State v. Padua
Annotate this Case
Download PDF
****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE OF CONNECTICUT v. BETHZAIDA PADUA STATE OF CONNECTICUT v. WILFREDO CALVENTE STATE OF CONNECTICUT v. MIRANDA VIRGILIA CALVENTE (SC 16915) (SC 16916) Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js. Argued September 8, 2004 officially released March 29, 2005 Michele C. Lukban, assistant state s attorney, with whom, on the brief, were Patricia M. Froehlich, state s attorney, Mark A. Stabile, supervisory assistant state s attorney, and Vincent Dooley and Roger Caridad, senior assistant state s attorneys, for the appellant in Docket No. SC 16915, appellee in Docket No. SC 16916 (state). Moira L. Buckley, assistant public defender, for the appellee in SC 16915, appellant in SC 16916 (defendant Miranda Virgilia Calvente). Richard W. Callahan, special public defender, for the appellee in SC 16915 (defendant Bethzaida Padua). Sol E. Mahoney, special public defender, for the appellee in SC 16915 (defendant Wilfredo Calvente). Opinion SULLIVAN, C. J. This case involves two separate appeals. In the first, the state appeals, upon our grant of certification,1 from the judgment of the Appellate Court reversing the convictions of the defendants Bethzaida Padua, Wilfredo Calvente and Miranda Virgilia Calvente (Miranda Calvente) of the crimes of conspiracy to sell marijuana within 1500 feet of a public housing project and risk of injury to a child. The state claims that the Appellate Court improperly concluded that: (1) the evidence was insufficient to sustain the defendants convictions of risk of injury to a child because the state failed to introduce expert testimony to establish that the ingestion of raw marijuana is injurious to a child s physical health and because there was no testimony that the children were unsupervised in the presence of the marijuana; and (2) the defendants convictions for conspiracy to sell marijuana within 1500 feet of a public housing project must be reversed because of instructional error. We agree with the state on both claims and reverse the judgment of the Appellate Court in each case.2 In the second appeal, Miranda Calvente appeals, upon our grant of certification,3 from the judgment of the Appellate Court, claiming that the court improperly declined to review her claim that the evidence was insufficient to convict her of conspiracy to sell marijuana within 1500 feet of public housing project because the Village Heights Apartments, a federally subsidized multifamily housing project. The police, with the assistance of a confidential informant, effectuated controlled buys of marijuana from 171 Cameo Drive. Before each buy, the police met with the informant, searched his vehicle for money, narcotics and weapons, and provided him with prerecorded money with which to purchase the marijuana. During one of the buys, the police followed the informant to the apartment and observed him go to the door and make a purchase. The next day, the police executed a search warrant for 171 Cameo Drive. Upon entering the apartment, the police observed marijuana on the kitchen table in the process of being packaged for sale. The police also found marijuana in different locations throughout the apartment totaling 10.41 ounces and a large amount of money in the purse of the defendant Miranda Calvente. The defendants were all present in the apartment as well as the defendant Padua s two children, ages seven and three. The children were found in the kitchen where marijuana was being packaged on the table near some cereal boxes, and some marijuana was seen on the floor under the table. Both Miranda Calvente and Padua were with the children in the kitchen, and Wilfredo Calvente was apprehended as he was attempting to leave the apartment through the kitchen. 4 State v. Padua, 73 Conn. App. 386, 390 91, 808 A.2d 361 (2002). Additional facts will be set forth as necessary. The defendants were charged with: (1) possession of marijuana with intent to sell in violation of General Statutes §§ 53a-85 and 21a-277 (b);6 (2) possession of more than four ounces of marijuana in violation of General Statutes §§ 53a-8 and 21a-279 (b);7 (3) possession of marijuana with intent to sell within 1500 feet of a public housing project in violation of General Statutes §§ 53a-8, 21a-277 (b) and 21a-278a (b);8 (4) conspiracy to sell marijuana in violation of General Statutes §§ 53a489 and 21a-277 (b); (5) conspiracy to sell marijuana within 1500 feet of a public housing project in violation of §§ 53a-48, 21a-277 (b) and 21a-278a (b); and (6) two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1).10 The three defendants were tried jointly before a jury.11 Wilfredo Calvente was found guilty of all charges. Padua and Miranda Calvente were found guilty of all charges except possession of more than four ounces of marijuana. The defendants appealed from the judgments of conviction to the Appellate Court, which reversed the defendants convictions of two counts of risk of injury to a child on the ground that there was insufficient evidence and ordered the trial court to render judgments of acquittal on those charges. State v. Padua, supra, 73 Conn. App. 399. The Appellate Court also reversed the defendants convictions of conspiracy to sell marijuana within 1500 feet of a public housing proj- ect because of instructional error and remanded the matter to the trial court for a new trial on that charge. Id., 404. The Appellate Court declined to address Miranda Calvente s claim that the state had presented insufficient evidence to convict her of conspiracy to sell marijuana within 1500 feet of a public housing project, reasoning that it had already reversed that conviction because of instructional error. Id., 415 n.9. These certified appeals followed. I We first address the state s appeal. The state claims that the Appellate Court improperly reversed the defendants convictions under § 53-21 (1) because the state failed to present expert testimony concerning the possible injurious effects of the oral consumption of marijuana and direct testimony concerning the extent of the children s supervision while in close proximity to the marijuana.12 We agree with the state that neither type of evidence was required. In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . 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. (Internal quotation marks omitted.) State v. Garner, 270 Conn. 458, 472, 853 A.2d 478 (2004). 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. (Internal quotation marks omitted.) Id. [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 which establishes guilt in a case involving substantial circumstantial evidence. (Internal quotation marks omitted.) Id., 472 73. General Statutes (Rev. to 1999) § 53-21 provides in relevant part that [a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony. (Emphasis added.) The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults. State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997). Our case law has interpreted § 53-21 (1) as comprising two distinct parts and criminalizing two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. (Citation omitted; internal quotation marks omitted.) State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). Thus, the first part of § 53-21 (1) prohibits the creation of situations detrimental to a child s welfare, while the second part proscribes injurious acts directly perpetrated on the child. In the present matter, we are concerned only with the first portion of § 53-21 (1), relating to the creation of detrimental situations. Under the situation portion of § 53-21 (1), the state need not prove actual injury to the child. Instead, it must prove that the defendant wilfully created a situation that posed a risk to the child s health or morals. See generally State v. Payne, supra, 240 Conn. 771 76; State v. Apostle, 8 Conn. App. 216, 242 43, 512 A.2d 947 (1986). The situation portion of § 53-21 (1) encompasses the protection of the body as well as the safety and security of the environment in which the child exists, and for which the adult is responsible. State v. Payne, supra, 774. In the present matter, the informations charged that the defendants did wilfully and unlawfully cause and permit a child under the age of sixteen . . . to be placed in a situation where [his or her] health was likely to be impaired, to wit, by allowing said child to be near and have access to large quantities of marijuana in violation of General Statutes [§] 53-21 (1). Because the state is limited to proving that the defendant has committed the offense in substantially the manner described in the information; (internal quotation marks omitted) State v. Kyles, 221 Conn. 643, 650, 607 A.2d 355 (1992); the state in this case had to prove that the defendants created a situation likely to injure the health of the children and could not proceed under the endangerment of life or limb or the impairment of morals provisions of the situation portion of the statute. A The first part of the state s claim requires us to determine whether the Appellate Court improperly held that the state was required to present expert testimony to establish that the oral ingestion of marijuana would be likely to injure the health of a child. Expert testimony generally is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. (Internal quotation marks omitted.) State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993). Although expert testimony may be admissible in many instances, it is required only when the question involved goes beyond the field of the ordinary knowledge and experience of the trier of fact. Franchey v. Hannes, 155 Conn. 663, 666, 237 A.2d 364 (1967); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.5.4, pp. 517 20. The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters. Way v. Pavent, 179 Conn. 377, 380, 426 A.2d 780 (1979). In State v. Clark, 260 Conn. 813, 801 A.2d 718 (2002), we addressed the question of whether the effects of marijuana are within the common knowledge of jurors. In that case, the defendant was convicted of possession of a pistol or revolver in violation of General Statutes § 53a-217c, in connection with a fatal shooting. Id., 814 15. A key eyewitness for the state admitted to smoking five marijuana cigarettes prior to the shooting. Id., 817. The defendant presented no expert testimony and defense counsel did not cross-examine the eyewitness concerning the effect that the marijuana had on the eyewitness ability to perceive and recall the events on the night of the shooting. Id., 817, 819. The trial court instructed the jury that because no evidence had been presented about the marijuana s effect on the eyewitness, they could not speculate that he was or was not affected by it or how he was affected by it. Id., 819. The defendant challenged the instruction on appeal, arguing that the adverse effects of marijuana on a witness perception and memory are within the common knowledge of jurors and that no testimony was required for the jury to consider these effects.13 Id., 819, 822. We agreed. In Clark, we stated that because [marijuana] is an illegal substance, it may be that many jurors may have no firsthand knowledge regarding the effects of marijuana on one s ability to perceive and to relate events. At the same time, we cannot blink at the reality that, despite its illegality, because of its widespread use, many people know of the potential effects of marijuana, either through personal experience or through the experience of family members or friends. The ability to draw inferences about the impairing effects of marijuana, like alcohol, however, is based upon common knowledge, experience and common sense, not necessarily on personal experience. . . . The unfortunate prevalence of marijuana use, coupled with the substantial effort to educate all segments of the public regarding its dangers, underscores the reality that the likely effects of smoking five marijuana cigarettes in a short period of time before an incident are within the ken of the average juror. 