author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. GEORGE MCPHEE
    (AC 18657)
    Spear, Hennessy and Mihalakos, Js.

      Argued January 21
    officially released July 4, 2000

      J. Stacey Yarbrough and Jeffrey LaPierre, certified legal interns, with whom was Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, George McPhee, appeals from the judgments of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. On appeal, the defendant claims that the trial court improperly (1) allowed one of the victims to hold a large, stuffed toy animal while testifying, (2) admitted into evidence testimony about certain acts of uncharged misconduct, (3) excluded from evidence a physician’s handwritten notes that allegedly were taken for the purpose or in furtherance of treatment or diagnosis and (4) failed to instruct the jury on the offense of cruelty to persons. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. Between 1993 and 1995, the defendant lived in Bristol with his wife and their child, S, and his wife’s three children from a previous marriage, M, C and D. During this time, the defendant subjected M and C to sexual contact by playing what was called “the ice game.” The ice game was played one or more times each month, and began when M was seven years old and continued until she was nine years old. The defendant would ask one of the children to retrieve a tray of ice from the freezer, and then would take a piece of ice and put it in their underwear. The defendant would rub the ice around M’s vagina and then place it inside her vagina until the ice melted. After the ice melted, the defendant would place his finger inside her vagina. The defendant also would place a piece of ice in C’s underwear and rub it around his penis until the ice melted, at which time he would fondle C while pretending to be trying to find the ice.

The defendant played the ice game with all four children while their mother was in the same room or an adjacent room. M and C did not like the ice game and hated the defendant. The defendant also would hug and kiss M good night and touch his tongue to her lips when he did so. The children did not complain to anyone about the ice game during the three years that the defendant subjected them to it because they were afraid of reprisal. M mentioned the behavior to a cousin who in turn told her mother, M’s aunt. The aunt spoke privately with M about the ice game and subsequently reported the conduct to the department of children and families (department). Other facts will be discussed where relevant to the issues in this appeal.

I

The defendant claims first that he was deprived of a fair trial because M was allowed to testify while holding a large stuffed toy gorilla. He claims that the court’s failure to remove the stuffed animal deprived him of his constitutional rights to confrontation and to a fair trial in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.

The following additional facts are necessary to our resolution of this issue. Prior to M’s testimony, defense counsel observed that she had brought a large stuffed animal to court. The defendant objected to the idea of allowing her to testify while holding the stuffed animal because it might elicit sympathy from the jury and it made viewing the witness difficult. The court overruled the objection, and M was allowed to hold the stuffed animal during her testimony. M, who was twelve years old at the time of trial, testified that she purchased the stuffed animal with her money and that it was her idea to bring it to court to help her testify.

The defendant raises two issues regarding the court’s ruling allowing the witness to hold the stuffed animal. First, the defendant raises a confrontation issue as it relates to his claimed inability to see the witness during her testimony because the stuffed animal blocked his view. Second, the defendant claims that he was prejudiced by the court’s allowing M to hold the stuffed animal while testifying. We will address each issue in turn.

A

The defendant claims that because the court allowed M to hold the stuffed animal during her testimony, his right to confrontation guaranteed by the federal and state constitutions; U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; was abrogated in that his view of the witness was obstructed.

This claim is without merit. The record reveals that the court addressed the defendant’s concern and adequately accommodated him.

B

The defendant next claims that he was deprived of a fair trial because M was allowed to hold the stuffed animal while testifying. The defendant asks us to apply the standard set out in State v. Jarzbek, 204 Conn. 683, 704-705, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), in which our Supreme Court held that in criminal prosecutions involving alleged sexual abuse of children of tender years, “a trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony.” Id., 704. The defendant also points to State v. Menzies, 26 Conn. App. 674, 690-91, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992), in which a hearing was held on the state’s motion, filed pursuant to General Statutes § 54-86g (b), to place a guardian ad litem by the alleged victim’s side during her testimony. The defendant claims, on the basis of the rationales of Jarzbek and Menzies, that the state should have been required to prove by clear and convincing evidence a compelling need to allow M to hold the stuffed animal while testifying. We disagree.

The defendant’s reliance on Jarzbek and Menzies is misplaced. We first note that the situation in the present case is not, as was the case in Menzies, one specifically enumerated under § 54-86g (b). Therefore, the requirement that the state “prove, by clear and convincing evidence, a compelling need to have [the special procedure]”; State v. Menzies, supra, 26 Conn. App. 690-91; does not apply to this case. Furthermore, the situation in Jarzbek is far from analogous to the present case. In Jarzbek, the defendant was excluded from the witness room during the videotaping of the minor victim’s testimony. State v. Jarzbek, supra, 204 Conn. 684. Our Supreme Court held that this departure from strict compliance with confrontation requirements was appropriate only where a case-by-case analysis is performed to “balance the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question.” Id., 704. In Jarzbek, the claimed harm was that the special procedure denied the defendant his right to confrontation. Id., 689. In the present case, however, the defendant claims that he was harmed because the jury’s sympathy was aroused. We see no reason to extend the rationale of Jarzbek to this case. The only similarity between the two situations is that the special accommodations were made so that the child witnesses could be more comfortable, thus allowing them to testify more reliably.

Our Supreme Court recently decided State v. Aponte, 249 Conn. 735, 738 A.2d 117 (1999), in which a similar situation arose in the context of prosecutorial misconduct. In Aponte, the victim, a child, was allowed to testify while holding a Barney doll given to her by the state’s attorney. The court held that this was improper because the conduct of giving the doll to the victim might impact her suggestibility. Id., 745. It also is noteworthy that the court commented on the victim’s possession of the doll, stating that “had the victim simply brought a favorite object from home, there would have been no basis for objection.” Id. For these reasons, we conclude that the court did not abuse its discretion and did not violate the defendant’s confrontation rights when it allowed the witness to hold the stuffed animal during her testimony.

