author: BEACH, J.

text:
    STATE OF CONNECTICUT v. ANDRE ATKINS
    (AC 29305)
    Beach, Alvord and West, Js.

      Argued September 16
    officially released December 22, 2009

      Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Andre Atkins, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2), one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2001) § 53a-73a (a) (1) (A), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that the court (1) improperly denied his motion for a judgment of acquittal, which was based on his challenge to the sufficiency of the evidence to support his conviction on the count of sexual assault in the fourth degree, (2) abused its discretion when it admitted uncharged misconduct evidence without first weighing the probative value of such evidence against its prejudicial impact, (3) improperly failed to provide, sua sponte, a limiting instruction to the jury regarding the proper use of the uncharged misconduct evidence admitted at trial and (4) abused its discretion in denying his motion for a mistrial. We agree with the defendant as to his first claim but disagree with the defendant as to his remaining claims. Accordingly, we reverse in part and affirm in part the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. The female victim, C, was born in December, 1992, and the defendant in 1983. C lived with her mother, brother and two sisters. C and her brother have the same father and visited him approximately every other weekend, first in Bridgeport and later in Waterbury. When C was six or seven years old, her father lived in Bridgeport with other family members, including the defendant, who is the nephew of C’s stepmother. The father and his family, including the defendant, later moved to Waterbury. On one occasion in 2005, when C was visiting her father in Waterbury, she took a shower and the defendant “busted in the shower” and turned her around “so he could see everything.” When visiting her father in Waterbury, C stayed in her sister’s bedroom and shared a queen-size bed with her sister. The defendant slept on the bedroom floor. While C was visiting her father in Waterbury at unspecified dates in 2005, when C was twelve years old, the defendant twice had sexual intercourse with C and attempted on a third occasion to do so.

The defendant thereafter was arrested and charged by way of substitute long form information with two counts of sexual assault in the first degree, attempt to commit sexual assault in the first degree, sexual assault in the fourth degree and two counts of risk of injury to a child. In count four of its substitute long form information, the state alleged that the defendant committed sexual assault in the fourth degree “on diverse days in 2001 through 2005 at or near [the father’s home in] Waterbury . . . .” Prior to trial, the state filed a notice of the uncharged misconduct that it intended to offer at trial. Included in that notice was potential testimony from C and her brother that the defendant touched C’s intimate body parts at the Bridgeport home of the victim’s father when C was six or seven years old.

At trial, C testified on direct examination that when she would visit her father in Bridgeport, she did not have a good relationship with the defendant because of “the things he did.” The state then asked C “what things did [the defendant] do to you in Bridgeport?” The defendant objected to that question on the ground that the answer would elicit evidence of uncharged misconduct. The court overruled the objection on the ground that the uncharged misconduct tended to prove a common plan or scheme. C then testified that the defendant had groped her breasts and buttocks when she visited her father in Bridgeport prior to 2001. The court did not give a limiting instruction with respect to the uncharged misconduct evidence.

Following a jury trial, the defendant was convicted on all counts and sentenced to a total effective term of fourteen years incarceration and twenty-six years special parole. This appeal followed.

I

The defendant claims that the court improperly denied his motion for a judgment of acquittal because the state adduced insufficient evidence to support his conviction of sexual assault in the fourth degree. The defendant argues that the only evidence that could have supported his conviction was admitted as uncharged misconduct evidence, which evidence was not properly admitted as conduct constituting the basis for his conviction of sexual assault in the fourth degree. We agree.

General Statutes (Rev. to 2001) § 53a-73a (a) provides in relevant part that “[a] person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .” The term “sexual contact” for the purposes of § 53a-73a is defined in relevant part as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” General Statutes § 53a-65 (3). “A claim of insufficient evidence implicates the constitutional right not to be convicted on inadequate proof. . . . We review this claim first as it may be dispositive of the appeal . . . because a defendant convicted on insufficient evidence cannot be retried without violating the double jeopardy clause.” (Citation omitted; internal quotation marks omitted.) State v. Rose, 112 Conn. App. 324, 328, 963 A.2d 68, cert. granted on other grounds, 290 Conn. 920, 966 A.2d 238 (2009).

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Fleming, 111 Conn. App. 337, 342, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009).

The only evidence presented by the state at trial pertaining to the charge of sexual assault in the fourth degree consisted of the “groping” incidents that occurred in Bridgeport prior to 2001. The defendant objected to the admission of the evidence on the ground that it was uncharged misconduct. The state did not respond that the evidence was sought to be admitted as evidence of the conduct element of any charged offense but, rather, responded that the evidence was consistent with its notice of uncharged misconduct. In count four of its substitute long form information, the state did not charge the defendant with sexual assault in the fourth degree occurring in Bridgeport prior to 2001. Instead, the state more specifically charged the defendant with sexual assault in the fourth degree occurring on diverse days in 2001 through 2005 in Waterbury. The evidence of the Bridgeport groping incidents was admitted as uncharged misconduct for the purpose of showing a common plan or scheme. At the time the uncharged misconduct evidence was admitted, there was no claim that it was admitted to prove the substantive basis for the actus reus element of the crime charged in the fourth count. “As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused.” (Internal quotation marks omitted.) State v. Aaron L., 272 Conn. 798, 820, 865 A.2d 1135 (2005). “Evidence of uncharged misconduct, although inadmissible to prove a defendant’s bad character or propensity to engage in criminal behavior, is admissible [t]o prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is apart.” (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 342, 933 A.2d 1158 (2007).

The uncharged misconduct evidence of the Bridgeport groping incidents was the only evidence elicited at trial pertaining to the charge of sexual assault in the fourth degree. Unless the function for which the evidence was admitted was later altered, there was insufficient evidence to support the defendant’s conviction of sexual assault in the fourth degree.

The function of the evidence, however, was not effectively changed. The state suggests that the defendant had notice that the state intended to introduce the Bridgeport groping incidents as evidence by virtue of the state’s notice of uncharged misconduct and that the defendant agreed with the court that the fourth count was based on the Bridgeport groping incidents. The state argues that according to Practice Book § 36-18, the defendant consented to the state’s amending the substitute information such that evidence of the Bridgeport groping incidents would be substantively charged. The state contends that the defendant therefore had actual notice that he could be convicted on the basis of his conduct in Bridgeport and that he consented to the use of that evidence to prove the actus reus of sexual assault in the fourth degree.

The following colloquy occurred between defense counsel and the court at the charge conference after the defendant’s motion for a judgment of acquittal had been denied.

“The Court: And I assume that the fourth count pertains to [C’s] claim that the defendant would feel her breasts and butt and squeeze, and should I not say that in my charge on the fourth count, to limit it to that?
“[Defense Counsel]: I do believe . . . those are the incidents that count refers to. But I think because it’s a separate charge, because it’s a completely different statute, that if there’s less confusion—
“The Court: You rather I not mention it?
“[Defense Counsel]: I would rather not.
“The Court: Fine. I won’t.”

