STATE v. HEDGE

e on January [28] for importation of marijuana, and, on February [21], an unknown person had executed a release of liability to transfer the car out of Jaramillo's name. Vallejo was stopped . . . [and arrested] on March [4]. [Thus, Vallejo] argued that there was `a clear inference' that Jaramillo had gotten this car ready to go and then sold it after his arrest, fearing that he would be caught importing drugs a second time." Id. Prior to trial, the government filed a motion in limine seeking to preclude Vallejo from mentioning Jaramillo at trial. Id. The District Court granted the motion on the ground that the evidence was "more [obfuscatory] than anything else." (Internal quotation marks omitted.) Id., 1023.

On appeal, Vallejo claimed that the District Court improperly had excluded the third party culpability evidence. A panel of the United States Court of Appeals for the Ninth Circuit agreed and reversed the judgment of the District Court. Id., 1024, 1026. The Court of Appeals explained that, "[e]ven if the defense theory [was] purely speculative, as the [D]istrict [C]ourt characterized it, the evidence would be relevant." Id., 1023. The Court of Appeals further explained that "it is the role of the jury to consider the evidence and determine whether it presents `all kinds of fantasy possibilities,' as the [D]istrict [C]ourt concluded, or whether it presents legitimate alternative theories for how the crime occurred." Id. "[N]o evidence was presented to suggest exactly how the drugs ended up in the car Vallejo was driving. . . . Vallejo claimed [that] he did not know there were drugs in the car, but he was not allowed to provide an answer for the jurors' question: `If [Vallejo] did not know there were drugs in the car and did not place them there himself, who did?'" Id.

As in Beaty and Vallejo, the defendant in the present case was arrested while in possession of a vehicle that did not belong to him. He claimed that he did not know anything about the drugs that were found secreted in the vehicle and proffered evidence that a convicted drug dealer, who previously had left drugs and money in the vehicle, had driven the vehicle shortly before him. That evidence was highly relevant to the defendant's theory of defense. We conclude, therefore, that when, as in the present case, a person is arrested for the possession of drugs that are concealed in a vehicle that does not belong to him, and he adduces evidence that another person had both the motive and the opportunity to commit the crime and actually operated the vehicle within a twenty-four hour period, it is improper for the trial court to exclude that evidence.

The state contends that the trial court properly excluded the evidence proffered by the defendant because he had failed to demonstrate that someone witnessed Jackson place the drugs in the vehicle or that Jackson had arranged to regain possession of the vehicle at a later time in order to retrieve the drugs. The state asserts that "[i]t strains credulity to think that anyone would hide such a valuable stash of narcotics in a borrowed car and then return it to its owner with no plan for retrieval." The state, of course, is free to make this argument at any subsequent trial to support its contention that the defendant's third party culpability defense is unworthy of belief. The mere fact that the state's argument ultimately may prove to be persuasive, however, is an inadequate reason to bar the proffered evidence. As we have explained, third party culpability evidence is admissible if it raises more than a bare suspicion that someone else has committed the crime. See, e.g., State v. Arroyo, supra, 284 Conn. 610, 612. Evidence that connects a third party to the charged offense by demonstrating that the third party possessed both a motive and an opportunity to commit the crime satisfies this standard when, as in the present case, that evidence is sufficient to give rise to a reasonable doubt concerning the defendant's guilt. In other words, if the jury reasonably might view such third party culpability evidence as providing a credible, alternative theory as to who committed the crime, the defendant is entitled to have the jury consider that evidence in determining whether the state has proven its case against the defendant beyond a reasonable doubt. Cf. State v. Berger, 249 Conn. 218, 235, 733 A.2d 156 (1999) ("The primary object of third party suspect testimony is not to prove the guilt of the third party but to disprove the guilt of the accused. If it raises a reasonable doubt of his guilt it accomplishes its object." [Internal quotation marks omitted.]).

The state finally contends, as an alternative basis for upholding the trial court's exclusion of the evidence that Jackson was a convicted drug dealer who previously had left drugs in Lathrop's car and home on other occasions, that such evidence was inadmissible under §§ 4-4 (a) and 4-5 (a) of the Connecticut Code of Evidence. Section 4-4 (a) of the Connecticut Code of Evidence provides in relevant part that "[e]vidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion. . . ." Section 4-5 (a) of the Connecticut Code of Evidence provides that "[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person." The state asserts that, although § 4-5 (b) provides for certain exceptions to the inadmissibility of other crimes, wrongs or acts evidence, the evidence that the defendant proffered does not fall within any of those exceptions. We conclude that neither § 4-4 (a) nor § 4-5 (a) bars admission of character evidence or evidence of other crimes, wrongs or acts when that evidence is offered for the purpose of raising a reasonable doubt as to a defendant's guilt and otherwise satisfies the criteria for the admissibility of third party culpability evidence.