II

The defendant next claims that the court improperly admitted into evidence testimony about the defendant’s prior acts of hitting the children with a belt. The defendant claims that (1) the act of striking the children was not uncharged misconduct because it is lawful to discipline children in this manner, (2) if it was uncharged misconduct, the state failed to prove that the evidence fell within one of the recognized exceptions for the admission of uncharged misconduct and (3) the evidence was more prejudicial than probative. We disagree.

The following additional facts are necessary to our resolution of this issue. Before trial, the state provided notice of its intent to offer evidence of uncharged misconduct. Defense counsel objected and sought to have the evidence excluded under the general rule prohibiting prior misconduct evidence. The court heard testimony outside the presence of the jury and then ruled that it would allow the state to present evidence that the defendant had hit the children on their buttocks with a belt because it was related to their fear of retribution if they resisted or complained.

The court heard testimony from M that she did not like to play the ice game, but did so because she feared the defendant would hit her with his belt. M testified that D was hit with a belt because he had refused to play the ice game. C testified about the use of a belt as punishment and testified that he participated in the ice game because he feared he would be hit with a belt. C also corroborated M’s testimony regarding the incident in which D was hit with a belt for refusing to play the ice game. M and C testified that they did not tell the police the truth when they were first interviewed for fear of being hit with a belt. The court also allowed the state to present evidence about the defendant’s hitting the children through the testimony of M and C’s aunt and Officer Jerome Davis of the Bristol police department.

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible.” (Internal quotation marks omitted.) State v. Harris, 43 Conn. App. 830, 835, 687 A.2d 544 (1996). “The rationale of [the rule preventing evidence of guilt of other crimes] is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged.” (Internal quotation marks omitted.) State v. Vega, 48 Conn. App. 178, 189, 709 A.2d 28 (1998). “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. . . . [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony.” (Citations omitted; internal quotation marks omitted.) State v. Harris, supra, 836.

“Our analysis of whether evidence of prior misconduct is admissible is two-pronged. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crimes evidence. State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995); State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983).” (Internal quotation marks omitted.) State v. Harris, supra, 43 Conn. App. 836.

“When relevant evidence of other crimes is offered, the trial court must still consider whether its prejudicial tendency outweighs its probative value before ruling upon its admissibility. . . . Because of the difficulties inherent in this balancing process, we will uphold the trial court’s ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion or an injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Vega, supra, 48 Conn. App. 191.

Here, the court allowed the introduction of evidence regarding the defendant’s striking the male and female victims on the buttocks with a belt or strap. The exclusion of evidence of the defendant’s other acts of uncharged misconduct reveals that the court carefully considered and weighed the prejudicial tendency against the probative value before ruling on the admissibility of evidence that the defendant used a belt to discipline the children.

We conclude that the court properly ruled that the testimony was relevant to the exception allowing evidence of an element of the crime, in this case, creating the fear of retribution for not participating in the ice game. Because the defendant was charged with the crime of sexual assault in the third degree in violation of § 53a-72a (a) (1), the state was required to prove that he compelled the victims by force or threat of force to submit to sexual contact. Under the circumstances, we cannot conclude that the court abused its discretion by admitting the challenged evidence.

Ill

The defendant next claims that the court improperly excluded from evidence handwritten notes by the victims’ physician concerning an ongoing custody battle between the victims’ biological father and their mother. The defendant claims that this evidence was admissible under the business record exception to the hearsay rule; General Statutes § 52-180; and that the refusal to allow its admission was harmful error and a denial of his right to present a defense. Conn. Const., art. I, § 8; U.S. Const., amend. XIV. The defendant claims that this evidence was relevant to show that the victims lacked credibility.

The following additional facts are necessary to address this claim. During the testimony of a defense witness, .Hertzler Knox, a physician, the defendant sought to introduce certain of Knox’s medical records that contained notes he made while conducting physical examinations of the victims. The state objected on hearsay and relevance grounds. The defendant made an offer of proof and argued that the records were admissible under the medical records hearsay exception as statements made for the purpose of treatment and diagnosis. The court sustained the state’s objection.

“ ‘On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion.’ ” (Citations omitted.) State v. Jurgensen, 42 Conn. App. 751, 754, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996). Although the defendant claims that the medical records should have been admitted as an exception to the hearsay rule, he failed to argue to the trial court the relevance of the information he sought to introduce. The court indicated that the requested information was not relevant and denied the request on that ground.

“The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant. State v. Barnes, [232 Conn. 740, 747, 657 A.2d 611 (1995)]; Williams Ford, Inc. v. Hartford Courant Co., [232 Conn. 559, 571, 657 A.2d 212 (1995)]; Hall v. Burns, 213 Conn. 446, 452, 569 A.2d 10 (1990). Relevance may be established in one of three ways. First, the proffering party can make an offer of proof. . . . Second, the record can itself be adequate to establish the relevance of the proffered testimony. . . . Third, the proffering party can establish a proper foundation for the testimony by stating a good faith belief that there is an adequate factual basis for his or her inquiry.” (Citations omitted; internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 586, 678 A.2d 924 (1996). The defendant has failed to persuade us that he established at trial, through any of these methods, the relevance of the proposed evidence.

Our review of the record reveals that the defendant sought to introduce the evidence by claiming that it was allowed as an exception to the hearsay rule for statements made for the purpose of treatment and diagnosis. The defendant failed to explain at trial, however, why the information was relevant in the first place. Because the defendant’s offer of proof was not sufficient to establish the relevance of the proffered evidence, we conclude that the court did not abuse its discretion by precluding its admission.