Practice Book § 36-18 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

Contrary to the state’s contention, the defendant did not expressly consent to the state amending its information to include the Bridgeport groping incidents. The court stated that it “assume [d]” that the fourth count pertained to the Bridgeport groping incidents. The Bridgeport groping evidence, of course, had been introduced at trial as uncharged misconduct evidence. There was no discussion on the record as to whether the purpose for which the Bridgeport groping evidence had been admitted had been changed, and the state made no effort to amend the information. Defense counsel’s response that he “believed” that the Bridgeport groping incidents pertained to the fourth count, was, at least on the surface, an agreement that the Bridgeport groping evidence could fit organizationally into the fourth count but fell short of express consent to such an amendment to the state’s information. Compare State v. Dukes, 29 Conn. App. 409, 420, 616 A.2d 800 (1992) (defense counsel’s unsolicited comment of “okay,” made in response to court’s statement that it anticipated state to file substituted information, constituted express consent), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993). The state did not seek to amend the information to include the Bridgeport groping incidents, and the court never ruled that the state could amend its information as such. Accordingly, the Bridgeport groping incidents remained uncharged misconduct on which the defendant’s conviction of sexual assault in the fourth degree could not be based.

The state also argues that the variance between its information and its proof was permissible because the state’s inclusion in the long form information of the additional details of time and location regarding the offense, namely, that the crime occurred in Waterbury in 2001 through 2005, were not elements of the crime of sexual assault in the fourth degree. Accordingly, the state argues, the defendant’s conviction may stand because the elements of the crime were satisfied by the evidence of uncharged misconduct and no amendment of the information was necessary.

“[Generally speaking, the state is limited to proving that the defendant has committed the offense in substantially the manner described in the information. . . . Despite this general principle, however, both this court and our Supreme Court have made clear that [t]he inclusion in the state’s pleading of additional details concerning the offense does not make such allegations essential elements of the crime, upon which the jury must be instructed. . . . Our case law makes clear that the requirement that the state be limited to proving an offense in substantially the manner described in the information is meant to assure that the defendant is provided with sufficient notice of the crimes against which he must defend. As long as this notice requirement is satisfied, however, the inclusion of additional details in the charge does not place on the state the obligation to prove more than the essential elements of the crime.” (Citations omitted; internal quotation marks omitted.) State v. Sam, 98 Conn. App. 13, 38, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006).

The state’s argument is unavailing. The state was not required to prove more than the essential elements of the crime. Rather, it was required to prove the crime with evidence admitted for the substantive purpose of providing the basis of the actus reus element of the charged crime.

The court improperly denied the defendant’s motion for a judgment of acquittal.

II

The defendant next claims that the court abused its discretion when it admitted uncharged misconduct evidence without first weighing the probative value of such evidence against its prejudical impact. We disagree.

The following facts are relevant to our resolution of this issue. When the state asked C on direct examination what things the defendant did to her in Bridgeport, the defendant objected on the ground that such testimony would constitute uncharged misconduct. The state responded that it had filed a notice of uncharged misconduct and that the evidence was admissible to show a common scheme or plan. The court overruled the defendant’s objection. The court reasoned that “[m]y understanding of the evidence is that it would be probative more so than prejudicial. . . . [B]ased on State v. Michael A., 99 Conn. App. 251, 913 A.2d 1081 (2007), and State v. John G., 100 Conn. App. 354, 362-64, 918 A.2d 986, cert. denied, 283 Conn. 902, 926 A.2d 670 (2007) ... I’ll overrule the objection.”

“[A]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. ... Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . Evidence of prior misconduct may be admitted, however, when the evidence is offered for a purpose other than to prove the defendant’s bad character or criminal tendencies. . . . Exceptions to the general ríale precluding the use of prior misconduct evidence have been recognized in cases in which the evidence is offered to prove, among other things, intent, identity, motive, malice or a common plan or scheme. ... In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect .... Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. ... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. John G., supra, 100 Conn. App. 362. “[W]e do not . . . requir[e] a trial court to use some talismanic phraseology in order to satisfy this balancing process. Rather ... in order for this test to be satisfied, a reviewing court must be able to infer from the entire record that the trial court considered the prejudicial effect of the evidence against its probative nature before making a ruling.” (Emphasis in original; internal quotation marks omitted.) State v. James G., 268 Conn. 382, 395, 844 A.2d 810 (2004).

Our review of the record reveals that the court properly considered both the prejudicial effect of the evidence and its probative nature before making a ruling. After hearing arguments from both counsel, the court articulated that the probative value of the evidence outweighed its prejudicial effect. The court specified that it was relying on State v. Michael A., supra, 99 Conn. App. 251, and State v. John G., supra, 100 Conn. App. 354. Both cases pertain to the admission of prior misconduct evidence in a sexual assault case. See State v. John G., supra, 362-64 (evidence of prior sexual misconduct more probative than prejudicial).; State v. Michael A., supra, 267-71 (admission of prior nonsexual misconduct in sexual assault case improper, but harmless error). We conclude that it applied the requisite balancing test and did not abuse its discretion.

Ill

The defendant next claims that the court failed, sua sponte, to provide the jury with a limiting instruction as to the proper use of the uncharged misconduct evidence, and, as a result, the jury was misled by the court’s instructions. Without the limiting instruction, the defendant argues, the jury was permitted to infer that he was prone to commit the crimes with which he was charged because he had engaged in similar conduct previously. We decline to review this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and conclude that the defendant cannot succeed under the plain error doctrine. See Practice Book § 60-5.

Because the defendant did not file a written request to charge or take an exception to the court’s instructions, his claim is unpreserved. See State v. Fabricatore, 281 Conn. 469, 473 n.6, 915 A.2d 872 (2007) (party may preserve for appeal claim of instructional error by submitting written request to charge or by taking exception to charge). The defendant seeks review pursuant to State v. Golding, supra, 213 Conn. 233, and the plain error doctrine. See Practice Book § 60-5.

“[T]he failure of the trial court to give a limiting instruction concerning the use of evidence of prior misconduct is not a matter of constitutional magnitude.” (Internal quotation marks omitted.) State v. Ortiz, 40 Conn. App. 374, 381, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). Absent a claim of constitutional magnitude, the defendant’s unpreserved claim fails to satisfy the second prong of Golding and is, therefore, not reviewable.

We also decline to find that this claim constitutes plain error. “As we often have stated, [p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Dews, 87 Conn. App. 63, 69, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).

Reviewing the record, we perceive no impropriety that would result in manifest injustice. The defendant did not file a written request to charge. The defendant has not provided any authority for the proposition that the court must give a limiting instruction, sua sponte, under the circumstances of this case. “It is well established in Connecticut . . . that the trial court generally is not obligated, sua sponte, to give a limiting instruction.” (Internal quotation marks omitted.) Id., 70.; see State v. Cator, 256 Conn. 785, 801, 781 A.2d 285 (2001) (“trial court generally is not obligated, sua sponte, to give a limiting instruction”); see also Conn. Code Evid. § 1-4 (“court may, and upon request shall, restrict the evidence to its proper scope”). The failure by the court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not specifically mandated by statute or rule of practice is not so egregious that it affects fundamental fairness or the integrity of and public confidence in the judicial proceedings. See State v. Eason, 47 Conn. App. 117, 120, 703 A.2d 130 (1997), cert. denied, 243 Conn. 962, 705 A.2d 552 (1998).

