author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. KEVIN LUCAS
    (AC 19867)
    Landau, Dranginis and Dupont, Js.

      Argued January 18
    officially released May 8, 2001

      Felix Esposito, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva Lenczewski, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Kevin Lucas, appeals from the judgment of conviction, rendered following a jury trial, of conspiracy to possess a narcotic substance with intent to sell in violation of General Statutes § § 53a-48 and 2 la-277 (a), possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-277 (a) and possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress, (2) admitted evidence of prior uncharged misconduct, (3) permitted the prosecutor to comment on the defendant’s failure to testify and (4) instructed the jury with respect to reasonable doubt. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s claims. Prior to 7 p.m. on November 24,1997, officers from the Waterbury police department obtained two search and seizure warrants relevant to the facts at issue. One of the warrants pertained to apartment 2B at 415 Willow Street in Waterbury (Willow Street warrant), and the other pertained to a first floor rear apartment at 112-114 Cooke Street in Waterbury and to the persons of the defendant and Yolanda Crespo (Cooke Street warrant).

At approximately 7 p.m. on November 24, 1997, the Waterbury police were conducting surveillance of the Willow Street apartment when they observed the defendant, Crespo and Michael Davis exit the apartment and leave in a Porsche motor vehicle. The police stopped the vehicle and found seven glassine bags of “Death Row” heroin on the center console. Following a pat-down, an officer removed a set of keys from the defendant’s person. The defendant, Crespo and Davis were arrested and driven to the Cooke Street apartment, where the police executed the Cooke Street warrant.

The officers forcibly entered the Cooke Street apartment when no one responded to their knock. No one was in the apartment, and the police seized no evidence. While these events were occurring, other officers went to the Willow Street apartment to execute the Willow Street warrant. They knocked on the door and were admitted by the tenant, Michelle Yorker. One of the officers tested the keys that he had seized from the defendant and found that one of them opened the lock to the apartment door. The police seized certain items, including a pouch bearing a Chucky Cheese logo that contained cocaine in both freebase and salt forms, a digital scale of the kind typically used by drug dealers and plastic sandwich bags similar to the ones containing the drugs seized from the Porsche.

Yorker and Crespo both testified at trial. Yorker had given the defendant a key to her apartment and permitted him, Crespo and Davis to package drugs there. She also observed drug transactions, during which Crespo sold drugs supplied by the defendant. Crespo had an arrangement with the defendant whereby he would provide her with food, clothing and shelter in exchange for her selling the defendant’s drugs. She used the Chucky Cheese pouch to carry the defendant’s drugs. On November 24, 1997, the defendant, Crespo and Davis had been in the Willow Street apartment packaging narcotics. At the time they were stopped by the police, they were on their way to the Cooke Street apartment to sell the narcotics, which they did regularly at that location. Saint Margaret’s School is within 1500 feet of the Willow Street apartment.

The defendant was arrested and charged with the crimes of conspiracy to possess a narcotic substance with intent to sell, possession of heroin with intent to sell, possession of heroin with intent to sell within 1500 feet of a school, possession of cocaine with intent to sell and possession of cocaine with intent to sell within 1500 feet of a school. The jury found the defendant guilty of the conspiracy and cocaine related charges. Following the jury’s verdict, the court sentenced the defendant to eighteen years in prison. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress the evidence seized at the Willow Street apartment because the warrant was defective. We disagree.

The following facts pertain to this claim. Prior to trial, the defendant filed a motion to suppress the evidence found pursuant to the Willow Street warrant because paragraph seven of the affidavit in support of the warrant application stated that there was probable cause to search 112-114 Cooke Street, not the Willow Street apartment. The defendant claimed that the search violated both the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. The court denied the motion to suppress, finding that the mistake in the affidavit was merely a scrivener’s error, citing State v. Santiago, 8 Conn. App. 290, 513 A.2d 710 (1986).

“The standards for upholding a search warrant are well established. We uphold the validity of [the] warrant ... [if] the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. . . . [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories. . . . We are also reminded that [i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination.” (Citations omitted; internal quotation marks omitted.) State v. Rosario, 238 Conn. 380, 385, 680 A.2d 237 (1996). The federal standard for challenging a warrant affidavit is the standard to be applied under article first, § 7, of our state constitution. State v. Glenn, 251 Conn. 567, 578, 740 A.2d 856 (1999).

Although we disagree with the trial court that Santiago is on point with the factual issues here, that case accurately states the law controlling the validity of the warrants at issue here. “The particularity clause of the fourth amendment requires that no warrants issue except those particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., amend. IV. This standard is met with respect to the place to be searched if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” (Internal quotation marks omitted.) State v. Santiago, supra, 8 Conn. App. 304.

“There are three purposes behind the particularity clause: (1) to prevent general searches; (2) to prevent the seizure of objects in the mistaken belief that they are within the scope of the issuing magistrate’s authorization; and (3) to prevent the issuance of warrants on vague or doubtful factual bases.” Id. “In determining whether the description given the executing officer was sufficiently detailed, it is of course important initially to examine the description which appears in the warrant itself.” (Internal quotation marks omitted.) Id., 304-305. Here, the defendant does not question that the Willow Street warrant stated with particularity the place to be searched.

