State v. Denby

668 A.2d 682, 235 Conn. 477, 1995 Conn. LEXIS 410
CourtSupreme Court of Connecticut
DecidedDecember 5, 1995
Docket15155
StatusPublished
Cited by122 cases

This text of 668 A.2d 682 (State v. Denby) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Denby, 668 A.2d 682, 235 Conn. 477, 1995 Conn. LEXIS 410 (Colo. 1995).

Opinion

BERDON, J.

The issues in this appeal are whether: (1) when a defendant is charged with possession of narcotics with intent to sell within 1000 feet of a school in violation of General Statutes (Rev. to 1991) § 21a-278a (b),1 it is an essential element of the crime that the defendant has the specific intent to sell at a location that is within 1000 feet of a school; and (2) the trial court properly instructed the jury regarding the elements of § 21a-278a (b).

The defendant, John Denby, was charged with possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and possession of cocaine with intent to sell within 1000 feet of a school in violation of §§ 21a-278 and 21a-278a (b). A jury found the defendant guilty [479]*479as charged and the trial court sentenced him to an effective term of imprisonment of nineteen years.

The defendant appealed to the Appellate Court, claiming, inter alia, that the trial court improperly failed to instruct the jury that a conviction pursuant to § 21a-278a (b) required the state to prove that the defendant specifically intended to sell narcotics at a location within 1000 feet of school property. The Appellate Court affirmed the judgment of conviction. State v. Denby, 35 Conn. App. 609, 646 A.2d 909 (1994). We granted the defendant’s petition for certification to appeal,2 and affirm the judgment of the Appellate Court based upon different reasoning.

As stated by the Appellate Court, the jury reasonably could have found the following facts. “On May 17,1992, New Haven police officers Andrew Muro and Peter Carusone were working in the Newhallville section of New Haven. Muro received information from an informant that the defendant was selling drugs at 51 Lilac Street, which was approximately 820 feet from the Lincoln Bassett School. He and Carusone, both of whom knew the defendant, drove by the address and saw the defendant on the front porch. They set up a surveillance of the defendant’s activities. Muro watched the front porch from a nearby alley. Carusone remained at a police substation parking lot, ready to assist Muro upon apprehension of the defendant.

“Muro observed a female walk up to the porch of the building and heard her say she ‘wanted one.’ The [480]*480defendant reached into his right pants pocket, pulled out a clear plastic bag, removed an item from it, and handed it to the female. The female then gave the defendant money. A short time later, Muro saw the defendant carry out a second transaction with another individual [which was] similar to the previous transaction.

“After informing Carusone of his observations, the officers returned to the premises under surveillance where Muro encountered the defendant in the hallway and arrested him. In his right pocket, the defendant had a clear plastic bag containing packets of white powder that field-tested positive for cocaine.” Id., 612.

I

The Appellate Court declined to review the defendant’s claim that the trial court had failed to instruct the jury properly that the state must prove that the defendant had a specific intent to sell the narcotic at a location within 1000 feet of a school in violation of § 21a-278a (b). The defendant conceded that he had not raised the issue before the trial court,3 but sought to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),4 claiming that his federal and state due process rights had been violated because the specific intent under § 21a-278a (b) was an element of the [481]*481crime. The Appellate Court held that the prohibition against selling narcotics within the school zone was merely a penalty enhancement and that the state “was not required to prove that the defendant specifically intended to sell within the 1000 foot zone because, by the clear language of the statute, such an intent is not an element of the crime.” State v. Denby, supra, 35 Conn. App. 616. The state concedes before this court that the intent to sell within 1000 feet of a school is an element of the crime. We agree with the state and the defendant, and disagree with the Appellate Court.

Our interpretation of § 21a-278a (b) is “guided by well established principles of statutory construction. Statutory construction is a question of law and therefore our review is plenary. . . . Ordinarily, if the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Citations omitted; internal quotation marks omitted.) State v. Spears, 234 Conn. 78, 86, 662 A.2d 80 (1995), cert. denied, U.S. , 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995). As a threshold matter, therefore, we consider whether § 21a-278a (b) is plain and unambiguous on its face.

Upon review, we find the plain meaning of § 21a-278a (b) to be clear. The first sentence provides that if any person who is not drug-dependent violates § 21a-277 or § 21a-278 in one of the ways set forth therein, and does so within 1000 feet of a school, that person will receive an additional three year term of imprisonment. The second sentence of § 21a-278a (b) places an additional limitation on the location requirement: “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 feet of, the real property comprising a public or private elementary or secondary school.” This sentence further defines two of [482]*482the ways previously described — that is, “transporting or possessing a controlled substance” — by adding that they ‘ ‘shall be with intent to sell or dispense in or on, or within’ ’ the 1000 foot zone. Therefore, the plain language of § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school.

The state is not, however, required to prove that the defendant knew that this location was within the zone.5 Ordinarily, the mental state required by a statute is expressly designated: “When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.” General Statutes § 53a-5. Section 21a-278a (b) specifically requires a mental state of “intent,” which must be applied to every element of that statute. The mental state of knowledge that the location is within the 1000 foot zone is not set forth in § 21a-278a (b). An “intent” element is not synonymous with a “knowledge” element, each of which is specifically defined in the penal code.6 The absence of any statutory requirement that the defendant knowingly sell within the prohibited school zone demonstrates that the legislature did not intend to make knowledge an element of the crime. If [483]*483the legislature had wanted to make knowledge as to location of a school an element of the offense, it would have done so by specifically stating that the defendant possessed the narcotics with the intent to sell or dispense at a location that the defendant knew was in, or on, or within 1000 feet of a school.

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Cite This Page — Counsel Stack

Bluebook (online)
668 A.2d 682, 235 Conn. 477, 1995 Conn. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-denby-conn-1995.