author: DALY, J.

text:
    STATE OF CONNECTICUT v. PETER GURA
    (AC 16369)
    Foti, Schaller and Daly, Js.

      Argued June 6
    officially released September 9, 1997

      Peter C. Harvey, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Joseph A. Corradino, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant appeals from the trial court’s judgment of conviction of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a), rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a.

The following facts are not disputed. On November 4, 1994, at approximately 10:47 p.m., the defendant was driving his motor vehicle south on Park Avenue, a public highway that divides the town of Fairfield and the city of Bridgeport. The east side of Park Avenue is in Bridgeport. At that time, Officer Donald Smith of the Fairfield police was parked on the southbound side of Park Avenue in the vicinity of the Fairfield Wheeler Golf Course. He heard the thumping of a flat tire and then observed the defendant’s vehicle proceeding south on Park Avenue in Fairfield. Smith pulled his cruiser into the southbound lane behind the defendant. Smith noted that the left rear tire of the defendant’s vehicle was flat and, while flashing his cruiser lights, clocked the defendant traveling thirty-five miles per hour for three-tenths of a mile. The defendant made a left turn, crossing the center line of Park Avenue into Bridgeport, and proceeded to a condominium parking lot where he stopped.

Both Smith and the defendant exited their vehicles. Smith observed that the defendant was unsteady on his feet and used the car for support while standing. Smith noted the strong odor of alcohol emanating from the defendant, whose speech was slurred. The defendant admitted to having had “a couple” of drinks at home. Smith then administered the horizontal gaze nystagmus, the walk and turn and the one leg stand field sobriety tests. He also observed an open container of malt liquor in the defendant’s car. Smith took the defendant to the Fairfield police headquarters where the defendant’s urine was tested, and he was charged with violating § 14-227a (a) for operation of a motor vehicle while under the influence of intoxicating liquor.

The defendant’s sole claim on appeal is that the trial court improperly denied his motion to suppress certain evidence obtained during his arrest, i.e., Smith’s observations and the physical evidence he seized.

“As a threshold matter, we must set forth the appropriate standards under which we review a trial court’s denial of a suppression motion. . . . First, where the court’s legal conclusions are challenged, we must decide if they are legally and logically correct, and if they are supported by the facts set forth in the memorandum of decision. . . . Second, if the factual basis of the court’s decision is challenged, we must determine whether the facts in the memorandum are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) State v. MacNeil, 28 Conn. App. 508, 512-13, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992).

The defendant claims that his arrest was illegal because Smith violated General Statutes § 54-lf by arresting the defendant outside the officer’s jurisdiction. The defendant argues that General Statutes § 14-98a, the statute pursuant to which Smith initially pursued the defendant, does not delineate an “offense” within the meaning of § 54-lf (a) and does not authorize a police officer to pursue a suspected offender outside of the officer’s jurisdiction to make a stop at the first safe opportunity. Section § 54-lf (c) authorizes police officers to continue beyond their jurisdictions the immediate pursuit of any offender who may be arrested under the provisions of that section. The defendant claims that the officer had probable cause to believe that he had committed only an infraction and, therefore, could not make an extraterritorial arrest.

Connecticut’s statutory scheme reflects an unambiguous policy aimed at ensuring that our highways are free of the carnage associated with drunk drivers. “It is an accepted rule of statutoiy construction that the promulgators of statutes or rules do not intend to proclaim . . . ineffective rules or legislation. It is also a rule of statutoiy construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results. . . . The context of § 54-lf requires [the conclusion] that the term ‘offense’ as used therein includes motor vehicle violations. Otherwise, the policy stated above could be frustrated by the fortuitous crossing of a town line.” (Citation omitted; internal quotation marks omitted.) State v. Harrison, 228 Conn. 758, 765, 638 A.2d 601 (1994).

In Lawlor v. Goldberg, 34 Conn. App. 189, 190-91, 640 A.2d 1016, cert. denied, 229 Conn. 922, 642 A.2d 1216 (1994), “[t]he trial court found that the [Wethersfield] officer had unlawfully stopped the plaintiff in Glastonbury for violations of [General Statutes] §§ 14-218a and 14-236 and, thus, had unlawfully arrested the plaintiff for operating a vehicle while under the influence of liquor in violation of § 14-227a (a). As a result, the trial court found the commissioner’s decision clearly erroneous.” We reversed the trial court’s decision, holding that “[t]his case is controlled by our Supreme Court’s recent decision in State v. Harrison, [supra, 228 Conn. 758]. In Harrison, our Supreme Court interpreted the term ‘offense’ as used in § 54-lf to include motor vehicle violations. Id., 765. Therefore, in accordance with Harrison, we conclude that the Wethersfield officer had lawfully pursued the plaintiff across town lines, had lawfully stopped the vehicle and had lawfully arrested the plaintiff. Thus, the trial court improperly determined that the commissioner’s decision was clearly erroneous.” Lawlor v. Goldberg, supra 191.

In Duncan v. Goldberg, 34 Conn. App. 201, 640 A.2d 1014, cert. denied, 229 Conn. 923, 642 A.2d 1213 (1994), a similar situation arose with an initial suspicion of operating at an excessive rate of speed in violation of General Statutes § 14-219 (c) and a resultant arrest for violating § 14-227a (a). “At the time that the [Farmington] police officer first observed the plaintiff, he noted that the plaintiff was operating his motor vehicle at what appeared to be an excessive rate of speed. Thus, at the time that the officer pursued the plaintiff into Avon, he suspected only that the defendant had committed a motor vehicle violation under ... § 14-219 (c). When the officer stopped the plaintiffs vehicle in Avon, the investigation that he conducted led him to believe that the plaintiff had been operating his vehicle while under the influence of liquor. The officer thereupon arrested the plaintiff and charged him with a violation of . . . § 14-227a (a). The trial court found that the officer had unlawfully stopped the plaintiff in Avon for a violation of § 14-219 (c) and, thus, had unlawfully arrested the plaintiff for operating a vehicle while under the influence of liquor in violation of § 14-227a (a). As a result, the trial court found the commissioner’s decision clearly erroneous ‘in view of the reliable, probative and substantial evidence on the whole record.’ ” Id., 202-204.

Once again, we turned to the decision in Harrison and concluded “that the Farmington officer had lawfully pursued the plaintiff across town lines, had lawfully stopped the vehicle and had lawfully arrested the plaintiff. Thus, the trial court improperly determined that the commissioner’s decision was clearly erroneous.” Id., 204.

As these cases suggest, the fact that the conduct observed by the arresting officers within their jurisdictions constituted only infractions is irrelevant to the validity of the subsequent arrests outside of their jurisdictions. See State v. Kowal, 31 Conn. App. 669, 672, 626 A.2d 822, cert. denied, 227 Conn. 923, 632 A.2d 702 (1993). The trial court, therefore, properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a provides in pertinent part: “Operation while under the influence of liquor or drug or while impaired by liquor, (a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight. ...”

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. . .

       General Statutes § 54-lf (a) provides in pertinent part: “Peace officers, as defined in subdivision (9) of section 53a-3, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . . .”

       General Statutes § 14-98a provides in pertinent part: “Tires to be in safe operating condition. No person shall operate a motor vehicle or trailer upon the public highways unless such motor vehicle or trailer is equipped with tires in safe operating condition in accordance with requirements approved by the Commissioner of Motor Vehicles. . . . Any law enforcement officer, at any time, upon reasonable cause to believe that the tires of a vehicle are unsafe . . . may require the operator of such vehicle to stop and submit the tires of such vehicle to an inspection. If the inspection discloses the vehicle to be in violation, the officer may issue a summons for such violation. Operation of a motor vehicle ... in violation of any provision of this section shall be an infraction.”

