author: Schaller, J.

text:
    Michael Johnson v. Commissioner of Correction
    (12515)
    Lavery, Landau and Schaller, Js.
    Argued September 29, 1994
    decision released January 31, 1995

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellant (respondent).

      Christopher C. Sheehan, deputy assistant public defender, for the appellee (petitioner).
   Schaller, J.

The respondent appeals from the habeas court’s judgment granting relief to the petitioner on his writ of habeas corpus. The respondent challenges the habeas court’s conclusion that the petitioner’s counsel rendered ineffective assistance at trial and at the plea bargaining and plea stages in violation of the petitioner’s rights guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. Specifically, the respondent claims that the habeas court improperly found that counsel rendered ineffective assistance (1) by failing to conduct an adequate pretrial investigation and permitting the petitioner to testify without being aware of his prior statements in the hospital record and in the police report, and (2) by failing to advise the petitioner as to the effect of sentence credits and the option of an Alford plea. We reverse the decision of the habeas court.

The following facts are necessary for resolution of this appeal. The defendant was convicted, after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). He received a total effective sentence of twelve years. The convictions were affirmed on appeal to this court. See State v. Johnson, 26 Conn. App. 433, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).

The facts underlying the petitioner’s convictions were set forth in State v. Johnson, supra, 26 Conn. App. 434-35: “The defendant was the boyfriend of the victim’s cousin and he and the victim had known one another for approximately four years. On March 23, 1990, the victim had misplaced the key to her apartment. In order to gain entry to the apartment, neighbors helped her break down the door. The defendant arrived shortly thereafter. At his suggestion, the door was then nailed shut. The only remaining access to the apartment was through the rear door. The defendant then sexually assaulted the victim at knife point. During the course of the attack both of the victim’s hands were severely cut with the knife.

“After helping the victim wash the blood from her hands, the defendant left the apartment. He returned shortly thereafter to retrieve his knife. The victim, although fearful, admitted the defendant because he blocked her only means of escape from the apartment. He retrieved his knife and left. The victim waited fifteen minutes and then wrapped her hands in a towel and went to her sister’s nearby apartment to call the police. The victim was taken to Yale-New Haven Hospital, where she underwent surgery on her hands and a gynecological examination. The samples obtained during the exam were taken to the state laboratory for testing.”

The petitioner subsequently brought a petition for a writ of habeas corpus alleging that he was denied the effective assistance of counsel. On March 3, 1993, a hearing was held before the habeas court on the amended petition, and on May 18, 1993, the court granted the petition. This appeal followed.

I

The respondent first claims that the habeas court improperly found that the petitioner was denied effective assistance of counsel because counsel failed to conduct an adequate pretrial investigation and permitted the petitioner to testify without being made aware of his prior statements to the police and hospital personnel. We agree with the respondent.

With respect to this claim, the habeas court found the following facts. The petitioner took the stand at his trial. He testified that he was in the victim’s apartment on the night in question, that the victim pulled a knife on him and that both of them suffered cuts when they struggled with the knife. He further testified that he went to his girlfriend’s apartment after the struggle, and she told him to go to the hospital because of his wound. He went to Yale-New Haven Hospital.

The habeas court stated that, on cross-examination, the state’s attorney had “very effectively” impeached the petitioner’s direct testimony through the use of the hospital record, which contained a prior inconsistent statement by the petitioner. The state’s attorney asked the petitioner if he had told medical personnel that the victim was his girlfriend. The petitioner denied this. The hospital record, which was later admitted into evidence, stated, however, that the petitioner had told medical personnel that it was his girlfriend who had cut his hand with a knife. The state’s attorney further impeached the petitioner through the testimony of a police officer who had interviewed the petitioner at the hospital on the night of the incident in question. The police officer testified that the petitioner had told him that while he was “making out” with his girlfriend, she went “batty” and cut him with a knife. The habeas court stated that “[t]his statement was apparently contained in the police report of the incident.” On redirect examination, no effort was made to explain the petitioner’s prior inconsistent statements.

The habeas court also found that the petitioner’s counsel had “failed to obtain a copy of the petitioner’s hospital record prior to trial. She admitted the same when the state’s attorney subpoenaed the record to court, stating that she had been unsuccessful in her attempts to obtain the hospital record. The petitioner’s hospital record was under the name ‘Michael Moye.’ ” The habeas court further found that trial counsel did not remember whether she had advised the petitioner to testify. In a footnote to the memorandum of decision, the court stated that “[tjhere is some indication that [the petitioner’s counsel] did have access to the hospital record during the trial and before the petitioner took the stand. Apparently, however, she did not notice the statement which was later used to impeach the petitioner.” The court emphasized that “credibility was the issue at this trial,” and that trial counsel “remembered very little of the detail of her representation of the petitioner.”

On the basis of those findings, the habeas court concluded that “[i]n permitting the petitioner to take the stand without being aware of his prior statements to the hospital and to the police, trial counsel’s performance was below the range of competence of lawyers with ordinary training and skill in criminal law,” and that “[t]he deficiency in trial counsel’s performance clearly prejudiced the petitioner’s defense.”

“In a habeas appeal, we cannot and will not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993); Copas v. Warden, 30 Conn. App. 677, 682, 621 A.2d 1378, cert. denied, 226 Conn. 901, 625 A.2d 1374 (1993). We determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Siano v. Warden, supra [95]; Copas v. Warden, supra [682]. We do not examine the record to see if the trier of fact could have reached a contrary conclusion. Siano v. Warden, supra [95]; Copas v. Warden, supra [682].

“ ‘Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. . . .’ (Citation omitted; internal quotation marks omitted.) Copas v. Warden, supra [30 Conn. App. 682-83]. Whether the historical facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is subject to plenary review by this court, unfettered by the clearly erroneous standard. Siano v. Warden, supra, [31 Conn. App.] 96; Copas v. Warden, supra, 683.

“The right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]; Commissioner of Correction v. Rodriquez, 222 Conn. 469, 478, 610 A.2d 631 (1992); Siano v. Warden, supra, [31 Conn. App.] 97; Copas v. Warden, supra, [30 Conn. App.] 681. This right is firmly grounded in the mandates of the sixth amendment to the United States constitution, the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution. Siano v. Warden, supra, 96. ‘The right to counsel, however, is the right to effective assistance and not the right to perfect representation.’ Id., 97; Commissioner of Correction v. Rodriquez, supra [478].

