author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. STEPHEN G.

    (AC 28232)
    Bishop, McLachlan and Gruendel, Js.

      Argued January 5
    officially released April 14, 2009

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Pamela J. Esposito, assistant state’s attorney, for the appellee (state).

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

   Opinion

GRUENDEL, J.

The defendant, Stephen G., appeals from the judgment of conviction, rendered after a trial to the court, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a). The defendant claims that (1) his conviction must be reversed because the record contains no waiver of his right to a jury trial and (2) the evidence was insufficient to establish sexual assault in the third degree. We reverse the judgment of the trial court.

The court reasonably could have found the following facts. L lived in Trumbull with her husband, two children and mother-in-law. On the morning of November 19,2004, L was in need of a ride to St. Vincent’s Hospital in Bridgeport to pick up certain paperwork. At approximately 11:15 that morning, the defendant, a cousin of her husband, called. L explained her predicament, and the defendant agreed to give her a ride to the hospital during his lunch break.

On the way to the hospital, the defendant asked L to perform fellatio on him when they returned to her home; L declined. He persisted with that request on the drive back to Trumbull to no avail. When they arrived at L’s house, the defendant followed L into her bedroom and threw her onto the bed. When she got up, the defendant again threw L onto the bed, causing a part of the bed to break. L informed the defendant that he was scaring her. L managed to slip past the defendant, exiting the bedroom, but the defendant caught her in a hallway and forced her onto a bench. The defendant then “put his legs over [L’s] legs so that [she] could not move . . . .” L testified that the defendant “pulled his pants down . . . shoved his . . . penis in my face . . . started jerking off, told me to stick my tongue out, and I could . . . barely stick my tongue out and [he] continued to jerk off in my face and then ejaculated on my tongue, like sort of in my mouth, and then backed up, pulled his pants up and said: ‘That’s not how a pom star does it.’ ” L testified that the encounter lasted “a minute, maybe, two minutes.” L subsequently reported the incident to the Trumbull police, and the defendant was arrested and charged with sexual assault in the third degree and unlawful restraint in the second degree.

A court trial followed, at the conclusion of which the court found the defendant guilty on both counts. The court found that “in the hallway, the defendant did in fact pin [L], by virtue of his size in comparison to her size, on the bench, and he did in fact masturbate, and he did in fact sexually assault her in the third degree. . . . [A]ll elements of that statute have been met, and ... all elements of the unlawful restraint charge have also been met beyond a reasonable doubt.” The defendant thereafter filed a motion for a judgment of acquittal on the sexual assault count. In that motion, the defendant stated: “The state did not prove beyond a reasonable doubt that the defendant is guilty of sexual assault in the third degree because there is no evidence that there was ‘sexual [contact,’ meaning] that the defendant touched her with his penis. In addition, although there was evidence that the defendant ejaculated on her, ejaculate is not an ‘intimate part.’ To have ‘sexual contact’ under the statute there must be contact with an intimate part. Pursuant to [General Statutes] § 53a-72a and the definitions supplied [by General Statutes] § 53a-65 (3) and 53a-65 (8), the alleged facts, even if accepted in [total, do] not fit the charge.” At the February 15, 2006 hearing on the motion, the state repeated its theory of proximity with the genital area and contact with ejaculate, arguing that ejaculate was included within the definition of sexual contact. The state further argued that the state had proven contact via L’s testimony that the defendant had “shoved his penis in [her] face” and that he had pinned her down using his thighs. At the conclusion of the healing, the court reserved judgment on the motion.

On March 14, 2006, the court ruled on the motion for a judgment of acquittal from the bench. The court articulated the factual basis of its decision, finding that the defendant used his superior weight to wrap his legs around L and pin her to the bench. The court stated that “it is a reasonable and logical conclusion . . . that not only did the defendant place his inner thighs against [L], but also, he forced contact with his genital area with [L’s] body.” The court continued: “[The defendant] then proceeded to masturbate and sprayed ejaculate onto her face. I think it’s also a reasonable and logical inference for this court to find that at some point, there was contact between the defendant’s penis and [L], but that’s not . . . needed because he definitely had contact with his inner thighs and with his genital area just by the fact that he was straddling her and pinning her.” The court stated that “straddling [L’s] body with his legs, making contact with his inner thighs . . . the logical inference is that his genital area also came into contact with the victim. I don’t see how it could not have.” As such, the court found that the defendant’s “contact with his inner thighs and genital area, statutorily designated intimate parts,” constituted sexual contact. The court thus denied the defendant’s motion for a judgment of acquittal. This appeal followed.

I

The defendant first claims that his conviction must be reversed because the record contains no waiver of his right to a jury trial. “The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. . . . [T]he definition of a valid waiver of a constitutional right [is] the intentional relinquishment or abandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book.” (Citations omitted; internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 751-52, 859 A.2d 907 (2004).

The defendant did not preserve his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).In State v. Gore, 288 Conn. 770, 955 A.2d 1 (2008), our Supreme Court held that “because the right to a jury trial is uniquely personal to the defendant, an affirmative indication of the defendant’s personal waiver of this right must appear on the record, and the defendant’s silence or failure to object to defense counsel’s purported waiver is constitutionally insufficient to demonstrate a valid waiver.” Id., 783. As the record in that case did not reflect any indication from the defendant personally that he had waived his fundamental right to a jury trial, the court concluded that “the waiver expressed by defense counsel was insufficient to constitute a valid waiver, and that the defendant has satisfied the third prong of Golding.” Id., 789-90.

The state acknowledges that Gore controls the present case, conceding that there is no affirmative indication from the defendant on the record that he waived his right to a jury trial. We agree. On that basis, the defendant is entitled to a new trial.

n

The defendant next claims that the evidence adduced at trial was insufficient to establish sexual assault in the third degree. He contends that there was insufficient evidence from which the court could have concluded beyond a reasonable doubt that sexual contact had occurred.

We begin by noting that “for the purposes of sufficiency review after concluding that a new trial is required, we review the sufficiency of the evidence as the case was tried; in other words, we review the evidence in its improperly restricted state, impropriety notwithstanding. ... [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 73 Conn. App. 173, 179-80, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002). “[T]he [d]ue [p]rocess [cjlause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The standard of review for a sufficiency of the evidence claim employs a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the [finder of fact] if there is sufficient evidence to support [its] verdict.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 517, 782 A.2d 658 (2001).

It is axiomatic that “the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006). With that standard in mind, we turn to the defendant’s claim.

General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .” The term “sexual contact,” in turn, is defined as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.” General Statutes § 53a-65 (3). “Intimate parts” is defined as “the genital area, groin, anus, inner thighs, buttocks or breasts.” General Statutes (Rev. to 2003) § 53a-65 (8).