Before this court, the state argues that the error in the affidavit is merely a scrivener’s error and that the court that issued the warrant would know that by comparing the applications and affidavits for the Cooke Street and Willow Street warrants. The defendant responded that this argument violates the rule that a magistrate may consider only the allegations within the four comers of the affidavit when issuing a warrant. See State v. Diaz, 226 Conn. 514, 543, 628 A.2d 567 (1993).

Although the affidavit for the Willow Street apartment contains a scrivener’s error, the court properly denied the defendant’s motion to suppress because the affidavit presented a substantial factual basis for the magistrate’s conclusion that probable caused existed to issue the Willow Street warrant. A reliable confidential informant told police that the defendant participated in a conspiracy to sell narcotics whereby several individuals packaged the narcotics at the Willow Street apartment and sold them at the Cooke Street apartment. Both apartments were integral to their scheme.

Although the defendant is correct that a magistrate may not look to facts outside an affidavit to find probable cause, paragraph seven of the Willow Street affidavit is merely a summary of the attesting police officers’ opinion as to the existence of probable cause. The magistrate, however, is charged with the responsibility of determining probable cause. While the magistrate undoubtedly noticed the scrivener’s error, the warrant applications and the warrants themselves were accurate as to the place and the persons to which they applied. This is not an instance where the magistrate relied on something other than the facts in the affidavits to find probable cause. The court, therefore, properly denied the motion to suppress.

II

The defendant’s second claim is that the court improperly admitted evidence of prior uncharged misconduct. Specifically, the defendant claims that the evidence of prior uncharged misconduct was more prejudicial than probative as to the existence of a relationship between the defendant and his coconspirators, and of his intent to sell narcotics. We are not persuaded.

The following additional facts are relevant to our resolution of this claim. The state’s amended information charged the defendant with various narcotics violations “on or about the 24th day of November, 1997.” Prior to trial, the state filed a notice of its intent to use uncharged misconduct as evidence during the trial. The state anticipated that Yorker would testify as to her arrangement with the defendant in which she allowed him to use her apartment for purposes associated with the sale of narcotics from approximately September to November, 1997, and as to her having witnessed drug transactions involving the defendant, among other things. The state anticipated that Crespo would testify about the defendant’s regular travel to New York to obtain narcotics and his use of the Cooke Street apartment to sell narcotics, among other things. The defendant opposed the introduction of the uncharged misconduct by filing a motion in limine pursuant to Practice Book § 42-15.

After noting that the uncharged misconduct was prejudicial to the defendant, the court stated that it was probative of the defendant’s intent to commit the crime of conspiracy to possess narcotics and his intent to sell narcotics. The court concluded that the probative value of the evidence outweighed its prejudicial effect. The court ruled that the state could admit evidence of the arrangements that the defendant had with Crespo and Yorker to use their apartments as long as the conduct was ongoing and occurred at or near November, 1997. Crespo also would be permitted to testify as to the defendant’s trips to New York, and Yorker would be permitted to testify about product testing. The court refused to permit any evidence of similar, prior arrangements that the defendant had with another woman. Crespo and Yorker testified in accordance with the court’s ruling, including events that occurred at the end of October, 1997.

The defendant filed a request to charge regarding the evidence of prior uncharged misconduct, which the court incorporated in its supplemental charge. The court instructed the jury that it could use the evidence of events occurring before November 24, 1997, only with respect to count one, conspiracy to possess narcotics with intent to sell. The court told the jury that it could not use the evidence with respect to counts two through five, which charged possession with intent to sell. In addition, the court instructed the jury that it could consider the uncharged misconduct testimony of Crespo and Yorker with respect to their knowledge of the defendant’s person, to their familiarity with him and in evaluating their credibility as to the crimes charged.

This court reviews evidentiary claims by an abuse of discretion standard. State v. Hoth, 50 Conn. App. 77, 87, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). “Relevant evidence of prior uncharged misconduct that is prejudicial in nature is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused. . . . State v. Ortiz, 40 Conn. App. 374, 380, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993). The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . State v. Bush, 249 Conn. 423, 430, 735 A.2d 778 (1999). . . . State v. Copas, [252 Conn. 318, 329-30, 746 A.2d 761 (2000)].” (Internal quotation marks omitted.) State v. Legrande, 60 Conn. App. 408, 415-16, 759 A.2d 1027 (2000), cert. denied, 255 Conn. 925, 767 A.2d 99 (2001).

Here, the court found that the proposed testimony of Crespo and Yorker would be prejudicial to the defendant, but concluded that its probative value as to the charge of conspiracy to sell narcotics outweighed its prejudicial value. “As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.” (Citations omitted; internal quotation marks omitted.) State v. Harris, 43 Conn. App. 830, 835-36, 687 A.2d 544 (1996). We, therefore, conclude that the court properly exercised its discretion by admitting evidence of the defendant’s prior use of the Willow Street and Cook Street apartments to package and sell drugs, and the testimony of Crespo and Yorker that they had witnessed or participated in narcotic sales at the defendant’s request. The evidence was probative of a system of criminal activity related to the charge of conspiracy to possess narcotics with an intent to sell. Furthermore, the court gave the jury a limiting instruction as to the count and purposes for which the evidence could be considered. The jury is presumed to follow the trial court’s instructions. State v. Richardson, 214 Conn. 752, 757, 574 A.2d 182 (1990). The court, therefore, properly admitted evidence of the defendant’s prior uncharged misconduct.

