author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. JOSEPH R. PRANCKUS III
    (AC 21265)
    Lavery, C. J., and Bishop and Dupont, Js.

      Argued October 31, 2002
    officially released February 11, 2003

      Auden Grogins, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney (state).
   Opinion

LAVERY, C. J.

The defendant, Joseph R. Pranckus III, appeals from the judgment of conviction, rendered after a jury trial, of two counts of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). On appeal, the defendant claims that the state did not disprove beyond a reasonable doubt his justification defense of use of physical force in defense of a person pursuant to General Statutes §§ 53a-16 and 53a-19. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 4, 1998, a party was held at 69 House Street in Glastonbury. The house was rented by Debra Malcomson, who lived there with her daughter, Samantha Witnauer. Malcomson was vacationing on Cape Cod and had left the defendant to look after her house and Samantha. Richard Lupacchino, Samantha Witnauer’s boyfriend at the time, and Damien McLaughlin organized the party. People first arrived at 69 House Street at about 10 p.m. The greatest number of people at the party at any time was between fifteen and twenty-five. The majority of partygoers were teenagers, with the exception of McLaughlin and the defendant. During the party, many of the participants drank alcohol and some smoked marijuana.

Earlier that day, Karen Witnauer, Samantha Witnauer’s sister, and the defendant left 69 House Street to view fireworks. They had no knowledge that the party was taking place, nor had the defendant given permission for a party to occur. Karen Witnauer and the defendant arrived back at 69 House Street in Karen Witnauer’s car sometime after 11 p.m. Located in the trunk of the car was the defendant’s backpack, which included the defendant’s clothes. Samantha Witnauer and Lupacchino approached Karen Witnauer’s car to inform them of the party and to see if they had a problem with it continuing. The defendant indicated that he did not have a problem with the party as long as it was not loud and people were out at a reasonable time. The defendant then mingled at the party with others, smoked marijuana, drank alcohol and lit fireworks in the backyard.

By 3 a.m. on July 5, 1998, the majority of people had left the party. The remaining people included the defendant, Karen Witnauer, Samantha Witnauer, Lupacchino, McLaughlin, Gordon Anderson, Peter Doucette and the two victims, Bryan Judd and Paul Potkaj. Anderson, Doucette, Judd and Potkaj were in the kitchen where they continued to drink, arm wrestle and break dance. Shortly thereafter, the defendant entered the kitchen and began yelling and swearing at the boys to leave. Judd approached the defendant in an attempt to calm him.

The defendant then punched Judd in the face. Judd responded by punching the defendant in the face. A brief fight ensued between Judd and the defendant during which a shelf with ceramic mugs fell on the floor and shattered. Doucette, Anderson, and Potkaj attempted to break up the fight. Anderson and Potkaj grabbed Judd by his arms to restrain him while Doucette came up behind the defendant and wrapped his arms around him to stop the fight. The defendant broke free from Doucette and attacked Judd again. Judd freed himself from Potkaj and Anderson in response to the defendant’s attack and punched the defendant again. That punch caused the defendant to stumble backward into the kitchen counter. The defendant then picked up a kitchen knife with an eight inch blade from the counter and strode six feet from the counter toward Judd, swinging and stabbing with the knife. As the defendant was stabbing forward with the knife, Potkaj was standing next to Judd. The defendant ultimately stabbed Judd and Potkaj twice apiece.

Judd suffered a seven inch deep stab wound to the left side of his chest and an another wound from the knife to the left side of his back. Potkaj received a seven and one-half inch deep wound to the right side of his chest and a superficial incision wound on the left side of his back around his shoulder blade. Everyone remaining at 69 House Street ran outside, but the defendant remained inside where he called the police. Both Potkaj and Judd collapsed on the ground from their injuries. Potkaj eventually died from the seven and one-half inch stab wound to the right side of his chest, and Judd died from the seven inch stab wound to the left side of his chest. The defendant was arrested on the scene and later treated for a laceration over his left eye and a broken left orbital bone.

The defendant’s sole claim on appeal is that the state failed to disprove beyond a reasonable doubt his justification defense pursuant to §§ 53a-16 and 53a-19. The defendant failed to preserve his insufficiency of the evidence claim at trial and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Padua, 73 Conn. App. 386, 392, 808 A.2d 361 (2002).

“[T]he standard for reviewing sufficiency claims in conjunction with a justification offered by the defense is the same standard used when examining claims of insufficiency of the evidence. ... In reviewing [a] sufficiency [of 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.

“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 [trier of fact’s] verdict of guilty. . . . We are mindful as well that [t]he state has the burden of disproving the defense of justified use of force . . . beyond a reasonable doubt. . . . Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the jury, to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence. ... As long as the evidence presented at trial was sufficient to allow the jury reasonably to conclude that the state had met its burden of persuasion, the verdict will be sustained.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 71 Conn. App. 272, 279-80, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002).

The defendant claims that the state failed to disprove beyond a reasonable doubt his justification defense. Essentially, the defendant argues that there was insufficient evidence (1) to disprove that he reasonably believed Judd and Potkaj were using or about to use deadly physical force against him, or were inflicting or about to inflict great bodily harm on him, and that deadly physical force was necessary to repel the attack, (2) to prove that he had a duty to retreat and (3) to prove that he was the initial aggressor. We disagree.

In support of his claim, the defendant posits an alternative factual scenario of the events of July 5,1998. The defendant had to work the next morning and wanted the partygoers out of the house in the early morning hours. He asked Samantha Witnauer to ask people to leave, but they did not do so. At around 2:30 a.m., the defendant personally began asking people to leave, many of whom did, but several teenagers remained, including Judd, Potkaj, Anderson and Doucette. At about 3 a.m., the defendant entered the kitchen and politely asked the remaining people to leave. Judd then became angry and verbally confronted the defendant in a threatening manner. In response to Judd’s actions, the defendant punched him in the face. Potkaj, Anderson and Doucette all then began punching and kicking the defendant, who fought back with punches of his own. During the altercation, the defendant was hit in the head with a ceramic mug by one of his assailants. At one point, the defendant fell to the floor, where the others kicked him. He managed to free himself and stand up against the kitchen counter. The defendant then grabbed the knife off the counter and made stabbing motions at the group to protect himself, fatally wounding Judd and Potkaj in the process. The defendant suffered several bruises on his body, a laceration over his left eye and a broken left orbital bone as a result of the fight.

Before addressing the defendant’s specific arguments, we note that twenty-four witnesses testified at trial. The written and oral statements the defendant made to the police also were admitted into evidence. Those present at 69 House Street testified as to their observations of the stabbings. Those people included Anderson, Doucette, Karen Witnauer, Samantha Witnauer, Lupacchino and McLaughlin. There were many inconsistencies among their versions of the events, some more glaring than others. Clearly, the defendant inteiprets the evidence as establishing a factual scenario different from the one the jury ultimately found.

“It is the jury’s right to accept some, none or all of the evidence presented.” (Internal quotation marks omitted.) State v. Smith, 73 Conn. App. 173, 188, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002). “Moreover, [e]vidence is not insufficient . . . because it is conflicting or inconsistent. [The jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Colon, 71 Conn. App. 217, 224-25, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

“We do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Nicholson, 71 Conn. App. 585, 590, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002). Although there was some evidence to support the defendant’s version of the events, the jury was free to reject that evidence. Our standard of review dictates that we construe the evidence in the light most favorable to sustaining the verdict. See Statev. Johnson, supra, 71 Conn. App. 279. Applying that standard, we conclude that the verdict should be sustained.

I

The jury was free to disbelieve the defendant’s claim of self-defense and to conclude beyond a reasonable doubt that he could not reasonably have believed that he was faced with deadly physical force or great bodily harm at the hands of Judd and Potkaj. The jury also reasonably could have concluded that the defendant’s use of deadly physical force was unnecessary. Our Supreme Court has interpreted § 53a-19 (a) to require that “a person may justifiably use deadly physical force in self-defense only if he reasonably believes both that (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such an attack.” (Emphasis in original.) State v. Prioleau, 235 Conn. 274, 285-86, 664 A.2d 743 (1995).