A

We consider first the court’s conclusion that “it’s ... a reasonable and logical inference for this court to find that at some point, there was contact between the defendant’s penis and [L] . . . .” To establish the defendant’s guilt under § 53a-72a (a) (1) (A), the state was required to prove beyond a reasonable doubt, inter alia, that the defendant subjected L to contact with an intimate part. Although the state presented evidence that the defendant masturbated directly in front of L, there simply is no evidence whatsoever in the record that contact occurred between the defendant’s penis and L. The state never asked L if she came in contact with the defendant’s penis, nor did she so testify. In light of that dearth of evidence, we conclude that the element of contact via the defendant’s penis was not established beyond a reasonable doubt.

B

We likewise conclude that the element of contact with an intimate part was not proven beyond a reasonable doubt by evidence indicating that the defendant ejaculated on L. Under § 53a-65 (8), as the 2003 revision of that statute reads, the definition of “intimate parts” does not include ejaculate or other bodily substance. In his motion for a judgment of acquittal, the defendant raised that precise argument. The state concedes in its appellate brief that “the court . . . did not reach the legal issue of whether ejaculate in the face fell within the statutory definition of sexual contact.” On appeal, the state does not contend that the statutory definition encompasses ejaculate. We are mindful that we “must refrain from imposing criminal liability where the legislature has not expressly so intended. . . . [C]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . [Ujnless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 788-89, 772 A.2d 559 (2001). Absent any argument to the contrary, we must conclude that the element of contact with an intimate part was not proven beyond a reasonable doubt in the present case by evidence that the defendant ejaculated on L.

C

We next consider the court’s determination that L’s contact with the defendant’s inner thighs constituted sexual contact. Apart from his claim of evidential insufficiency, the defendant contends that his due process rights under the sixth and fourteenth amendments to the constitution of the United States have been compromised because he did not have notice of the charge and an opportunity to defend against it. The defendant concedes that his claim is unpreserved and requests Golding review. We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 92 L. Ed. 644 (1948).

“It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. . . . These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend.” (Citations omitted.) Jackson v. Virginia, 443 U.S. 307, 314, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see also State v. Sirimanochanh, 224 Conn. 656, 664, 620 A.2d 761 (1993). As the United States Supreme Court noted, “[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. Arkansas, supra, 333 U.S. 201. Similarly, regarding theories of prosecution, “it is well established that [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 718-19, 905 A.2d 24 (2006).

Upon the defendant’s arrest, the state alleged in its short form information that he had violated § 53a-72a. The defendant then sought a bill of particulars identifying the “specific acts allegedly attributed to [him]’’and the “specific statutory subsection(s) and/or subsections^) alleged. In response, the state filed a long form information that alleged in relevant part that “on or about the 19th day of November, 2004 [the defendant] did compel [L] to sexual contact with his intimate parts, to wit: his genital area, by the use of force against her, in violation of [General Statutes] § 53a-72 (a) (1) (A).” (Emphasis added.) Although the definition of “intimate parts” provided by General Statutes (Rev. to 2003) § 53a-65 (8) includes “the genital area, groin, anus, inner thighs, buttocks or breasts,” the state plainly did not allege sexual contact via the defendant’s inner thighs, nor did it pursue such a theory at trial. Rather, it was only after the court rendered judgment and the defendant moved for a judgment of acquittal that the state raised the possibility that sexual contact was established by contact with the defendant’s inner thighs. “The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 155, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). In light of the foregoing, we conclude that the defendant was not so informed.

At the same time, “[i]t is the defendant’s burden on appeal to demonstrate that he was in fact prejudiced in his defense on the merits as a result of a material variance between the allegations in a bill of particulars and proof at trial, and that substantial injustice was done to him because of the language of the state’s pleadings.” (Internal quotation marks omitted.) Id.; State v. Roque, 190 Conn. 143, 156, 460 A.2d 26 (1983). The defendant has not met that burden. His defense was predicated on an alibi witness, who testified that he was with the defendant at the time of the alleged assault. If the court, as fact finder, had credited his defense, he would have been acquitted of sexual assault in the third degree. That defense encompassed the claim of sexual assault via contact with his genital area as well as sexual assault via contact with his inner thighs. See State v. Franko, 199 Conn. 481, 491, 508 A.2d 22 (1986). Our appellate courts have rejected similar due process challenges in the face of an alibi defense. See State v. Milardo, 224 Conn. 397, 415, 618 A.2d 1347 (1993); see also State v. Sirimanochanh, supra, 224 Conn. 664-65. Furthermore, during the prosecution of its case, the state presented evidence that the defendant pinned L to the bench by forcefully straddling her. There is nothing in the record to suggest that the defendant would have altered his alibi defense had he believed that the state was proceeding on a theory of contact with his inner thighs as opposed to his genital area. As a result, the defendant cannot demonstrate the requisite prejudice resulting from the state’s failure to provide proper notice regarding sexual contact by his inner thighs.

Although the court’s consideration of the issue of contact with the defendant’s thighs was proper, we must also evaluate its conclusion thereon. The defendant maintains that there was insufficient evidence from which the fact finder could have concluded beyond a reasonable doubt that L made contact with his inner thighs. We do not agree.

L testified at trial as to the manner in which the defendant physically assaulted her. After forcing her to a bench in the hallway of her home, L testified that the defendant “put his legs over my legs so ... I could not move even if I wanted to.” L later described that positioning in greater detail and visually demonstrated how the defendant was positioned. She testified as follows:

“[The Prosecutor]: Now, you described his legs around your body.
“[The Witness]: Yep. . . .
“[The Prosecutor]: Where were you seated?
“[The Witness]: I was seated like this. . . .
“[The Prosecutor]: . . . Explain to the court, please, how high that bench is. Is it as high as the chair that you are sitting in now?
“[The Witness]: Yes, maybe a little — yes. I would say like this. . . .
“[The Prosecutor]: And describe to the court, please, by showing — using your own body so the court can see you seated in your chair, could you please indicate how you were seated on the bench?
“[The Witness]: Like this. I don’t know if you can see.
“The Court: The record will indicate that the witness is seated with her legs together and her feet flat on the floor.
“[The Witness]: Right. . . .
“[The Prosecutor]: Describe, please, how [the defendant] was in relation to your body.
“[The Witness]: Well, I have to stand up.
“[The Prosecutor]: Okay. . . . May she stand up, Judge?
“The Court: Yes.
“[The Witness]: I was seated like this; he was seated— or his legs were over mine.
“The Court: Straddling you?
“[The Witness]: Yes, right.
“The Court: Okay.
“[The Prosecutor]: Thank you. And, again, from your seated position, can you indicate on your leg where his knees were? You are saying that his legs were straddling you?
“[The Witness]: Well, he’s taller. They were maybe, like, right here. Well, his knees — well, I know his penis was in my face, so his knees must have been down around down here.
“[The Prosecutor]: Could you feel his legs on your legs?
“[The Witness]: Yeah, because they were holding me there. I went — there was no way I could move.”