“Our Supreme Court has adopted the two-pronged analysis of Strickland v. Washington, supra [466 U.S. 687], to determine if counsel’s assistance was ineffective. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990). Under this analysis, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice. Bunkley v. Commissioner of Correction, supra [455]; Hull v. Warden, 32 Conn. App. 170, 174, 628 A.2d 32 (1993); Siano v. Warden, supra [31 Conn. App. 96].

“ ‘To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [he] was not functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment. . . . The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ (Citations omitted; internal quotation marks omitted.) Siano v. Warden, supra [31 Conn. App. 96]; Hull v. Warden, supra [32 Conn. App. 174]; Copas v. Warden, supra, [30 Conn. App.] 683-84.

“ ‘To satisfy the second prong, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . The petitioner must establish that, as a result of his trial counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . . The second prong is thus satisfied if the petitioner can demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ (Citations omitted; internal quotation marks omitted.) Siano v. Warden, supra, [31 Conn. App.] 98; Bunkley v. Commissioner of Correction, supra, [222 Conn.] 454-55.” Davis v. Warden, 32 Conn. App. 296, 301-303, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993).

A

The habeas court concluded that the petitioner had been denied the effective assistance of counsel because counsel permitted the petitioner to testify without being aware of the statements he had made to the police and that counsel’s pretrial investigation was inadequate in this respect.

Failure to conduct an adequate investigation can constitute ineffective assistance of counsel. Siemon v. Stoughton, 184 Conn. 547, 556-57, 440 A.2d 210 (1981). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts that are set forth in the memorandum of decision . . . where the factual basis of the decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence.” Tyson v. Warden, 24 Conn. App. 729, 736-37, 591 A.2d 817, cert. denied, 220 Conn. 909, 597 A.2d 340 (1991).

In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses and the weight to be given to their specific testimony. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986); State v. Battista, 10 Conn. App. 499, 503, 523 A.2d 944 (1987). It is the right of the trier of fact to draw reasonable and logical inferences from the facts that it finds to be proved. State v. Martin, 195 Conn. 166, 171, 487 A.2d 177 (1985). We cannot substitute our judgment for that of the habeas court.

“Defense counsel’s performance must be reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Siemon v. Stoughton, supra, 184 Conn. 554. The burden of proof is on the petitioner to show that his trial counsel’s performance fell below that standard. State v. Gethers, 193 Conn. 526, 541, 480 A.2d 435 (1984); Siemon v. Stoughton, supra, 554. The habeas court’s conclusion that the trial counsel’s performance fell below that standard is not supported by the evidence.

At trial, a police officer testified to the events of March 23,1990. The officer stated that the petitioner told him that while he was “making out” with his girlfriend, she went “batty” and cut him with a knife. The police report of the incident was used solely to refresh the officer’s recollection during his testimony. The report was not admitted into evidence either at the trial or at the habeas hearing. The habeas court, however, found that the inconsistent statement “was apparently contained in the police report of the incident,” thus providing a basis for the court’s finding of inadequate investigation. Because the report was never made a part of the record, the habeas court could not properly rely on it to support its conclusions. See Anonymous v. Norton, 168 Conn. 421, 427, 362 A.2d 532 (1975) (court improperly quoted and made reference in memorandum of decision to medical report not admitted into evidence). Accordingly, we conclude that the trial court finding that trial counsel permitted the petitioner to take the stand without being aware of his prior statements contained in the police report lacks support in the evidence and, therefore, is clearly erroneous.

B

The habeas court concluded that the petitioner had been denied the effective assistance of counsel because counsel permitted the petitioner to testify without his being made aware of the statements contained in the hospital records and that counsel’s pretrial investigation was inadequate in that respect. The facts contained in the record do not support that conclusion.

The court found that counsel permitted the petitioner “to take the stand without being aware of his prior statements to the hospital . . . .” This factual finding is confusing because, while noting that trial counsel failed to obtain a copy of the hospital record prior to trial, the habeas court also noted that the trial transcripts revealed that counsel did receive the records before the petitioner testified. Despite this, the habeas court determined that counsel “[apparently ... did not notice the statement which was later used to impeach the petitioner.” No evidence exists in the trial record or at the habeas hearing to overcome the presumption of adequacy of counsel and to lead to the conclusion that the petitioner’s attorney overlooked the statement attributed to the petitioner in those records.

“[I]t will require a very strong showing of omissions by defense counsel to justify overturning a conviction.” State v. Clark, 170 Conn. 273, 281, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976). We do not have such omissions in this case. The record clearly reflects that trial counsel received the medical records prior to the testimony of the petitioner. Despite this, the habeas court found that “[i]n permitting the petitioner to take the stand without being aware of his prior statements to the hospital . . . trial counsel’s performance was below the range of competence of lawyers with ordinary training and skill in criminal law.” There was no evidence presented that trial counsel overlooked the prior inconsistent statements of the petitioner contained in the medical records. Counsel did not testify at the habeas proceeding as to what she did with the records after receiving them from the state.

There is a strong presumption that counsel acted competently. Davis v. Warden, 32 Conn. App. 296, 305, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993). In the absence of any evidence to the contrary, the habeas court was obligated to presume that once counsel received the hospital records she acted competently. The fact that counsel allowed the petitioner to testify is not sufficient to show that she was unaware of the statements in the records.

Defense counsel has a duty to make reasonable investigations. Strickland v. Washington, supra, 466 U.S. 691. “The reasonableness of an attorney’s investigative decisions often depends critically on the information supplied by his client.” Williams v. Warden, 217 Conn. 419, 426, 586 A.2d 582 (1991), citing Strickland v. Washington, supra, 691. Here, counsel was aware that the petitioner went to the hospital for treatment on the night of the incident. The petitioner told counsel what had occurred and what had been said at the hospital that night. Counsel attempted to get the petitioner’s medical records prior to trial but was unsuccessful because the petitioner had used a different name at the time of admission. On the basis of these circumstances, counsel’s investigative efforts were not so deficient as to render her performance constitutionally ineffective.

II

The state claims that the habeas court improperly concluded that the petitioner was denied the effective assistance of counsel due to counsel’s failure to advise the petitioner as to the effect of sentence credits and the option of an Alford plea.