Ill

The defendant’s third claim is that the court improperly permitted the prosecutor to comment on the defendant’s failure to testify. We do not agree.

The following facts are relevant to this claim. Among other things, the state charged the defendant with possession of cocaine and heroin with intent to sell. The defendant, in his defense, attempted to convince the jury that the narcotics could have been for his personal use. To that end, the defendant presented testimony from Paul Goodfield, an expert in the field of drug and alcohol counseling. Goodfield provided opinion testimony as to the quantity of narcotics a drug-dependent individual would consume in a day. The defendant, however, presented no direct evidence that he was drug-dependent or that he had used cocaine or heroin. Defense counsel referred to Goodfield’s testimony during his closing argument in an attempt to negate the element of intent to sell the narcotics.

In the state’s rebuttal argument, the prosecutor responded to the defendant’s personal consumption by means of a rhetorical argument as follows. “With regard to . . . Goodfield and the personal use of heroin and all that topic [that has] come up, I would submit that . . . Goodfield may do very good work but, remember, he’s a clinical evaluator. His information comes strictly from people who are looking to be categorized as addicts for whatever benefit they may receive from that. And it is the officers who are out there, who see what people have on them when they are stopped, who talk not only to addicts but to the people who sell to them. And they get a more balanced picture, I would submit, of what amounts are accurate and what amounts are used for personal use.

“And, remember, ladies and gentlemen, the court will tell you, you cannot speculate. You cannot create evidence which does not exist in this case. And I would submit that is exactly what [defense counsel] is asking you to do on the issue of personal use. There has not been one witness, and I don’t believe there has been one iota of evidence in this case that would give you any foundation to believe that any of the people that you’ve heard from or heard of in this case used any drugs let alone heroin and cocaine. My recollection is that the only individual who gave you any indication of that at all was [Louise] Sears. And that was in relation to himself. No one has told you that the defendant used drugs .... And for [defense counsel] to ask you to speculate, I believe is outside the realm of the evidence [that has] been presented.”

Defense counsel immediately objected to the statement, stating, “Objection to the reference to my client; he has a right to silence in this case.” The court responded: “You may proceed.” During its charge to the jury, the court instructed the jury that the state had the burden of proving its case, that the defendant did not have to prove his innocence and that he had the constitutional right not to testify. The defendant did not object to these portions of the charge.

On appeal, the state argues that this claim is not reviewable because the defendant did not preserve it at trial. The defendant responds that the issue was preserved. We agree with the defendant. At trial, the defendant must object to the prosecutor’s remarks, take an exception, ask for a mistrial or a curative instruction, or otherwise indicate to the court any displeasure with the prosecutor’s argument. State v. Negron, 221 Conn. 315, 324, 603 A.2d 1138 (1992).

“In determining whether a prosecutor’s comments have encroached upon a defendant’s right to remain silent we have espoused the following criterion. A test for evaluating a prosecutor’s argument that has been adopted by several courts and approved by the Court of Appeals of this circuit in United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d Cir. 1969), cert. denied sub nom. Leak v. Follette, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 [1970], seems adequate and proper[, that is]: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) State v. Negron, supra, 221 Conn. 325.

In his brief, the defendant has analyzed separately every clause and phrase of the prosecutor’s comments to which he objects, rather than addressing the prosecutor’s entire argument with respect to the defendant’s personal use of drugs. When analyzing a claim of prose-cutorial misconduct in the context of the conduct’s depriving a defendant of the constitutional right to a fair trial, “[w]e do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 356, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). That rule applies in the context here as well. “Also, the state may properly respond to inferences raised by the defendant’s closing argument.” State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993).

The defendant argues that the prosecutor’s comments fell into the category of asking for explanations that only the defendant can provide, which violates Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). On the basis of our review of the record, it is clear to us that several people who knew the defendant testified, including Crespo, with whom the defendant had an intimate relationship. Surely one of these individuals would have known of the defendant’s personal drug use, and the defendant could have cross-examined them to support his defense theory. We construe the prosecutor’s argument to call attention to the fact that the defendant did not ask any of those individuals about his personal use of drugs.

Furthermore, the argument squarely addressed defense counsel’s closing argument that the quantity of narcotics seized on November 24, 1997, could conceivably have been for personal consumption, rather than for sale. Finally, lest there be any chance of prejudice to the defendant, the court instructed the jury that the defendant had a constitutional right not to testify and that the jury should not draw any adverse inference from his failure to testify. As previously noted, the jury is “presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Negron, supra, 221 Conn. 331.

Finally, there was no prejudice to the defendant, as the jury acquitted him of the two counts of possession of heroin, which leads us to conclude that the jury carefully considered all of the evidence. For these reasons, we conclude that the prosecutor did not improperly comment on the defendant’s constitutional right not to testily.

IV

The defendant’s final claim is that the court improperly charged the jury that reasonable doubt is not a doubt suggested by the ingenuity of counsel or not justified by the evidence or lack of evidence. We do not agree.