The court thus was presented with evidence not only that the defendant surrounded L’s legs with his own, but that he straddled her. The count also was presented with evidence that, by so doing, the defendant restrained L. In addition, L demonstrated to the court the precise positioning by which the defendant accomplished that restraint. The count expressly credited L’s testimony.

As an appellate body constrained by a cold record, we have no way of reviewing L’s visual demonstration in any meaningful way. As such, we must defer to the trial count’s superior vantage of assessment. “Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence.” (Internal quotation marks omitted.) LaVelle v. Ecoair Corp., 74 Conn. App. 710, 716, 814 A.2d 421 (2003); see also Feen v. New England Benefit Cos., 81 Conn. App. 772, 780, 841 A.2d 1193 (noting trial court’s “superior position to evaluate those factors as they coalesce at trial and the disparate ability of a reviewing court to glean such things from the written record”), cert. denied, 269 Conn. 910, 852 A.2d 739 (2004); State v. Salerno, 36 Conn. App. 161, 170-71, 649 A.2d 801 (1994) (“trial court occupied the best vantage point for assessing courtroom events”), appeal dismissed, 235 Conn. 405, 666 A.2d 821 (1995). Indeed, this court lacks any vantage point to review that evidence. Having observed L’s physical representation as to the manner in which the defendant forcefully pinned her to the bench, the court, as the finder of fact, was in a better position to evaluate that evidence and draw reasonable inferences therefrom. That evidence undoubtedly informed the court’s consideration of whether contact transpired between the defendant’s thighs and L.

In denying the defendant’s motion for a judgment of acquittal, the court found that the defendant “did forcibly restrain [L] . . . straddling her body with his legs, making contact with his inner thighs . . . .” Although the defendant, on appeal, argues that the height difference between L and the defendant suggests that he had “his knees, and therefore his thighs, above [L’s] knees and above her legs,” we are mindful that “we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, supra, 279 Conn. 403. In reviewing claims of evidential insufficiency, our role is limited. The question is not whether this court might have reached the same conclusion but whether the trial court could not reasonably have concluded as it did. Construing the evidence in the light most favorable to sustaining the trial court’s finding, the cumulative effect of the aforementioned evidence supports the court’s finding that sexual contact occurred beyond a reasonable doubt. Accordingly, the court’s denial of the motion for a judgment of acquittal was not improper.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       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 haxmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40. Golding’s first two prongs relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jarrett, 82 Conn. App. 489, 492 n.1, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).

       The defendant also alleged in his appellate brief that his rights to due process and to present a defense were violated by the state’s attempts to impeach his alibi witness and that the court violated his due process rights by its reliance on facts that were not in evidence. In his reply brief, the defendant abandons those claims in light of the state’s concession that the record contains no waiver of his right to a jury trial, as they are unlikely to arise on retrial.

       Although we conclude that the defendant’s conviction must be reversed and a new trial ordered, we address the defendant’s evidential insufficiency claim because a finding that the evidence was insufficient to convict him would result in a judgment of acquittal as to that count. See State v. Padua, 273 Conn. 138, 178-79, 869 A.2d 192 (2005) (“[ijnterests of judicial efficiency, sound appellate policy and fundamental fairness require a reviewing court to address a defendant’s insufficiency of the evidence claim prior to remanding a matter for retrial because of trial error”); State v. Theriault, 38 Conn. App. 815, 823 n.7, 663 A.2d 423 (“[ajlthough we find the defendant’s [jury charge claim] dispositive, we must address the sufficiency of the evidence claim since the defendant would be entitled to an acquittal of the charge if she prevails on this claim”), cert. denied, 235 Conn. 922, 666 A.2d 1188 (1995). That claim was properly preserved by his motion for a judgment of acquittal. See State v. Padua, supra, 146 n.12. The defendant alleges only that the evidence was insufficient to support his conviction of sexual assault in the third degree. He does not challenge the sufficiency of the evidence with respect to his conviction of unlawful restraint in the second degree.

       At trial, there was no allegation or evidence that the defendant made contact with an intimate part of L. Rather, the issue was whether an intimate part of the defendant had contact with L.

       The state did ask L whether the defendant’s hand made contact with her as he masturbated, to which L responded negatively:
      “[The Prosecutor]: [C]ould you describe to the court, please, the motion with which [the defendant] was ejaculating; was he using one hand or two?
      “[The Witness]: One.
      “[The Prosecutor]: Where was the other hand?
      “[The Witness]: Probably down by his side, I guess. . . .
      “[The Prosecutor]: Do you recall the motion that he was using to ejaculate in your face?
      “[The Witness]: Yes, like how you — like this.
      “[The Prosecutor]: So, the shaft of his penis was in his hand; is that right?
      “[The Witness]: Yes.
      “[The Prosecutor]: And do you recall if he was touching your face with his hand as he was ejaculating at all?
      “[The Witness]: No, no.”

       We note that General Statutes (Rev. to 2003) § 53a-65 (8) subsequently was revised by Public Acts 2006, No. 06-11, § 1, to include “the genital area or any substance emitted therefrom . . . (Emphasis added.) General Statutes § 53a-65 (8).

       “A bill of particulars limits the state to proving that the defendant has committed the offense in substantially the manner described.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 341, 696 A.2d 944 (1997).

       The only statement made by the prosecutor in her closing argument pertaining to sexual contact was as follows: “I believe there’s testimony at some point the penis itself was making contact — but certainly there’s no doubt that she indicated that the semen was on her face . . . .”

       Straddling is “the act of standing, sitting, or walking, with the legs wide apart.” Webster’s New International Dictionary (3d Ed.) p. 2254.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. WILLIE BROWN
    (AC 29141)
    Gruendel, Harper and Pellegrino, Js.
    Argued February 18
    officially released April 14, 2009

      Laljeebhai R. Patel, special public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Robert J. O’Brien, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Willie Brown, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3) and assault of an elderly person in the third degree in violation of General Statutes § 53a-61a (a) (1). He claims that (1) the evidence was insufficient to sustain a conviction as to either crime and (2) the court abused its discretion in denying his motion to suppress evidence of his pretrial identification. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, William Willis, owned a scrap metal shop (scrap yard) located at 569 North Colony Street in Meriden. Due to the nature of his business, the victim regularly kept a substantial sum of money in a ziplock bag that he tucked in his waistband. In addition, he kept a second ziplock bag containing medication in his waistband. On February 22, 2006, he was sixty-eight years old.