The cumulative force of the evidence allowed the jury reasonably to conclude, first, that the defendant did not reasonably believe that deadly physical force was being used or about to be used on him by the victims because neither of the victims used or threatened the use of weapons during the altercation. In fact, before the defendant grabbed the knife, the fight consisted only of four punches. Judd, who was the only one to hit the defendant, was smaller than the defendant. Also, the injuries ultimately sustained by the defendant reasonably could be found by the jury not to amount to serious physical injury, and, therefore, the means of their infliction did not constitute deadly physical force.

The evidence also is sufficient to prove beyond a reasonable doubt that the defendant did not reasonably believe that great bodily harm was inflicted or about to be inflicted on him. Although the defendant did suffer a broken orbital bone from one of Judd’s punches, the jury was free to determine that this injury did not constitute great bodily harm. In addition, there was substantial evidence that the defendant initiated the fistfight and purposefully continued the fight after it had been stopped. That continuation came after the defendant had been punched once in the face by Judd and the defendant then knew the force of Judd’s punch. Moreover, until the defendant grabbed the knife, the altercation involved only fists. The defendant’s actions under the circumstances would allow a jury reasonably to conclude that the defendant did not believe great bodily harm had befallen him or was going to be inflicted on him.

Even if we were to find that the jury determined that the defendant reasonably believed that deadly physical force or great bodily harm was or was going to be used or inflicted on him, we conclude that the jury had sufficient evidence reasonably to find that his use of force was unnecessary under the circumstances. “We repeatedly have indicated that the test a jury must apply in analyzing the second requirement, i.e., that the defendant reasonably believed that deadly force, as opposed to some lesser degree of force, was necessary to repel the victim’s alleged attack, is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” (Internal quotation marks omitted.) Id., 286.

The subjective-objective inquiry “requires that the jury make two separate affirmative determinations in order for the defendant’s claim of self-defense to succeed. First, the jury must determine whether, on the basis of all of the evidence presented, the defendant in fact had believed that he had needed to use deadly physical force, as opposed to some lesser degree of force, in order to repel the victim’s alleged attack. . . .

“If the jury determines that the defendant had not believed that he had needed to employ deadly physical force to repel the victim’s attack, the jury’s inquiry ends, and the defendant’s self-defense claim must fail. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant’s circumstances.” (Emphasis in original; internal quotation marks omitted.) State v. Scarpiello, 40 Conn. App. 189, 206-207, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996).

Evidence that the altercation between the defendant and Judd was a mere fistfight that the defendant initiated with no signs of escalation by Judd or Potkaj allowed the juiy reasonably to conclude that the defendant did not believe deadly force was necessary to repel Judd’s defensive punches. Also, the fact that the defendant purposefully continued the fight without a weapon after it had been broken up demonstrates his belief that resorting to deadly force was unnecessary to combat Judd. Furthermore, evidence that the defendant grabbed the knife and strode six feet toward Judd reasonably can be inferred to prove that the defendant’s use of the knife was an offensive rather than defensive attack. The defendant stabbed the victims a total of four times. Two of these wounds required the defendant to use enough force to drive the knife practically to its hilt into each victim. The other two wounds were on the backs of the victims, indicating that they were fleeing from the defendant. There was, therefore, sufficient evidence for the jury reasonably to conclude that the defendant did not reasonably believe deadly force was necessary to repel Judd’s defensive punches. Although we address the defendant’s remaining claims that there was insufficient evidence to prove that he (1) had a duty to retreat and (2) was the initial aggressor, we note that we are not required to do so because the state proved beyond a reasonable doubt that the defendant was not justified in using deadly physical force under § 53a-19 (a). See State v. Ash, 33 Conn. App. 782, 789-90, 638 A.2d 633, rev’d on other grounds, 231 Conn. 484, 651 A.2d 247 (1994).

II

The evidence also supports the conclusion that the defendant was in a position to retreat with complete safety. Section § 53a-19 (b) provides in relevant part that “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety ... by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100 . . . and was not the initial aggressor . . . .” The court, however, did not charge the jury concerning the initial aggressor element of that subsection. The defendant argues that 69 House Street was his dwelling because of the permission Malcomson gave him to watch over and reside at her house while she was on vacation. In the alternative, the defendant argues that if he did have a duty to retreat, he could not have done so in complete safety. We are not persuaded.

The court read to the jury the definition of dwelling provided in General Statutes § 53a-100 (a) (2). That subdivision provides that a dwelling is “a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present . . . .” The court further instructed the jury that the statute “contemplates a duration element, by requiring usual habitation at night. Usual, in this context, means ordinary or customary. Thus, occupation for some period of time is required. In considering whether a house is the defendant’s dwelling, the jury can consider evidence such as where the defendant’s clothes and personal effects were kept.” The court informed the jury that it could consider the note Malcomson had left, giving the defendant permission to reside at the house while she was on vacation as evidence that 69 House Street was his dwelling.

There was sufficient evidence, however, to allow the jury to reasonably conclude that 69 House Street was not the defendant’s dwelling. Malcomson rented the house, not the defendant. In addition, Malcomson and Samantha Witnauer were the only two people who lived there. The defendant did not usually reside at the house at night, but lived at 46 Jefferson Lane in East Hartford. His clothing and personal effects were kept in his backpack on July 4 and 5, 1998, which was located in the trunk of Karen Witnauer’s car. The jury reasonably could conclude, on the basis of that evidence, that 69 House Street was not the defendant’s dwelling and, therefore, that he had a duty to retreat rather than use deadly force.

The court then instructed the jury concerning the duty to retreat. The jury had evidence of photographs and diagrams of the kitchen, as well as the testimony of several witnesses as to the positioning of the participants in the kitchen that night. That evidence permitted the jury reasonably to find that a laundry room with a window to the outside was next to the kitchen counter where the defendant grabbed the knife. The laundry room had a door that would close and block the entry of others from the kitchen into that room. The jury heard testimony that no one was blocking the defendant’s retreat into the laundry room. Furthermore, the jury reasonably could infer from the evidence that the defendant was familiar with the layout of the house due to his mingling at the house, including the kitchen, over some three hours that night, his presence at the house during the holiday and Malcomson granting him permission to watch over the house from July 2, 1998, until she returned. The jury, therefore, could conclude that retreat into the laundry room was known and available to the defendant.

Additionally, the jury reasonably could find that the defendant knew that avenue of retreat was available and that such retreat could be accomplished with complete safety. Evidence that no one was obstructing the defendant’s retreat into the laundry room, that Judd merely was defending himself from the defendant’s attacks, and that the defendant strode six feet toward the victims to stab Potkaj and Judd instead of retreating was sufficient to allow the jury reasonably to conclude that the defendant knew no harm would have befallen him in making that retreat.

Ill

Finally, the jury also reasonably could have concluded from the evidence presented that the defendant was not justified in using deadly force against the victims because he was the initial aggressor. General Statutes § 53a-19 (c) (a) (2) provides in relevant part that “a person is not justified in using physical force when . . . he is the initial aggressor . . . .” The court defined “initial aggressor” as “the person who acts first in such a manner that creates a reasonable belief in another person’s mind that physical force is about to be used upon that other person. The first person to use physical force is not necessarily the initial aggressor.” The defendant argues that Judd threatened the defendant with physical force when he approached the defendant in the kitchen, thus making Judd the initial aggressor. The jury had sufficient evidence before it, however, that Judd was merely trying to calm the defendant down and did not do so in a threatening manner. There was substantial evidence that the defendant was the first person to punch Judd in the face after yelling and swearing at the teens in the kitchen. That evidence was sufficient to permit the jury reasonably to determine beyond a reasonable doubt that the defendant was the initial aggressor and, therefore, not entitled to claim self-defense.

Our standard of review dictates that we construe the evidence in the light most favorable to sustaining the verdict. See State v. Johnson, supra, 71 Conn. App. 279. Applying that standard, we determine that the jury reasonably could have concluded that the cumulative force of the evidence disproved the defendant’s justification defense of use of force in defense of a person beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-16 provides: “In any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense.”

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of combat by agreement not specifically authorized by law.”

       The defendant does not appeal from the propriety or language of the jury instructions concerning self-defense.

       The defendant did not testify at 1 rial.

       General Statutes § 53a-3 (5) defines “deadly physical force” as “physical force which can be reasonably expected to cause death or serious physical injury
      General Statutes § 53a-3 (4) defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . .
      General Statutes § 53a-3 (3) defines “physical injury” as “impairment of physical condition or pain . . . .”

       The defendant, was six feet, two and one-half inches tall and weighed 180 pounds whereas Judd was five feet, eleven inches tall and weighed 156 pounds.