"We begin our review of the issue presented by noting that, [a]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. . . . Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . State v. Nunes, 260 Conn. 649, 684, 800 A.2d 1160 (2002); see also Conn. Code Evid. § 4-5 (a). Under § 4-5 (b) of the Connecticut Code of Evidence, however, evidence of prior misconduct may be admitted when it is offered for a purpose other than to establish the defendant's bad character or criminal propensity. . . . [P]rior misconduct evidence may be admissible to prove [among other things] intent, identity, motive, malice or a common plan or scheme. Conn. Code Evid. § 4-5 (b). Thus, the fact [t]hat evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material. . . . State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976).

"In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect. . . ." (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 630, 930 A.2d 628 (2007).

This court has observed that "there is no substantive difference between the pertinent federal and Connecticut rules [of evidence governing evidence of other crimes, wrongs or acts]. . . ." State v. Aaron L., 272 Conn. 798, 825, 865 A.2d 1135 (2005). The federal counterpart to § 4-5 is rule 404 (b) of the Federal Rules of Evidence, which provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." "By combining into one section the prohibition against the use of prior misconduct evidence to prove character or conduct in conformity with the limited purposes for which such evidence is admissible, rule 404 (b) of the Federal Rules of Evidence simply expresses the same principles collectively that are expressed separately in subsections (a) and (b) of § 4-5 of the Connecticut Code of Evidence." State v. Aaron L., supra, 824-25.

"Rule 404 (b) . . . is typically employed by federal prosecutors seeking to rely on evidence of a criminal defendant's prior convictions or other misconduct as proof of that defendant's motive, opportunity, intent, preparation, plan, knowledge, or identity with regard to a different crime for which the defendant is being prosecuted." (Internal quotation marks omitted.) United States v. Reed, 259 F.3d 631, 634 (7th Cir. 2001). "The [r]ule is not so limited in its application, however, and evidence of a witness' other wrongs, acts, or crimes is admissible for defensive purposes if it tends, alone or with other evidence, to negate the defendant's guilt of the crime charged against him." (Internal quotation marks omitted.) United States v. Montelongo, 420 F.3d 1169, 1174 (10th Cir. 2005). "Evidence is characterized as reverse 404 (b)-evidence when a defendant offers evidence under the [r]ule . . . against a third person in order to exculpate himself. In reverse 404 (b)-evidence cases . . . the person against whom the evidence is being offered is not a party to the case and, therefore, will not be unfairly prejudiced if the evidence is admitted." Rivera v. Rivera, 262 F. Sup. 2d 1217, 1225 (D. Kan. 2003). Because, in such cases, the person against whom the evidence is offered will not be unfairly prejudiced, most federal courts that have considered the issue have held "that admissibility of reverse 404 (b) evidence depends on a straightforward balancing of the evidence's probative value against considerations such as undue waste of time and confusion of the issues. United States v. Stevens, 935 F.2d 1380, [1404-1405 (3d Cir. 1991]; see also United States v. Reed, [supra, 634]." United States v. Montelongo, supra, 1174. But see United States v. Lucas, 357 F.3d 599, 605, 606 (6th Cir. 2004) (observing that "prior bad acts are generally not considered proof of any person's likelihood to commit bad acts in the future," and, therefore, "the standard analysis of Rule 404 (b) evidence should generally apply in cases [in which] such evidence is used with respect to an absent third party").

We find persuasive the analysis of the United States Court of Appeals for the Second Circuit, which, in considering the issue before us, concluded: "[T]he standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword. The prosecution, in the Anglo-American tradition, may not ordinarily offer evidence of a defendant's prior wrongdoing for the purpose of persuading the jury that the defendant has a propensity for crime and is therefore likely to have committed the offense for which he stands trial. [1A J. Wigmore, supra, § 58.2, p. 1212]. As Dean [John Henry] Wigmore points out, the evidence `is objectionable not because it has no appreciable probative value but because it has too much.' [Id.] Presumably, the `too much' argument means that a guilty person, and, of far more serious concern, an innocent person, may be convicted primarily because of the jury's willingness to assume his present guilt from his prior misdeed. Wigmore also identifies objections based on the risk that the jury will convict because the defendant may not have been punished for his prior offenses and the injustice of requiring the defendant to defend against a series of accusations. [Id., p. 1215]. These possibilities of prejudice must be assessed even in cases [in which] the prosecutor offers similar acts evidence, not to prove the character of the accused, but to prove one of the permissible subsidiary facts listed in [r]ule 404 (b), such as intent or plan. . . . However, risks of prejudice are normally absent when the defendant offers similar acts evidence of a third party to prove some fact pertinent to the defense." (Citation omitted.) United States v. Aboumoussallem, 726 F.2d 906, 911 (2d Cir. 1984); see also United States v. Lucas, supra, 357 F.3d 605 (recognizing, "as do several [other federal circuit courts], that . . . evidence [of other crimes, wrongs or acts] when presented by the defense, requires [the court] to reconsider [its] standard analysis, as the primary evil that may result from admitting such evidence against a defendant — by tainting his character — is not present in the case of [rule] 404 (b) evidence used against an absent person"); United States v. Gonzales-Sanchez, 825 F.2d 572, 582 n. 25 (1st Cir.) ("[i]nasmuch as this evidence does not concern past criminal activity of [the defendant], [r]ule 404 (b) is inapplicable"), cert. denied sub nom. Latorre v. United States, 484 U.S. 989, 108 S. Ct. 510, 98 L. Ed. 2d 508 (1987); United States v. Krezdorn, 639 F.2d 1327, 1333 (5th Cir. 1981) ("[When] the only purpose served by extrinsic offense evidence is to demonstrate the propensity of the defendant to act in a certain way, the evidence must be excluded. When, however, the extrinsic offense was not committed by the defendant, the evidence will not tend to show that the defendant has a criminal disposition and that he can be expected to act in conformity therewith. When the evidence will not impugn the defendant's character, the policies underlining [r]ule 404 (b) are inapplicable.").