At approximately 7 o’clock that morning, the victim noticed the defendant entering the scrap yard. After the victim inquired as to whether he could be of any assistance, the defendant forced him to the ground. The defendant repeatedly ordered the victim to “give me your money” and brandished a knife of roughly six inches, which he held to the victim’s face. As the two struggled on the ground, the victim yelled to a nearby employee, Gary Kafka, for help. The defendant forced the victim onto his back and reached for his waistband, retrieving both ziplock bags. When Kafka came running to the scene, the defendant turned his knife in Kafka’s direction and cautioned, “Get away from me or I’ll fucking cut you.” Kafka backed away and ran into the street, where he stopped a passing motorist, Randy Cousino. When Cousino looked to the scrap yard, he saw the defendant “using a lot of energy, like he was beating on someone.” As he exited his vehicle, Cousino saw two men, Michael Dionizio and Incensio Ramos, run out of a neighboring deli. As the men together ran toward the scrap yard, the defendant fled. They chased the defendant along North Colony Street to its intersection with Griswold Street without losing sight of him. As they passed the victim, the victim exclaimed, “Stop him, he’s got my money!” Upon reaching the intersection, Ramos, a retired firefighter, displayed his retirement badge and ordered the defendant to the ground. After detaining the defendant, Dionizio called 911. While waiting for law enforcement to arrive, Dionizio noticed a ziplock bag in the defendant’s pocket. He retrieved it and observed that the bag contained the victim’s medication. At that time, Kafka arrived at the scene and recognized the detainee as the victim’s attacker.

Officer Esteven Lespier of the Meriden police department arrived approximately five minutes later. As Les-pier placed the defendant in handcuffs, Kafka informed him that the defendant had assaulted the victim. Soon thereafter, the bloodied victim came walking along the street. The victim immediately recognized the defendant as his attacker and provided that identification to Lespier.

The defendant subsequently was charged with and convicted of larceny in the second degree and assault of an elderly person in the third degree. The court thereafter sentenced the defendant to a total effective term of ten years incarceration. This appeal followed.

I

The defendant first alleges evidential insufficiency. Specifically, he claims that the evidence concerning the identity of the perpetrator was insufficient to establish his participation in the charged crimes. We do not agree.

The standard of review for a sufficiency of the evidence claim employs a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the [finder of fact] if there is sufficient evidence to support [its] verdict.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 517, 782 A.2d 658 (2001). “[T]he issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury.” (Internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 256, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 403, 902 A.2d 1044 (2006).

The defendant’s claim exhibits a fundamental misunderstanding of that standard. In the present case, the jury heard testimony from multiple witnesses that the defendant was the victim’s assailant. The victim, Kafka and Cousino all so testified on the basis of their firsthand observation. As the sole arbiter of the credibility of witnesses, the jury was free to believe that testimony. See State v. Smith, 99 Conn. App. 116, 136, 912 A.2d 1080, cert. denied, 281 Conn. 917, 917 A.2d 1000 (2007). Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded beyond a reasonable doubt that the defendant perpetrated the crimes of February 22, 2006.

II

The defendant next contends that the court abused its discretion in denying his motion to suppress evidence of his pretrial identification by the victim. “[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . . Furthermore, [w]e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of fact-bound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Citation omitted; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

The defendant’s claim is controlled by Ledbetter and State v. Wooten, 227 Conn. 677, 631 A.2d 271 (1993). In Wooten, our Supreme Court held that, although suggestive, the “one-to-one show-up or confrontation” on the scene between the victim and the defendant “was nonetheless not unnecessarily [suggestive] because the exigencies of the situation justified the procedure .... The confrontation was not unnecessary because it was prudent for the police to provide the victim with the opportunity to identify her assailant while her memory of the incident was still fresh . . . and because it was necessary to allow the police to eliminate quickly any innocent parties so as to continue the investigation with a minimum of delay, if the victim excluded the defendant as a suspect or was unable to identify him.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 686. The court in the present case expressly relied on that precedent in determining that the victim’s February 22, 2006 identification of the defendant as his assailant was not unnecessarily suggestive. On our careful examination of the record, we agree. The court did not abuse its discretion in denying the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3).

       The defendant does not acknowledge that testimony in his appellate brief.

       In addition, the jury was presented with evidence of the victim’s February 22, 2006 identification of the defendant as his assailant. Lespier testified that when the victim arrived at the intersection of North Colony Street and Griswold Street, he indicated that the defendant “was the person that assaulted him.”


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. GERCI PEREIRA
    (AC 29647)
    McLachlan, Lavine and West, Js.

      Argued January 6
    officially released April 14, 2009

      John Serrano, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert F. Mullins, Sr., deputy assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Gerci Pereira, appeals from the judgment of conviction rendered after the trial court denied his motions for a judgment of acquittal and a new trial. Following a trial by jury, the defendant was convicted of assault in the third degree pursuant to General Statutes § 53a-61 (a) (l), risk of injury to a child pursuant to General Statutes § 53-21 (a) (l) and criminal violation of a protective order pursuant to General Statutes § 53a-223 (a). The jury found the defendant not guilty of threatening in the second degree in violation of General Statutes § 53a-62 (a) (2). The defendant claims on appeal that the court improperly admitted evidence of his prior uncharged misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim lived together in Massachusetts in a difficult and violent relationship. They separated shortly after their only child was bom. Sometime in early 2006, after the defendant attacked the victim, the victim’s brother brought her and the child to Connecticut. The victim and the child initially lived in West Hartford with her brother and subsequently moved into an apartment in Hartford.

On March 19, 2007, when the child was one and one-half years old, the defendant entered the victim’s apartment building, although he did not have a key card to enter it or a key to operate the elevator, and knocked on her door. The victim asked the defendant to leave “because [she] wanted no problems with him.” The defendant stated that he wanted to see his child, and the victim told him that he would have to go to court for that. When she attempted to close the door of her apartment, the defendant forced his way in. He started pulling the victim toward the kitchen and told her that he would kill her and that she had no escape. The victim managed to free herself, ran out of the apartment and knocked on her neighbor’s door. The neighbor later testified that the victim screamed for help and told him that the defendant was trying to kill the child.

The defendant followed the victim to the neighbor’s apartment. Holding the child in one hand and a knife in the other, he told the victim that he would kill himself and the child if she called the police. The neighbor, who witnessed the defendant making the threat, testified that he told the defendant to calm down and that no one was going to call the police. The defendant then proceeded toward the elevator with the child, and the neighbor followed him while the victim called the police. The neighbor followed the defendant downstairs and eventually took the child and brought him back to the victim.

During the trial and outside of the jury’s presence, the court summarized its earlier discussion with both counsel about the state’s offer of proof regarding three instances of the defendant’s prior uncharged misconduct. The court explained that the state relied on State v. Irizarry, 95 Conn. App. 224, 896 A.2d 828, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006), in which a defendant was convicted of threatening in the second degree in violation of § 53a-62 (a) (2), and this court decided that prior uncharged conduct of that defendant was admissible on the issue of his intent to terrorize the victim. The court stated that Irizarry “recognized that there must be a balancing between the probative value of the offered evidence and its prejudicial effect” and that such “balancing can only be undertaken by the court following [the] offer of proof.” The court also stated that if the testimony was admitted, limiting jury instructions would be required following the testimony and at the conclusion of the case.