IV

The defendant’s final claim is that the court improperly denied his written request to instruct the jury on the offense of cruelty to persons; General Statutes § 53-20; because, as the charges were alleged in the infor-mations, the defendant could not have committed sexual assault in the first degree, sexual assault in the third degree or risk of injury to a child without first committing the offense of cruelty to persons. We do not agree.

“There is no fundamental constitutional right to a jury instruction on every lesser included offense; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of then-proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. Id., 588.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996).

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991); State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).” State v. Tomasko, supra, 238 Conn. 260-61. “On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Internal quotation marks omitted.) Id., 261.

Under the first prong of Whistnant, we must determine if the defendant’s request to charge was an appropriate instruction. “A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book § 854 [now § 42-18], State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990); State v. Ostroski, [201 Conn. 534, 556-58, 518 A.2d 915 (1986)]; State v. McIntosh, [199 Conn. 155, 158-61, 506 A.2d 104 (1986)].” State v. Tomasko, supra, 238 Conn. 261. Practice Book § 42-18 (a) provides in relevant part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .” The defendant, in his request to charge, failed to meet the requirements of Practice Book § 42-18. In his request to charge, the defendant merely stated the facts as alleged in the informations and then equated those facts to the behavior of torturing, tormenting or cruelly or unlawfully punishing as proscribed by § 53-20. Furthermore, the defendant did not, as required under Practice Book § 42-18, provide any authority for his requested charge. The only reference he provided to support his position was § 53-20, the statute under which he sought the jury instruction. The defendant’s request to charge, in our view, is “[a] mere general statement of the entire incident at issue [which] does not comply with our rules of practice.” State v. Hall, supra, 213 Conn. 591-92; see State v. Tomasko, supra, 238 Conn. 263. Because we conclude that the defendant failed to satisfy the first prong of Whistnant, we need not consider the remaining conditions.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court ruled on the defendant’s objection, stating: “All right. Under the circumstances, I’m going to overrule the objection. I just don’t see the problem with it. It makes her more comfortable; it makes her more at ease; and being a courtroom setting, I think it’s, generally speaking, very difficult for a child to be in a setting like this, and anything that would make her more comfortable and more at ease I think is appropriate. So, for those reasons, I’m going to deny your request.”

       The following colloquy took place before M was allowed to testify:
      “[Defense Counsel]: May I ask, Your Honor, I note [that] as [M] has been holding [the stuffed animal], it’s very close to her face and part of her face is covered by it. May I ask that the court instruct her to perhaps keep the animal down on her lap and hold onto it that way so that the jury can see her face and we can see her face?
      “The Court: Well, I think part of the comfort in this, having the animal, is that she can touch it and feel it near her. I just don’t see the need—the record should reflect [that] the jury would be to the child’s left and be able to see the entire face.
      “[Defense Counsel]: Eight. But my client—
      “The Court: I don't see the problem.
      “[Defense Counsel]:—who obviously has a right to confront, and part of that right is to observe an accuser, is going to have difficulty observing her.
      “The Court: The record should reflect also that the—your client is a rather large individual and should be able to see pretty clearly from where he is. I don’t see that his visibility would be hampered to any great degree. If he still can’t see, he can move over farther.
      “[The Defendant]: I can’t see. All I can see is her eyebrows.
      “The Court: All right. You can move over to the left.
      “[Defense Counsel]: You can’t—really, Your Honor, I’m right here at my client’s head level and I see [M’s] eyes.
      “The Court: Well, what I’m suggesting is that he move over. Just move Ms chair. Does that chair roll?
      “[Defense Counsel]: Should he sit in the pew, Your Honor, or—
      “The Court: Or he can sit in the back there if he’d like.
      “[Defense Counsel]: That would be probably the best. Thank you. And then I’ll just [move] over myself. Thank you, Your Honor.

        “The Court: Okay. All right.”
      After M was called to the witness stand and before any direct examination of her was conducted, the following colloquy occurred:
      “The Court: I’m going to ask that the defendant be put in a position where he can observe the proceedings also.
      “[Defense Counsel]: Thank you, Your Honor. Thank you.”
      Later, after M began testifying and after a change of courtrooms, the court again inquired if the defendant was able to see the witness before her testimony resumed:
      “The Court: Now, in this courtroom generally you can see—
      “[Defense Counsel]: The same thing. I can now see her eyebrows and the top of her head.
      “The Court: All right. Well, then we’ll do the same thing. Why don’t we do that now, then? Why don’t you move to an area where you can see?
      “[Defense Counsel]: Okay.”

       The defendant also cites State v. Menzies, 26 Conn. App. 674, 690-91, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992), for the proposition that the state should be required to prove by clear and convincing evidence a compelling need before allowing any of the special procedures allowed under General Statutes § 54-86g (b).

       General Statutes § 54-86g (b) provides: “In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the following procedures be used when the testimony of the child is taken: (1) Persons shall be prohibited from entering and leaving the courtroom during the child’s testimony; (2) an adult who is known to the child and with whom the child feels comfortable shall be permitted to sit in close proximity to the child during the child’s testimony, provided such person shall not obscure the child from the view of the defendant or the trier of fact; (3) the use of anatomically correct dolls by the child shall be permitted; and (4) the attorneys for the defendant and for the state shall question the child while seated at a table positioned in front of the child, shall remain seated while posing objections and shall ask questions and pose objections in a manner which is not intimidating to the child.”

       Barney is the name of a purple dinosaur on an educational children’s television program. State v. Aponte, supra, 249 Conn. 737 n.4.

