text:
    State of Connecticut v. Harold Devanney
    (4834)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 2
    decision released September 8, 1987

      Edward J. Peters, Jr., with whom, on the brief, was Anthony C. Polvino, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was Lloyd L. Langhammer, certified legal intern, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of risk of injury to a child in violation of General Statutes § 53-21.

The jury could reasonably have found the following facts. In late 1981 or at some time thereafter, the defendant established a sexual relationship with his stepdaughter. At the time the relationship began, the victim was thirteen years old and in the eighth grade. These sexual encounters continued for a period of approximately three years and on some occasions intercourse occurred. Finally, when she was a sophomore in high school, the stepdaughter sought to discourage the defendant’s advances. The defendant, however, persisted in his efforts to continue the relationship and wrote an eleven page letter that alluded to the sexual activity that had taken place between them.

On February 22, 1985, after the defendant and his wife had separated, the stepdaughter informed her mother of what had occurred over the years between her and the defendant. The next day the stepdaughter gave a detailed statement of what had transpired to the Old Lyme police.

The defendant claims that the trial court committed reversible error (1) in admitting the testimony of a treating physician that the defendant had been treated for gonorrhea, (2) in excluding from evidence a handwriting exemplar offered by the defendant, and (3) in denying the defendant’s motions for judgment of acquittal.

The defendant’s first claim of error is without merit. While the victim’s earlier statement put the date later, at trial the victim testified that the defendant first initiated sexual contact with her as early as 1981. The victim’s mother thereafter testified that, in May of 1982, she and the defendant visited the family physician, Jay Graves, who found the defendant to be suffering from gonorrhea. The mother tested negative. The defendant’s counsel offered no objection to this testimony by the mother. In fact, during cross-examination of the mother, the defendant’s counsel introduced a letter written by her which contained the same information relative to the defendant’s venereal disease.

Graves was subsequently called as a witness and testified as to the defendant’s gonorreheal infection and that the disease is contagious and transmitted through sexual contact. The defendant objected to the admission of this testimony as irrelevant and violative of the physician-patient privilege. The objections were overruled by the court and the doctor’s testimony was admitted.

The defendant now claims that the trial court erred in admitting Graves’ testimony as to the venereal disease because (1) the information was not contained in the state’s response to the defendant’s motion for disclosure and production made pursuant to Practice Book § 741, (2) the testimony was not relevant to any material issue at the trial, (3) the prejudicial effect of the testimony far outweighed its probative value, and (4) the testimony was a privileged communication between doctor and patient.

We will not review the defendant’s claim that the state violated a duty to disclose under Practice Book § 741 because this claim was not raised at trial. Practice Book § 4185; see, e.g., State v. Miller, 186 Conn. 654, 672, 443 A.2d 906 (1982); State v. Perieve, 186 Conn. 599, 611-12, 442 A.2d 1345 (1982). Moreover, the defendant has not asserted, nor do we find, that the claim is reviewable under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

We find no merit in the defendant’s claim that the court erred in overruling the defendant’s relevancy objection to Graves’ testimony. In overruling the objection, the court concluded that the evidence was relevant to a determination of whether the defendant impaired the health of a minor by engaging in sexual contact with her while afflicted with a communicable sexual disease. The trial court is vested with broad discretion in rulings on questions of relevancy. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, the trial court, in exercising its broad discretion, could legally act as it did, and we will not intervene unless there is a clear abuse of the court’s discretion. See Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972); State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986). We find that the trial court could reasonably conclude that the evidence of the defendant’s affliction with a sexually communicable disease was relevant to the charges against him. See State v. Jenkins, 7 Conn. App. 653, 655, 509 A.2d 1098 (1986); State v. Manluccia, 2 Conn. App. 333, 335-36, 478 A.2d 1035 (1984).

Nor do we find that the court erred in failing to exclude the evidence on the ground that its prejudicial impact outweighed its probative value. Because of the inherent difficulties in balancing probative value against prejudicial effect, our appellate courts have repeatedly entrusted the resolution of this determination to the trial court. State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). Every reasonable presumption must be given in favor of the correctness of the court’s ruling and reversal will ensue only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979). In the context of the entire trial, it is apparent that little, if any, prejudice resulted to the defendant when the trial court admitted Graves’ testimony. The defendant’s wife had testified, without objection, to the defendant’s venereal disease. In addition, the defendant himself had introduced a letter to the same effect. Furthermore, the defendant never sought an instruction limiting the purposes for which the jury could consider this evidence. We cannot say that the trial court abused its discretion in admitting Graves’ testimony.

Finally, the admission of Graves’ testimony violated no physician-patient privilege of confidentiality because no such privilege exists in Connecticut. There is no common law physician-patient privilege and none has been accorded in Connecticut or in federal courts as a general evidentiary principle. See Shaw v. Scoville, 369 F.2d 909, 911 n.2 (2d Cir. 1966); State v. Hanna, 150 Conn. 457, 465, 191 A.2d 124 (1963); State v. Reid, 146 Conn. 227, 232, 149 A.2d 698 (1959); Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A. 644 (1935). It is not our role to reconsider this established precedent. See Gibbs v. Mase, 11 Conn. App. 289, 290 n.1, 526 A.2d 7 (1987); State v. Weisser, 9 Conn. App. 255, 257-58, 518 A.2d 655 (1986).

In his second claim of error, the defendant contends that the trial court erred by refusing to admit a particular handwriting exemplar as a full exhibit until the defendant had testified as to its contents. The court initially refused to admit the handwriting exemplar of the defendant because the content of the exemplar contained allegations relevant to issues in the case that had not been testified to by any witnesses. The court, however, later allowed the letter into evidence as an exhibit after the defendant testified as to its content. We find no error in the trial court’s ruling on this matter.

In his final claim of error, the defendant contends that the court erred in denying his motion for judgment of acquittal at the close of the state’s case-in-chief. At the conclusion of the state’s case, the defendant made an oral motion to dismiss to the court. The court denied the motion, holding that the state had presented a prima facie case and that the matter was therefore one of the credibility of the witnesses. After reviewing the record, transcript, and exhibits in this case, we agree that the evidence was sufficient, if credited, to convict the defendant of the crime of risk of injury, and that the case was properly allowed to go to the jury. See State v. Miller, 202 Conn. 463, 486-87, 522 A.2d 249 (1987); State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 405 (1985).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The trial court concluded: “The [risk of injury] statute does talk about impairing the health, morals, and so forth of a child, and certainly someone who has a communicable disease if it is so and the jury does so find that certain activity did take place, the jury can, therefore, find that the person did impair the child’s health if that person knew about the communicable disease and thereafter performed acts, but that’s something for the jury to decide, not for me to decide.”

       We note that even if the court had erred by allowing Doctor Graves’ testimony into evidence, such error would be harmless because the substance of his testimony was previously introduced without objection through the testimony of the defendant’s former wife and through the defendant’s introduction of a letter specifically referring to his venereal disease. “ ‘An erroneous ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case.’ ” State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983), quoting State v. Jeustiniano, 172 Conn. 275, 283, 374 A.2d 209 (1977); see also State v. Vennard, 159 Conn. 385, 393, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971).

       The handwriting exemplar provided in pertinent part: “I was asleep sometime between 1:00 a.m. and 2:00 a.m. [The victim] shook me, and I awakened to hear [the victim] crying. I inquired why she was crying. She said she could not sleep thinking about the problems of the house. I can’t take it anymore. My sisters don’t talk to me. I ean’t be in the middle anymore. The girls ridicule me for speaking to you. Eveiytime I go downstairs, they give me dirty looks because I’ve spoken to you. Mom is upset because I talk to you, because you talk to me, and you don’t talk to them. Why can’t you be nice to them? Why can’t you change? I can’t live like this anymore. Mom gets upset too much. The girls hate me for showing concern for you when they can’t stand you, but if you can change and talk to them, I would get along with them better.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. James Shaw, Jr.
    (5173)
    Borden, Daly and Bieluch, Js.
    Argued June 11
    decision released September 8, 1987

      Stephanie Clarke, deputy assistant public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were David Gold, assistant state’s attorney, and Mark Buebendorf Alice Osedach and Angelo Pizzolla, law student interns, for the appellee (state).
   Borden, J.