14 (Citations omitted.) Id., 824 25. Accordingly, we concluded that the trial court had improperly instructed the jury that it could not consider the effect of marijuana use on the eyewitness. Id., 826. The state argues that our holding in Clark is controlling in this case and, therefore, that expert testimony was not necessary to establish the injurious effects that the ingestion of marijuana likely would have on the health of a child. The defense urges us to interpret Clark narrowly and to hold that while the effects of smoking marijuana may be within the common knowledge of jurors, the effects of eating marijuana are not and, therefore, expert testimony was required in this case. We agree with the state that the reasoning of Clark governs the outcome in this matter and hold that the detrimental effects of marijuana, regardless of the method used to introduce the drug into the body, are within the common knowledge of the average juror. Marijuana is a schedule I controlled substance. See General Statutes § 21a-243 (c);15 Regs., Conn. State Agencies § 21a-243-7 (c) (20);16 see also 21 U.S.C. § 812 (b) (1)17 and (c) (c) (10).18 General Statutes §§ 21a-277 (b) and 21a-278 (b) make it illegal to manufacture, distribute, sell, prescribe, dispense, compound, transport with intent to sell or dispense, possess with intent to sell or dispense, offer, give or administer marijuana to another person. The penalty for violating these statutes is more severe when the defendant transacts with a minor less than eighteen years of age or when the defendant induces a minor to violate these statutes. See General Statutes §§ 21a-278a (a)19 and 21a-278a (c).20 Additionally, a violation of §§ 21a-277 (b), 21a-278 (b) or 21a-279 (c)21 within 1500 feet of a public or private elementary or secondary school, licensed child day care center, or public housing project carries a more stringent penalty. See General Statutes §§ 21a-278a (b) and 21a-279 (d).22 Thus, the Connecticut legislature has made the clear determination that marijuana is a dangerous substance23 from which children, especially, should be protected.24 The public is presumed to be aware of that determination. See, e.g., Hebb v. Zoning Board of Appeals, 150 Conn. 539, 542, 192 A.2d 206 (1963) ( [i]t is a familiar legal maxim that everyone is presumed to know the law ). Moreover, although the most familiar method of consumption of the drug may be by smoking it, common knowledge, experience and common sense inform us that the effects of the drug can also be experienced if it is ingested orally.25 The defendants argue that information concerning the oral consumption of marijuana pertains to cooked marijuana and does not inform the average juror about the effects of eating raw marijuana. We do not find this distinction to be persuasive.26 Although it is reasonable to infer that the potency and longevity of the drug in the body may differ depending upon the chosen method of delivery, it is still a widely known fact that marijuana is an illegal drug that will adversely affect the recipient, ´ whether the drug is smoked, baked, sauteed, infused into alcohol, brewed in a tea, eaten raw, or consumed in any other inventive manner.27 Jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. (Internal quotation marks omitted.) Vajda v. Tusla, 214 Conn. 523, 537, 572 A.2d 998 (1990). Accordingly, we conclude that it was reasonable for the jury to infer, on the basis of its own common knowledge and experience, that the ingestion of raw marijuana would likely be harmful to the health of a child. We recognize that the precise physiological effects of marijuana and their severity may not be within the common knowledge of the average juror and that expert testimony would be helpful in establishing these effects. The only question before the jury in this case, however, was whether the ingestion of marijuana would be likely to injure a child. The jury did not need to make a determination as to the precise nature or severity of the injury. Because, as we have discussed, the effects of orally ingesting marijuana are within the common knowledge of the average juror, expert testimony was not necessary to establish a violation of § 53-21 (1). B The state also claims that the Appellate Court improperly determined that there was insufficient evidence to convict the defendants of risk of injury to a child in violation of § 53-21 (1) because there was no direct evidence concerning the supervision of the children or whether the children were permitted access to the marijuana. We agree. The following additional facts, which the jury reasonably could have found, are necessary for our resolution of this claim. In February of 1999, the police began investigating 171 Cameo Drive for suspected drug trafficking after a confidential informant reported that drug activity had been conducted from the apartment for quite some time. On March 12, 1999, the police searched the apartment, pursuant to a valid search warrant, for approximately three and one-half hours. During that time, sixteen people came to the door seeking to purchase marijuana and eleven arrests were made. Additionally, the police seized bank receipts and records indicating that beginning in November of 1998, large cash deposits had been made into the bank accounts of Calvente family members, many of whom were unemployed or had no significant income. The police seized approximately $49,500 from Calvente family bank accounts. The jury heard testimony that it is common for drug dealers to use the bank accounts of family and friends for their cash deposits. As we have noted, in reviewing an insufficiency of the evidence claim, we construe the evidence in the light most favorable to sustaining the verdict and determine whether the jury reasonably could have found that the evidence supported a finding of guilt beyond a reasonable doubt. See State v. Garner, supra, 270 Conn. 472. In this case, the jury reasonably could have concluded that the defendants had been conducting a lucrative drug trafficking operation out of 171 Cameo Drive for months prior to their arrest and that this operation was part of the daily life of the household. Additionally, because of the large volume of drug traffic and the large quantities of unsecured marijuana throughout the apartment, the jury reasonably could have concluded that it would have been difficult to keep an adequate watch on two young children. The household conditions were such that the jury reasonably could have found that even heightened standards of supervision would not have been adequate to protect the children s health. Jurors are expected to bring their common sense and common experience to the deliberation process. See Vajda v. Tusla, supra, 214 Conn. 537. Common sense and experience inform us that young children are inquisitive and impulsive. Therefore, it is reasonable to conclude that children might ingest harmful substances to which they have access on a daily basis, if such substances are not properly secured and conditions make it difficult to supervise the children adequately. Although both Padua and Miranda Calvente were present in the kitchen with the children when the police entered the apartment, the large volume of drug traffic through the apartment and the large quantity of unsecured marijuana located in close proximity to the household food and within the reach of young children, made it reasonable for the jury to infer that the children easily could have accessed the marijuana. Thus, in the present matter, the state was not required to present testimony that the children were inadequately supervised. Con- struing the evidence in the light most favorable to sustaining the jury s verdict, we conclude that the jury reasonably could have found beyond a reasonable doubt that the children had access to the marijuana and, therefore, that the defendants wilfully created a situation detrimental to the welfare of the children in violation of § 53-21 (1). Accordingly, we reverse the judgment of the Appellate Court with respect to the risk of injury charges.28 C Miranda Calvente asserts as an alternate ground for affirmance that the evidence was insufficient to convict her under § 53-21 (1) because the state failed to present evidence that she wilfully created a situation likely to impair the health of the children or that she was in a position to protect the children from risk. Specifically, she argues that there was no evidence that she brought the marijuana into the apartment or that she had a duty to care for the children while their parents were present. We disagree. Under the situation portion of § 53-21 (1), wilful means doing a forbidden act purposefully in violation of the law. (Emphasis in original.) State v. Miranda, 56 Conn. App. 298, 312 13, 742 A.2d 1276 (2000), rev d on other grounds, 260 Conn. 93, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). It means that the defendant acted intentionally in the sense that [her] conduct was voluntary and not inadvertent . . . . (Emphasis in original.) Id., 313. Therefore, wilful misconduct is intentional misconduct, which is conduct done purposefully and with knowledge of [its] likely consequences. (Emphasis in original.) Id. (defendant acted wilfully when he failed to protect infant child from abuse by live-in girlfriend); State v. Smalls, 78 Conn. App. 535, 546 48, 827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d 806 (2003) (defendant acted wilfully and with reckless disregard to child s mental health when he shot father in front of child, even if he did not know child was victim s daughter). We reiterate that when reviewing a claim of evidentiary insufficiency, we construe the evidence in the light most favorable to sustaining the verdict and determine whether, on the basis of the evidence, the jury reasonably could have found the defendant guilty beyond a reasonable doubt. State v. Garner, supra, 270 Conn. 472. The jury found Miranda Calvente guilty of possession of marijuana with intent to sell in violation of §§ 53a-8 and 21a-277, possession of marijuana with intent to sell within 1500 feet of a public housing project in violation of §§ 53a-8, 21a-277 (b) and 21a-278a (b), conspiracy to sell marijuana in violation of §§ 53a-48 and 21a-277 (b), and conspiracy to sell marijuana within 1500 feet of a public housing project in violation of §§ 53a-48, 21a-277 (b) and 21a-278a (b). As discussed in the Appellate Court opinion and in part III B of this opinion, the evidence was sufficient to support her conviction of these charges. See State v. Padua, supra, 73 Conn. App. 414 20. Although there was no direct evidence that she brought the marijuana into the apartment on the night of March 12, 1999, there was evidence that she was in possession or control of some of the marijuana29 and that she was part of an ongoing criminal conspiracy to conduct a drug trafficking operation out of the apartment. Thus, the evidence