       The "Notice of Uncharged Misconduct Evidence” disclosed that the state sought to offer evidence of the following acts:
      “1) That the defendant placed liquid soap in the mouths of the male and female victims as a form of punishment;
      "2) That the defendant would strike male and female victims on the buttocks with a belt/strap as a form of punishment;
      “3) That the defendant would compel the male and female victims to stand in a comer as a form of punishment;
      “4) That the defendant would compel the male and female victims and their stepbrother to wait on a back porch upon arriving home from school until such time as the defendant or the children’s mother came home, in particular, during times of inclement or cold weather;
      “5) That the defendant had the male victim and his stepbrother place ice in the female victim’s pants; and
      “6) That the defendant would slap, hit or push [the children’s mother] at times, including during arguments with her.”

       The testimony offered through the aunt was that she had seen the defendant hit the children so hard that they would be lifted off the ground. The defendant objected because the hitting described was with his hand, not a belt. The court ruled that the evidence was relevant to show that M and C were afraid of the defendant.

       In its ruling from the bench, the court stated in relevant part: “With respect to item number two, that the defendant would strike male and female victims on the buttocks with a belt or strap as a form of punishment, I’m going to allow testimony in that connection because I think that is directly related to the victim’s alleged fear of retribution in the event she either resisted or complained about the conduct by the defendant. And I think the relevance outweighs any prejudice that might accrue to the defendant in that regard. So, that one will be allowed. That’s number two.”

       The court, however, did allow the introduction of evidence that the defendant had C and his stepbrother place ice in M’s pants.

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. ”

       General Statutes § 53-20 provides: “Any person who tortures, torments, cruelly or unlawfully punishes or wilfully or negligently deprives any person of necessary food, clothing, shelter or proper physical care; and any person who, having the control and custody of any child under the age of sixteen years, in any capacity whatsoever, maltreats, tortures, overworks, cruelly or unlawfully punishes or wilfully or negligently deprives such child of necessary food, clothing, or shelter shall be fined not more than five hundred dollars or imprisoned not more than one year or both.”

       The defendant’s request to charge was as follows:
      “Cruelty to Persons § 53-20 as Lesser Included Offenses:

        “With regard to each of the counts alleged in the informations, the defendant requests that the court instruct the jury that it may consider as a lesser included offense the charge of cruelty to persons.
      “Cruelty to persons, C.G.S. § 53-20, prohibits in relevant part a person from torturing, tormenting or cruelly or unlawfully punishing another.
      “As alleged in each count of each of the two informations, the defendant could not have committed the greater charge without first committing the lesser charge of cruelty to persons.
      “A. [Docket No.] 17-94222:
      “1. Count One alleges that the defendant committed sexual assault in the third degree when he compelled another to submit to sexual contact by the use of force or threat of force when he touched the male’s genital area with his finger or with ice. As alleged, the defendant could not have committed this charge without first committing the charge of cruelty to persons in that the jury could reasonably conclude that such alleged conduct constitutes torture, torment or cruel or unlawful punishment.
      “2. Count Two alleges that the defendant committed risk of injury to a minor when he touched the male victim’s genital area with his finger or ice, thereby doing an act which impaired or was likely to impair the morals of a child. As alleged, the defendant could not have committed this charge without first committing the lesser charge of cruelty to persons in that the jury could reasonably conclude that such conduct constitutes torture, torment or cruel or unlawful punishment.
      “B. [Docket No.] 17-94223:
      “1. In Count One, the state alleges that the defendant committed sexual assault in the first degree when he engaged in sexual intercourse with a person under 13 and he was more than two years older than the victim, by inserting his finger or ice inside the genital opening. As alleged, the defendant could [not] have committed this greater charge without first committing the lesser charge of cruelty to persons in that the jury could reasonably conclude that the conduct constitutes torture, torment or cruel or unlawful punishment.
      “2. In Count Two, the state alleges that the defendant committed sexual assault third by compelling the person to submit [sic] victim’s genital area with his finger or with ice. As alleged, the defendant could not have committed the greater offense without first committing the lesser in that the jury could reasonably conclude that the conduct constitutes torture, torment or cruel or unlawful punishment.
      “3. In counts Three and Four, the state alleges that the defendant committed risk of iqjury to a minor by doing an act which was likely to impair the morals of a minor by touching the female genital area with ice or with a finger, and by kissing the victim on the mouth and touching her lip with his tongue. As alleged, the defendant could not have committed the greater offenses without first committing the lesser offense in that the jury could reasonably conclude that the conduct constitutes torture, torment or cruel

        or unlawful punishment.”


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    JENNIFER S. RUSSACK v. TATE M. RUSSACK
    (AC 18707)
    O’Connell, C. X, and Zarella and Daly, Js.*

    Argued March 1
    officially released July 4, 2000

      David P. Ball, for the appellant (defendant).

      Wendy A. Grispin, with whom, on the brief, was Sheldon A. Rosenbaum, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DALY, J.

The defendant, Tate M. Russack, appeals from the judgment of the trial court granting the motion of the plaintiff, Jennifer S. Russack, for review of modification of child support payments, and ordering an upward modification of child support. The defendant claims that the court improperly (1) considered evidence of his medical history and financial condition that had been considered at a prior modification hearing and (2) failed to apply the criteria set forth in the child support guidelines. We affirm the judgment of the trial court.

The following facts are relevant to the determination of this appeal. The marriage of the parties was dissolved on June 1, 1994. The divorce decree included an order that the defendant pay child support of $80 per week for each of the two minor children. Thereafter, the defendant filed a motion for modification of child support. A hearing on the motion was held on June 3,1997.

At the June 3, 1997 hearing, the defendant stated that he formerly was a United States Army helicopter pilot who involuntarily retired in March, 1996, due to a severe diabetic condition. His retirement pay was $1000 per month. After retiring from the army, the defendant sold insurance for a short time and worked for Value Systems Services during 1996 at an annual salary of $36,000.