IV

The defendant last claims that the court abused its discretion in denying his motion for a mistrial. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. C was the first witness called by the state to testify. Almost immediately after C began testifying, she vomited. The court then excused the jury. Outside the presence of the jury, the defendant moved for a mistrial on the ground that the events that transpired created substantial prejudice to the defendant’s case. The court denied the defendant’s motion and reasoned that it saw no grounds for a mistrial because a complaining witness had vomited.

“In [its] review of the denial of a motion for mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 435, 773 A.2d 287 (2001).

The defendant argues in his brief that the act of vomiting on the witness stand could mean any number of things, such as that C had the stomach flu, and may not have anything to do with a person’s state of mind, their credibility, or even the presence of trauma. The defendant argued, however, that it is likely that the jury interpreted C’s illness as an indication of her truthfulness, thereby prejudicing the defendant.

As the defendant pointed out in his brief, vomiting on the witness stand is an inherently ambiguous act. In light of this inherent ambiguity, it cannot be assumed that C’s having become ill on the witness stand was prejudical to the defendant. The defendant asserts in his brief that the court should have taken steps to ascertain what effect, if any, the victim’s vomiting had on the jury. The defendant did not request that the court make a general inquiry. Because the act of vomiting is ambiguous, the defendant has not established that the court abused its discretion in denying his motion for a mistrial.

The judgment is reversed only as to the conviction of sexual assault in the fourth degree and the case is remanded with direction to render judgment of not guilty as to that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The conduct that gave rise to the risk of injury charge allegedly occurred between 2001 and 2005. Although § 53-21 has been amended since then, there is no dispute that the conduct in which the defendant allegedly engaged was prohibited under all of the applicable revisions. In the interest of simplicity, we refer to the current revision of § 53-21.

       The defendant also claims that he was deprived of his federal and state constitutional rights to notice that he could be convicted of sexual assault in the fourth degree on the basis of uncharged misconduct evidence. Because we reverse the judgment of conviction as to sexual assault in the fourth degree for lack of sufficient evidence, we need not address this claim discretely. As will be discussed in part I of this opinion, the concept of notice is relevant to the defendant’s sufficiency claim. We need not, however, address notice as a constitutional issue.
      Within this claim, the defendant also seems to argue that the lack of notice undermined the sufficiency of the evidence with regard to the two counts of risk of injury. The defendant argues that “[although the state presented evidence of conduct that occurred in 2005 in Waterbury, which, if believed by the jury, would be sufficient for conviction . . . [tjhere is simply no way of ascertaining whether the jury, in finding the defendant guilty of risk of injury, was considering the evidence of conduct alleged to have occurred in 2005 in Waterbury or the evidence of conduct alleged to have occurred prior to 2001 in Bridgeport, conduct not charged in the information and of which the defendant never received notice that he could be convicted on.”

        The defendant cannot prevail on this claim because “[i]n reviewing [a] sufficiency [of the evidence] claim ... we construe the evidence in the light most favorable to sustaining the verdict.” (Internal quotation marks omitted.) State v. Martin, 56 Conn. App. 98, 105, 741 A.2d 337 (1999), cert. denied, 252 Conn. 926, 746 A.2d 790 (2000). As the defendant admits in his brief, the state presented sufficient evidence, aside from any uncharged misconduct evidence, on which his conviction of risk of injury to a child could have been based. On the basis of the evidence of sexual contact in Waterbuiy, the jury reasonably could have found that the defendant committed an “act likely to impair the health or morals of any such child” under § 53-21 (a) (1) and that he had “contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child,” under § 53-21 (a) (2). That the court admitted evidence of uncharged misconduct which might have also supported a conviction under these statutory subsections does not undermine the sufficiency of the evidence with respect to the risk of injury counts. The defendant’s claim that there is no way of ascertaining whether the jury based the defendant’s conviction on uncharged misconduct evidence is really a claim of instructional error, which is addressed in part III of this opinion.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       C testified that the groping occurred at her father’s home in Bridgeport when she was “six or seven” years old. C was bom in December, 1992, and, accordingly, would have been six or seven years old in December, 1998, through December, 2000.

       The state argues, alternatively, that C’s testimony that the defendant groped her breasts and buttocks “[a]ny time” she would visit her father was sufficient to support the defendant’s conviction of sexual assault in the fourth degree. Because the testimony does not specify time or location, the state argues, the groping incidents could have occurred at the time and place alleged in the information. C’s testimony regarding the groping was as follows:
      “[The Prosecutor]: [C], what would [the defendant] do to you when you were . . . visiting in Bridgeport with your father?
      “[The Witness]: Feel my breasts and butt.
      “[The Prosecutor]: How old were you when he would do this to you?
      “[The Witness]: Six or seven.
      * ** sfc
      “[The Prosecutor]: How often would [the defendant] do this to you?
      “[The Witness]: Any time I visit my father.
      “[The Prosecutor]: Was it at the apartment in Bridgeport?
      “[The Witness]: Yes.”
      The jury could not reasonably have inferred from this testimony that the defendant groped C’s breasts and buttocks when she visited her father in Waterbury. C clarified that the incidents occurred in Bridgeport. At that time, she was six or seven years old. This conduct, then, was not charged in the state’s substitute long form information but was included in its notice of uncharged misconduct. The testimony specifically was admitted as uncharged misconduct evidence and is well outside the period of time alleged in the information.
      Also, C’s brother testified that the defendant “got on top of — whatever, started rubbing on her, I told him to get up, then I hit him.” The defendant

        objected on the ground that the testimony was outside the state’s notice of uncharged misconduct because the testimony could be interpreted as pertaining to persons other than C. The court struck the testimony and permitted the state to question C’s brother only regarding acts of misconduct committed as to C in order to remain consistent with the state’s notice of uncharged misconduct. C’s brother then testified that one time in Bridgeport he saw the defendant groping C’s “chest area,” and when the defendant failed to stop, he hit the defendant. This corroborative evidence was also included in the state’s notice of uncharged misconduct. Prior to the admission of the evidence, the court asked the state, “this is not additional misconduct, this is corroborative of misconduct that’s already been adduced, is that correct?” The state answered affirmatively. Accordingly, it was admitted as uncharged misconduct. Both C’s testimony regarding the Bridgeport groping incidents and her brother’s corroborative testimony were admitted only as uncharged misconduct evidence and, without more, could not be used as evidence of the conduct for the defendant’s conviction.

       The trial strategy involved in responding to charged conduct may be entirely different from a response to uncharged misconduct.

       Although uncharged misconduct is, of course, technically relevant to some element of a charged crime in order to be admissible, the relevant issue, for purposes of this case, is whether the uncharged misconduct evidence was improperly used for the substantive purpose of proving the acts on which the defendant’s conviction of sexual assault in the fourth degree was based.

       Most of the state’s argument in this regard appears in its response to the defendant’s claim of lack of notice. We deem it pertinent to the sufficiency claim as well.

       There was no discussion regarding prejudice to the defendant. See Practice Book § 36-18.

       Had the state requested to amend the information and if a clear record therefore existed, the situation might be different.

