author: WEST, J.

text:
    STATE OF CONNECTICUT v. STEVEN ROSE
    (AC 33014)
    Robinson, Alvord and West, Js.

      Argued September 13
    officially released December 20, 2011

      James B. Streeto, assistant public defender, with whom was John Cizik, Jr., senior assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, Leonard Boyle, acting state’s attorney, and Amy Sedensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Steven Rose, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes § 53a-49 (a) (2) and § 53a-134 (a) (1), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (1). On appeal, the defendant claims that (1) the trial court impermissibly admitted into evidence the written statements made to the police by two eyewitnesses after those witnesses testified at trial, (2) the conviction of the defendant of both felony murder and robbery in the first degree violates double jeopardy and (3) the trial court erred in not permitting the defense to impeach a witness about the specific facts regarding pending criminal charges against that witness. We affirm the judgment of the trial court.

Given the evidence presented at trial, the jury reasonably could have found the following facts. On June 2, 2007, the defendant first encountered the victim, Eugene Campagna, at the apartment of Sheila Schmidt, where the defendant entered the apartment demanding money and a hat from the victim. Schmidt left her apartment and called the police, but prior to their arrival, the defendant departed. Later in the evening, at approximately 9 o’clock at night, the defendant encountered the victim for a second time. Three different witnesses, John Bell, Robert Davis, and Angela Smith, gave their accounts of what occurred subsequently.

Bell observed the encounter from his second story apartment on Bronson Street in Waterbury, where he saw the defendant approach and call out to the victim as the victim walked toward a store on the comer. Bell observed the defendant first punch the victim in the face, then later observed the victim lying on the ground and the defendant stomping on his face. Bell then opened his window and yelled out to the defendant on the street below to stop beating the victim; however, the defendant continued to hit the victim. Bell heard the defendant tell the victim that he hoped he died, observed the defendant spit on the victim, remove a $5 bill from the victim’s pocket, and attempt to pick up the victim, who did not move. Bell then called the police.

Davis, at about 9:15 p.m. that evening, was outside his Bishop Street residence with his niece near the comer store on Bronson Street where he observed the victim digging through the garbage for cans. Davis did not witness the attack, but, two to three minutes later, he heard Bell yelling at the defendant to leave the victim alone and heard the defendant yell back at Bell that the victim owed him money. Davis saw the victim lying on the ground and observed the defendant attempting to pick up the victim by his midsection.

Smith observed the encounter between the defendant and the victim from outside the comer store on Bronson Street where she was drinking vodka. Smith observed the defendant slap, punch and throw the victim against a fence, and she shouted at the defendant to stop beating the victim. Smith saw the defendant reach into the victim’s pocket and say something to the victim. Smith then saw the defendant walk away while the victim remained on the ground motionless. Thereafter, the police and an ambulance arrived on the scene where emergency treatment was given; however, the victim suffered a substantial brain hemorrhage and was pronounced dead at Saint Mary’s Hospital.

The defendant subsequently was arrested and charged under a substitute information with murder in violation of General Statutes § 53a-54a (a), felony murder in violation of § 53a-54c, attempt to commit robbery in the first degree in violation of §§ 53a-49 (a) (2) and 53a-134 (a) (1), and robbery in the first degree in violation of § 53a-134 (a) (1). Following a jury trial, the defendant was convicted of the crimes of felony murder, attempt to commit robbery in the first degree and robbery in the first degree. The jury deadlocked as to the murder charge, and a mistrial was declared on that count. Thereafter, the corut imposed a total effective sentence of forty years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted the statements of Bell and Davis both for rehabilitative purposes and for substantive purposes. We disagree.

The following additional facts are relevant to the resolution of the defendant’s claim. Bell and Davis were both questioned during direct examination about their accounts of the events of June 2, 2007, and their statements to the police. On direct examination by the state, each witness was shown a copy of his signed, sworn statement to the police, and each was marked as a state’s exhibit for identification. Following the testimony of Bell and Davis but prior to the close of the state’s case-in-chief, the state filed two motions in limine to admit their statements as substantive evidence.

During Bell’s testimony, including during his cross-examination by the defendant, he testified to having suffered the effects of a stroke since June 2,2007, which had, to some degree, affected his memory. The state sought to admit Bell’s written statement to the police for rehabilitative purposes under Connecticut Code of Evidence § 6-11 (b) as a prior consistent statement. Additionally, the state argued that any inconsistencies in the statement could be considered as substantive evidence under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and § 8-5 (1) of the Connecticut Code of Evidence. The court granted the state’s motion, finding that it would be up to the jury to determine Bell’s credibility regarding his claim to have suffered a stroke and his inability to recall details.

During Davis’ direct examination, he testified that he was currently incarcerated but was not incarcerated at the time of his statement to the police. During cross-examination, he was asked whether the state had promised him anything in exchange for his testimony. The state filed a motion in limine to admit Davis’ statement to the police as apiior consistent statement under § 6-11 (b) of the Connecticut Code of Evidence, to rehabilitate Davis and to rebut the inference that he had developed an interest, bias, or motive after he signed his written statement. Additionally, the state argued that parts of the written statement should come in under Whelan because some of Davis’ statements within the police statement were inconsistent with his trial testimony. Specifically, the state argued that there were two details in the police statement that Davis could not recall on direct examination, including that Davis (1) observed the defendant going through the victim’s pockets and (2) heard the defendant say to the victim that he hoped he died. The court granted the state’s motion.

“As a threshold matter, we set forth the standard by which we review the trial court’s determinations concerning the [admissibility] of evidence. The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228 (2003).

A

Prior Consistent Statements

The defendant first argues that the state impeached Bell and Davis in order to admit under § 6-11 (b) of the Connecticut Code of Evidence the otherwise inadmissible statements that they provided to the police. Specifically, the defendant argues that, on direct examination of Davis, the state, not the defendant, elicited that Davis was presently incarcerated. Additionally, the defendant argues that the defendant never asked Bell any questions about his stroke, which he volunteered during cross-examination and about which the court then questioned him.

In State v. Hines, 243 Conn. 796, 804—805, 709 A.2d 522 (1998), our Supreme Court stated that “[t]he only relevant inquiry is whether the jury reasonably may have been left with the impression that [the witness’] testimony was a recent fabrication. . . . [I]t is not necessary that the impeachment be explicit, i.e., that an actual allegation of recent fabrication be made, but only that a jury be able to reasonably infer that such is occurring.” (Internal quotation marks omitted.) The court held that “[w]hen a trial court reasonably can conclude that there was sufficient evidence to permit a jury to draw an inference of recent fabrication, it may admit a prior consistent statement for rehabilitative purposes.” Id., 806; State v. Arda, 111 Conn. App. 374, 385, 958 A.2d 1253 (2008), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009).