established that Miranda Calvente intentionally participated in a drug trafficking enterprise in which large quantities of marijuana were left unsecured in the common areas of the apartment and within the reach of young children. Additionally, Miranda Calvente knew the likely consequences of her actions because, as discussed in part I A of this opinion, it is common knowledge that the oral ingestion of marijuana would likely be injurious to the health of children. Accordingly, construing the evidence in the light most favorable to sustaining the verdict, the evidence was sufficient for the jury reasonably to conclude that Miranda Calvente acted wilfully and in a manner likely to pose a risk of injury to the health of her grandchildren. Miranda Calvente relies on our holding in State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998) (Miranda I), appeal after remand, 260 Conn. 93, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002), in support of her claim that a legal duty to protect the children from harm must exist for her convictions under § 53-21 (1) to stand.30 Her reliance on Miranda I is misplaced. In that case, we upheld the defendant s conviction of first degree assault under General Statutes § 53a-59 (a) (3) for his failure to protect his live-in girlfriend s child from physical abuse at the hands of her mother because, although he was not the child s biological father, he had assumed a paternal role within the family and thus had a legal duty to protect the child. Id., 226 30. The defendant s conviction in Miranda I was predicated on his failure to act when he had a legal duty to do so. In the present matter, however, the jury found that Miranda Calvente actively assisted in the creation of a situation dangerous to the children s health. Therefore, Miranda Calvente s conviction is based on her affirmative acts, rather than on the failure to act where a legal duty exists, as in Miranda I.31 General Statutes (Rev. to 1999) § 53-21 provides in relevant part that [a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that . . . the health of such child is likely to be injured . . . shall be guilty of a class C felony. (Emphasis added.) The clear language of § 53-21 (1) and the case law interpreting it contain no requirement that the defendant be a parent or guardian of the child or owe a duty of care to the child in order to be convicted under the statute. See, e.g., State v. March, 39 Conn. App. 267, 269, 275 76, 664 A.2d 1157 (defendant convicted under § 53-21 for, inter alia, providing four year old child with rum while her mother was present), cert. denied, 235 Conn. 930, 667 A.2d 801 (1995); In re John C., 20 Conn. App. 694, 696 97, 569 A.2d 1154 (1990) ( [a]ny person in § 5321 includes minors). Because the evidence was sufficient for the jury to find, beyond a reasonable doubt, that Miranda Calvente wilfully created a situation posing risk of harm to the health of the children, we reject her alternate ground for affirmance and reverse the judgment of the Appellate Court with respect to her conviction under § 53-21 (1). II The state s second claim on appeal requires us to determine whether the Appellate Court improperly reversed the defendants convictions for conspiracy to sell marijuana within 1500 feet of a public housing project because of instructional error. Wilfredo Calvente argues that if we reverse the Appellate Court s judgment and remand the matter with direction to reinstate the defendants convictions, imposing a sentence both for conspiracy to sell marijuana and for conspiracy to sell marijuana within 1500 feet of a public housing project would violate the double jeopardy clause of the United States constitution. We conclude that the Appellate Court properly found that the trial court s jury instructions were improper, but hold that the impropriety was harmless. Additionally, we agree that imposing a sentence for both conspiracy counts would violate the double jeopardy clause. A The state argues that the Appellate Court improperly reversed the defendants convictions for conspiracy to sell marijuana within 1500 feet of a public housing project because of instructional error. See State v. Padua, supra, 73 Conn. App. 402 405. The trial court instructed the jury as follows: A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he or she 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. The elements of the crime are identical [to] those in count four with the added element that the state must prove beyond a reasonable doubt that the conspiracy occurred within 1500 feet of a public housing project. (Emphasis added; internal quotation marks omitted.) The Appellate Court found, and the defendants argue, that the trial court s instruction was improper because it omitted the essential element that the object of the conspiracy must be to sell marijuana within 1500 feet of a public housing project and, instead, improperly instructed the jury that the conspiracy or agreement to sell marijuana must occur within 1500 feet of a public housing project.32 State v. Padua, supra, 402 404. The state concedes that the instruction was improper, but argues that because there was overwhelming and incontrovertible evidence that the marijuana sales occurred at 171 Cameo Drive, which was located in a public housing project, and because the jury found the defendants guilty of conspiracy to sell marijuana and possession of marijuana with intent to sell within 1500 feet of a public housing project, the jury necessarily must have found that the defendants conspired to sell marijuana within 1500 feet of a public housing project. Therefore, the state contends, the improper instruction was harmless beyond a reasonable doubt. We agree. It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are. (Citations omitted; internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 483 84, 668 A.2d 682 (1995). If an improper jury instruction is of constitutional magnitude, the burden is on the state to prove harmlessness beyond a reasonable doubt. State v. Spillane, 255 Conn. 746, 757, 770 A.2d 898 (2001). An alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled. . . . In performing harmless error analysis, we keep in mind that [i]n determining whether it was indeed reasonably possible that the jury was misled by the trial court s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. (Citations omitted; internal quotation marks omitted.) Id. When a jury is misinstructed on an essential element of a crime and a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986). Further, a jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncon- tested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . . (Emphasis in original; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 737 38, 759 A.2d 995 (2000), quoting Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy. (Internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3 4, 505 A.2d 683 (1986). Thus, [p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense. (Internal quotation marks omitted.) Id., 5. In the present matter, the charged object of the conspiracy was to sell marijuana within 1500 feet of a public housing project. The essential elements of the crime of conspiracy to sell marijuana within 1500 feet of a public housing project are (1) intent to agree or conspire, (2) intent to sell marijuana within 1500 feet of a public housing project, and (3) an overt act committed in pursuance of this conspiracy. See General Statutes §§ 53a-48, 21a-277 (b) and 21a-278a (b). Thus, it was the state s burden to establish that the defendants conspired or agreed to sell marijuana at a specific location within 1500 feet of a public housing project and that an overt act was committed in pursuance of the conspiracy. Cf. State v. Denby, supra, 235 Conn. 483. We conclude that the trial court s instruction, that the state must prove beyond a reasonable doubt that the conspiracy occurred within 1500 feet of a public housing project ; (emphasis added); misstates the state s burden of proof concerning the object of the conspiracy and was, therefore, improper. We also conclude, however, that the instructional impropriety was harmless. In the present case, the jury necessarily found that the defendants intended to agree or to conspire to sell marijuana because it found them guilty of conspiracy to sell marijuana in violation of §§ 53a-48 and 21a-277 (b). The jury also necessarily found that the defendants actually sold marijuana within 1500 feet of a public housing project or that they intended to sell marijuana within 1500 feet of a public housing project because it found them guilty of possession of marijuana with intent to sell within 1500 feet of a public housing project in violation of §§ 53a-8, 21a-277 (b) and 21a-278a (b).33 Additionally, in order to find the defendants guilty of conspiracy to sell marijuana, the jury must have found, beyond a reasonable doubt, the occurrence of at least one of the following charged overt acts, all of which took place within a public housing project:34 (1) [t]hat one or more of said parties did conduct sales of marijuana from the residence of Wilfredo Calvente at 171 Cameo Drive, Willimantic, CT; (2) [t]hat one or more of said parties did possess a large quantity of marijuana, to wit approximately 13 ounces of marijuana within said residence; (3) [t]hat one or more of said parties did separate and package said marijuana for purposes of resale within said residence. As the Appellate Court held and as we recognize in part III B of this opinion, the evidence was sufficient to convict the defendants of all of these charges. See State v. Padua, supra, 73 Conn. App. 406 12, 414 23. The defendants argue that even if the jury necessarily made these findings, it reasonably could have found that the defendants conspired to sell marijuana, but that they did not form the intent to sell the marijuana within 1500 feet of a public housing project until later. Thus, the defendants contend, the jury did not necessarily conclude that they conspired to sell marijuana within 1500 feet of a public housing project because it is possible that the actual location for selling the marijuana could have differed from the initial location on which they agreed. We reject this argument. The incontrovertible and overwhelming evidence produced at trial established that 171 Cameo Drive was located in a public housing project, that large quantities of marijuana were packaged for sale inside the apartment and that sales of marijuana were conducted from the apartment. There was no evidence that the defendants had contemplated selling the marijuana anywhere other than at 171 Cameo Drive. We are satisfied beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error. (Emphasis in original; internal quotation marks omitted.) State v. Montgomery, supra, 254 Conn. 738. This conclusion also disposes of the claims of Miranda Calvente and Padua, with respect to their convictions, that the instructional impropriety could not have been harmless beyond a reasonable doubt because there was no direct evidence of their active involvement in a conspiracy to sell marijuana from the apartment and because they produced witnesses and evidence to rebut the state s charges. These defendants did not dispute, however, the incontrovertible and overwhelming evidence that 171 Cameo Drive was located within a public housing project, that large quantities of marijuana were being packaged for sale inside the apartment, or that sales of marijuana were