author: Foti, J.

text:
    State of Connecticut v. Julius Brown
    (11713)
    Foti, Lavery and Spear, Js.

      Argued June 6
    decision released August 30, 1994

      Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Jacqueline J. Footman, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran and Elpedio Vitale, assistant state’s attorneys, for the appellee (state).
   Foti, J.

The defendant appeals the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), burglary in the third degree in violation of General Statutes § 53a-103 (a), and two counts of assault of a peace officer in violation of General Statutes § 53a-167c (a) (1). The defendant claims that the trial court improperly instructed the jury on (1) intoxication, (2) reasonable doubt, and (3) self-defense. He also claims that the trial court improperly failed to instruct on an essential element of the offense of robbery in the first degree, and improperly commented on the defendant’s credibility. We reverse the judgment with respect to the robbery conviction and affirm the balance of the judgment.

The jury reasonably could have found the following facts. On February 1, 1991, just prior to 11 p.m., the victim was walking in the vicinity of Mansfield Street in New Haven, when she was accosted by the defendant, whom she had met previously. Brandishing a screwdriver, the defendant forced her into an alleyway and demanded money. After seizing her pocketbook, he required her to disrobe and he searched each article of clothing for money. He then ran off with the victim’s pocketbook.

At approximately 11 p.m., two officers of the Yale University police department, John Sequino and William Kraszewski, were patrolling parking lots in the vicinity of Prospect Street in New Haven, when they observed a car with its flashers on. As they pulled their vehicle behind that car, they observed movement inside the car and broken glass on the ground near the window on the passenger’s side. They concluded that the car had been broken into and that the perpetrator was still inside. Kraszewski approached the driver’s side and Sequino the passenger’s side. Sequino reached in through the broken window and grabbed the defendant by the leg as the defendant attempted to exit by the door on the driver’s side. The defendant kicked at Sequino and stabbed at him with a screwdriver, striking his hand. Kraszewski struggled with the defendant on the driver’s side and the defendant attempted to stab him in the head, neck and shoulder with the screwdriver. The defendant then broke free and fled. Following a short pursuit, the defendant was found hiding beneath a garbage truck parked on Yale University property and was apprehended.

At the time of the incident, both officers were dressed in plain clothes and each wore a police badge on a chain around his neck. Upon seizing the defendant, they identified themselves as police officers. The victim identified the defendant at the scene as the man who had accosted her and stolen her pocketbook. The owner of the vehicle in which the defendant was found had not given him or anyone else permission to be in that car. As a result of the puncture wound to his hand, Sequino sustained a permanent partial disability, consisting of the loss of movement in the last joint of his index finger.

The defendant testified that he had consumed some alcohol that evening and denied any contact with the female victim. Although he admitted to having a screwdriver, he denied stabbing or attempting to stab anyone, and claimed self-defense as a result of the struggle with the two officers. He claimed that they did not identify themselves as police officers, that he did not recognize them as such because the lighting was poor and they were not in uniform, and that he believed he was being assaulted by the owners of the car.

I

The defendant submits that the trial court’s instructions on intoxication deprived him of his due process rights under article first, § 8, of our state constitution and the fourteenth amendment to the United States constitution. He claims that the instructions were so confusing that they relieved the state of its burden of proving intent beyond a reasonable doubt, set an improperly high standard by which the jury should evaluate the evidence, and improperly required the jury to find first that the state had sustained its burden in proving intent, and only then to determine whether intoxication negated that intent.

This claim was not properly preserved for appellate review; the defendant claims reviewability under the Evans-Golding standard. We review this claim because it alleges that there was a shifting or diminishing of the state’s burden of proof and that there was constitutional error in the instructions on intent, which constitutes a violation of a fundamental constitutional right. See State v. Stevenson, 198 Conn. 560, 567-72, 504 A.2d 1029 (1986).

Where a main issue to be determined at trial is intent, we will closely scrutinize the trial court’s instructions to determine whether the jury could have been misled. State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987). Our review is guided by the established rule that jury instructions are not to be subjected to microscopic examination with an eye toward discovering possible inaccuracies. State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991). Instead, we must consider the entire charge to determine its effect on the jury in guiding it to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); and whether it was reasonably possible that the charge as a whole, as to intent and the effect of intoxication on intent, misled the jury. See State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991); State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989). If the challenged instructions accurately state the law, there is no reasonable possibility that they misled the jury. State v. Fernandez, 27 Conn. App. 73, 83, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). Specifically, our inquiry is whether “the court provided the jury with an accurate and comprehensive explanation of the relationship between the state’s burden of proving the element of specific intent and the defendant’s evidence of his intoxication.” Id., 85. Our review of the instructions persuades us that the jury could not reasonably have been misled either on the state’s burden of proof on the element of intent, or on the jury’s responsibility to consider the effect of the defendant’s evidence of intoxication in determining whether the state satisfied its burden of proving the requisite intent beyond a reasonable doubt.

The defendant argues that the trial court improperly instructed that the jury should consider evidence of intoxication separately and only after determining that the state had proven intent beyond a reasonable doubt. He posits that this denied him the opportunity to have the jurors evaluate the effect of the intoxication evidence when first deciding the intent issue, and also whether the intoxication evidence cast a reasonable doubt on the proof of intent, rather than merely whether that evidence wholly negated intent. We do not agree.

The court first instructed on the necessary elements constituting each crime charged and that the state had to prove each element beyond a reasonable doubt. Thereafter, the court instructed: “Now, if you find that the state proved beyond a reasonable doubt that the defendant caused serious physical injury to John Sequino by means of a dangerous instrument, then in considering the state’s proof of the element of the defendant’s intent to cause such injury, you must first look to the defendant’s claim that he was in a state of intoxication which rendered him incapable of formulating the required intent. Before you even get to that, though, you must have each of the elements proven to you beyond a reasonable doubt, that is, that the defendant intended to cause serious physical injury to John Sequino, that he did, in fact, cause serious physical injury, and that he caused it by use of a dangerous instrument. So, you must find that the item used falls into the category of dangerous instrument and that the injury suffered by Mr. Sequino was, in fact, a serious physical injury.”

Our Supreme Court has repeatedly stated that whether a charge is possibly misleading depends on the substance rather than the form of what is said. State v. Ortiz, supra, 217 Conn. 662; State v. Stevenson, supra, 198 Conn. 571; State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). “While it is true that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law ... an incorrect instruction to the jury may be cured by a later correct instruction . . . .” (Citations omitted; internal quotation marks omitted.) State v. Harrison, 32 Conn. App. 687, 696-97, 631 A.2d 324, cert. denied, 227 Conn. 932, 632 A.2d 708 (1993).