The state made the following offer of proof. The victim testified that on May 17, 2006, she encountered the defendant as she and the child were returning from a doctor’s appointment, accompanied by her male friend. The friend was holding an infant car seat with the child in it. The defendant told the friend that the child was his and ordered him to let go of the seat. The defendant then punched the victim’s friend and left. The state asked the victim, “Did he make any . . . threats of violence toward you?” and she replied, “He was always making threats.” The victim proceeded to testify about two additional incidents that occurred on September 21, 2006, and January 21, 2007.

The state then argued that, in each incident prior to March 19, 2007, “there was a threat and it was followed by an assault . . . [and] the state’s position is [that] it’s reasonable for this victim, based on her prior incidents with [the defendant], to believe that he was going to follow through on that threat. . . . [0]ne of the only ways for the state to prove [the defendant’s intent] is based on extrinsic evidence such as prior . . . uncharged misconduct.” The state further argued that threatening in the second degree is a specific intent crime and that the defendant’s prior misconduct was probative on the issue of whether the defendant intended on March 19, 2007, to put the victim in fear.

The court decided that the victim’s memory regarding the events of September 21, 2006, and January 21, 2007, was faulty and that her testimony about those events was not sufficiently probative to be admitted. The court concluded, however, that the May 17, 2006 event was sufficiently similar to the incident in which the defendant was charged because an assault or an injury was brought against a third person to threaten the victim. The court stated that the victim would need to testify about a specific threat that took place on May 17, 2006, for the evidence regarding that event to have probative value because her previous statement that “[the defendant] was always making threats,” was not sufficiently probative. The court also noted that the problem with the victim’s testimony might have been a “translation issue.” The state then asked the victim whether she remembered what the defendant did as she and her friend were returning from the doctor’s appointment on May 17, 2006. The victim stated, “He came running and hit my friend. He was threatening; he talked about killing; he hit him in the face and he ran; if you don’t remove your hand from my child.”

The court then stated that it would allow the state to “very narrowly question on that one incident” and that it would provide a limiting instruction right after the victim’s testimony on that issue. The court concluded that the event of May 17, 2006, was “probative on the issue of intent with regard to threatening with the intent to terrorize” because it “involve[d] threats [and] an injury to a third party.” The court further decided that “[a]s far as the prejudicial part of it . . . it would not unduly prejudice the defendant, in that, it is certainly of less seriousness than the present matter.” The court concluded that the probative value outweighed the prejudicial effect with regard to the May 17,2006 incident and that “[it] is specific as to the intent in the threatening in the second degree, the intent to terrorize.” The victim testified before the jury regarding the May 17, 2006 incident. She was asked, “Did [the defendant] say anything specifically to you?” and she replied, “It was to me that he said that he was going to kill.” The court then gave the jury limiting instructions, stating that the evidence was “being admitted solely to show, or establish, the defendant’s intent regarding count three of the information . . . [which] alleges threatening in the second degree. The evidence is not being admitted to prove the bad character of the defendant or the defendant’s tendency to commit criminal acts.” The court told the jury that it may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate criminal propensity. The court reiterated that the jury may consider the evidence only on the issue of the defendant’s intent as to the count charging him with threatening in the second degree and for no other purpose. During its final charge to the jury, the court gave a similar limiting instruction on the use of the victim’s testimony. On November 9, 2007, the defendant filed a motion for a judgment of acquittal and a motion for a new trial, in which he argued, among other things, that the prejudicial effect of the evidence regarding his prior uncharged misconduct outweighed its probative value. The court denied both motions.

The defendant claims that the court improperly concluded that the victim’s testimony regarding the May 17, 2006 incident was admissible under § 4-5 (b) of the Connecticut Code of Evidence and that its probative value outweighed its prejudicial effect. We are not persuaded. Although the defendant was acquitted of the charge of threatening in the second degree, he claims that the jury was unduly prejudiced against him with respect to the remaining charges, and we therefore address his claim.

We first set forth our standard of review. “The admission of evidence of . . . uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. McFarlane, 88 Conn. App. 161, 164, 868 A.2d 130, cert. denied, 273 Conn. 931, 873 A.2d 999 (2005).

Pursuant to § 4-5 (b) of the Connecticut Code of Evidence, “evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.” (Emphasis added; internal quotation marks omitted.) State v. Erhardt, 90 Conn. App. 853, 858-59, 879 A.2d 561, cert. denied, 276 Conn. 906, 884 A.2d 1028 (2005).

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Internal quotation marks omitted.) Id., 859.

“To prove that the defendant was guilty of the crime of threatening in the second degree, the state was required to establish, beyond a reasonable doubt, that the defendant threaten[ed\ to commit any crime of violence with the intent to terrorize another person. . . . We previously have defined terrorize, as used in § 53a-62 (a) (2), as meaning to scare or to cause intense fear or apprehension. . . . Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Irizarry, supra, 95 Conn. App. 233-34; see footnote 4. In the present case, therefore, the state sought to introduce the victim’s testimony regarding the May 17, 2006 incident to prove that the defendant acted with the intent to terrorize her when he threatened to kill himself and the child on March 19, 2007.

The defendant first argues that the prior uncharged misconduct from May 17, 2006, was not probative on the issue of his intent to terrorize the victim on March 19, 2007, because the defendant’s threats on May 17, 2006, were directed at the victim’s friend while his threats on March 19, 2007, were directed at the victim. The defendant argues that the May 17, 2006 misconduct is not relevant because it occurred ten months before the conduct for which he was charged and that his threats on that day were directed at the third party with whom, as far as he was aware, the victim had no emotional connection. We are not persuaded.

The court concluded that the incident on May 17, 2006, was similar to the incident of March 19, 2007. In both instances, the victim and the child were closely involved in an altercation. The court specifically stated that it found the victim’s testimony that the defendant “was always making threats” not specific enough. The court, however, concluded, after hearing the victim’s testimony that the defendant “was threatening” and that “he talked about killing,” that the threats were directed at her. We therefore disagree with the defendant’s argument that the victim’s testimony indicated that the defendant threatened only her friend on May 17, 2006.

This court has held that “[t]he high degree of similarity required for admissibility on the issue of identity is not required for misconduct evidence to be admissible on the issue of intent.” (Internal quotation marks omitted.) State v. Erhardt, supra, 90 Conn. App. 860. “Evidence is relevant if it has a logical tendency to aid the trier in the determination of an issue. ... All that is required is that the evidence tend to support a relevant fact even to a slight degree.” (Internal quotation marks omitted.) State v. Irizarry, supra, 95 Conn. App. 235. This court held in Irizarry that the evidence that the defendant previously threatened the victim was relevant to show his intent to cause her intense fear or apprehension and that by his actions he did not intend merely to annoy or to irritate her but, rather, to cause her intense fear or apprehension. Id., 237; contra State v. Meehan, 260 Conn. 372, 395, 796 A.2d 1191 (2002) (court abused discretion in admitting evidence that defendant took money during search because that did not render it more or less likely that during subsequent and unrelated search of different person, defendant had specific intent to appropriate another’s money). We conclude that the May 17, 2006 incident, was relevant to show that the defendant did not intend merely to annoy or to irritate the victim on March 19, 2007, but that he intended to cause her fear and apprehension by threatening to kill her child. We therefore conclude that the court did not abuse its discretion in concluding that the victim’s testimony regarding the May 17, 2006 incident was relevant to the issue of the defendant’s intent to terrorize her on March 19, 2007.