conducted from the apartment. Instead, they sought to convince the jury that the evidence was insufficient to establish beyond a reasonable doubt that they were active participants in the drug trafficking enterprise. As we have noted, the jury reasonably found Miranda Calvente and Padua guilty of, inter alia, possession of marijuana with intent to sell, possession of marijuana with intent to sell within 1500 feet of a public housing project, and conspiracy to sell marijuana.35 As we also have noted, there was no evidence that any of the defendants intended to or did sell marijuana from any location except 171 Cameo Drive. Therefore, a rational juror could only have found that the defendants were part of a conspiracy to sell marijuana within 1500 feet of a public housing project. See State v. Spillane, supra, 255 Conn. 758 59; State v. Montgomery, supra, 254 Conn. 738. Accordingly, we conclude that the improper jury instruction was harmless beyond a reasonable doubt and reverse the judgment of the Appellate Court.36 B We next address the argument37 that if we reinstate the defendants convictions for conspiracy to sell marijuana within 1500 feet of a public housing project, we should affirm the Appellate Court s judgment38 that each defendant s two conspiracy convictions should be combined and their respective sentences for conspiracy to sell marijuana should be vacated because the imposition of separate sentences for both convictions would violate the defendants right to be free from multiple punishments for the same offense under the double jeopardy clause of the fifth amendment to the United States constitution.39 See State v. Padua, supra, 73 Conn. App. 404 406. We agree. The state did not brief or argue the issue before this court, but conceded on appeal to the Appellate Court that each defendant s conviction of two counts of conspiracy resulting in two sentences arose out of the same agreement and violated their respective rights under the double jeopardy clause. Id., 405. We conclude that the Appellate Court properly determined that the appropriate remedy for the constitutional violation, under State v. Howard, 221 Conn. 447, 604 A.2d 1294 (1992), and State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), was to combine the conspiracy convictions, to vacate the sentence for the lesser offense of conspiracy to sell a controlled substance in violation of §§ 53a-48 and 21a-277 (b), and to sentence the defendants only for conspiring to commit the offense within 1500 feet of a public housing project. 40 State v. Padua, supra, 73 Conn. App. 406. The defendants were charged with two conspiracies both arising on the same date and at the same place. Essentially, the state charged the defendants with entering into a single unlawful agreement to commit two criminal purposes. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute . . . . For such a violation, only the single penalty prescribed by the statute can be imposed. (Internal quotation marks omitted.) State v. Howard, supra, 221 Conn. 462, quoting Braverman v. United States, 317 U.S. 49, 53 54, 63 S. Ct. 99, 87 L. Ed. 23 (1942). Accordingly, the defendants multiple sentences for two separate conspiracies arising out of a single unlawful agreement cannot stand. See State v. Vasquez, 66 Conn. App. 118, 126 27, 783 A.2d 1183 (conviction and sentence for conspiracy to sell narcotics and conspiracy to sell narcotics within 1500 feet of school violate double jeopardy clause), cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). In State v. Howard, supra, 221 Conn. 462 63, we decided that the proper remedy for a double jeopardy violation arising out of two separate convictions and sentences for one unlawful conspiracy is to combine the two conspiracy convictions and vacate the sentence for one of them. It is appropriate to merge the two conspiracy convictions because if the remaining conspiracy conviction were later invalidated upon collateral attack for a reason not affecting the merged conspiracy conviction, that unaffected conviction would be resuscitated and the defendant punished for it. Id., 463. [W]hen deciding which of two sentences to vacate when both cannot stand, the determinative factor is the intention of the sentencing judge. State v. Chicano, supra, 216 Conn. 713, citing Green v. United States, 365 U.S. 301, 306, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961). In the present matter, Miranda Calvente and Padua were both sentenced to two years imprisonment, execution suspended, and three years probation for the charge of conspiracy to sell marijuana and to three years imprisonment for the charge of conspiracy to sell marijuana within 1500 feet of a public housing project.41 Wilfredo Calvente was sentenced to one year imprisonment, to run concurrently with the remainder of his sentence, for the charge of conspiracy to sell marijuana, and to three years imprisonment, to run consecutively with the remainder of his sentence, with four years special parole, for the charge of conspiracy to sell marijuana within 1500 feet of a public housing project. We conclude that the sentences and the manner in which they were imposed clearly indicate that the sentencing judge intended for the sentences for the convictions of conspiracy to sell marijuana within 1500 feet of a public housing project to control. See State v. Chicano, supra, 714. Accordingly, we conclude that the Appellate Court properly determined that the cases should be remanded to the trial court with direction to combine the conspiracy convictions, to vacate the sentences for conspiracy to sell marijuana in violation of §§ 53a-48 and 21a-277 (b) and to sentence the defendants only for conspiring to sell marijuana within 1500 feet of a public housing project in violation of §§ 53a-48, 21a-277 (b) and 21a278a (b). III We next address Miranda Calvente s claims on appeal. First, she argues that the Appellate Court improperly declined to review her claim that the evidence was insufficient to convict her of conspiracy to sell marijuana within 1500 feet of a public housing project after reversing her conviction on that charge for instructional error. Second, she asks this court to review the merits of her insufficiency claim and to hold that the evidence was insufficient to support her conviction of conspiracy to sell marijuana within 1500 feet of a public housing project. We conclude that it was improper for the Appellate Court to decline to review Miranda Calvente s insufficiency claim, but further conclude that the evidence was sufficient for the jury to convict her beyond a reasonable doubt. The following procedural history is relevant to our resolution of this claim. On appeal to the Appellate Court, Miranda Calvente alleged, inter alia, that (1) the evidence was insufficient to support her conviction for conspiracy to sell marijuana, (2) the trial court improperly instructed the jury on the essential elements of conspiracy to sell marijuana, (3) the evidence was insufficient to support her conviction for conspiracy to sell marijuana within 1500 feet of a public housing project and (4) the trial court improperly instructed the jury on the essential elements of conspiracy to sell marijuana within 1500 feet of a public housing project. See State v. Padua, supra, 73 Conn. App. 399 404, 415 n.9. The Appellate Court reviewed Miranda Calvente s unpreserved claims of instructional error under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).42 The court concluded that the trial court s instructions on the charge of conspiracy to sell marijuana were proper and affirmed her conviction on that charge. See State v. Padua, supra, 399 402. The court determined, however, that it was reasonably possible that the jury was misled by the trial court s instructions on the charge of conspiracy to sell marijuana within 1500 feet of a public housing project and, accordingly, reversed Miranda Calvente s conviction on that charge. See id., 403 404; see also part II A of this opinion. The Appellate Court did not review or expressly decline to review Miranda Calvente s claim on appeal that the evidence was insufficient to support her conviction of conspiracy to sell marijuana. It did, however, decline to review her claim that the evidence was insufficient to support her conviction of conspiracy to sell marijuana within 1500 feet of a public housing project because it had already reversed her conviction of that charge for instructional error. State v. Padua, supra, 73 Conn. App. 415 n.9.43 A The first part of Miranda Calvente s claim on appeal requires us to determine whether an Appellate Court must review a criminal defendant s insufficiency of the evidence claim prior to remanding a matter for a retrial because of trial error. She argues that the Appellate Court s failure to review her claim that the evidence was insufficient to support her conviction of conspiracy to sell marijuana within 1500 feet of a public housing project, because the court had already reversed her conviction on the grounds of instructional error, violated the double jeopardy clause of the United States constitution.44 Miranda Calvente points out that, had the Appellate Court reviewed her claim and found the evidence to be insufficient, resulting in a judgment of acquittal, a retrial would have been barred by the double jeopardy clause. Therefore, she contends, the prohibition against double jeopardy required the Appellate Court to review her insufficiency of the evidence claim. The state agrees with Miranda Calvente. We need not address Miranda Calvente s double jeopardy argument because we hold, pursuant to our general supervisory authority over appellate procedure, that a reviewing court must address a defendant s insufficiency of the evidence claim. Appellate courts possess an inherent supervisory authority over the administration of justice. . . . Under our supervisory authority, we have adopted rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process. . . . [O]ur supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [E]ven a sensible and efficient use of the supervisory power . . . is invalid if it conflicts with constitutional or statutory provisions. (Citations omitted; internal quotation marks omitted.) State v. Higgins, 265 Conn. 35, 61 n.26, 826 A.2d 1126 (2003). Interests of judicial efficiency, sound appellate policy and fundamental fairness require a reviewing court to address a defendant s insufficiency of the evidence claim prior to remanding a matter for retrial because of trial error. Pursuant to Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), a defendant is entitled to a judgment of acquittal and retrial is barred if an appellate court determines that the evidence is insufficient to support the conviction. As the Seventh Circuit Court of Appeals observed, [a]ll retrials involve duplicative efforts by judges, juries, prosecutors and defendants, at considerable expense in time and money to all, and in anxiety to the defendant. If in fact insufficient evidence is presented at a first trial, a retrial, on any basis, ordinarily may be expected to be a wasted endeavor. United States v. Douglas, 874 F.2d 1145, 1150 (7th Cir.), cert. denied, 493 U.S. 841, 110 S. Ct. 126, 107 L. Ed. 2d 87 (1989); see also United States v. Wallach, 979 F.2d 912, 918 (2d Cir. 1992) ( we prefer not to subject the defendant to retrial without express consideration of the sufficiency challenges that he asserts were not disposed of on the prior appeal ), cert. denied, 508 U.S. 