Although the defendant is correct that the state first elicited testimony from Davis that he was incarcerated at the time of trial, the defendant, during cross-examination, elicited testimony related to Davis’ motivation in testifying. Specifically, the defendant asked Davis whether he would receive or had been promised any sentencing consideration. The court reasonably could conclude from this testimony that there was sufficient evidence for a jury to draw an inference that Davis had recently fabricated his testimony due to his current status as a prisoner. Therefore, the court did not abuse its discretion in admitting Davis’ statement to the police as a prior consistent statement for rehabilitative purposes under § 6-11 (b). With regard to Bell’s testimony, although the defendant did not specifically question Bell regarding his alleged stroke, the jury still heard that testimony and reasonably could have made an inference that he had an inaccurate memory due to a stroke. Therefore, the court did not abuse its discretion in admitting Bell’s statement to the police as a prior consistent statement for rehabilitative purposes under § 6-11 (b).

B

Prior Inconsistent Statements

Next, the defendant claims that the court improperly admitted the written statements of Bell and Davis under Whelan, thereby violating the defendant’s sixth amendment right to confrontation.

We begin our analysis by setting forth the applicable legal principles. “The Whelan rule allows the substantive use of a prior inconsistent statement if it is signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” State v. Hart, 118 Conn. App. 763, 783, 986 A.2d 1058, cert. denied, 295 Conn. 908,989 A.2d 604 (2010). In addition, we note that “once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible.” State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000). A Whelan statement should only be excluded if the circumstances from which the statement was made indicate that the statement is “so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process.” Id., 307.

The dispositive issues are (1) whether there were inconsistencies between the statement Davis provided to the police and his testimony at trial and (2) whether the witnesses were available for cross-examination.

First, we examine the defendant’s claim that there were not inconsistencies between the statement Davis provided to the police and his testimony at trial. The court granted the state’s motion in limine to admit inconsistent parts of the statement of Davis as substantive evidence under Whelan. In arguing for the admission of the statement under Whelan, the state claimed that there were at least two instances where the statement Davis provided was inconsistent: (1) regarding whether the defendant went through the victim’s pockets and (2) whether Davis heard the defendant say to the victim that he hoped the victim died. The defendant claims that one of the purported inconsistencies between Davis’ testimony on direct examination and his statement to the police did not exist, and, therefore, the court should not have admitted his statement under Whelan. Specifically, the defendant argues that in his testimony during his direct examination and in his statement to the police, Davis mentioned that he heard the defendant say to the victim that he hoped the victim died. After examining the record, the defendant is correct that, in regard to that specific statement, Davis’ response is essentially consistent. While this one purported inconsistency does not exist, the other claimed inconsistency between Davis’ statement to the police and his testimony on direct examination is indeed inconsistent. When asked on direct examination, Davis could not recall whether the defendant searched the victim’s pockets; however, in his statement to the police, he stated that the defendant went through the victim’s pockets.

“Whether there are inconsistencies between the two statements is properly a matter for the trial court. . . . Inconsistencies may be shown not only by contradictory statements but also by omissions. In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. . . . Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement . . . and the same principle governs the case of the forgetful witness. ... A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position and they may also be found in denial of recollection.” (Citations omitted; internal quotation marks omitted.) State v. Whelan, supra, 200 Conn. 748-49 n.4.

Next, the defendant argues that the witnesses were not available for cross-examination under Whelan and that his sixth amendment right to confrontation was violated by admitting Bell’s and Davis’ statements to the police. “The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Eaton, 59 Conn. App. 252, 265, 755 A.2d 973, cert. denied, 254 Conn. 937, 761 A.2d 763 (2000).

We conclude that the court did not abuse its discretion and that the defendant’s sixth amendment right of confrontation was not violated. The defendant was not denied all meaningful opportunity for cross-examination. See id., 266-67. Bell was cross-examined extensively by the defendant regarding inconsistencies between his testimony on direct examination and his written statement to the police, which was marked as an exhibit for identification. The defendant did not cross-examine Davis regarding his statement to the police; however, Davis was questioned about the statement, which was marked as an exhibit for identification during direct examination. Davis was present in court, under oath, and subject to cross-examination. The defendant had the opportunity to cross-examine Davis regarding the statement but, for strategic reasons, did not do so. Here, the court gave the defendant the opportunity for an effective cross-examination of both witnesses regarding their written statements to the police and thus did not violate the defendant’s sixth amendment right to confrontation. Accordingly, under the circumstances of this case, we conclude that the court did not abuse its discretion by admitting the prior statements of Bell and Davis under Whelan.

n

The defendant next claims that his conviction of both felony murder and robbery in the first degree violates the fifth amendment prohibition against double jeopardy. We conclude that the defendant’s right to a fair trial was not violated.

We set forth our standard of review and the principles that guide our analysis. “The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb .... This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. . . . The Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy. . . . This constitutional guarantee serves three separate functions: [1] It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial]. . . . The defendant’s claim in [the present case] implicates the last of these three functions.

“The double jeopardy analysis in the context of a single trial is a two part process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Citations omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 360-61, 796 A.2d 1118 (2002). The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). “[W]here the same act or transaction constitutes aviolation 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 which the other does not.” Id., 304. “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. . . . Double jeopardy protection against cumulative punishments is only designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature. . . . Where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. . . . The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” (Citations omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 292-93, 579 A.2d 84 (1990).

In Greco, our Supreme Court held that the defendant’s punishment for felony murder, robbery in the first degree, and burglary in the first degree did not violate the double jeopardy clause of the fifth amendment. Id., 297-98. The defendant argues that the Supreme Court’s decision in Greco is distinguishable and, in the alternative, should be overruled. In Greco, as in the present case, the defendant was convicted and punished for felony murder with the underlying predicate crime being robbery in the first degree. The defendant attempts to draw a distinction in that the defendant in Greco was charged with first degree robbery under the aggravating factor of being armed with a deadly weapon, as set forth under § 53a-134 (a) (2), whereas the defendant in the present case was charged with robbery in the first degree under § 53a-134 (a) (1) with the aggravating factor of causing serious physical injury. The defendant argues that the legislature intended for the enhanced punishment of § 53a-134 (a) (1) to apply only when the victim is injured, but not killed, during the robbery.

Our Supreme Court recently addressed the precise issue raised by the defendant in State v. Gonzalez, 302 Conn. 287, 25 A.3d 648 (2011), where the court held that a defendant’s conviction of both felony murder and robbery in the first degree with the aggravating factor of serious physical injury under § 53a-134 (a) (1) did not violate double jeopardy. Id., 314-15. In Gonzalez, the court explained that “our analysis of the double jeopardy issue in Greco did not depend on the exact aggravating factor levied against the defendant.” Id., 318. In reaffirming Greco, the court held that although the crimes of robbery in the first degree and felony murder with the predicate offense of robbery constitute the same offense under the Blockburger test, “the prohibition against double jeopardy was not violated in Greco because the legislature clearly intended to permit the state to charge, the jury to convict, and the trial court to sentence, that defendant for the crimes of felony murder with the predicate offenses of robbery and burglary, and the crimes of robbery and burglary in the first degree.” Id., 319. Under Greco and Gonzalez, the defendant’s claim of a violation of double jeopardy fails.

Ill

Finally, the defendant claims that the court erred in not permitting him to question Melvin Romeo, a witness for the state, about the substance of the pending charges against Romeo.