In December, 1996, the defendant worked for a defense contractor at an annual salary of $46,000. Thereafter, the defendant testified that he was placed on medical leave from that job, with no set date to return to work, and that as of April, 1997, he was actively seeking employment. The court followed the guidelines based on the $12,000 annual retirement income and reduced the child support payments to $24 per child per week. It found that while the defendant had an earning capacity and was sending resumes, it was appropriate to continue the matter and order the defendant to report to the court when he secured employment. After securing employment, the defendant was to report the earnings derived therefrom. The court then would modify the support orders to comply with the guidelines.

Thereafter, the plaintiff filed a motion for review of modification of child support, which was heard on May 18,1998. At that hearing, evidence was adduced that the defendant had failed to disclose at the first modification hearing that he had no intention of seeking employment and that he instead planned to attend law school. In August, 1997, the defendant was living in Miami, Florida, and was enrolled as a full-time student at the University of Miami School of Law. At the time of the May 18, 1998 hearing, he was in his second year of law school. His tuition, books and fees were paid for by the Veterans Administration. A Stafford educational loan for $18,500 was utilized for personal expenses during his first year and had been renewed for the second year of law school. In addition, the defendant was residing rent free in Miami in the family home of his current spouse, and a home he owned in Annapolis, Maryland, was generating a monthly rental income of $ 1200. The defendant also taught sailing in Maryland and Florida, and claimed that he did so on a voluntary or complimentary basis.

At the May 18, 1998 hearing, testimony regarding the defendant’s medical condition and earning capacity was admitted without objection. From this and other evidence, the court found that the defendant did not leave his previous employment for medical reasons, but rather, he left to attend law school.

Thereafter, the court found, and stated in a written memorandum of decision filed on September 17, 1998, that the application of the guidelines in this case would be inequitable and inappropriate, and entered an order of $125 per week per child on the basis of, inter alia, the retirement income of $12,000, an earning capacity of $46,000, the Maryland property rental income and the defendant’s $18,500 Stafford loan. This appeal followed.

I

The defendant claims first that the court improperly considered evidence concerning his medical history and financial condition that had been considered at the June 3, 1997 modification hearing. He claims that the court applied an incorrect legal standard in determining the modification of child support on the basis of this evidence. We decline to review this claim.

While the defendant now claims error in the admission of the testimony regarding his medical history and financial condition, he failed to object to its admission at the modification hearing on May 18, 1998. In fact, the only time that the defendant addressed the issue regarding the court’s consideration of any such evidence was during closing arguments, when defense counsel remarked that the court could not go back beyond the initial hearing date when evidence on the defendant’s earning capacity was heard.

“This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly.” (Citation omitted; internal quotation marks omitted.) State v. Bush, 249 Conn. 423, 427, 735 A.2d 778 (1999). “We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection . . . .” (Internal quotation marks omitted.) Remington Investments, Inc. v. National Properties, Inc., 49 Conn. App. 789, 800, 716 A.2d 141 (1998). Because the defendant failed to preserve his claim by objecting to this evidentiary ruling, we decline to review this claim.

II

The defendant claims next that the court improperly failed to apply the criteria set forth in the child support guidelines. We disagree.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Benedetto v. Benedetto, 55 Conn. App. 350, 352, 738 A.2d 745 (1999), cert. denied, 252 Conn. 917, 744 A.2d 437 (2000).

A

In his brief, the defendant argues first that the court improperly deviated from the child support guidelines in the absence of a specific finding on the record that the application of the guidelines would be inequitable or inappropriate.

General Statutes § 46b-215b (a) provides in relevant part that “[t]he child support and arrearage guidelines . . . shall be considered in all determinations of child support amounts and payment on arrearages and past due support within the state . . . .” Furthermore, there is a rebuttable presumption that the amount of support or arrearage payment provided for pursuant to the application of the guidelines is the proper amount to be awarded. General Statutes § 46b-215b (a). “A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case . . . shall be sufficient to rebut the presumption in such case.” Id.

Nearly four months after its oral decision, the court produced a written memorandum of decision. The defendant filed this appeal before the court filed its written decision. After reading the written memorandum of decision, the defendant realized that the court properly found on the record that applying the guidelines would be inequitable and inappropriate. Therefore, at oral argument before this court, the defendant conceded this issue. Accordingly, we need not consider this claim. See State v. Wright, 197 Conn. 588, 594 n.8, 500 A.2d 547 (1985).

B

The defendant argues next that pursuant to § 46b-215a-3 of the Regulations of Connecticut State Agencies, the court improperly failed to state the amount of support that would have been required under the child support guidelines. We disagree.

Upon the conclusion of testimony at the May 18, 1998 hearing, the court specifically requested guideline worksheets from counsel and asked for the amounts determined thereunder. In response, the plaintiff, utilizing mainly the defendant’s earning capacity, submitted to the court that the guidelines called for the defendant to pay $297 per week in child support. The defendant, however, did not present a worksheet, claiming that the guidelines were inapplicable because his net income was too low. The parties, therefore, properly presented the court with amounts that they believed would be called for under the guidelines. The court then deviated from those amounts.

C

The defendant’s final argument is that pursuant to § 46b-215a-3 of the Regulations of Connecticut State Agencies, the court did not comply with the requirement that it state which criteria, as set forth in the regulations, it relied on in deviating from the child support guidelines. We disagree.

In its memorandum of decision, the court found that “there was a substantial change in circumstances since the last hearing predicated upon [the defendant’s] nondisclosure of two or more of the assets and his utter lack of credibility. It is satisfied that he formerly had an earning capacity of forty-six thousand ($46,000) dollars per year and that said earning capacity has not been significantly diminished. His current medication and the manner of administration thereof existed during the period of time that he was employed at [his former job]. The forty-six thousand ($46,000) dollar earning capacity, the Maryland property rental and the less than credible testimony about gratuitous sailing lessons, together with his service connected disability payments, approximating twelve thousand ($12,000) dollars per year and his Stafford loan, lead the court to conclude the order for child support should indeed be modified and modified substantially. It also concludes that the application of the support guidelines in this case would be both inequitable and inappropriate.”