       General Statutes § 54-lf (c) provides in pertinent part: “Members of any local police department . . . when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. Such person may then be returned in the custody of such officer to the precinct in which the offense was committed.”


source: Caselaw Access Project

author: HETMAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MALEEK JONES
    (AC 16447)
    Foti, Landau and Heiman, Js.
    Argued May 29
    officially released September 9, 1997

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, senior assistant state’s attorney, for the appellee (state).
   Opinion

HETMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a and 53a-8, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant asserts that the trial court improperly (1) excluded a confession allegedly made by a participant in the crime to a third party, thereby denying the defendant his constitutional right to present a defense, (2) allowed the state to offer misconduct evidence that was more prejudicial than probative concerning the defendant’s drug dealing activities and a violent dispute with his girlfriend’s former boyfriend, (3) refused to give a missing witness charge to which the defendant was entitled, and (4) failed to make proper inquiry into a midtrial claim by the defendant that he was denied proper investigation and preparation of his case because of his indigency, thereby denying him his due process rights to effective assistance of counsel and a fair trial, and his right to equal protection of the law. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant, Maleek Jones, was a member of a group of about eight persons who sold narcotics in the Edgewood Avenue area of New Haven. The group was known by the name Red Line because of the color of the bags they used to sell narcotics. The group used a second floor apartment on the comer of Chapel and Beers Streets as its base of operation. The apartment was located a short distance from Saint Raphael’s Hospital.

The defendant was involved in a relationship with Teeba Henderson, who had previously had a long-term relationship with Steven Gary. Gary did not take the break up of their relationship well and continued to pursue Henderson. The defendant and Gary had argued and, subsequently, in April, 1992, had a fight in which Gary was knocked unconscious.

There was animosity between the Red Line group and individuals friendly with Gary who lived in the area of Carmel Street. The animosity between the two groups had escalated to the point that members of the Red Line group had gone to Gary’s neighborhood, and the groups exchanged gunfire.

On October 14, 1992, at approximately 1:30 a.m., the victim, Eddie Harp, a friend of Gary, was driving his station wagon in the vicinity of Saint Raphael’s Hospital. The victim pulled the vehicle into the emergency room parking lot and parked in an area reserved for security vehicles. Louis Yanac, a security officer, approached the victim, who informed Yanac that he was visiting Sheila McCray, a hospital employee, during her lunch break. Yanac observed McCray and the victim conversing in the waiting area of the emergency room. Yanac left the area to make rounds and, when he returned to the emergency room area, he noted that the victim, McCray and the victim’s station wagon were gone. The victim returned to the hospital and dropped off McCray at the main entrance. At about 2:10 a.m., as the victim left the hospital driveway, shots were fired, and the vehicle rolled into a parking lot across from the hospital’s main entrance.

When the police arrived at the scene, they found the victim’s car- running with the victim unconscious in the driver’s seat. The victim was transported by ambulance to the hospital, where it was found that he had suffered three gunshot wounds, one of which had penetrated his brain, resulting in his death about six hours after the shooting.

Several hours before the murder, the defendant was in the apartment at the comer of Chapel and Beers Streets with Tyrone Spears, Gene John, who was known as Pepper, and two individuals from New York. The defendant and Pepper left the apartment and returned about two hours later. The defendant was excited and said that “the kid from Carmel Street is outside.” He and Pepper immediately ran outside armed with .357 revolvers. Spears obtained a .357 revolver that was concealed in the ceiling of a closet in the common hallway of the building and joined the defendant and Pepper outside.

As Spears exited the apartment building, Pepper and the defendant were near the driveway leading to the main entrance of the hospital. When the victim’s vehicle pulled out of the driveway, the defendant, Pepper and Spears began shooting at the vehicle. The defendant and Pepper were about nine feet from the driver’s side of the vehicle when they opened fire. They continued to fire at the vehicle as the car rolled slowly into the parking lot opposite the main entrance. After the shooting, the three individuals ran back to the Red Line apartment.

I

The defendant asserts that the trial court improperly excluded “Lee Bember’s testimony of a third party confession that he shot the victim, thereby denying the defendant his constitutional right to present a defense, and this exclusion also constituted evidentiary error and an abuse of discretion under the circumstances of this case.” At oral argument, the defendant conceded that he had not raised with the trial court a claim that the statement was admissible under the residual or catch-all exception to the hearsay rule, and he abandoned that claim. We must resolve the constitutional claim and the claim that the statement was admissible as a third party declaration against penal interest. We find neither claim meritorious.

Certain additional facts and procedural history are necessary to our resolution of this issue. The defendant sought to offer the testimony of Bember, claiming that his testimony would raise a claim of a declaration against penal interest by reason of a statement Pepper allegedly made to Bember. In the absence of the jury, Bember testified that after the shooting, he and Pepper were “at a pay phone at Orchard and Edgewood Avenues. Two girls approached me, two girls I never seen before and told me ‘Oh, you Red Line mother fuckers killed my brother’ and boom, Pepper’s like let’s leave, let’s leave, let’s go get strapped, meaning, let’s go get our guns, which we did, when we got in my house [Pepper] told me, ‘Yo, um, last night me and Ty caught a body,’ meaning that we killed this dude last night.” He further testified, in the absence of the jury, that that conversation took place the day after the shooting and that, in his conversation with Pepper, the defendant’s name was not mentioned.

The state called as a witness Thomas Trocchio, a New Haven police officer, who testified in the absence of the jury that he had talked with Bember at approximately 9 p.m. on October 14,1992, about nineteen hours after the shooting. He testified that Bember told him that he and Pepper were approached by two black females, one of whom he knew as Monique, and the other whom he knew as Theresa Garrett. Trocchio also testified that Bember told him that Garrett had said that Spears had shot the victim. Trocchio also stated that Bember told him that when he and Pepper returned to Bember’s home, Pepper told Bember that Spears was responsible for the shooting death of the victim. Trocchio said that Bember told him that Pepper had told him, “Your boy Ty [Spears] shot that dude last night.” The officer also asserted that Bember did not tell him that Pepper had implicated himself as having been aparticipant in the murder. After hearing the offers of proof as to the admissibility of the statement allegedly made by Pepper to Bember, the trial court excluded the testimony because it found that the evidence was not trustworthy.

The defendant first asserts that the trial court’s exclusion of the evidence of the statement allegedly made by Pepper to Bember implicates the defendant’s due process right to present a complete defense. We are not persuaded that the defendant’s constitutional rights were compromised in any way by the exclusion of this evidence.

We first note, as we have in a number of other opinions, that “[r]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” (Internal quotation marks omitted.) State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Moreover, our Supreme Court has clearly stated that the right to present a defense does not include the right to offer evidence that is incompetent, irrelevant or otherwise inadmissible. See State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992). “Every evidentiary ruling that denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. [Here] the defendant has put a constitutional tag on a nonconstitutional claim.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). “Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). “[I]n the exercise of his sixth amendment right to compulsory process the accused, as required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” (Internal quotation marks omitted.) State v. Stange, 212 Conn. 612, 625, 563 A.2d 681 (1989).

“The right to present a defense is not . . . absolute. Rather, the Supreme Court has never questioned the power of the states to exclude evidence that is repetitive . . . only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues. Delaware v. Van Arsdall, 475 U.S. 673, 679, [106 S. Ct. 1431, 89 L. Ed. 2d 674] (1986). Crane v. Kentucky, [476 U.S. 683, 689-90, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)]. Whether a trial court’s erroneous restriction of a defendant’s or defense witness’s testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a case by case basis. State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988).” (Internal quotation marks omitted.) State v. Fernandez, 27 Conn. App. 73, 78-79, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). On the basis of our review of the record, we conclude that the trial court did not deprive the defendant of his due process right to present a defense by excluding evidence that it had determined to be untrustworthy.

We turn next to the defendant’s parallel claim that the trial court improperly excluded an alleged third party declaration against penal interest, when such statement was admissible as an exception to the hearsay rule. See State v. Bryant, 202 Conn. 676, 692-93, 523 A.2d 451 (1987). We are unpersuaded.

Here, the trial court concluded that the proffered testimony was not trustworthy, and on that basis excluded the evidence. The trial court is vested with discretion to make the determination of whether a third party declaration against penal interest is trustworthy. See State v. Sanchez, 200 Conn. 721, 725, 513 A.2d 653 (1986). In determining whether such declarations against penal interest are trustworthy, our Supreme Court has set down four criteria to be taken into account by the trial court, no single factor of which is conclusive. See id., 724-25. The four factors to be taken into account by the trial court have been stated as follows: “(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; [and] (4) the availability of the declarant as a witness.” (Internal quotation marks omitted.) Id. An examination of the transcripts reveals that there was no dispute that at the time of the trial Pepper, the alleged declarant, was dead. Thus, we need focus only on whether, in assessing the three remaining criteria, the trial court abused its discretion in determining that the statement was not trustworthy.