The dispositive issue of this appeal is whether the provisions of General Statutes (Rev. to 1985) § 14-227a (d), relating to the prima facie evidentiary effect of the ratio of alcohol in the defendant’s blood, are applicable to a prosecution for manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes (Rev. to 1985) § 53a-56b. We hold that they are not.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the second degree with a motor vehicle while intoxicated, in violation of General Statutes (Rev. to 1985) § 53a-56b. He claims that the trial court erred: (1) by instructing the jury that it could apply the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d) in determining whether the defendant was intoxicated within the meaning of General Statutes (Rev. to 1985) § 53a-56b; and (2) by instructing the jury that evidence of the defendant’s blood alcohol level created a rebut-table presumption of his intoxication. Although the defendant has, in his brief, couched both claims of error in constitutional terms, a careful analysis of his first claim reveals that it is really a statutory claim. Because we find reversible error on that claim, we need not reach his second, or constitutional, claim.

The jury could reasonably have found the following facts. At approximately 10:40 a.m. on May 11, 1985, the defendant was driving his car at approximately sixty-one miles per hour on Congress Avenue in New Haven. The speed limit in that area was twenty-five miles per hour. The defendant crossed the yellow center line of the street and hit the victim, Clifton McCarter, who was standing at the driver’s side door of a parked car, talking to Clifton Worthington, the occupant of the parked car. The impact threw McCarter into the air, and he landed head first on the defendant’s windshield and rolled off onto the road. McCarter later died as a result of this impact.

After hitting McCarter, the defendant hit another parked car, pushing it approximately thirty-two feet sideways into the road. The defendant continued driving down Congress Avenue for approximately one-tenth of a mile until he was forced to stop by Worthington and Alfred Parks, another witness to the accident. The defendant exited his car and began to walk away when Worthington and Parks stopped him. Parks told him he had hit McCarter, and requested that he return to the scene. The defendant replied, “No, you go back down there.” The defendant’s speech was slurred, and he staggered. He had an odor of alcohol on his breath.

The police arrived promptly. They observed an empty beer bottle on the front floor of the defendant’s car, near the driver’s seat. Upon request, the defendant consented to a blood test. He was taken to the hospital, where samples of his blood were taken. The test results revealed an alcohol to blood ratio of .18 percent. The defendant stated to the police that he had been drinking since approximately 5 p.m. the previous afternoon, that he was not sure when he had stopped drinking, that he had consumed more than six beers, and that he had slept for only two hours. At approximately 12:45 p.m., the police made certain observations of the defendant, and had him perform certain physical tests, the results of which were recorded on an alcohol influence report form. In addition, at approximately 1:35 p.m., the defendant gave a tape recorded statement to the police, in which he stated that he recalled hitting a car but did not see any pedestrian, and that he did not know that he had hit a pedestrian until having been told so at the hospital.

The defendant claims that the trial court erred by instructing the jury that it could use the prima facie evidentiary provisions of General Statutes (Rev. to 1985) § 14-227a (d) in determining whether the state had established that the defendant caused McCarter’s death “in consequence of his intoxication while operating a motor vehicle.” General Statutes (Rev. to 1985) § 53a-56b. We agree.

General Statutes (Rev. to 1985) § 14-227a (a) provides in pertinent part that “[n]o person shall operate a motor vehicle on a public highway . . . while under the influence of intoxicating liquor.” Subsection (c) provides in pertinent part that “[i]n any criminal prosecution for a violation of subsection (a) . . . of this section, evidence respecting the amount of alcohol ... in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent” provided that seven specified procedural requirements are met. Subsection (d) provides in pertinent part that “[e]vidence admitted under the provisions of subsection (c) shall have the following force and effect: ... (4) evidence that at [the] time [of the alleged offense] the ratio of alcohol in the blood was ten-hundredths of one per cent or more of alcohol, by weight, shall be prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of this section.”

The defendant’s claim arises out of the following procedural history. Initially, the defendant sought a ruling from the court excluding the results of his blood test on the basis, inter alia, that the procedural requirements of General Statutes (Rev. to 1985) § 14-227a (c) had not been met. The defendant also asked the court to “incorporate” the provisions of General Statutes (Rev. to 1985) § 14-227a (c) and (d), into the charge he faced under General Statutes (Rev. to 1985) § 53a-56b. The court declined to rule on the defendant’s claims.

The state presented Abraham Stolman, the state toxicologist, who testified as to the results of the blood test. During Stolman’s testimony, the state requested the court to take judicial notice of General Statutes (Rev. to 1985) § 14-227a (d). The defendant objected, reminding the court, inter alia, that it had specifically declined to rule that the provisions of General Statutes (Rev. to 1985) § 14-227a applied to the prosecution of the defendant, and claiming that the provisions of General Statutes (Rev. to 1985) § 14-227a (d) were, therefore, irrelevant because the defendant was not charged with a violation of General Statutes (Rev. to 1985) § 14-227a (a). The court overruled the defendant’s objection, and the defendant excepted.

The court thereafter declared in the jury’s presence that it would “take judicial notice of [General Statutes (Rev. to 1985) § 14-227a (d)] insofar as is applicable to defining intoxication.” It stated to the jury as follows: “So, ladies and gentlemen of the jury, the court takes judicial notice of this law. Evidence that at such time the ratio of alcohol in the blood was ten hundredths of one percent or more of alcohol by weight shall be prima facie evidence that the defendant was under the influence of intoxicating liquor.” Stolman continued his testimony, which included further statements as to the effects of alcohol on the ability to drive a car. He testified that “at .10 and above all individuals are affected to a sufficient degree and that, with respect to blood alcohol level of .18 percent . . . [t]he higher you go in alcohol level, the . . . greater the effect is.”

During its final instructions to the jury, the court specifically reminded the jury that it had taken judicial notice of General Statutes § 14-227a (d), and read the statutory provision to the jury. The court continued its charge: “Now, by using this prima facie evidence, and all of the other evidence presented, it is for you to determine beyond a reasonable doubt whether or not the defendant in this case was intoxicated. The statute concerning ten-hundredths of 1 percent, .10 weight by alcohol within a person’s blood, presumes that such person is under the influence of alcohol unless other countervailing evidence shows that the defendant was in control of his faculties.

“In other words, this is a rebuttable presumption that the Legislature has seen fit. Accordingly, one of the questions for you to decide is, in view of the statute and in view of all the other evidence in the case, was the amount of alcohol consumed by the accused sufficient to so affect his mental, nervous and physical processes that he lacked to an appreciable degree the ability to function properly with relation to the operation of his automobile.” The defendant duly excepted to these instructions.

We first consider and reject the state’s argument that the defendant’s claim is not reviewable because he did not raise it at trial with sufficient clarity to alert the court to his true position. The state points to the fact that the defendant initially requested the application of General Statutes (Rev. to 1985) § 14-227a (c) and (d) to his case. While it is true that the defendant made an initial unsuccessful effort to persuade the court to incorporate the provisions of General Statutes (Rev. to 1985) § 14-227a (c) and (d) into General Statutes (Rev. to 1985) § 53a-56b, once that effort had failed it was clear to the court that the defendant objected to the incorporation of the provisions of General Statutes (Rev. to 1985) § 14-227a (d) without the protective procedural requirements of General Statutes (Rev. to 1985) § 14-227a (c).

We turn, therefore, to the merits of the defendant’s claim. We conclude that the provisions of General Statutes (Rev. to 1985) § 14-227a (d) do not apply to a prosecution under General Statutes (Rev. to 1985) § 53a-56b. We reach this conclusion based on two factors: the plain language of the statute, which specifically limits its applicability; and the rationale of that specific limitation.

First, the language of General Statutes (Rev. to 1985) § 14-227a (d) confines those provisions to a prosecution under General Statutes (Rev. to 1985) § 14-227a (a) or (b). General Statutes (Rev. to 1985) § 14-227a (d) refers only to “[e]vidence admitted under the provisions of subsection (c)” of General Statutes (Rev. to 1985) § 14-227a. Subsection (c) refers only to the admissibility of evidence of a defendant’s blood alcohol or drug level “[i]n any criminal prosecution for a violation of subsection (a) or (b) of this section.” Subsections (a) and (b) of General Statutes (Rev. to 1985) § 14-227a refer to the motor vehicle violations of operation while under the influence of intoxicating liquor or drug, and operation while impaired by the consumption of intoxicating liquor, respectively. The legislature has, in very specific language, created a complex statutory scheme, balancing procedural protections for the defendant against prosecutorial benefits for the state. The statutory language specifically referring to violations of General Statutes (Rev. to 1985) § 14-227a (a) and (b) must, therefore, be read to exclude its applicability to other statutes.