The state offered the petitioner an eight year sentence suspended after seven years if he would enter guilty pleas. The petitioner rejected the offer and went to trial. The petitioner testified that, when he discussed the state’s offer with his counsel, she indicated that he would have to serve seven years. According to the petitioner, she did not inform him about credits for good time or about the possibility of an Alford plea, which would have enabled him to continue to maintain his innocence. The petitioner’s counsel testified that, while she could not recall whether she had advised the petitioner about good time credits, it was “the kind of thing we always do.” Trial counsel testified that she did tell the petitioner about the Alford plea. No Alford plea was ever suggested by the state or offered by the petitioner to the trial court.

The habeas court found that trial counsel had failed to advise the petitioner of the effect of good time sentence credits and that she had failed to make him aware of the option of entering an Alford plea. On the basis of the court’s conclusion that knowledge of actual time to serve is crucial in deciding whether to plead guilty, the habeas court determined that the petitioner’s counsel’s failure in this regard fell “below the range of competence of lawyers with ordinary training and skill in criminal law.” The court further concluded that counsel’s deficient performance prejudiced the petitioner because it resulted in the petitioner’s rejection of the plea agreement and the imposition of a greater sentence following trial. We conclude that the habeas court’s determination that counsel’s performance was constitutionally deficient and prejudicial to the petitioner is not supported by the facts.

A

The habeas court concluded that the petitioner had been denied the effective assistance of counsel because of counsel’s failure to advise the petitioner as to the availability and effect of sentence credits.

The pleading and plea bargaining stages of a criminal proceeding are critical stages in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the sixth amendment. Hill v. Lockhart, 474 U.S. 52, 56-60, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). A defendant must be made aware of all direct consequences of a plea. Falby v. Commissioner of Correction, 32 Conn. App. 438, 445, 629 A.2d 1154, cert. denied, 227 Conn. 927, 632 A.2d 703 (1993). “Direct consequences have definite, immediate and largely automatic effects on the range of a defendant’s punishment.” Id. There is no requirement, however, that a defendant be advised of every possible consequence of a plea. Id.

Sentence credits, unlike statutory sentence enhancement, are not definite, immediate, or automatic upon conviction. Sentence credits are conditioned on obedience to prison rules and, therefore, are not definite. Because they are determined on a month-to-month basis, they are not immediate. Sentence credits are not a direct consequence of a plea and need not be explained to a defendant. See, e.g., Mainiero v. Liburdi, 214 Conn. 717, 724-25, 573 A.2d 1207 (1990) (no constitutional right to be informed of eligibility for sentence modification and intensive probation).

Even assuming, however, that the habeas court was correct in concluding that trial counsel’s assistance was “not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law,” we must reverse the judgment because there was no showing that the actions of counsel during the plea negotiations prejudiced the petitioner. At the habeas hearing, the petitioner offered no evidence that had he been properly advised during plea negotiations he would have accepted the offer and actually received the allegedly proffered sentence. In Cimino v. Robinson, 6 Conn. App. 680, 683, 507 A.2d 486, cert. denied, 200 Conn. 802, 509 A.2d 517 (1986), we held that “there was no finding or evidence that, had [the petitioner] accepted the state’s offer . . . the court would have accepted the plea bargain and imposed that sentence.” Id., 683. The petitioner’s claim of prejudice is purely speculative. We stressed in Cimino that the concerns that arise when a defendant accepts the state’s offer and pleads guilty are not present when the defendant rejects the offer and goes to trial. “The focus of [guilty plea] cases is that an accused’s right to trial should not be compromised by his failure to be fully informed and to understand the factors to be weighed in deciding to plead guilty, and thus waive the constitutional rights associated with his right to trial. Those concerns, however, are not involved where, as here, the petitioner’s decision has not been to forego his right to trial, but rather to exercise that right. In the present case, the petitioner elected to stand on his right to trial.” Id., 684-85. It is clear, therefore, that the petitioner was not prejudiced by counsel’s failure to inform him of the existence of sentence credits because it is speculative whether the petitioner would have accepted the offer and whether the court would have accepted the plea agreement.

B

The habeas court concluded that the petitioner had been denied the effective assistance of counsel because of counsel’s failure to advise the petitioner of the option of an Alford plea. A guilty plea under the Alford doctrine is a “judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985).

There is no evidence that the state offered an Alford plea to the defendant, or, if such a plea had been offered, that the court would have accepted it. This claim is entirely speculative. There is no constitutional requirement that the meaning of an Alford plea be explained to a criminal defendant. Tyson v. Warden, 24 Conn. App. 729, 735, 591 A.2d 817, cert. denied, 220 Conn. 909, 597 A.2d 340 (1991). There was no evidence that the petitioner was given the option of pleading guilty under Alford. We conclude that there was no prejudice to the petitioner due to counsel’s failure to inform him of the possibility of an Alford plea.

The judgment of the habeas court vacating the judgment of conviction is reversed and the case is remanded for further proceedings to consider the remaining claims raised in the amended petition for writ of habeas corpus.

In this opinion the other judges concurred.

       The respondent’s petition for certification to appeal under General Statutes § 52-470 was granted.

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”

       The fourteenth amendment to the United States constitution provides in pertinent part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law . . . .”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right . . . to be confronted by the witnesses against him . . . .”

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

       General Statutes § 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

       The amended petition contained numerous claims of ineffective assistance. Because the habeas court concluded that the petitioner had established two of those claims, it declined to consider the remaining claims.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Sentence credits, otherwise known as “statutory good time,” for inmates sentenced after July 1,1983, are governed by General Statutes § 18-7a (c). Pursuant to that section, an inmate is entitled to earn a sentence reduction of ten days per month for each month served in obedience to prison rules, for a sentence of up to five years, and twelve days per month for the sixth and subsequent years of a sentence in excess of five years.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Otis Pierce Cook
    (12060)
    Heiman, Schaller and Cretella, Js.
    Argued December 1, 1994
    decision released February 7, 1995

      Susan C. Freedman, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward Wilson and Donna S. Mambrino, assistant state’s attorneys, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, following a conditional plea of nolo contendere, of one count of operating a motor vehicle while his nonresident operator’s privileges were under suspension in violation of General Statutes § 14-215. On appeal, the defendant claims that the trial court improperly determined that he was subject to the enhanced penalties of General Statutes § 14-215 (c).

The following facts are relevant to this appeal. The defendant holds a valid Vermont driver’s license. On April 11, 1991, the defendant’s Connecticut nonresident operator’s privileges were suspended for six months based on his refusal to take a blood alcohol test pursuant to General Statutes § 14-227b. The defendant became eligible to reinstate his Connecticut operating privileges on October 11,1991, but failed to take the necessary administrative steps to restore those privileges.