Melvin Romeo, who was in a holding cell with the defendant at the Waterbury courthouse during a lunch break, testified that the defendant had admitted to killing the victim. During cross-examination, the state objected when the defendant questioned Romeo about specific acts surrounding pending criminal charges he faced. While the jury was excused, the defendant argued that the specific acts of conduct that Romeo was charged with were probative of Romeo’s character for untruthfulness. The court found that questions regarding the specific conduct behind Romeo’s pending charges would “come smack up against [the] fifth amendment [right] not to incriminate himself.” The attorney representing Romeo in the pending criminal proceedings told the court that Romeo had pleaded not guilty to the charges and that he had instructed Romeo not to incriminate himself during his testimony for the state against the defendant. The court ruled that the defendant could cross-examine Romeo only in regard to what he was actually charged with and not the specific misconduct that resulted in those charges.

“The sixth amendment to the United States constitution guarantees to an accused the right to confront the witnesses against him. . . . The primary interest thus secured is the right to cross-examination ... an important function of which is exposure of a witness’ motivation for testifying. . . . The confrontation right is not absolute and is subject to reasonable limitation. . . . Under the confrontation clause, there is a minimum of cross-examination that must be accorded to the defendant into matters affecting the reliability and credibility of the state’s witnesses. . . . The general rule that restrictions on the scope of cross-examination are within the court’s sound discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . We must first determine, therefore, whether the cross-examination permitted was satisfactory under the sixth amendment and, second, whether the court abused its discretion in restricting the scope of the cross-examination.” (Citations omitted.) State v. Reed, 56 Conn. App. 428, 438, 742 A.2d 1285, cert. denied, 252 Conn. 945, 747 A.2d 524 (2000). “We have adhered to this principle and found no error in the limitation of cross-examination into pending criminal charges where we were satisfied, upon review of the entire cross-examination, that the opportunity to impeach the witness sufficiently comported with the constitutional standards embodied in the confrontation clause.” (Internal quotation marks omitted.) State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). To comport with the constitutional standards embodied in the confrontation clause, the defendant, in exercising his right of cross-examination, must be allowed to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

We are satisfied, upon review of the entire cross-examination, that the opportunity to impeach Romeo sufficiently comported with the constitutional standards embodied in the confrontation clause. Romeo was cross-examined about his motives for testifying, especially in connection with the pending forgery and larceny charges against him. The court’s ruling, when examined in the context of the thorough cross-examination of Romeo and his fifth amendment right not to incriminate himself, does not rise to the level of constitutional interference with the defendant’s right of confrontation. After determining that the cross-examination satisfies the sixth amendment, we cannot say that the court abused its discretion in limiting cross-examination of Romeo.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state subsequently entered a nolle prosequi as to the charge of murder.

       Although the court indicated at sentencing that the conviction on the counts of attempt to commit robbery in the first degree and robbery in the first degree would be merged, it nonetheless imposed a sentence of ten years incarceration on the charge of attempt to commit robbery in the first degree to run concurrently with a sentence of ten years incarceration on the charge of robbery in the first degree.

       Section 6-11 (b) of the Connecticut Code of Evidence, which covers prior consistent statements, provides: “If the credibility of a witness is impeached by (1) a prior inconsistent statement of the witness, (2) a suggestion of bias, interest or improper motive that was not present at the time the witness made the prior consistent statement, or (3) a suggestion of recent contrivance, evidence of a prior consistent statement made by the witness is admissible, in the discretion of the court, to rebut the impeachment.” In addition, the commentary to § 6-11 (b) enumerates a fourth form of impeachment: “a claim of inaccurate memory” under Connecticut case law. In State v. Anonymous (83-FG), 190 Conn. 715, 463 A.2d 533 (1983), the court stated: “If the witness’s accuracy of memory is challenged, it seems clear common sense that a consistent statement made shortly after the event and before he had time to forget, should be received in support.” (Internal quotation marks omitted.) Id., 729, quoting C. McCormick, Evidence (2d Ed. 1972) § 49, p. 105 n.88; see also State v. Valentine, 240 Conn. 395, 413, 692 A.2d 727 (1997); State v. Brown, 187 Conn. 602, 607-608, 447 A.2d 734 (1982).

       Section 8-5 (1) of the Connecticut Code of Evidence provides that a prior inconsistent statement is not excluded by the hearsay rule, provided that the declarant is available for cross-examination and “(A) the statement is in writing . . . (B) the writing or recording is duly authenticated as that of the witness, and (C) the witness has personal knowledge of the contents of the statement.”

       The defendant also raises a claim of improper jury instruction within his evidentiary claim regarding the use of prior consistent statements and requests plain error review. See Practice Book § 60-5. The defendant claims that the court erred by failing to instruct the jury that the prior consistent statements of Bell and Davis were only admissible for purposes of weighing the credibility of the witnesses and that, absent such an instruction, the statements were admitted as substantive evidence.
      “A party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given.” Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002). Here, there is nothing in the record that shows that the defendant submitted a suggested jury instruction on this specific issue, nor that the defendant objected to the instruction as given, and thus, his claim is unpreserved for appeal.
      We decline to find that this claim constitutes plain error. “As we often have stated, [pjlain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Dews, 87 Conn. App. 63, 69, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).
      After reviewing the record, we perceive no impropriety that would result in manifest injustice. “It is well established in Connecticut. . . that the trial court generally is not obligated, sua sponte, to give a limiting instruction.” (Internal quotation marks omitted.) Id., 70. “The failure by the court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not specifically mandated by statute or rule of practice is not so egregious that it affects fundamental fairness or the integrity of and public confidence in the judicial proceedings.” State v. Atkins, 118 Conn. App. 520, 535-36, 984 A.2d 1088 (2009), cert. denied, 295 Conn. 906, 989 A.2d 119 (2010).

       During direct examination of Davis, the following colloquy occurred:
      “[The Prosecutor]: . . . Did you hear [the defendant] say anything?”
      “[The Witness]: [The defendant] was saying that motherf[ — ] owe me money, I hope he die, f[ — ] that mo. That’s the only — everything I heard him say.”

        In his written statement to the police, Davis said: “[The defendant] stood at the comer . . . screaming ‘f[ — ] that mother f[ — ] I hope he die, he should of paid me my money’

       “[A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [WJhether [the improper admission of a witness’ testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 357-58, 904 A.2d 101 (2006) (en banc).
      Here, even though one purported inconsistency in Davis’ statement was essentially consistent, there was at least one important difference between Davis’ statement to the police and his testimony on direct examination. Furthermore, the jury was charged with determining whether the statements were indeed inconsistent and was not given instructions on the specific purported inconsistencies that the state claims exist. Accordingly, any error by the court in determining inconsistencies in Davis’ statement was harmless.