The evidence before the trial court reveals that, about nineteen hours after the victim’s murder, Bember told Trocchio in an interview that Pepper had told him that Spears had shot “that dude [Harp] last night.” Trocchio testified that at no time did Bember tell him that Pepper had implicated himself in the murder. In his testimony before the trial court, Bember testified that Pepper had admitted that he had been involved with Spears in the victim’s murder. Thus, on the basis of the testimony before it, the trial court had substantial evidence that the original statement given by Bember to the police as to what Pepper had told him did not rise to the level of a statement against Pepper’s penal interests. Further, nothing in the record would support a finding that Bember and Pepper enjoyed a close and confidential relationship or that Bember was a person in whom Pepper would naturally confide. See State v. Rivera, 221 Conn. 58, 70, 602 A.2d 571 (1992).

Finally, the record is devoid of corroboration that Pepper actually implicated himself to Bember. “The corroboration requirement for the admission of a third party statement against penal interest is significant and goes beyond minimal corroboration. Third party statements exculpating an accused are suspect and the requirement of corroboration, to effectuate its purpose of circumventing fabrication, must be construed as requiring corroborating circumstances that clearly indicate the trustworthiness of the proffered statement.” State v. Rosado, 218 Conn. 239, 249, 588 A.2d 1066 (1991). Here, rather than corroboration of the alleged confession by Pepper, there is a direct contradiction by Trocchio, reporting that Bember had told him that Pepper had implicated only Spears.

Moreover, an examination of the record indicates that the testimony of Bember would have been cumulative, even if admitted. Ernestine Bember was permitted to testily before the jury that sometime between Thanksgiving and Christmas, 1992, Pepper had told her that he and Spears had set out to rob the victim. In the course of the robbery, Spears panicked because he thought that the victim was reaching for a gun and, in reaction to Spears’ warning, Pepper fired.

Moreover, Lee Bember also proposed to testify that Pepper never mentioned the defendant’s name while talking about the victim’s murder. We note that even if he did not mention the defendant’s name or involvement in the murder of the victim in his conversation with Lee Bember, this is not exculpatory of the defendant.

Because we conclude that the trial court acted correctly in excluding the proffered evidence, we do not reach the issue raised by the defendant as to whether existing law should be revisited as to the burden of proof to establish harmlessness in the face of a nonconstitutional evidentiary error. Even if we were to reach that issue, we are bound by the decisional law of our Supreme Court; see Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996); State v. Napoleon, 12 Conn. App. 274, 282, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987); that places the burden on the defendant to establish harmfulness of an improper evidentiary ruling nonconstitutional in nature. See State v. Cavell, 235 Conn. 711, 721-22, 670 A.2d 261 (1996).

Considering all of the circumstances of this case, we conclude that the trial court did not abuse its discretion in determining that the alleged statement sought to be introduced as a statement against penal interest was not trustworthy, and that neither the defendant’s right to present a defense nor his right to expose admissible evidence were abridged by the trial court’s proper action.

II

The defendant next asserts that the trial court improperly permitted the state, over his objection, to elicit testimony concerning his prior acts of misconduct that was more prejudicial than probative. Specifically, the defendant claims that the state should not have been permitted to offer evidence as to the defendant’s drug dealing and prior misconduct toward Gary and his friends. We are unpersuaded.

Certain additional facts are necessary to an understanding of our resolution of this claim. During the course of the trial, the state offered Spears as a witness. Spears testified, over the defendant’s objection, that he and the defendant were engaged in the sale of cocaine in the Edgewood Avenue section of New Haven as members of the eight person Red Line group, and that the defendant was above him in the chain of command. Spears also testified that the group used an apartment near Saint Raphael’s Hospital for their narcotics dealings. In addition, Spears testified that the group stored weapons in the ceiling of a closet in a common area of the building so that the weapons would not be found if the police raided the apartment.

The trial court, after overruling an objection, immediately gave the jury a limiting instruction concerning the use of the evidence. The defendant’s girlfriend, Henderson, testified that before she became involved with the defendant she had had a long term relationship with Gary, a friend of the victim. She further testified that Gary continued to pursue her while she was involved with the defendant and that the two men had argued and fought, with the defendant once knocking out Gary. The state, in an offer of proof in the absence of the jury, claimed that this evidence was admissible to show motive.

The state subsequently offered the testimony of Spears, who testified that there was animosity between the members of the Red Line group and persons from the Carmel Street area because of the former relationship between Henderson and Gary. He further testified that members of both groups entered each others’ neighborhoods and shot at each other.

Spears also testified that on the night of the victim’s murder, the defendant was excited and stated that “the kid from Carmel Street is outside.” At that point, Spears, Pepper and the defendant, all armed with guns, ran outside and fired at the victim as he attempted to exit the hospital parking lot.

The law in Connecticut regarding the admission of evidence of prior misconduct is well established. “As a general proposition, evidence of guilt of other crimes, because of its prejudicial nature, is inadmissible to prove that a defendant is guilty of the crimes with which he is charged. . . . Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity, to name some exceptions to the rule. . . . The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency.” (Citations omitted; internal quotation marks omitted.) State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982). “ ‘Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). Thus, we afford every reasonable presumption in favor of the ruling of the trial court. See id.

We first examine the evidence relating to the drug dealing activities of the defendant with Spears and Pepper. We note that the defendant was charged, in addition to other charges, with the crime of conspiracy to commit murder, and it was incumbent on the state to establish a connection between the defendant and his alleged coconspirators. The three were more than mere acquaintances and were engaged together in illegal activities.

We have consistently permitted the introduction of evidence of acts of prior misconduct in order to establish a relationship between alleged coconspirators where one of the charges against the defendant is a conspiracy charge. See, e.g., State v. Jones, 44 Conn. App. 338, 345-46, 689 A.2d 517, cert. denied, 240 Conn. 929, 693 A.2d 301 (1997) (evidence of drug dealing permitted to show relationship among alleged coconspirators where defendant charged with conspiracy to commit murder); State v. Harris, 43 Conn. App. 830, 836-37, 687 A.2d 544 (1996) (evidence of existence of drug operation permitted to show relationship among various individuals where charge is conspiracy to commit murder); see also State v. Brown, 199 Conn. 47, 54-58, 505 A.2d 1225 (1986) (evidence of uncharged misconduct of defendant relevant to show nature of relationship with another party involved with defendant in commission of robbery).

Moreover, at the time that the evidence concerning the defendant’s involvement in the sale of drugs was admitted into evidence, the trial court immediately gave a limiting instruction, thereby reducing any prejudicial impact of the prior misconduct evidence. See State v. Brown, supra, 199 Conn. 58.

Making every reasonable presumption in favor of the trial court’s ruling, we cannot conclude, under the circumstances of this case, that the trial court abused its discretion by admitting the challenged evidence of the defendant’s involvement in drug trafficking with Spears and Pepper.

We next turn our attention to the defendant’s assertion that evidence of the animosity between the defendant and Gary was inadmissible. Specifically, the defendant asserts that the trial court improperly admitted evidence that the defendant had knocked out Gary because the prejudicial impact of such evidence outweighed its probative value. We disagree.

We have previously set forth the standard by which we review claims of this nature. Here, the evidence objected to provided a link in the chain of evidence showing the existence and degree of animosity between the rival groups. Thus, the evidence could be used by the jury as evidence of motive on the part of the defendant. Evidence of motive is one of the exceptions to the rule that excludes evidence of prior acts of misconduct. See State v. Falby, supra, 187 Conn. 23.

Making every reasonable presumption in favor of the trial court’s ruling, we cannot conclude, under the circumstances of this case, that the trial court abused its discretion in allowing into evidence the contested testimony.

Ill

The defendant next asserts that the trial court improperly refused to give the jury an adverse inference charge regarding two missing witnesses; see Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); where the state failed to call as witnesses both McCray and James Bailey. We are unpersuaded.

Certain additional facts are necessary to an understanding of our resolution of this issue. Testimony was introduced that showed that prior to his murder, the victim had been in the company of McCray at the hospital during her lunch break. The state did not call McCray as a witness and the defendant requested a missing witness charge. The defendant did not offer any evidence to establish that McCray was available at the time of trial. Rather, he offered evidence to show only that at the time of the murder McCray was employed at the hospital. The murder occurred on October 14, 1992, and the trial took place in March, 1995.