We also find persuasive the observation of the Montana Supreme Court that "[u]nfair prejudice against the government [in this context] is rather rare. Unfair prejudice [to the government] means an undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one. . . . Thus, the only possible unfair prejudice against the government occurs when . . . evidence [of other crimes, wrongs or acts] tends to make the jury more likely to find a defendant not guilty despite the proof beyond a reasonable doubt. . . . By proving that someone else committed the crime, [however] reverse 404 (b) evidence is not likely to generate that risk of jury infidelity, and thus does not generate unfair prejudice. Only in the rarest circumstances will the [trial] court be presented with unfair prejudice to the [s]tate in [the context] . . . of reverse 404 (b) evidence." (Citations omitted; internal quotation marks omitted.) State v. Clifford, 328 Mont. 300, 311, 121 P.3d 489 (2005).

We note, finally, that, "[c]onsistent with [a] defendant's right [under the sixth amendment] fairly to inform the jury of facts material to the defense, [i]t has long been the law in this state that, in a homicide prosecution, an accused may introduce evidence . . . of the [deceased] victim's violent character to prove that the victim was the aggressor, regardless of whether such character evidence had been communicated to the accused prior to the homicide. State v. Miranda, [ 176 Conn. 107, 109, 405 A.2d 622 (1978] . In Miranda, we determined that the victim's violent character could be proven by reputation testimony, by opinion testimony, or by evidence of the [victim's] convictions for crimes of violence, irrespective of whether the accused knew of the [victim's] violent character or of the particular evidence adduced at the time of the death-dealing encounter." (Citations omitted; internal quotation marks omitted.) State v. Carter, 228 Conn. 412, 422-23, 636 A.2d 821 (1994). In our view, the right of an accused to offer evidence of a person's character, past criminal convictions or other prior bad acts, in support of a third party culpability defense, also is compelled by the right to present a defense guaranteed by the sixth amendment, and, as a general matter, its use should be limited only by the rules relating to relevancy and balancing.

Thus, consistent with the view of the majority of courts that have considered the issue, we conclude that the policies underlying §§ 4-4 (a) and 4-5 (a) of the Connecticut Code of Evidence have extremely limited applicability when the defendant offers evidence of a character trait or other crimes, wrongs or acts to prove that someone else committed the crime charged. We are persuaded that the rules pertaining to the admission of third party culpability evidence are sufficiently stringent to protect against any unfair prejudice to the state or confusion of the issues that might arise when such evidence is offered to support a third party culpability defense. Consequently, we reject the state's alternative ground for upholding the trial court's exclusion of the evidence that the defendant had proffered in support of his third party culpability defense.

In light of our determination that the trial court's exclusion of the defendant's third party culpability evidence violated the defendant's right to present a defense, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. See, e.g., State v. Randolph, 284 Conn. 328, 377, 933 A.2d 1158 (2007). "Whether a constitutional violation is harmless in a particular case depends [on] the totality of the evidence presented at trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless." (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 832, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). The state cannot meet its burden. The sole issue at trial was whether the defendant was the person who placed the drugs in Lathrop's vehicle. Except for a single, small Ziplock bag of cocaine discovered on or around the center console or front passenger seat, all of the drugs were concealed in secret compartments located under the dashboard. The defendant's theory of defense was that someone else had hidden the drugs in those compartments. He also claimed that he did not notice the small Ziplock bag of cocaine, which was in plain view to the officers, when he entered the vehicle in the dark, late at night. Indeed, one of the arresting officers, Ryan, testified that he, too, did not notice that lone bag when he shined his flashlight on the front passenger seat. In light of the fact that the evidence that the defendant proffered represented a plausible third party culpability defense, we cannot say that the trial court's exclusion of that evidence was harmless beyond a reasonable doubt.

The defendant also contends that the trial court improperly instructed the jury that the conduct of the police in connection with their investigation of the defendant was not an issue to be considered by the jury. We do not address this claim because neither party requested the instruction and the issue is not likely to arise upon retrial.