On January 11,1992, the defendant was stopped by Officer Peter Borysevicz of the Manchester police department on Spencer Street in Manchester when the defendant failed to signal when changing lanes. A motor vehicle department check disclosed that the defendant’s operating privileges had been suspended. The defendant was thereafter charged by motor vehicle summons and complaint with failure to signal when changing lanes in violation of General Statutes § 14-242 and operating a motor vehicle while under suspension in violation of § 14-215 (c).

The defendant moved to dismiss the charge of operating a motor vehicle while his license was under suspension, claiming that he was not subject to the enhanced penalties of General Statutes § 14-215 (c) because the statutory period of suspension for refusing to take a blood alcohol test had expired. The motion was denied, and the trial court then accepted the defendant’s plea of nolo contendere on that count. A nolle was noted on the charge of failure to signal. The defendant received the minimum statutory sentence of thirty days imprisonment and fined $500 pursuant to § 14-215 (c). The defendant’s sentence was stayed pending the outcome of this appeal.

I

The defendant claims that the trial court improperly determined that he was subject to the enhanced penalties of General Statutes § 14-215 (c). In support of his claim, the defendant argues that once the six month suspension period of § 14-227b had ended, his operating privileges were no longer suspended “on account of” his refusal to submit to a blood alcohol test. We agree.

Section 14-215 prohibits any person from operating a motor vehicle in Connecticut if that person’s license or operating privileges have been suspended, revoked, or refused for any reason. The penalties for violating the statute are set forth in subsection (b). Subsection (c), however, imposes more severe penalties on those drivers who operate motor vehicles while their licenses or operating privileges have been suspended on account of violations of one of Connecticut’s operating while intoxicated statutes, General Statutes §§ 14-227a, 14-227b, 53a-56b, and 53a-60d.

We have recently considered the issue of when a driver’s license or operating privileges are suspended “on account of a violation” of one of our laws against driving while intoxicated for the purposes of the imposition of the enhanced penalty provisions of subsection (c) of § 14-215. State v. Jacobson, 31 Conn. App. 797, 627 A.2d 797 (1993), aff'd, 229 Conn. 824, 644 A.2d 331 (1994). In Jacobson, the defendant’s license was suspended for one year after he was convicted of operating a motor vehicle while under the influence of alcohol in violation of § 14-227a. Id., 799. At the expiration of the one year period, the defendant became eligible to reinstate his license by presenting proof of financial responsibility to the commissioner of motor vehicles pursuant to General Statutes § 14-112. Although more than one year had passed since his suspension, the defendant failed to take the necessary administrative steps to restore his license. He was arrested and charged with operating a motor vehicle while his license was suspended in violation of General Statutes § 14-215 (c). Id.

In analyzing the issue of whether the defendant’s license remained under suspension on account of his violation of § 14-227a even after the statutory suspension period had expired, we determined that the penalties imposed in subsection (c) of General Statutes § 14-215 are penal in nature and must, therefore, be strictly construed in favor of the accused. State v. Jacobson, supra, 31 Conn. App. 802. We reviewed the language of § 14-227a and determined that the suspension provision provided therein was limited to the one year period enumerated. Id., 802-803; see General Statutes § 14-227a (h) (1) (C). The statute does not require the suspension to continue in effect after the statutory period has expired until the violator has taken the necessary administrative steps to restore his privileges. State v. Jacobson, supra, 803.

Similarly, § 14-227b is unambiguous in its provision that the refusal to submit to a blood alcohol test subjects a driver to the suspension of his license or operating privileges for a period of six months. It does not require that the suspension continue beyond that six month period until such time that the driver’s privileges are formally restored. Therefore, upon completion of the six month period, a driver’s license or operating privileges are no longer suspended on account of a violation of § 14-227b and the driver may not be subjected to the enhanced penalties of § 14-215 (c). State v. Jacobson, supra, 31 Conn. App. 803-804.

Because the six month suspension of the defendant’s operating privileges had expired, the defendant could not be found guilty of operating a motor vehicle while his privileges were under suspension on account of his refusal to submit to a blood alcohol test and he could not be subjected to the enhanced penalties of § 14-215 (c).

II

Although we reverse the defendant’s conviction under § 14-215 (c), the state urges us to follow the result we reached in State v. Jacobson, supra, 31 Conn. App. 806, and hold that the defendant has violated the lesser included offense of subsection (a) of § 14-215 and is, therefore, subject to the penalties enumerated in subsection (b). The defendant claims his case can be distinguished from Jacobson in that he holds a valid Vermont driver’s license, which entitles him to operate a motor vehicle in Connecticut. We disagree with the defendant and remand the case for resentencing.

In order to establish a violation of § 14-215 (a), the state must prove two elements: (1) that the defendant was operating a motor vehicle; and (2) that the defendant’s license or operating privileges were under suspension at the time. State v. Jacobson, supra, 31 Conn. App. 805. In this way, the elements of subsection (a) constitute a lesser included offense of subsection (c). Id. The only additional element required to prove a violation of subsection (c) is the requirement that the suspension at issue be “on account of” a violation of one of our statutes prohibiting the operation of motor vehicles by intoxicated operators. Id. “Since the defendant pleaded nolo contendere to the charge of violating § 14-215 (c), he could have been convicted of the lesser crime of violating § 14-215 (a), and subjected to the less severe penalties provided for by § 14-215 (b).” Id.

It is undisputed that the defendant was operating a motor vehicle at the time of his arrest. The defendant argues, however, that his operating privileges were no longer under suspension once the six month suspension period imposed by § 14-227b had expired. He attempts to distinguish his case from that of Jacobson in that he has a valid Vermont driver’s license that entitles him to operate a motor vehicle in Connecticut, whereas the Jacobson defendant held no valid license at the time of his arrest. He therefore contends that his operating privileges were automatically reinstated, without any action on his part, once the six month suspension period had ceased.

We do not disagree with the defendant’s assertion that any person who holds a valid driver’s license issued by another state is entitled to a reciprocal privilege to operate a motor vehicle in Connecticut. The defendant’s argument fails, however, to acknowledge the fact that the commissioner of motor vehicles may revoke or suspend those privileges if they are abused and may require the payment of a fee to have those privileges reinstated. General Statutes § 14-50b.