Second, our Supreme Court has squarely held that the procedural provisions of what was General Statutes (Rev. to 1985) § 14-227a (c) apply only to a violation of General Statutes (Rev. to 1985) § 14-227a, and not to vehicular homicide offenses defined by the Penal Code. State v. Singleton, 174 Conn. 112, 115-16, 384 A.2d 334 (1977); see also State v. Robarge, 35 Conn. Sup. 511, 513-14, 391 A.2d 184 (1977). These provisions, which give detailed procedural protections to a defendant charged under General Statutes (Rev. to 1985) § 14-227a, are inextricably linked to the prima facie evidentiary provisions of General Statutes (Rev. to 1985) § 14-227a (d). Only test results which have satisfied the procedural requirements of General Statutes (Rev. to 1985) § 14-227a (c) are entitled to the prima facie weight afforded them pursuant to General Statutes (Rev. to 1985) § 14-227a (d). To put it another way, the procedural protections of General Statutes (Rev. to 1985) § 14-227a (c) constitute the price which the statute requires the state to pay in order to gain the prosecutorial benefits afforded by General Statutes (Rev. to 1985) § 14-227a (d). Where the statute does not require the state to pay that price; State v. Singleton, supra; it does not confer the corresponding benefit.

The state argues that the subsequent amendment of General Statutes § 53a-56b; see footnote 1, supra; reveals the legislature’s intent that General Statutes § 53a-56b be interpreted consistently with General Statutes § 14-227a. Although the purpose of the 1985 amendment was to clarify the legislature’s intent that the term “intoxication,” as used in General Statutes (Rev. to 1985) § 53a-56b, referred to the same level of inebriation as the phrase “under the influence of intoxicating liquor,” as used in General Statutes § 14-227a; State v. McKenna, 11 Conn. App. 122, 130-31, 525 A.2d 1374 (1987); the legislature did not see fit to add to General Statutes § 53a-56b either the procedural protections or prosecutorial benefits defined by General Statutes (Rev. to 1985) § 14-227a.

On the basis of our conclusion that the provisions of General Statutes § 14-227a do not apply to a prosecution under General Statutes § 53a-56b, we must decide whether the trial court’s instructions to the jury regarding the effect of the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d) on its determination of whether the defendant was intoxicated within the meaning of General Statutes (Rev. to 1985) § 53a-56b requires reversal. “The question whether reversal is required because of this error depends on the likelihood that it influenced the jury. We have stated that in cases involving constitutional error, the test is whether it is reasonably possible that the jury were misled, and in cases not involving a constitutional error, whether it is reasonably probable that the jury was misled. State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975).” State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986). Since our conclusion rests on statutory grounds, and is not of constitutional magnitude, it must be determined whether it was reasonably probable that the jury was misled. We conclude that under the circumstances of this case, where the court during both the presentation of testimony and in its charge to the jury, emphasized the effect of General Statutes (Rev. to 1985) § 14-227a (d) on the jury’s deliberations, and where counsel for the state in closing argument similarly and repeatedly urged the jury to apply the statute, it was reasonably probable that the court’s error misled the jury as to the determination of the defendant’s intoxication.

We note, first, that the court’s instructional error was a continuation of its midtrial ruling, made at the request of the state, taking judicial notice of the effect of General Statutes (Rev. to 1985) § 14-227a (d). The court made that ruling in the presence of the jury and immediately followed it by reading the provisions of General Statutes (Rev. to 1985) § 14-227a (d) to the jury. Moreover, the timing of that procedure was significant. Stolman had just testified that the result of the test of the defendant’s blood alcohol level was .18 percent. The court immediately thereafter read General Statutes (Rev. to 1985) § 14-227a (d) to the jury. The state then continued to examine Stolman, and elicited his testimony that all persons are adversely affected who have a blood alcohol level of .10 percent or more. The jury was presented with the testimony of the defendant’s blood alcohol level in the damaging context of Stolman’s expert opinion buttressed by the weight that the law itself lent to such evidence.

Furthermore, the court’s charge emphasized the role of the statute in the jury’s determination of the issue of the defendant’s intoxication. The court instructed the jury that it had taken judicial notice of the statute, and further that “[t]he statute concerning ten-hundredths of 1 percent, .10 weight by alcohol within a person’s blood, presumes that such person is under the influence of alcohol unless other countervailing evidence shows that the defendant was in control of his faculties. In other words, this is a rebuttable presumption that the Legislature has seen fit.” The court then told the jury that “ [accordingly, one of the questions for you to decide, in view of the statute and in view of all the other evidence in the case, was the amount of alcohol consumed by the accused sufficient to so affect his mental, nervous and physical processes that he lacked to an appreciable degree the ability to function properly with relation to the operation of his automobile.” Thus, the court added the heavy weight of the statutory presumption to the jury’s determination of whether the defendant was intoxicated. Moreover, the court’s charge was preceded by the state’s closing argument. In that argument, the state referred at least nine times to the defendant’s blood alcohol level as exceeding the “legal limit.” Thus, the court’s charge reinforced the state’s argument that the law itself deemed the defendant to have been intoxicated.

We note finally that the critical issue in this case was whether the defendant was intoxicated at the time of the accident. In determining whether a jury instruction was misleading, it is appropriate to consider how it bears on the issues in the case. See generally State v. Huff, 10 Conn. App. 330, 331-32, 523 A.2d 906 (1987). In this case, while the state’s evidence was strong, the issue of the defendant's intoxication was nonetheless in dispute. The state produced evidence, inter alia, of the defendant’s excessive speed and reckless manner of driving, his admission that he had been drinking since the previous evening and that he did not recall when he stopped, his high blood alcohol level, and the usual effect of such a blood alcohol level on a person of a weight of 160 pounds. There was evidence of the defendant’s appearance at the scene of the accident, his failure to stop, his lack of awareness of having hit McCarter, and the opinion of the physician who took his blood sample at the hospital, based on his appearance and speech, that he was intoxicated.

There was also evidence, however, that the first police officer at the scene of the accident, who observed the defendant for two to three minutes, detected no signs of intoxication, that the defendant had no trouble following instructions, and that his performance of the physical tests administered to evaluate his level of alcohol influence ranged from “fair” to “sure.” Moreover, there was evidence that the defendant had only two hours of sleep the previous night, that he had no difficulty in understanding that he was waiving his rights when he gave the police a statement, and that he had no difficulty in signing the blood test consent form.

We reject the state’s argument that the court’s instruction was not misleading because it referred the jury, not only to the statute, but also to “all the other evidence in the case” in determining whether the defendant was intoxicated. The critical error in the court’s charge was not that it permitted the jury to find the defendant guilty solely on the basis of the test results, but that it added to the effect of the other evidence the weight of the law’s presumption as to the effect of a blood alcohol level of .10 percent or more. Under these circumstances, we conclude that it was reasonably probable that the jury was misled by the court’s instruction.

There is error in part, the judgment of conviction as to manslaughter in the second degree with a motor vehicle while intoxicated is set aside, and the case is remanded for a new trial on that count of the information.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1985) § 53a-56b provides in pertinent part: “A person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For purposes of this section, ‘intoxication’ shall include intoxication by alcohol or by drug or both.” This statute was amended in 1985. The amendment, in part, deleted the term “intoxication” and substituted in its place the phrase “under the influence of intoxicating liquor.” Public Acts 1985, No. 85-147. See State v. McKenna, 11 Conn. App. 122, 126 n.2, 525 A.2d 1374 (1987).
      The defendant was also convicted of evading responsibility in violation of General Statutes § 14-224 (a). His appeal does not involve this conviction.

       This claim was clearly without merit. See State v. Singleton, 174 Conn. 112, 115-16, 384 A.2d 334 (1977).

       The court stated that it did not have to rule on those claims because the state “does not have two sets of standards” depending on whether the prosecution is under General Statutes (Rev. to 1985) § 14-227a or under General Statutes (Rev. to 1985) § 53a-56b, and because the defendant had not established that the alleged procedural requirements had not been met.

       The court stated: “[Yjesterday the court took judicial notice that our Legislature has enacted a law that says in effect that .10 or more by weight of alcohol in a person’s blood shall be prima facie evidence that he was under the influence of intoxicating liquor or insofar as the operation of his automobile is concerned. . . . One of the things you are entitled to do and I recalled to you before earlier during our charge, the fact that I took judicial notice of this part of the statute 14-227a (c), I believe it is that the Legislature has seen fit to describe, as you will recall, intoxication. I’m sorry. That’s (d) which I’m not going to read you all the paragraph but only that part that I read to you yesterday. ‘Evidence that at such time the ratio of alcohol in the blood was ten-hundredths of 1 percent or more of alcohol by weight shall be prima facie evidence that the defendant was under the influence of intoxicating liquor.’ ”

       The state also claims in its brief that the defendant filed a request to charge which invited the court to charge on the prima facie provisions of General Statutes (Rev. to 1985) § 14-227a (d). The alleged request to charge, which the state quotdsm apparent good faith reliance on copies delivered to it at trial, however, is neither included in the copies of the defendant’s requests to charge filed with the trial court, nor contained in the certified trial court file on record in this appeal.