       The defendant argues that the right to recall the witnesses was an inadequate remedy in this case because it would have been logistically difficult and would have produced an adverse effect on the jury. The defendant argues that there would have been hardship in tracking down the two witnesses and in serving them a subpoena in the middle of the trial in order to recall them. It is within the court’s discretion to allow a recall of a witness for further cross-examination. State v. Martin, 77 Conn. App. 778, 817, 825 A.2d 835, cert. denied, 266 Conn. 906, 832 A.2d 73 (2003). In several cases before this court, we have found that defendants’ arguments that they were denied the right to cross-examine a witness after evidence was introduced subsequent to that witness’ testimony is untenable if the defendant does not attempt to recall the witness. See State v. Claudio C., 125 Conn. App. 588, 598, 11 A.3d 1086 (2010), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011); State v. Davis, 109 Conn. App. 187, 196, 951 A.2d 31, cert. denied, 289 Conn. 929, 958 A.2d 160 (2008); State v. Stepney, 94 Conn. App. 72, 79 n.2, 891 A.2d 67, cert. denied, 278 Conn. 911, 899 A.2d 40 (2006). The record does not reflect that the defendant sought to conduct further cross-examination of either Bell or Davis or that the court in any way restricted the defendant’s rights to cross-examine either Bell or Davis. Although it would have been in the court’s discretion to deny such a request to recall, no such request was made, and thus there is nothing for this court to review on appeal. Accordingly, the defendant’s argument must fail.

       The defendant failed to raise this claim at trial. He therefore seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for our review, in that it is undisputed that each of the crimes with which the defendant was charged arose out of the same transaction and the defendant’s claim implicates his constitutional right against double jeopardy, we consider the merits of his claim.

       It is axiomatic that this court, as an intermediate appellate body, is “bound by Supreme Court precedent and [is] unable to modify it ... . [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Citation omitted; internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    CENTRIX MANAGEMENT COMPANY, LLC v. ESTEPHANIE VALENCIA ET AL.
    (AC 32625)
    DiPentima, C. J., and Beach and Bear, Js.

      Argued September 22
    officially released December 20, 2011

      Robert Shluger, for the appellant (plaintiff).

      Ralph S. Keen III, for the appellees (defendants).
   Opinion

BEACH, J.

The plaintiff, Centrix Management Company, LLC, appeals from the judgment of dismissal of its summary process action against the defendants, Estephanie Valencia and Jose Sanchez. On appeal, the plaintiff claims that the trial court erred by (1) finding that the subsequent acts and communications by the plaintiff rendered the previously unequivocal notice to quit equivocal and (2) sustaining the defendants’ objections to questions regarding the parties’ intentions. We affirm the judgment of the trial court.

The facts are undisputed. On October 1, 2009, the plaintiff as landlord and the defendants as tenants entered into a one year lease for a residential property in Newington. The defendants failed to pay rent before the eleventh day of January, 2010. Thereafter, the defendants did not pay rent for February, March, April, and May, 2010. A notice to quit possession was served on both defendants on May 14, 2010, that required them to vacate the premises on or before May 21, 2010. The defendants failed to vacate the premises and continued to remain in possession. On June 26, 2010, the plaintiff served a five count complaint in which it alleged (1) nonpayment of rent as to both defendants, (2) nonpayment of rent as to Sanchez, (3) no right or privilege as to both defendants and (4) no right or privilege as to Valencia.

On July 29, 2010, Valencia moved to dismiss the summary process action due to lack of subject matter jurisdiction, alleging that the plaintiff did not terminate the lease by unequivocal notice to quit as required by General Statutes § 47a-23. The court held a hearing on the motion, at which Valencia testified as follows. On June 24,2010, John Deans, property manager for the plaintiff, called Valencia and left her at least one voice mail message. Valencia returned his phone call the same day, and she testified that Deans told her, “I don’t want to evict you. We don’t want to put you on the street, but let me help you. We can help you. We can make [an] agreement.” Deans and Valencia met that day, and Valencia agreed to go to his office on June 30, 2010. At the meeting on June 30, Deans again stated that he did not want to evict her and that he wanted to avoid attorneys and court. He also gave her a phone number for an eviction prevention program. Additionally, Deans drafted a document in the presence of Valencia: “To Estephanie Valencia — Centrix agrees to forgive two months use and occupancy payments and will work with you to straighten out arrearage. You will pay July use & occupancy by July 15, 2010 [signed] J. Deans, Estephanie Valencia.” Valencia subsequently paid $840 for July use and occupancy pursuant to this document.

Deans testified at the hearing that he told Valencia on June 24, 2010: “I thought both of us were spending a lot of money on attorney’s fees, and I didn’t like spending all this money about something I didn’t understand, and I thought that maybe we could get together and work out a settlement between us for this case if I could understand what was the — what was it all about.” He also testified that on the same day, he told Valencia that he did not want to evict her and “we came to an agreement that she would come at a future date to my office and we would try to discuss settling the case, if we could reach a settlement rather than carrying this on and on and on.” Deans testified that he could not remember if he repeated that he did not want to evict Valencia at the meeting in his office on June 30. Deans further testified that he told Valencia that he “wanted to get accomplished some kind of financial arrangement that we could then present to the court to settle the case.” According to the testimony of both Valencia and Deans, at no time did Deans tell Valencia explicitly that the pending action was cancelled or withdrawn or that she was reinstated under a new lease.

At the conclusion of the hearing, the court issued an oral ruling in which it noted the testimony of Deans that he did not want to evict Valencia and the writing of June 30 that indicated that Deans would forgive two months use and occupancy payments. The court further stated: “The court is struck by the candor of Mr. Deans. He was a well intended landlord and exercised good judgment in trying to resolve a matter, but unfortunately he ran afoul of the very strict rules in summary process. And these actions clearly — there’s a textbook action, which caused a previously unequivocal notice to quit to become equivocal. It’s the acts and the deeds, however well intended. This action cannot proceed. The motion to dismiss is granted, and [the] action’s dismissed.” The plaintiff filed a motion for articulation, which was denied. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court erred by ruling that the actions of Deans subsequent to service of the notice to quit rendered the previously unequivocal notice equivocal. Specifically, the plaintiff advances four grounds for its assertion that the effect of the notice to quit remained unequivocal even after Deans’ acts. It was clear that: (1) the parties were trying to negotiate a settlement, (2) the pénding eviction was continuing and was not being withdrawn, (3) the plaintiffs comment of “ T don’t want to evict you’ ” was stated during negotiations and (4) the writing of June 30 did not reflect fully the issues that were discussed on June 24 and 30, and because of Valencia’s financial difficulties, they could agree only on payment for July use and occupancy. We disagree.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [decision to deny] . . . the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).

“ [When] the plaintiff asserts that the facts found were insufficient to support the court’s legal conclusion, th[e] issue presents a mixed question of law and fact to which we apply plenary review. . . . We must therefore decide whether the court’s conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted.) Winchester v. McCue, 91 Conn. App. 721, 726, 882 A.2d 143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005); see also Borst v. Ruff, 137 Conn. 359, 361, 77 A.2d 343 (1950) (applying plenary review to determination of whether retention of check by landlord after notice to quit was served constituted acceptance of rent and waiver of default).

“Summary process is a statutory remedy which enables a landlord to recover possession of rental premises from the tenant upon termination of a lease. . . . It is preceded by giving the statutorily required notice to quit possession to the tenant. . . . Service of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease.” (Citations omitted.) Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988). “[Statutes relating to summary process must be narrowly construed and strictly followed. ... As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity.” (Citation omitted; internal quotation marks omitted.) HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 643, 792 A.2d 165 (2002).