II

Although we have determined that the defendant is entitled to a new trial on all of the drug related charges, we address the defendant's claim that the evidence was insufficient to support his conviction of unlawfully transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b) because, if that claim is meritorious, a retrial on that charge would be barred by principles of double jeopardy. See, e.g., State v. Padua, 273 Conn. 138, 178, 869 A.2d 192 (2005) (retrial is barred and defendant is entitled to acquittal when evidence is insufficient to support conviction). The defendant contends that the evidence was insufficient to support his conviction under § 21a-278a (b) because the state presented no evidence from which the jury reasonably could have found that he had intended to sell drugs within 1500 feet of a public housing project. In support of his claim, the defendant contends that the mere fact that the police stopped his vehicle for a traffic violation at a location within 1500 feet of a public housing project is insufficient to support a finding that he had intended to sell drugs at that location. We agree with the defendant.

The following facts and procedural history are relevant to our disposition of this claim. As we previously indicated, at approximately 1:30 a.m. on May 11, 2002, Officers Grasso and Ryan were on patrol near the Marina Village housing project when they observed the defendant driving a Toyota Camry in a northbound direction on Columbia Street. When the vehicle arrived at the intersection of Columbia Street and Johnson Street, the defendant turned right onto Johnson Street. The defendant failed to use a turn signal, and the officers immediately pulled him over. The officers subsequently discovered a large quantity of drugs in the vehicle, which were packaged for sale, and $59 in currency, which was strewn over the center console or front passenger seat.

At the close of the state's case, defense counsel moved for a judgment of acquittal on the charge of unlawfully transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project, claiming that the officers' detention of the defendant near Marina Village was merely fortuitous and that the state had presented no evidence that he had intended to sell drugs at that location. The trial court denied the motion, adopting the view advanced by the state that § 21a-278a (b) does not require proof that a defendant intends to sell drugs within 1500 feet of a public housing project but only that he possesses drugs within 1500 feet of that location with intent to sell them somewhere. Although this view represented an incorrect principle of law; see State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (to establish violation of § 21a-278a (b), state must prove that defendant intended to sell drugs within proscribed geographic area); the trial court subsequently instructed the jury properly as to the state's burden under § 21a-278a (b), explaining that the state was required to prove that the defendant unlawfully was transporting cocaine and heroin and that he intended to sell those drugs at a particular location that was within 1500 feet of a public housing project.

"The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Cook, 287 Conn. 237, 254, 947 A.2d 307, cert. denied, U.S. 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). "In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable. . . .

"[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts [that] establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused's state of mind is rarely available . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [on] the evidence." (Internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 842-43, 911 A.2d 1086 (2007).

General Statutes § 21a-278a (b) prohibits any person from "transporting with the intent to sell or dispense, [or] possessing with the intent to sell or dispense . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising . . . a public housing project. . . ." General Statutes § 21a-278a (b) further provides that, "[t]o 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, the real property comprising . . . a public housing project. . . ." This court has held that "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" 1500 feet of a public housing project, among other geographical designations. State v. Denby, supra, 235 Conn. 482. There is no requirement that the state prove that the defendant had actual knowledge that the location where he intended to sell drugs was within the proscribed area; id.; rather, the state must demonstrate only "that the defendant intended to sell or dispense those drugs in his or her possession at a specific location, which location happens to be within" 1500 feet of a public housing project, among other geographical designations. Id., 483.

"It is well established that the question of intent is purely a question of fact. Intent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one." (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 460, 939 A.2d 581 (2008).

The state maintains that the evidence adduced at trial supported a finding that the defendant intended to sell cocaine and heroin within 1500 feet of a public housing project because (1) one of the arresting officers testified that the area around Marina Village is known for heavy narcotics trafficking, (2) money was "strewn" on or near the center console or front passenger seat of the vehicle, and (3) the defendant "had been on his supposed mission to buy milk for [two and one-half] hours." The state contends that these three facts taken together gave rise to a reasonable inference that the money on or near the center console or front passenger seat was from a recent drug sale and that the defendant was "trawling for [more] customers at the time he was stopped." We are not persuaded.