       The court defined “great bodily harm” as “bodily harm that is substantially more than minor or inconsequential harm.”

       The charge referred only to the ability to retreat with complete safety and the defendant having no duty to retreat from his own dwelling.

       That instruction is consistent with Connecticut case law. See State v. Bailey, 209 Conn. 322, 343, 551 A.2d 1206 (1988).

       The court stated in its instructions: “[A] person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating. That means both a retreat was completely safe and available, and the defendant knew it.
      “Complete safety means without any injury whatsoever to him. As I have said, self-defense requires you to focus on the person claiming self-defense, on what he reasonably believes under the circumstances, and it presents a question of fact as to whether a retreat with complete safety was available and whether the defendant knew of it.
      “The law stresses that self-defense cannot be retaliatory. It must be defensive and not punitive. So, you must ask yourself: Did the defendant know that he could avoid the use of deadly force by retreating with complete safety? Is so, and yet he chose to pursue the use of deadly physical force, you shall reject the self-defense claim.”
      That instruction is in accordance with Connecticut case law. See State v. Montanez, 71 Conn. App. 246, 263, 801 A.2d 868, cert. denied, 261 Conn. 935, 806 A.2d 1069 (2002).

       That definition is in compliance with our case law. See State v. Ramos, 261 Conn. 156, 166-67, 801 A.2d 788 (2002).


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    CARISA CARUSO ET AL. v. CITY OF MILFORD ET AL.
    (AC 22615)
    Foti, Dranginis and West, Js.

      Argued December 6, 2002
    officially released February 11, 2003

      Laurel Fedor, for the appellants (plaintiffs).

      Thomas R. Gerarde, with whom was Alexandria L. Bufford, for the appellee (defendant board of education).
   Opinion

FOTI, J.

The plaintiffs, Carisa Caruso and Lisa Caruso, appeal from the judgment of the trial court granting the motion for summary judgment filed by the defendant board of education of the city of Milford. The dispositive issue on appeal is whether the court improperly concluded that the plaintiffs’ failure to cite a statutory basis for abrogating the defendant’s govemmental immunity barred the action as a matter of law. We affirm the judgment of the trial court.

The following facts and procedural histoiy are relevant to the plaintiffs’ appeal. On September 15, 1997, Carisa Caruso was a six year old first grade student enrolled at the Live Oaks elementary school at 575 Meiwin Avenue in Milford. During the recess period, Carisa was playing on the playground on a ring set apparatus when she fell and sustained injuries, including a broken nose that required surgery.

On September 22, 1999, the plaintiffs commenced this action by writ and complaint. The plaintiffs filed an amended four count complaint on March 30, 2000. The defendant filed an answer and special defenses on April 24, 2000. After the pleadings were closed, the defendant filed a motion for summary judgment, claiming that the action was barred by governmental immunity. The court, Moran, J., heard oral argument on August 13, 2001, and filed a written decision on December 10, 2001, granting the defendant’s motion for summary judgment as to all counts. The plaintiffs then brought this appeal.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Citation omitted; internal quotation marks omitted.) Davies v. General Tours, Inc., 63 Conn. App. 17, 20-21, 774 A.2d 1063, cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001).

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue .... The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.” (Citation omitted; internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663, 691 A.2d 1107 (1997). If “there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof.” Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).

“Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Davies v. General Tours, Inc., supra, 63 Conn. App. 21.

The plaintiffs claim that the court improperly concluded that the defendant was entitled to summary judgment on all counts because the plaintiffs had failed to cite any statutory basis for the abrogation of the doctrine of governmental immunity. We disagree.

It is undisputed on appeal that as to the claims presented, the defendant board of education was an agent of the municipality. See Heigl v. Board of Education, 218 Conn. 1, 3-4, 587 A.2d 423 (1991) (town board of education can be agent of state for some purposes, agent of municipality for others). Although municipalities have no sovereign immunity; see Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596 (1963); it is well settled that they are not liable for negligence in the performance of their governmental function under the doctrine of governmental immunity. See Williams v. New Haven, 243 Conn. 763, 766, 707 A.2d 1251 (1998); see also Elliott v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998); Wysocki v. Derby, 140 Conn. 173, 175, 98 A.2d 659 (1953). The legislature, however, may abrogate governmental immunity by statute; thus, “the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity.” Williams v. New Haven, supra, 766-67.

In Williams, our Supreme Court reversed a jury verdict for the plaintiffs, stating: “Because it is clear that a municipality enjoys governmental immunity for common-law negligence unless a statute has limited or abrogated that immunity, the plaintiffs cannot prevail. The plaintiffs do not rely on any such statute, and they have failed to name an agent, officer or employee of the municipality and to invoke indemnification pursuant to [General Statutes] § 7-465. The doctrine of governmental immunity, therefore, is fatal to their cause of action against the defendant.” Williams v. New Haven, supra, 243 Conn. 769.

The Williams court, however, did not expressly state at what procedural stage of prosecuting an action a plaintiff must identify the statutory basis upon which it relies to abrogate a municipality’s governmental immunity. We partially addressed that question in Spears v. Garcia, 66 Conn. App. 669, 676, 785 A.2d 1181, cert. denied, 259 Conn. 903, 789 A.2d 991 (2001), on reconsideration, cert. granted on other grounds, 259 Conn. 915, 792 A.2d 852 (2002).

In Spears, the trial court granted summary judgment in favor of the defendants, a municipality and the municipality’s fire department, because the plaintiffs in their pleadings had not raised any statute as abrogating municipal governmental immunity, and the trial court, citing Williams, reasoned that this was fatal to the claim. Id., 673. This court reversed the decision, however, reasoning that Spears was procedurally distinguishable from Williams. Id., 676.

Generally, although Connecticut practice requires that any time a complaint is grounded on the application of a statute, that statute should be identified in the pleadings; Practice Book § 10-3 (a); we nevertheless have interpreted that rule as directory rather than mandatory. Criscuolo v. Mauro Motors, Inc., 58 Conn. App. 537, 545, 754 A.2d 810 (2000). Reaffirming our dictum in Colony. Board of Education, 60 Conn. App. 178, 188 n.4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), in which we reconciled the Williams holding with our interpretation of Practice Book § 10-3 (a) as directory, the Spears court held that “although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings.” (Emphasis in original.) Spears v. Garcia, supra, 66 Conn. App. 676. In Spears, the plaintiffs had raised General Statutes § 52-557n in their memorandum of law opposing the defendants’ motion for summary judgment. Spears v. Garcia, supra, 676. We concluded that the defendants were sufficiently apprised when the plaintiffs first raised an applicable statute in their memorandum opposing the motion for summary judgment. Id.

With those precedents in mind, we turn to the facts of the present case. Despite several opportunities to do so, including a specific request by the defendant in its earlier request to revise and when directly prompted by the court at oral argument, the plaintiffs failed to proffer the statutory basis on which they relied to abrogate the defendant’s governmental immunity. The plaintiffs claim that nevertheless, the defendant understood the nature of the claims and, thus, was sufficiently apprised of the applicable statute. The plaintiffs support that claim by noting that the defendant cited § 52-557n in pleading governmental immunity as a special defense. We disagree.

As stated previously, the defendant is entitled to notice of any statute on which the plaintiffs rely to defeat governmental immunity so as to avoid unfair surprise and to allow time to prepare a defense. Section 52-557n contains such a statutory basis for the abrogation of governmental immunity and yet it also contains a partial codification of the common-law immunity itself. The plaintiffs cannot rely on the defendant’s citation to § 52-557n as a special defense as serving to apprise the defendant of the exact statutory basis of the plaintiffs’ claim. Even on appeal, it is unclear if the plaintiffs intended to rely on § 52-557n, § 7-465 or both. Further, the plaintiffs improperly interpret Spears to mean that they may rely on recitation of facts alone without ever referencing a statute to invoke abrogation of governmental immunity. Spears cannot be read so broadly without negating Williams’ requirement that a statutory basis must be pleaded.