       General Statutes § 14-227a has been subsequently amended further. See General Statutes (Rev. to 1987) § 14-227a.

       The state, in its brief, urges us, in the event that we find a nonconstitutional error, to apply a harmless error analysis based solely on the claim that the evidence as to the defendant’s guilt was overwhelming. It cites four cases in support of this claim: State v. Silva, 201 Conn. 244, 251, 513 A.2d 1202 (1986); State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); State v. Talton, 197 Conn. 280, 288-90, 497 A.2d 35 (1985); State v. Conroy, 194 Conn. 623, 626-27, 484 A.2d 448 (1984). These cases are inapplicable, since they involve the standard that governs where there is a claim that evidence was erroneously admitted. This is not the appropriate analysis to determine whether a nonconstitutional instructional error requires reversal. See State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986).


author: Bieluch, J.

text:
    State of Connecticut v. Louis Markham
    (4417)
    Borden, Daly and Bieluch, Js.
    Argued June 11
    decision released September 8, 1987

      Eugene J. Riccio, public defender, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, was Andrew Wittstein, assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from his judgment of conviction rendered in accordance with the jury’s verdict of guilty on the charges of disorderly conduct, a violation of General Statutes § 53a-182, and reckless driving, a violation of General Statutes § 14-222. On appeal, the defendant challenges only his conviction for disorderly conduct. He claims that he was denied his constitutional right to notice of the specific nature of the factual allegations against him. In support of his claim, he alleges that the state’s substitute information and bill of particulars improperly charged that he acted intentionally or recklessly in a single count of disorderly conduct. We find no error.

The jury could reasonably have found the following facts. On the night of January 16,1985, at a late hour, Nancy Presson was driving home from work on Route 7 in North Canaan when she noticed a car following her, at first without its headlights on, and later with flashing high beams. As, this car passed her, Presson recognized the defendant, the sole occupant of the car, as a customer earlier that evening in the restaurant where she worked. During this pursuit, the defendant at one point stopped his car in the road ahead of Presson, causing her to do likewise behind him. The defendant approached Presson’s car and asked if she wanted to go for a drink. She refused. He then asked her in vulgar terms if she wanted to have sexual intercourse. Again, she refused and said she was going home. She then locked the car doors, after which the defendant reached through the partially closed car window to unlock the door, but he was unsuccessful when she raised the window. He then shook the window and ordered the victim to unlock the door. She then sped away frightened and went home. She reported the incident to the state police the following day.

On February 14, 1985, the defendant was charged with breach of the peace, a violation of General Statutes § 53a-181, and reckless driving, a violation of General Statutes § 14-222. Thereafter, the state filed a substitute information charging the defendant with disorderly conduct, a violation of General Statutes § 53a-182, in addition to reckless driving. Simultaneously, the state filed a bill of particulars alleging in the first count that the defendant ‘[d]id commit the crime of Disorderly Conduct, in that, with intent to cause inconvenience, annoyance or alarm, or recklessly creating] a risk thereof, he did, on the 16th day of January, 1985, on Rt. 7 in the Town of North Canaan, at approximately 11:30 p.m. engage in violent, tumultuous, or threatening behavior, and thereby, did cause inconvenience, annoyance or alarm to one Nancy Presson, all in violation of ... § 53a-182 of the Connecticut General Statutes.” (Emphasis added.)

In response to the state’s bill of particulars, the defendant challenged the state’s allegations by seeking a supplemental bill of particulars. Since the state alleged intentional or reckless conduct in the disjunctive, he requested that the state be forced to elect between them. The court denied the defendant’s motion and the state then proceeded with the presentation of its case, which it completed that day.

On the following day the defendant’s counsel proceeded with his defense and called the defendant as his only witness. The defendant admitted encountering Presson on the road that evening, but denied the violent actions detailed by the victim’s testimony. He testified that he met her on the road, asked her if she wanted to go for a drink, and when she said no, he left without any further incident.

The sole issue presented in this appeal is whether the state’s accusatory pleadings, namely, the substitute information together with the bill of particulars, gave the defendant fair notice of the charges against him, as guaranteed by the sixth and fourteenth amendments to the constitution of the United States, and article first, § 8, of the Connecticut constitution. The defendant argues that he properly asserted this claim before the trial court, but in any event that the claim implicates his fundamental constitutional rights, which, if adequately supported by the record, may be reviewed under the doctrine of State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). See State v. Cates, 202 Conn. 615, 625-26, 522 A.2d 788 (1987).

Because we find from the record that the defendant raised this claim below, we need not decide whether it warrants an Evans review. Pursuant to the defendant’s request for articulation, the trial court stated that the “issue was clearly brought to the court’s attention, and it is a subject of the current appeal.” According to the trial court’s articulation, the state filed its substitute information and bill of particulars charging the defendant with disorderly conduct immediately prior to jury selection. On that same day, the court conducted a hearing to consider the defendant’s motion to dismiss and his motion for a supplemental bill of particulars requiring the state to elect between the allegations of intentional and reckless conduct. The court considered both of these motions relevant to the offense of disorderly conduct, and denied them. We find, therefore, that the issue was distinctly raised at trial and warrants bur review on appeal.

The defendant claims that the state, by its substitute information and bill of particulars, failed to give him proper notice of the charge of disorderly conduct because the bill of particulars alleged in the disjunctive that the defendant, in the commission of the crime, acted intentionally or recklessly.

“The language of an [accusatory pleading] serves two primary purposes: it informs the accused of the nature of the crime charged and it acts as a bar to future criminal proceedings on the same cause.” State v. Cofone, 164 Conn. 162, 167, 319 A.2d 381 (1972); see State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). “An [accusatory pleading] which charges the commission of two or more offenses in the alternative is fatally defective for the reason that it does not definitely apprise the accused of the specific charge against him.” Grasso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838 (1930). The defendant “may not be tried for one act, or another, or another, at the pleasure of the prosecutor, unless there be as many distinct counts in the information.” (Emphasis in original.) Smith v. State, 19 Conn. 493, 500 (1849). It has been held, therefore, that alternative allegations contained in a single count, which are stated in the disjunctive, serve to deprive the defendant of his constitutional right to fair notice of the specific offense for which he has been charged. See State v. Eason, 192 Conn. 37, 40, 470 A.2d 688 (1984). This is true even when the allegations are patterned after, and use the words of, the criminal statute. Id. 2 F. Wharton, Criminal Procedure (12th Ed. Torcia) § 291. The defendant’s claim is one of duplicity, “the charging of separate offenses in a single count.” 2 W. LaFave & J. Israel, Criminal Procedure § 19.2 (e).

Practice Book § 817 states that no information shall be dismissed for duplicity, provided that an offense is charged. In a case such as this, where the allegations of a single count are duplicitous, the proper recourse is a motion for a bill of particulars. See, e.g., State v. Cofone, supra, 168. “No appeal . . . based on any of the defects enumerated in Sec. 817 [which includes duplicity of charges] shall be sustained unless it is affirmatively shown that the defendant was, in fact, prejudiced in his defense upon the merits and that substantial injustice was done to him because of such defect.” Practice Book § 818. Because we find that the defendant has not affirmatively shown prejudice to the merits of his defense or substantial injustice to him, we conclude that the court did not err in denying his motion to dismiss, and that any error which the court may have made in denying his motion for a supplemental bill of particulars did not constitute reversible error.

At the outset, we note that the state’s information and bill of particulars alleged that the defendant violated General Statutes § 53a-182, disorderly conduct. By so doing, the defendant was given notice of the crime charged and of the elements of that offense, particularly that it expressly proscribed both intentional and reckless conduct. See also State v. Rodriguez, 180 Conn. 382, 405, 429 A.2d 919 (1980) (where indictment charged specific intent crime, defendant put on notice of lesser included offenses that require a less serious degree of culpable intent). Furthermore, the deficiencies alleged by the defendant do not render the pleadings so indefinite as to preclude them from being pleaded by the defendant as a bar to any further prosecution for the same offense. See State v. Franko, supra; State v. Sumner, supra; State v. Cofone, supra.

Nowhere in the defendant’s brief, or reply brief, does he allege that he was, in fact, prejudiced by the state’s disjunctive pleading. Our review of the record, furthermore, confirms that any such argument would be unsuccessful.