The defendant further argues that the court abused its discretion in concluding that the probative value of the victim’s testimony outweighed its prejudicial effect because the court failed to directly balance the two. We disagree. We note that “[a]ll adverse evidence is damaging to one’s case, 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. . . . The court bears the primary responsibility for conducting the balancing test to detennine whether the probative value outweighs the prejudicial impact, and its conclusion will be disturbed only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. William C., 103 Conn. App. 508, 519-20, 930 A.2d 753, cert. denied, 284 Conn. 928, 934 A.2d 244 (2007). “Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct. . . . Furthermore, a jury is presumed to have followed a court’s limiting instructions, which serves to lessen any prejudice resulting from the admission of such evidence.” (Citation omitted; internal quotation marks omitted.) Id., 520.

We disagree with the defendant’s argument that the court did not directly weigh the probative value against the prejudicial effect. As we described previously, the court thoroughly analyzed the probative value of the defendant’s prior uncharged misconduct, namely, its relevance to the issue of his intent to terrorize the victim. Having analyzed the probative value of the evidence, the court then examined its prejudicial effect. It concluded that the defendant’s act of threatening the victim and her friend and punching the friend on May 17, 2006, was a less serious matter than the act of holding the child and the knife and threatening to kill himself and the child. See State v. Irizarry, supra, 95 Conn. App. 238 (court did not abuse discretion in concluding probative value outweighs prejudicial effect when misconduct evidence no more shocking than evidence of crimes with which defendant charged); see also State v. Epps, 105 Conn. App. 84, 93-94, 936 A.2d 701 (2007) (court did not abuse discretion in admitting prior uncharged misconduct when uncharged misconduct not as brutal as conduct for which defendant charged), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008). The court further lessened the prejudicial effect of the victim’s testimony by instructing the state to question her “very narrowly” on that one incident and providing limiting instructions to the jury both immediately after the victim’s testimony about the prior uncharged misconduct and during its final instructions to the jury. See State v. Irizarry, supra, 238 (court minimized potential prejudice by repeatedly giving limiting instructions on use of evidence); see also State v. Hall, 98 Conn. App. 673, 681-82, 911 A.2d 331 (2006) (same), cert. denied, 281 Conn. 908, 916 A.2d 52 (2007); State v. McFarlane, supra, 88 Conn. App. 166 (same). Upon reviewing the record and the parties’ briefs, we conclude that the court properly balanced the probative value and the prejudicial effect of the victim’s testimony and did not abuse its discretion in concluding that the former outweighed the latter.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) [wjith intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony . . .

       General Statutes § 53a-223 (a) provides in relevant part: “A person is guilty of criminal violation of a protective order when an order . . . has been issued against such person, and such person violates such order.”

       General Statutes § 53a-62 (a) provides in relevant part: “Aperson is guilty of threatening in the second degree when ... (2) such person threatens to commit any crime of violence with the intent to terrorize another person

       The state elsewhere referred to the incident as having occurred on May 18, 2006, and the victim stated that she did not remember the exact date during the cross-examination by the defendant’s counsel. We will refer to the incident as having occurred on May 17, 2006.

       The transcripts indicate that the victim was assisted by a Portuguese interpreter.

       Section 4-5 of the Connecticut Code' of Evidence provides in relevant part: “(a) . . . Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. . . .
      “(b) . . . Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. ...” (Emphasis added.)

       The victim’s later testimony before the jury is described in this opinion and, although not relevant to our inquiry, confirms the court’s understanding of her testimony to mean that the defendant threatened her on May 17,2006.


author: BEACH, J.

text:
    CLYDE TOLES v. COMMISSIONER OF CORRECTION
    (AC 28985)
    Flynn, C. J., and Beach and West, Js.

      Argued December 4, 2008
    officially released April 14, 2009

      Deren Manasevit, special public defender, for the appellant (petitioner).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Clyde Toles, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. In this appeal, the petitioner claims that the court, Hon. Howard F. Zoarski, judge trial referee, improperly rejected his claims alleging the ineffective assistance of (1) the counsel who represented him during his plea hearing and (2) the counsel who represented him during his violation of probation hearing. We affirm the judgment of the habeas court.

The following facts and procedural history provide the necessary backdrop to the disposition of the petitioner’s appeal. On September 28, 1993, the petitioner entered a plea of nolo contendere to charges of risk of injury to a child in violation of General Statutes § 53-21 and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). At the plea healing, the petitioner was represented by attorney John Watson. During the hearing, the court, Thompson, J., thoroughly canvassed the petitioner, determined that his pleas were knowing, intelligent and voluntary and accepted them. The court sentenced the petitioner to a suspended term of five years imprisonment with five years probation for the risk of injury conviction and a suspended sentence of one year with one year probation for the sexual assault conviction, to run concurrently with the suspended sentence and the term of probation for the risk of injury sentence. As a condition of probation, the petitioner was required to undergo sex offender screening, evaluation and treatment and was referred to a treatment program for that purpose.

On November 4, 1996, a hearing was held on the allegation that the petitioner had violated his probation. At this hearing, the petitioner was represented by attorney Scott M. Jones. At the opening of the hearing, Jones reiterated a request for a continuance that he had made earlier. Jones stated that he was requesting the continuance because he had not received “certain documents that were necessary in order to effectuate pretrial in this matter . . . .” Jones stated that there were documents from the treatment program relating to the petitioner’s participation in the program that he had only just received the morning of the hearing and had not been able to review. The prosecutor stated that these materials had been in his office since September 20, 1996, but neither Jones nor the petitioner’s previous counsel had requested them. The prosecutor also offered a letter from the treatment program stating that the materials had been sent to the public defender’s office, where Jones was employed, on June 21, 1996. Jones responded that he had only taken over the petitioner’s case on October 10, 1996, and did not speak with the petitioner until October 28, 1996. Jones also stated that the materials were not present in the file that had been left for him by the petitioner’s previous counsel. The court, Clark, J., denied the request for a continuance.

Jones renewed his continuance request once more during the hearing and again at the close of the hearing. Judge Clark did not grant the requests but did allow Jones the opportunity to recall, at a later date, a witness who had testified about the petitioner’s experience with the treatment program. The court found by a preponderance of the evidence that the petitioner had violated his probation and sentenced him to incarceration for the balance of his term, which was five years.