Our trial courts consistently have held that providing a tenant with a new lease agreement or with an invitation to enter into a new rental agreement after a notice to quit has been served is inconsistent with an unequivocal notice to quit. See Bristol Residential Properties v. Van Kirk, Superior Court, judicial district of New Britain, Housing Session, Docket No. NBSP-46757 (January 10, 2007) (42 Conn. L. Rptr. 611) (notice to quit equivocal when payment invoice caused confusion about whether lease agreement actually terminated or possibly was reinstated); Londregan v. Freedman, Superior Court, judicial district of New London, geographical area number ten, Docket No. 17122 (June 8, 2001) (letters indicating that tenant must pay rent to remain on premises evidence of ongoing invitation to enter into new rental agreement and, thus, notice to quit became equivocal); Loureiro v. Drobiak, Superior Court, judicial district of Hartford-New Britain at Hartford, Housing Session, Docket No. 81608 (August 3, 1995) (notice to quit equivocal when landlord telephoned tenant day after quit date asking him when he was going to sign new lease); 617 Park Street Ltd. v. Diakomanolis, Superior Court, judicial district of Hartford-New Britain at Hartford, Housing Session, Docket No. SPH-9407-76760 (October 31, 1994) (12 Conn. L. Rptr. 574) (new lease proposal sent to plaintiff rendered notice to quit equivocal); Church Street South Ltd. Partnership v. Harding, Superior Court, judicial district of New Haven, Housing Session, Docket No. SPNH-9310-36899 (December 3,1993) (10 Conn. L. Rptr. 593) (letter stating rent amount and inviting defendant to come to rental office to sign paperwork rendered notice to quit equivocal); Danpar Associates v. Falkha, 37 Conn. Sup. 820, 821-22, 438 A.2d 1209 (1981) (Appellate Session held notice to quit negated when landlord’s attorney wrote to tenant day after notice to quit served indicating summary process action was continuing and stating: “ ‘My client had no objection to re-writing the lease with the increased rent, but at this point the only thing that stands in the way is money. Please take this up with your client and advise.’ ”); compare EMC Mortgage Corp. v. Abdulrahim, Superior Court, judicial district of Middlesex, Docket No. CV-09-016162 (June 2, 2008) (documents sent by landlord to tenant that mentioned foreclosure proceeding and indicated tenant could not remain on premises did not provide indication of “any opportunity to negotiate a new lease or tenancy”).

In the present case, there was no communication by Deans initiating a new lease agreement or inviting the payment of rent. There were actions, however, that were not consistent with a “clear intention to terminate the lease and to proceed with judicial process to secure possession.” (Internal quotation marks omitted.) Bristol Residential Properties v. Van Kirk, supra, 42 Conn. L. Rptr. 612, quoting Zitomer v. Palmer, 38 Conn. Sup. 341, 343, 446 A.2d 1084 (1982) (Appellate Session). Both Valencia and Deans testified that Deans told her that he did not want to evict her and that they could try to work out a settlement. According to Deans, he communicated to Valencia that he did not like spending money on attorney’s fees, and Valencia testified that Deans said that he wanted to avoid attorneys and court. Further, the writing of June 30 contained an agreement that Deans would forgive two months of use and occupancy payments and that they would “work ... to straighten out [the] arrearage.” The combination of these written and spoken statements could create reasonable doubt in the mind of a reasonable tenant as to whether the lease, in fact, remained terminated. Summary process statutes are strictly construed, and a paramount consideration is the goal of insulating the tenant from confusion and uncertainty. See Rowe 77 Associates, LLC v. Pickett, Superior Court, judicial district of Hartford, Docket No. HDSP-152727 (June 21, 2010) (“[t]he requirement that a notice to quit be unequivocal protects a tenant from confusion and uncertainty concerning the tenant’s continuing right to remain in occupancy or the need to make other arrangements”); see also Vesta Windham, LLC v. Burgos, Superior Court, judicial district of Windham, Docket No. CV-11-0613967-S (June 5, 2007) (“[i]f there is equivocal language in the notice itself or prior or subsequent communication from the landlord, then the notice is improper”). We conclude that it does not impermissibly burden a landlord to require him or her, if he or she chooses, to try to settle a case after service of a notice to quit, to inform the tenant that the summary process action is going forward and that unless a full settlement is reached between the parties, the eviction action will proceed to conclusion. Deans did not communicate to Valencia that the summary process action was proceeding to conclusion unless they successfully negotiated a pretrial settlement. Accordingly, we affirm the court’s ruling that the notice to quit was rendered equivocal by Deans’ conduct.

II

The plaintifF also argues that the court erred by sustaining the defendants’ objections to questions about Deans’ intentions regarding the writing of June 30 and about whether Deans and Valencia agreed that she would pay use and occupancy after July 31. We disagree.

The following additional facts are relevant. During direct examination of Deans, the following exchange occurred:

“[The Plaintiffs Counsel]: What was your intention in exhibit A when it says—
“[The Defendants’ Counsel]: Objection, Your Honor, back to intentions.
“The Court: Yeah, sustained.
“[The Plaintiffs Counsel]: It’s avague statement, Your Honor, in here. She should (indiscernible) to explain.
“The Court: Is there — I’m ruling on what’s factually determined, what’s written, what’s stated. [Are] there any further questions of the witness?
“[The Plaintiffs Counsel]: Were you able to agree with [Valencia] as to her paying use and occupancy for any dates after July 31?
“[Deans]: No.
“[The Defendants’ Counsel]: Your Honor, I’m going to object. The evidence—
“[Deans]: No, I was — I did not . . .
“[The Defendants’ Counsel]: Your Honor, my objection is that this is going over issues that have already been stipulated to. . . .
“The Court: [I]t is not a matter of whether there was an agreement. The law is very clear that the issue before this court this afternoon is whether the acts or the writings of a landlord rendered to what was previously an effective notice to quit equivocal and, therefore, caused the action to be placed in jeopardy. So agreements have nothing to do with it. Motivation has nothing to do with it. Reasons have nothing to do with it. It’s acts of the parties determined by the facts.”
“The appropriate standard of review in cases concerning the admissibility of evidence is limited to whether the trial court abused its discretion. ... It is generally accepted that a trial court has broad discretion in ruling on the admissibility of evidence and appellate courts will ordinarily not disturb a trial court’s ruling on admissibility of evidence unless a clear abuse of discretion is shown. . . . Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only when an injustice appears to have occurred.” (Internal quotation marks omitted.) State v. Wright, 58 Conn. App. 136, 148, 752 A.2d 1147, cert. denied, 254 Conn. 907, 755 A.2d 884 (2000).