General Statutes § 53a-182 provides in the disjunctive that both intentional or reckless conduct is punishable as disorderly conduct. The state’s bill of particulars alleged intentional or reckless conduct and could have been amended at any time to allege these elements conjunctively or in separate counts. Most important is the fact that the defense offered at trial consisted of a denial that he had engaged in “violent, tumultuous or threatening behavior.” He likewise denied that the victim suffered “inconvenience, annoyance or alarm.” At no time did the defendant submit to the jury, by either testimony or argument, that he acted with a lesser degree of intent than that prescribed by the statute. From the defendant’s testimony, and defense counsel's closing arguments, it is clear that credibility was the disputed issue in this case, not the defendant’s intent.

On the basis of the record before us, we cannot find that the defendant was, in fact, prejudiced in his defense on the merits or that he suffered substantial injustice from the disjunctive pleading of the alternate mental states prescribed by General Statutes § 53a-182. See also State v. West, 3 Conn. App. 650, 653-54, 491 A.2d 428, cert. denied, 196 Conn. 810, 494 A.2d 906 (1985). The appeal, therefore, may not be sustained. See Practice Book § 818.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes ] Sec. 53a-182. disorderly conduct: class c misdemeanor. (a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise; or (4) without lawful authority, disturbs any lawful assembly or meeting of persons; or (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse.”

       The defendant does, not challenge the state’s assertions that had the state pleaded intentional and reckless conduct conjunctively, the defendant’s right to fair notice would have been protected. See Practice Book § 618; State v. Eason, 192 Conn. 37, 40-41, 470 A.2d 688 (1984); State v. West, 3 Conn. App. 650, 653, 491 A.2d 428, cert. denied, 196 Conn. 810, 494 A.2d 906 (1985).

       “[Practice Book] Sec. 817. —defects not requiring dismissal
      “No indictment or information shall be dismissed because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling or improper English, or because of any use of a sign, symbol, figure or abbreviation or, because of any similar defect, imperfection or omission. No indictment or information shall be dismissed merely for misjoinder of parties accused, misjoinder of offenses charged, multiplicity, duplicity or uncertainty, provided an offense is charged.”

       “[Practice Book] Sec. 818. —remedies for minor defects
      “If the judicial authority determines that any of the defects stated in Sec. 817 exists in any indictment or information, he shall order such relief as is required to remedy such defect, including the severance of such indictment or information into separate counts or the filing of a bill of particulars. No appeal, or motion made after verdict, based on any of the defects enumerated in Sec. 817 shall be sustained unless it is affirmatively shown that the defendant was, in fact, prejudiced in his defense upon the merits and that substantial injustice was done to him because of such defect.”


author: Daly, J.

text:
    State of Connecticut v. Otis Baskins
    (5210)
    Borden, Daly and Bieluch, Js.

      Argued June 10
    decision released September 8, 1987

      Earl I. Williams, for the appellant (defendant).

      Maureen E. Norris, special assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of illegal sale of narcotics in violation of General Statutes § 21a-277 (a). He claims that the trial court erred (1) by denying his motion for judgment of acquittal based on insufficiency of the evidence to support his conviction, (2) by admitting into evidence a brown paper bag and its contents and over $1000 in currency, and (3) by denying his motion for a new trial based upon improper prosecutorial argument to the jury. We find no error.

The jury could reasonably have found the following facts. On August 23,1985, the defendant was observed by an undercover police detective walking along North Main Street near Elizabeth Street in Waterbury. The detective saw an unidentified black male hand money to the defendant, who then walked across North Main Street to a driveway leading to a factory. There was a small brown paper bag located in the driveway. The defendant picked up the brown paper bag, removed something from it, then placed the bag back in the driveway and retraced his steps across North Main Street to the black male. The defendant handed something to the black male, who then held up two small glassine bags and rubbed them together before walking away. The detective radioed for assistance and then retrieved the brown paper bag which contained ten glassine bags, which were later field tested and found to contain heroin. The defendant went into a nearby luncheonette when he saw a police cruiser approaching down North Main Street. There, he was observed by a police officer placing a large wad of money into the pocketbook of a young black woman who was seated in the restaurant. The defendant was promptly arrested and a search of the woman’s pocketbook revealed $1233 in crumpled bills in denominations of ones, fives and twenties.

The brown paper bag, the ten glassine bags and the cash were admitted into evidence. There was expert testimony that the ten glassine bags contained heroin.

The defendant’s first claim is that there was insufficient evidence for the conviction since the two glassine bags which he allegedly handed to the unidentified male were not recovered, nor was there evidence as to the contents of those two bags. We disagree.

The standard that applies when a jury verdict is challenged for insufficiency of the evidence is firmly entrenched in Connecticut law. We first view all of the evidence in the light most favorable to sustaining the verdict. We then ask whether the jury could reasonably have concluded, upon the facts established and inferences reasonably drawn therefrom, that the defendant was guilty beyond a reasonable doubt. State v. Tucker, 9 Conn. App. 161, 163, 517 A.2d 640 (1986). Every element of the crime charged must be so proved, and while the jury is entitled to draw reasonable, logical inferences from the facts proved, they may not speculate or guess at conclusions. “It is the cumulative impact of a multitude of facts, and not any one fact, which establishes guilt in a case involving substantial circumstantial evidence.” State v. Gaynor, 182 Conn. 501, 503-504, 438 A.2d 749 (1980). This is such a case.

In order to convict the defendant in this case, it was essential that the state prove that the accused sold a narcotic drug, namely, heroin. State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 (1974). In this case, because the two glassine bags sold by the defendant were never recovered, there was no direct evidence that those bags contained heroin. Thus, the state had to rely on circumstantial evidence to prove that the defendant sold a narcotic drug. So far as probative force is concerned, there is no distinction between direct and circumstantial evidence; State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); and all the evidence must be given a construction most favorable to sustaining the jury’s verdict. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).

On the basis of the verdict in this case, it is clear that the jury inferred that the two glassine bags handed to the unidentified man by the defendant in exchange for money contained a narcotic since they came from the same small brown paper bag which contained ten additional glassine bags which were proved to contain heroin. The question before us then, is whether this inference is so unreasonable that the verdict cannot be supported.

While such an inference was not necessary, it certainly was permissible. See State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985) (“in viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence”). We conclude that the jury’s inference was not unreasonable. Applying the proper standard to all the facts established at trial, and the inferences drawn therefrom, we conclude that the evidence in this case was sufficient to support the jury’s verdict.

In his second claim, the defendant argues that the trial court erred in admitting the small brown paper bag, the ten glassine bags, and the currency into evidence. He asserts that these items were irrelevant and prejudicial. We disagree.

No exact test of relevancy can be found in the law. Thus, questions of relevance must be determined in each case according to the teachings of reason and judicial experience. State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); State v. Corbett, 12 Conn. App. 217, 220, 530 A.2d 208 (1987). “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. . . . The Federal Rules of Evidence (§ 401) broadly define relevant evidence as ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” (Citations omitted.) State v. Villafane, 171 Conn. 644, 674-75, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977).

Here, the items admitted into evidence corroborated the testimony of the police officers as to what they observed. Further, they aided the jury in its determination of whether a sale had transpired, and whether the goods sold were narcotics.

A trial court has broad discretion in its rulings on the relevance of evidence and in its determination of whether the probative value of evidence outweighs its prejudicial effect. Reversal is required only when there is an abuse of discretion or when an injustice has been done. State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977). The probative value of the evidence objected to outweighed its prejudicial effect. We find no abuse of discretion or injustice in this case.

The defendant’s final claim is that the trial court erred in denying his motion for a mistrial which was based on the state’s closing argument. He claims that the argument was an improper indirect comment on his failure to testify. We disagree.

The prosecutor’s challenged statement was: “Ladies and Gentlemen, if he wasn’t standing there on the corner selling drugs, what was he doing?” The defendant’s counsel promptly objected to the statement and the trial court immediately ordered it stricken from the record and clearly instructed the jury to “[disregard that testimony.” During its charge to the jury, the court stated: “Under the Fifth Amendment, ladies and gentlemen, a person cannot be compelled to testify in any criminal case wherein he is the accused. He may testify if he wishes to do so, but cannot, as I said, be compelled.

“These Fifth Amendment rights are granted by our constitution. And, the Court is required by the legislature to instruct you that you may draw no unfavorable inference from the decision of the defendant not to testify.

“I will direct you that the defendant’s decision not to testify cannot be held against him. Such decision does not create any unfavorable inferences against him. It is not evidence of guilt nor is it a substitute for evidence of guilt.

“You are further directed by this Court not to discuss or consider his silence in any way or for any purpose in your deliberations.” The jury rendered a guilty verdict, and the defendant then moved for a mistrial based on the comment by the state’s attorney.