Although the large quantity of drugs that the police found in the defendant's vehicle supports an inference that the defendant had intended to sell the drugs somewhere; see, e.g., State v. Francis, 90 Conn. App. 676, 682, 879 A.2d 457 (quantity of narcotics and manner of packaging indicative of intent to sell), cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005); it was insufficient to support a finding that he had intended to sell them within 1500 feet of Marina Village. See, e.g., State v. Harris, 60 Conn. App. 436, 439-40, 442-43, 759 A.2d 1040 (state conceded that seventy-one parcels of cocaine that were packaged for sale and found inside vehicle that was stopped immediately outside parking lot of public housing project was insufficient to support finding of intent to sell drugs at that location), cert. denied, 255 Conn. 907, 762 A.2d 911 (2000). "Mere possession of narcotics with an intent to sell at some unspecified point in the future, at some unspecified place, is not enough [to prove a violation of § 21a-278a (b] . Quite obviously, if [a person] is apprehended while coincidentally passing through a location, there is no logical inference that he intended to sell at the location of the apprehension." State v. Lewis, 113 Conn. App. 731, 747, 967 A.2d 618, cert. granted, 292 Conn. 906, 973 A.2d 105 (2009). Moreover, both of the arresting officers testified that they stopped the defendant near Marina Village solely on the basis of his failure to use a turn signal. The state adduced no evidence that the defendant was on his way to Marina Village, recently had been at Marina Village, or otherwise had engaged in any activity, suspicious or otherwise, that would give rise to a reasonable inference that he planned to sell drugs at or within 1500 feet of Marina Village. But cf. State v. Myers, 101 Conn. App. 167, 176, 921 A.2d 640 (2007) (defendant's transfer of drugs within proscribed area indicative of intent to sell drugs at that location), rev'd in part on other grounds, 290 Conn. 278, 963 A.2d 11 (2009); State v. Knight, 56 Conn. App. 845, 848, 852-53, 747 A.2d 13 (2000) (fact that defendant showed marijuana and cocaine to officer in plain clothes, who had asked for a "`ten'" within proscribed zone, was sufficient to establish intent to sell within 1500 feet of school). Furthermore, the fact that Marina Village is known to be an area of heavy drug trafficking does not establish that the defendant sold drugs there or that he intended to do so in the two and one-half hour period prior to his arrest. Indeed, the record is devoid of evidence indicating whether the defendant intended to sell the drugs in Marina Village, within 1500 feet of Marina Village, or some greater distance from Marina Village. Consequently, although the fact that Marina Village is a place where drugs frequently are sold might make it more likely that the defendant was planning to sell drugs there as opposed to some other discrete location, one can only speculate as to whether the defendant intended to sell drugs at or within 1500 feet of Marina Village.

Contrary to the state's claim, the two additional facts on which the state relies, namely, that $59 was found on or near the center console or front passenger seat of the vehicle that the defendant was driving and that the defendant had not returned from an errand to buy milk for more than two hours, also provide an inadequate basis for concluding that he had intended to sell cocaine or heroin at or within 1500 feet of Marina Village. The money strewn on or near the center console or front passenger seat of the vehicle could have been there for any number of reasons unrelated to the sale of drugs, and, even if the money was related to drug trafficking, there is nothing about that fact to suggest that the drug transactions occurred inside the proscribed area. Similarly, whether the defendant was on an errand to buy milk and, if so, the length of time that he purportedly took to accomplish that task have no bearing on whether the defendant intended to sell drugs within 1500 feet of Marina Village. In the absence of any evidence that the defendant engaged in conduct reflecting an intent to sell drugs at some location within the proscribed area, the defendant is entitled to a judgment of acquittal on the charge that he had violated § 21a-278a (b).

The defendant also claims that § 21a-278a(b) is unconstitutionally vague as applied to his conduct in the present case. We do not address this claim in view of our determination that the defendant is entitled to a judgment of acquittal on the charge under that statute.

III

We next address the defendant's claim that the trial court improperly denied his motion to dismiss the counts of the second amended information charging him with transporting cocaine and heroin with intent to sell and doing so within 1500 feet of a public housing project. The defendant contends that, because he previously had been acquitted of the heroin offense that comprised a part of each of those two counts, the double jeopardy clause of the fifth amendment barred the state from trying him again for those offenses as they related to heroin. We agree with the defendant.

Although the defendant is entitled to a new trial on the charges of unlawfully transporting with intent to sell and possession because he was denied the right to present his third party culpability defense; see part I of this opinion; we address the defendant's double jeopardy claim for the purpose of clarifying that the double jeopardy violation in the present case does not bar the state from retrying the defendant on those charges as they relate to the defendant's transportation of cocaine as opposed to heroin.

The following facts and procedural history are relevant to our disposition of this claim. In a substitute information dated August 8, 2005, the state charged the defendant in four counts with (1) possession of cocaine with intent to sell by a person who is not drug dependent in violation of § 21a-278 (b), (2) possession of opium with intent to sell by a person who is not drug dependent in violation of § 21a-278 (b), (3) possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b), and (4) failure to appear in the first degree in violation of § 53a-172 (a) (1). The case proceeded to trial, and, at the conclusion of the evidence, the trial court dismissed the charge of possession of opium with intent to sell by a person who is not drug dependent on the ground that the state had failed to prove that one of the narcotic substances that was seized from the defendant's vehicle was, in fact, opium. Thereafter, the jury returned a verdict of guilty on the failure to appear charge but was unable to reach a verdict on the remaining two drug charges. The trial court thereafter declared a mistrial as to those charges.

At that time, the state requested permission to amend the information to substitute the word "heroin" for the word "opium," but the trial court denied the state's request.

The state elected to retry the defendant and filed an amended information dated November 28, 2005, charging him in three counts with (1) unlawfully transporting "a narcotic substance" with intent to sell by a person who is not drug dependent in violation of § 21a-278 (b), (2) unlawfully transporting a narcotic substance with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b), and (3) possession of "a narcotic substance" in violation of § 21a-279 (a). On December 12, 2005, the defendant filed a motion for a bill of particulars in which he requested that the state specify what "narcotic or narcotics" the defendant allegedly had transported. He also filed a motion in limine in which he sought an order precluding the state and its witnesses from making any reference to heroin at the second trial. In that motion, the defendant alleged that, "if such evidence [is] admitted [at trial], the defendant's constitutional right against double jeopardy would be violated" because he previously had been "acquitt[ed]" of possession of that drug with intent to sell at the first trial.