In the present case, the trial court told the jurors that “[bjefore you even get to [intoxication], though, you must have each of the elements proven to you beyond a reasonable doubt,” including the element of intent. This single statement, taken alone, may have been misleading. The trial court, however, properly instructed the jury, before and after this statement, that intoxication could be considered in determining whether the requisite intent had been established by the state. The trial court’s instructions not only recited the statutory definition of intoxication in General Statutes § 53a-7, but also clearly explained the role of intoxication evidence and its relevance in potentially negating the element of intent required for conviction of a specific intent crime. The court specifically instructed that if the jury found “that the defendant was so intoxicated that he was not mentally able even to form the intent to commit the crime charged, then the intent element of the crime would not be proven.”

Further, the court instructed that the jury should consider whether the defendant’s “claims of intoxication would negate the evidence relating to his intent to such a degree that the state would not have proven his intent to commit the crime . . . .” The court made it clear that it was the jury’s function as fact finder to make such a determination, and instructed “[n]ow, whether or not the defendant was so intoxicated that he could not and did not form the required intent as to this crime is a question of fact for you to determine.” The instructions also accurately and comprehensively relayed to the jury that the defendant had no burden of proving he was too intoxicated to form the intent necessary to the commission of the crime, but rather that the state retained that burden of proof beyond a reasonable doubt on the issue of intent as well as all the other elements of the crime.

Our perusal of the charge as a whole discloses that the instructions on intoxication, coupled with the court’s instructions on the presumption of innocence and the state’s burden of proof, sufficiently apprised the jury that the evidence introduced by the defendant of his intoxication was for the purpose of negating the element of specific intent, and that the state was required to overcome that evidence by establishing, beyond a reasonable doubt, the specific intent required for each crime charged.

Accordingly, we conclude that there was no reasonable possibility that the jury could have been misled by these instructions.

II

The defendant alleges that the trial court improperly instructed that “a reasonable doubt is a doubt for which a valid reason can be assigned.” This claim is not properly preserved. There is no clear deprivation of a fundamental constitutional right. State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990). Our Supreme Court has previously rejected challenges to the same or similar instructions. State v. Adams, 225 Conn. 270, 290-91, 623 A.2d 42 (1993). The trial court’s instruction did not infringe on a clear constitutional right as is required for review under Evans-Golding. State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993).

III

The defendant also claims that the trial court improperly instructed on the “initial aggressor” exception to the defense of self-defense in violation of his state and federal due process rights. The defense related only to the two counts of assault of a peace officer.

The court charged as follows: “A person is justified in using reasonable physical force upon another person to defend himself from what he reasonably believes to be the imminent use of physical force ... a person is not justified in using physical force if, intending to cause physical injury to the other person, he provokes the use of physical force by the other person or if he is the initial aggressor — is the first one to use physical force. Now, whether the defendant believes the degree of force he used is reasonable, whether he provoked the use of force, whether he was the aggressor are questions of fact for you to determine from the evidence. ... If the actions of the police officers were not lawful, or if they were not identifiable to him, then you may consider whether or not his actions were reasonable as self-defense to what he considered to be an attack on his person.”

The instruction given is erroneous on its face because it equates “initial aggressor” to “the first one to use physical force.” We cannot conclude, however, that it was harmful to the defendant since all of the evidence clearly demonstrated that the defendant was not the first to use physical force.

The state does not dispute that the first person to use physical force is not necessarily the initial aggressor pursuant to General Statutes § 53a-19 (c) (2). State v. Jiminez, 228 Conn. 335, 340-41, 636 A.2d 782 (1994); State v. DeMartin, 20 Conn. App. 430, 434, 568 A.2d 1034, cert. denied, 214 Conn. 803, 573 A.2d 316 (1990). The state argues, however, that on the basis of the facts presented to the jury, this matter can be distinguished from DeMartin and Jiminez. We agree that this case is distinguishable.

DeMartin and Jiminez both involved situations where the defendant conceded that he was the first to use physical force, but sought to justify it as a preemptive strike necessary to counter the imminent use of physical force by another. In this case, both the defendant and the state presented evidence that the police officers were the first to use physical force. The defendant argued at trial that he used physical force because he did not recognize the men as police officers because they were not in uniform and because the lighting was poor. The defendant testified that he began to flail and kick the officer only after the officer had reached into the car and grabbed him, and that the second officer, on the driver’s side, grabbed him around the neck and beat him with some kind of instrument. In fact, the state writes in its brief, “it was clear that the officers were using physical force at the time the defendant acted and that the defendant was not the initial aggressor. ” (Emphasis added.)

This claim was not properly preserved for appeal and the defendant seeks review under Evans-Golding. “The court’s obligation to define the defense of justification does not transform every deviation from the particular statutory definition . . . into a constitutional error.” (Internal quotation marks omitted.) State v. DeMartin, supra, 20 Conn. App. 435. Where the claimed error is one of constitutional magnitude, we must determine whether, in light of the charge as a whole, it is reasonably possible that the jury was misled. State v. Utz, 201 Conn. 190, 196-97, 513 A.2d 1191 (1986).

Our limited review of this unpreserved claim leads us to conclude that it is not reasonably possible that the instruction, viewed in its entirety, misled the jury. State v. Avila, 223 Conn. 595, 607, 613 A.2d 731 (1992). The propriety of the trial court’s instruction on this point was irrelevant because the question of who was the initial aggressor was not an issue in the case and, therefore, could not have affected its outcome. As a result, it is not reasonably possible that the jury was confused or misled by the improper instruction. See State v. Campbell, supra, 225 Conn. 661 (court’s instruction did not make drug dependency issue because there was no evidence of drug dependency offered by defendant).

IV

The defendant next claims that the trial court improperly failed to instruct on an essential element of the offense of robbery in the first degree. We agree.

The defendant argues that the trial court’s instructions were inadequate in that the court never read or paraphrased General Statutes § 53a-133, which states that an individual, in order to commit robbery, must utilize force for the purpose of either (1) preventing or overcoming resistance to the taking of the property or (2) compelling that person to deliver up the property. The state does not dispute that, pursuant to § 53a-133, a person commits robbery when in the course of committing a larceny, that person engages in forcible conduct with a proscribed purpose. State v. Tweedy, 219 Conn. 489, 498, 594 A.2d 906 (1991). The state concedes that the omission of the statutory language occurred, but argues that the jury was not misled because of the factual background of this case and because of the court’s instruction that robbery was a larceny committed by the use of force. The state alternatively argues that if the omission constitutes error, it was harmless beyond a reasonable doubt.