The question to be answered on a motion for mistrial is whether there was “substantial and irreparable prejudice to the defendant’s case.” Practice Book § 887. A mistrial is warranted only where the court concludes that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. Such a motion invokes the court’s wide discretion. State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987).

Here, there was an immediate objection and instruction by the court that the jury was to disregard the comment. In addition, during the general charge, the jury was clearly instructed not to draw any adverse inference from the defendant’s decision not to testify. Such instructions are entitled to great weight; State v. Jenkins, 8 Conn. App. 35, 44, 510 A.2d 1370 (1986); and in the absence of a fair indication to the contrary, we must presume that the jury followed those instructions. State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who . . . sells ... to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance ... for a first offense, shall be imprisoned . . . .”


author: Dupont, C. J.

text:
    State of Connecticut v. John Trujillo
    (4059)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 12, 1987
    decision released September 15, 1987

      Richard Emanuel, for the appellant (defendant).

      James G. Clark, assistant state’s attorney, with whom, on the brief, was John Whalen, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

After a trial to a jury, the defendant was convicted of the crimes of assault in the second degree, in violation of General Statutes § SSa-GO, and risk of injury to a minor, in violation of General Statutes § 53-21. The dispositive issues of this appeal are whether the trial court erred (1) by impermissibly enlarging the risk of injury offense in its charge to the jury, (2) in its charge to the jury on circumstantial evidence, (3) by imposing sentences on both the assault and risk of injury charges in violation of the double jeopardy prohibition of multiple punishments for the same offense, and (4) in denying his motions for judgment of acquittal.

The jury could reasonably have found the following facts. At the time of the incident, the defendant had resided with a woman and her four children for approximately six years. Although he was the natural father of only two of the children, he acted as a father for all four children during this period. The victim is the woman’s son, and was eleven years old at the time of the incident. The victim testified that he considered the defendant to be his stepfather.

On August 28, 1984, the victim suffered a burn on his chest which was caused by a hot clothes iron. In a bill of particulars, the state alleged that the defendant had intentionally burned the victim with an iron, and that as a result of this act, the victim “sustained a severe burn to his chest, great pain, and a permanent scar,” and that the defendant’s act was such that the victim was “likely to have his health injured or impaired.”

The victim testified at trial that on the day of the incident he had taken his sister for a ride on a minibike, and that she had burned her leg bn the muffler after falling off the bike. When the defendant found out about the accident, he told the victim to go to his room. The defendant subsequently went into the victim’s room to reprimand him for taking his sister out on the minibike. In doing so, the defendant picked up an iron which was normally kept in the room to demonstrate, that the heat of a muffler was similar to the heat of an iron. The victim testified that the iron was plugged in, but that the switch on the iron was in the “off” position. He further testified that at that point he tried to get away from the defendant by pushing his way past him. He claimed that, in doing so, he hit his chest against the iron. The victim maintained throughout the trial that the incident had been an accident.

The state was thereafter permitted to cross-examine the victim concerning the detailed and signed statement he had previously given to the police regarding the incident. The statement was introduced into evidence without objection from the defendant. In that statement, the victim stated that after the defendant had found out about the minibike accident, he threatened to heat up the iron and “get” the victim. The victim also stated that the defendant thereafter plugged the iron into the outlet in the victim’s bedroom, and after waiting a few minutes, checked to see if it was hot while saying: “Just wait until it gets hot and then I’m going to burn you.” The statement further provided that the defendant backed the victim into a comer and put the iron against his chest.

The victim testified at trial that the facts contained in the statement were not true, and further insisted that his in-court testimony was the truth. He further stated that the reason he had provided false statements to the police was because he was “scared and did not know what to say.” He testified that the detective had threatened that he “might have to go to juvenile court.” The victim also stated that he thought the police would not believe him if he said the incident was an accident, and therefore thought he had to fabricate a story.

The defendant testified that although he did hold up the iron in front of the victim, he did not know that the iron was hot. He stated that the iron had been defective, and would consequently heat up even if it was switched off. He maintained that he picked up the iron only while explaining to the victim that the heat of a muffler was similar to that of an iron, and that the victim had accidently walked into the iron.

I

The defendant claims that the trial court erred in its charge to the jury on the offense of risk of injury to a minor in violation of § 53-21. That section proscribes “ ‘two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare; see State v. Smith, 149 Conn. 487, 181 A.2d 446 [1962]; and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.’ ” State v. Sullivan, 11 Conn. App. 80, 98, 525 A.2d 1353 (1987), quoting State v. Newton, 8 Conn. App. 528, 532-33, 513 A.2d 1261 (1986); see also State v. Apostle, 8 Conn. App. 216, 242, 512 A.2d 947 (1986).

The defendant was initially charged by a short-form information which failed to specify the alternative with which he was charged. In a motion for a bill of particulars, the defendant requested that the state provide the following information regarding the risk of injury charge: (1) the specific act or acts allegedly committed by the defendant upon which the state relied in charging the defendant; (2) the date, time and place said act or acts were allegedly committed and the specific nature of each act; and (3) the exact and precise manner in which it was alleged that the defendant committed any act or acts in violation of § 53-21.

The state filed a bill of particulars pursuant to the request of the defendant. It provided in pertinent part: “1. It is alleged that defendant burned [the victim], age 11, on the chest with a hot clothes iron. . . . 3. It is alleged that the defendant’s conduct, as set forth above, was such that the victim, age 11, was likely to have his health injured or impaired.” The bill of particulars, therefore, specified that the defendant was charged with only the second category of conduct prohibited by § 53-21. Under this second category of prohibited conduct, “ ‘the state must prove (1) an act (2) likely to impair the morals or health (3) of a child under the age of sixteen.’ ” State v. Sullivan, supra, 99, quoting State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982).

The trial court’s charge to the jury, however, included references to both alternatives. The trial court instructed the jury that a conviction under the risk of injury statute would require the jury to find conduct which fell into either of two categories: “First; willfully or unlawfully causing or permitting such child to be placed in a situation where it’s life or limb is in danger or it’s health likely to be injured. Second; the doing of any act likely to impair the health of a child. These are not separate elements. These are two divisions of the statute. And you can find under either one of them. ” (Emphasis added.) The trial court, therefore, not only instructed the jurors on an inapplicable portion of the statute, but also specifically instructed them that a conviction could be based on either portion of the statute.

The defendant alleges that the trial court’s instruction unconstitutionally enlarged the offense of risk of injury as stated in the charging documents, and effectively permitted the jury to convict him on the basis of an uncharged portion of the statute in violation of his rights under the sixth amendment to the United States constitution and under article first, § 8 of the Connecticut constitution.

The defendant failed to raise this claim at trial and failed to take an exception to the trial court’s charge. See Practice Book § 852. We review this claim, however, under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because the defendant’s claim of enlargement implicating the fundamental constitutional right to be informed of the nature and cause of the accusation against him is adequately supported by the record, and because we have recently granted an Evans review for a similar claim in State v. Newton, supra, 532; see also State v. Roque, 190 Conn. 143, 149-50, 460 A.2d 26 (1983).

The provisions of both the sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him “ ‘ “with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987), quoting State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). In order “ ‘for the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court’s charge caused him unfair surprise or prejudiced the preparation of his defense.’ ” State v. Scognamiglio, supra, 22.

The defendant does not claim, nor do we find, that he was unfairly surprised by the trial court’s instruction. The introduction of evidence relating to the uncharged portion of the statute by the state without objection from the defendant, coupled with his failure to object to the disputed instruction, negates any possible claim of unfair surprise in the present case. State v. Franko, supra, 490-91; State v. Roque, supra, 155-56; State v. Newton, supra, 536-37. The thrust of the defendant’s claim of error, however, is that he was prejudiced in the preparation of his defense by such an instruction.

In determining whether a defendant has been prejudiced in the preparation of his defense, we consider the nature of his defense advanced at trial in relation to the trial court’s instruction. See State v. Newton, supra. Where the record indicates that a defendant would not have changed his defense in any way had he actually been charged by the state with the particular theory of criminal liability upon which a trial court instructed the jury, the defendant’s defense cannot be said to have been prejudiced. State v. Scognamiglio, supra, 22-23; State v. Franko, supra, 491. Thus, if the defendant’s defense encompasses the uncharged theory of criminal liability as well as the charged theory, and, if believed by the jury, could lead to an acquittal under either theory, his constitutional rights have not been adversely implicated by the trial court’s instruction. State v. Franko, supra.