The petitioner filed an amended petition for a writ of habeas corpus on July 14,2006. The amended petition alleged actual innocence, ineffective assistance of trial counsel at the plea hearing, ineffective assistance of counsel at the violation of probation hearing and an improper plea canvass. Following a hearing, Judge Zoar-ski denied the petition on June 5, 2007, in a written decision. The court found that the petitioner failed to carry his burden of proving actual innocence, that the plea canvass complied with the requirements of Practice Book §§ 39-18 through 39-22 and that the “ [petitioner entered the pleas knowingly and voluntarily with the effective assistance of competent counsel.” The court also denied the petitioner’s claims of ineffective assistance of counsel. The court concluded that “[t]he evidence presented does not establish ineffective assistance of counsel” and “fails to prove that the alleged lack of competency contributed significantly to deprive the [petitioner [of] the right to a fair trial.” On June 19, 2007, the court granted certification to appeal. Additional facts will be set forth as necessary.

We begin with the standards that govern our analysis of the petitioner’s appeal. “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 762, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).

“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment [to the United States constitution]. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

“For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. ... To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. ... To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. . . . The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 721-23, 789 A.2d 1046 (2002).

Because the petitioner must meet both prongs to prevail, a finding in favor of the respondent, the commissioner of correction, on either prong will defeat the action. See Dawson v. Commissioner of Correction, 106 Conn. App. 614, 624 n. 10, 942 A.2d 519, cert. denied, 287 Conn. 909, 950 A.2d 1285 (2008). The petitioner’s claim regarding the violation of probation hearing is subject to the Strickland test, and his claim regarding the plea hearing is subject to Strickland as modified by Hill.

I

We first examine the petitioner’s claim that the court improperly concluded that his counsel at the plea hearing, Watson, did not render effective assistance. The petitioner claims that Watson rendered ineffective assistance by failing to investigate the petitioner’s claims of innocence, failing to investigate the petitioner’s “competence to knowingly and voluntarily enter pleas of nolo contendere,” and failing to “ensure [that] the [petitioner understood the consequences of his pleas,” in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We disagree.

The petitioner first claims that Watson failed to investigate fully the petitioner’s claims of innocence. Specifically, the petitioner argues that Watson “admitted that there were several potential witnesses who were never even interviewed.” Even if we assume arguendo that Watson’s failure to interview these potential witnesses fails the performance prong of Strickland, the petitioner fails to present any evidence showing that these potential witnesses would have provided information that would have caused him not to enter the plea. The petitioner merely identifies individuals who were not interviewed by Watson but does not state what they would have testified about or whether their testimony would have had a favorable impact on the outcome of the trial, had it reached that point. “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.” Holley v. Commissioner of Correction, 62 Conn. App. 170, 175, 774 A.2d 148 (2001). “Mere conjecture and speculation are not enough to support a showing of prejudice.” Burke v. Commissioner of Correction, 90 Conn. App. 370, 378, 877 A.2d 885, cert. denied, 275 Conn. 926, 883 A.2d 1241 (2005). Because the petitioner failed to prove what the potential witnesses would have testified about or what impact their testimony would have had on the outcome of the trial, we agree with the court that this claim of ineffective assistance must fail. See, e.g., Ostolaza v. Warden, 26 Conn. App. 758, 766-67, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992); see also Henry v. Commissioner of Correction, 60 Conn. App. 313, 321, 759 A.2d 118 (2000).

The petitioner next claims that Watson rendered ineffective assistance by failing to investigate the petitioner’s competence knowingly and voluntarily to enter a plea of nolo contendere. The petitioner argues that he “would not have pleaded nolo contendere and would have gone to trial” if Watson had not failed to investigate the petitioner’s competence. The petitioner alleges that he was seeing a therapist during the period leading to the plea and believed that he was suffering a “ ‘mental breakdown’ ” caused by the stress of defending against the charges. As a result of this “ ‘agony,’ ” the petitioner alleges that “he was not able to understand the court proceedings.”

The petitioner’s claim fails to meet the prejudice prong. See Hill v. Lockhart, supra, 474 U.S. 59. The petitioner did not introduce any treatment records into evidence at the habeas hearing. At the habeas hearing, Watson testified that he questioned the petitioner about his mental health and determined that he “did not have concerns about his competency.” Watson also testified that he had had experiences in the past in which he had ordered a competency evaluation of a client, but on the basis of his evaluation of the petitioner, he did not believe that such action was necessary. The petitioner provides no evidence to support his argument that had Watson investigated his competency further, he would have decided not to enter a plea of nolo contendere. We conclude that the petitioner has not provided us with a record showing a reasonable probability that he would have chosen to proceed to trial rather than enter a plea of nolo contendere if his counsel had further investigated the petitioner’s physical and mental health immediately prior to the plea proceedings. See Hunnicutt v. Commissioner of Correction, 83 Conn. App. 199, 210, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004).

The petitioner next claims that Watson failed to ensure that the petitioner understood the consequences of the plea. Specifically, the petitioner alleges that Watson “failed to advise [petitioner that a nolo plea would result in a felony conviction just like a guilty plea and that the felony conviction would be on his record forever, with all the attendant legal consequences.” At the habeas hearing, when asked what he understood about the ramifications of his plea, the petitioner testified that he “was very confused” and “very much emotional about the whole matter . . . .”

At the plea hearing, however, the petitioner responded in the affirmative to Judge Thompson’s canvass, which asked him whether he was entering the plea of his free will and whether he was satisfied with the advice received from his attorney. At the conclusion of the canvass, the court found the pleas “to be made knowingly and voluntarily with effective assistance of counsel.” The court then entered a finding of “guilty on each charge” and the petitioner did not object. At the habeas hearing, Watson testified that although he did not remember the specifics of his discussion of the plea agreement with the petitioner, he “definitely would have had those conversations” with the petitioner, and “there would have been a conversation about that before it was done.” Also during testimony at the habeas hearing, the petitioner stated: “I know I didn’t want to take the risk or gamble my freedom . . . which is why I just went on a plea bargain.”

“A court may properly rely on . . . the responses of the [petitioner] at the time [he] responded to the trial court’s plea canvass . . . .” (Internal quotation marks omitted.) Carey v. Commissioner of Correction, 86 Conn. App. 180, 185, 860 A.2d 776 (2004), cert. denied, 272 Conn. 915, 866 A.2d 1283 (2005). It is appropriate to presume that in most cases counsel routinely explains the consequences of a plea agreement. See State v. Stith, 108 Conn. App. 126, 133, 946 A.2d 1274, cert. denied, 289 Conn. 905, 957 A.2d 874 (2008). The record before us does not contain any positive suggestion that the petitioner was not given notice of what he was admitting in his plea. On the basis of the trial court’s canvass and its finding of guilty at the plea hearing, without objection by the petitioner, as well as Watson’s testimony at the habeas hearing, we conclude that the habeas court’s conclusions were not improper.