The plaintiff argues that the court erred by not allowing inquiry into the intent underlying the writing and the discussions while simultaneously basing its judgment of dismissal on the writing of June 30. The plaintiffs argument fails. It claims that the court “rejected the importance of whether or not there was an agreement between Mr. Deans and [Valencia] . . . .’’In sustaining the defendants’ objection, however, the court explicitly explained that it was not concerned with the motivations of the parties. Although the court stated that “agreements have nothing to do with it,” the context of the statement makes clear that the court was not suggesting that it was immaterial whether there was a settlement agreement between the parties; rather, the court meant that it was irrelevant whether the parties reached a mutual understanding regarding the terms of the writing of June 30: “The law is very clear that the issue before this court this afternoon is whether the acts or the writings of a landlord rendered . . . what was previously an effective notice to quit equivocal and therefore caused the action to be placed in jeopardy.” Accordingly, we conclude that the court’s explanation was reasonable in context, and that the court did not abuse its discretion in sustaining the defendants’ objection.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff alleged nonpayment of rent as to both defendants in counts one and five.

       Ordinarily, this court does not rely on Superior Court authority. In this instance, however, there is sparse appellate authority directly on point and a significant body of authority written by judges who, while assigned to the housing division of the Superior Court, gain specialized expertise and whose opinions are relied on by practitioners in the field.

       We note that this is an objective standard and that the court employed this standard, as demonstrated in its insistence on relying on the acts of the parties rather than the parties’ intentions. This approach also is consistent with Superior Court cases on this issue. See, e.g., Bristol Residential Properties v. Van Kirk, supra, 42 Conn. L. Rptr. 611 (noting that payment invoice sent after notice to quit might reasonably be understood as invitation to pay past due rent and avoid eviction); Danpar Associates v. Falkha, supra, 37 Conn. Sup. 823-24 (observing that attorney’s letter following notice to quit reasonably might be understood as invitation to further negotiations).

       In considering this issue, we carefully have considered the important public policy of encouraging pretrial settlements, as the plaintiff raises in its brief. Requiring a landlord clearly to inform the tenant that the summary process action will continue throughout negotiations and that eviction will occur should a successful settlement not be reached does not, in our view, chill negotiations. Rather, this approach strikes the appropriate balance between allowing settlement discussions to continue and helping to ensure that the tenant is not unsure as to whether he or she still may be evicted pursuant to the pending action.

       Although the case is not cited in either party’s brief, during oral argument, the defendants’ counsel argued that Danpar Associates v. Falkha, supra, 37 Conn. Sup. 820, is directly on point. In Danpar Associates, the tenants, subject to a commercial lease, requested a lower rent than the lease renewal dictated. Id., 821. The landlord served a notice to quit on the tenant. Id. The following day, however, the attorney for the landlord sent a letter to the attorney for the tenants returning a check that the tenants had sent for rent under the original lease and stating that the summary process action was continuing. Id., 821-22. The letter ended by stating: “ ‘My client had no objection to re-writing the lease with the increased rent, but at this point, the only thing that stands in the way is money. Please take this up with your client and advise.’ ” Id. The tenants subsequently sent the landlord a check for the rent at the increased amount for the months after the expiration of the original lease. Id. The landlord’s attorney, however, sent another letter the following day, indicating that the first letter was in error and the summary process action was proceeding. Id. The Appellate Session of the Superior Court rejected the landlord’s appeal, reasoning that the letter from the attorney following the notice to quit “negated the effect of the notice to quit ... at least until the further negotiations which that letter invited had terminated” and that “[t]he tender of full payment of the rent . . . before the [landlord] declared the negotiations closed, barred the [landlord] from proceeding with the forfeiture of the lease.” Id., 824.
      Many courts have relied on Danpar Associates in cases involving communications by the landlord following an unequivocal notice to quit. See, e.g., EMC Mortgage Corp. v. Abdulrahim, supra, Superior Court, Docket No. CV-09-016162; Bristol Residential Properties v. Van Kirk, supra, 42 Conn. L. Rptr. 611; Londregan v. Freedman, supra, Superior Court, Docket No. 17122; East Hartford Housing Authority v. Colon, Superior Court, judicial district of Hartford at Hartford, Docket No. HDSP-108933 (November 27, 2000); Avalon Properties, Inc. v. Evans, Superior Court, judicial district of Hartford-New Britain, Housing Session, Docket No. SPH-87763 (October 29, 1996); Loureiro v. Drobiak, supra, Superior Court, Docket No. 81608; 617 Park Street Ltd. v. Diakomanolis, supra, 12 Conn. L. Rptr. 574. We caution against mechanical application of Danpar Associates and note that the circumstances in that case involved attempts to renegotiate a commercial lease. The circumstances of Danpar Associates may not always be relevant to cases involving conduct by a landlord that may be inconsistent with termination of a tenant’s occupancy subsequent to service of a notice to quit.


author: ESPINOSA, J.

text:
    STATE OF CONNECTICUT v. FERDINAND R.

    (AC 31878)
    DiPentima, C. J., and Espinosa and Pellegrino, Js.
    Argued September 15
    officially released December 20, 2011

      Martin Zeldis, public defender, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Maureen Omousky, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

   Opinion

ESPINOSA, J.

The defendant, Ferdinand R., appeals from the trial court’s judgment of conviction, following a jury trial, of sexual assault in a spousal relationship in violation of General Statutes § 53a-70b (b). On appeal, the defendant claims that (1) the evidence at trial was insufficient to convict him and (2) the court erroneously admitted certain uncharged misconduct evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. After a few weeks of dating, the defendant married the victim on April 13, 2007. A justice of the peace performed the marriage ceremony in the defendant’s apartment in Stamford. At the time of the marriage, the victim worked as a live-in housekeeper in New York City. This required her to be in New York Monday through Friday, and occasionally on weekends. Typically, however, the victim spent weekends with the defendant at his apartment. At the end of her work week, the victim would travel by train from New York to Connecticut, and the defendant would pick her up at the train station. During the week, the two would talk to each other on the telephone almost every day. On July 15, 2007, the victim’s employment contract ended, and she began working for a new employer in New York City on July 16, 2007. She also moved in with the defendant.

Almost immediately after they married, the defendant began treating the victim differently. More specifically, he became more possessive and jealous of the victim and began indicating that he thought that she was being unfaithful. This attitude shift toward the victim manifested in several incidents over the next two months. First, on July 13, 2007, when the victim asked the defendant to take her to the train station, the defendant grabbed a knife, put it in her hand and forced her to hold it to his chest. The victim told the defendant that she would not hurt him, and the defendant eventually took her to the train station.

On July 19, 2007, a burst pipe in the New York train station delayed the victim’s return to Connecticut. When she finally arrived home late that night, the defendant refused to accept her explanation for returning so late. The defendant smashed a plate, picked up a knife and followed the victim into the living room, where he pushed her onto a table and cut her arm. When the victim accused him of cutting her and making her bleed, the defendant cut the palm of his own hand. The victim did not seek medical treatment or contact the police.

The next incident occurred on July 28, 2007. A family that the victim had met while working for her former employer invited her to have lunch with them. Upon hearing this from the victim, the defendant went into the kitchen, got a knife and put the knife against her neck. The victim attempted to explain who the family was and tried to invite the defendant to join them. The defendant refused and would not let the victim spend time with the family until they came to the apartment and met with him. When they arrived, the family invited the defendant to join them; the defendant agreed and went to lunch with them and the victim.