Neither the defendant nor the state submitted a request to charge to the court on the concept of reasonable doubt. During the course of its instruction on reasonable doubt, the court stated: “A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts, nor is it a doubt suggested by the ingenuity of counsel, or even of any of the jurors, which is not justified by the evidence or lack of evidence.” Following the instruction, defense counsel took a number of exceptions to the charge, including the instruction on the ingenuity of counsel, noting that in State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), our Supreme Court urged “trial courts to avoid its further use.” The court again addressed the jury and reinstracted it on the concept of reasonable doubt. At the conclusion of the reinstraction, the court asked counsel to take exceptions, if any, to the supplemental charge. Defense counsel took no exception and, in fact, stated, “No, and thank you.”

On appeal before this court, however, the defendant argues that the curative measure taken by the court was inadequate to ameliorate the prejudice caused by the impermissible ingenuity of counsel language because the court did not explicitly tell the jury to disregard it. The state points out that the defendant did not bring this issue to the attention of the trial court when it could have taken a corrective action, if it chose to do so. The state claims that to permit the defendant to raise the issue on appeal is a form of trial by ambuscade of the court. See State v. Baldwin, 224 Conn. 347, 360, 618 A.2d 513 (1993). The state’s position has merit. Our Supreme Court has long held that a “defendant may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him.” State v. Cruz, 56 Conn. App. 763, 772, 746 A.2d 196, cert. granted on other grounds, 253 Conn. 901, 753 A.2d 938 (2000); see State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987).

The defendant asks that, if we conclude that the claim was not properly preserved at trial, we review the claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The claim fails under the third prong of Golding because in State v. Taylor, supra, 239 Conn. 481, our Supreme Court concluded that the same ingenuity of counsel instruction, including the phrase “or lack of evidence,” did not violate the defendant’s constitutional right to a fair trial because the language taken in isolation did not reduce the state’s burden of proof in violation of a state or federal constitutional right. Id., 504-505. The defendant concedes that his claim is not of constitutional magnitude. We, therefore, decline to address the claim further.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Willow Street warrant authorized the police to “enter into or upon and search the place or thing described in the foregoing affidavit and application, to wit: 415 Willow Street apartment 2B Waterbury, Connecticut Said building is a three story, brown sided building. Said apartment is on the second floor with the door marked 2B.”

       The Cooke Street warrant authorized the police to “enter into or upon and search the place or thing described in the foregoing affidavit and application, to wit: 112-114 Cooke Street first floor, left side, rear apartment Waterbury, Connecticut. Said building is a two story, grey sided structure with the numbers 112 and 114 on the front porch. Said apartment is on the first floor rear, left side, [having] a rear exterior entrance.” The warrant also authorized the police to “[s]earch the person described in the foregoing affidavit and application, to wit: Kevin Lucas (DOB 06-08-60) a black male, 5 [feet] 08 [inches], 130 pounds. Yolanda Crespo (DOB 05-20-70), a Hispanic female, 5 [feet] 07 [inches], 196 pounds.”

       The officers knew of the defendant and Crespo, and that they were using the Willow Street apartment to store and package narcotics. The officers also knew that the defendant drove a Porsche. See paragraphs two and three of the warrant affidavit at footnote 5.

       In return for using Yorker’s apartment on Willow Street, the defendant was to provide Yorker with financial assistance.

       The affidavit for the Willow Street warrant provided in relevant part:
      “1. That the affiants, Detective Dematteis and Officer Spagnolo are both regular members of the Waterbury police department having a combined total of [thirty-four] years experience. Further, that the affiants are presently assigned to the vice and intelligence division having conducted numerous narcotics investigations leading to arrests and convictions.
      “2. That during the past five days of November 18, 1997, the affiants met with a known, rehable, and confidential informant who stated that Kevin Lucas and Yolanda Crespo are using 415 Willow Street apartment 2B Waterbury, Connecticut, which is on the second floor of the building marked with the numbers 2B on the door, to store narcotics, and using 112-114 Cooke Street first floor left side rear Waterbury, Connecticut, to sell narcotics. Further, that the informant stated that he has been inside both locations with Kevin Lucas during the past week and has seen Kevin Lucas as well as Yolanda Crespo in possession of narcotics in both buildings, and that Lucas and Crespo wifi not sell narcotics from 415 Willow Street, but only from 112-114 Cooke Street. Further, that the affiants know Kevin Lucas and Yolanda Crespo from previous narcotics investigations.
      “3. That during the past five days of November 18, 1997, the affiants conducted a surveillance of both 415 Willow Street Waterbury, Connecticut, and 112-114 Cooke Street Waterbury, Connecticut. On numerous occasions, the affiants observed Kevin Lucas exit 415 Willow Street, Waterbury, Connecticut, enter a tan Porsche model 944 two door bearing New York marker N698JH, and drive to Cooke Street Waterbury, Connecticut, where Lucas was observed entering 112-114 Cooke Street first floor through a rear door.
      “4. That during the past five days of November 18, 1997, the affiants met with the same informant who agreed to make a controlled buy of narcotics. That the informant was searched and no money or drugs were found. The informant was given police funds for the sole purpose of buying narcotics from Yolanda Crespo and Kevin Lucas. While under constant surveillance, the affiants observed the informant enter 112-114 Cooke Street first floor rear and exit a short time later. The informant then met with the affiants and handed to Officer Spagnolo a white rock substance. The information stated that the white rock substance was purchased from Yolanda Crespo while inside 112-114 Cooke Street and that Kevin Lucas was present in the apartment at the time the narcotics transaction took place.
      “5. That the white rock substance was field tested by Officer Spagnolo and showed a positive reaction for cocaine.
      “6. That based on the training and experience of the affiants, it is known that narcotics dealers keep their drugs, monies, records, receipts, notes, ledgers, and other documents relating to the distribution, ordering, and sales of narcotics in their homes or where they sell drugs from, and that narcotics dealers keep such items where they have ready access to them. In addition, it is known that narcotics dealers often keep weapons on their persons or nearby to protect their drugs and money.
      “7. That based on the above facts and information, the affiants believe that probable cause has been established to show that Kevin Lucas and Yolanda Crespo are using 112-114 Cooke Street first floor left side apartment. 'rear Waterbury, Connecticut, for the illegal possession of narcotics with intent, to sell ([General Statutes j>] 21a-277 [«P, and the affiants respectfully request, that a, search and seizure warrant, be issued for said apartment as well as the perso-ns of Kevin Lucas and Yolanda Crespo.” (Emphasis added.)