Failure to charge on an essential element of a crime is a constitutional defect. Id., 510-11; State v. Golding, 213 Conn. 233, 238, 567 A.2d 823 (1989). “It is the state’s burden to prove every element of the crime charged beyond a reasonable doubt. . . . A jury’s verdict finding an accused guilty of a crime necessarily includes a determination that the state has proven all the elements of that crime beyond a reasonable doubt. . . . Such a verdict cannot be upheld unless the jury had a proper instruction from the court as to the law, which must include an identification of each and every essential element for which the state has the burden of proof beyond a reasonable doubt. Without such a basic instruction, we cannot conclude that the jury acted in a fair manner.” (Citations omitted.) State v. Hamilton, 30 Conn. App. 68, 75-76, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994). We agree that the court failed to instruct on an essential element of the crime of robbery as charged.

“We have previously addressed the situation where the trial court gave no instruction on an essential element rather than a defective instruction. State v. Payne, 12 Conn. App. 408, 530 A.2d 1110 (1987). We declined, in Payne, to apply a harmless error analysis . . . .” (Emphasis in original.) Id., 77. “[The] trial court’s failure to instruct on an essential element of an offense is an error to which harmless error analysis does not apply.” Id., 78. Therefore, the defendant’s conviction of robbery in the first degree may not stand.

V

The defendant contends finally that the trial court improperly commented on his credibility. He posits that the court “was not evenhanded,” and thereby prejudiced the jury in their evaluation of credibility to such an extent as to deny the defendant a fair trial. Specifically, the defendant points to the court’s instruction that the jury could consider the defendant’s interest in the outcome of the case while making no such comment as to the police officers who testified. Because this claim was not preserved, the defendant seeks review under Evans-Golding.

The entire charge discloses that the court’s instructions properly directed the jury to consider the credibility of all witnesses. The defendant has not shown that his claim is of constitutional magnitude alleging the violation of a fundamental right, and therefore, we decline to review it.

The judgment is reversed with respect to the charge of robbery in the first degree only and the case is remanded for a new trial on that charge.

In this opinion the other judges concurred.

        State v. Golding, 213 Conn. 233, 239-42, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). In order to prevail on an unpreserved claim, the defendant must meet the following four-prong test: (1) the record must be adequate for review; (2) the claim must be of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged violation must clearly exist and clearly deprive the defendant of a fair trial; and (4) the error, if any, must not be harmless. State v. Golding, supra, 239-40.

       The court further instructed on intoxication as follows: “Now, as I indicated, the defendant has raised the issue of his drinking to a point of intoxication, and there was some evidence offered by him that he had been drinking for quite a period of time that day, and there was also testimony from others as to the amount of liquor that [the defendant] had, an intake of alcohol, the intake of alcohol that he had during that period of time. Now, the claim, in effect, is that he was too intoxicated to form a specific intent.
      “So, I am required to instruct you on the law of intoxication as it relates to the issue of intent. Again, we have a statute that covers this matter and it provides, insofar as it is relevant here, that intoxication is not a defense to a criminal charge, but in any prosecution for an offense evidence of the defendant’s intoxication may be offered by the defendant whenever it is relevant to negate an element of the crime charged.
      “So, I’ll repeat that, it is not a defense to a criminal charge, but evidence of it may be offered to negate the element of the crime charged of intent.
      “So, intoxication here means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body, including alcohol.
      “As applied here, it means that if you find that the defendant was so intoxicated that he was not mentally able even to form the intent to commit the crime, then the intent element of the crime charged would not be proven and you would be required to acquit the defendant of that charge. This does not mean, however, that the defendant has the burden of proving that he was too intoxicated to form the intent required as an element of the crime. The state retains the burden of proof beyond a reasonable doubt on this issue of intent as on all the other elements of the crime.
      “The simple fact alone, however, that the defendant may have been intoxicated at the time that the crime was committed is not enough for you to find for the defendant on this issue. You must, if you are to find for the defendant on this issue, find that while he was committing the physical assault on John Sequino, and whatever the other intent were as to the other crimes — because this may be applicable to other crimes that we are talking about here, and I’ll make reference to that as we go along — but if you are to find for the defendant on this issue of intoxication, you must find that while he was committing the physical assault on the victim, he was so intoxicated that his mind was incapable of forming the intent to do so. It is only if you find that his intoxication was to this degree and with this result that you should consider it.
      “If, however, you find that he was not intoxicated or, that he was intoxicated but not so extremely so that he could not form the required intent, you should disregard the evidence of his intoxication and not consider it on the element of intent.
      “Now, whether or not the defendant was so intoxicated that he could not and did not form the required intent as to this crime is a question of fact for you to determine.”
      Thereafter the court instructed as to the attempted assault charge: “And as to this particular crime also you may consider the defendant’s claim as to intoxication, and as to whether or not his claims of intoxication would negate the evidence relating to his intent to such a degree that the state would not have proven his intent to commit the crime of assault in the first degree.
      “So, intoxication would be applicable — consideration of intoxication would be applicable to your consideration of the crime of attempt in the first degree — attempted assault in the first degree.
      “If you find the defendant not guilty of the crime of attempted assault in the first degree for some reason other than the fact that he was intoxicated and, therefore, could not form the necessary or required intent, you may consider whether or not he was guilty of the crime of — the lesser included crime of assault — of attempted assault in the second degree, and attempted assault in the second degree by means of a dangerous instrument.”
      The court further instructed as to the burglary charge: “In fact, the defendant himself testified as to the circumstances and he really does not deny having gone into the vehicle and attempted to remove the radio or stereo. However, he does, by his claim of intoxication, ask you to consider that claim as it [affects] on your determination as to whether or not the state has proven the elements of intent.
      “In other words, if you find that he was intoxicated to such an extent, and I defined it for you earlier, that he was not able to formulate the intent to commit a crime within the vehicle, then, of course, you should find him not guilty.”
      The court also instructed that intoxication could be considered as it related to the element of intent required for assault on a peace officer.

       See also State v. Goodman, 35 Conn. App. 438, 441-43, 646 A.2d 879 (1994) (challenge to similar instruction was properly preserved and instruction found not improper).

       See footnote 1.

       General Statutes § 53a-19 (c) provides in relevant part: "Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when ... (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force . . . .”

       See footnote 1.

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       The court instructed in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime, he uses or threatens the use of a dangerous instrument. . . .
      “Now, if you find that the defendant has committed larceny, you must next determine whether the larceny was accompanied by the use of force. In this instance . . . the force being used would be the use or the threatened use of a dangerous instrument, that would be what makes it robbery in the first degree.”

       The state conceded during oral argument that any explanation by the court during preliminary instructions at the opening of the trial could not be claimed to substitute for the required final instruction.