We conclude that the plaintiffs have failed to apprise the defendant properly of the statutory basis for abrogating the defendant’s governmental immunity, as required under Williams, because the plaintiffs failed to cite a specific statute in their pleadings and did not cite to such in their memorandum of law in opposition to the motion for summary judgment or at oral argument on the motion so as to fall under the holdings of Spears and Colon. The court, therefore, properly granted the defendant’s motion for summary judgment because, as a matter of law, the plaintiffs’ claims were barred by the doctrine of governmental immunity.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lisa Caruso brought this action on behalf of her minor daughter, Carisa Caruso, whose injuries are the subject of this action. Lisa Caruso also claimed financial losses as a result of Carisa’s injuries. See footnote 4.

       The city of Milford was a party until the plaintiffs withdrew the complaint against the city on March 30, 2000, which left the city’s board of education as the only remaining defendant in the action. We refer in this opinion to the board of education as the defendant.

       Because we agree with the court that the plaintiffs’ action fails as a matter of law because they did not provide a valid statutory basis for abrogation of the governmental immunity of the defendant, we need not reach the other claims on appeal, namely, that the court acted as trier of fact, in reaching conclusions regarding supervision of school children and maintenance of the playground where the injuries at issue occurred, and that it failed to consider the application of common-law exceptions to governmental immunity or that the enactment of General Statutes § 52-557n effectively abolished governmental immunity.

       As the court correctly stated in its memorandum of decision, counts one and two were based on negligence and could have been alleged as one count. Count three was a derivative claim, in which Lisa Caruso sought reimbursement for medical expenses she paid on behalf of Carisa. Count four alleged reckless indifference.

       General Statutes § 7-465 (a) provides in relevant part: “Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for . . . physical damages to person or property ... if the employee, at the time of the occurrence, accident, physical iqjury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . . Governmental immunity shall not be a defense in any action brought under this section. ... As used in this section, ‘employee’ shall include (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board
      Section 7-465 provides that a municipality must indemnify its officers, agents and employees under certain circumstances. The court was correct that the plaintiffs’ action fails to invoke § 7-465 as abrogating governmental immunity because the plaintiffs made a claim only against the board of education. A claim under § 7-465 should contain two counts, one against the agent, and the second against the municipality in indemnification. See Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). Accordingly, as the defendant states in its brief to this court, “regardless of whether the plaintiffs identify the board of education as the negligent agent or as the political subdivision responsible for indemnification,” the plaintiffs have failed to properly plead a cause of action under § 7-465.

       The Supreme Court heard argument in Spears on December 4, 2002, as to following issue: “Does General Statutes § 52-557n permit a plaintiff to bring a direct cause of action in negligence against a municipality?” Spears v. Garcia, 259 Conn. 915, 792 A.2d 852 (2002). An answer in the affirmative would call into question the holdings of both Spears and Williams.

       Practice Book § 10-3 (a) provides: “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.”

       General Statutes § 52-557n (a) provides: “(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. TONY E. GIBSON
    (AC 21779)
    Schaller, West and Dupont, Js.

      Argued September 18, 2002
    officially released February 11, 2003

      Joseph G. Bruckmann, public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Tony E. Gibson, appeals from the judgment of conviction, rendered after a juiy trial, of five crimes, all involving three sisters, the daughters of P, who had been his fiancee for seven years. In a five count, long form information, he was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) as to C when she was younger than thirteen years of age, sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) as to J when she was younger than sixteen years of age, two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2) as to J and C, and with threatening in violation of General Statutes § 53a-62 (a) (1) as to a third sister, I.

The defendant claims, as to the four counts involving sexual assault and risk of injury to a child, that the trial court improperly (1) admitted prior uncharged sexual misconduct evidence and (2) denied his motion for a mistrial. The defendant further claims as to the two counts involving J only that (3) the court’s final instructions to the jury as to the time the crimes were committed were improper in the absence of an instruction limiting the use of the uncharged misconduct evidence. The defendant seeks a new trial because of those alleged improprieties. Those three claims are discussed together in part I of this opinion.

The defendant also claims that in the event that his arguments as to his first two claims fail, (4) the court’s sentence for sexual assault in the first degree as to C was constitutionally improper. That claim is discussed in part II of this opinion. The defendant’s last claim is that (5) the evidence was insufficient to support his conviction for threatening, as alleged in the fifth count of the information, and that a judgment of acquittal should be directed. That is discussed in part III of this opinion.

The jury reasonably could have found the following facts. The defendant occasionally stayed overnight at the family home of the mother of the three victims of the crimes with which the defendant was accused. On the evening in question, P and her daughter C were sleeping in the same bed. During the night, the defendant woke C by touching her. The defendant pulled down her pants and underpants, and put his fingers inside of her vagina. He then pulled up her pants and underpants, and told her not to tell anyone. When P awoke in the morning, the defendant also was in the bed. P did not know when the defendant had arrived during the night and was not aware that anything had happened between the defendant and C.

Later that same morning, after her mother had left, J was in her room when the defendant called her into her mother’s bedroom. The defendant told her to sit on the bed, which she did. He then removed her pants and pulled her underpants down to her knees. He inserted his penis into her vagina. She was on her back and he was on top of her, moving back and forth. I, the third daughter, who was thirteen years old at the time, saw J lying on her back with her legs spread and the defendant on top of her, moving back and forth. J had on a top, but no pants or underpants, and the defendant was wearing only a shirt. I went to a fourth sister’s room and told her what she had just seen. Additional facts will be provided as necessary.

I

PRIOR UNCHARGED MISCONDUCT CLAIMS

The defendant’s first three claims of impropriety involve the admission of evidence of prior uncharged sexual misconduct, the failure to grant his motion for a mistrial and the lack of a limiting instruction in the final instructions to the jury as to the use of such evidence as to the charges involving J. We discuss the claims together because they are related. Both the state and the defendant discuss the issues of the admissibility of the prior uncharged misconduct evidence and the failure to grant a mistrial together. The defendant’s motion for a mistrial rested on the lack of a limiting instruction before or immediately or closely following the introduction of the evidence of the prior uncharged misconduct. The defendant’s third claim, that the language of the final instruction to the jury, without a limiting instruction as to the uncharged misconduct, merits a new trial as to J, is discussed separately by the parties.

A

Background

The information alleged that all of the crimes took place during the “early morning hours” or the “morning hours” of August 7, 2000. Over the objection of the defendant, J testified that on more than one occasion prior to August 7, 2000, at her home, when her mother was not there, the defendant engaged in sexual intercourse with her. The state acknowledges that those occasions occurred one or two years prior to August 7, 2000. On some of the occasions, the defendant had given her money afterward, with which she bought candy.

The state sought the admission of the prior acts as relevant to common scheme and motive, and the testimony was admitted by the court “for purposes of showing a common design and limited to that.” Before the child testified, out of the presence of the jury, the court stated that it would admit her testimony but that “[it would] give some cautionary instructions to the jury” as to the proper use of the testimony. The day after the testimony, not having yet given such instructions, the court again stated that it would give such an instruction to tell the jury that the testimony was offered for the purpose of showing “a common design and limited to that.” Later that same day, the court asked the defendant if he wanted such an instruction and the defendant answered: “It’s the position of the defense that the prejudicial impact of [the testimony] so outweighs the probative value . . . that the defense feels no amount of cautionary instructions would help.” Defense counsel then requested a mistrial, which the court denied. The court then stated: “I’m not going to give an instruction, then. He has — he has requested that I not do so, all right? All right.” The court also stated that it might “address [the issue]” during the course “of the charge to the jury.”

The court gave no instruction during the trial, or in its final instruction to the jury, as to the proper use of the evidence of the prior uncharged misconduct, which had occurred one or two years before August 7, 2000.

B

Admissibility of Uncharged Misconduct Evidence

The defendant’s main argument is that the prejudicial effect of the evidence outweighed its probative value, particularly because the evidence involved multiple episodes of prior misconduct, and the conduct was similar as to C and identical as to J. On that basis, the defendant argues that the evidence should not have been admitted. Citing numerous Connecticut cases that have upheld the admissibility of the uncharged acts of misconduct, the state argues that the evidence was admissible. The state argues in essence that the similarity of the uncharged prior acts to the charged acts increases the probative value of the evidence, thereby dwarfing the prejudicial aspects of the evidence. We agree with the state.

It is well settled that evidence of prior misconduct is admissible for the purpose of showing knowledge, intent, motive, and common scheme or design, but is not admissible to prove that a defendant is guilty of the crimes with which he is charged. State v. George B., 258 Conn. 779, 790, 785 A.2d 573 (2001). Uncharged misconduct evidence relates to a collateral, uncharged crime and does not prove the commission of the principal crime with which the defendant is charged. State v. Kulmac, 230 Conn. 43, 60, 644 A.2d 887 (1994).