       We agree with the state that it is well established that “it is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the statute of limitations.” (Internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 552, 498 A.2d 76 (1985). Additionally, a variance between the state’s information and its proof as to location is not fatal in many circumstances. See id. (under facts of case, “the fact that the place of death is unknown or that there may be a variance in the proof thereof will not be fatal unless it is made to affirmatively appear that the accused was [misled] or prejudiced thereby” [internal quotation marks omitted]); see also State v. Martin, 56 Conn. App. 98, 108, 741 A.2d 337 (1999), cert. denied, 252 Conn. 926, 746 A.2d 790 (2000). These principles are not applicable in the present case because the evidence adduced at trial that the state argues supports the defendant’s conviction is not simply evidence that varies from the state’s information, but, rather, it is evidence, which, in the circumstances, is inadmissible to prove the defendant’s guilt.

        Golding provides: “[W]e hold 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-ÍÜ.

       We note, however, that “it is the better practice for the trial court to instruct the jury whenever evidence is admitted for a limited purpose even when not requested to do so . . . (Citation omitted.) Rokus v. Bridgeport, 191 Conn. 62, 67, 463 A.2d 252 (1983).

       The colloquy following ensued:
      “[The Prosecutor]: Do you want some water?
      “[The Witness]: Uh-huh.
      “[The Prosecutor]: Excuse me, Your Honor.
      “The Court: If you could try to slow down. I know this is an unusual environment for you. If you could try to speak very distinctly right into the microphone.
      “[The Prosecutor]: Are you okay? Who does your father live with in North Carolina?
      “[The Witness]: His wife . . . and other two children.
      “[The Prosecutor]: Your Honor, a recess please.
      “The Court: We’re going to take a brief recess. As soon as we’re able to resume, we’ll do so. Do not discuss the case.
      (Jury retired to the jury room.)
      “[The Prosecutor]: Your Honor, may we have a recess?
      “The Court: I want to put on the record the obvious, which is that the witness did vomit into a trash disposal bag here and is being tended to by an inspector from the prosecutor’s office. Please let me know when we’re ready to go. Don’t rush it, please. All right. We’ll stand in recess. Don’t go far.”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SHERMAN MANSON
    (AC 27561)
    Beach, Robinson and Peters, Js.

      Argued October 13
    officially released December 22, 2009

      William B. Westcott, special public defender, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Herbert E. Carlson, Jr., former supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

“A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). The principal issue in this criminal appeal is whether the trial court properly denied the defendant’s motion to suppress evidence of the victim’s pretrial identification, allegedly resulting from an unconstitutional photographic array procedure. We agree with the trial court’s denial of the defendant’s motion, and we affirm the judgment against the defendant.

On November 16, 2005, the state filed a four count substituted information, charging the defendant, Sherman Manson, with two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), one count of burglary in the first degree in violation of General Statutes (Rev. to 2003) § 53a-101 (a) (2) and one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). A jury found the defendant guilty of all charges, and the court sentenced him to a total effective term of forty-five years of imprisonment. The defendant’s appeal principally challenges the admissibility at trial of evidence of his identification by the victim.

The jury reasonably could have found the following facts regarding the incident of sexual assault and burglary that underlie the defendant’s conviction. On October 2, 2004, the victim, who was then eighty-nine years old, was returning from grocery shopping to her second floor apartment. A friend was helping her with the grocery bags. Following her friend’s departure, because she noticed someone walking behind her, she stopped putting her groceries inside the apartment and stepped to the porch railing. She called to Robert Wilson, who lived in the neighborhood and was then in the parking lot, and asked who was behind her. Wilson spoke to the individual, asking: “Sherman, is that you up there?” The defendant stepped into view of Wilson and said, “yeah, it’s me, Uncle Rob, it’s me.” Wilson then left. Despite the victim’s continued concern about the proximity of the defendant, she resumed putting her groceries away.

Over the victim’s protest, the defendant began throwing her groceries into her apartment, allegedly to help her, and then followed her inside. He first pushed her down on the floor and then moved her onto her divan, where he commenced sexually assaulting her. Her glasses fell off when she was thrown onto the divan, and she closed her eyes to avoid looking at the defendant during the assault. After assaulting the victim, the defendant went to the back door of the apartment while the victim attempted to escape out the front door. He noticed her before she could escape, threw her down again on the divan and assaulted her again. He then left, telling the victim that he would return the next day.

After the defendant left, the victim discovered that money was missing from her wallet, though she did not see the defendant take it. According to the victim, during the assault, the defendant told her his name, address and age.

After the defendant left the victim’s apartment, she asked a neighbor, Edna Elkey, to come over. When Elkey arrived, the victim told her of the assault by the defendant. Elkey told her daughter, Charlene Ledbetter, of the assault, and Ledbetter called the police. The victim was taken to a hospital where an examination revealed injuries consistent with sexual assault.

On October 5, 2004, the victim was interviewed at her home by police officers and shown a photographic array that included the defendant’s picture. Although the victim initially identified the defendant’s photograph, she added that another photograph resembled her assailant as well and that her lack of certainty related to the fact that the photographs were too small. The police returned to the victim’s home with the same photographic array with enlarged photographs, one on each page. The victim again identified the defendant’s photograph, saying, “that’s the one I know is Sherman.”

On appeal, the defendant claims that the court improperly (1) admitted evidence of the pretrial photographic array identification made by the victim, (2) permitted the victim to make an in-court identification, (3) excluded expert testimony about the unreliability of eyewitness identifications and memory of subjects exposed to highly stressful situations and (4) charged the jury concerning the burglary in the first degree count. We are not persuaded.

I

The defendant’s principal claim is that the court improperly denied his motion to suppress the pretrial photographic array identification made by the victim. The court concluded that the photographic array was not unnecessarily suggestive, and that, even if it had been suggestive, it was inherently reliable and therefore admissible.

“[A] claim of an unnecessarily suggestive pretrial identification procedure is a mixed question of law and fact.” State v. Marquez, 291 Conn. 122, 137, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009). “[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry ... is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, [a] defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . .

“Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Citation omitted; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

The defendant maintains that the court’s admission of the victim’s photographic identification in this case was improper because it failed both prongs of the test for constitutionality. He argues that the victim (1) did not make a definitive identification of the defendant’s photograph until she was shown a second photographic array with the defendant’s photograph repeated and (2) could not reliably identify the defendant. We are not persuaded.

A

The defendant principally argues that the photographic array fails the first prong of the test for constitutionality because, in the initial array, the victim was unable definitively to identity the defendant and instead selected the photographs of two different individuals as possibly being her assailant. The defendant complains that the enlarged version of the photographic array improperly repeated the defendant’s photograph, thereby making the procedure unnecessarily suggestive.

In support of its conclusion that the identification procedure was not unnecessarily suggestive, the court found the following relevant facts. “The police used eight photographs in the array. The array was composed of photographs of individuals who all strongly resembled the defendant. There were no suggestions made to the victim that a photograph of the suspected perpetrator was located in the array presented to her. There were no verbal or physical hints given by the police to the victim to suggest to her who she should select from the array, or even that she should select someone from the array. Although both the small photographic array and the large photographic array contained the same photographs, the police only prepared the large photograph at the request of the eighty-nine year old victim because both the police and the victim wanted to [be] sure of the identification. The victim had already selected a photograph of the defendant, prior to the police preparing the large photographic array.” These findings of fact, which are amply supported by the record, have not been challenged on appeal.