Bailey had been interviewed by the police concerning his observations at the scene of the murder and gave two statements implicating both the defendant and Spears as having been involved in shooting at the victim. The police used Bailey’s statements in obtaining arrest warrants. Bailey told the police that the defendant and Spears fired four or five shots each from semiautomatic handguns at the victim’s station wagon. Outside the presence of the jury, the state conceded that Bailey was incarcerated at the Carl Robinson Correctional Institution and was available as a witness. Nothing was presented to the jury regarding Bailey’s availability.

The defendant filed a proper request with the trial court seeking a charge to the jury as to McCray and Bailey as missing witnesses pursuant to Secondino v. New Haven Gas Co., supra, 147 Conn. 672. The trial court did not charge as requested and the defendant duly excepted.

“The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. . . . An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is available and whether, under the facts of this case, the witness is one whom the state would naturally be expected to produce.” (Citations omitted; internal quotation marks omitted.) State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra, 147 Conn. 675-76.

“To take advantage of this rule permitting an adverse inference, the party claiming the benefit must show that he is entitled to it.” (Internal quotation marks omitted.) State v. Rosa, 170 Conn. 417, 431, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976). “That is, the party claiming the benefit of the ruling must show that the witness is available and that the witness is one whom the party would naturally produce.” (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 771, 443 A.2d 1274 (1982).

As the party to be benefited by the negative inference, the burden rested on the defendant to establish that the state was able to procure the presence of McCray in court. See State v. Wood, supra, 208 Conn. 140. The defendant failed to offer any evidence to establish that McCray was available as a witness at the time of trial. The fact that McCray had been employed at Saint Raphael’s Hospital at the time of the murder, more than two years before trial, does not constitute evidence of availability as a witness at the time of trial. The defendant, therefore, was not entitled to a missing witness instruction as to McCray. See id.

We turn next to our resolution of the defendant’s claim concerning Bailey. The state first argues that the defendant was not entitled to a missing witness charge because it failed to place before the jury evidence that Bailey was available as a witness. The state posits that even the state’s concession that Bailey was incarcerated at a Connecticut correctional facility was insufficient because it is for the jury to determine whether the witness was available and no evidence was before the jury as to Bailey’s whereabouts. Second, the state asserts that the defendant failed to demonstrate that Bailey was a witness whom the state would naturally produce. Because we agree with the state that the defendant failed to establish that Bailey was a witness whom the state would naturally produce, we do not address the claim respecting his availability.

“There is significant authority for the well settled proposition that the government is not required to call every witness who might be able to give some evidence about the crime.” (Internal quotation marks omitted.) State v. Kish, supra, 186 Conn. 772. Thus, it was the defendant’s burden, as the party seeking the benefit of the adverse inference, to establish that Bailey was a witness who would naturally be produced by the state. See State v. Adams, 14 Conn. App. 119, 128-29, 539 A.2d 1022 (1988).

As we have previously observed, a witness who would naturally be produced is one known to the party, and who, because of the relationship of the witness with the party or the issues, or both, reasonably could be expected to have peculiar' or superior information or knowledge material to the case, that, if it were favorable to that party, the party would produce. See State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989). On the other hand, it is also abundantly clear that “[a] prospective witness whose testimony would be comparatively unimportant, cumulative or inferior to what has been offered, should be dispensed with on the grounds of expense and inconvenience, without the need for an adverse inference charge.” Id.

Here, the state presented the testimony of Spears, a coconspirator, who was an active participant in the murder, and who testified that the defendant was one of three persons who acted together to cause the death of the victim. Additionally, there was physical evidence linking the defendant to the commission of the crimes charged. Moreover, there was evidence of a possible motive for the crimes, as well as evidence to establish that the perpetrators were engaged together in criminal activities that established that they were more than strangers to one another or simply casual acquaintances. In short, the evidence produced, without Bailey’s testimony, established the existence of each of the elements of the crimes charged. See State v. Adams, supra, 14 Conn. App. 129. Given that Spears’ testimony was by a participant in the crime, the testimony by Bailey placing the defendant at the scene of the murder as an active participant would have been inferior to and merely cumulative of the testimony of Spears.

We also note that, at the time of trial, the state conceded that Bailey was incarcerated at a correctional facility. It is unlikely that the state would naturally produce as a witness an incarcerated felon when other evidence of a similar nature is available. See State v. Stevenson, 43 Conn. App. 680, 696, 686 A.2d 500, cert. denied, 240 Conn. 920, 692 A.2d 817 (1996).

“Whether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier. . . . This court cannot reverse or modify the trial court’s determination[s] of fact unless they are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) State v. Owen, 40 Conn. App. 132, 138, 669 A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114, cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996).

After a careful consideration of the record, we conclude that the trial court acted properly in declining to afford the defendant a missing witness charge concerning both McCray and Bailey.

IV

Finally, the defendant asserts that the trial court acted improperly when it failed to inquire into a claim made by the defendant during trial that he had been “denied adequate investigation and preparation of [his] case as a result of his indigence, thereby denying the defendant his due process rights to effective representation, assistance of counsel, and a fair opportunity to defend against the state’s accusations, and his right to equal protection of the laws.” Because this claim raises an ineffective assistance of counsel claim, the proper forum in which to raise this issue is by habeas corpus.

Certain additional facts are necessary for an understanding of our determination that this matter must be resolved by habeas corpus. The defendant was represented at his arraignment by a public defender, and, subsequently, a special public defender was appointed who represented the defendant from November 17, 1992, until the trial ended. Near the end of the defendant’s case, after he had called a number of witnesses to support his claim of alibi and third party culpability and after counsel had advised the court that he and the defendant were discussing whether the defendant would testify in his own behalf, the defendant, through counsel, asked permission to address the court. The trial court permitted the defendant to address the court. The defendant explained to the court that because of his indigency, he had been denied proper investigation and preparation of his case, and thus his right to a fair trial had been violated.

We have long held that the proper forum in which to address claims of ineffective representation of counsel is in the habeas forum or in a petition for a new trial, rather than on direct appeal. See State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). We have also consistently recognized that the constitutional right to adequate assistance of counsel subsumes a competent pretrial investigation. See State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976). We conclude, thus, that the defendant’s claim is one of ineffective assistance of counsel since it raises an issue of the competency of the pretrial investigation. In accordance with our prior precedent, we further conclude that this issue must first be resolved in a habeas corpus proceeding. See State v. Hamilton, 228 Conn. 234, 245, 636 A. 2d 760 (1994); see also State v. Pardo, 199 Conn. 354, 358, 507 A.2d 461 (1986); State v. Leecan, supra, 541-42.

As our Supreme Court has stated, an ineffective assistance claim “should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testily.” State v. Leecan, supra, 198 Conn. 542.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a provides in pertinent part: “(a) 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 . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       See footnote 2.

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . .

       The trial court instructed the jury as follows: “You’re here today for the trial of this case to determine whether or not [the defendant] committed either or any of the charges or offenses that are outlined in the information. You’re not here to judge him whether or not he was involved in anything else on any other occasion than October 14, 1992. He’s here on trial for a charge of murder, conspiracy to commit murder, and carrying a pistol without a permit, and any other evidence to illegal operations has no bearing on your determination of the charges as outlined in the information.”

       See footnote 7.

       Our review of the record discloses that the defendant did not raise a specific prior misconduct objection to any part of Spears’ testimony as to the animosity between the two groups other than his objection to the testimony that the defendant had knocked out Gary. The defendant made no specific objection on prior misconduct grounds to the testimony of Spears concerning the shooting at residents of the Carmel Street area by the defendant and other members of the Red Line group. “Appellate review of evidentiary rulings is limited to the specific legal ground raised by the objection of counsel at trial. ... A specific objection is necessary to alert the trial court to purported error while there is time to correct it without ordering a retrial and to permit the opposing party to argue against the objection at trial.” (Citations omitted.) State v. Goodrum, 39 Conn. App. 526, 543, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995). We, therefore, decline to review that portion of the claim now raised for the first time on appeal. We also note that, even if we were to afford review of that portion of the claim that raises for the first time on appeal the shooting incidents between the defendant and members of the Red Line group and the residents of the Carmel Street area, it would not avail the defendant. Evidence of that nature clearly was admissible as establishing motive. See State v. Falby, supra, 187 Conn. 23.