       The facts in Santiago are inapposite to the facts of this case. In Santiago, the defendant challenged the warrant for lack of particularity. The application and affidavit in support of the warrant, however, were quite specific as to the items to be seized. This court held that the police could refer to the application and affidavit that were attached to the warrant to clarify the items to be seized. State v. Santiago, supra, 8 Conn. App., 304-306.
      Here, the Willow Street warrant is specific as to the place to be searched (apartment 2B at 415 Willow Street) and what is to be seized. The affidavit in support of the application and warrant, however, identifies drug activities at both 112-114 Cooke Street and 415 Willow Street, and the final paragraph of the affidavit, paragraph seven, attests in both instances that there is probable cause for a search and seizure warrant to issue for 112-114 Cooke Street and the persons of the defendant and Crespo. The issue is not the particularity of the warrant, but the accuracy of the affidavit in support of the warrant.

       “We can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).

       Sears was a resident of the Cooke Street apartment who testified at trial.

       With respect to the defendant’s right to remain silent, the court instructed the jury more fully as follows: “[The defendant] did not testify in this case. As an accused person, he has the option to testify or not testify at trial. He is under no obligation to testify. He has a constitutional right not to testify. And you must draw no unfavorable inferences from the fact that he did not testify in this case.”

       At no time did the defendant take an exception to the phrase “or lack of evidence.”

      “[I]n State v. Delvalle, [250 Conn. 466, 470, 736 A.2d 125 (1999)], our Supreme Court rejected the claim that the use of ingenuity of counsel language was violative of a defendant’s constitutional right to counsel and to a fair trial or that it was plain error. The Delvalle court, reasoned that the Supreme Court has repeatedly upheld similar language on the ground that [it] did not, when properly considered in the broader context of the trial court’s instructions in their entirety, [dilute] the state’s burden of proof or otherwise mislefad] the jury in any way. . . . State v. Taylor, [supra, 239 Conn. 504-505] . . . .” (Internal quotation marks omitted.) State v. Taft, 57 Conn. App. 19, 28, 746 A.2d 813 (2000). “Although the court in Delvalle rejected the constitutional challenge to the ‘ingenuity of counsel’ instruction, the court stated that ‘[t]o avoid any possibility of juror confusion arising from the use of the phrase, we invoke our supervisory authority over the administration of justice to direct our trial courts to refrain from using the ingenuity of counsel language in the future.’ [State v. Delvalle, supra, 475-76].” State v. Taft, supra, 28. As was the instruction in Taft, the court’s jury instruction in this case was given before the Delvalle court’s direction about the future use of the “ingenuity of counsel” language. See State v. Delvalle, supra, 474; State v. Young, 56 Conn. App. 831, 843, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000).

       The court further instructed the jury as follows: “[T]he state can sustain the burden resting on it only if the evidence before you establishes the existence of every element constituting the crime charged beyond a reasonable doubt. Beyond a reasonable doubt has no technical or unusual meaning. You can arrive at real meaning of it by emphasizing the word reasonable. Again, a reasonable doubt is a valid doubt. It’s a doubt which has a valid reason, for which a valid reason can be assigned. It is a doubt which is something more than a guess or a surmise. It’s not conjecture or fanciful doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising a doubt — raising doubts. A reasonable doubt is a doubt based on reason not on the mere possibility of innocence. It is a doubt on which you can in your own mind consciously give a reason. A reasonable doubt is an honest doubt. It’s doubt which has its foundation in the evidence or lack of evidence and it’s the kind of doubt which in the serious affairs that concern you in everyday life you would pay heed and attention to. There is, of course, no absolute certainly in the everyday affairs of life that is attainable. And the law does not require absolute certainty on the part of you, the jury, before you can return a verdict of guilty. The law does not require guilt beyond all doubt or even a mathematical or absolute certainty. What the law does require is that after hearing all the evidence, if you find that there is something in the evidence or lack of evidence which leaves in your mind as reasonable men and women a reasonable doubt about the guilt of the defendant, then the defendant must be given the benefit of that doubt and acquitted. If there is no doubt, then he must be found guilty.”