       See footnote 1.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    State of Connecticut v. Karol Domian
    (13080)
    O’Connell, Freedman and Schaller, Js.
    Argued June 9
    decision released August 30, 1994

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

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan Alexander, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgments of conviction rendered following his Alford plea to arson in the first degree, burglary in the third degree, and larceny in the second degree. The defendant claims that (1) his guilty plea was not knowingly and voluntarily made, (2) the trial court improperly conducted the canvass of his guilty plea in violation of constitutional requirements and the rules of practice, and (3) it was factually impossible for the defendant to commit arson in the first degree as defined in General Statutes § 53a-lll. We affirm the judgments of the trial court.

The following facts are necessary to the disposition of this appeal. On November 9,1992, the defendant was arrested and charged with arson in the third degree in violation of General Statutes § 53a-113, and false statement in violation of General Statutes § 53a-157. The arson charge arose from a fire on February 28, 1992, at 132 Gold Street in New Britain. The subject premises, an abandoned three-family dwelling, had been an arson target in 1991. As of February 28,1992, the building was boarded up and scheduled for demolition. On November 9, 1992, in an unrelated matter, the defendant was also charged with conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 and 53a-103. On December 1, 1992, the defendant was arrested in another unrelated matter and charged with burglary in the third degree in violation of General Statutes § 53a-103, larceny in the second degree in violation of General Statutes § 53a-123, and conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 and 53a-123. On March 9,1993, the state filed a substitute information, raising the charge of arson in the third degree to arson in the first degree in violation of § 53a-111.

On May 13,1993, the defendant pleaded guilty, pursuant to Alford, to arson in the first degree, burglary in the third degree and larceny in the second degree. The state entered a nolle prosequi of the remaining charges. On September 14, 1993, following a presentence investigation, the court, Damiani, J., sentenced the defendant to concurrent sentences of ten years on the arson charge, and five years each on the burglary and larceny charges.

I

The defendant first claims on appeal that his plea was not knowingly and voluntarily made and, therefore, he should be allowed to withdraw his guilty plea and to proceed to trial. The defendant provides two reasons why his plea was not knowingly and voluntarily made: (1) the failure of the court to inform him of the mandatory minimum sentence for arson in the first degree, and (2) the inadequate factual basis for the plea to arson in the first degree.

The defendant concedes that he failed to preserve this issue for appeal by moving to withdraw his plea prior to the conclusion of sentencing. The defendant seeks review pursuant to the Evans-Golding constitutional bypass doctrine. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

“ ‘In State v. Golding, [supra, 213 Conn. 233] our Supreme Court reformulated the test of reviewability in [State v. Evans, supra, 165 Conn. 61]. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”. . .’ ” (Citations omitted.) State v. Velez, 30 Conn. App. 9, 20-21, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993); State v. Gamble, 27 Conn. App. 1, 13, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992); see also State v. Walker, 33 Conn. App. 763, 768-69, 638 A.2d 1084 (1994).

The first and second prongs of the Golding test dictate whether an issue will be reviewed, and the third and fourth prongs constitute review of the issue on its merits. State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992); Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992). The first prong of Golding is satisfied in this case, as the record is clearly adequate to review the alleged claim of error. “In determining whether the second Golding requirement is satisfied, we do not evaluate the merits of the claim, except to determine whether the claim is frivolous.” Wilson v. Cohen, supra, 603. The second prong merely asks if the defendant’s claim is in fact constitutional, and not a “ ‘patently unconstitutional claim’ [or] one ‘masquerading’ as a constitutional claim.” Id. On its face, the claim that a plea was not knowingly and voluntarily made, is precisely the kind of claim appropriate for constitutional bypass review pursuant to Evans. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983).

“[A] defendant who pleads guilty waives certain constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers.” State v. Spence, 29 Conn. App. 359, 366, 614 A.2d 864 (1992), citing McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). “A waiver is an intentional relinquishment or abandonment of a known right or privilege.” (Emphasis added.) Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987), citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Without having been knowingly and voluntarily made, therefore, a waiver should not be given effect. We cannot presume waiver from a silent record. State v. Nelson, 221 Conn. 635, 640, 605 A.2d 1381 (1992), citing Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Thus, the record must disclose that a plea of guilty was made knowingly and voluntarily; otherwise, that plea has been obtained in violation of due process and is voidable. State v. Spence, supra, 365-66. We conclude that the defendant’s claim that his plea violates due process because it was not knowingly and voluntarily made satisfies the second prong of Evans-Golding.

We proceed to the third prong of the constitutional bypass doctrine oí Evans-Golding in order to determine whether “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.” State v. Golding, supra, 213 Conn. 239-40. The questions we must resolve here are whether (1) the failure of the trial court to advise the defendant of the ten year mandatory minimum sentence for arson in the first degree or (2) the alleged absence of a factual basis preclude a finding that the defendant’s plea was knowingly and voluntarily made.

A

The first factor that the defendant claims interfered with the knowing and voluntary nature of his plea was the failure of the trial court to inform him of the ten year mandatory minimum sentence for arson in the first degree. “A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances.” State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988). From such examination we conclude that we need not determine whether an actual constitutional error existed because, even if a constitutional violation did occur, it did not clearly deprive the defendant of a fair trial under the third prong of Golding.

During the plea canvass in this case, the trial court first ascertained that the defendant was not under the influence of drugs, alcohol or medication, and that the defendant had had enough time to talk to his attorney about the case and the decision to plead guilty. The court next informed the defendant of the elements of each of the three charges to which he was pleading guilty, and of the maximum sentence that could be imposed for each charge. The court then enumerated the rights that the defendant was giving up by his decision to plead guilty. After ensuring that no one had forced or threatened the defendant to plead guilty, the trial court told the defendant that the state would be “recommending substantial incarceration” and that the court was planning to impose a sentence of ten years. The trial court explained to the defendant: “[Y]our lawyer will have the right to argue for less than [ten years], but I’ve told him not to be optimistic; it would take a miracle for me to give you less than ten years.” After the defendant consistently acknowledged that he understood what the court planned to do, the state’s attorney described the allegations supporting the charges. Then after asking the defendant, the defendant’s attorney, the state’s attorney, and the defendant’s mother if there were any questions or problems, the trial court accepted the defendant’s plea as knowing and voluntary, and found the plea to be supported by a factual basis.

We conclude that the trial court’s failure to inform the defendant of the mandatory minimum does not render the plea unknowing or involuntary. In light of the detailed explanation of the sentence the trial court planned to impose, we cannot reasonably find that the defendant had any realistic expectation of getting less than a ten year sentence, despite the bargained for opportunity to argue for less than ten years. We are unpersuaded that the defendant would have changed his plea if informed of the mandatory minimum sentence of ten years, part of which could have been suspended. See State v. Hanson, 210 Conn. 519, 525, 556 A.2d 1007 (1989); State v. O’Neill, 200 Conn. 268, 289, 511 A.2d 321 (1986).