In State v. Jacobson, supra, 31 Conn. App. 806, the defendant’s case was remanded with direction to sentence the defendant for a violation of General Statutes § 14-215 (a) because the defendant had not shown the requisite proof of financial responsibility to restore his license pursuant to § 14-112. Similarly, the defendant here has failed to take the required administrative steps to reinstate his Connecticut operating privileges. Specifically, he has failed to pay a restoration fee of $100 in accordance with § 14-50b.

The defendant’s attempt to read into § 14-50b an exemption for nonresidents who hold valid driver’s licenses from other states is unpersuasive. No such exemption is enumerated in the plain language of the statute. “We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words. . . .” (Citations omitted; internal quotation marks omitted.) October Twenty-Four, Inc. v. Planning & Zoning Commission, 35 Conn. App. 599, 603, 646 A.2d 926 (1994), quoting Ghent v. Planning Commission, 219 Conn. 511, 515, 594 A.2d 5 (1991). Section 14-50b expressly applies to both those whose licenses have been suspended as well as those whose rights to operate motor vehicles in this state have been suspended.

The defendant was therefore subject to § 14-50b and his failure to restore his operator’s privileges by paying the required fee necessitates a finding that his privileges to operate a motor vehicle in Connecticut remained under suspension until such time as that fee was paid. It is undisputed that the defendant had not paid this fee at the time of his arrest; he has, thus, violated § 14-215 (a) and is subject to the penalties enumerated in subsection (b).

“ Tt is axiomatic that this court is vested with the authority to remand a case for resentencing. See, e.g., State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989); State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). In doing so, however, it is not this court’s function to prescribe the new sentence. Miller v. Commissioner of Correction, 29 Conn. App. 773, 780, 617 A.2d 933 (1992); State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985). The appropriate disposition is a remand to the trial court with direction to resentence the defendant.’ State v. Dennis, 30 Conn. App. 416, 426, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993).” State v. Jacobson, supra, 31 Conn. App. 805-806.

The judgment is reversed and the case is remanded with direction to render a judgment of guilty of violating General Statutes § 14-215 (a) and to resentence the defendant in accordance with General Statutes § 14-215 (b).

In this opinion the other judges concurred.

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

       General Statutes § 14-215 provides in pertinent part: “(a) No person . . . whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. . . .
      “(b) Except as provided in subsection (c) of this section, any person who violates any provision of subsection (a) of this section shall be fined not less than one hundred fifty dollars nor more than two hundred dollars or imprisoned not more than ninety days or be both fined and imprisoned for the first offense ....
      “(c) Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.”

       General Statutes § 14-227b provides that any person operating a motor vehicle in Connecticut has impliedly consented to chemical analysis of his blood, breath, or urine. The refusal to submit to such a test subjects an operator to revocation of his license or nonresident operating privileges for a period of six months. General Statutes § 14-227b (h) (1) (B).

       The state has conceded in its appellate brief that the defendant was incorrectly charged with the enhanced penalty portion of General Statutes § 14-215 (c) in light of our decision in State v. Jacobson, 31 Conn. App. 797, 627 A.2d 797 (1993), aff'd, 229 Conn. 824, 644 A.2d 331 (1994).

       During this one year period, the defendant’s license was concurrently suspended for six months for refusing to submit to alcohol testing pursuant to General Statutes § 14-227b. State v. Jacobson, supra, 31 Conn. App. 799.

       General Statutes § 14-112 requires proof of financial responsibility for those who have committed serious motor vehicle offenses such as reckless driving in violation of General Statutes § 14-222, evasion of responsibility-in the operation of a motor vehicle in violation of General Statutes § 14-224, operating a motor vehicle while intoxicated in violation of § 14-227a (a), and for those who have been found criminally responsible for the death of any person in connection with a motor vehicle accident. The plain language of the statute does not require proof of financial responsibility to restore the operating privileges of one whose license has been suspended due to a violation of § 14-227b.

       General Statutes § 14-39 provides in pertinent part: “(a) Any nonresident sixteen years of age or older who is licensed to operate a motor vehicle in the state or country of which he is a resident may . . . operate any registered motor vehicle on the highways of this state for the same period allowed by the state or country of his residence to residents of this state without complying with the provisions of this chapter requiring the licensing of operators . . . .”

       General Statutes § 14-50b provides in pertinent part: “(a) Any person whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked by the commissioner of motor vehicles . . . shall pay a restoration fee of one hundred dollars to said commissioner prior to the issuance to such person of a new operator’s license or the restoration of such operator’s license or such privilege to operate a motor vehicle . . . .” (Emphasis added.)


text:
    State of Connecticut v. Bruce C. Zollo
    (13630)
    O’Connell, Schaller and Spear, Js.

      Argued September 14, 1994
    decision released February 7, 1995

      Deborah Del Prete Sullivan, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in a spousal relationship in violation of General Statutes § 53a-70b, and attempt to commit sexual assault in a spousal relationship in violation of General Statutes §§ 53a-49 (a) and 53a-70b. The defendant was found not guilty of a separate count that charged him with robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that the trial court improperly (1) permitted the DNA expert witness to testify that the possibility that the DNA profile of a semen sample found at the crime scene came from someone other than the defendant was not statistically significant, (2) permitted the expert to testify to the statistical probability of the DNA match, (3) permitted the expert to testify to the statistical significance of a nonmatching DNA probe, (4) instructed the jury (a) to apply a conclusive presumption and directed a verdict of guilty, (b) on the threat of use of force, a statutory alternative the defendant claims was unsupported by the evidence, (c) on attempt, thus violating the defendant’s right not to be convicted except upon proof beyond a reasonable doubt, and (d) on the presumption of innocence and the meaning of reasonable doubt in a manner that violated the defendant’s due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 11,1991, the victim, the estranged wife of the defendant, was assaulted by an unknown assailant wearing a ski mask, a jacket, and a long pea coat. At aproximately 12:35 p.m., the assailant appeared inside the victim’s cellar with a hunting knife in his hand. He grabbed her by the hair, cut her finger with the knife, put a bag over her head and pulled her upstairs, where he handcuffed her hands, wrapped her head in duct tape, and sexually assaulted her for approximately one and one-half hours. During the assault, he also urinated on the victim’s chest twice.