“[A]ny analysis of unnecessary suggestiveness must be conducted in light of the totality of the circumstances and must focus specifically on the presentation of the photographic array itself as well as the behavior of law enforcement personnel to determine if the procedure was designed or administered in such a way as to suggest to the witness that a particular photograph represents the individual under suspicion.

“In evaluating the suggestiveness of a photographic array, a court should look to both the photographs themselves and the manner in which they were presented to the identifying witness. . . . We consider the following nonexhaustive factors in analyzing a photographic array for unnecessary suggestiveness: (1) the degree of likeness shared by the individuals pictured ... (2) the number of photographs included in the array ... (3) whether the suspect’s photograph prominently was displayed or otherwise was highlighted in an impermissible manner ... (4) whether the eyewitness had been told that the array includes a photograph of a known suspect ... (5) whether the eyewitness had been presented with multiple arrays in which the photograph of one suspect recurred repeatedly . . . and (6) whether a second eyewitness was present during the presentation of the array.” (Citation omitted; internal quotation marks omitted.) State v. Marquez, supra, 291 Conn. 161.

The defendant asks us to hold that the repetition of his photograph in the two photographic arrays was unconstitutionally suggestive. The trial court rejected this claim because, in this case, the entire array was repeated, as distinguished from the situation in which a second array repeated only the defendant’s photograph. The defendant offers no legal authority, and our research reveals none, for the proposition that showing the victim the same array in a different format would taint the identification in the absence of other suggestive circumstances. We conclude, therefore, that the court properly determined that the pretrial photographic array identification by the victim was admissible.

B

The defendant further argues that the court improperly concluded that the photographic identification was reliable because the evidence showed that the victim knew the defendant. Challenging the court’s characterization of the evidence, the defendant points to testimony at trial that the defendant’s name had been provided to the victim by her neighbor, that she refused to look at her assailant during the alleged assault and that her glasses had fallen off before the assault.

“ [Reliability is the linchhpin in determining the admissibility of identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime, the [witness’] degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Santos, 104 Conn. App. 599, 619, 935 A.2d 212 (2007), cert. denied, 286 Conn. 901, 943 A.2d 1103, cert. denied, 555 U.S. 851, 129 S. Ct. 109, 172 L. Ed. 2d 87 (2008).

In support of its determination that the victim’s photographic identification of the defendant was reliable, the court found the following facts. “The defendant and the victim were in close proximity during the daylight hours immediately prior to the sexual assault. The victim and her attacker were next to each other on the back porch; the attacker helped bring the victim’s groceries into her home; and the attacker told the victim his name, where he lived and his age during the course of the assault. The victim had seen the defendant around the building prior to the sexual assault. The victim told the police the name of her attacker and made her identification through the photographic array two days after the sexual assault. The victim was very certain of her identification of the defendant as the person who sexually assaulted her. Furthermore, the fact that the defendant was known to the victim makes the identification very reliable under the totality of the circumstances.”

The court properly considered all of the factors relevant to determining the overall reliability of the victim’s identification. Even if some evidence in the record might have supported the conclusion that the identification was unreliable, the defendant has not shown that the court committed clear error in reaching the factual conclusions that it did. Furthermore, because we upheld the court’s conclusion that the pretrial identification procedures were not unnecessarily suggestive, the defendant’s arguments concerning reliability do not provide a basis for overturning the court’s decision to admit evidence of the victim’s pretrial identification of the defendant.

II

In addition to challenging the admissibility of the victim’s photographic identification of the defendant, the defendant also challenges the propriety of the victim’s in-court identification. He argues that the victim’s in-court identification was unconstitutionally tainted by the observation of Robert Nelson, a police officer, informing the victim that she had chosen the correct individual from the pretrial photographic array. The record is not adequate for review of this claim.

“Generally, an in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification. . . . There is no constitutional requirement that an in-court identification confrontation be conducted as a lineup or be otherwise free of suggestion.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 200 Conn. 465, 469-70, 512 A.2d 189 (1986).

Our Supreme Court stated recently that “we agree with the Appellate Court, which has held that [t]he police officer’s telling the victim that she had identified the suspect after she positively identified the defendant as her assailant does not render the identification procedure unnecessarily suggestive.” (Emphasis in original; internal quotation marks omitted.) State v. Marquez, supra, 291 Conn. 164. The court in Marquez went on to note that such a comment by a police officer might “affect the weight or even the admissibility of a subsequent in-court identification . . . .” (Emphasis added.) Id.

Our review of the record discloses no findings by the trial court with respect to the conversation between the victim and the police officer on which the defendant relies. Although Nelson testified that he told the victim that she had chosen the correct person from the photographic array, the victim testified, to the contrary, that Nelson had not told her that she had selected the correct person. On this unresolved state of the record, we do not know whether the court determined that, even if the victim had been told that her identification was correct, the identification was nonetheless admissible as a matter of law, or whether the court decided to admit the in-court identification on a factual finding that the victim had not been informed that she had chosen correctly.

Furthermore, the court offered no explanation whatsoever for its denial of the defendant’s motion to suppress the in-court identification. After the court issued its memorandum of decision, the defendant did request that the court articulate the basis for its decision to allow the in-court identification, and the court stated: “I’ll double-check on the motion to suppress as far as the in-court identification. I thought that was covered.” The defendant never made any further attempts to receive clarification on the court’s decision. The defendant’s claim is therefore unreviewable.

Ill

To buttress his claim that the victim had mistakenly identified him as her assailant, the defendant sought to present expert testimony from Charles Morgan, a professor and researcher at Yale University, concerning the impact of trauma on memory and eyewitness identification. After holding a hearing pursuant to State v. Porter, 241 Conn. 57, 64, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), the court concluded that the defendant had failed to establish that Morgan’s testimony was relevant and denied the defendant’s motion. The defendant’s appeal challenges the validity of the court’s evidentiary ruling.

The defendant claims that he is entitled to a new trial because Morgan’s proposed testimony was relevant to assist him in his defense of mistaken identity to explain why the victim might have misidentified him even though she had a detailed recollection of her assault. The defendant acknowledges that we review the court’s evidentiary ruling for abuse of discretion. Dinan v. Marchand, 279 Conn. 558, 567, 903 A.2d 201 (2006). We are not persuaded by the defendant’s claim.

The court found the following relevant facts concerning the proffered expert testimony. “[I]t is undisputed that . . . Morgan himself has special knowledge regarding eyewitness testimony studies. It is also undisputed that the conclusions that . . . Morgan has reached are not common to the average person. . . . Morgan’s conclusion that stress negatively affects that ability of a person to remember what has occurred in fact runs counter to prevailing conventional wisdom. The witness’ conclusion that certainty has no relationship to accuracy in identification also runs contrary to most accepted thought. However, . . . Morgan’s testimony lacks any applicability to a case such as this where the defendant and the victim know each other. . . . Morgan’s research does not include eyewitness identification where the two people know each other.”