The admission of evidence of prior misconduct is within the discretion of the trial court. State v. Meehan, 260 Conn. 372, 393, 796 A.2d 1191 (2002). Every reasonable presumption should be given by an appellate court in favor of the trial court’s ruling to admit such evidence. State v. George B., supra, 258 Conn. 791. To admit evidence of prior misconduct properly, two tests must be met. The evidence (1) must be material and relevant, and (2) its probative value must outweigh the prejudicial effect of the evidence. State v. Cator, 256 Conn. 785, 798, 781 A.2d 285 (2001).

Evidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue. C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.1.3. Relevant evidence is defined in the Connecticut Code of Evidence, § 4-1, as “evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” The commentary to that section makes it clear that there are two separate components of relevant evidence at common law, probative value and materiality. Evidence is relevant if it tends to support the conclusion even to a slight degree. Id., commentary; State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991). Materiality is determined by the pleadings (or information) and the applicable substantive law. Conn. Code Evid. § 4-1, commentary.

In this case, the evidence recounted by J related to prior sexual acts involving her and the defendant. Evidence of prior sexual misconduct is admissible to show a common scheme or design where the prior acts are not too remote in time, are similar to the offense charged and are committed involving persons similar to the victim. State v. George B., supra, 258 Conn. 792; State v. Kulmac, supra, 230 Conn. 61-62. Moreover, courts are “more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than in other crimes.” State v. Kulmac, supra, 62.

Here, the prior sexual misconduct occurred during a period of one to two years prior to the charged offenses. The prior sexual misconduct was similar in the case of C, and identical in the case of J, to the charged offenses. Additionally, J and C were young daughters of the defendant’s fiancee, and the prior acts occurred in the same location, their home. In light of those factors, we conclude that the court did not abuse its discretion in holding that the circumstances of the prior acts involving J were sufficiently similar to the charged offenses to be probative, that is material and relevant, to show a common design. See State v. George B., supra, 258 Conn. 792.

The more difficult question is whether the court abused its discretion in determining that the probative value of the evidence outweighed its prejudicial effect. “Prejudicial evidence is evidence that tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence”; (internal quotation marks omitted) State v. Colon, 71 Conn. App. 217, 243, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002); “but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Citation omitted; internal quotation marks omitted.) State v. Legrande, 60 Conn. App. 408, 416, 759 A.2d 1027 (2000), cert. denied, 255 Conn. 925, 767 A.2d 99 (2001). “The problem is thus one of balancing the actual relevancy of the other crimes evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 688, 800 A.2d 1160 (2000).

In sexual assault cases, because of the nature of the evidence and its potential impact on the jury, the use of prior sexual misconduct evidence is usually prejudicial to the defendant, as well as probative of whether the defendant committed the charged crime. The balancing of probity against prejudice, therefore, to determine which trumps the other, in crimes involving sexual assaults and prior sexual misconduct, is a difficult process.

In this case, the probative value of the evidence is increased, and the prejudicial effect decreased, by a number of factors. First, as in most other sexual assault cases, because they usually occur in private, the balance of the case hinged on the victims’ testimony versus the defendant’s testimony. Thus, the evidence of prior misconduct was important to the state’s case to bolster the victims’ credibility. See id., 690 (no other equally probative, less prejudicial evidence available to state); State v. Tucker, 181 Conn. 406, 417, 435 A.2d 986 (1980) (when balancing, court required to consider whether equally probative, less prejudicial evidence available to state).

Additionally, the striking similarities, especially in the case of J, of the prior offenses to the charged offenses made them highly probative. See State v. Madore, 45 Conn. App. 512, 522-23, 696 A.2d 1293 (1997) (considerable similarities between defendant’s behavior in charged, uncharged misconduct rendered evidence highly probative). Further, both the charged and uncharged offenses were sexual crimes. Therefore, because the jury already had heard, and was in the process of hearing, evidence of the charged sexual offenses, the uncharged sexual misconduct evidence was not as shocking and the prejudicial impact lessened. See State v. Cooper, 227 Conn. 417, 427, 630 A.2d 1043 (1993) (where evidence similar to uncharged misconduct permeated trial, court found it difficult to believe uncharged misconduct evidence “could have had a tendency to shock or influence the jury or to color the proceedings so as to deprive the defendant of a fair trial”).

Another factor in the balancing of probity versus prejudice is that there were several instances of the same or similar acts, thus making the evidence more probative than if only one prior act were involved. Last, we are mindful that we are to give every reasonable presumption to the validity of the “call” by the trial court and that we accord more liberality in the admission of such evidence in cases involving sex related crimes than in cases involving other crimes. Accordingly, we hold that the court did not abuse its discretion in admitting the evidence of the prior uncharged misconduct.

C

Motion for Mistrial

The defendant argues that his motion for a mistrial should have been granted because the court did not give a limiting instruction to the jury immediately or closely following J’s testimony about the defendant’s prior acts of sexual misconduct. The state argues that whether to grant a motion for a mistrial is discretionary with the court, and that granting the motion was not warranted because the jury was still hearing evidence and had not started deliberations. Any prejudice arising from J’s testimony, therefore, could be cured by a future instruction. The state’s position is that if a future curative instruction can lessen prejudice, the drastic remedy of a mistrial should be avoided. We agree with the state.

The lack of any limiting instruction as to the use of the evidence of uncharged misconduct can, under some circumstances, allow a jury to infer that the evidence proves that the defendant committed the charged offense. “Accordingly, in order to vitiate this potential prejudice, we generally have required the trial court, sua sponte if necessary, to instruct the jury as to the limited purpose for which such evidence is admitted and for which [crimes] it is to be considered.” State v. Ouellette, 190 Conn. 84, 96, 459 A.2d 1005 (1983); see also State v. George B., supra, 258 Conn. 793-94; State v. Huckabee, 41 Conn. App. 565, 573, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996).

A number of other cases also have considered the role of a hmiting instruction after prior sexual misconduct evidence has been admitted. See State v. George B., supra, 258 Conn. 794; State v. Ouellette, supra, 190 Conn. 96; State v. Abrahante, 56 Conn. App. 65, 77, 741 A.2d 976 (1999); State v. Cummings, 46 Conn. App. 661, 677, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997). None of the cases of which we are aware, however, concern when the instruction must be given or the consequences of not giving such an instruction immediately or closely following the introduction of the evidence. The question for our resolution is whether the motion for a mistrial should have been granted when no limiting instruction had been given at that point in the trial.

A motion for a mistrial is addressed to the sound discretion of the court and should not be granted except on substantial grounds. State v. Downing, 68 Conn. App. 388, 396, 791 A.2d 649, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002). A court has broad discretion to decide whether an occurrence at trial has prejudiced a defendant to the extent that he or she no longer can receive a fair trial. Id. A court should declare a mistrial only if no curative instruction could preserve a defendant’s right to a fair trial. State v. McCahill, 261 Conn. 492, 520, 811 A.2d 667 (2002). A denial of a motion for a mistrial is reversible on appeal only if there has been an abuse of discretion. State v. Cruz, 71 Conn. App. 190, 204, 800 A.2d 1243, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

Here, at the time the court denied the defendant’s motion, it still had another opportunity to give a limiting instruction, namely, in its final instruction after the conclusion of all the evidence. In fact, the court stated that it might “address [the issue]” then. The failure to give a curative instruction immediately or closely following the evidence does not necessitate a conclusion that the court abused its discretion in failing to grant the motion for a mistrial when such an instruction could later be given in the final charge. See State v. DeCaro, 252 Conn. 229, 250, 745 A.2d 800 (2000).

We conclude that the denial of the motion for a mistrial was not an abuse of discretion.

D

Instructional Claim

The third claim of the defendant involves counts three and four, the crimes in which J was the victim. The defendant argues that in view of the instruction that was given as to the time the crimes were committed, the final instruction to the juiy should have contained a limiting instruction as to the use of the evidence of the prior misconduct. The defendant argues that the combination of the omission of a limiting instruction and the language of the court as to time absolved the state from having to prove the crime as charged.