Although the opportunity to argue for less than ten years may have been a factor in the defendant’s decision to accept the plea bargain, a “less than perfect understanding of all aspects of his situation does not ‘inevitably render his guilty plea “unknowing” and therefore involuntary ....’” State v. Coleman, 17 Conn. App. 307, 312, 552 A.2d 442 (1989), quoting, D’Amico v. Manson, 193 Conn. 144, 154, 476 A.2d 543 (1984). “Many factors may have been considered by the defendant and his attorney in determining whether to plead guilty to the charges. No doubt of great significance was the strength of the admissible evidence, the defendant’s maximum exposure if convicted, and his possible release date if imprisoned.” State v. Collins, 207 Conn. 590, 596, 542 A.2d 1131 (1988). Without a realistic basis for believing that he could conceivably get a sentence of less than ten years at the time his plea was accepted, we cannot find that the defendant’s guilty plea was obtained in violation of due process. Under these circumstances, the failure of the trial court to inform the defendant of the mandatory minimum sentence for arson in the first degree did not deprive the defendant of his right to a fair trial and cannot lead to reversal under the third prong of Golding.

B

The second factor that the defendant claims interfered with the knowing and voluntary nature of his plea was the factual impossibility of his conduct constituting the crime of arson in the first degree. The defendant argues that the abandoned dwelling that he is charged with setting on fire was not a building pursuant to the definition of “building” in General Statutes § 53a-100. The defendant’s claim, therefore, is that it was impossible for the court to find a proper factual basis for arson in the first degree, which requires that a person “with intent to destroy or damage a building, as defined in section 53a-100 . . . starts a fire or causes an explosion . . . .” General Statutes § 53a-111.

We are not persuaded by the defendant’s very creative argument that an abandoned building is not a building. General Statutes § 53a-100 defines “building” in part as follows: “[I]n addition to its ordinary meaning, [a building] includes any watercraft, aircraft, trailer, sleeping car, railroad car or other structure or vehicle or any building with a valid certificate of occupancy. ...”

If a statute is clear and unambiguous, there is no room for statutory construction. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991); Wright v. Commissioner of Correction, 216 Conn. 220, 225, 578 A.2d 1071 (1990). General Statutes § 1-1 (a) provides that in construing statutes “words and phrases shall be construed according to the commonly approved usage of the language.” On its face, § 53a-100 defines building to include anything within the “ordinary meaning” of that word, as well as anything specifically enumerated in the statute or any “other structures.”

It is appropriate for us to look at dictionary definitions in order to clarify the ordinary meaning of various terms. AirKaman, Inc. v. Groppo, 221 Conn. 751, 756-57, 607 A.2d 410 (1992); Young v. Marx, 24 Conn. App. 81, 84, 585 A.2d 1253 (1991). Building has been defined as a “[structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like. A structure or edifice inclosing a space within its walls, and usually, but not necessarily, covered with a roof.” Black’s Law Dictionary (6th Ed. 1990). Building has also been defined as “a usu[ally] roofed and walled structure built for permanent use (as for a dwelling).” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). Structure has been defined as “[a]ny construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner. That which is built or constructed . . . .” Black’s Law Dictionary (6th Ed. 1990). A structure has also been defined as “something (as a building) that is constructed.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

In this case, the defendant is charged with burning an abandoned three-story dwelling. Neither common sense, nor the previous definitions, suggests that current use of a structure is necessary to make a structure fit within the ordinary meaning of building. Nor do these definitions suggest that once a fire has taken place in a building it ceases to be a building, or that once scheduled for demolition a building is no longer a building. We conclude that the ordinary meaning of building clearly includes the structure that the defendant pleaded guilty to burning, even though it was the previous target of arson and was scheduled for demolition.

In addition, we construe statutes with the assumption that the legislature is presumed to be cognizant of existing statutes, and to enact new statutes in an attempt to create a consistent body of law. Zachs v. Groppo, 207 Conn. 683, 696, 542 A.2d 1145 (1988). We should “presume that the legislature had a purpose for each sentence, clause, or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).

The definition of building in General Statutes § 53a-100 also applies to the burglary and criminal trespass statutes, General Statutes §§.53a-101 through 53a-110. General Statutes § 53a-104 provides: “It shall be an affirmative defense to prosecution for burglary that the building was abandoned.” Section 53a-110 provides in part: “It shall be an affirmative defense to prosecution for criminal trespass that . . . the building involved in the offense was abandoned . . . .” If we accept the defendant’s argument that an abandoned building is not a building, these affirmative defenses to burglary and criminal trespass would be rendered meaningless and unnecessary.

Because the defendant’s argument that an abandoned building is not a building is unpersuasive, we conclude that it was not factually impossible for the defendant to commit arson in the first degree. Therefore, the alleged constitutional violation does not clearly exist, and this claim cannot lead to reversal under the third prong of Golding.

II

The defendant also claims on appeal that the trial court improperly conducted its canvass of the defendant’s guilty plea in violation of constitutional requirements and the rules of practice by (1) failing to inform the defendant of the mandatory minimum sentence for arson in the first degree, and (2) not establishing a factual basis for the guilty plea to arson. The defendant also raises, as an independent issue, the claim that it was factually impossible to find him guilty of arson in the first degree. The defendant concedes that these claims were not properly preserved at trial, but requests review of these claims as plain error or under the Evans-Golding constitutional bypass doctrine. Our conclusion that the defendant’s plea was knowingly and voluntarily made is dispositive of both of these issues.

We first address the defendant’s claim that these errors are entitled to review as plain error. Plain error review “is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Wright, supra, 207 Conn. 288-89. “Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review.” Id., 288.

In reviewing the claim that the defendant’s plea was not entered knowingly and voluntarily we have concluded that (1) the defendant was not prejudiced by the trial court’s failure to instruct him of the mandatory minimum sentence for arson in the first degree, and (2) there was a factual basis for the defendant’s guilty plea to arson in the first degree. In light of these conclusions that there has been no manifest injustice or obvious error, plain error review is inappropriate. See Practice Book § 4185.

These conclusions, which we reached pursuant to our analysis under Evans-Golding, also preclude any need for further consideration of the defendant’s claims under the constitutional bypass doctrine. The defendant failed to show that he was clearly deprived of a fair trial by the failure of the trial court to inform him of the mandatory minimum sentence for arson in the first degree. It does not matter, therefore, whether the defendant is claiming a violation of due process or a violation of Practice Book § 711. Whatever the source of the defendant’s claim, because he was not prejudiced, he is not entitled to reversal under Evans-Golding.