“In [Porter], we adopted the test for determining the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., [509 U.S. 579, 589-92, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)]. . . . First, [we noted] that the subject of the testimony must be scientifically valid .... Second, [we noted that] the scientific evidence must fit the case in which it is presented.” (Internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 215, 891 A.2d 897 (2006), cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). “It is well settled that [t]he true test of the admissibility of [expert] testimony is . . . whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the juiy in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.” (Internal quotation marks omitted.) State v. Banks, 117 Conn. App. 102, 116, 978 A.2d 519 (2009).

The defendant’s first basis for challenging the exclusion of Morgan’s testimony is his contention that Morgan would have provided scientific evidence that the elderly may be more vulnerable to gathering detailed information and attributing it to the wrong source. Such vulnerability might have lent support to the defendant’s theory that the victim had learned the defendant’s name and identify only after the alleged assault had occurred. Morgan’s proposed testimony did not, however, support the defendant’s contention. He claimed no expertise with respect to identifications by the elderly or by sexual assault victims. He was not prepared to testify that age necessarily reduces memory function.

The defendant’s alternate argument challenges the court’s determination that Morgan’s proposed testimony was inadmissible because Morgan did not purport to address the mistaken identification of someone who was known to the person making the identification. In effect, the defendant maintains that, because the victim’s testimony was not entirely consistent, the court was required to assume that their relationship was that of strangers and, on that assumption, was required to permit Morgan to testify. Our examination of the record persuades us, however, that the court’s finding of fact was not clearly erroneous and fully supported the court’s ruling excluding Morgan’s testimony. We conclude, therefore, that the court’s evidentiary ruling was not an abuse of its discretion.

IV

The defendant finally challenges the propriety of the trial court’s jury instructions on the elements of burglary in the first degree. He argues that the jury instructions improperly (1) did not require the jury to reach a unanimous verdict and (2) permitted the jury to find “reckless attempt” as an aggravating factor, even though that mental state is not recognized by the laws of this state. Although the defendant did not object to the jury instructions at trial, he seeks review of these unpreserved claims under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“ [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. In the absence of any of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. This court may “respond to the defendant’s claim by focusing on whichever [Golding] condition is most relevant in the particular circumstances.” Id., 240.

“It is well settled that jury instructions are to be reviewed in their entirety. . . . When the challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. . . . In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement . . . .” (Citations omitted; internal quotation marks omitted.) State v. Makee R., 117 Conn. App. 191, 198, 978 A.2d 549 (2009). We conclude that it was not reasonably possible that the jury was misled by the jury instructions and, therefore, are persuaded that the defendant’s claim fails under the third prong of the Golding analysis.

A

The defendant claims on appeal that the jury instructions were improperly duplicitous because the charge for burglary in the first degree permitted the jury to find the defendant guilty if it believed beyond a reasonable doubt that he had entered the victim’s home with the intent to commit one of three possible crimes. The defendant posits that the court’s instruction on unanimity only required that the jury agree that he had entered her home to commit a crime but did not make it clear that they had to agree on which crime the defendant had intended to commit. As a result of these allegedly incorrect instructions, the defendant argues that he was effectively charged with three separate crimes, violating his right to certainty in the crime charged.

The court instructed the jury on the elements of the crime of burglary in first degree as follows: “A person is guilty of burglary in the first degree when he unlawfully enters or unlawfully remains in a building with the intent to commit a crime therein. That is a crime other than the unlawful entiy or remaining. And in the course of committing the offense he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone. ... In this case, the state claims that the crimes intended to be committed were sexual assault, sexual contact and unlawful restraint.” The court addressed the elements of each crime and then continued the instructions: “The state doesn’t need to prove the defendant intended to commit all of them but simply that the defendant had the specific intent to commit any one of the above described crimes . . . .”

The defendant cites State v. Cator, 256 Conn. 785, 807, 781 A.2d 285 (2001), in which the defendant was convicted of conspiracy to commit murder and conspiracy to commit kidnapping. The court in Cator held that a conviction on both conspiracy charges when there was only one underlying agreement violated the defendant’s constitutional protection against double jeopardy. Id., 806. Unlike the defendant in Cator, however, the present defendant was charged with and convicted of only one charge of burglary in the first degree, an element of which is the intention to commit a crime in the building. The defendant has cited no authority, and our research reveals none, for the proposition that the jury needs to agree on which crime the defendant intended to commit, so long as it agreed that he intended to commit a crime in the building. The jury was properly instructed that, to satisfy its burden of proof, the state was required to show that the defendant intended to commit a crime after his illegal entry, rather than intending to be on the property for some innocuous purpose. It was similarly proper to instruct the jury on the elements of the crimes that the defendant might have intended to commit.

B

The defendant contends that the jury could have interpreted the court’s instruction on the aggravating factor in the charge on burglary in first degree to include a state of mind of “reckless attempt,” which is a legal impossibility. Arguing that criminal attempt requires the defendant to have acted intentionally, the defendant contends that the instruction was misleading, citing State v. Flowers, 278 Conn. 533, 898 A.2d 789 (2006), for the proposition that the court cannot instruct a jury to find that a defendant “intended an unintentional result . . . .” Id., 544. We disagree.

The court asked the jury to determine whether, while committing the alleged burglary, the defendant “intentionally, knowingly or recklessly inflicted or attempted to inflict bodily injury on someone, the victim.” The court further instructed the jury that “[b]odily injury means impairment of physical condition or pain. I have previously defined intent, knowledge and recklessness for you, and you are to use those definitions here. The defendant need not actually [have] inflicted bodily injury on anyone as long as he attempted to inflict bodily injury on someone in the course of committing the burglary.”

In Flowers, our Supreme Court examined the propriety of jury instructions that authorized the jury to find a defendant guilty of burglary if it found that he had intended to commit attempted assault. On appeal, the state did not contest the impropriety of the trial court’s instructions but, rather, argued that any error was harmless. Our Supreme Court concluded that these instructions required reversal of the defendant’s conviction because the trial court “impermissibly expanded the legal standard under which the defendant could have been convicted of burglary in the first degree . . . .” Id., 543. The court held that “a person cannot be charged with entering a building intending the specific result of failing to commit a crime.” Id., 546-47.

The present case is distinguishable from Flowers. In that case, the challenged instructions related to the element of burglary requiring that a defendant enter a building with the intent to commit a crime. The defendant in this case was charged instead with burglary as defined by General Statutes (Rev. to 2003) § 53a-101 (a), which provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.” (Emphasis added.) The most reasonable interpretation of the statute and of the court’s instruction is that the aggravating factor is met by evidence that the defendant had intentionally, knowingly or recklessly inflicted bodily injury or attempted to inflict bodily injury. Taking the court’s instructions as a whole, it is not reasonably possible that the jury was misled. The jury’s finding that the defendant was guilty of two counts of sexual assault in the first degree makes it clear that the jury concluded that he intended to cause bodily injury. There is no possibility that the jury found the defendant guilty for recklessly attempting to cause bodily injury while simultaneously finding that he committed sexual assault.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes (Rev. to 2003) § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical ipjury.”