The assailant spoke only twice. In response to the victim’s plea that he not kill her because she was the mother of two children, he responded in a low voice, “I know.” Just before he left the crime scene, the assailant also stated, “Give me fifteen minutes” in a similar low voice.

At approximately 2 p.m. on the date of the assault, the victim’s neighbor was operating a remote control car in the street in front of the victim’s home. A vehicle that the neighbor recognized as belonging to the victim sped past. The neighbor recognized the driver as the defendant, Bruce C. Zoilo. The neighbor also observed that the defendant was adjusting a woolen cap on his head as he drove by.

The neighbor then saw the victim standing in her driveway, wearing only a small jacket or vest. Her head was wrapped in duct tape that covered her eyes, and she was bleeding. The neighbor led the victim into his house and called paramedics, who had difficulty removing the tape from the victim’s head, even with the use of trauma scissors.

The victim had been married to the defendant for eight years at the time of the assault. The couple had separated because of the defendant’s drug use. According to the defendant’s friend, Paul Norris, the defendant, prior to the assault, had expressed a desire to take revenge on his wife for initiating the separation. The defendant asked Norris to participate in sexually assaulting the victim, but Norris refused.

Shortly after the assault, the defendant arrived at the victim’s home and stated that he was concerned that his wife had been raped. While the police were gathering evidence in the victim’s home, the defendant requested several times that he be allowed to clean the house before the police entered it. The police uncovered a towel stained with semen, from which the prosecution was able to gather a DNA sample for analysis by Harold Deadman, a forensics expert from the Federal Bureau of Investigation (FBI), who testified at trial.

I

The defendant’s first claim is that the trial court improperly allowed Deadman to testify as an expert witness that the chance that the DNA sample came from someone other than the defendant was “so small that ... it would not be worth considering.” The defendant asserts that this testimony is an opinion on an ultimate issue in the case and, therefore, should not have been admitted.

Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. “ ‘The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.’ State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992).” State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Merritt, 36 Conn. App. 76, 82, 647 A.2d 1021, cert. granted, 231 Conn. 926, 648 A.2d 165 (1994). This standard does not vary for the testimony of expert witnesses. “Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Citations omitted; internal quotation marks omitted.) State v. Forrest, 216 Conn. 139, 147, 578 A.2d 1066 (1990). We review the defendant’s claim in view of this broad standard.

The defendant asserts that identity is an essential fact, which the state must prove beyond a reasonable doubt to support a conviction. The determination of identity is solely the province of the jury. The defendant cites no case to support the proposition that an opinion as to evidence linking the defendant to a crime is an opinion on an ultimate issue. Our Supreme Court, in fact, has held that expert opinion testimony linking a defendant to a crime scene is admissible. State v. Hasan, 205 Conn. 485, 534 A.2d 877 (1987) (opinion that footprints belonged to defendant’s shoes properly admitted); State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985) (opinion that bite marks belonged to defendant properly admitted). Deadman’s opinion as to the identity of the sperm donor similarly linked the defendant to the crime scene in this case.

We are unpersuaded by the defendant’s argument that the trial court improperly allowed the expert witness to give an opinion on an ultimate issue by permitting testimony that the defendant was the likely source of the semen sample. Our Supreme Court has held that expert testimony on the ultimate issue of intent is inadmissible. State v. Walton, 227 Conn. 32, 59-60, 630 A.2d 990 (1993); State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). Nevertheless, “ ‘[ejxperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.’ . . .” (Citations omitted.) State v. Vilalastra, supra, 41, quoting C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.17.3, p. 186. The trial court does not overstep its discretionary bounds where the opinion was necessary to aid the jury in understanding the expert witness’ testimony. State v. Forrest, supra, 216 Conn. 147; State v. Vilalastra, supra, 42.

Deadman gave complex testimony concerning DNA and statistical probabilities relating to the science of matching DNA probes. A series of radioactive probes determines the DNA profile of a given sample. The testimony in question was admitted to assist the jury in understanding the testimony of the expert witness concerning his DNA analysis. We conclude that the trial court did not abuse its discretion by allowing the expert to give an opinion as to the identity of the semen sample because his opinion could reasonably have aided the jury in understanding the DNA testimony.

II

The defendant next asserts that the trial court improperly allowed Deadman to testify to the statistical probability of the DNA match. The thrust of the defendant’s argument is that the methods of analysis used by the FBI are not generally accepted by the scientific community and are, therefore, unreliable. The defendant argues that the testimony is inadmissible under the Frye standard for admissibility of scientific evidence. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The defendant urges review of the admissibility of testimony based on the FBI’s methods of statistical analysis. Having cited case law from other jurisdictions and scientific articles concerning the reliability of the FBI’s methods, the defendant urges us to review the trial court’s factual finding that the evidence met the Frye standard.

We decline to review factual findings as to whether the DNA testimony satisfied the Frye standard for admissibility of scientific evidence. Although we will review a trial court’s ruling as to whether a Frye finding must be made, we will not conduct an appellate level review of the facts relating to a Frye finding. State v. Merritt, supra, 36 Conn. App. 91. “ Tt is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1980).’ State v. Rios, 30 Conn. App. 712, 716, 622 A.2d 618 (1993).” State v. Shanks, 34 Conn. App. 103, 112-13, 640 A.2d 155, cert. denied, 229 Conn. 921, 642 A.2d 1216 (1994).

Likewise, we are not required to review a claim that was improperly preserved at trial. “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .” Practice Book § 4185. We, therefore, examine the record to discern whether the issue in question was raised at trial.

The defendant failed to preserve objections made to the testimony concerning statistical probabilities. Although the state made an offer of proof in response to the defendant’s objection to the procedure’s reliability, during this offer of proof, the defendant’s counsel withdrew his objection to Deadman’s testimony as to his statistical analysis. “We will not review on appeal rulings that the defendant requested or accepted at trial. State v. Rutan, 194 Conn. 438, 446, 479 A.2d 1209 (1984).” State v. Murdick, 23 Conn. App. 692, 699, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991). We conclude that because the defendant withdrew his objections to the statistical probability testimony, he did not preserve the claim sufficiently. See id.

Nevertheless, the defendant urges review of the admissibility of the statistical analysis evidence under the plain error rule. Practice Book § 4185. The defendant argues that the issue of acceptance of DNA statistical probability testimony is so important to the development of the law in this state that it would be a miscarriage of justice not to decide the issue.