The court’s instruction was in relevant part: “Time. The state has alleged that the defendant committed these crimes at a certain time. It is not essential in a criminal prosecution that a crime be proved — that a crime be proved to have been committed at a precise time alleged. It is sufficient for the state to prove the commission of the crime ... at any time prior to the date of the complaint within the statute of limitations. Time is not an essential element of the offense.” The jury had a copy of the entire charge in the jury room while it deliberated.

During its deliberations, the jury sent a note to the court inquiring as follows: “Is it possible to find out from [J] the first time [the defendant] put his private part into her private part. How old was she the first time?” The court informed the jury as follows: “With respect to your question, I’ve talked to both of the attorneys in this matter and whatever she said with respect to prior acts occurred, obviously from the evidence, prior to the date of August 7- — 19—of the year 2000, all right? And the question, how old was she at— the first time? There was no testimony with respect to that.” The colloquy with the court and both counsel just prior to the court’s statement to the jury makes it clear, in the state’s words, that the question referred to the “uncharged misconduct that occurred before” the date specified in the information.

The defendant did not except after the charge was given to any portion of the charge, nor did he file a written request to charge pursuant to Practice Book § 42-16 seeking a limiting instruction in the charge as to the use of the evidence of uncharged misconduct.

The state claims that the issue is unpreserved and that neither review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), nor review under the plain error doctrine; Practice Book § 60-5; is warranted. The state further claims that even if review is had, the court’s charge considered as a whole afforded the defendant a fair trial. The defendant argues that his claim is constitutional because the instruction compromised both his right under the sixth amendment to the United States constitution to be informed of the nature and cause of the accusation, and his due process right to a unanimous verdict. He therefore claims that he is entitled to Golding review and, failing such review, that the omission of a limiting instruction was plain error.

Prior cases that have refused plain error or Golding review for failure of the trial court to give a limiting instruction in its final charge are inapposite. See, e.g., State v. Ortiz, 40 Conn. App. 374, 380-81, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996); State v. Servello, 14 Conn. App. 88, 94-95, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988).

In State v. Servello, supra, 14 Conn. App. 94, the defendant failed to ask for a limiting instruction during the court’s final charge and claimed that it should have been given sua sponte. This court held that the claim was not constitutional and did not deserve plain error review. Id., 95. Unlike the situation in the present case, there is no indication in Servello that the defendant on appeal claimed a violation of a specific constitutional right.

In State v. Ortiz, supra, 40 Conn. App. 381, this court held that the failure to give a limiting instruction about the use of uncharged misconduct evidence was not reviewable under Golding. That case, however, is careful to note that its holding applies only “[a]bsent a claim of constitutional magnitude.” Id.

In this case, the defendant’s claim is not simply that a limiting instruction was not given, but that in combination with that lack of an instruction, the instruction as to “time” deprived him of a constitutional right. The court’s instruction stated that although the state had alleged that the defendant committed the crimes at a particular time, it was “sufficient for the state to prove the commission of the crime ... at any time prior to the date of the complaint within the statute of limitations. Time is not an essential element of the offense.” (Emphasis added.)

The claim that an instruction is nonspecific as to the time of a crime can impact on a defendant’s sixth amendment right to be informed of the nature and cause of the accusation. See State v. Orsini, 187 Conn. 264, 274-75, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982). The defendant claims that the broadening of the time period over which he committed the charged crimes had an adverse impact on his ability to be informed of the nature and cause of the accusation against him; contra id.; and it is likely that the jury used the prior misconduct evidence for a substantive purpose. See State v. Huckabee, supra, 41 Conn. App. 575.

We conclude that the defendant’s claim that his sixth amendment rights were violated is a constitutional one and warrants review under Golding, Having concluded that the defendant’s claim is reviewable because it was constitutional and the record is sufficient for review, we now discuss the claim.

“[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether the juiy was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Amado, 254 Conn. 184, 194, 756 A.2d 274 (2000).

Although it is true that time is not usually an essential element of an offense; State v. Hauck, 172 Conn. 140, 150, 374 A.2d 150 (1976); we are not here dealing with an instruction concerning an “on or about” date of a crime with which a defendant is charged; see State v. Orsini, supra, 187 Conn. 274-75; or a minor time discrepancy between the dates alleged in an information and the testimony. We are, instead, concerned with a definite date of a crime as alleged in an information and an instruction that obviated the state’s need to prove that the crime was committed on or about that date. The issue at trial did not relate to whether the crimes involving J occurred on August 7, 2000, but whether the defendant committed the acts.

The third count of the information, which alleged sexual assault in the second degree as to J, and the prior uncharged misconduct evidence, involve the very same victim, the very same sexual act, and the very same location and circumstances of the act, except as to the dates of occurrence. The failure of the court to give any instruction to the jury as to the proper use of the uncharged misconduct evidence, in combination with its instruction as to time, could have no other consequence than to mislead the jury. That such a result ensued is shown by the fact that the jury asked about how old the victim was the first time that the defendant had engaged in sexual intercourse with her. Her age at the prior time was not relevant to whether he had engaged in sexual intercourse with her on August 7, 2000, or her age on August 7, 2000.

The lack of a limiting instruction was exacerbated by the instruction of the court that the defendant could be found guilty without any need for the state to prove the commission of the crime at the “precise time alleged” and that it was “sufficient for the state to prove the commission of the crime ... at any time prior to the date of the complaint . . . .” The combination “ ‘almost surely guarantee^] a verdict of guilt’ State v. Busque, 31 Conn. App. 120, 132 n.7, 623 A.2d 532 (1993) , appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994) ; because the uncharged misconduct evidence was likely used by the jury for the substantive purpose of proving the charged crime as alleged in the third count of the information. See State v. Huckabee, supra, 41 Conn. App. 575. As a result, the conviction of the defendant of sexual assault in the second degree as to J must be set aside and a new trial ordered.

The defendant also was charged in count four of the information with risk of injury to a child, J, in that he “had contact with the intimate parts, as defined in [General Statutes §] 53a-65” in “a sexual and indecent manner likely to impair the health and morals of such child . . . .” The crimes of sexual assault in the second degree and risk of injury to a child are separate offenses because each requires proof of an element that the other does not. See State v. Weiner, 61 Conn. App. 738, 745, 767 A.2d 1220, cert. denied, 256 Conn. 902, 772 A.2d 600 (2001); State v. Hayes, 20 Conn. App. 737, 754, 570 A.2d 716, cert. denied, 215 Conn. 802, 574 A.2d 218 (1990); State v. Apostle, 8 Conn. App. 216, 246, 512 A.2d 947 (1986).

General Statutes § 53a-65 (8) defines intimate parts as “the genital area, groin, anus, inner thighs, buttocks or breasts.” The uncharged misconduct of the defendant was sexual intercourse with J, which includes “intimate” parts as used in § 53a-65. The evidence of that misconduct, in combination with the lack of a limiting instruction prohibiting its use by the jury to conclude that the defendant had committed the crime of risk of injury to a child as to J, as charged, and the instruction that the particular time the charged crime was committed was not an essential element of the offense, lead us to conclude that the defendant is entitled to a new trial on the fourth count of the information, as well as on the third count.

Although the two crimes alleged in the third and fourth counts, both involving J, are separate for the purposes of prosecution, they are so closely intertwined on the facts of this case that the conclusion that a new trial must be had as to the sexual assault in the second degree charge requires the same conclusion as to the charge of risk of injury to a child. A new trial is ordered as to both counts three and four.

II

SUFFICIENCY OF EVIDENCE ON THE THREATENING COUNT

The jury reasonably could have found the following facts related to the threatening count. After the defendant noticed that I, a younger sister of J, had observed his assault on J, the defendant stopped and put on his clothes. Meanwhile, I and J had gone downstairs to talk to their grandmother about the incident. When they came back upstairs, I was in her bedroom talking to her sisters about what had happened. The defendant overheard the conversation. Thereafter, the defendant approached I. To keep her from getting away, the defendant grabbed her arm and pushed her into the bedroom. The defendant asked her “why was she lying” and said that “when [I get] out of jail, it is going to be just [you and me].” The defendant was angry and upset during the encounter.

“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. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002). “The question on appeal is . . . whether, after reviewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Clay, 51 Conn. App. 694, 698, 724 A.2d 1134, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). “The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Nunes, supra, 260 Conn. 659.