       There was, for example, testimony by the victim that she had previously seen the defendant on the front porch and back steps of her apartment building.


author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. DAVID J. WILSON
    (AC 29857)
    Lavine, Robinson and Pellegrino, Js.

      Argued October 14
    officially released December 22, 2009

      Russell Fuller, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Bonnie R. Bentley, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, David J. Wilson, appeals from the judgment of conviction, rendered following a court trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (l) and recklessly operating a motor vehicle on a public highway in violation of General Statutes § 14-222 (a). The defendant thereafter pleaded guilty pursuant to § 14-227a (g) of previously having twice been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs. The defendant subsequently was sentenced to three years of incarceration, execution suspended after one year, and three years of probation. On appeal, the defendant argues that the evidence at trial was insufficient to support his conviction. The defendant contends that the evidence supported the theory that his intoxication was the result of involuntary inhalation of kerosene fumes after a five gallon container of kerosene spilled in the back of his work van. We reject this claim and affirm the judgment of the trial court.

The court reasonably could have found the following facts. On June 15, 2006, at approximately 4 p.m., Joseph Santamaría, a former New Britain patrol officer for twenty-six years, was driving his motorcycle along Route 44 in the town of Pomfret on a sunny day. San-tamaria’s eleven year old son was seated behind him on the motorcycle. Santamaría brought his motorcycle to a stop at a traffic signal that had been temporarily installed as a result of bridge construction that had reduced the road to a single lane. While stopped at the signal, Santamaria’s motorcycle was struck from behind by a van driven by the defendant. The impact caused the motorcycle to lunge forward several 1'eet and left the grill and hood of the van wedged between the motorcycle’s tire and frame. Neither occupant of the motorcycle was seriously injured.

The defendant testified that he was driving from Manchester to his job in Brooklyn on the day of the incident. He had been assisting a contractor in laying a foundation in Brooklyn. The defendant contends that a five gallon container of kerosene needed for his work and carried in the back of his van had spilled the night before and that kerosene had gotten trapped under the rubber matting on the floor of the van. He testified that fumes from the kerosene caused his erratic behavior.

Immediately after the accident, Santamaría approached the driver’s side window of the van and asked the defendant what had happened. Santamaría observed that the defendant’s eyes appeared “a little squinty” and that when the two spoke, the defendant’s answers were slow and nonresponsive. Santamaría subsequently telephoned the police, and, five to ten minutes later, state police Trooper Robert Scavello arrived on the scene.

According to Scavello, the defendant had a blank stare, appeared disoriented and “seemed like he didn’t understand what [Scavello] was saying.” Scavello also stated that the defendant’s speech was slurred, a very slight odor of alcohol emanated from him and his groin area was wet. The defendant admitted that he had urinated on himself, telling Scavello that “after the accident, he just couldn’t hold it anymore and had to go.” Scavello further testified that while the defendant was outside the van, he appeared “off balance, kind of wobbly when he was walking, very lethargic” and appeared under the influence of some type of drug. He stated that the defendant’s pupils were extremely constricted, probably the smallest he had ever seen. The defendant also admitted to Scavello that he had smoked marijuana earlier in the morning, drank a Budweiser beer sometime between 9:30 and 10:15 a.m. and ingested two pills that he believed to be Vicodin at 11 a.m.

Thereafter, Scavello administered several field sobriety tests, all of which the defendant failed. On the basis of the defendant’s performance on those field sobriety tests, as well as Scavello’s observations, the defendant was placed under arrest and charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs. Scavello next searched the defendant’s van, which was filled with food, coffee cups, greasy tools and old pieces of wire. He detected no odor in the van. Scavello then drove the defendant to the barracks of Troop D of the state police.

At the police barracks, the defendant was administered an Intoxilyzer test, which revealed that the defendant’s alcohol level was 0.008, well below the 0.08 legal limit. The Intoxilyzer, which is calibrated to detect any hydrocarbon interferants, such as kerosene, during the breath test, registered no such error message. The defendant also gave the police a urine sample, which detected the presence of cocaine and its metabolite but no other substances. Additional facts and procedural history will be provided as necessary.

The defendant claims that there was insufficient evidence to support his conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs. According to the defendant, the evidence of impairment was not cognizable for purposes of proof pursuant to § 14-227a (a) (1) due to the fact that it was caused solely by his involuntary exposure to kerosene fumes in the van. According to the defendant, as he drove back to Brooklyn he was overcome by fumes from the kerosene that had spilled in the back of his van the prior evening. We conclude that the court properly rejected the defendant’s hydrocarbon intoxication theory, and the court reasonably concluded that the cumulative force of the evidence established beyond a reasonable doubt that the defendant had been operating a motor vehicle under the influence of alcohol or drugs.

We begin by setting forth our standard of review. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the [trier of fact] is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the [trier’s] function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citation omitted; internal quotation marks omitted.) State v. Solomon, 103 Conn. App. 530, 539, 930 A.2d 716 (2007).

Moreover, our Supreme Court has stated: “[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006).

Furthermore, we are mindful that the trier of fact is the arbiter of credibility. State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007). With respect to a challenge to the sufficiency of the evidence, we note that “[i]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 153, 921 A.2d 622 (2007).

This court has defined driving under the influence of intoxicating liquor or drugs as having occurred when “a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.” (Internal quotation marks omitted.) State v. Gordon, 84 Conn. App. 519, 526, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004).

In the present case, the court heard evidence that the defendant drove his van into the rear of a stopped motorcycle at a well marked traffic signal. He had urinated on himself prior to exiting his vehicle. After exiting his vehicle, the defendant was stumbling, slurring his speech and behaving erratically. The defendant failed all field sobriety tests that were administered to him. The court also heard evidence that the defendant had constricted pupils and that his answers were slow and nonresponsive. Most significantly, the court heard evidence that the defendant admitted to Scavello that he had ingested marijuana, beer and Vicodin that morning. Furthermore, the defendant gave the police a urine sample, which detected the presence of cocaine and its metabolite. Although the urine test did not show the presence of opiates, the court reasonably could have concluded from the testimony of the state’s toxicology expert witness, Robert Powers, and the defense’s expert witness, James O’Brien, that the absence of opiates during the screening was explained by the defendant’s having urinated at the scene and having excreted evidence of Vicodin ingestion. Finally, the court heard evidence that Scavello, who had received extensive training in the observation of intoxicated motorists and has stopped hundreds of drivers whom he suspected of driving under the influence, concluded that the defendant was intoxicated. See State v. Windley, 95 Conn. App. 62, 66-67, 895 A.2d 270 (evidence sufficient to establish defendant operating motor vehicle under influence of intoxicating liquor when officer testified defendant’s speech slurred, breath smelled of alcohol and defendant stated he had been drinking), cert. denied, 278 Conn. 924, 901 A.2d 1222 (2006).