       In State v. Adams, supra, 14 Conn. App. 127-29, the missing witness was claimed to be an eyewitness to the crime. We held in that case that the witnesses that were produced at trial were sufficient to establish each element of the offenses charged and that given the testimony produced at trial, the defendant had failed to establish why the witness was one that the state would naturally produce. Id., 129.

       The following occurred when the defendant was permitted to address the trial courl:
      “The Defendant: The first thing I wanted to say was about the ballistics test. I just got those papers in March of 1995. I never seen the ballistics findings about—
      “The Court: What’s this?
      “The Defendant: The ballistic findings—
      “The Court: See, I don’t know anything about any of the evidence in this case, Mr. Jones.
      “The Defendant: Well, I’m saying that my lawyer said that he filed for a motion for discovery in December, 1992. I never got a ballistics test that was taken in October until just now, March of 1995. Now, the police, they used this guy saying he seen us commit a crime or whatever, and he was the person that they got probable cause to get an arrest warrant, or whatever, and now they not using him in the trial, and I don’t feel like that’s right, you know. And then he’s saying that we have to call him as a witness. He was a state witness, not a defense witness. Also, this girl, Sheila McCray, was supposed to have been with the victim at the time that this crime took place and she saying she seen exactly what happened and the state didn’t call her neither. I don’t feel like that’s fair.
      “The Court: Well, Mr. Jones, you’ve been represented by counsel here, competent counsel, and we’ve been going through this trial. And if you have any problems with what has been produced or what hasn’t been produced, you’re going to have time to reflect on that, and consider it. And then you can take any appropriate action that suits your purpose. But we’re not going to get into that now.
      “The Defendant: So that’s going to be after my case is heard to the jury, or whatever.
      “[Defendant’s Counsel]: May I consult with my client?
      “The Court: Sure.”
      Consultation with client.
      “The Defendant: Also, I was suppose to be represented by a private investigator who, you know, in the course of my trial, he stopped representing me because he’s saying that my family couldn’t pay him now. From my understanding, I didn’t feel like we were supposed to have to pay him because I have a special public defender. You know what I’m saying. That’s saying that I couldn’t pay for a lawyer. Now, this man stopped representing me a year and a half ago, and I had made—I had wrote my lawyer many letters asking him could he get ballistics findings and stuff like that. For me now, I went through this whole course of the trial without nobody investigating my case. You know. So, I feel like I’m not being—you know what I’m saying. I’m not having a fair trial here. I don’t feel that that’s right. That I had to go through my whole trial without nobody investigating or nothing. You know. That’s all I wanted to say.
      “The Court: All right.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. DARRYL CUMMINGS
    (AC 14275)
    O’Connell, C. J., and Foti and Heiman, Js.

      Argued April 22
    officially released September 9, 1997

      James K. Filan, Jr., with whom, on the brief, was Craig S. Meuser, law student intern, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Joseph J. Harry, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of stalking in the first degree in violation of General Statutes § 53a-181c (a) (2), stalking in the second degree in violation of General Statutes § 53a-181d, two counts of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3), disorderly conduct in violation of General Statutes § 53a-182 (a) (2), and criminal violation of a protective order in violation of General Statutes § 53a-110b. On appeal, the defendant claims that three statutes under which he was charged and convicted, §§ 53a-181d, 53a-182 (a) (2) and 53a-183 (a) (3), are facially vague and, therefore, unconstitutional under both the state and federal constitutions. He also claims that the trial court improperly (1) admitted evidence of his prior criminal convictions, (2) failed to deliver limiting instructions concerning that evidence, (3) instructed on the essential elements of the stalking charges, and (4) imposed a sentence without a court-ordered psychiatric evaluation. The defendant also claims that the evidence presented at trial was insufficient to support his conviction for stalking in the first and second degree, harassment in the second degree and criminal violation of a protective order. We reverse the judgment in part and affirm it in part.

The jury reasonably could have found the following facts. The defendant and the victim were involved in a romantic relationship for two years. The victim ended the relationship on October 2,1992, and left for a vacation the next day. On October 16, 1992, upon returning home from her trip, the victim went to dinner with the defendant. She told the defendant that that meeting was not a date and that their romantic relationship was over. The defendant, nevertheless, pressed for reconciliation.

Subsequently, the defendant began to telephone the victim at her family home and at her workplace. He also called and visited her Mends and family to inquire about the victim and to plead with them to listen to his side of the story.

In November, 1992, the defendant confronted the victim when she got into her car as she left work. As she turned the key in the ignition, the defendant jumped into her car. He shoved a bank card in her face and told her to withdraw money from his account to reimburse her for a debt he owed her. The victim screamed and ordered the defendant out of her car and he left. The victim reported the incident to the Wilton police department, but did not have the defendant arrested.

On January 27, 1993, the defendant went to a restaurant where the victim and three Mends were having dinner. He remained at the restaurant until they left. Although he lived in the opposite direction from where the victim lived, the defendant followed them almost to the victim’s home.

On January 28, 1993, the defendant appeared at the gym where the victim was a member. As she left the gym, the defendant approached her, carrying a flower, and pleading with her to listen to him. The victim ignored him. The defendant grabbed her arm and did not permit her to get into her car. She ran back to the gym and found someone there to escort her to her car. When she left the gym the second time, she saw the defendant’s truck drive past her and out of the parking lot. On her way home, she noticed that his truck was one or two cars in front of her. To avoid further confrontation, the victim went to a girlfriend’s house. She was upset and related the incident to her friend. The defendant drove by her friend’s house and parked down the street. The friend drove the victim to the victim’s parents’ house. The victim later filed a complaint with the Trumbull police department, and the defendant was arrested.

The victim obtained a protective order against the defendant based on these incidents. The protective order prohibited the defendant from telephoning the victim or coming within 1000 feet of her. It further prevented the defendant from imposing any restraints on the person or liberty of the victim, and ordered that the defendant refrain from threatening, harassing, assaulting, molesting or sexually assaulting the victim and that he refrain from entering the family dwelling or the dwelling occupied by the victim.

In June, 1993, the victim and a girlfriend were at a bar. The defendant was there also and followed her around the bar, waving and staring at her. The victim eventually left the bar with her friend. The next day, the victim went to a park in Trumbull with her friend. The defendant drove into the park, turned around and drove out. The victim and her friend went to the park again the following day. The defendant again drove into the park, turned around and drove out.

Also in June, 1993, the victim went to a bar in Bridgeport. As she prepared to pay her bill and leave, she noticed the defendant leaving. A restaurant employee informed her that the defendant had paid her bill. The victim then went to another bar to meet some friends. The defendant also went there and approached the victim. He was crying and pleading with her to talk to him. The victim shouted an obscenity at him and left with a friend.

In July, 1993, the defendant telephoned the victim at work and explained that he was going to send her the money he owed her. She hung up as soon as she recognized his voice.

In August, 1993, the victim moved into an apartment with a friend. The two women began to receive a number of hang up telephone calls. On August 29, 1993, the defendant telephoned the victim at least twelve consecutive times. The victim again filed a complaint with the Trumbull police department. While a police officer was at the victim’s apartment, the defendant passed by in his truck. The defendant was arrested as a result of that incident.

The next incident occurred on October 16, 1993. The victim was a bridesmaid in a friend’s wedding. The defendant had not been invited. The victim left the wedding in a limousine and noticed the defendant’s truck a few cars behind her. He eventually passed the limousine and appeared at the reception, but left before the victim arrived.

On October 29, 1993, the victim and her roommate hosted a Halloween party. The defendant telephoned their apartment. The victim’s roommate answered and recognized the defendant’s voice. He stated that “this is [the victim’s] worst nightmare” before hanging up the telephone.

In March, 1994, the defendant again telephoned the victim at work. He claimed that he was going to pay her the money he owed her. The victim hung up, left work and filed a complaint with the Wilton police department.