Under § 53a-62 (a) (l) “threatening . . . requires the state to show that the defendant, by physical threat, intentionally placed or attempted to place another person in fear of imminent serious physical injury. It is not the danger or risk of injury, but the victim’s perception, which is essential to the . . . crime.” State v. Jacobowitz, 182 Conn. 585, 438 A.2d 792 (1981), overruled in part on other grounds, State v. Welch, 224 Conn. 1, 4, 615 A.2d 505 (1992). The defendant claims that the evidence was insufficient to prove that he intentionally placed I in fear of imminent serious physical injury.

The defendant first argues that the evidence does not show that his statements amounted to a threat of serious physical injury. General Statutes § 53a-3 (4) provides: “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

The words of the defendant’s threat were that “when [I get] out of jail, it is going to be just [you and me].” From that statement, and the factors surrounding it, namely, the victim’s age, her knowledge of the defendant’s prior assaults against her sister J, her telling her grandmother and sisters, and the force used against her so that she would listen to the threat, it was reasonable for the jury to infer that this encompassed a threat of “serious physical injury,” possibly a sexual or physical assault on her.

The defendant’s second argument is that even if the threat was a threat of serious physical injury, it was not imminent because by its language, the statement related to when the defendant got out of jail.

“[T]he law does not equate imminent with immediate. A threat does not require ‘immediate menace of violence or acts showing a present ability and will to execute the threat. ... A threat imports the expectation of bodily harm, thereby inducing fear and apprehension in the person threatened. A threat, unlike an assault, is not limited by time or distance.’ State v. Snead, 41 Conn. App. 584, 593, 677 A.2d 446 (1996).” State v. Hopkins, 62 Conn. App. 665, 672, 772 A.2d 657 (2001); see also State v. Kenney, 53 Conn. App. 305, 323, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999).

For example, in State v. Snead, supra, 41 Conn. App. 586, the defendant called the victim, threatening that if she went to the police, she would “be ‘as good as dead.’ ” The defendant argued that the evidence was insufficient to support his conviction of threatening because “the threatened harm was contingent on a future event, namely, the defendant’s learning that the victim had gone to the police.” Id., 592. Noting the defendant’s present ability to harm the victim, the court rejected that argument and found that the evidence supported the conviction of threatening because “[a] threat ... is not limited by time or distance . . . [and] is always an indication of probable evil to come, whether at once or at some uncertain time in the future.” Id., 593-94.

Here, as in Snead, the defendant had a present ability to harm the victim. Additionally, the surrounding circumstances of the threat are such that it was reasonable for the jury to infer that the defendant had placed the victim in fear of “imminent” serious physical injury, as that term has been explained by precedent. As the court found in Snead, imminent does not mean immediate. In accordance with Snead, therefore, we conclude that the evidence was sufficient to support the defendant’s conviction.

III

CONSTITUTIONALITY OF THE SENTENCE

The defendant’s final claim is that his sentence for his conviction of sexual assault in the first degree under § 53a-70 (a) (2) for the acts committed against C was a violation of his due process and equal protection rights under both the United States and the Connecticut constitutions. On that count, the defendant was sentenced to a twenty year term of incarceration, execution suspended after fifteen years, and twenty-five years probation.

General Statutes § 53a-70 (b) provides in relevant part: “Sexual assault in the first degree is a class B felony for which ... if the victim of the offense is under ten years of age . . . ten years of the sentence imposed may not be suspended or reduced by the court . . . .” The victim C, bom September 21, 1991, was less than nine years of age at the time of the offense on August 7, 2000.

At the sentencing hearing, the prosecutor and the court noted that a conviction of sexual assault in the first degree under § 53a-70 (a) (2) carries a mandatory minimum sentence of ten years imprisonment. Defense counsel stated that the statute was amended in 1995 to provide for a mandatory minimum of ten years if there is sexual intercourse with a victim younger than ten years old. See Public Acts 1995, No. 95-142, § 13. He further stated: “I checked, and I don’t see any cases where that — where the constitutionality of that particular provision has been litigated so far, so I can imagine the appeal on this matter will raise the question whether it was constitutional for the legislature to set an arbitrary age of ten years old to raise what was then a mandatory one year provision to a mandatory . . . ten year provision for those under ten years old.” Counsel also stated that “reading the statute, I don’t see, at least at this point, that the court has any . . . say in possibly giving anything under ten years.” (Emphasis added.)

The defendant argues that the sentencing scheme for sexual assault in the first degree, where the victim is younger than ten years of age, in violation of § 53a-70 (a) (2), violates his equal protection and due process rights under the fourteenth amendment to the United States constitution because the mandatory minimum sentence of ten years is five years more than the mandatory minimum sentence for aggravated sexual assault in violation of General Statutes (Rev. to 1999) § 53a-70a (b), which he claims is a more serious offense.

The defendant did not preserve that precise issue for appellate review, but he did, however, as stated previously, raise a question about the constitutional validity of § 53a-70 (a) (2) at the sentencing hearing. He now requests review under Golding. Even if we assume that the issue now raised was not preserved, it would be reviewable under Golding because the record is adequate and the claim is of constitutional magnitude.

As in any constitutional challenge, in reviewing the defendant’s challenge “to the validity of a statutory scheme, the statutory scheme] is presumed constitutional . . . and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it . . . .” (Internal quotation marks omitted.) State v. Wright, 246 Conn. 132, 138-39, 716 A.2d 870 (1998).

The defendant claims that both his due process and equal protection rights were violated. The standard used in an equal protection analysis is for all material purposes indistinguishable from the analysis for a due process claim. Id., 143. We therefore treat the defendant’s claims of due process and equal protection as analytically comparable.

“]T]o implicate the equal protection [clause] under the . . . federal [constitution] ... it is necessary that the state statute [or statutory scheme] in question, either on its face or in practice, treat persons standing in the same relation to it differently. ... To determine whether a particular classification violates the guarantees of equal protection, the court must consider the character of the classification; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.” (Citations omitted; internal quotation marks omitted.) Id., 139. Where, as here, “the classification at issue neither impinges upon a fundamental right nor affects a suspect group it will withstand constitutional attack if the distinction is founded on a rational basis.” (Internal quotation marks omitted.) Id.

“Rational basis review is satisfied so long as there is a plausible policy reason for the classification .... [I]t is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature.” (Citation omitted; internal quotation marks omitted.) Id., 139-40.

The first inquiry in the analysis is to understand the defendant’s argument, that is, which persons are those who are similarly situated but allegedly treated differently. The defendant argues that the relevant comparison is between one who commits sexual assault in the first degree of a victim younger than ten years of age and one who commits aggravated sexual assault in the first degree of a victim younger than ten years of age. Under § 53a-70 (a) (2), a person who commits the former crime is subject to a mandatory minimum penalty of ten years incarceration. Under § 53a-70a as it existed in 1999, a person who committed the latter crime is subject to a mandatory minimum penalty of five years incarceration, regardless of the age of the victim.

The defendant argues that under the rationales of State v. O’Neill, 200 Conn. 268, 511 A.2d 321 (1986), and State v. Jenkins, 198 Conn. 671, 504 A.2d 1053 (1986), the different treatment violates his equal protection and due process rights. He argues that aggravated sexual assault in the first degree in violation of § 53a-70a is a more serious crime than sexual assault in the first degree in violation of § 53a-70 (a) (2) and, therefore, that the more serious crime cannot provide for a lesser penalty. In Jenkins, the defendant challenged the constitutionality of the kidnapping sentencing scheme, which provided a mandatory minimum of ten years for kidnapping in the first degree, but provided a mandatory minimum of only one year for kidnapping in the first degree with a firearm. Id., 674-76.

The court specifically noted that kidnapping in the first degree was a lesser offense included within kidnapping in the first degree with a firearm. Further, the court concluded that there clearly was a legislative error when the legislature provided a more serious penalty for a less serious crime. The court acknowledged that the discrepancy implicated the equal protection clause and could not overcome rational basis analysis because “ [i]t is not rational and sensible to impose a lesser term of mandatory imprisonment on one convicted of kidnapping with the use of a firearm than on one convicted for a similar crime not involving a firearm.” Id., 679-80. Construing the statutes together and strictly against the state, the court applied the one year mandatory minimum sentence for kidnapping in the first degree with a firearm to kidnapping in the first degree without a firearm. Id., 680. In Jenkins, the rationale was that a kidnapping involving the use of a firearm had to be a more serious crime than a kidnapping without the use of a firearm.