Because we found unpersuasive the defendant’s argument that an abandoned building is not a building, we similarly find that the defendant has failed, not only to establish a constitutional violation, but also to establish a violation of Practice Book § 713. Without establishing that any violation “actually exists,” the defendant is not entitled to reversal under Evans-Golding, no matter how many ways the claim is raised.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       Although the defendant’s brief on appeal indicates that only the plea to arson in the first degree was an Alford plea, both the state’s brief and the plea canvass transcript indicate that the entire plea was entered pursuant to the Alford doctrine.

       General Statutes § 53a-113 provides: “arson in the third degree: class C felony, (a) A person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or another by intentionally starting a fire or causing an explosion.
      “(b) Arson in the third degree is a class C felony.”

       General Statutes § 53a-157 provides: “false statement: class a misdemeanor. (a) A person is guilty of false statement when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements’ made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.
      “(b) False statement is a class A misdemeanor.”

       General Statutes § 53a-48 provides: “conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-103 provides: “burglary in the third degree: class d felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.
      “(b) Burglary in the third degree is a class D felony.”

         General Statutes § 53a-123 provides in relevant part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds five thousand dollars ....
      “(c) Larceny in the second degree in a class C felony.”

       General Statutes § 53a-lll provides in relevant part: “(a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.
      “(b) Arson in the first degree is a class A felony.”

       The defendant also argues that the court misinformed him that burglary in the third degree was a class B felony, but he does not argue that this error substantially impacted on the knowing, intelligent, and voluntary nature of his plea. Because the issue was not briefed, and was not raised in oral argument, we deem it to have been abandoned. “Assignments of error are . . . deemed to be abandoned where they are merely mentioned in the brief without any discussion of the particular issues mentioned.” (Internal quotation marks omitted.) Varley v. Varley, 189 Conn. 490, 504, 457 A.2d 1065 (1983).

       General Statutes § 53a-35a provides in relevant part: “For any felony committed on or after July 1,1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows . . . (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years . . . ."

       In State v. Collins, 207 Conn. 590, 542 A.2d 1131 (1988), our Supreme Court reviewed the failure of the trial court to advise the defendant of a mandatory minimum sentence under what is now referred to as the third prong of Golding. The Collins court held that “because the defendant does not claim that the total effective seventeen year sentence imposed is any different from his plea bargained agreement” there was no actual constitutional violation in the failure to inform the defendant of the mandatory minimum sentence. Id., 596. Relying on Collins we have held that when a criminal defendant “received the sentence he bargained for” the failure of the trial court to inform the defendant of the mandatory minimum “does not affect a determination that the plea was knowingly and voluntarily made.” State v. Brown, 19 Conn. App. 640, 643, 563 A.2d 1379, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989); see also State v. Ramos, 23 Conn. App. 1, 8, 579 A.2d 560 (1990); State v. Coleman, 17 Conn. App. 307, 312, 552 A.2d 442 (1989). These cases, however, do not address the claim raised by the defendant in this case. Here, the defendant claims that he plea bargained for the right to argue for a sentence that was lower than the mandatory minimum, and that he did not necessarily “receive the sentence he bargained for.”

       The exchange between the trial court and the defendant proceeded as follows:
      “The Court: Now as I understand it the state’s going to be recommending substantial incarceration for you. I’ve indicated to your lawyer and to the state that I’d be imposing a sentence of ten years. Do you understand that, sir?
      “The Defendant: Yes, sir.
      “The Court: Now your lawyer will have the right to argue for less than that, but I’ve told him not to be optimistic; it would take a miracle for me to give you less than ten years. You understand that, sir?
      “The Defendant: Yes, I do, sir.
      “The Court: Once I accept your plea today you’ll come back for sentencing .... On June 18 you’ll be here for sentencing. You can’t withdraw your plea except with my permission. And the only way that would happen would be if I were to impose more than ten years. You understand that?
      “The Defendant: Yes, I do, sir.
      “The Court: If I gave you ten years you’re locked in, you can’t take your plea back. You understand that?
      “The Defendant: Yes, I do, sir.”

       See footnote 12.

       See footnote 8.

       The Appellate Division of the New York Supreme Court has determined that under New York Penal Law § 150.00, which is substantially similar to our § 53a-100, an empty, vandalized or abandoned building is still a building under the ordinary meaning of that word. That court noted that under an alternative ruling, “it would not be a crime to bum down large sections of our city.” People v. Richberg, 56 App. Div. 2d 279, 281, 392 N.Y.S.2d 16 (1977).

       “[Practice Book] Sec. 711. [plea of GUILTY OR NOLO CONTENDERE] [-ACCEPTANCE]--ADVICE TO DEFENDANT
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       Practice Book § 713 provides: “The judicial authority shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the plea.”


author: Cretella, J.

text:
    State of Connecticut v. Philip Cardany
    (11743)
    Landau, Spear and Cretella, Js.

      Argued June 1
    decision released August 30, 1994

      Hubert J. Santos, with whom was Hope C. Seeley, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Stephen Preleski, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) permitted testimony concerning the victim’s delay in reporting the sexual assault, (2) charged the jury on reasonable doubt, and (3) permitted an expert witness to testify that the victim had been sexually assaulted. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, a child under the age of thirteen, lived with her mother, her brother and her step-father, the defendant. On every Tuesday night for a number of years, the victim’s mother would leave the house to play bingo, entrusting the care of the victim and her brother to the defendant. On those occasions, between November, 1986, and March, 1990, the defendant, on divers dates, entered the victim’s room and fondled and touched her. Sometimes, the defendant would penetrate the victim’s vagina with two fingers or his tongue. He would kiss her breasts and vagina or perform oral sex on her. The victim reported the incidents to her mother on June 4, 1990.

I

At trial, the state offered, over the defendant’s objection, testimony from an Outreach advocate, who worked with victims of domestic violence, that it is not unusual for abuse victims to delay in reporting incidents of abuse. The defendant contends that this testimony was inadmissible because the defendant had not initially impeached the victim’s credibility on the issue of delay. On appeal, the defendant also challenges the qualifications of the Outreach advocate as an expert.

In State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989), the Supreme Court recognized that “the consequences of the unique trauma experienced by minor victims of sexual abuse are matters beyond the understanding of the average person.” Id., 378. Therefore, the court held that “the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims [such as inconsistencies, partial disclosures and recantations] in disclosing alleged incidents.” Id., 380.

