and distribute the marijuana from 1[3]6 Central
Avenue . . . .’’ The defendant argues, however, that
this final supposed inference is nothing more than
improper speculation, there having been no evidence
regarding a sale from that location or the likelihood of
a sale from that location. We agree with the defendant.
‘‘The essential elements of the crime of sale of narcotics within 1500 feet of a school are proof that the defendant sold narcotics and proof that the location of the
transaction was within 1500 feet of a school.’’ State v.
King, 289 Conn. 496, 520, 958 A.2d 731 (2008). ‘‘Mere
possession of narcotics with an intent to sell at some
unspecified point in the future, at some unspecified
place, is not enough [to prove a violation of § 21a-278a
(b)].’’ (Internal quotation marks omitted.) State v.
Hedge, supra, 297 Conn. 659–60.
In this case, the defendant does not contest his conviction of possession of a cannabis-type substance with
intent to sell by a person who is not drug-dependent;
he contests only his conviction of possession of a controlled substance with intent to sell within 1500 feet of
a school, arguing that there was absolutely no evidence
concerning a sale or the likelihood of a sale from the
location where the drugs were seized. He argues that
the only evidence regarding the likely place of sale of
the confiscated marijuana was the testimony of Sergeant Gary Angon, a member of the vice and intelligence
division of the Waterbury police department, that when
marijuana arrives in Waterbury in a compressed block
form, it gets broken down and repackaged into small
ziplock bags for sale on the street. This, he argues, does
not lead to a reasonable inference that the sales would
be conducted from the defendant’s home. We agree.
The evidence in this case tended to prove that the
defendant was carrying a large, clear plastic container
that held approximately ten pounds of compressed marijuana. Also present in the defendant’s house was plastic
wrap with marijuana residue on it and a scale. Additionally, there was a shoe box on the kitchen table that
contained a smaller scale, several plastic ziplock bags
and $3033 in cash. Angon, the only person who testified
about marijuana distribution, explained to the jury that:
‘‘the marijuana that comes into Waterbury primarily
comes in—in bulk, and it comes compressed, so it’s
easier to transport. If the marijuana’s all fluffed out like
a pillow, it’s a lot harder to get it in without someone
discovering that you’re moving a large amount of marijuana, so they compress it, they wrap it tightly in plastic,
and then they’ll use dryer sheets, there’s several different methods, but dryer sheets is a very popular one for
marijuana to throw off detection . . . .’’ Angon also
explained that people involved in the drug trade typically, use ‘‘[a] small digital scale . . . for weighing out
drugs before they’re packaged’’ and that ‘‘a gallon sized
bag is used for pounds, and the smaller ziplock bags
are used for ounces.’’ He also opined that a common
way of selling $20 worth of marijuana in Waterbury is
to package it in knotted sandwich bags. Angon testified
that he saw nothing in the defendant’s home that was
indicative of marijuana that was kept for personal use.
He stated: ‘‘People have had ounces for personal use.
It’s used typically [in] a smaller amount just because
you have the problem of storing it. It’s a . . . plant.
It’s like every other plant. Once you cut it, it decays, it
dries out, it rots . . . after a while, it just won’t be any
good, so you’re not going to have large amounts of it
for personal use because it will be no good. That’s why
they try to vacuum pack it and seal it in bags, other
than trying to hide the odor, try to keep it as fresh as
possible.’’ Angon also opined that the street value of
marijuana typically was approximately $1500 per
pound. He also opined that ‘‘you wouldn’t see someone
that was just involved in personal use of marijuana have
nine pounds of marijuana, a pound scale, a smaller
digital scale and these baggies. . . . [O]ne of the things
that we look for when someone is possessing drugs is
their amount of cash that they have on them, and $3000
worth of cash is a sign that someone’s a drug dealer.’’
Although the jury might reasonably have inferred on
the basis of the evidence that the marijuana seized from
the defendant’s home would be repackaged for sale,
the record is devoid of evidence from which the jury
reasonably could have determined the precise location
or locations of any such sales. Consequently, although
the jury reasonably could have inferred that the defendant was planning to repackage and sell the marijuana,
we conclude that, on the record before it, the jury only
could speculate about the precise location or locations
of any such sales, including, but not limited to, whether
the defendant intended to sell such marijuana at or near
his home.
The state relies on the presence of the marijuana and
the evidence seized from the box on the kitchen table
in the defendant’s home to support the defendant’s conviction for possession with intent to sell within a school
zone. This box contained ziplock bags, a scale and $3033
in cash. The state argues that the presence of these
items on the kitchen table, along with the large quantity
of marijuana, leads to the reasonable inference that the
marijuana was going to be packaged at that location
for sale, and that inference leads to the next inference
that the sales were going to take place at that location
as well. Simply put, the state argues that because it
reasonably could be inferred that the packaging of the
marijuana was going to take place at the defendant’s
home, that it also would be reasonable to infer that the
sales would take place there. We cannot agree. In the
absence of any evidence that would lead to a reasonable
inference that the defendant intended to sell marijuana
at or near his home, the defendant is entitled to a judgment of acquittal on the charge that he violated § 21a278a (b). Compare State v. Reid, 123 Conn. App. 383,
393–94, 1 A.3d 1204, cert. denied, 298 Conn. 929, 5 A.3d
490 (2010) (evidence presented included defendant
apprehended with drugs packaged for sale after he
stayed for extended period of time in parking lot located
in area known as open air drug market, in high crime
area, that was center of heroin drug trade, within 1500
feet of public housing project), with State v. Hedge,
supra, 297 Conn. 660–61 (record devoid of evidence
indicating whether defendant in vehicle intended to sell
drugs within 1500 feet of public housing project because
‘‘although the fact that [the housing project was] a place
where drugs frequently are sold might make it more
likely that the defendant was planning to sell drugs
there as opposed to some other discrete location, one
can only speculate as to whether the defendant intended
to sell drugs at or within 1500 feet of [the housing
project]’’).
The judgment is reversed only as to the conviction
of possession of a controlled substance with intent to
sell within 1500 feet of a public school and the case is
remanded with direction to render judgment of not
guilty as to that offense only. The judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
The defendant also was convicted of possession of a cannabis-type substance with intent to sell by a person who is not drug-dependent in violation
of General Statutes §§ 53a-8 and 21a-278 (b). That conviction, however, is
not at issue in this appeal.
2
Because there was insufficient evidence to support the defendant’s conviction of possession of a controlled substance with intent to sell within a
school zone, we need not consider the propriety of the court’s instructions
on the elements of that crime.
3
The defendant filed motions for a judgment of acquittal at the close
of the state’s case-in-chief, at the close of all evidence and, again, just
before sentencing.
4
There also was no evidence of any actual sale or distribution having
taken place.