       In Golding, our Supreme Court 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.) State v. Golding, supra, 213 Conn. 239-40.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ERNEST FRANCIS v. COMMISSIONER OF CORRECTION
    (AC 18926)
    Lavery, C. J., and Spear and Dranginis, Js.
    Submitted on briefs April 6
    officially released May 8, 2001

      Damon A. R. Kirschbaum filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, Donna Mam-brino, senior assistant state’s attorney, and Margaret Gaffney Radionovas, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Ernest Francis, appeals following the denial of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus, which alleged that his trial attorney rendered ineffective assistance. The petitioner claims that appellate review is warranted because trial counsel was ineffective in failing to raise the defense of extreme emotional disturbance at trial. We dismiss the appeal.

The court found that the defendant gave his trial counsel differing versions of the incident that led to the victim’s death. The petitioner at first claimed that the victim drew a knife on him and, in the ensuing scuffle, fell on his own knife. He later changed the statement to admit that it was his knife, but that the victim was stabbed while they both struggled for the knife. The petitioner’s trial testimony related the following version of the incident. The petitioner testified that he had approached the victim on the street because the victim had assaulted him in jail several months earlier. After the victim threw juice in his face, the petitioner struck out blindly with his knife. He did not realize that he had stabbed the victim until he saw blood on the knife as he returned to his motor vehicle.

Trial counsel’s defense in the criminal trial was that the petitioner did not have the requisite intent to commit murder because the stabbing was accidental. The habeas court concluded that the petitioner’s own testimony at trial mitigated against a defense of extreme emotional disturbance.

After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s writ was predicated on a factual review of the petitioner’s claim and the determination that the petitioner had failed to rebut the strong presumption that “counsel’s conduct f [ell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The petitioner has not shown “that the issues are debatable among jurists of reason; that a court could resolve the issue [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis in original; internal quotation marks omitted.) Simms v. Warden, supra, 230 Conn. 616.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       The petitioner was convicted of murder, and the conviction was affirmed in State v. Francis, 228 Conn. 118, 635 A.2d 762 (1993).


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. SANTOS PARIS
    (AC 18471)
    SchaUer, Spear and O’Connell, Js.

      Argued January 23
    officially released May 8, 2001

      Auden Grogins, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Santos Paris, appeals from the judgment of conviction, rendered after a jury trial, of possession of marijuana in violation of General Statutes § 2 la-279 (c), possession of marijuana with intent to sell in violation of General Statutes § 2 la-277 (b) and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the court improperly (1) denied his motion for a judgment of acquittal on the charge of possession of marijuana with intent to sell because the evidence was insufficient to support his conviction, (2) denied him a fair trial by allowing irrelevant and prejudicial testimony to be entered into evidence, and (3) denied him a fair trial by preventing him from presenting a third party culpability defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 20, 1995, Bristol police detectives visited 111 Union Street, apartment A5, during their investigation of a shooting. A tenant of the apartment, Danielle Lauretano, allowed them to enter. Lauretano had her newborn baby with her. While in the apartment, the detectives saw Eric Dabkowski, a known member of the Latin Kings street gang, leave one of the bedrooms. After noticing the detectives, Dabkowski briefly returned to the bedroom and then quickly left the apartment. Shortly thereafter, the detectives observed crack cocaine and a razor blade on the table in the living room, and Lauretano consented to a complete search of the apartment.

The detectives proceeded to search the bedroom that Dabkowski had left and discovered the defendant sleeping on the only bed in the room. The detectives recognized the defendant and arrested him because they knew of several outstanding warrants for his arrest on other charges. On the bed, underneath the defendant’s body, the detectives discovered a bag containing marijuana. After completing a more thorough search of the room, the detectives found a rifle and a scale inside a children’s toy tent, a .38 caliber revolver in a wooden dresser and a semiautomatic pistol located in a cardboard drawer. The detectives also discovered sixty-four grams of cocaine in a dresser drawer.

While the detectives were in the process of arresting the defendant, two people came to the door of the apartment to purchase drugs. One immediately fled upon seeing the police. The other, Alex Majewski, told the detectives that he had come to the apartment to buy some “weed” from “Cubby.” Cubby is the defendant’s nickname.

The jury convicted the defendant of possession of marijuana, possession of marijuana with intent to sell and risk of injury to a child. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to support his conviction of possession of marijuana with intent to sell. We disagree.

Our standard of review for a sufficiency of the evidence claim is well established. “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.” (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239, 745 A.2d 800 (2000). “In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.” State v. Wager, 32 Conn. App. 417, 430, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).

“[T]o prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it.” (Internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 542, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). Furthermore, proof of intent to sell narcotics “may be established through circumstantial evidence, from which the jury is free to draw reasonable and logical inferences.” State v. Clark, 56 Conn. App. 108, 112, 741 A.2d 331 (1999).