This language indicates that the court clearly used earning capacity, pursuant to § 46b-215a-3 (b) (1) (B) of the Regulations of Connecticut State Agencies, as its criteria for deviating from the guidelines. We therefore conclude that the court properly applied the criteria required by the guidelines and, hence, did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       At this time, the defendant was living in a house that he owned in Annapolis, Maryland.

       The defendant also was required to pay an additional $12 per week toward a $1560 arrearage owed to the plaintiff.

       In addition, the court ordered the defendant to pay $20 per week on an arrearage in the amount of $4000.

       Moreover, a review of relevant portions of the transcript reveals that it was defense counsel who elicited testimony regarding the defendant’s medical condition and employment status. It is, therefore, somewhat disingenuous for the defendant now to object to the admission of this testimony. See Thompson v. Thompson, 183 Conn. 96, 99, 438 A.2d 839 (1981) (party may not seek reversal on basis of error he induced).

       In its memorandum of decision, the court discussed in detail that it was evident that the defendant attempted to hide the Annapolis home as an asset and that the evidence suggested that the sailing lessons were not offered gratuitously.


author: SHEA, J.

text:
    STATE OF CONNECTICUT v. RALPH TORRES
    (AC 19995)
    Spear, Hennessy and Shea, Js.

      Argued January 14
    officially released July 4, 2000

      M. Donald Cardwell, with whom was Joseph E. Masc-aro, for the appellant (defendant).

      Leon F. Dalbec, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin J. Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

SHEA, J.

The defendant, Ralph Torres, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217.* On appeal, he claims that the court improperly admitted (1) statements made by a witness as evidence under the spontaneous utterance exception to the hearsay rule and (2) evidence concerning the alleged gang affiliations of the defendant and the victim, and statements about such affiliations made by the prosecutor. He claims further that the court improperly failed to instruct the jury to disregard such evidence and statements. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 31, 1993, the victim, Felipe Santana, was walking with Nelson Albert toward the intersection of Wadsworth Street and Park Street in Hartford, an intersection known to be within the territory of the Los Solidos gang. When they arrived at the intersection, they met Chris Davila and Lisandra Torres.* The victim, Albert and Davila were members of the Los Solidos gang at that time.

Meanwhile, the defendant was “hanging out” with Hector Ramirez and a person who used the name of “Nice” at 185 Seymour Street, which was in the territory of the Latin Kings gang. The defendant, Ramirez and Nice were members of the Latin Kings. At approximately 8:30 p.m., the defendant went to a store on the comer of Park Street and Wadsworth Street to purchase beer. Prior to his departure, Ramirez told him “to be careful because that is where all the Solidos hang at.” Soon thereafter, the victim, Davila and Albert observed the defendant enter Los Solidos territory as he approached the intersection at Park Street and Wads-worth Street on the opposite side of the street from where they were standing. Davila and Albert testified at trial that it was unusual to see a rival Latin King in Los Solidos territory, and they were wondering what a Latin King gang member was doing on Wadsworth Street. Albert testified also that the victim told him, “Don’t worry about it. Everything is straight. Just don’t sleep on it,.”

Meanwhile, a car that did not have its headlights on approached the intersection. Turning their attention to the car and talking with the individuals in the car, the victim and Albert lost sight of the defendant. Moments after the car departed, the defendant reappeared behind the victim, shot him in the back at very close range, pushed him to the ground and then fled, running toward Seymour Street.

Davila ran into a nearby store and instructed the clerk to call for an ambulance. Officer Michael Sheldon of the Hartford police department arrived on the scene and noticed the victim lying face down and “lifeless” in the road with “a large quantity of blood coming from [the victim’s] mouth.” In fact, the victim was already dead when Sheldon arrived.

The testimony at trial disclosed that approximately two weeks before the victim was murdered, he had been in a fistfight with an individual named Melvin, who was a “ranking member” of the Latin Kings. Testimony indicated further that Melvin’s position in the Latin Kings was “mighty high”; even higher than the victim’s rank in the Los Solidos gang.

I

The defendant claims that the court improperly admitted hearsay evidence pursuant to the spontaneous utterance exception to the hearsay rule. Specifically, the defendant claims that the court improperly allowed in evidence statements made by Davila to Sheldon soon after the shooting regarding the identity of the shooter.

Additional facts are necessary for our resolution of this claim. Sheldon was the first officer to arrive on the scene after the shooting. Prior to his testifying, the state made an offer of proof outside the presence of the jury that Sheldon’s testimony would include hearsay statements pursuant to the spontaneous utterance exception to the hearsay rule. During the proffer, Sheldon testified that, when he arrived at the crime scene at approximately 9 p.m., the victim was lying motionless in the road with a large amount of blood coming from his mouth, and that one individual, later identified as Davila, was standing over the victim. Sheldon then approached the victim and checked him for vital signs, of which he found none. Sheldon did note, however, that rigor mortis had not set in at all and that the body was still fresh.

After observing the victim, Sheldon asked Davila, “What is going on here?” Davila told him that he saw what had happened. Thereafter, Sheldon placed Davila in his police cruiser, which was within a few feet of the victim’s body. Sheldon then asked Davila who committed the crime, and Davila responded that “he knew who [did] it.” Sheldon testified that Davila never actually named the shooter, but he described the person who had committed the crime as “[a] Hispanic male, about twenty-five to twenty-seven years of age, wearing a blue shirt with white shorts, and light [complexion]. And that he had had a black handgun, possibly an [automatic] type.” In addition, Sheldon testified, over defense counsel’s objection, that “[Davila] was emotionally upset and it appeared he was still crying” when Sheldon first saw him and when Sheldon asked him for a description of the shooter. Sheldon testified further that he had put the description of the shooter given by Davila into his police report and that Davila knew the suspect, but not by name. On the basis of the foregoing, the court concluded that the statements made by Davila pursuant to this proffer were admissible, qualifying under the spontaneous utterance exception to the hearsay rule.