In the present case, the defendant had been apprised by the bill of particulars that the state would prosecute him only under the second alternative provided in the risk of injury statute. The purpose of the bill of particulars “ ‘ “is to supply both the accused and the court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense.” ’ ” (Emphasis in original.) State v. Eason, 192 Conn. 37, 40-41, 470 A.2d 688 (1984), quoting State v. Coleman, 167 Conn. 260, 269, 355 A.2d 11 (1974). As such, a bill of particulars limits the state to proof of the commission of an offense in substantially the manner described. State v. Roque, supra, 155. In the present case, therefore, the bill of particulars limited the state to proving that the defendant had burned the victim on the chest with the iron, and that such conduct was likely to injure or impair the victim’s health. See State v. Shaw, 186 Conn. 45, 51, 438 A.2d 872 (1982). The defendant was justified in relying upon the state’s particularization of the charge and in preparing a defense to the allegations contained in the bill of particulars. Id.

The defendant’s defense was predicated on the assertion that the victim had accidently brushed against the iron while attempting to walk around the defendant. As part of such defense, the defendant admitted that he had held the iron in front of the victim while it was plugged in, but denied the allegation that he committed the specific act of burning the victim with the iron. He, therefore, was proffering a defense directed to the specific act alleged in the bill of particulars. The evidence which the defendant might have offered had he been charged with the entire risk of injury statute, however, “would logically have differed from that which he did present to defend against the portion of the statute with which he was charged.” State v. Newton, supra, 535.

A charge of risk of injury can encompass “ ‘a host of possibilities and a multitude of acts.’ ” Id., 536, quoting State v. Apostle, supra, 246. “In order to commit an offense under the first part of the broad risk of injury statute, no touching of any part of the body is required. ‘[T]he creation of a prohibited situation is sufficient.’ ” State v. Newton, supra, quoting State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). The defense asserted by the defendant, therefore, even if believed by the jury, would not have been effective in obtaining an acquittal under the first alternative provided in the statute. Cf. State v. Scognamiglio, supra, 23; State v. Franko, supra, 490-91. The evidence presented by the defendant as part of his defense disclosed numerous acts which could have persuaded the jury to consider the uncharged portion of the risk of injury statute. See State v. Newton, supra. The defendant’s admission that he held the iron up in front of the victim while it was plugged in, for example, could have been construed to constitute a prohibited situation sufficient to sustain a conviction under the first alternative of the statute. We conclude, therefore, that the defendant has met his burden of proving that he was prejudiced in the presentation of his defense by the trial court’s charge to the jury. See id.

Moreover, we find that it was reasonably possible that the jury was misled by the erroneous charge into misunderstanding an issue of fundamental constitutional significance. See id., 534. The trial court did not inform the jury at any time that the state had limited its accusation to only one part of the risk of injury statute. Thus, the erroneous instruction, coupled with the evidence presented at trial, could reasonably have led the jury to convict the defendant “for a crime the elements of which were not alleged in the information.” State v. Belton, 190 Conn. 496, 504, 461 A.2d 973 (1983); State v. Newton, supra, 537-38. Because a new trial will be necessary on the risk of injury count, we will not address the defendant’s other claim of error arising out of that charge.

II

The defendant also challenges the trial court’s jury instructions on circumstantial evidence. The trial court instructed the jury that it could draw an inference if it was “more probable than not that the facts to be inferred are true.” The defendant asserts that this instruction diluted the state’s burden of proof beyond a reasonable doubt, thus denying him his constitutional right to a fair trial. Although the defendant neither filed a written request to charge nor excepted to the challenged portion of the charge, we will review this claim under State v. Evans, supra, pursuant to the precedent established by both this court and our Supreme Court in recent cases granting such an Evans review to numerous similar claims, because such a claim implicates the fundamental constitutional right that the state prove the defendant’s guilt beyond a reasonable doubt. See State v. Robinson, 204 Conn. 207, 209-10, 527 A.2d 694 (1987); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Butler, 11 Conn. App. 673, 675-76, 529 A.2d 219 (1987); State v. McKenna, 11 Conn. App. 122, 134-35, 525 A.2d 1374 (1987).

These cases have recognized that a jury instruction in a criminal case which informs a panel that it may infer a fact when it is more probable than not that such a fact exists is erroneous “because, as applied to inferences for the finding of facts that are essential elements of the crime, it unconstitutionally dilutes the state’s burden of proving guilt beyond a reasonable doubt.” State v. McKenna, supra, 135. Such error, however, has been held to be reversible only if it is reasonably possible that the jury was misled by the trial court’s instructions. Id.

In determining whether the instruction is reasonably likely to have misled the jury, our courts have focused upon the primary disputed factual issue which was before the jury in the case, and the bearing that the erroneous instruction had on such issue. State v. McKenna, supra, 136. In cases in which the principal factual issue is characteristically proven by circumstantial evidence, or when the state relies primarily upon circumstantial evidence to prove the disputed central issue of fact, we will “closely scrutinize” the court’s instruction regarding the use of circumstantial evidence as proof of that essential element. State v. Robinson, supra, 210. If, on the other hand, the principal disputed factual issues are not proven primarily by circumstantial evidence, “ ‘the trial court’s instructions may be read as a whole to determine whether it is reasonably possible that the jury was misled by an erroneous explanation regarding the use of circumstantial evidence.’ ” State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 749 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), quoting State v. Farrar, 7 Conn. App. 149, 155-56, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).

Our courts have consistently found reversible error in prior cases in which the principal disputed issue at trial was intent, because such issue “ ‘is characteristically proven by circumstantial evidence.’ ” State v. Whelan, supra, 757. In such cases, it is essential that the jury is provided with a correct instruction on the meaning and utilization of circumstantial evidence. When an erroneous instruction is given, “it cannot be said that the incorrect statement did not influence the jury.” State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985). In the present case, the state concedes that the principal factual issue in the assault charge was intent, and that the trial court’s erroneous instruction must be subjected to close scrutiny.

The state contends, however, that the meaning of “close scrutiny” has not yet been determined by this court or the Supreme Court. It argues that such close scrutiny analysis should not require this court to review the erroneous instruction in isolation from the rest of the jury charge. Rather, the state submits that “close scrutiny” merely means that “the presumption of correctness normally afforded the actions of the trial court is abandoned in favor of a de novo review of the instructions as a whole. ” The state claims, therefore, that even in cases in which the disputed factual issue is intent, the court must review the jury instructions as a whole in order to determine whether the jury has been misled. In support of this claim, the state argues that to read the instruction in isolation from the rest of the charge “defies common sense and logic.”

The state’s argument, however, is unpersuasive in light of our Supreme Court’s recent decision in State v. Robinson, supra, 210. In that case, the court recognized that “[wjhere the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, ‘we will closely scrutinize the court’s instructions’ on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.” (Emphasis added.) This holding conclusively resolves any potential confusion claimed by the state regarding the manner in which close scrutiny analysis is applied. See also State v. Rodgers, supra, 58.

Adopting this analysis, we conclude that it was reasonably possible that the jury was misled with respect to the state’s burden of proving intent beyond a reasonable doubt. The primary disputed issue in the assault charge was whether the defendant intended to cause physical injury to the victim. In order to prove this element, the state produced the testimony of a variety of witnesses to establish facts from which the jury could have inferred such intent. “Having been told that an inference may be drawn when ‘it is more probable than not that the fact[s] to be inferred [are] true,’ the jury was, thus, permitted to draw the inference of intent, necessary to a finding of guilty, based on the erroneous probability standard.” State v. Whelan, supra, 758.

Although our courts have previously found automatic reversible error in similar cases, this court has recently held that a harmless error analysis can be applied to this type of error pursuant to the holding in Rose v. Clark, 478 U.S. 570, 583-84, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986). State v. Perez, 10 Conn. App. 279, 290, 523 A.2d 508 (1987). Such an analysis requires that we determine whether, based upon the whole record, it is clear beyond a reasonable doubt that the constitutional error did not contribute to the jury’s verdict. State v. Perez, supra, 290. The state has failed to point to any evidence on the issue of intent which is so “overwhelming” that we can conclude as a matter of law that the jury’s verdict was not influenced by the erroneous instruction, nor do we find any such evidence contained in the record. See State v. Dullivan, 10 Conn. App. 474, 479, 523 A.2d 1353 (1987). The evidence which tended to prove that the defendant intended to burn the victim, while sufficient to sustain the guilty verdict, was not “overwhelming.” See id. None of the state’s witnesses either would or could testify with certainty that the defendant had acted with the requisite intent. Moreover, the victim’s prior statement was vehemently denied by him as being a truthful or accurate version of the incident. We thus conclude that the erroneous instruction was harmful in this case. A new trial, therefore, must be ordered on the charge of assault in the second degree.