Here, the jury reasonably could have concluded that the cumulative force of the evidence presented by the state proved, beyond a reasonable doubt, that the defendant was guilty of the charge of possession of marijuana with intent to sell. The defendant was in direct physical contact with the mar ijuana when observed and arrested by the detectives. Furthermore, there was testimony that, while the defendant was being arrested, a third party came to the apartment to buy marijuana from him. “[A]s [our Supreme Court has] 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.” (Internal quotation marks omitted.) State v. DeCaro, supra, 252 Conn. 240. “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.” (Internal quotation marks omitted.) Id.; State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994). We therefore conclude that a reasonable jury could have determined, from the evidence presented and the inferences reasonably drawn therefrom, that the defendant was guilty beyond a reasonable doubt of possession of marijuana with intent to sell. Accordingly, the court properly denied the defendant’s posttrial motion for a judgment of acquittal.

II

The defendant next claims that the court improperly allowed evidence concerning (1) domestic violence between the defendant and Lauretano, (2) the defendant’s membership in the Latin Kings street gang and (3) the seizure of guns and ammunition from the bedroom in which the defendant was ar rested. The defendant argues that he was denied a fair trial by the introduction of such evidence because any probative value of the evidence was outweighed by its prejudicial effect on the jury. We disagree.

Our standard of review concerning evidentiary rulings is well settled. “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law. . . . And [it] requires a knowledge and understanding of the material circumstances surrounding the matter. . . . In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Banks, 59 Conn. App. 112, 127-28, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000).

A

The defendant first claims that the court improperly allowed the state to cross-examine Lauretano concerning statements she gave to police officers while they were investigating incidents of domestic violence between herself and the defendant. Prior to the state’s offering the first of a series of statements as full exhibits, defense counsel requested that the court discuss the statements outside the presence of the jury. After dismissing the jury, the court reviewed the statements and instructed defense counsel to object when the state offered the statements into evidence. Thereafter, the state offered the statements into evidence without objection from defense counsel. Because the defendant failed to object, his claims regarding Lauretano’s testimony are unpreserved. See State v. Spearman, 58 Conn. App. 467, 479, 754 A.2d 802 (2000). “We are not bound to hear a claim unless it was raised in the trial court. Practice Book § 60-5.” State v. Middlebrook, 51 Conn. App. 711, 721, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999). Accordingly, because the defendant’s claim is unpreserved, we decline to review it.

The defendant also claims that the court improperly allowed the state to cross-examine him as to his prior arrests for domestic violence. At trial, defense counsel objected and requested that the defendant be allowed the opportunity to consult his attorney concerning the pending charges relating to his prior arrests for domestic violence. The defendant now argues that the testimony’s probative value was outweighed by its prejudicial effect on the jury. “Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection [to the trial court], . . . This court reviews rulings solely on the ground on which the party’s objection is based.” (Internal quotation marks omitted.) State v. Legrande, 60 Conn. App. 408, 414, 759 A.2d 1027 (2000), cert. denied, 255 Conn. 925, 767 A.2d 99 (2001); see also State v. Lewis, 245 Conn. 779, 791, 717 A.2d 1140 (1998). Therefore, because the defendant’s claim on appeal — that the challenged testimony is overly prejudicial — was not raised in his objection at trial, his claim is unpreserved and we decline to review it.

B

The defendant next claims that the court improperly allowed testimony, over defense counsel’s objection, that established his membership in the Latin Kings street gang. He asserts that such testimony was irrelevant and that its probative value was outweighed by its prejudicial effect on the jury. We are unpersuaded.

During the state’s direct examination, a detective testified that in 1995, members of the Latin Kings street gang were known to sell narcotics in the area and were known to use the apartment in which the defendant was arrested to launch the street level sale of crack cocaine. That detective also testified that those who frequented the house were known gang members and, specifically, that Dabkowski was a known member of the gang. Defense counsel did not object to any portion of that testimony. Defense counsel objected only after the state inquired into the defendant’s membership in the gang, arguing that the alleged membership was irrelevant.

The challenged “[e]vidence is relevant if it has a tendency to establish the existence of a material fact.” (Internal quotation marks omitted.) State v. Taylor, 37 Conn. App. 464, 474, 657 A.2d 659, cert. denied, 234 Conn. 907, 660 A.2d 859 (1995). “Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 550, 757 A.2d 482 (2000); State v. Billie, 250 Conn. 172, 181, 738 A.2d 586 (1999). “No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” (Citation omitted; internal quotation marks omitted.) State v. Taylor, supra, 475.

Here, the jury heard testimony that members of the gang sold cocaine in the area, used the apartment to launch neighborhood cocaine sales and that other known gang members were present in the apartment with the defendant at the time of his arrest. Under these circumstances, evidence establishing the defendant’s membership in the gang was relevant because it tended to support the assertion that the defendant had engaged in the sale of cocaine.

Despite our conclusion that the challenged testimony was relevant, we must next consider whether the court should have excluded it as being unduly prejudicial. “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 141, 763 A.2d 1 (2000); State v. Copas, 252 Conn. 318, 329-30, 746 A.2d 761 (2000).

The probative value of the testimony concerning the defendant’s membership outweighed any prejudicial effect. The jury already had heard, without objection, testimony as to the gang, its use of the apartment to sell cocaine and the presence of other known gang members in the apartment at the time of the defendant’s arrest. Any prejudice created by the further testimony concerning the defendant’s membership in the gang was certainly outweighed by its probative value. Furthermore, the fact that the jury acquitted the defendant on both cocaine charges suggests that the jury did not rely on the testimony concerning his membership in the gang or his involvement with cocaine sales.