I

The defendant claims that §§ 53a-181d, 53a-182 (a) (2) and 53a-183 (a) (3) are unconstitutionally vague. Because he did not preserve this claim at trial, he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“The doctrine [of vagueness] requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement.” State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994). Our Supreme Court based its analysis in Indrisano on the three standards set out by the United States Supreme Court for evaluating vagueness. “First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. ... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. . . .

“Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. . . . Therefore, a legislature [must] establish minimal guidelines to govern law enforcement. . . .

“Third, but related, where a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms.” (Citations omitted; internal quotation marks omitted.) Id., 802-803.

A

Section 53a-181d (a) provides: “A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.” The defendant claims that the statute is facially vague because the terms “repeatedly,” “follows,” and “lies in wait” are ambiguous and are not statutorily defined. We are unpersuaded.

The claim that the statute is unconstitutional on its face is foreclosed by our decision in State v. Marsala, 44 Conn. App. 84, 97, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). In Marsala, we adopted the Superior Court’s decision in State v. Culmo, 43 Conn. Sup. 46, 67, 642 A.2d 90 (1993), stating that “ ‘[o]n consideration of [§ 53a-181d] in its entirety, it cannot be said that a person of common understanding would fail to understand what conduct is prohibited. Section 53a-181d is relatively narrow in scope. It applies only to those who act with the specific intention of causing others to fear for their physical safety. The fear for one’s physical safety must be reasonable. The conduct must be undertaken wilfully, not mistakenly, and it must occur repeatedly. The statute on its face does not implicate speech or expression in any way; it criminalizes conduct only when undertaken with the requisite intent. The court concludes that any ambiguities in the statute’s language are not so significant as to render it void for vagueness.’ ” State v. Marsala, supra, 97.

The defendant acknowledges our language in Marsala, but claims that his argument is based on the second prong of the vagueness doctrine—the danger of an arbitrary and discriminatory application—and that neither Marsala nor Culmo sufficiently addresses this aspect of the doctrine.

In Culmo, however, the court addressed the statute under the second prong of the vagueness standard. “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, if it is does not clearly indicate what conduct is criminal and what is not.” State v. Culmo, supra, 43 Conn. Sup. 59. The Culmo court stated that “in order to obtain a conviction [under § 53a-181d], the state must prove all of the following elements beyond a reasonable doubt: (1) that the perpetrator acted with intent to cause another person to fear for his or her physical safety; (2) that the peipetrator acted wilfully; (3) that the perpetrator acted repeatedly; (4) that the peipetrator followed or lay in wait for the other person; and (5) that the perpetrator caused the other person to reasonably fear for his or her physical safety.” Id., 60. The court concluded that “[t]he jury must view the situation from the perspective of the defendant. . . . [H]owever . . . the defendant’s belief ultimately must be found to be reasonable. . . . There is no reason to conclude that the standard to be applied in the context of stalking victims would be significantly different from the subjective-objective standard used in the context of self-defense cases . . . .” (Citations omitted; internal quotation marks omitted.) Id., 65. The court effectively analyzed the language of the statute and determined that it provides sufficient guidelines to prevent arbitrary enforcement. Moreover, we implicitly rejected a claim that the statute violates the second prong of the vagueness standard set forth in Marsala by concluding that the statute was constitutional. We conclude, therefore, that § 53a-181d is not unconstitutionally vague.

B

Section 53a-182 (a) provides in relevant part that “[a] person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (2) by offensive or disorderly conduct, annoys or interferes with another person . . . .” The defendant claims, citing State v. Indrisano, supra, 228 Conn. 795, that the statute is unconstitutional on its face. We agree.

In Indrisano, our Supreme Court held that § 53a-182 (a) (2) was impermissibly vague on its face because the language of subdivision (2), “by offensive or disorderly conduct, annoys or interferes with another person,” failed to specify a standard of conduct. Id., 819. Specifically, the court determined that “[c]onduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, men of common intelligence must necessarily guess at its meaning. . . . Because the Supreme Court of the United States has held that the term annoying, when used to proscribe conduct, is unconstitutionally vague, we are bound as a matter of federal due process to conclude that the term annoy as used in § 53a-182 (a) (2) is similarly vague.” (Citation omitted; internal quotation marks omitted.) Id., 816. Furthermore, the court stated that the other component of subdivision (2), “ ‘offensive or disorderly conduct’ is equally facially vague .... Conduct that is ‘offensive’ to or would be considered ‘disorderly’ by some people would not be so considered by others.” Id., 816-17.

The court, however, interpreted the language “to provide constitutional content for the future.” (Emphasis added.) Id., 817. It found the language to mean “conduct that is grossly offensive, under contemporary community standards, to a person who actually overhears or sees it, disturbs or impedes the lawful activity of that person.” Id., 819. The court nevertheless concluded that the defendant “could not have anticipated the extent of [its] construction of the statutory language at the time of his prosecution” and reversed the conviction as to a violation of § 53a-182 (a) (2). Id.

The judicial gloss was placed on the statute in Indri-sano subsequent to the defendant’s conduct in this case, January 28, 1993. Prior to the decision in Indrisano, the term “annoy” had not been appropriately defined by our courts. The defendant claims that, therefore, he could not have had notice of what conduct the law prohibits.

In effect, by ruling that § 53a-182 (a) (2) is unconstitutionally vague on its face, our Supreme Court determined that the statute does not have an unmistakable core meaning of prohibited conduct. “A statute that is impermissibly vague in all its applications is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. . . . Such a provision simply has no core.” (Internal quotation marks omitted.) Id., 804. Any conviction pursuant to § 53a-182 (a) (2), where the conduct occurred prior to the judicial gloss, therefore, would be unconstitutional. The defendant’s conviction under § 53a-182 (a) (2) must be reversed.

C

Section 53a-183 (a) provides in relevant part that “[a] person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.” The defendant argues, citing State v. Indrisano, supra, 228 Conn. 795, that the statute is unconstitutionally vague because of the statutorily undefined term “annoy.” Essentially, the defendant makes the same claims regarding § 53a-183 (a) (3) that he did for § 53a-182 (a) (2). We do not agree.

The state claims that we cannot review the defendant’s claim that the statute is facially vague because the defendant did not identify the constitutionally guaranteed interest allegedly abridged and, as a result, the claim fails to satisfy the third prong of the Golding standard. We disagree. “To enable us to review a claim that a statute is facially vague, the record needs to reflect only the fact that the defendant was convicted under the statute in question. To enable us to review a claim that a statute is vague as applied, the record must further reflect the conduct that formed the basis of the defendant’s conviction.” State v. Indrisano, supra, 228 Conn. 800. On the basis of the record before us, we are able to review the statute on its face and as applied.

Section 53a-183 (a) (3) contains the term “annoy,” as does § 53a-182 (a) (2), which did not receive the judicial gloss of Indrisano until after the defendant engaged in the conduct at issue here. Both statutes have a mens rea requirement set out in subsection (a) of their respective provisions. While § 53a-182 (a) (2) used the word “interferes” as an alternative to “annoys,” § 53a-183 (a) (3) contains the word “alarm” as an alternate to the phrase “cause annoyance.” It is well established that “[i]f a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” State v. Indrisano, supra, 228 Conn. 809; see General Statutes § 1-1 (a). “Alarm” is defined as “to strike with fear: fill with anxiety as to threatening danger or harm . . . .” Webster’s Third New International Dictionary.

In light of our Supreme Court’s decision in Indrisano, our analysis does not end here. Unlike the disorderly conduct statute in Indrisano, judicial gloss has been applied to the language of § 53a-183 (a) (3). We have previously examined the statutory language of § 53a-183 (a) (3). See State v. Snyder, 40 Conn. App. 544, 672 A.2d 535, cert. denied, 237 Conn. 921, 676 A.2d 1375 (1996); State v. Lewtan, 5 Conn. App. 79, 497 A.2d 60 (1985); State v. Bellamy, 4 Conn. App. 520, 495 A.2d 724 (1985). Although we did not address the issue of vagueness in those cases, we have determined that the language, “in a manner likely to cause annoyance or alarm,” is not ambiguous. General Statutes § 53a-183 (a); see State v. Snyder, supra, 551. “Our adoption of this interpretive gloss provides a sufficient core of meaning to remedy any facial vagueness that might otherwise exist.” State v. Dyson, 238 Conn. 784, 799, 680 A.2d 1306 (1996). We therefore conclude that the statute is not unconstitutionally vague on its face.