In O ’Neill, the court was faced with a similar question, as in Jenkins, involving the arson sentencing scheme. At issue in O’Neill were the mandatory minimum sentences for arson in the first degree and arson murder, which imposed, respectively, a ten year minimum sentence and no minimum sentence. Relying heavily on Jenkins, the court stated that “[a]rson murder requires a greater degree of culpability and criminality than first degree arson because arson murder involves both arson and death. On the other hand, arson in the first degree requires a lesser degree of culpability and criminality.” State v. O’Neill, supra, 200 Conn. 289. The court found that this result violated the defendant’s equal protection rights. Id.

In the present case, the defendant argues that on the facts, an aggravated sexual assault in the first degree on a child less than nine years old with the use of a deadly weapon or with intent to disfigure or under circumstances evincing an extreme indifference to human life must be a more serious crime than a sexual assault in the first degree on that child.

For several reasons, we find Jenkins and O’Neill distinguishable from the statutory scheme at issue in the present case. We initially note that “the legislature has ■wide power to prescribe the nature, character and extent of defined offenses . . . .” Id., 288. “The legislature is entitled to establish more severe penalties for acts which it believes have greater impact and graver consequences.” Id. “[I]t is not the prerogative of courts in this area lightly to launch an inquiry to resolve a debate which has already been settled in the legislative forum.” (Internal quotation marks omitted.) Id. The legislative power is, however, subject to constitutional proscription. Id., 289.

Therefore, in evaluating the constitutionality of the sentencing scheme here, we must determine whether there is any plausible policy reason for the discrepancy in treatment. Applying rational basis review to the defendant’s claim, we are mindful that the “legislature, cognizant of the constitutional guarantees of equal protection, must be deemed to have sought to attain a rational and sensible result that avoids placing a statute in constitutional jeopardy.” Id., 287.

The legislature has a “legitimate interest in deterring crime by setting more severe penalties for crimes that the legislature reasonably perceives as being more easily committed than other crimes, regardless of the relative seriousness of the prohibited conduct.” State v. Wright, supra, 246 Conn. 148. In that regard, the legislature could have reasonably concluded that sexual assault in the first degree against a child is more often and more easily committed, more likely to go undetected for a longer period of time and more likely to recur than an aggravated sexual assault against either an adult or a child. “[I]n setting penalties, [the legislature] is not limited to an assessment of harm [but] is entitled to conclude that . . . such penal purposes as general deterrence will be appropriately served by such a penalty.” (Emphasis in original; internal quotation marks omitted.) Id.

Therefore, the harsher sentence for sexual assault in the first degree against a child is a means of deterring the crime, which in the legislative opinion may be more prevalent and, thus, more easily subject to deterrence.

The defendant argues, and this court does not dispute, that an aggravated sexual assault in the first degree against a child younger than ten years of age because of its aggregative violence can be categorized as a more serious offense than sexual assault in the first degree against a child younger than ten years of age. Section 53a-70a makes clear, however, that no injustice will result where the facts would allow a prosecution under either statute.

Section 53a-70a (a) provides in relevant part: “No person shall be convicted of sexual assault in the first degree and aggravated sexual assault in the first degree upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.” The legislature made it clear, therefore, that the two offenses could be prosecuted together, but that no person could be convicted of both offenses. Thus, the legislature was aware of the possible interaction between the two statutory offenses. The two crimes can be charged simultaneously, with the ability of the trier to choose the conviction that is more appropriate, under the circumstances. Depending on which statute a defendant is convicted of having violated, the legislature has provided that a defendant may be punished appropriately, that is, differently.

“[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it is not made with mathematical nicety or because, in practice, it results in some inequality. . . . The problems of government are practical ones and may justify, if they do not require, rough accommodations . . . .” (Internal quotation marks omitted.) Id. We conclude that in practice, the differing terms of the mandatory minimum sentences in § 53a-70a and § 53a-70 (a) (2) do not fail to satisfy rational basis review.

In the present case, contrary to the facts in Jenkins, there was no indication, as existed in Jenkins, that the trial court would have imposed a lesser mandatory minimum term for the defendant’s conviction of sexual assault in the first degree had the statute so provided. In fact, the court sentenced the defendant to a term of imprisonment greater than that required under the mandatory minimum terms provided for in either of the statutes criminalizing sexual assault in the first degree or aggravated sexual assault in the first degree. The defendant, therefore, has not shown that a clear violation of his constitutional rights exists that denied him a fair trial. We conclude that the defendant need not be resentenced.

The judgment is reversed only as to counts three and four and the case is remanded for a new trial on those counts. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       This opinion uses initials instead of the names of the victims and their mother to avoid the unnecessary disclosure of information that could lead to their identities being revealed. See General Statutes § 54-86e.

       The crimes involving C are the subject of counts one and two of the information; the crimes involving J are described in counts three and four. The threatening charge involving I is the subject of the fifth count.

       The defendant’s brief states that because “the effect of [the] instraction was to violate the defendant’s constitutional rights to proper notice of the specific charge against him and to a unanimous verdict, he must be granted a new trial on the third and fourth counts (those involving J) . ...” He does not make the same arguments as to the first and second counts of the information (those involving C).

         For purposes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), the state need not prove penetration of the vagina, but rather, penetration of the labia majora. State v. Albert, 252 Conn. 795, 805, 750 A.2d 1037 (2000). The defendant concedes that digital penetration is sufficient for a conviction of sexual assault in the first degree.

       In this case, there was no indication in the argument of the state for the admission of the evidence or of the defendant for the exclusion of the evidence, as to whether the evidence was limited to use in the proof of one, some or all of the five crimes with which the defendant was charged. Although the introduction of the evidence was nonspecific as to the crime to which it related, the court and the parties, both at trial and on appeal, treat the evidence as relevant to the first four counts of the information, as do we. No claim is made by the defendant that the uncharged misconduct evidence unduly prejudiced him as to count five, the threatening charge, or that any limiting instruction was needed as to that count.

       Practice Book § 42-16 provides in relevant part: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. ...”

       Although Practice Book § 42-16 provides that we are not bound to consider error as to the giving of or failure to give an instruction without a written request to charge having been filed, we are not precluded from doing so if the lack of the instruction involves a constitutional right. Although the admission of the uncharged misconduct evidence was an evidentiary ruling; see State v. Faria, 47 Conn. App. 159, 175, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998); we are here concerned with the aftermath of that evidentiary ruling and its impact on the defendant’s constitutional rights, given the court’s final instruction.

       Because we conclude a Golding review is warranted, we need not determine if plain error exists.

       General Statutes § 53a-62 (a) provides in relevant part: “A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . .

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       The defendant has not offered an independent analysis of his claims under the state constitution and, therefore, we will only review the federal constitutional claim. See State v. Wright, 246 Conn. 132, 138, 716 A.2d 870 (1998); State v. Morales, 240 Conn. 727, 738 n.12, 694 A.2d 758 (1997).

       Defense counsel conceded that the legislature had imposed an overall mandatory ten year provision encompassing any act of sexual intercourse, including the digital penetration that occurred in this case.

       General Statutes (Rev. to 1999) § 53a-70a (b) provides in relevant part: “Aggravated sexual assault in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court . . . .”

       General Statutes § 53a-70a (b) was amended, effective October 1, 2002, to provide that if the victim of an aggravated sexual assault is younger than sixteen years of age, the crime is a class A felony.
      The current version of General Statutes § 53a-70a (b), subsequent to its amendment by Public Acts 2002, No. 02-138, § 6, provides in relevant part: “Any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court, except that, if such person committed sexual assault in the first degree by violating subdivision (1) of subsection (a) of section 53a-70, and the victim of the offense is under sixteen years of age, twenty years of the sentence imposed may not be suspended of reduced by the court. Any person found guilty under this section shall be sentenced to a period of special parole pursuant to subsection (b) of section 53a-28 of at least five years.”

       General Statutes § 53a-70a (a) provides: “A person is guilty of aggravated sexual assault in the first degree when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense (1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon, (2) with intent to disfigure the victim seriously and permanently, or to destroy, amputate or disable permanently a member or organ of the victim’s body, such person causes such injury to such victim, (3) under circumstances evincing an extreme indifference to human life such person recklessly engages in conduct which creates a risk of death to the victim, and thereby causes serious physical injury to such victim, or (4) such person is aided by two or more other persons actually present. No person shall be convicted of sexual assault in the first degree and aggravated sexual assault in the first degree upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”