The trial court heard argument on the defendant's motions on December 19, 2005, the first day of the second trial. At that time, defense counsel argued that the state should be required to file a bill of particulars indicating that the narcotic substance referred to in the amended information is cocaine because the word "narcotic substance" encompasses opiates, including heroin, and the defendant had been acquitted of possessing opium with intent to sell at the first trial. The trial court agreed that the amended information raised a double jeopardy concern with respect to opium but not as to any derivatives of opium. As a consequence, the court granted the defendant's motion for a bill of particulars but denied his motion in limine. In light of the court's ruling, the state, on that same day, filed a second amended information charging the defendant with (1) transporting "a narcotic substance, to wit: cocaine and heroin" with intent to sell by a person who is not drug dependent, (2) of doing so within 1500 feet of a public housing project, and (3) possession of "a narcotic substance, to wit: cocaine. . . ." After the state filed the second amended information, the defendant moved to dismiss the charges as they related to heroin on double jeopardy grounds. In support of his motion to dismiss, the defendant presented the testimony of Jane Ridley, a chemist, who testified that, although heroin and opium are distinct drugs, heroin is a chemical compound derived from the opiate plant. She further testified that, although heroin can be manufactured synthetically, she would have no way of knowing whether the heroin in the present case was synthetic without examining it.

At the conclusion of the state's case, the court heard argument on the defendant's motion to dismiss. At that time, the state maintained that the charges in the second amended information did not violate the defendant's right against double jeopardy because, although heroin is derived from opium, they are different drugs. Thereafter, the court denied the defendant's motion to dismiss, concluding that, as the state had maintained, opium and heroin are different drugs. The court subsequently instructed the jury that, although the second amended information charged the defendant with transporting both cocaine and heroin with the intent to sell, the state was not required to prove that the defendant had transported both cocaine and heroin with the requisite intent, but, rather, the jury could find the defendant guilty on that charge if it found that he transported "either" cocaine or heroin with that intent. The jury subsequently found the defendant guilty of all charges.

The court later issued a memorandum of decision in which it explained in relevant part: "The court denies the motion to dismiss on double jeopardy grounds. The court finds either that heroin is a separate drug from opium or that even if it can be considered as the same drug in one of its forms, it comes in [two] forms, one of which is by synthetic manufacture, and no one is, in this case at least, able to tell them apart."

On appeal, the state does not dispute that the second trial violated principles of double jeopardy insofar as the jury was permitted to consider the defendant's alleged transportation of heroin with intent to sell. Indeed, there can be no question of such a violation. "We have recognized that the [d]ouble [j]eopardy [c]lause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. . . . These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense. . . . The [c]lause operates as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent." (Internal quotation marks omitted.) State v. Bruno, 293 Conn. 127, 140, 975 A.2d 1253 (2009). The present case involves the aspect of the double jeopardy clause that protects against a second prosecution for the same offense after acquittal. "The traditional approach to analyzing whether two offenses constitute the same offense [for double jeopardy purposes is] set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [When] the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact [that] the other does not." (Internal quotation marks omitted.) State v. Alvarez, 257 Conn. 782, 789, 778 A.2d 938 (2001).

We note that the state contends that the defendant waived his double jeopardy claim by waiting until after evidence had begun at his retrial to file his motion to dismiss the charges as they related to the transportation of heroin on double jeopardy grounds and by failing to seek an interlocutory appeal from the trial court's subsequent denial of that motion at the close of the state's case. See, e.g., State v. Price, 208 Conn. 387, 390, 544 A.2d 184 (1988) (defendant waives double jeopardy claim by not raising it in timely manner). The state further maintains that the double jeopardy violation did not taint the defendant's conviction for transporting cocaine with intent to sell and transporting cocaine with intent to sell within 1500 feet of a public housing project. In support of this latter assertion, the state contends that, in view of the fact that the second amended information charged the defendant with transporting both cocaine and heroin in the same count and the fact that the jury was instructed that it could find the defendant guilty if it determined that he transported "either" cocaine or heroin, it is far more likely that the defendant's conviction was predicated on his transportation of cocaine rather than heroin because the evidence linked the defendant more closely to the cocaine. We are not persuaded by the state's claims. Contrary to the state's assertion, the defendant raised his double jeopardy claim in a timely manner, indeed, he did so at the first possible opportunity after learning that the state intended to retry him for the heroin offense. We also reject the state's contention that the double jeopardy violation was harmless because the state cannot establish beyond a reasonable doubt that the evidence concerning the defendant's transportation of heroin with intent to sell did not affect the jury's deliberations.