II

We next examine the petitioner’s claim that his counsel at the violation of probation hearing, Jones, rendered ineffective assistance. The petitioner claims that Jones rendered ineffective assistance of counsel because he was unprepared for the hearing, did not investigate whether the petitioner had a potential fifth amendment claim and failed to ensure that the petitioner understood what was needed to obtain sentence review or to prosecute an appeal. We disagree.

The following additional facts are necessary for our resolution of the petitioner’s claim. After the petitioner’s probation was revoked, Jones filed an Anders brief in support of his motion to withdraw as the petitioner’s counsel on the ground that there were no appealable issues. The court, Comerford, J., granted Jones’ motion to withdraw and found that there were no appealable issues. At the hearing on the motion to withdraw, the court stated that “[t]he only issue that gave the court pause was . . . the disclosure of the [treatment program materials] at or about the time of the violation of probation hearing” but that “[o]nce those documents were, in fact, produced, it is evident that these documents contained more inculpatory matter than exculpatory matter.”

The petitioner first claims that Jones was unprepared for the violation of probation hearing because he was unfamiliar with the petitioner’s case and did not have adequate time to review the materials relating to the petitioner’s time in the sex offender treatment program. We are not persuaded.

For the petitioner to succeed on his claim, he must show that both the performance and the prejudice prongs of the Strickland test are met. See Strickland v. Washington, supra, 466 U.S. 687. Without analyzing whether the performance prong was met, it is clear that the court properly concluded that the petitioner did not meet his burden of proving the prejudice prong. To satisfy the prejudice prong, the petitioner must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Small v. Commissioner of Correction, supra, 286 Conn. 713. Here, the record does not reveal that had Jones had more time to prepare for the hearing or, more specifically, to review the materials from the treatment program, the result would have been different. Judge Comerford found that the materials were inculpatory rather than exculpatory. The petitioner also argues that additional time would have allowed Jones to investigate further the circumstances surrounding the petitioner’s termination from the treatment program and that additional time would have allowed Jones to negotiate more favorable terms for the petitioner after his probation was revoked. Again, however, the petitioner fails to present any evidence to demonstrate that the result would have been different if Jones had had more time; at the Anders hearing, Jones testified, that the materials would not have helped.

The petitioner next claims that Jones rendered ineffective assistance in that he failed to investigate whether the petitioner had a fifth amendment claim. The petitioner argues that Jones should have investigated whether the sexual offender treatment program requirement that participants admit their guilt violated the right against self-incrimination guaranteed by the fifth amendment to the United States constitution. This claim, that Jones failed to investigate a fifth amendment claim in particular, was not raised in the amended petition or in the posttrial brief and, as a result, was not ruled on by Judge Zoarski. Judge Zoarski did address a claim that both Jones and Watson failed to perform an adequate investigation but did not address any claim that an adequate investigation should have yielded a fifth amendment claim. It is well settled that this court does not consider claims not raised in the habeas court. Practice Book § 60-5; Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993). Accordingly, we decline to review this claim.

The petitioner’s final claim is that Jones rendered ineffective assistance of counsel in that he failed to ensure that the petitioner understood what was needed to obtain sentence review or to prosecute an appeal. We decline to review this claim because it was not raised sufficiently in the habeas court. The court made no finding as to whether Jones rendered ineffective assistance by failing to prepare the petitioner for appeal. Rather, the court’s ruling is limited to the broad allegation concerning Jones’ “failure to investigate,” to which the court concluded that “ [t]he evidence presented does not establish ineffective assistance of counsel.” The only other conclusion the court reached regarding Jones’ performance as counsel was that he provided “a competent representation in examining the various witnesses presented by the [s]tate.”

Our case law consistently has held that we are not bound “to consider claimed errors unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Copeland v. Warden, supra, 26 Conn. App. 13-14. Our Supreme Court only recently reiterated its affirmation of this case law. See Johnson v. Commissioner of Correction, 285 Conn. 556, 580, 941 A.2d 248 (2008). In the present case, the court made no findings or rulings with respect to the alleged facts or merits of this claim. The petitioner filed no motion for articulation to supplement the habeas record. We decline to consider this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The transcript of the plea canvass reveals the following:
      “The Court: You have discussed these two charges with Mr. Watson?
      “[The Petitioner]: Yes.
      “The Court: Has he explained to you what the state would have to prove in order for you to be found guilty of the charges?
      “[The Petitioner]: Yes.
      “The Court: You have done that, Mr. Watson?
      “[The Petitioner’s Counsel]: Yes, Your Honor.
      “The Court: The risk of injury charge is a felony, and the maximum sentence for which is [ten] years and, or, a $500 fine.
      “The sexual assault fourth degree is a misdemeanor, maximum sentence for which is one year and, or, a $2000 fine.
      “If those two sentences were ... to run one after the other, of course, the total would be [eleven] years. That’s the maximum exposure that you would face on these two charges. Do you understand that?
      “[The Petitioner]: Yes.
      “The Court: You do have the right to plead not guilty and to continue to plead not guilty and have a trial before a judge or jury with the assistance of your attorney, the right to confront and cross-examine witnesses against you, the right to testify yourself and present any defense you wish, if you choose.
      “You also have the right not to incriminate yourself. Do you understand you have those rights?
      “[The Petitioner]: Yes.
      “The Court: Are you entering this plea of your own free will?
      “[The Petitioner]: Yes.
      “The Court: Have any threats or promises been made to cause you to plead guilty other than this plea bargain agreement?
      “[The Petitioner]: No.
      “The Court: Are you satisfied with the advice you have received from counsel?
      “[The Petitioner]: Yes. . . .
      “The Court: The pleas are found to be made knowingly and voluntarily with effective assistance of competent counsel. . . . Finding of guilty on each charge . . . .”

       At a later Anders hearing on March 27, 1997, Jones stated that the documents would not have been helpful because they contained inculpatory rather than exculpatory information. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) (setting forth proper procedure for counsel and court when counsel believes appeal would be frivolous). The documents were not introduced at the habeas hearing.

       Jackie Simms was identified as one of these potential witnesses and was called as a witness at the habeas trial. Her testimony provided nothing helpful to the petitioner.

       See footnote 1.

       In a related area, our Supreme Court has stated that the court need not advise a defendant of every possible consequence of a plea. “Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow. ... In Connecticut, the direct consequences of a defendant’s plea include only the mandatory minimum and maximum possible sentences . . . the maximum possible consecutive sentence . . . the possibility of additional punishment imposed because of previous conviction(s) . . . and the fact that the particular offense does not permit a sentence to be suspended. . . . The failure to Inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” (Citations omitted; internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 504-505, 752 A.2d 49 (2000).

       See footnote 2.

       “Because both prongs [of Strickland] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn. App. 133, 136, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007).