III

Although a new trial must be ordered, the defendant’s claim that the trial court’s imposition of sentences on both the assault charge and the risk of injury charge violates the prohibition against double jeopardy is considered since it is likely to recur on retrial. See Lamb v. Burns, 202 Conn. 158, 166, 520 A.2d 190 (1987).

The defendant alleges that his rights under the double jeopardy clause of the fifth amendment to the United States constitution and under Connecticut law were violated by the trial court’s imposition of multiple punishments for the same offense. As support for his claim, the defendant asserts that the state, in its bill of particulars, alleged the same act in its particularization of both the assault in the second degree charge and the risk of injury charge, and that the risk of injury charge was thus necessarily included within the assault charge.

The prohibition of double jeopardy prevents multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985). Double jeopardy analysis in this context is a two-step process. “First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” State v. Devino, supra, 74.

In the present case, both the defendant and the state agree that the assault charge and the risk of injury charge arose out of the same act. The state argues, however, that the charged crimes are not the same offense. We agree.

“The classic test for whether offenses are the same within the meaning of the double jeopardy clause ‘where the same act or transaction constitutes a violation of two distinct statutory provisions ... is whether each provision requires proof of a fact which the other does not.’ ” State v. Devino, supra, 74-75, quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). This test is applied with reference to the bill of particulars or charging documents. State v. Devino, supra, 75. “It is only when ‘the elements of one offense as defined by the statute include the elements of a lesser offense; or if one offense is merely nominally distinct from the other’ that double jeopardy attaches.” State v. Perruccio, 192 Conn. 154, 162, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), quoting State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982).

Assault in the second degree and risk of injury do not stand in the relation of greater to lesser included offenses, as each require proof of elements not required by the other. In order to convict under the risk of injury statute, as charged in the bill of particulars, the state must prove (1) an act (2) likely to impair the moral or health (3) of a child under the age of sixteen. General Statutes § 53-21; State v. McCall, supra; State v. Sullivan, 11 Conn. App. 80, 99, 525 A.2d 1353 (1987). Conversely, a conviction of assault in the second degree, as charged in the bill of particulars, requires proof of (1) the specific intent to cause physical injury to another person (2) actual physical injury resulting to that person (3) by means of a dangerous instrument. General Statutes § 53a-60. Thus, although the statutory violations resulted from the same act or transaction and were described in identical terms by the state in its bill of particulars, the elements of the two charges are distinct and dissimilar. The statutory violations charged, therefore, are clearly not the same offense for double jeopardy purposes.

IV

In his final claim of error, the defendant alleges that the evidence was insufficient to establish the defendant’s guilt beyond a reasonable doubt, and that the trial court erred in denying his motions for a judgment of acquittal. It is necessary to review this claim even though we have concluded that there must be a new trial because, if the evidence were insufficient, the defendant would be entitled to an acquittal instead. State v. McIntosh, 12 Conn. App. 179, 187 n.3, 526 A.2d 11 (1987). The defendant claims that the evidence was “so inconsistent and contradictory that it necessarily encouraged the jury to engage in speculation and conjecture.”

Our role in reviewing a sufficiency of the evidence claim is limited. When a verdict is challenged because of a claim of insufficient evidence, the issue is whether the jury “ ‘could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” (Emphasis added.) State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). In considering this issue, this court must construe that evidence “in the most favorable manner reasonably possible to support the jury verdict.” State v. Miller, supra, 486; see also State v. Leavitt, 8 Conn. App. 517, 523, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986). In our inquiry, we cannot substitute our judgment for that of the jury. State v. Miller, supra, 489. This court, therefore, should not “ ‘ “ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt.” ’ ” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983). Rather, the relevant question in our review “ ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)].”’ State v. Scielzo, supra, 197.

Applying these principles to the present case, we cannot find that the facts and inferences in this case did not reasonably permit a finding of guilty by the jury. The jury could reasonably have found that the evidence presented by the state established the elements of both the assault charge and the risk of injury charge. We conclude, therefore, that there was sufficient evidence to sustain the jury’s verdict of guilty.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-60 provides in pertinent part: “A person is guilty of assault in the second 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; or (2) with intent to cause 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 . . . .”

         General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       We note that the state did not comply with the provisions of Practice Book § 833 which provides: “When any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions.” The defendant, however, has failed to object to the state’s noncompliance with § 833. Under the circumstances of this case, therefore, the failure of the state to file either an amended or substitute information “does not change our view of the disposition of this case.” State v. Roque, 190 Conn. 143, 155 n.6, 460 A.2d 26 (1983).

       The sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution provide that “[i]n all criminal prosecutions, the accused shall have a right ... to be informed of the nature and cause of the accusation . . . .”

       Although the evidence presented in this case would have supported a verdict based solely upon the second alternative provided in the risk of injury statute, that is not the relevant inquiry before us. State v. Newton, 8 Conn. App. 528, 538 n. 5, 513 A.2d 1261 (1986). “ ‘[Wjhat is before us is whether it is reasonably possible that the jury were misled. See State v. Rose, 169 Conn. 683, 688-89, 363 A.2d 1077 (1975).’ ” Id., quoting State v. Belton, 190 Conn. 496, 504, 461 A.2d 973 (1983).

       The defendant claims that when the trial court instructed the jury that it could find the defendant guilty under either alternative of the statute, it failed to instruct the jurors that they must unanimously agree on the same alternative. Because we have determined that the trial court erred in impermissibly enlarging the offense by instructing the jury on both alternatives, we need not reach this issue.

         The state argues in its brief that the trial court’s instruction was a correct statement of the law of inferences, and that this court should not adhere to the precedent established by State v. Whelan, 200 Conn. 743, 758, 513 A.2d 86, cert. denied, 749 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985). As we recognized in State v. Thurman, 10 Conn. App. 302, 309 n.5, 523 A.2d 891 (1987), however, “this court will not reexamine or reevaluate Supreme Court precedent.”

       The circumstantial evidence presented by the state to prove the element of intent included testimony which established that the defendant’s own daughter had been injured because of the victim, and that the defendant had wanted to punish the victim. Moreover, the mother of the victim testified that at one point she was not convinced that the burning had been an accident. Various police officers testified that the victim appeared to be upset and afraid on the day after the incident, and that they were of the opinion that such incident had not been an accident.

       In his brief, the defendant raises an additional claim of error which we will not review because it will not recur at retrial. In such claim, the defendant alleges that the trial court erred in failing to instruct the jury that the victim’s prior inconsistent statement could only be used for impeachment purposes. In 1986, our Supreme Court decided State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 749 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), in which it adopted a rule which permits prior written inconsistent statements of a nonparty witness to be used, not only for impeachment purposes, but for substantive evidence as well when such statements were “signed by the declarant, who has personal knowledge of the facts stated, [and] when the declarant testifies at trial and is subject to cross-examination.” Id., 753. At the time of the defendant’s trial, however, our courts had adhered to the traditional view that a prior inconsistent statement of a nonparty witness was inadmissible hearsay if offered to prove the truth of the matters asserted therein, and, therefore, was admissible only for impeachment purposes. State v. Villafane, 171 Conn. 644, 672, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). The defendant concedes that the victim’s prior written inconsistent statement in this case could be admitted as substantive evidence if the holding in State v. Whelan were applied to this case. He argues, however, that such holding should not be retroactively applied to this case, and that the trial court erred by failing to instruct the jury pursuant to then existing caselaw.
      We need not reach this argument, however, since we have already determined that a new trial is necessary. Because such retrial will obviously take place after State v. Whelan, supra, was decided, the question of the propriety of a retroactive application of Whelan will no longer exist.
      We also reject as unpersuasive the defendant’s claim that Whelan is not applicable to the present case merely because the trial court was not specifically apprised of the question of the admissibility of the prior inconsistent statement, as was the trial court in Whelan. The trial court’s failure to address the specific issue of whether the prior inconsistent statement should have been admitted under the circumstances of this case resulted, in part, because of the defendant’s failure to alert the trial court to such issue by either submitting a request to charge or specifically excepting to the charge as given.

       The fifth amendment to the United States Constitution provides that “[n]o person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb . . . .”
      Although the Connecticut constitution contains no specific double jeopardy provision, “ ‘the due process guarantees of article first, § 8, have been held to include such a protection.’ ” State v. Van Sant, 198 Conn. 369, 375 n.5, 503 A.2d 557 (1986), quoting State v. Rawls, 198 Conn. 111, 113 n.3, 502 A.2d 374 (1985).