In the present case, the Blockburger test is readily satisfied because the defendant was charged twice with a violation of the same statutory provisions on the basis of the same underlying conduct. Indeed, the only real difference between the information filed before the defendant's first trial and the second amended information is the label placed on the narcotic substance at issue: for purposes of the first trial, the state identified the substance as "opium"; for purposes of the second trial, the state labeled that same substance as "heroin."

The only remaining issue, therefore, is whether, in light of the double jeopardy violation, the state may retry the defendant for transporting cocaine with intent to sell. As a general matter, when the state charges a defendant in separate counts with a jeopardy barred offense and an offense that is not so barred, and the jury finds the defendant guilty on both counts, the defendant is entitled to a new trial on the nonbarred offense unless the state is able to prove beyond a reasonable doubt that the joinder of the two charges did not prejudice the defendant. See Pacelli v. United States, 588 F.2d 360, 364 (2d Cir. 1978) ("the possibility of significant prejudice resulting from the joinder of a jeopardy-barred charge with a permissible one is a problem of constitutional dimensions"), cert. denied, 441 U.S. 908, 99 S. Ct. 2001, 60 L. Ed. 2d 378 (1979); United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 867 (2d Cir. 1965) ("[t]he concept of `due process of law' embodied in the [f]ourteenth [a]mendment . . . not only imposes substantive limitations on the power of the states to reprosecute an individual for the same crime; it also entitles an accused, as a condition of depriving him of his liberty, to a trial [when] there is no reasonable possibility that violation of his constitutional rights has worked to his prejudice"), cert denied sub nom. Mancusi v. Hetenyi, 383 U.S. 913, 86 S. Ct. 896, 15 L. Ed. 2d 667 (1966). When a jeopardy barred charge has been joined with a permissible charge, however, "[t]he question is not whether the accused was actually prejudiced [by the joinder], but whether there is [a] reasonable possibility that he was prejudiced." (Emphasis in original.) Id., 864; see also Graham v. Smith, 602 F.2d 1078, 1082-83 (2d Cir.) (conviction on permissible charge vacated when government was unable to prove beyond reasonable doubt that defendant was not prejudiced by joinder of jeopardy barred and permissible charge), cert. denied, 444 U.S. 995, 100 S. Ct. 531, 62 L. Ed. 2d 426 (1979).

In the present case, the double jeopardy violation does not involve the joinder of a jeopardy barred and permissible charge in separate counts. Rather, the state charged the defendant in a single count with a violation of § 21a-278 (b) predicated on the defendant's unlawful transportation of "a narcotic substance, to wit: cocaine and heroin," and the jury was instructed that it could find the defendant guilty if it determined that he had unlawfully transported "either" cocaine or heroin with the intent to sell. Thus, the jury could have found the defendant guilty on the basis of his unlawful transportation of either drug. Because the jury returned a general verdict, however, there is no way of knowing whether it found the defendant guilty on the basis of his transportation of cocaine, heroin or both. It is precisely for this reason that we must reverse the defendant's conviction on this court. See State v. Montanez, 277 Conn. 735, 764 n. 26, 894 A.2d 928 (2006) (when it cannot be determined from record on which alternative theory of liability the jury reached guilty verdict, defendant is entitled to reversal of conviction as to both theories of liability); see also State v. Freeney, 228 Conn. 582, 589, 637 A.2d 1088 (1994) (conviction obtained in violation of double jeopardy clause must be vacated).

It is also for this reason, however, that the state cannot be permitted to retry the defendant for unlawfully transporting cocaine with intent to sell unless the state can demonstrate beyond a reasonable doubt that he was not acquitted of that charge at his first trial. Cf. United States v. McCourty, 562 F.3d 458, 473-75 (2d Cir.) (because jury was directed to make specific findings on verdict form as to separate bases of liability under each count, retrial on bases on which jury was unable to reach verdict posed no double jeopardy problem), cert. denied, U.S., 130 S. Ct. 1012, 175 L. Ed. 2d 634 (2009); United States v. Rivera, 77 F.3d 1348, 1351-52 (11th Cir.) (when information charged defendant with possessing firearm on two separate dates and jury found defendant not guilty as to possession on one date but deadlocked as to possession on other date, retrial for possession on other date was not barred), cert. denied, 517 U.S. 1250, 116 S. Ct. 2511, 135 L. Ed. 2d 200 (1996). Of course, if the second jury did find the defendant not guilty of transporting cocaine, the defendant's double jeopardy rights would be violated if he were to be prosecuted again for that conduct. We are persuaded, however, that there is no reasonable possibility that the second jury found the defendant not guilty of transporting cocaine with the intent to sell at the defendant's retrial.