We will reverse a trial court’s rulings on the basis of plain error only in the most limited circumstances. State v. Jackson, 34 Conn. App. 599, 608, 642 A.2d 738, cert. granted, 231 Conn. 917, 648 A.2d 165 (1994). “[I]t is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987). . . . State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); State v. Sawyer, 32 Conn. App. 854, 856-57, 632 A.2d 372, cert. denied, 228 Conn. 911, 635 A.2d 1230 (1993).” (Internal quotation marks omitted.) State v. Jackson, supra, 608.

The trial court’s ruling that Deadman’s testimony as to statistical probabilities was admissible does not merit plain error review. After hearing the expert testimony concerning the methods used by the FBI, the trial court made a Frye finding as to the acceptance of the DNA testimony within the scientific community and admitted the testimony. The state, moreover, presented additional evidence to support the inference that the defendant was the assailant in this case, such as testimony concerning the defendant’s behavior on the day of the attack and Norris’ testimony about the defendant’s proposal that they assault the victim. Under the circumstances, we cannot say that the admission of Deadman’s testimony as to statistical probabilities involves plain error.

III

The defendant next asserts that the trial court should not have permitted Deadman to testify as to the statistical significance of the nonmatching band generated by one of the four probes. The expert testified that the analysis of the third DNA probe was inconclusive and could not be used to match the DNA sample to the defendant. The expert then testified as to his analysis of the DNA sample despite his statement that the third probe was inconclusive. The defendant claims that this testimony potentially was confusing to the jury because the expert’s testimony was internally inconsistent.

The defendant did not properly preserve any objection to Deadman’s testimony relating to the third probe of the DNA analysis. The defendant’s counsel did not object to the testimony as it was presented at trial. In fact, as the state offered slides and transparencies relating to testimony concerning the third probe, the defendant’s counsel specifically stated, both during the offer of proof and in the presence of the jury, that he had no objection to the admission of these items. “Practice Book § 4185 requires that appealable claims of error be distinctly raised at trial. See also Practice Book § 288; State v. Weidenhof, 205 Conn. 262, 273, 533 A.2d 545 (1987).” State v. Forrest, supra, 216 Conn. 146. We, therefore, decline to review the claim raised by the defendant.

The defendant, relying on his argument presented for the second issue, again urges plain error review of the admission of Deadman’s testimony as to the non-matching third probe. The defendant cites no case that supports the proposition that the uncontested admission of confusing testimony is plain error. We therefore conclude that this argument does not raise an error so obvious that its rejection will destroy confidence in the judiciary.

IV

The defendant next raises several issues concerning the trial court’s instructions to the jury. None of these claims was properly preserved at trial. The defendant urges review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994). Furthermore, “[t]he appellate tribunal is free . . . to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 240. We conclude that the record is sufficient to review the defendant’s claims; thus, we will examine the claims under the remaining prongs of the Golding test.

A

The defendant argues that the trial court charged the jury to make a conclusive presumption and directed a verdict of guilty, thus committing error under Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2540, 61 L. Ed. 2d 39 (1979). The defendant’s claim is that the trial court’s instruction relating to the element of consent in the kidnapping charge relieved the state of its burden to prove the element beyond a reasonable doubt. The defendant focuses on the following language in the trial court’s instruction: “If the acts complained of were accomplished by the use of force or violence no further proof is required to establish lack of consent upon the victim’s part.”

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

Although the defendant asserts that this claim is of constitutional magnitude, we conclude that the instruction in question does not rise to the level of a constitutional violation sufficient to pass the second prong of Golding. “Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” State v. Golding, supra, 213 Conn. 240; see also State v. Walton, supra, 227 Conn. 64.

Our Supreme Court has upheld an instruction that includes a nonmandatory presumption. State v. Palmer, supra, 206 Conn. 40. Although “[i]n Sandstrom v. Montana, supra, [442 U.S.] 517-24, the United States Supreme Court held that a jury instruction that ‘the law presumes that a person intends the ordinary consequences of his voluntary acts’ violated the defendant’s due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. . . . Sandstrom does not invalidate, for example, the use of an ‘entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.’ Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979) . . . .” (Citations omitted.) State v. Amarillo, 198 Conn. 285, 300-302, 503 A.2d 457 (1980); State v. Palmer, supra, 47.

The instruction in question did not require the jury to make a conclusive presumption as to the element of consent. The language to which the defendant points is offset by the preceding sentence of the charge, which states: “The essential nature of kidnapping requires that before you can convict you must find that the restraint and abduction were effected against the victim’s will or at least without the victim’s consent.” The trial judge then gave the instruction with which the defendant takes issue, but only after giving the qualifying instruction, which removed the charge from the realm of Sandstrom error. Because there is no Sandstrom violation, the claim fails to satisfy the second prong of the Golding test.

B

The defendant next asserts that the trial court should not have instructed the jury on the threat of the use of force in relation to the charge of sexual assault in a spousal relationship. The defendant argues that the statutory alternative was not supported by the evidence, and, alternatively, that the charge sanctioned a nonunanimous verdict.

The defendant’s claim fails to satisfy the second prong of the Golding analysis because the instruction in question does not rise to the level of a constitutional violation. “[T]he United State Supreme Court has held that a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation. Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991).” State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994). Thus, the defendant’s claim that his federal constitutional rights were violated by the instruction at issue is not entitled to Golding review.

The defendant’s claim that the same instruction violated his state constitutional right to a fair trial fails to satisfy the third prong of Golding because the defendant’s constitutional right was not clearly violated. Our Supreme Court in State v. Chapman, supra, 229 Conn. 529, did not decide the issue of whether an instruction as to a statutory alternative unsupported by the evidence violates a state constitutional right. Even if we assume, arguendo, that this claim involves a state constitutional right, an examination of the record compels us to conclude that, in fact, the instruction in question is supported by the evidence. The defendant argues that the state presented no evidence that the victim faced a threat of the use of force. The defendant points out that on the two occasions when the assailant spoke, his words were not threatening. Even conceding this point, the jury reasonably could have found that the knife in the assailant’s hand was a sufficient threat to support the statutory alternative concerning which the court instructed.