The statute is also not unconstitutionally vague as applied to the defendant’s conduct. The defendant has not made a plausible argument that he acted in reliance on the belief that his conduct was lawful or that a person of ordinary intelligence would have a reason to know that he was engaging in prohibited conduct. See State v. Payne, 240 Conn. 766, 779, 695 A.2d 525 (1997). Moreover, the defendant had been convicted previously of violating the statute and has clearly been put on notice of the conduct proscribed by the statute. We therefore conclude that § 53a-183 (a) (3) is not unconstitutionally vague as applied to the defendant’s conduct.

II

The defendant claims that the trial court abused its discretion in permitting inquiry into his prior convictions for harassment. He claims that the state was able to delve into specific details concerning the defendant’s bad acts and thereby so prejudiced the defendant as to warrant a new trial. We disagree.

“The trial court is charged with the responsibility to exclude evidence where its prejudicial tendency outweighs its probative value.” State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986). We review this consideration to determine whether the trial court abused its discretion. Tuite v. Stop & Shop Cos., 45 Conn. App. 305, 310, 696 A.2d 363 (1997).

The state introduced the prior conviction evidence to cast doubt on the reliability of a witness for the defendant. The defendant introduced the testimony of Lorenzo Curcio, his friend and roommate, regarding the defendant’s character. Curcio testified that the defendant’s alleged conduct was “[absolutely out of character.” Upon conclusion of the direct examination, the state requested permission to introduce evidence of the defendant’s multiple convictions for harassment. The trial court allowed the evidence, determining that it was relevant to Curcio’s opinion of the defendant’s specific character traits. The state then introduced the evidence to impeach the Curcio’s testimony.

“There is a distinction between the prosecution’s use of specific acts in rebuttal to disprove the trait in question and the prosecution’s use of specific acts in the cross-examination of a character witness. When a character witness has given his opinion as to a particular trait, the state may cross-examine that witness concerning specific acts, not to prove the truth of such facts, but to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy.” (Internal quotation marks omitted.) State v. Turcio, 178 Conn. 116, 126, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980).

Furthermore, the state made only minimal reference to the convictions. The questions on cross-examination did not include details of the previous convictions beyond the dates of those convictions. In its closing argument, the state mentioned the convictions again, but requested the jury to consider the evidence for its effect on the victim’s state of mind and to cast doubt on Curcio’s reliability and veracity as a character witness. We conclude, therefore, that the record in the present case reveals no abuse of the discretion vested in the trial court.

Ill

The defendant next argues that the trial court’s failure to provide the jury with a limiting instruction regarding the evidence of the defendant’s prior convictions was improper. He seeks review pursuant to the plain error doctrine of Practice Book § 4061. This claim is without merit.

“The defendant’s counsel is ordinarily under an obligation to request such a limiting instruction.” State v. Johnson, 188 Conn. 515, 521, 450 A.2d 361 (1982). Yet, to vitiate the danger that the jury will misuse the evidence and infer improperly that the defendant committed the charged offense because he had committed other crimes in the past, the trial court is required, sua sponte if necessary, to instruct the jury as to the limited purpose for which such evidence is to be admitted and considered.

The trial court instructed the jury that the evidence of the defendant’s prior convictions was to be used for a limited purpose. At the time the evidence was introduced by the state, the court cautioned the jury that it was admitted only as to the victim’s state of mind concerning her fear. Furthermore, in its final instructions, the trial court reminded the jury that the evidence of the prior convictions could be evaluated for only a limited purpose. We conclude, therefore, that the trial court properly instructed the jury on the limited purposes of such testimony.

IV

The defendant also claims that the trial court improperly instructed the jury regarding the stalking charges. He claims that the correct standard for the jury to determine the reasonableness of the victim’s fear of harm is strictly an objective standard. We do not agree.

The standard to be applied in determining the reasonableness of the victim’s fear in the context of the crime of stalking is a subjective-objective one. See State v. Marsala, supra, 44 Conn. App. 95-96; State v. Culmo, supra, 43 Conn. Sup. 65. The trial court properly instructed the jury to apply a dual subjective-objective standard to determine the reasonableness of the victim’s fear of harm.

The defendant also claims that the trial court’s instruction was inadequate because it failed to define explicitly the term “occasion” for purposes of determining whether the defendant had satisfied the “repeated” element of the stalking charges.

In examining a challenge to a trial court’s instructions to a jury, we will look at the charge as a whole rather than consider particular language in isolation. See State v. Palmer, 206 Conn. 40, 46, 536 A.2d 936 (1988). “It is well established that individual jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Cupp v. Naughten, 441 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985).” State v. Palmer, supra, 46. Thus, we consider the defendant’s assertions that the trial court’s instructions were improper in light of the entire charge.

A jury charge must be considered from the standpoint of its effect on the jury in guiding it to a proper verdict. State v. Delgado, 13 Conn. App. 139, 145, 535 A.2d 371 (1987). The court’s instruction should give the jury a clear understanding of the issues presented, under the offenses charged and on the evidence presented. Id.; see also State v. Villafane, 45 Conn. App. 110, 115, 694 A.2d 802 (1997). Our review of the whole charge leads us to conclude that the trial court’s instruction was proper and that it was not reasonably possible that the jury was misled or that an injustice resulted by virtue of the charge. The trial court’s instructions did not violate the defendant’s due process rights.

V

The defendant next claims that the evidence was insufficient to support his conviction for certain of the crimes charged. We are unpersuaded.

“The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. . . . The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.” (Citations omitted.) State v. Wagner, 32 Conn. App. 417, 429-30, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).

A

The defendant asserts that one cannot be guilty of stalking in the first degree without having committed stalking in the second degree and that the evidence was insufficient for him to have been convicted of stalking in the second degree. He maintains that the evidence was insufficient to establish that he intended to cause the victim to fear for her physical safety, that he committed repeated acts of following or lying in wait or that the victim’s fear was reasonable.

We see no valid purpose in reiterating the evidence presented at trial and analyzing that evidence, along with all reasonable inferences the jury could have drawn from that evidence, to show that the evidence was not insufficient to sustain both convictions. Evidence is not insufficient merely because it is conflicting or inconsistent. State v. Marsala, supra, 44 Conn. App. 96. The jury is free to determine the credibility of witnesses and the weight to give evidence. Id. The jury, therefore, was free to reject the defendant’s testimony as incredible and to accept the testimony of the state’s witnesses, including that of the victim, as worthy of belief.

B

In claiming that the evidence was insufficient to sustain the conviction for harassment in the second degree as charged in count two of the information, the defendant claims that the information, charging that the harassing conduct occurred from October 2, 1992, through January 27, 1993, covered too broad a time period to support the conviction. He also alleges, in support of his claim that the evidence was insufficient, that he and the victim had “a somewhat continuing relationship during that time.”

The record does not disclose that the defendant sought to compel the state to be more specific as to the dates of the alleged offenses. The defendant does not claim on appeal, nor does he appear to have alleged at trial, that he was prejudiced by the manner in which he was charged. He neither claimed an alibi defense nor sought by way of an offer of proof to demonstrate that he was harmed by this now alleged “too broad” a time period as charged in the information.

Time is not usually an essential element of an offense. State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978). The state is not required to narrow the dates in the information more than the evidence available warrants, even when the defendant wants to assert an alibi defense. State v. Morales, 45 Conn. App. 116, 135, 694 A.2d 1356 (1997).

C

The defendant also asserts that the evidence was insufficient to sustain his conviction for criminal violation of a protective order because the only evidence that his vehicle was at the victim’s house on the night of August 29,1993, was that both his vehicle and the one the victim heard had “squeaky brakes. ” We do not agree.

In addition to what the victim heard, the state adduced evidence that she saw and identified the defendant’s truck, which was well known to her, driving past her apartment. A jury is entitled to draw reasonable inferences from the evidence presented. See State v. Adorno, 45 Conn. App. 187, 194-95, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997). The jury was free to find the victim’s testimony more credible than the defendant’s testimony in weighing the evidence presented.

VI

The defendant’s last claim is that his due process rights under article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution were violated because he was sentenced without a court-ordered psychiatric report. The defendant’s argument is that the trial court improperly imposed a sentence on him based on incomplete information, i.e., his psychiatric condition, thereby depriving him of his constitutional right to due process. We do not agree.