“In Perry v.Haritos, [100 Conn. 476,124 A. 44 (1924)], our Supreme Court recognized the spontaneous utterance exception to the hearsay rule. This exception allows otherwise inadmissible statements into evidence to prove the truth of the matter asserted if it is proven that (1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. . . . The overarching consideration governing these requirements is whether the statements were made before reasoned reflection had taken place. . . . State v. Bowman, 46 Conn. App. 131, 140, 698 A.2d 908 (1997).

“As a preliminary matter, the trial judge must determine whether an utterance qualifies under this exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. . . . The requirement that a spontaneous utterance be made under such circumstances as to negative the opportunity for deliberation and fabrication by the declarant . . . does not preclude the admission of statements made after a startling occurrence as long as the statement is made under the stress of that occurrence. . . . While the short time between the incident and the statement is important, it is not dispositive. . . . All material facts should be weighed by the trial judge when determining whether a statement qualifies as a spontaneous utterance.” (Citations omitted; internal quotation marks omitted.) State v. Guess, 44 Conn. App. 790, 803-804, 692 A.2d 849, aff'd, 244 Conn. 761, 715 A.2d 643 (1999).

In the present case, the challenged statements concerned the description of the perpetrator and were made while Davila was under the stress of having just witnessed his friend, the victim, being shot minutes earlier and having observed his friend lying lifeless in the road, bleeding profusely. The defendant claims that there was “absolutely no evidence as to how much time had elapsed between when Officer Sheldon arrived on the scene and when he placed Davila in the cruiser,” and that this was “a critical component.” “While the element of time between the startling occurrence and the statement itself is important, it is not dispositive. . . . The time element is but one factor to be weighed by the trial judge, together with any other material facts in the circumstances surrounding the statement, when deciding the preliminary question of whether a statement was spontaneous.” (Citation omitted.) State v. Stange, 212 Conn. 612, 618, 563 A.2d 681 (1989).

Despite the defendant’s claim to the contrary, Sheldon testified that the statements were made “within minutes” after his arrival, that he was the first officer to arrive on the scene, that Davila was standing close to the victim’s body and was “emotionally upset,” and that “it appeared that [Davila] was still crying” when he made the declarations. After viewing the record, we cannot say that the court abused its discretion in determining that the declarations were made under circumstances that negated the opportunity for deliberation and fabrication by the declarant. We conclude, therefore, that the court did not abuse its discretion in admitting the hearsay statements under the spontaneous utterance exception to the hearsay rule.

Furthermore, we agree with the state that even if the court had abused its discretion in allowing Davila’s statements in evidence as spontaneous utterances, that evidence was merely cumulative of other descriptions previously given by Davila. Prior to trial, Davila had made an out-of-court identification of the defendant from a photographic array. Moreover, the state introduced Davila’s prior testimony from the defendant’s first trial, which ended in a mistrial. In that trial, Davila had made an in-court identification of the defendant as the perpetrator of the crime.

II

The defendant claims next that the court improperly-admitted evidence of, and permitted statements by the prosecutor relating to, the alleged gang affiliations of the defendant and the victim, and improperly failed to instruct the jury to disregard such evidence and statements.

As an initial consideration, our review of the record reveals that this claim was not properly preserved at trial. Additional facts are necessary for our disposition of this issue. During the state’s direct examination of the witness Lisandra Torres, the following colloquy took place:

“[Assistant State’s Attorney]: All right. Was [the defendant] associated with any of the street gangs?
“[Defense Counsel]: Objection.
“The Court: Why don’t we—I will sustain it at this time without prejudice. Why don’t you either back up to see what her knowledge is of street gangs; then you need to establish to the court some kind of relevancy before I permit it. I will sustain the objection and ask the jury to disregard any reference to street gangs.”

Soon thereafter, outside the presence of the jury, the following colloquy transpired:

“[Assistant State’s Attorney]: Well, Your Honor, I also have one other thing while the jury is excused. Counsel objected to the question about the defendant’s gang affiliation. I do have State v. Mozell [40 Conn. App. 47, 668 A.2d 1340, cert. denied, 236 Conn. 910, 671 A.2d 824 (1996)]. . . .
“The Court: I know it’s permissible, but there has to be some foundation she knows something about gangs. She knows what a gang is. There has to be relevancy to the gang.
íjí
“The Court . . . Now, here is what I had in mind on the trial. . . . That the defendant’s gang was involved in a dispute with a rival gang. That is what you have to establish, if she knows about gangs. She shows there is rivalry that the dispute was sparked by recent [violent] confrontation the challenge was relevant to motive. You just can’t abstract a question to a witness and say he is a member of a gang because that is clearly prejudicial. Without establishing she knows what gangs are in existence, that she knows there is some conflict and this is retribution from one gang member to another.
“[Assistant State’s Attorney]: I think she can establish her knowledge that he is a member of the Latin Kings street gang. She’s aware of that from living in the area.
* ♦ *
“[Assistant State’s Attorney]: I intended to introduce the other evidence [concerning] the Latin Kings and Los Solidos through other witnesses. I don’t necessarily intend to go through that.
“The Court: You’re going to be able to [establish that] motivation for the killing was in part . . . some type of gang rivalry?
“[Assistant State’s Attorney]: Yes, Your Honor. . . .
“The Court: Well, I will caution the jury that this has to be connected. If you don’t connect it, I will entertain a motion to strike it at a later time.
“The Court: Are you following me, [defense counsel]? If he doesn’t make the connection then I will entertain a motion to strike and ask the jury to disregard it.
“[Defense Counsel]: Very well, Your Honor.” (Emphasis added.)