The defendant’s assertion that the charge in question sanctioned a nonunanimous verdict is not a constitutional issue sufficient to pass the second prong of Golding. A similar claim has been rejected by our Supreme Court, even in the instance where a trial judge expressly sanctioned a nonunanimous verdict. State v. Tucker, 226 Conn. 618, 629 A.2d 1067 (1993). “The use of force and the threat of the use of force are quite simply two alternative methods of compulsion used by an actor to commit the one crime of sexual assault in the first degree. . . . To invalidate a jury instruction that mirrors the disjunctive language of the statute defies both logic and experience. . . . ‘[Sjpecific unanimity instructions are not required if the alternative bases of liability are not “conceptually distinct.” . . .’ State v. Bailey, 209 Conn. 322, 334-35, 551 A.2d 1206 (1988).” (Citations omitted.) State v. Tucker, supra, 646-47. We conclude that the trial court’s instruction on the threat of the use of force as a statutory alternative did not implicate the defendant’s right to a fair trial.

C

The defendant next asserts that the trial court’s instruction on attempt violated the defendant’s right not to be convicted except upon proof beyond a reasonable doubt. The defendant claims that the trial court incorrectly charged the jury on the state of mind necessary to support a conviction of attempted sexual assault in a spousal relationship.

The defendant argues that the court improperly instructed the jury that “[a] person is guilty of attempt to commit a crime if acting with the kind of mental state required for the commission of the crime he intentionally does or omits to do anything which under the circumstances as he believes them to be is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime .... He must have acted with the same state of mind required for sexual assault in a spousal relationship.” The defendant’s claim appears to be that this instruction is improper because the trial court failed to use the phrase “specific intent” to describe the requisite intent for the attempted crime.

Although the defendant’s claim is sufficiently constitutional in nature to satisfy Golding’s second prong; see State v. Zaporta, 36 Conn. App. 250, 264, 650 A.2d 582 (1994); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994); the instruction fails to satisfy the third prong of Golding because the instruction did not clearly violate the defendant’s right to a fair trial. The instruction in question complied with the statutory definition of the requisite intent and with the case law on the issue. General Statutes § 53a-49 (a) provides that “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” “It is plain from a reading of General Statutes § 53a-49 (a) that the intent required for attempt liability is the intent required for the commission of the substantive crime.” State v. Almeda, 189 Conn. 303, 307, 455 A.2d 1313 (1983). The trial court’s instruction on the requisite intent for the substantive crime is not challenged on appeal and adequately informed the jury of the state of mind necessary to find the defendant guilty of the substantive offense; likewise, the instruction concerning the intent required for the attempt charge is adequate. We conclude that the trial court’s instruction on attempt did not clearly violate the defendant’s constitutional right to be found guilty only upon proof beyond a reasonable doubt.

D

Finally, the defendant argues that the trial court improperly instructed the jury on the presumption of innocence and reasonable doubt in violation of the defendant’s due process right to a fair trial. The defendant specifically takes issue with the following parts of the trial court’s instructions: (1) the “rules of law . . . are made to protect the innocent and not the guilty,” (2) “a reasonable doubt . . . is a doubt held by a reasonable person,” and (3) “if . . . the evidence . . . produces in your mind a settled and abiding belief that you would be willing to act upon in matters of the highest importance relating to your own affairs, then in that event you would be free from a reasonable doubt.” We review these instructions seriatim.

The first instruction fails to satisfy the second prong of Golding. Language similar to that used here has been upheld by our Supreme Court. State v. Francis, 228 Conn. 118, 635 A.2d 762 (1993). The phrase “the law is made to protect society and innocent persons, and not to protect guilty ones” gives rise to “no constitutional error in connection with this instruction.” Id., 136; see also State v. Walton, supra, 227 Conn. 67; State v. Tucker, supra, 226 Conn. 651-52. We conclude that the instruction in question does not rise to the level of a constitutional violation and, therefore, fails to satisfy Golding’s second prong.

Likewise, the claim regarding the second instruction does not rise to the level of a constitutional violation. “The challenged instructions are similar or identical to jury instructions that have previously been approved by our Supreme Court. State v. DePastino, 228 Conn. 552, 572, 638 A.2d 578 (1994) (‘a doubt for which a valid reason can be assigned’); State v. Gomez, 225 Conn. 347, 353, 622 A.2d 1014 (1993) (‘a doubt for which a reasonable man or woman can give a valid reason’); State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993) (‘a doubt for which a valid reason can be assigned’); State v. Derrico, 181 Conn. 151, 171, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980) (‘one for which you can, in your own mind, conscientiously give a reason’); State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992) (‘a doubt for which a valid reason may be assigned’), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) (certification improvidently granted).” State v. Goodman, 35 Conn. App. 438, 441-42, 646 A.2d 849 (1994). The challenged instruction, therefore, does not satisfy the second prong of Golding.

Finally, the. third instruction that the defendant asserts is improper is almost identical to language contained in his request to charge and, therefore, is induced error, which we decline to review. State v. Walton, supra, 227 Conn. 67; State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985).

The “willing to act” language does not appear in the defendant’s request to charge but fails to satisfy the second prong of Golding. Although expressing disapproval of this instruction, our Supreme Court has upheld this language because it does not rise to the level of constitutional error. State v. Johnson, 214 Conn. 161, 179, 571 A.2d 79 (1990); State v. Smith, 210 Conn. 132, 150, 554 A.2d 713 (1989). Accordingly, we decline to review this instruction as it does not implicate the defendant’s constitutional rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4028, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-92 (a) provides in pertinent part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       General Statutes § 53a-70b (b) provides: “No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury.”

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       “In Frye, the court set forth a special rule for the admission of testimony regarding scientific evidence. The court stated that ‘£j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ (Emphasis added.) Frye v. United States, supra, 293 F. 1014.” State v. Merritt, supra, 36 Conn. App. 82. “While our Supreme Court has never explicitly adopted a statement of Frye that includes reference to the reliability of the scientific test or procedure, it has, in essence, affirmed that relationship.” Id., 82 n.3; see also State v. Hasan, supra, 205 Conn. 490. In State v. Sivri, 231 Conn. 115, 154 n.31, 646 A.2d 169 (1994), a case challenging the admissibility of population frequency statistics to determine the significance of a DNA match, our Supreme Court noted that the United States Supreme Court has abandoned the Frye test. To date, our court has not followed suit. The trial court here applied the Frye test and, under the current state of the law in Connecticut, it was not plain error for it to do so. Because we hold that review of this unpreserved claim is not warranted, we express no opinion as to the continued viability of the Frye test in Connecticut.

       The defendant requested the following instruction: “Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.” The defendant’s brief does not clearly state how this language differs from the trial court’s instruction in such a way as to violate a constitutional right of the defendant.