The Spigarolo court, however, specifically left open the question of whether the state could use such expert testimony in the absence of the defendant’s impeachment of the victim’s credibility. Id. We now hold that the state may introduce expert testimony that explains in general terms the tendency of minors to delay in reporting incidents of abuse once the victim has testified and there has been testimony introducing the alleged dates of abuse and reporting.

The rationale for allowing testimony in the state’s case-in-chief to explain alleged delays in reporting incidents of abuse is analogous to the rationale for allowing constancy of accusation testimony, with or without actual impeachment.

The constancy of accusation doctrine “ ‘allows a complainant in a sexual offense case to testify that he or she informed others of the attack. These other individuals are then allowed to testify concerning the complaint made by the victim and are permitted to relate the details of the attack as the victim narrated.’ ” State v. Bailey, 32 Conn. App. 773, 778-79, 621 A.2d 1157 (1993); State v. Saraceno, 15 Conn. App. 222, 247 n.6, 545 A.2d 1116, cert. denied, 209 Conn. 823, 552 A.2d 431 (1988).

Constancy of accusation testimony is admissible whether or not the victim has been impeached by a suggestion of contrivance or recent fabrication. State v. Pollitt, 205 Conn. 61, 77-78, 530 A.2d 155 (1987). It is allowed, in part, to satisfy the jury that the victim behaved reasonably in light of the alleged assault. “If the victim’s report had been immediate as would be expected . . . the jury might logically infer that the victim’s trial testimony more probably was truthful.” State v. Parris, 219 Conn. 283, 291, 592 A.2d 943 (1991). On the other hand, “[a] delayed statement undermined the victim’s credibility because it was considered ‘obvious that for one who claims to have been [sexually abused] to have long kept silence about it, would, if unexplained, weaken the force of any testimony that [he or] she might give in court, in support of a prosecution for such an offense.’ ” Id., 291 n.12; State v. Sebastian, 81 Conn. 1, 6, 69 A. 1054 (1908).

It is natural for a jury to discount the credibility of a victim who did not immediately report alleged incidents of abuse whether or not the defense emphasizes the delay in cross-examination. Thus, testimony that explains to the jury why a minor victim of sexual abuse might delay in reporting the incidents of abuse should be allowed as part of the state’s case-in-chief.

Next, the defendant claims on appeal that the Outreach advocate was not qualified as an expert, and, thus, does not satisfy the first prong of the test for admissibility of expert testimony. “A trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The test for admissibility of expert testimony is whether (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citation omitted; internal quotation marks omitted.) State v. Christiano, 29 Conn. App. 642, 649-50, 617 A.2d 470 (1992), aff’d, 228 Conn. 456, 637 A.2d 382 (1994). Because there was no objection to the qualifications of the witness as an expert this issue was not preserved in the trial court. The defendant asks that the claim be reviewed under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine of Practice Book § 4185.

First, the defendant does not satisfy the conditions established in State v. Golding, supra, 213 Conn. 239-40. “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). “In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 240. In this case, the defendant fails to meet the second requirement because “the admissibility of expert testimony is a matter of state evidentiary law that, in the absence of timely objection, does not warrant appellate review under [Golding] because it does not, per se, raise a question of constitutional significance.” (Citation omitted.) State v. Joyner, 225 Conn. 450, 480, 625 A.2d 791 (1993); see also State v. Baldwin, 224 Conn. 347, 362, 618 A.2d 513 (1993).

Second, the defendant’s claim fails under the “plain error” doctrine. Practice Book § 4185 states that “[t]he [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court.” “Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. . . . Such review is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Morales, 33 Conn. App. 184, 197, 634 A.2d 1193 (1993), quoting State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988). In this case, the actions of the trial court did not rise to the level of plain error.

II

Next, the defendant challenges two aspects of the trial court’s instructions on reasonable doubt: (1) portions of the specific language chosen by the court to describe the term “reasonable doubt,” and (2) the failure of the trial court to include a portion of the defendant’s request to charge.

A

In its charge to the jury, the trial court used well accepted language to define reasonable doubt. The trial court repeatedly emphasized throughout the entire charge that the state must overcome the defendant’s presumption of innocence beyond a reasonable doubt, the state must prove each element of the crime beyond a reasonable doubt, and the defendant has no burden to prove anything.

It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). However, “[l]ong ago, the United States Supreme Court said: ‘Attempts to explain the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury. . . . [It was later noted] that ‘[¡Judicial attempts to clarify the meaning of the phrase “reasonable doubt” by explanation, elaboration or illustration . . . more often than not tend to confuse or mislead.’ . . . While an attempt by the trial court to clarify the meaning of reasonable doubt is not by itself reversible error . . . the question on appeal is whether the court’s statements correctly conveyed the concept of reasonable doubt to the jury.” (Citations omitted.) State v. DelVecchio, 191 Conn. 412, 420-21, 464 A.2d 813 (1983).

“The standard of proof beyond a reasonable doubt refers to the degree of certainty that the evidence produces in the minds of the jurors. . . . [The standard] requires that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 14 Conn. App. 657, 671, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

The defendant contends that the trial court improperly instructed the jury that (1) a reasonable doubt “is not a mere possibility suggested by the evidence” and (2) “[p]roof beyond a reasonable doubt means substantially more . . . than the kind of fifty-one percent, the preponderance of the evidence standard which controls in a civil case . . . . ” Since the defendant failed to preserve this issue at trial, he requested that we review these claims under the doctrine of State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine of Practice Book § 4185.

“The first two conditions of Golding are met here because there is an adequate record for review and the right not to be convicted except by proof beyond a reasonable doubt is a constitutional right.” State v. Graham, supra, 33 Conn. App. 442. This matter implicates the third prong of Golding, whether “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 239-40. In reviewing a constitutionally based challenge to the court’s instruction to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988).

The defendant first claims that the trial court’s instruction that a reasonable doubt “is not a mere possibility suggested by the evidence” implies that the doubt must be stronger than what the law requires. Placed in the context of the charge as a whole, it is clear that this language was employed as a simple comparison to emphasize the fact that the doubt must be based on reason. The court stated, “[t]o know what a reasonable doubt is one focuses on the term reasonable. A reasonable doubt is an honest, genuine doubt supported or suggested by the evidence and based upon reason. It is not a fanciful doubt. It is not a mere possibility suggested by the evidence.” This language does not mislead the jury into believing that the doubt would be based on anything but reason.