Although the defendant asserts that his behavior was the result of involuntary inhalation of kerosene fumes, the court rejected that claim, finding that “it is unlikely that there was such hydrocarbon intoxication.” The court heard testimony from both experts that the defendant’s pinpoint pupil constriction could be explained by Vicodin ingestion. There was also testimony from Powers that kerosene inhalation would not have caused pinpoint constriction of the defendant’s pupils. At the time of the accident, no credible witness, including trained police officers, reported the odor of kerosene in the van, on the defendant’s clothing or on the defendant’s breath. Moreover, Powers testified that significant hydrocarbon intoxication, as the defendant claims, would have been detected by the Intoxilyzer as an interferant during the defendant’s breath test. Thus, the court reasonably determined that the defendant’s explanation of involuntary intoxication by kerosene inhalation was not believable.

The evidence in the record supports the court’s conclusion that the defendant had ingested Vicodin, alcohol and other drugs and operated his motor vehicle under the influence of alcohol or drugs as defined by § 14-227a (a) (1). Our review of the evidence, therefore, persuades us that the court reasonably concluded that the cumulative force of the evidence established beyond a reasonable doubt that the defendant had been operating a motor vehicle under the influence of alcohol or drugs. We further conclude that there was sufficient evidence by which the court could find that the defendant was guilty beyond a reasonable doubt of recklessly operating a motor vehicle on a public highway.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “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 such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both . . . .”

       General Statutes § 14 — 222 (a) provides in relevant part: “No person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. . . . The operation of a motor vehicle ... at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle . . . shall constitute a violation of the provisions of this section. . . .”

       Scavello’s observation that there was no odor in the van is vital because the defendant claims that his intoxication was the result of involuntary inhalation of kerosene fumes after a five gallon container of kerosene spilled, releasing kerosene fumes into the poorly ventilated van.

       Robert Powers, the state’s toxicology expert, testified that the screening result did not rule out the presence of opiates such as Vicodin because the screening was designed to identify morphine and codeine and is less sensitive to other opiates. James O’Brien, an expert witness for the defendant, also testified that laboratory testing for opiates can lose its significance if the majority of the drug is excreted through urination before testing.


author: PER CURIAM.

text:
    COREY TURNER v. COMMISSIONER OF CORRECTION
    (AC 29062)
    Gruendel, Lavine and Dupont, Js.
    Argued September 23, 2009
    officially released December 22, 2009

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Corey Turner, appeals from the judgment of the habeas court denying his third petition for a writ of habeas corpus. The habeas court granted the petition for certification to appeal. The petitioner claims that the court improperly denied his claims of ineffective assistance by his first habeas appellate counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. The petitioner was charged with and convicted of murder in violation of General Statutes § 53a-54a and assault in the first degree in violation of General Statutes § 53a-59 (a) (5). He was sentenced to sixty years of incarceration, and the conviction was upheld by our Supreme Court in State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000).

The facts, leading to the petitioner’s conviction, which a jury reasonably could have found beyond a reasonable doubt, are as stated by the Supreme Court in State v. Turner, supra, 252 Conn. 717-18. The petitioner and Richard Woods, the victim of the murder and assault, had an argument in front of the home of Betty Lewis on the evening of August 11, 1995, in Hartford. At approximately 11 p.m., Darius Powell, Kendrick Hampton, Lewis and Woods were together at the same place. Charles Turner, the petitioner’s brother, drove down the street, with the petitioner in the car, past the previously named persons, and shortly thereafter, Charles Turner, then alone in the car, drove back past the Lewis home. He parked the car across the street, exited the car and began “ ‘dancing around.’ ” Id., 117. While those present were watching Charles Turner, the petitioner, wearing a mask and dark clothing, approached the group and shot at Woods with a handgun. Eight gunshots hit Woods. During the attack, Woods shouted, “ ‘Boku shot me. Boku did it.’ ” Id. Boku is the petitioner’s street name. Woods later died at a hospital from the gunshot wounds. Two of the bystanders, Powell and Hampton, recognized the petitioner as the assailant. After the shooting, the petitioner escaped, and Charles Turner drove down the street where he picked up the petitioner four houses away. Id., 718. The petitioner testified, claiming that he was not at the scene of the crime at the time of the murder. Id., 719. Hampton was a state’s witness and testified that the petitioner was the shooter.

Subsequently, the petitioner filed his first petition for a writ of habeas corpus in which he alleged that his trial and appellate counsel had provided ineffective assistance. The habeas court rejected the petitioner’s claims and denied his petition for certification to appeal. The petitioner appealed to this court, which dismissed the appeal. See Turner v. Commissioner of Correction, 86 Conn. App. 341, 861 A.2d 522 (2004), cert. denied, 272 Conn. 914, 866 A.2d 1286 (2005).

The petitioner filed a second petition for a writ of habeas corpus in a different judicial district. The respondent, the commissioner of correction, filed a motion to dismiss the petition, claiming an abuse of the writ because the petitioner alleged several claims of ineffective assistance of trial counsel that could have been made in the first habeas corpus petition. The court granted the motion to dismiss and denied the petition for certification to appeal. The petitioner appealed to this court, which dismissed the appeal. See Turner v. Commissioner of Correction, 97 Conn. App. 15, 902 A.2d 716, cert. denied, 280 Conn. 922, 908 A.2d 546 (2006).

Thereafter, the petitioner filed this third petition for a writ of habeas corpus, and the amendments to it, alleging ineffective assistance of his first habeas appellate counsel. He alleged that appellate counsel was ineffective for failing to challenge the legal performance of the petitioner’s trial counsel as to the manner in which the trial counsel conducted the cross-examination of Hampton concerning Hampton’s identification of the petitioner as the shooter.

The habeas court in the present appeal determined that the petitioner did not satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. . . . Moreover, when a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel’s error, the petitioner would have prevailed in his direct appeal.” (Citation omitted; internal quotation marks omitted.) Davis v. Commissioner of Correction, 117 Conn. App. 737, 739-40, 980 A.2d 933 (2009).

The present habeas court carefully reviewed all of the petitioner’s claims and concluded that the petitioner’s criminal trial and first habeas appellate counsel performed within the wide range of reasonable professional assistance. We, having also reviewed the voluminous transcripts and record, agree with the court. We conclude that the petitioner failed to satisfy either prong of Strickland.

The judgment is affirmed.

       Charles Turner was tried and convicted, in the same trial as the petitioner, of murder as an accessory and assault in the first degree as an accessory. See State v. Turner, supra, 252 Conn. 717.

       This case has been the subject of trials, motions, habeas corpus petitions and memoranda of decision in the Superior Court, the Appellate Court and the Supreme Court for more than fifteen years. The present habeas court discusses, in an eleven page memorandum of decision, the petition at issue,

        as well as two prior petitions and numerous amendments, to conclude, as we do, that “[t]here are no issues remaining to be litigated in connection with the petitioner’s 1996 conviction.” The court further stated that “[a]ny further petitions for a writ of habeas corpus shall be considered successive and abusing the privilege of the writ.”
      We can not foreclose the petitioner’s right to file future petitions for a writ of habeas corpus, but we note, as did the present habeas court, that there is no right to an endless filing and review of successive denials of petitions for habeas corpus. As succinctly stated by the court, “[i]n the instant case, the petitioner has not asserted any new legal ground upon which the court can ultimately find [that] he is burdened with an unreliable conviction.”