When the trial resumed, Lisandra Torres testified that the victim was associated with the Los Solidos gang and that the defendant was associated with the Latin Kings. She provided no testimony as to the defendant’s motive for committing the murder, nor did she testify that the shooting was related to the victim’s and the defendant’s gang affiliations. In addition, there were numerous other references to the alleged gang affiliations of the victim and the defendant throughout the trial. Despite the court’s clear warnings, however, the defense counsel never filed any motion to strike that evidence. We conclude that because defense counsel failed to file a motion to strike the evidence of gang affiliations, as advised by the court, the issue was not properly preserved at trial.

Because the defendant did not properly preserve this claim before the trial court, we now must determine whether the defendant can prevail under the four prong test articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “While the first two prongs of the Golding analysis consider whether the defendant’s claim is reviewable, the last two prongs address the merits of the claim. ... In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Askew, 55 Conn. App. 34, 38, 739 A.2d 274, cert. denied, 251 Conn. 918, 740 A.2d 866 (1999).

We conclude that the defendant’s claim fails the second prong of Golding because the claim is merely evidentiary and not of constitutional magnitude. Specifically, the defendant claims that when a defendant’s gang affiliation is brought into evidence in a trial, prejudice, likewise, is introduced. The defendant claims further that he had been branded throughout the trial as a gang member and that that was per se prejudicial. Therefore, he claims that he was denied his due process rights to a fair trial. Our case law, however, states otherwise. In State v. Taylor, 239 Conn. 481, 500, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), the defendant argued that the trial court deprived him of a fair trial by allowing the state to introduce testimony relating to his membership in the Latin Kings. As in the present case, the defendant in Taylor did not challenge the testimony at trial and argued on appeal that his claim warranted review under Golding. Id. The Taylor court was unpersuaded by that argument and stated that “we do not find that the defendant’s claims concerning the admission of evidence of his involvement in gang activity allege a violation of constitutional magnitude.” Id., 502; see also State v. Mozell, supra, 40 Conn. App. 51-52 (testimony admitted demonstrating that defendant was gang member relevant to prove motive). On the basis of the foregoing, the Taylor court concluded that Golding review was not warranted. State v. Taylor, supra, 503.

The defendant in this case attempts to distinguish the factual scenario in Taylor by pointing out that the defendant in Taylor testified on his own behalf and admitted that he was a ranking member of the Latin Kings; id., 502; while the defendant in the present case did not testify in his own defense. This claimed distinction is of no moment because, while most of the references to the defendant’s gang affiliation were made by the state’s witnesses, defense counsel also referred to the gang issue as follows: “Now, again, there is a gang war going on in Hartford. Certainly, this was between two rival Puerto Rican gangs. . . . Now this is a gang war. Two gangs against each other posing either bitter enemies to the point where they would actually consider drastic measures .... [Lisandra Torres] also indicated that she was friends with [the defendant]. She is not a gang member, she knows both parties, but, simply put, she was somewhere in the middle, she had friends on both sides. She indicated that the reason why she did not testify to the statement that she testified to during her last time on the stand was that she was afraid of retaliation from gang members.”

While we recognize that counsel's remarks during closing argument are not evidence, coupled with his failure to file a motion to strike the evidence of the defendant’s alleged gang affiliation introduced by the prosecution, defense counsel’s remarks cripple the defendant’s claim.

The defendant also seems to claim that the court had a sua sponte duty to strike the evidence concerning gang affiliation to assure a fair trial. We reject this notion. While we recognize that, in certain instances, a trial court does have a constitutional obligation to intervene, sua sponte, for example, when there is an allegation of juror misconduct; see State v. Brown, 235 Conn. 502, 525, 668 A.2d 1288 (1995); or when there is substantial evidence that a defendant is not competent; see State v. DeAngelis, 200 Conn. 224, 242, 511 A.2d 310 (1986); this is .not such a case. Because, as we previously determined, this issue was evidentiary in nature and not constitutional, the court did not have a sua sponte duty to intervene.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm . . . and (1) has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216, or (2) has been convicted as delinquent for the commission of a serious juvenile offense, as defined in section 46b-120. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       The defendant also raised on appeal a claim that he was denied his constitutional right to effective assistance of counsel. This claim, however, was withdrawn at oral argument. “Almost without exception, we have required that a claim of ineffective assistance of counsel must be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim.” (Internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 687-88, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

       Lisandra Torres is not related to the defendant, but was a friend of both the defendant and the victim.

       The testimony at 1rial indicated that the victim was a “star” in the Los Solidos gang, which meant that he held a fairly high position in the gang.

       Albert testified that “[j]ust don’t sleep on it” meant “don’t forget about him. Keep him in your eyesight in case he might try something.”

       An autopsy revealed that a .32 caliber bullet had entered the victim’s back and had transversed through his left lung, heart and pulmonary artery, coming to rest just above his breastbone. The autopsy revealed further that deposits of soot and gunpowder granules surrounding the entrance wound suggested that the “weapon was really close to the skin . . . when fired.”

       Roberto Garcia, another witness who arrived at the scene shortly after the shooting, testified that upon approaching the scene and asking Davila what had happened, Davila “just froze” and “[s]aid nothing at all,” and that he thought that Davila “was in shock.”

       The court concluded that Davila was unavailable and the transcript of Davila’s testimony from Torres’ earlier trial, which ended in a mistrial, was read into evidence.

       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.