Second, the defendant claims that the trial court’s instruction that proof beyond a reasonable doubt is substantially more than 51 percent deprived the defendant of a fair trial because it diluted the state’s burden of proof. In State v. Moss, 189 Conn. 364, 369, 456 A.2d 274 (1983), the Supreme Court expressed dissatisfaction with, but found no reversible error in, an instruction that read in part, “ ‘[t]he state must shift [the burden in a criminal case] substantially out of the equipoise status . . . .” This language is similar to the language at issue — “substantially more than fifty-one percent.” The instruction here, is distinguishable from Moss, however, in that the trial court used a quantity, 51 percent, instead of an analogy to a scale in equipoise. The Supreme Court has indicated that this type of number analogy is undesirable. See State v. DelVecchio, supra, 191 Conn. 420-21. Here, however, the trial court used the 51 percent only as a stepping stone to convey generally the “substantially greater” burden of reasonable doubt. Further, the trial court expressly warned, immediately preceding this analogy, that there is no numerical value assigned to reasonable doubt.

Again, in reviewing the defendant’s arguments concerning the trial court’s jury instructions, the emphasis is on the charge as a whole and the effect that charge would have on a jury. The language employed by the trial court, as a whole, however inartful, still clearly conveyed to the jury the presumption of the defendant’s innocence and the state’s burden of proving each element of the crimes beyond a reasonable doubt. There is no possibility that a jury was misled by this language. The defendant cannot prevail under a Golding analysis in that he fails to satisfy the third prong. We further find that this is not the type of “extraordinary situation”; see State v. Morales, supra, 33 Conn. App. 197; that would amount to plain error.

B

Next, the defendant filed a written request to charge the jury concerning reasonable doubt which stated, “the lack of evidence, for whatever reason, creates an [inference] of reasonable doubt.” The trial court declined to use this language in its charge to the jury. In view of the charge taken as a whole, however, the absence of this language does not constitute reversible error.

It is well established precedent that although “ ‘[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given’ ”; State v. Arena, 33 Conn. App. 468, 488, 636 A.2d 398 (1994), quoting State v. Dickerson, 28 Conn. App. 290, 294, 612 A.2d 769 (1992); “ ‘[a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.’ ” State v. Arena, supra, 488.

“It is the trial court’s responsibility to instruct the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration under the offenses charged and upon the evidence.” Id., 488-89. We do not require that trial courts use a “standard” charge on reasonable doubt. This affords the trial court a certain amount of discretion in determining the language of a charge. While, here, the defendant’s requested instruction is a valid description of reasonable doubt; see generally State v. Ross, 18 Conn. App. 423, 433, 558 A.2d 1015 (1989); and certainly, it would have been appropriate for the trial court to include that language in its charge to the jury, the concept of reasonable doubt was adequately conveyed to the jury without the inclusion of that specific language. An adequate charge on reasonable doubt necessarily conveys, through a description of the state’s burden of proof, that a lack of evidence may cause a reasonable doubt. The defendant’s request for that specific language is merely a request for an elaboration of the concept of reasonable doubt. See State v. Preston, 122 N.H. 153, 161, 442 A.2d 992 (1982). Therefore, it was not improper to exclude that language in the face of an otherwise adequate charge on reasonable doubt. The charge as a whole also survives this review. The charge emphasized the defendant’s presumption of innocence and the state’s burden of proof. The language used to describe a reasonable doubt did not dilute this burden. The charge properly conveys the substance of the defendant’s request.

Ill

The defendant’s final claim is that he was denied due process of law and his right to a jury trial when an expert witness testified that in his opinion the victim had been sexually assaulted. Again, this claim was not preserved at trial and the defendant asks for review under the doctrine of State v. Golding, supra, 213 Conn. 233, and the plain error doctrine of Practice Book § 4185. “[T]he admissibility of expert testimony is a matter of state evidentiary law that, in the absence of timely objection, does not warrant appellate review under [Golding] because it does not, per se, raise a question of constitutional significance.” (Citation omitted.) State v. Joyner, supra, 225 Conn. 480; see also State v. Baldwin, supra, 224 Conn. 362. Further, the trial court’s failure to strike this testimony does not constitute plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and four counts of risk of injury to a child in violation of General Statutes § 53-21. After the close of the state’s case, the defendant’s motion for judgment of acquittal as to one count of sexual assault in the first degree and one count of risk of injury to a child was granted. The jury found the defendant not guilty of one count of sexual assault in the first degree and one count of risk of injury to a child.

       That portion of the charge in its entirety reads: “Proof beyond a reasonable doubt does not mean proof beyond all doubt. It does mean proof which precludes every reasonable hypothesis except that which it tends to support and is consistent with guilt and inconsistent with any other rational conclusion. Any conclusion reasonably to be drawn from all the evidence here presented, as that evidence is credited by you, which is consistent with the innocence of the accused, must therefore prevail.
      “If at the end of your deliberations you should entertain a reasonable doubt in support of any such hypothesis consistent with innocence, you must give the defendant the benefit of that doubt and find him not guilty.
      “To know what a reasonable doubt is one focuses on the term reasonable. A reasonable doubt is an honest, genuine doubt supported or suggested by the evidence and based upon reason. It is not a fanciful doubt. It is not a mere possibility suggested by the evidence. There is, however, no numerical value assigned to the degree of doubt we’re talking about here. Proof beyond a reasonable doubt means substantially more, I can tell you, than the kind of fifty-one percent, the preponderance of the evidence standard which controls in a civil case where one party has to tip the scales in his favor in order to prevail. It’s substantially more than that.
      “But, there is no need to prove this case beyond all doubt. It is merely beyond a reasonable doubt. A reasonable doubt, to try to get a sense of what it means, is the kind of a doubt that would cause you to pause or to hesitate in conducting the more important affairs of your life, a doubt to which you would pay heed in conducting the more important affairs of your life.
      “Again, it is not the Defendant’s job to raise reasonable doubt in your minds, though it’s his right to attempt to do so, certainly. It is the State’s job, which it fairly accepts, to come forward with its evidence, to present its case and to overcome the Defendant’s presumption of innocence by proving the Defendant guilty beyond a reasonable doubt.”

       The defendant did not object to the jury instructions at trial, however, his request to charge preserves the issue for appeal under Practice Book §852.

       In State v. Raguseo, 225 Conn. 114, 133, 622 A.2d 519 (1993), the Supreme Court held that “[i]f the evidence warrants it and if an accurate and timely request to charge is made, the trial court must instruct the jury that a lack of evidence on motive may tend to raise a reasonable doubt. ... If, however, the state introduces evidence tending to demonstrate a motive to commit the offense, then the trial court is not obligated to give such an instruction.” (Citations omitted; emphasis added; internal quotation marks omitted.) Our decision in this matter is not controlled by that holding. In Raguseo, the relevant portion of the charge at issue concerned motive and not, as here, a general description of reasonable doubt.