939, 113 S. Ct. 2414, 124 L. Ed. 2d 637 (1993). For these reasons, we conclude, on the basis of our supervisory authority over appellate procedure and the administration of justice, that a reviewing court must address a defendant s insufficiency of the evidence claim, if the claim is properly briefed and the record is adequate for the court s review, because resolution of the claim may be dispositive of the case and a retrial may be a wasted endeavor. United States v. Douglas, supra, 1150. Accordingly, we conclude that the Appellate Court improperly declined to review Miranda Calvente s insufficiency of the evidence claim. B Thus, we must determine whether the evidence presented at trial was sufficient to support Miranda Calvente s conviction for conspiracy to sell marijuana within 1500 feet of a public housing project in violation of §§ 53a-48, 21a-277 (b) and 21a-278a (b).45 Miranda Calvente contends that the state presented insufficient evidence for the jury to find, beyond a reasonable doubt, that she knowingly agreed or conspired to sell marijuana within 1500 feet of a public housing project. We disagree. The following additional facts, which the jury reasonably could have found, are necessary for our resolution of this claim. On the evening of March 12, 1999, after their second successful controlled buy of marijuana that afternoon, the police searched Miranda Calvente s purse during the execution of a search warrant for 171 Cameo Drive. The purse was located on a chair at the kitchen table. The inside of the purse was divided into two sections. On one side the police found $2500 in $10 and $20 bills folded over and wrapped in a blue hair band, while on the other side they found $282 in $10, $5 and $1 bills folded over in a similar manner. Inside the bundle of $2500, the police found a marked $10 bill that had been used earlier that day during a controlled drug purchase from the apartment. Willimantic police officers testified that the manner in which the bills were folded and separated was typical of narcotics traffickers. On March 13, 1999, Wilfredo Calvente made a written statement to the police that he was the only one who buys, sells . . . and smokes the marijuana that the police found. The trial court also admitted the following information concerning Miranda Calvente s husband for the limited purpose of establishing a conspiracy. On the night of Miranda Calvente s arrest, her husband, Jose Calvente, Sr., came to the police station claiming that the money found in her purse belonged to him, that he had earned it working overtime and that he had given it to his wife to deposit in her bank account. Although he was unsure of the amount of money he had given her, he knew it was a large amount. The next day, when he made a written statement to the police, he knew the exact amount of money found in Miranda Calvente s purse. The state also presented evidence and testimony concerning Miranda Calvente s income and bank account. Between January and October, 1998, she received $559 per month by check from a state child care assistance program for babysitting her grandchildren. Additionally, Wilfredo Calvente told the police that he tried to pay Miranda Calvente a little bit, $40 or $50 a week for babysitting his children. The state also introduced a notarized statement, signed by Miranda Calvente, dated March 12, 1999, and addressed to the Norwich housing authority, stating that Miranda Calvente had no income or benefits. On March 23, 1999, the police seized Miranda Calvente s bank account containing $6806.08. The records of the account revealed that a net amount of $2200 in cash and checks had been deposited in the account between January, 1998, and January, 1999. Additionally, beginning in November of 1998, large cash deposits were made in the bank accounts of Calvente family members, many of whom were unemployed or had no significant income. Testimony was presented that it is common for drug dealers to use the bank accounts of family and friends for their cash deposits. The standard for reviewing a claim of evidentiary insufficiency, as set forth in part I of this opinion, requires us to construe the evidence in the light most favorable to sustaining the verdict and to determine whether the jury reasonably could have found the defendant guilty beyond a reasonable doubt. State v. Garner, supra, 270 Conn. 472. 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. (Internal quotation marks omitted.) State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975). Because of the secret nature of conspiracies, a conviction usually is based on circumstantial evidence. . . . Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words we have an agreement. . . . Indeed, a conspiracy can be inferred from the conduct of the accused . . . and his coconspirator, as well as from the circumstances presented as evidence in the case. (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 227, 733 A.2d 156 (1999). To meet its burden of proof, the state must produce sufficient evidence for the jury to find beyond a reasonable doubt that Miranda Calvente (1) intentionally agreed or conspired, (2) to sell marijuana at a geographic location within 1500 feet of a public housing project and (3) that an overt act was committed in pursuance of this conspiracy. See General Statutes §§ 53a-48, 21a-277 (b) and 21a-278a (b); see also State v. Denby, supra, 235 Conn. 483. Miranda Calvente contends that the state produced insufficient evidence of an agreement.46 Essentially, she argues that none of the evidence produced at trial established that she knowingly engaged in a mutual plan to do a forbidden act with other individuals. We disagree. On the basis of the evidence presented at trial, the jury could have reasonably found the following facts. At the time of her arrest, Miranda Calvente was in the kitchen of 171 Cameo Drive, which is located in a public housing project, with Wilfredo Calvente and Padua, where a large quantity of marijuana was being packaged for resale. Although she was unemployed, she had $2782 in her purse, folded and separated in a manner consistent with drug trafficking and containing a marked $10 bill that had been used earlier that day in a controlled drug purchase from the apartment. Additionally, the deposits made in Miranda Calvente s account and family member accounts were consistent with drug trafficking. We conclude that, viewing the evidence in the light most favorable to sustaining the jury s verdict, it was reasonable for the jury to conclude that Miranda Calvente intentionally agreed or conspired to sell marijuana within 1500 feet of a public housing project. Miranda Calvente relies on State v. Goodrum, 39 Conn. App. 526, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995), to support her claim to the contrary. In Goodrum, the police were monitoring the defendant and his brother, Moses Pipkin, for suspected drug trafficking. Id., 529. After the police observed the defendant carrying a brown paper bag and using a key to enter Pipkin s apartment building, they obtained and executed a search warrant for Pipkin s apartment. Id. They found a brown paper bag containing narcotics and an empty box formerly containing a beeper. Id., 530. The police then obtained and executed a search warrant for the defendant s apartment. Id. They found a key to Pipkin s apartment and the missing beeper. Id. Pipkin testified that he had been in the hospital for the three weeks prior to the search and that he had given the defendant the key to his apartment but he denied any knowledge of the contents of the paper bag or of any alleged drug trafficking at his apartment. Id., 531. On the basis of this evidence, the jury found the defendant guilty of possession of narcotics with intent to sell and conspiracy to sell narcotics. Id., 528. On appeal, the Appellate Court affirmed the defendant s possession conviction but reversed the defendant s conspiracy conviction because there was insufficient evidence to establish an agreement. Id., 537, 541. The Appellate Court explained that the only evidence of a connection between the defendant and Pipkin was the key to Pipkin s apartment. Id., 539. The court held that [t]he jury did not have to believe [Pipkin s testimony], but there was no affirmative evidence to the contrary and the jury was not free to believe the opposite. Id., 540. Miranda Calvente argues that here, as in Goodrum, [t]he only connection between [Miranda Calvente] and the drug proceeds was the [$10] marked bill in her purse and that [t]he state in this case presented no evidence to contradict Wilfredo [Calvente s] statement [that he alone was involved in drug activity], therefore the jury was not free to believe otherwise. We disagree with Miranda Calvente s characterization of the evidence in this case and find the facts in Goodrum to be distinguishable. In the present matter, there was more evidence connecting Miranda Calvente to the drug sales and proceeds than the $10 marked bill found in her purse. First, she was present in the kitchen, where a large quantity of marijuana was being packaged for resale, when the police entered the apartment. In Goodrum, Pipkin was not present in the apartment with his brother when the alleged drug activity took place. Second, the state presented evidence of relatively large cash deposits made in Miranda Calvente s bank account in the year prior to her arrest. No such evidence of suspicious financial activity was introduced in Goodrum. Third, in the present matter, the connection to drug activity was the possession of a marked $10 bill, used earlier that day in a drug sale conducted from the apartment and found within a large amount of cash separated and folded in a manner consistent with drug trafficking. In Goodrum, the only connection to drug activity was the possession of a key to a family member s apartment. Whereas the possession of the proceeds of a drug sale in such a manner is highly probative evidence of an agreement to sell drugs, the possession of a key to a family member s apartment, standing alone, is not. See, e.g., State v. Sweeney, 30 Conn. App. 550, 559, 621 A.2d 304 (sufficient evidence of conspiracy to sell marijuana where defendant knew of marijuana distribution operation conducted from apartment, purchased plastic bags used to package marijuana and knew money in her possession was proceeds of drug operation), cert. denied, 225 Conn. 927, 625 A.2d 827 (1993). We also reject Miranda Calvente s contention that the jury could not reasonably find an agreement to sell marijuana in the present matter because the state presented no affirmative evidence to contradict Wilfredo Calvente s written statement that he alone was involved in drug activity. Credibility is . . . a question for the trier of fact, and the trier is entitled to believe some or all of the testimony that has been presented. State v. Alfonso, 195 Conn. 624, 633 34, 490 A.2d 75 (1985). Thus, the jury was not required to believe Wilfredo Calvente s statement.47 The question, rather, is whether there was sufficient evidence for the jury to believe that Wilfredo Calvente s statement was false and that Wilfredo Calvente or others agreed with Miranda Calvente to conduct drug activity from the apartment. As we have indicated, the state presented ample affirmative evidence contradicting Wilfredo Calvente s statement and indicating Miranda Calvente s involvement in a conspiracy. Cf. id., 634 (insufficient evidence of defendant s possession of marijuana where