The facts relevant to this claim are as follows. After the jury verdict, the trial court ordered that the defendant be subjected to a psychiatric evaluation and that the results be appended to the presentence investigation report in order to provide additional guidance to the court for the purposes of sentencing. The evaluation was never prepared because the various state agencies contacted for that puipose could not perform the evaluation either because of budgetary limitations or because of lack of statutory authority to examine the defendant. The trial court thereafter sentenced the defendant to a total effective sentence of seven years and three months imprisonment, execution suspended after four years, followed by five years probation. The trial court also imposed special conditions of probation, which included, inter alia, that the defendant undergo psychiatric treatment and counseling at the discretion of the office of adult probation, attend and complete a family violence education program, and attend an anger management program. The defendant did not object to the trial court’s imposing the sentence in the absence of the psychiatric evaluation, did not seek a continuance so that the evaluation could be prepared, and did not take exception to the terms of the sentence imposed.

The defendant initiated no action seeking such an evaluation. He makes no claim that the sentence in any way exceeded the applicable statutory limitations, nor does he claim that there is a constitutional due process right to a presentence investigation report. While the defendant claims that that issue was properly preseived for appellate review, there is nothing in the record to support that position, other than that he did not agree to the sentence. The state argues that, because the defendant accepted the imposition of sentence without objection, he must be deemed to have waived any claim of improper sentencing.

We do not agree that the defendant waived any rights at sentencing. Moreover, the defendant does not claim either Golding review or plain error review. See Practice Book § 4061. Because he invokes no principle of entitlement, we decline to review the defendant’s claim.

The judgment is reversed only as to the conviction of disorderly conduct pursuant to § 53a-182 (a) (2) and the case is remanded with direction to render a judgment of not guilty on that charge; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant claims to have been deprived of a fair trial under article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution.

       The victim was familiar with the defendant’s truck, a blue Chevrolet Blazer. She heard the track’s squeaky brakes and recognized the vehicle as it approached.

       In raising his vagueness claim, the defendant relies on his rights to due process under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Although the defendant invokes the due process provision of the state constitution, he provides no separate analysis under the state constitution. See State v. Crafts, 226 Conn. 237, 243 n.3, 627 A.2d 877 (1993). Moreover, the state and federal due process provisions are coextensive and afford equivalent levels of protection. Langan v. Weeks, 37 Conn. App. 105, 118 n.14, 665 A.2d 771 (1995). We, therefore, decline to analyze the claim separately.

       Our Supreme Court established 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.” State v. Golding, supra, 213 Conn. 239-40.

       The defendant clearly did not make a first amendment claim and conceded during oral argument that no such rights were violated.

       “We have . . . previously stated that a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to [a defendant] that his conduct is proscribed.” (Internal quotation marks omitted.) State v. Dyson, 238 Conn. 784, 798, 680 A.2d 1306 (1996).

       It is a well settled rule of statutory construction that the meaning of a vague word may be ascertained by reference to the meaning of words associated with it in the same statute. State v. Szymkiewicz, 237 Conn. 613, 618, 678 A.2d 473 (1996).

       Curcio testified as follows on cross-examination by the prosecutor:
      “A. What I believe I said was (hat maybe suggestion of a violent nature would be out of his character. He’s not a violent type person to me though.
      “Q. Okay. Were you aware of the fact that [on] January 26, 1989, he was arrested and convicted of two counts of harassment?
      "A. No.
      “Q. Were you aware of February 27, 1989, when the defendant was convicted of three counts of harassment?
      “A. No.
      “Q. Were you aware of the fact [that on] March 25, 1989, the defendant was convicted of two counts of harassment?
      “A. No.
      “Q. Were you aware of the fact that on July 28, 1989, the defendant was convicted of two counts of harassment?
      “A. No.
      “Q. Again on July 28, 1989, [that] he was convicted of another count of harassment?
      “A. No.
      “Q. Were you aware of the fact that after these convictions the defendant contacted the same victim again? . . .
      “A. No.
      “Q. Based on this new information I just read to you, a total of eleven counts of harassment, contacted the victim after the convictions, can you now state to this jury that it’s still out of character?
      “A. Yes. From my experience with [the defendant] that would still be out of character. From what I know from him, from what I’ve observed, I’m very surprised to hear that, as a matter of fact.”

       The prosecutor mentioned the previous convictions on two occasions during closing argument. First, referring to the victim’s testimony, he stated: “She knew about his background .... He had done time; he was framed; those were the same things for harassment.” Second, referring to the cross-examination of Curcio, the prosecutor stated: “And after I asked him about the eleven convictions for harassment, and after those convictions [the defendant] still contacted the victim, would his opinion change. [Curcio] said, ‘No’ without reservation or hesitation. Is that reasonable?”

       The court cautioned the jury: “The evidence you have just heard and the question that was asked by [the prosecutor], that evidence was to show —and the purpose of it was to show the witness’ state of mind at the time that she received that particular information and at the time she received that letter what was her state of mind and that state of mind was based upon information she had received from the defendant. The information she received from the defendant and the state of mind that she had, it is not relevant as to whether those facts were true or not. Therefore, you cannot consider this element—this evidence for the truth of the statements the defendant had made, that is, the defendant has stated in this particular situation, according to this witness, he had committed acts before, that he had been convicted of those acts, whatever else the witness said. You cannot regard that as a fact. That is not a fact. You cannot consider this evidence for the truth of those particular' statements, but you can consider those facts as to the mental state of the witness and what effect that mental state would have on her at the time she read this particular letter. For that,, you may consider that evidence.”

       The court cautioned the jury: “Therefore, the state of mind of [the victim] is a relevant consideration. You are to consider the testimony that [the victim] knew of the defendant’s criminal record only for the purpose as it relates to her state of mind. You are not entitled to consider that testimony and that evidence to prove the truth of whatever may be the defendant’s criminal record.”

        After highlighting other examples, the court stated that “[t]here are only three purposes that you can consider them .... First, the state of mind of [the victim], two, the credibility of any witnesses who testified concerning that evidence, and three, the intent of the defendant . . . .”

       The trial court instructed in relevant part as follows: “The fifth element of stalking in the second degree is that the defendant caused [the victim] to reasonably fear for her physical safety. As I have already defined fear for her physical safety to mean that she feared bodily harm could come to her. The state must then prove beyond a reasonable doubt that [the victim’s] fear was reasonable. This requires a two step process in the fifth element which I will call a subjective test and an objective test. As to the subjective test, the situation and the facts must be viewed from the viewpoint of [the victim]. Did she in fact fear for her physical safety? If the answer to that question is no, you must find the defendant not guilty. If the answer to that question is yes, you must then apply the objective test. Was that fear reasonable? You must answer that question not from the viewpoint of [the victim], but from what a reasonable person under the circumstances then and there existing would view. This is the objective test. You must ask yourself the question under all the circumstances then present, can I find that the fear was reasonable? The state must prove beyond a reasonable doubt that both questions are answered in the affirmative to satisfy this fifth element of stalking in the second degree.”

       The trial court instructed in relevant part as follows: “The third element of stalking in the second degree is that the defendant acted repeatedly. Our law again has no specific definition of the word, ‘repeatedly,’ and therefore, we must consult the ordinary definition. Webster’s Ninth Collegiate Dictionary defines repeatedly as meaning again and again. Acting repeatedly in the context of this particular statute, stalking in the second degree means precisely what the commonly approved usage of the word suggested; acting on more than one occasion.
      “An isolated act of following or lying in wait cannot constitute stalking. The statute does not attempt to place the boundaries of time or space around a prescribed repetitive conduct. That is your function as finders of the fact. Again, you must find the state has proven beyond a reasonable doubt this third element of stalking in the second degree for you to find the defendant guilty. Otherwise, you must find the defendant not guilty.”

       The defendant provides no separate analysis under the state constitution. See footnote 3.

       Unlike in Indrisano, the defendant herein was charged only with a violation of § 53a-182 (a) (2) and not with the additional violation of § 53a-182 (a) (1). In State v. Indrisano, supra, 228 Conn. 820, our Supreme Court remanded the case for a new trial under § 53a-182 (a) (1).