One additional episode occurred before the events that led to the defendant’s arrest. On August 22, 2007, the victim arrived at the apartment after work before the defendant. The victim called the defendant’s sister and asked her to talk to the defendant about his increasingly threatening behavior. The victim was fearful of the defendant because he had been making threats, telling her to “watch out.” The victim was still on the telephone with the sister when the defendant came home. When the victim asked the defendant to speak with his sister, he took off his belt and struck her with it two times. The victim pleaded with the defendant to stop, and she put the sister on speakerphone; the defendant relented when the sister threatened to call the police. The victim again did not contact the police regarding the incident.

The events that led to the defendant’s arrest began the morning of September 14, 2007. After the victim got out of the shower, the defendant followed her into the living room and accused her of having an affair with her former employer in New York. The defendant then picked up the victim, saying that they should have sex. The victim told the defendant that she did not want to have sex and indicated that she was too tired and needed to go to work. Despite her protests, the defendant carried her into the bedroom, put her on the bed and proceeded to have sex with her. During the intercourse, the victim cried and told the defendant that she did not want to have sex with him, but the defendant did not stop. Following intercourse, the victim got dressed, and the defendant drove her to the train station so that she could get to work.

During the day, the defendant called the victim to apologize, saying that he did not like what had happened. The victim remained upset by the incident, however, and halfway through the day she called the justice of the peace who had performed their marriage ceremony to ask where the nearest “domestic violence office” was. The justice of the peace met the victim at the train station and gave her directions to the nearest domestic violence crisis center. The staff at the crisis center told the victim that she had to go to the police, and the victim did so later that day. When she went to the police station, the victim told the police that her husband had started to beat her. The police tried to convince her to give a statement, but she refused and returned home in a taxi.

When the victim exited the taxi in front of the apartment, the defendant was waiting for her outside on the second floor veranda. He demanded that she come to him. Noticing that his face was red and that he seemed very upset, the victim refused and asked if she could go back to New York or sleep outside. The defendant repeated his demand that she come to him, and the victim turned and started to run away down the street. The defendant ran outside and chased her, catching up to her when she fell down and hurt her knee. The defendant then forcibly picked her up and began carrying her back to the apartment. The victim begged the defendant to let her go and yelled out for someone to call the police, saying that the defendant would beat and kill her. A neighbor who was walking home from a friend’s house saw what was happening and heard the victim’s cries for help; he went back to his friend’s house and called the police.

The police arrived shortly thereafter and found the victim and the defendant in the middle of the street. The officers separated the two, taking the defendant into custody and taking the victim back to the police station. At the station, the victim gave a sworn statement to the police that included details about the problems that she and the defendant had been having and a description of the events of that morning.

The state charged the defendant with failure to register as a sex offender in connection with a prior unrelated conviction and sexual assault in a spousal relationship. The defendant pleaded guilty to failure to register as a sex offender. The court denied the defendant’s motion for a judgment of acquittal during the jury trial on the spousal sexual assault charge, and the jury returned a verdict of guilty. The court rendered judgment of guilty in accordance with the defendant’s plea and the jury verdict, and sentenced the defendant to five years incarceration for failure to register as a sex offender and twenty years incarceration for sexual assault in a spousal relationship to be served consecutively to each other, for a total effective sentence of twenty-five years incarceration. The defendant filed the present appeal on January 4, 2011.

I

The defendant first claims that his conviction was improper because the, evidence was insufficient to convict him of sexual assault in a spousal relationship under § 53a-70b (b). He argues that this court should interpret the statute to require proof beyond a reasonable doubt that he (1) acted with the specific intent to commit the act of sexual assault and (2) used force greater than necessary to separate the victim’s legs or made an immediate threat of use of force. The defendant bases these arguments on the theory that “marriage is different” and urges us to consider § 53a-70b in light of its history and purposes, and the fundamental differences between the act of sex between strangers or acquaintances and the act of sex between spouses. If we read the statute this way, the defendant argues, the evidence at trial was not sufficient to support his conviction. We reject the defendant’s interpretation of § 53a-70b and conclude that the evidence at trial was sufficient to convict the defendant of sexual assault in a spousal relationship.

Questions of statutory interpretation are subject to plenary review by this court. See, e.g., State v. Boyd, 272 Conn. 72, 76, 861 A.2d 1155 (2004). When we are presented with the task of interpreting statutes, “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.” General Statutes § l-2z. Only if the statute is ambiguous on its face or application of the plain meaning of the text would yield an absurd or unworkable result do we consider extratextual evidence of the statute’s meaning. See General Statutes § 1-2z. When we interpret statutory text, “the legislature, in amending or enacting statutes, always [is] presumed to have created a harmonious and consistent body of law .... Thus, we are required to read statutes together when they [are] related to the same subject matter .... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.” (Citations omitted; internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 709, 998 A.2d 1 (2010).

Section 53a-70b (b) provides: “No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury.” Section 53a-70b (a) (2) defines “use of force” to mean “(A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.”

The plain language of the statute refutes the defendant’s assertions regarding its mens rea requirement and its meaning of “use of force . . . .” First, as to the defendant’s mens rea argument, there is no requirement in the text of the statute that, in order to be convicted, the defendant must have the specific intent to commit the act of sexual assault. Absent such language indicating the requisite mens rea, a statute should be read as requiring only that the defendant have a general intent to commit the act that constituted a violation of the statute. See State v. Fagan, 280 Conn. 69, 77, 905 A.2d 1101 (2006) (“[w]here a particular crime requires only a showing of general intent, the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts” [internal quotation marks omitted]), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). Here, because the statute does not describe any particular specific intent, it creates a crime of general intent. The crime of sexual assault in a spousal relationship does not require that the defendant intended to sexually assault his spouse; it requires only that the defendant intended to do the act that amounts to aviolation of § 53a-70b (b).

The plain text of the statute also refutes the defendant’s assertions regarding the meaning of “use of force” within the statute. Section 53a-70b (a) (2) (B) provides that “use of actual physical force or violence or superior physical strength against the victim” amounts to the “use of force” within the meaning of the statute. There is no qualifying language that says that the force must be greater than is necessary to separate the victim’s legs. In addition, when § 53a-70b (b) prohibits threats of the use of force, it does not require that the threats be made immediately before the prohibited act. The defendant’s concern that this leaves the statute without any principled boundaries regarding what threats will satisfy this requirement is without merit. Section 53a-70b (jb) provides that the threatened use of force must “reasonably” cause the victim to fear physical injury. The statute makes the question one of reasonableness, and it is for the finder of fact to decide whether a threat of use of force that does not immediately precede an act could reasonably have caused the victim to fear physical injury at the time of the act.

The conclusions reached by interpreting the plain text of the statute are supported by considering the statute within the broader statutory scheme of which it is a part and by comparing it to related statutes. Specifically, these conclusions are consistent with the way our courts have interpreted sexual assault in the first degree. General Statutes § 53a-70 (a) (1) provides that an individual commits sexual assault in the first degree if the individual “compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.” The operative language here is identical to that used in § 53a-70b (b). Our Supreme Court’s interpretation of § 53a-70 (a) (1) is consistent with our analysis of § 53a-70b. See State v. Petitpas, 299 Conn. 99, 105-106, 6 A.3d 1159 (2010) (defendant guilty of sexual assault in first degree even though force used was no greater than necessary to separate victim’s legs); State v. Kulmac, 230 Conn. 43, 75-76, 644 A.2d 887 (1994) (jury could infer implied threat of use of force when victim did not resist but knew from past experiences that resistance would be futile); State v. Smith, 210 Conn. 132, 141, 554 A.2d 713 (1989) (sexual assault in the first degree requires only general intent).