defendant s only connection to marijuana was that it was found in common room of apartment and only one of defendant s two roommates, both of whom were not home when search was conducted, denied possession). Finally, Miranda Calvente argues that the evidence presented at trial could be construed in a manner consistent with her innocence. We reiterate that the jury need not draw all reasonable inferences consistent with the defendant s innocence and that, on appeal, we ask whether there is a reasonable view of the evidence that supports the jury s verdict of guilty. (Internal quotation marks omitted.) State v. Garner, supra, 270 Conn. 473. For the reasons explained previously, we conclude that the evidence was sufficient for the jury to conclude, beyond a reasonable doubt, that Miranda Calvente was guilty of conspiracy to sell marijuana within 1500 feet of a public housing project.48 Accordingly, the judgment of the Appellate Court in each case with respect to the charges of risk of injury to a child cannot stand. With respect to the charges of conspiracy to sell marijuana within 1500 feet of a public housing project, we conclude that the Appellate Court improperly reversed the convictions on the ground that the trial court s instructions were improper. We agree with the Appellate Court s conclusion that the imposition of separate sentences for conspiracy to sell marijuana and conspiracy to sell marijuana within 1500 feet of a public housing project would violate the double jeopardy clause of the United States constitution and that the conspiracy convictions of each defendant should be merged and the lesser sentences vacated. The judgment of the Appellate Court is reversed only as to the defendants convictions of risk of injury to a child and conspiracy to sell marijuana within 1500 feet of a public housing project and the cases are remanded to the Appellate Court with direction to reinstate the trial court s judgments of guilty of risk of injury to a child and to remand the matter to the trial court with direction to combine the two conspiracy convictions of each defendant, to vacate the respective sentences for conspiracy to sell marijuana and to sentence each defendant only on the respective convictions of conspiracy to sell marijuana within 1500 feet of a public housing project. In this opinion PALMER, VERTEFEUILLE and ZARELLA, Js., concurred. 1 We granted certification limited to the following issues: 1. Did the Appellate Court properly conclude that there was insufficient evidence of the crime of risk of injury to a child? 2. Did the Appellate Court properly reverse the convictions of the defendants on count five, conspiracy to sell a controlled substance within 1500 feet of a public housing project, for instructional error? State v. Padua, 262 Conn. 941, 942, 815 A.2d 672 (2003). 2 We also agree with the claim that, if we reinstate the defendants conspiracy convictions, sentencing the defendants both for conspiracy to sell marijuana and conspiracy to sell marijuana within 1500 feet of a public housing project would violate the double jeopardy clause of the United States constitution. Accordingly, we remand the cases to the Appellate Court with direction to remand the cases to the trial court with direction to combine each defendant s two conspiracy convictions, to vacate the respective sentences for conspiracy to sell marijuana and to sentence each defendant only on the respective convictions of conspiracy to sell marijuana within 1500 feet of a public housing project. 3 We granted certification limited to the following issue: Did the Appellate Court properly decline to review the claim of the defendant Miranda Virgilia Calvente, that there was insufficient evidence to convict her of conspiracy to sell marijuana within 1500 feet of a public housing project and conspiracy to sell marijuana, on the ground that it had reversed her convictions of those offenses for instructional error? State v. Padua, 262 Conn. 941, 815 A.2d 672 (2003). 4 Wilfredo Calvente and Padua are the children s parents and Miranda Calvente is Wilfredo Calvente s mother and the children s grandmother. 5 General Statutes § 53a-8 (a) provides: A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. 6 General Statutes § 21a-277 (b) provides in relevant part: Any person who . . . possesses with intent to sell or dispense . . . any controlled substance . . . may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned . . . . 7 General Statutes § 21a-279 (b) provides in relevant part: Any person who possesses or has under his control . . . four ounces or more of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than five years or be fined not more than two thousand dollars or be both fined and imprisoned . . . . 8 General Statutes § 21a-278a (b) provides in relevant part: Any person who violates section 21a-277 or 21a-278 by . . . possessing with the intent to sell or dispense . . . to another person any controlled substance in or on, or within one thousand five hundred feet of . . . a public housing project . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . . . 9 General Statutes § 53a-48 (a) provides: 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. 10 General Statutes (Rev. to 1999) § 53-21 provides in relevant part: Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony. 11 Benjamin Calvente, Miranda Calvente s son and Wilfredo Calvente s brother, was similarly charged and tried with the defendants. The jury acquitted him of all charges. 12 Although the Appellate Court opinion states that the defendants conceded that their insufficiency claims were unpreserved; State v. Padua, supra, 73 Conn. App. 391; the defendants maintain that they made no such concession and our review of the record reveals that all three defendants preserved their insufficiency claims in their respective motions for judgment of acquittal at the end of the state s case-in-chief. Therefore, these claims are properly preserved for our review. 13 The state did not contend that expert testimony on the effects of marijuana was necessary, but rather, that some testimony concerning its effect on the eyewitness was necessary before the jury could consider the evidence of drug use. State v. Clark, supra, 260 Conn. 821. This burden could have been satisfied, the state argued, by cross-examination of the eyewitness. Id. 14 We summarized the state of public knowledge of the effects of marijuana as follows. Over the past several years, millions of dollars of state, federal and private funds have been expended on informing the public of the dangers and the impact of marijuana use. The following basic information exemplifies what is readily available on the internet and in various print media: Effects of smoking [marijuana] are generally felt within a few minutes and peak in [ten] to [thirty] minutes. They include dry mouth and throat, increased heart rate, impaired coordination and balance, delayed reaction time, and diminished short-term memory. Moderate doses tend to induce a sense of well-being and a dreamy state of relaxation that encourages fantasies, renders some users highly suggestible, and distorts perception (making it dangerous to operate machinery, drive a car or boat, or ride a bicycle). Stronger doses prompt more intense and often disturbing reactions including paranoia and hallucinations. American Council for Drug Education, Basic Facts About Drugs: Marijuana, (1999) at http://www.acde.org/youth/ Research.htm; see also National Institute of Drug Abuse, Marijuana: Facts for Teens, (November, 1998) at http://www.nida.nih.gov/MarijBroch/Marijteenstxt.html ( short-term effects of marijuana include: problems with memory and learning; distorted perception [sights, sounds, time, touch]; trouble with thinking and problem-solving; loss of coordination; and increased heart rate, anxiety ). Moreover, surveys of marijuana use show a significant percent of the public has used marijuana at least once by the time they are in twelfth grade. See, e.g., National Institute of Drug Abuse, Marijuana, Other Drug Use Among Teens Continues to Rise, (March/April 1995) at http://www.nida.nih.gov/NIDA Notes/NNVol10N2/Marijuanateens.html ( [i]n 1979, for example, 50.8% of [twelfth] graders had tried marijuana in the past year, and every year from 1975 through 1985, the percentage of [twelfth] graders who had smoked marijuana at least once in the year before the survey was more than 40 percent ; for 1994, the number was 30.7 percent of twelfth graders). State v. Clark, supra, 260 Conn. 825 n.8. 15 General Statutes § 21a-243 (c) provides: The Commissioner of Consumer Protection acting upon the advice of the Commission of Pharmacy, may by regulation designate, after investigation, as a controlled substance, a substance or chemical composition containing any quantity of a substance which has been found to have a stimulant, depressant or hallucinogenic effect upon the higher functions of the central nervous system and having a tendency to promote abuse or physiological or psychological dependence or both. Such substances are classifiable as amphetamine-type, barbituratetype, cannabis-type, cocaine-type, hallucinogenic, morphine-type and other stimulant and depressant substances, and specifically exclude alcohol, caffeine and nicotine. Substances which are designated as controlled substances shall be classified in schedules I to V by regulations adopted pursuant to subsection (a) of this section. 16 Section 21a-243-7 of the Regulations of Connecticut State Agencies provides in relevant part: The controlled substances listed in this regulation are included by whatever official, common, usual, chemical, or trade name designation in Schedule I . . . (c) Any material, compound, mixture or preparation which contains their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation . . . (20) Marihuana . . . . 17 Section 812 (b) (1) of title 21 of the United States Code provides in relevant part that a drug is classified as schedule I if: (A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substances under medical supervision. . . . 18 Section 812 (c) (c) (10) of title 21 of the United States Code categorizes marijuana as a schedule I controlled substance and provides that: Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation . . . (10) marihuana. 19 General Statutes § 21a-278a (a) provides: Any person eighteen years of age or older who violates section 21a-277 or 21a-278, and who is not, at the time of such action, a drug-dependent person, by distributing, selling, prescribing, dispensing, offering, giving or administering any controlled substance to another person who is under eighteen years of age and is at least two years younger than such person who is in violation of section 21a-277 or 21a-278, shall be imprisoned for a term of two years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. 20 General Statutes § 21a-278a (c) provides: Any person who employs, hires, uses, persuades, induces, entices or coerces a person under eighteen years of age to violate section 21a-277 or 21a-278 shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. 21 General Statutes § 21a-279 (c) provides in relevant part: Any person . . . who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned. 22 General Statutes § 21a-279 (d) provides in relevant part: Any person who violates subsection (a), (b) or (c) of this section in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school or a licensed child day care center . . . shall be imprisoned for a term of two years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of subsection (a), (b) or (c) of this section. 