We reach this conclusion for several reasons. First, cocaine constituted the majority of drugs that were found in the defendant's vehicle. As we previously indicated, police seized approximately 189 packages of cocaine but only fifteen folds of heroin. Second, the jury found the defendant guilty of possession of cocaine, which the defendant was charged with in a separate count. It is clear, therefore, that the jury found that the defendant was in possession of cocaine when he was stopped by the police. Finally, and most significantly, the fifteen folds of heroin that were seized from the vehicle were found inside a pouch that also contained approximately 100 "slabs" of cocaine. Under the circumstances, therefore, it is virtually inconceivable that the jury found the defendant guilty of transporting narcotics with intent to sell on the basis of the defendant's possession of heroin but also found that he had not transported with intent to sell the much larger quantity of cocaine, which was found in the very same container as the heroin. Accordingly, if the state elects to retry the defendant on the charge of transporting cocaine with intent to sell by a person who is not drug dependent, a retrial on that charge would not violate the defendant's rights under the double jeopardy clause.

IV

Finally, the defendant claims that the evidence was insufficient to support his conviction under General Statutes § 53a-172 (a) (1) for failure to appear in the first degree because the state did not introduce into evidence a copy of the defendant's bail bond, and the state adduced no other evidence that the defendant's appearance in court was required under the terms of that bond. We reject this claim.

General Statutes § 53a-172 (a) provides in relevant part: "A person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear. . . ."

The following facts and procedural history are relevant to our disposition of this claim. The defendant was charged with failure to appear in the first degree after failing to appear at a January 6, 2003 probation violation hearing in another case. As we previously indicated, the jury at the defendant's first trial in the present case found the defendant guilty of the failure to appear charge. At that trial, the state adduced the testimony of Edward Murnane, the attorney who represented the defendant at the January 6, 2003 probation violation hearing. Murnane testified that, although the defendant had appeared for the morning session of the hearing, he had failed to return to court for the afternoon session as he had been ordered to do by the trial court, Damiani, J. Although the hearing continued in the defendant's absence, the court, at the conclusion of the hearing, when the defendant still had not appeared, ordered that the defendant be rearrested and that his bond be forfeited.

The defendant's arrest in the present case is what prompted the probation violation charge and hearing in that other case.

The state also called Edward McKiernan, an assistant clerk for the Superior Court in the judicial district of Fairfield. He testified that the court called the defendant's bond during the afternoon session because the defendant had failed to appear as ordered. McKiernan further testified that, as a result of the defendant's failure to appear, the court called the bond not only in the probation violation case but in the present case, as well, which was pending but had not yet proceeded to trial. The state also introduced into evidence a redacted portion of the docket sheet in the case involving the probation violation charge, which provides in relevant part: "1/6/03 — No appearance by defendant — PM session. Bond forfeited. Rearrest ordered. New bond set at [$]150,000.

In its final jury charge, the trial court instructed the jury in relevant part: "[T]he defendant is charged with failure to appear in the first degree, in violation of [§ ] 53a-172a . . . which provides [that] [a] person is guilty of failure to appear in the first degree . . . when, while charged with a commission of a felony and while out on bail . . . he wilfully fails to appear when legally called according to the terms of the bail bond or promise to appear. For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: One, that the defendant was released on bail upon the condition that he appear personally in connection with a criminal proceeding at a future given date; two, that on January 6, 2003, the defendant was required to appear before the court in connection with the charge of violation of the state dependency producing drug law for the afternoon . . . three, that the defendant wilfully failed to appear as required in this connection, and he wilfully failed to appear during the afternoon session of said court." The jury subsequently returned a verdict of guilty as to this charge

On appeal, the defendant's sole claim is that the state's proof that he was free on bond, that his bond was forfeited and that he was rearrested after he failed to return to court on January 6, 2003, does not support an inference that his appearance in court on January 6, 2003 was required by the terms of the bond. We agree with the state that the jury reasonably could have inferred that the defendant's appearance in court on January 6, 2003, was a term or condition of his bond in view of the fact that the defendant's bond was forfeited and that he was ordered rearrested after his failure to appear on that day. See State v. Jones, 37 Conn. App. 437, 449-50, 656 A.2d 696 (evidence sufficient to support conviction of defendant for failure to appear because jury reasonably could have inferred from defendant's rearrest that such appearance was required), cert. denied, 233 Conn. 915, 659 A.2d 186 (1995). We also agree with the state that it is a matter of common knowledge that bonds and bail are posted as a condition of release for the purpose of ensuring the presence of an accused for all court proceedings pertaining to the charged offense. See, e.g., State v. Ayala, 222 Conn. 331, 349, 610 A.2d 1162 (1992) ("the fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings" [internal quotation marks omitted]); Liistro v. Robinson, 170 Conn. 116, 135, 365 A.2d 109 (1976) ("[t]he primary purpose of bail is to ensure the future presence of the person at the time when his presence is required"). Accordingly, we conclude that the evidence was sufficient to support the defendant's conviction of failure to appear in the first degree.

The judgment with respect to the defendant's conviction of transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project, transporting cocaine and heroin with intent to sell by a person who is not drug dependent, and possession of cocaine is reversed and the case is remanded with direction to render judgment of not guilty of the offense of transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project and for a new trial on the offenses of transporting cocaine with intent to sell by a person who is not drug dependent and possession of cocaine; the judgment with respect to the defendant's conviction of failure to appear in the first degree is affirmed.

In this opinion the other justices concurred.