The defendant argues that the existence of a separate statute for sexual assault in a spousal relationship should be considered evidence of a legislative intent to treat it differently from sexual assault in the first degree. This argument is unavailing. The legislature passed a separate spousal sexual assault statute to carve out a narrow exception to the affirmative defense of marriage to other sexual assault crimes. General Statutes § 53a-65 (2) limits the definition of “sexual intercourse” to intercourse between “persons not married to each other,” except as applied to § 53a-70b. Our Supreme Court recognized that the legislature specifically amended § 53a-65 (2) to prevent application of its affirmative defense of marriage to acts charged under § 53a-70b. See State v. Suggs, 209 Conn. 733, 740-41, 553 A.2d 1110 (1989). There is nothing in the text of either statute or in the broader statutory scheme that suggests that we should read these identically worded statutes differently.

“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. . . . We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Rosario, 113 Conn. App. 79, 86, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009).

“In assessing the evidence at trial, it is the jury’s role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses. ... It is the right and duty of the jury to determine whether to accept or to reject the testimony of a witness . . . and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial. . . . Furthermore, as a court of appellate review, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citation omitted; internal quotation marks omitted.) State v. Hall, 120 Conn. App. 191, 198-99, 991 A.2d 598, cert. denied, 297 Conn. 903, 994 A.2d 1288 (2010). “[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 801, 877 A.2d 739 (2005).

Applying § 53a-70b (b) according to its plain meaning, the evidence in the present case was sufficient to convict the defendant of sexual assault in a spousal relationship. There was evidence before the jury that the defendant picked up the victim against her will, carried her into the bedroom and had sexual intercourse with her even though she repeatedly indicated that she did not want to engage in such activity. There also was evidence before the jury of a pattern of threatening behavior by the defendant leading up to the act, including instances of physical abuse, that the jury could have found reasonably led the victim to fear physical injury. On the basis of that evidence, the jury could have found beyond a reasonable doubt that the defendant was guilty of sexual assault in a spousal relationship under § 53a-70b (b).

II

The defendant next claims that the court erred by allowing the admission of certain uncharged misconduct evidence. Specifically, he takes issue with the admission of testimony by the victim relating to the various incidents leading up to the events for which the defendant was arrested. The substance of this testimony was described previously in this opinion. The defendant did not object to any of this testimony at trial, and he concedes that his claim on this point is therefore unpreserved. He nevertheless maintains that the admission of this evidence is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as constitutional error and under the plain error doctrine. We disagree.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. We consistently have held that purely evidentiary claims fail the second prong of Golding as they are not of constitutional magnitude. See State v. Wells, 111 Conn. App. 84, 90, 957 A.2d 557 (“[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right” [internal quotation marks omitted]), cert. denied, 289 Conn. 958, 961 A.2d 423 (2008); see also State v. Gardner, 297 Conn. 58, 65, 1 A.3d 1 (2010) (“the erroneous introduction of prior misconduct evidence involves a claim arising under state law and does not involve any constitutional right” [internal quotation marks omitted]). The defendant’s claim is purely evidentiary in nature, and it therefore fails under the second prong of Golding.

The defendant next asserts that his unpreserved claim should be reviewed under the plain error doctrine. See Practice Book § 60-5. We disagree. As our Supreme Court has explained: “The plain error doctrine is a rule of reversibility reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Roger B., 297 Conn. 607, 618, 999 A.2d 752 (2010).

The court did not commit plain error by admitting the victim’s testimony regarding the defendant’s uncharged misconduct. Section 4-5 (b) of the Connecticut Code of Evidence, laying out exceptions to the general prohibition on the admission of misconduct evidence in § 4-5 (a), provides: “Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.” In its instructions to the jury, the court indicated that the jury was to consider the victim’s uncharged misconduct testimony only for the issues of motive, the use of force or threatened use of force and corroboration. After reviewing the record, we conclude that the victim’s testimony was sufficiently germane to the purposes of motive, the use of force or threatened use of force and corroboration. The testimony was relevant, material and probative of the purposes for which it was offered. The defendant has failed to demonstrate that the admission of this relevant evidence, to which he did not object, constituted an obvious error that affected the integrity of the trial. Therefore, the defendant’s attempt to invoke the plain error doctrine in this case must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was convicted of sexual assault in the first degree in New York in October, 1990. He testified at trial that he had felony convictions, but the details of those convictions were not provided to the jury. He further testified that he only shared his background with the victim to a “certain extent,” and that he only told her “good things.” The jury reasonably could have found on the basis of this testimony that he concealed his criminal history from the victim.

       The only difference between the relevant parts of the statutes is the reference to a “third person” in § 53a-70 (a) (1). Where § 53a-70b (b) requires that the use of force or the threat of the use of force be directed at the spouse or cohabitor who is compelled to engage in sexual intercourse, § 53a-70 (a) (1) applies to acts where the use of force or the threat of the use of force is directed either at the individual who is compelled to engage in sexual intercourse or at a third person.

       The court’s instructions pertaining to the uncharged misconduct testimony stated: “The state has offered evidence of other acts of misconduct of the defendant. This is not being admitted to prove the bad character of the defendant or that the defendant — or defendant’s tendency to commit criminal acts. Such evidence is being admitted solely to show or establish: One, a motive for the commission of the crime alleged, i.e., jealousy; two, an element of the crime of spousal sexual assault, i.e., the use of force against the other spouse or threatened use of force, which reasonably causes the other spouse to fear physical injury; and three, to corroborate crucial prosecution testimony by completing the story.
      “The evidence I am referring to includes the [victim’s] testimony about the incidents on July 13, July 19 and July 28, in which she claims that the defendant either threatened or injured her with a knife. I’m also referring to the August 22 incident, in which the [victim] testified that the defendant beat her with a belt, and the September 14 incident, in which the [victim] claims that she was — that she injured her knee when the defendant chased her on a public street.
      “You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you believe it and further find that it logically, rationally and conclusively supports the issues for which it is being offered by the state. But only as it may bear on the issues of motive, the use or threatened use of force, and corroboration.
      “On the other hand, if you do not believe such evidence or even if you do, if you find that it does not logically, rationally and conclusively support the issues for which it is being offered by the state, namely, motive, the use or threatened use of force, and corroboration, then you may not consider that testimony for any purpose.
      “You may not consider evidence of other misconduct of the defendant for any purpose other than the ones I’ve just told you, because it may predispose your mind uncritically to believe that the defendant may be guilty of the offence here charged, merely because of the alleged other misconduct. For this reason, you may consider this evidence only on the issues of motive, the use or threatened use of force and corroboration, and for no other purpose.”