23 In her brief, Padua points out that state legislatures have legalized marijuana for medicinal purposes, suggesting that it has beneficial properties. We recognize that some states have legalized the drug for medicinal purposes and that the possible benefits of marijuana are controversial. The undisputed fact remains, however, that under federal and Connecticut law, marijuana is a schedule I controlled substance and as such it has no currently accepted medical use in treatment . . . [and] [t]here is a lack of accepted safety for use of the drug . . . under medical supervision. 21 U.S.C. § 812 (b) (1) (B) and (C); cf. United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483, 493, 121 S. Ct. 1711, 149 L. Ed. 2d 722 (2001) (holding that Congress has made a determination that marijuana has no medical benefits to warrant medical necessity exception to federal prohibition against distributing, manufacturing, and possessing with intent to distribute or manufacture marijuana in violation of 21 U.S.C. § 841 [a]). Further, we acknowledge that General Statutes § 21a-253 permits the possession of marijuana pursuant to a prescription by a licensed physician for the treatment of glaucoma or the side effects of chemotherapy. This statute was enacted, however, to permit the medicinal use of marijuana consistent with federal law. See 24 S. Proc., Pt. 16, 1981 Sess., pp. 5220 77. Because the federal government has not permitted such use, no prescriptions have ever been issued under this statute. See National Organization for Reform of Marijuana Laws, State by State Medical Necessity Defense, at http:// www.norml.org/index.cfm?Group ID=5814. In any event, our holding would be the same if this were a case in which the defendants had large amounts of any commonly known potent medicinal substance, unsecured, within the reach of small children, and placed next to boxes of food in a communal dining area. Cf. State v. Branham, 56 Conn. App. 395, 743 A.2d 635 (defendant created situation injurious to health or life or limb of three children when he left them alone in apartment for one hour), cert. denied, 252 Conn. 937, 747 A.2d 3 (2000). 24 The dissent criticizes the majority for its reliance on the illegality of marijuana in arriving at the determination that it is common knowledge that the oral ingestion of marijuana is likely to be injurious to a child s health. The legislature, however, does not randomly classify drugs into different schedules; see, e.g., United States v. Kiffer, 477 F.2d 349, 355 56 (2d Cir.), cert. denied, 414 U.S. 831, 94 S. Ct. 62, 38 L. Ed. 2d 65 (1973); but rather, classifies drugs on the basis of scientific research and testing. See 21 U.S.C. § 812 (b). Thus, the majority is not relying on the legal status of marijuana, but rather, on the scientific research and testing that resulted in the classification of marijuana as a schedule I controlled substance. 25 Here, as in Clark, we note that societal realities support our conclusion. Popular television shows and movies have depicted individuals experiencing the effects of marijuana after eating the drug baked into brownies. Additionally, information concerning the oral consumption of marijuana has appeared in the news and on websites. See, e.g., Confiscated Brownies Sent to State Lab, Hartford Courant, November 1, 2002, p. B2 (twelve year old boy brought marijuana brownies to school); National Institute on Drug Abuse, NIDA InfoFacts: Marijuana, at http://www.drugabuse.gov/Infofax/marijuana.html (noting that marijuana can be used by mixing [it] in food or brewing it as a tea ). 26 The dissent argues that [t]he ingestion of raw marijuana is not a practice engaged in by even a statistically significant minority of the population and questions whether, prior to this case, an average juror would have contemplated that anyone intentionally would ingest raw marijuana. Yet, our research has disclosed numerous cases in which individuals orally ingested raw marijuana either because they preferred to consume the drug in this manner; see, e.g., People v. Galambos, 104 Cal. App. 4th 1147, 1153, 128 Cal. Rptr. 2d 844 (2002) ( [s]ince 1991, defendant has been eating and smoking marijuana ); Gudinas v. State, 816 So.2d 1095, 1104 (Fla. 2002) (defendant in murder trial admitted to eating marijuana joints and expert testified that marijuana removes inhibitions); Caffey v. State, 433 S.W.2d 900, 901 (Tex. Crim. App. 1968) (defendant admitted that he swallowed or ate some marijuana left at his home by another individual); State v. Miller, 131 Wash. 2d 78, 84, 929 P.2d 372 (1997) (defendant ate marijuana to get high because he thought it would be less detectable in his system); State v. Shepherd, 110 Wash. App. 544, 552, 41 P.3d 1235 (2002) (defendant ate, rather than smoked, marijuana to alleviate medical condition); or because they hope to avoid police detection. See, e.g., Kehinde v. State, 236 Ga. App. 400, 512 S.E.2d 311 (1999); State v. Knippers, 535 So.2d 403 (La. App. 1988); Davis v. State, 100 Md. App. 369, 374, 641 A.2d 941 (1994); Holmes v. State, 962 S.W.2d 663 (Tex. App. 1998). The dissent also refers to the overall lack of research on the effects of eating raw marijuana in support of its conclusion. The majority concedes that there is a dearth of scientific articles on the subject, but points out that the lack of research is largely due to marijuana s illegality. Of the scientific data available, the majority has found no indication that the ingestion of raw marijuana is not injurious. The administrative decision cited by the dissent merely indicates that eating raw marijuana is not fatal, not that it is not harmful. See In the Matter of Marijuana Rescheduling Petition, Docket No. 86-22, Drug Enforcement Administration (September 6, 1988). Moreover, it is well documented and is largely undisputed that household pets suffer adverse effects when they accidentally ingest raw marijuana. The common side effects of marijuana toxicosis in animals are depression, ataxia, and bradycardia. Other signs include agitation, vocalization, vomiting, diarrhea, hypersalivation, tachycardia, hypothermia, mydriasis, urinary incontinence, seizures and coma. C. Donaldson, Marijuana Exposure in Animals, Veterinary Medicine (2002) pp. 437, 439 (although marijuana toxicosis is serious clinical condition, it is generally not fatal); see also K. McKnight, Marijuana Toxicosis, Veterinary Technician (2003) p. 266 (same). The harmful effects that animals experience after eating raw marijuana support our conclusion that the ingestion of marijuana, in any form, is likely to be injurious. 27 The defendants argue that it is unlikely that the jury in this case was familiar with uncommon methods of drug use because the jurors had informed the court during voir dire that they did not know anyone personally whose life had been affected by drugs. We do not find this argument to be persuasive. First, the fact that the jurors lacked personal knowledge concerning drug use does not mean that they lacked general knowledge. See State v. Clark, supra, 260 Conn. 824. Second, in our evaluation of whether the effects of ingesting raw marijuana are common knowledge, we are concerned with the knowledge of average jurors and not with the knowledge of these particular jurors. Accordingly, the defendants emphasis on voir dire is misplaced. Additionally, we reject the Appellate Court s argument that because marijuana derives from the hemp plant, which has some legal use in food products, it cannot be assumed that it is common knowledge that some parts of the hemp plant are harmless and legal while other parts are dangerous and illegal. State v. Padua, supra, 73 Conn. App. 397 98. First, as the Appellate Court acknowledged, information regarding hemp was not presented to the jury in this case. Id., 397. Second, we think that the Appellate Court and the defendants have underestimated the ability of the average juror to distinguish between the possible injurious effects of a well-known illicit substance and those of a commercial food product sold at the local grocery store. 28 We reject Wilfredo Calvente s alternative argument that we should uphold the Appellate Court s reversal of his conviction under § 53-21 (1) on the grounds of instructional error. Specifically, he argues that the information charged him with allowing the children to be near and have access to marijuana, but that the trial court improperly instructed the jury that the state need only prove that he allowed the children to be near or have access to marijuana. (Emphasis added.) Therefore, Wilfredo Calvente argues, the jury could have found him guilty because it found that the children were near marijuana, even if it found that they did not have access to marijuana. We are not persuaded. Wilfredo Calvente concedes that he did not preserve this claim and seeks to prevail under State v. Golding, 213 Conn. 233, 239 40, 567 A.2d 823 (1989). In Golding, we held that 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 clearly exists and clearly 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. (Emphasis in original.) Id. As we have explained in part I B of this opinion, the state presented sufficient evidence for the jury to find, beyond a reasonable doubt, that the children were near the marijuana and had access to the marijuana. Additionally, we note that the trial court read the risk of injury charges, with the conjunctive phrasing near and access to marijuana, prior to the presentation of evidence and that the jury had the final jury instructions and charging documents, with the correct phrasing, in the jury room with them during their deliberations. (Emphasis added.) We conclude that it is not reasonably possible that the jury was misled by the court s minor misstatement to believe that it could convict the defendants if they found that the children were near the marijuana, but did not have access to it. See State v. McColl, 74 Conn. App. 545, 552 53, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003) (not reasonably possible that jury was misled when trial court correctly charged jury in conjunctive on previous occasion and jurors had copy of information, with conjunctive phrasing, during deliberations). Accordingly, Wilfredo Calvente cannot satisfy the third and fourth prongs of Golding. 29 We recognize that, because Miranda Calvente was acquitted of possession of more than four ounces of marijuana in violation of §§ 53a-8 and 21a279 (b), she was not found to be in possession or control of all of the marijuana found in the apartment. We note, however, that evidence was presented that less than four ounces of marijuana was present on the kitchen table and floor and that Miranda Calvente and the children were located in the kitchen when the police entered the apartment. Accordingly, it was reasonable for the jury to conclude that Miranda Calvente was in possession or control of the marijuana in the kitchen. Because the children were near the marijuana in the kitchen and had access to it; see discussion in part I B; the jury s judgment of acquittal on the charge of possession of more than four ounces of marijuana is consistent with her convictions of risk of injury to a child. 30 In State v. Miranda, 272 Conn. 430, A.2d (2004), we reversed our decision in Miranda I, for reasons to be explained in a forthcoming opinion. As we explain in the body of this opinion, however, Miranda I simply has no bearing on the present matter and, accordingly, our reasons for overruling the case are immaterial. 