Because we have determined that the challenged testimony was relevant and its probative value was not outweighed by its prejudicial effect on the jury, we conclude that the court did not abuse its discretion by admitting it into evidence. Accordingly, the defendant was not deprived of a fair trial.

C

The defendant also claims that the court improperly allowed the introduction of evidence concerning the seizure of guns and ammunition from the bedroom in which he was arrested. The defendant does not assert that an objection was timely raised at trial, but instead argues that his claim properly is preserved because it was raised, for the first time, in his motion for a new trial after the jury found him guilty. The defendant cites no authority in support of this proposition, and we find it to be completely without merit.

As we have often stated, this court will refrain from reviewing claims on evidentiary rulings in situations in which counsel has failed to make an objection. See State v. Abrahante, 56 Conn. App. 65, 71 n.l, 741 A.2d 976 (1999); State v. Middlebrook, supra, 51 Conn. App. 721. We are not persuaded that evidentiary claims, not made at trial, can be preserved for appeal by raising them in a motion for a new trial after a guilty verdict. The problems inherent in allowing counsel to wait until after an adverse verdict to raise such objections to evidence are too obvious to warrant discussion. Accordingly, we conclude that the defendant’s claim is unpre-served and we decline to review it.

Ill

The defendant finally claims that the court improperly precluded third party culpability evidence, thereby depriving him of a fair trial. Specifically, the defendant argues that the court improperly excluded Dabkowski’s admission that the drugs seized at the apartment were his property and not that of the defendant. The court refused to admit the evidence after the defendant’s offer of proof regarding the admission by Dabkowski. We conclude that the proffered admission is irrelevant as to third party culpability and, therefore, properly was rejected.

“Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . . The admissibility of evidence of third party culpability is governed by the rules relating to relevancy. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. . . . The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000).

The defendant proffered evidence that he claims would establish that Dabkowski “owned” the contraband that was seized at the apartment in which the defendant was arrested. Although that would directly connect Dabkowski to the contraband, it does not indicate that Dabkowski, instead of the defendant, had committed the charged offenses of possession of marijuana and possession of marijuana with intent to sell. The “ownership” of an illegal substance by another is irrelevant to the issue of whether the defendant unlawfully possessed such items. Possession of an illegal substance requires the accused to have had knowledge of the character of the drug and its presence, and to have exercised dominion and control over it. State v. Bradley, supra, 60 Conn. App. 542. Accordingly, even if Dab-kowski had the sole “ownership” interest in the contraband, the defendant still could be culpable as to possession. Therefore, because the evidence did not dictate that Dabkowski, instead of the defendant, had committed the crimes charged, the evidence did not present a viable third party culpability defense. See State v. Ortiz, supra, 252 Conn. 564-65 (court did not abuse discretion in excluding third party culpability evidence because such evidence did not indicate third party, “instead of’ defendant, had committed crime).

Furthermore, the defendant was not otherwise precluded from asserting and showing that someone else had committed the crimes with which he was charged. The court’s preclusion of Dabkowski’s testimony did not prevent the defendant from pursuing a third party culpability defense with other admissible evidence. See State v. Boles, 223 Conn. 535, 543-45, 613 A.2d 770 (1992) (exclusion of proffered evidence does not preclude defendant from presenting theory of defense through other evidence). Accordingly, we conclude that the court did not abuse its discretion by excluding the proffered evidence, nor in doing so did the court deprive the defendant of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or 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.”

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to anotherperson any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, 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; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes § 53-21 (a) 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.”

       The defendant was acquitted of possession of cocaine in violation of General Statutes § 21a-279 (a) and possession of cocaine with intent to sell in violation of General Statutes § 21a-278 (b).

       The colloquy, outside the presence of the jury, between the court and defense counsel was, in relevant part, as follows:
      “[Defense Counsel]: You said no objection. I do have an objection.
      “The Court: No, no objection to him doing what he’s going to do, present them.
      “[Defense Counsel]: That’s correct. That’s correct.
      “The Court: So, as they are introduced, if you have [an] objection, you may make the objection. It will be ruled upon at that time.”

       In response to defense counsel’s objection, the court stated that the line of questioning was proper because counsel had raised the issue of the prior arrests during direct examination. The court added that the defendant could not then ask for the advice of his counsel regarding his prior arrests after openly testifying about the issue on direct examination.

       We note that “when opposing counsel does not object to evidence, it is inappropriate for the trial court to assume the role of advocate and decide that the evidence should be stricken.” State v. Wragg, 61 Conn. App. 394, 399, 764 A.2d 216 (2001). Accordingly, it is not the role of this court to determine, sua sponte, whether testimony, unobjected to at trial, properly was admitted.

       We use the term “owned” because the defendant uses it. We doubt that anyone can have a property interest in contraband. See State v. Lewis, supra, 245 Conn. 787-88; State v. Morant, 242 Conn. 666, 671, 701 A.2d 1 (1997).

       For example, a drug dealer may “own” the drugs that he supplies to his street sellers. Such “ownership” would not preclude conviction of such a street seller for possession or sale of the drugs.