31 In addition, in Miranda I, the defendant did not challenge his conviction under § 53-21, but acknowledged that the risk of injury statute implements the state s public policy of protecting the health and welfare of children and imposes a specific criminal penalty for failure to provide such protection, by punishing any person who causes or permits a child to be placed in such a situation that the life or limb of that child is endangered. (Emphasis in original; internal quotation marks omitted.) Miranda I, supra, 245 Conn. 229. 32 The defendants failed to preserve their objection to the instruction and prevailed in the Appellate Court under State v. Golding, 213 Conn. 233, 239 40, 567 A.2d 823 (1989). State v. Padua, supra, 73 Conn. App. 399, 404. Although Miranda Calvente was the only defendant who raised this claim on appeal to the Appellate Court; id.; the court reversed the convictions of all three defendants, after finding the instruction improper and concluding that it was reasonably possible that the jury was misled. Id., 404 and n.4, citing Gino s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 141 42, 475 A.2d 305 (1984). In response to the state s appeal to this court, all three defendants seek to prevail under Golding. We agree with the Appellate Court that the claim is reviewable under Golding because the record is adequate for review and the claim is of constitutional magnitude. See State v. Padua, supra, 399; see also State v. Whitford, 260 Conn. 610, 621, 799 A.2d 1034 (2002) ( [t]he first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail ). 33 General Statutes § 21a-278a (b) provides in relevant part: To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of . . . a public housing project . . . . In State v. Denby, supra, 235 Conn. 480 83, we held that § 21a-278a (b) requires the state to prove that the defendant intended to sell a controlled substance within the geographic location specified by the statute, i.e., within 1500 feet of a public housing project. Id. (intent to sell narcotics within 1000 feet of school is essential element of crime of possession of narcotics with intent to sell within 1000 feet of school in violation of § 21a-278a [b]). In this matter, the trial court complied with the intent requirement by instructing the jury as follows. The elements of [possession of marijuana with intent to sell within 1500 feet of a public housing project] are the same as in count one with the added requirement that the sale or intent to sell marijuana occurred in a public housing project. For you to find any defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: (1) that the defendant knowingly possessed with intent to sell or dispense to another person; (2) a controlled substance; (3) that the event occurred in a public housing project. . . . So if you find . . . the defendants guilty in count one, and you further find that the state has proven beyond a reasonable doubt that the sale or intent to sell occurred in a public housing project, then you must find the defendant or defendants also violated this statute. In Denby, we held that a similar jury instruction properly informed the jury of the geographic location element of § 21a-278a (b). See State v. Denby, supra, 485 87. 34 The defendants claimed, for the first time on appeal to the Appellate Court, that the evidence was insufficient to establish that 171 Cameo Drive was located within a public housing project. See State v. Padua, supra, 73 Conn. App. 406 407. The Appellate Court found that the evidence presented at trial was sufficient to establish that the apartment was located within a public housing project and affirmed the defendants convictions. See id., 406 12. That ruling is not at issue in this appeal. 35 Miranda Calvente claims that there was insufficient evidence to support her conspiracy convictions because the state failed to produce sufficient evidence that she agreed or conspired with any of the other defendants to sell marijuana. We reject this claim in part III B of this opinion. 36 In light of our holding, we do not reach the state s alternative argument that the trial court s instruction was harmless beyond a reasonable doubt because it added an additional element to their burden of proof. 37 We recognize that the double jeopardy claim is outside the scope of the certified question, but we review the claim in the interest of judicial efficiency. State v. Brown, 242 Conn. 445, 447, 700 A.2d 1089 (1997) (court may address related claims not certified for review in interest of judicial economy). 38 Although the Appellate Court reversed the defendants convictions of conspiracy to sell marijuana within 1500 feet of a public housing project because of instructional error, it addressed the defendants double jeopardy claims because the double jeopardy issue [was] likely to arise in the new trial in the event that the jury again convicts the defendants of that crime. State v. Padua, supra, 73 Conn. App. 404. 39 The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . . This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). 40 Although the state did not brief or argue the issue to this court, we point out that the state requested this remedy from the Appellate Court. State v. Padua, supra, 73 Conn. App. 405. 41 The trial court sentenced Miranda Calvente and Padua to the mandatory minimum sentence of three years imprisonment for the charge of possession of marijuana with intent to sell within 1500 feet of a public housing project and three years imprisonment for conspiracy to commit the same offense. Although § 21a-278a (b) provides that the three year mandatory minimum incarceration period for possession of marijuana with intent to sell within 1500 feet of a public housing project may not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278, the trial court ordered that the defendants sentences for possession of marijuana with intent to sell within 1500 feet of a public housing project and conspiracy to sell marijuana within 1500 feet of a public housing project run concurrently to each other, but consecutive to all other sentences. The court concluded that the legislature would not intend the sentences to run consecutively under the factual circumstances presented in this case. 42 See footnote 28 of this opinion for a discussion of Golding. 43 Specifically, the Appellate Court stated: Miranda Calvente also claims that the state presented insufficient evidence that she conspired to sell a controlled substance within 1500 feet of a public housing project. Because we reverse the defendants convictions on that count, we do not address that claim. State v. Padua, supra, 73 Conn. App. 415 n.9. We granted Miranda Calvente s petition for certification to appeal the judgment of the Appellate Court limited to the following issue: Did the Appellate Court properly decline to review the claim of the defendant Miranda Virgilia Calvente, that there was insufficient evidence to convict her of conspiracy to sell marijuana within 1500 feet of a public housing project and conspiracy to sell marijuana, on the ground that it had reversed her convictions of those offenses for instructional error? State v. Padua, 262 Conn. 941, 815 A.2d 672 (2003). We note that the certified question incorrectly states that both of Miranda Calvente s convictions were reversed for instructional error. See id.; State v. Padua, supra, 73 Conn. App. 404. Although the Appellate Court reversed only the conviction of conspiracy to sell marijuana within 1500 feet of a public housing project (count five); see State v. Padua, supra, 73 Conn. App. 404; Miranda Calvente argues that we should construe the grant of certification to encompass the conviction of conspiracy to sell marijuana (count four) because the Appellate Court, without providing a reason, improperly failed to review her insufficiency of the evidence claim on that charge. The state responds that the Appellate Court declined to review only count five because of the reversal for instructional error and, therefore, the certified question only refers to count five. We agree with the state. The state concedes, however, that [a]s a practical matter, a review of the sufficiency of the evidence for [c]ount [five], conspiracy to sell marijuana within 1500 feet of a public housing project, necessarily encompasses a review of [c]ount [four], conspiracy to sell marijuana. Accordingly, in fairness to [Miranda Calvente], the state asks that if this [c]ourt undertakes a review of the sufficiency of the evidence with regard to count [five] . . . this [c]ourt should also review the sufficiency of the evidence with regard to count [four]. We agree with the state and address Miranda Calvente s insufficiency of the evidence claim concerning conspiracy to sell marijuana in part III B of this opinion. See, e.g., State v. Brown, 242 Conn. 445, 447, 700 A.2d 1089 (1997) (court may address related claims not certified for review in interest of judicial economy). 44 Miranda Calvente argues that her motion for judgment of acquittal at the end of the state s case-in-chief preserved this issue for appeal. We disagree because the record is unclear as to whether her motion was based upon insufficiency of the evidence. Alternatively, Miranda Calvente seeks to prevail on her claim under State v. Golding, supra, 213 Conn. 239 40. This court has held that a criminal defendant s insufficiency of the evidence claim is necessarily of constitutional magnitude. We believe that Jackson v. Virginia, [443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)], compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. There being no practical significance, therefore, for engaging in a Golding analysis of an insufficiency of the evidence claim, we will review the defendant s challenge to his conviction . . . as we do any properly preserved claim. State v. Adams, 225 Conn. 270, 275 76 n.3, 623 A.2d 42 (1993). Accordingly, Miranda Calvente is entitled to Golding review. 45 We recognize that an examination of the sufficiency of the evidence is outside the scope of the certified question, but we undertake a review of the evidence at the request of both parties and in the interest of judicial efficiency. See, e.g., State v. Brown, 242 Conn. 445, 447, 700 A.2d 1089 (1997) (court may address related claims not certified for review in interest of judicial economy). 46 To the extent that Miranda Calvente challenges the sufficiency of the evidence to establish that she intended to commit the charged underlying offense, we adopt the reasoning of the Appellate Court and conclude that the evidence was sufficient to establish her possession of marijuana with intent to sell within 1500 feet of public housing project. See State v. Padua, supra, 73 Conn. App. 419 20. 47 We note that Wilfredo Calvente implicitly contradicted his statement that he alone buys, sells, and smokes the marijuana that the police found by pleading not guilty to the possession of marijuana charges and by introducing witnesses and evidence in his defense. 48 In light of our holding that the evidence is sufficient to support Miranda Calvente s conviction for conspiracy to sell marijuana within 1500 feet of a public housing project, we necessarily hold that the evidence is also sufficient to support her conviction for conspiracy to sell marijuana.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
