text:
    State of Connecticut v. Bryant Coleman
    (3991)
    Borden, O’Connell and Stoughton, Js.

      Argued January 6
    decision released June 14, 1988

      James J. Ruane, special public defender, with whom, on the brief, were Donald D. Dakers, public defender, and Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Patrick Clifford, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (l), robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), and sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The defendant claims (1) that the court erred in its instructions to the jury regarding circumstantial evidence, (2) that the court erred in its instruction regarding the defendant’s testimony, and (3) that the evidence was insufficient to sustain the burglary and robbery convictions. We find no reversible error.

The jury could reasonably have found the following facts. The victim lived in a second floor apartment on Park Street in New Haven. On May 13, 1984, at approximately 3 p.m., the victim responded to repeated ringing of her first floor door buzzer by going downstairs. No one was there. As she returned to her apartment, she observed a pile of clothing in the hallway. When she reentered her apartment, the defendant was in her bedroom. He grabbed her and threatened to cut her with a shiny metallic object which he was holding, and which he told the victim was a knife. He pressed the metal object to her skin, and she thought it was a knife. The defendant was wearing something on his hand which the victim described as “looking something like a bandage because it had sort of that flesh, brown flesh kind of look, not really flesh tones but in that color range.”

The defendant was naked from the waist up. He demanded money from the victim, and she gave him $37 from her wallet, consisting of a $20 bill, a $10 bill, a $5 bill and two $1 bills. He then forced her to go into the bathroom and to undress. There he attempted to penetrate her anally, and forced her to perform fellatio on him while threatening to cut and blind her with the metallic instrument. The defendant then ordered the victim to remove his sneakers. As she was doing so, the victim observed that the lace on his left sneaker was longer than the right lace, and was wrapped around his ankle. She also observed that he was wearing striped pants with frayed bottoms, and gray gym shorts underneath his pants. As the defendant removed his pants, a black “afro comb” and a “pink yellow, salmon colored” plastic identification card fell from his pants pocket. The identification card fell face down. The defendant retrieved these items and put them back in his pants pocket.

The defendant then told the victim to go into the hallway and retrieve the pile of clothing. As she did so, she observed that among the clothing was a light colored poplin jacket with striped elastic cuffs. When she returned to the apartment, she threw the clothing down and escaped from the defendant by jumping out of a window and making her way along a ledge to her neighbor’s apartment, where the police were called.

The incident lasted approximately twenty minutes. It was a warm, sunny day, and it was clear and light in the victim’s apartment because of its many windows. During the incident, the victim engaged the defendant in conversation because, as she testified, “If I would getaway,. . . I would want to know to describe him, what he looked like.” She also testified that she “spent a lot of time looking at his face.”

Officer Michael Ferraro of the New Haven police department arrived quickly. The victim described her assailant to Ferraro as a nineteen to twenty year old black male, approximately five feet ten inches to six feet tall, weighing one hundred sixty to two hundred pounds, wearing bluish colored pants with a white thin stripe, an off-white colored jacket with brownish trim at the cuffs and waistband, and high white sneakers.

The victim accompanied Ferraro in his police car in search of her assailant. During the search she observed young black males, but none who appeared to be the assailant. At an intersection approximately five blocks from the victim’s apartment, the victim recognized the defendant as her assáilant. As the police car approached the defendant, the defendant turned sharply in another direction and held a bouquet of flowers up to his face. When Ferraro stopped the defendant, the victim repeatedly and positively identified him as her assailant. In response to Ferraro’s request to the victim for further evidence of the reliability of her identification of the defendant, the victim told Ferraro to lift the defendant’s pants legs. This disclosed that the lace of the defendant’s left sneaker was wrapped around his ankle. The victim then said, “That’s definitely him.” The victim then told Ferraro about the identification card and comb which had fallen from her assailant’s pants pocket. Ferraro then searched the defendant. In his pants pocket were a plastic identification card with the same colors described by the victim, a black “afro” comb or pick, a shiny metal bottle opener, and $30 in cash consisting of a $20 bill and $10 bill. The defendant was wearing a light colored poplin jacket with striped cuffs, and corduroy pants with frayed cuffs. He was carrying a plastic bag containing, inter alia, a pair of brown stretch gloves which were consistent with what the assailant was wearing on his hand at the time of the crime. A subsequent search of the defendant at the police station disclosed that the defendant was also wearing gray gym shorts underneath his trousers.

At trial, the victim positively identified the defendant. She also identified the defendant’s jacket, shorts, pants and sneakers as similar to those worn by the assailant in her apartment, and the defendant’s plastic identification card as the same kind of card which fell from his pants pocket in her bathroom.

The defendant presented an alibi defense. He testified that he had spent the evening prior to the crime at his girlfriend’s room in a rooming house in New Haven, leaving there at approximately 4 a.m. and walking home to his mother’s house on Sylvan Avenue in New Haven. He testified further that he left his mother’s house at approximately 12:30 p.m. and played basketball until approximately 2:30 p.m. He testified that he then went to a cafe where he played video games until approximately 3:20 p.m. After leaving the cafe, he bought some flowers for his girlfriend from a street vendor, and was walking back to his girlfriend’s house when he was stopped by the police officer and the victim. The defendant specifically denied assaulting or robbing the victim, and denied having been in her apartment.

The defendant testified that he had a can opener in his pocket because he had borrowed the item the night before from his girlfriend’s sister, who lived in the same rooming house, to open some cans of food, and that he had then put it into his pocket and forgotten to return it to her. He testified that he always wore the gloves when he rode his bicycle, even in very warm weather, that he had left his bicycle at his girlfriend’s house because it had a flat tire, and that when he was arrested he was on his way to his girlfriend’s house to fix the tire. He also testified that he had started the day with approximately $42.75 in cash in his pocket, and had spent some money on a soft drink and on the video games, and $10 to buy the flowers. The defendant’s mother, girlfriend and his girlfriend’s sister testified in corroboration of parts of his testimony.

I

The defendant first claims that the court’s instructions regarding inferences drawn from circumstantial evidence diluted the constitutional requirement that the state prove guilt beyond a reasonable doubt. The court’s instructions including the all too familiar language that, in drawing inferences from circumstantial evidence, it is required “[f]irst, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt; [and] secondly, that the inference that you are asked to draw is not only logical and reasonable but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.” The defendant argues that this charge constituted reversible error because circumstantial evidence played a major role in the state’s case in three ways: (1) to bolster the direct evidence of the identity of the defendant; (2) to establish consciousness of guilt by the defendant; and (3) as the only evidence to establish the element of a dangerous instrument in the proof of the burglary and robbery offenses. See footnotes 1 and 2, supra. We disagree.

We first note that, despite the defendant’s failure to except to the court’s jury charge, his claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. McDonough, 205 Conn. 352, 354, 533 A.2d 857 (1987). Moreover, it is well established that such an instruction is erroneous. Id., 355-56; see State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987). The only question, therefore, is whether the error is reversible in this case. We conclude that it is not.

“In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role.” State v. McDonough, supra, 358. “Unlike intent, [which is typically proven by circumstantial evidence] such issues as identity and whether the crime charged has occurred, are ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role.” Id. In these cases, we review the charge as a whole to determine whether there is a reasonable possibility that the jury was misled by the erroneous instruction. Id. This instruction does not have “constitutional significance where there is sufficient direct evidence, not implicated by the error, to establish all of the essential elements of the crime charged. In similar cases, where the principal issue at trial was the credibility of the victim, where there was substantial direct evidence of the crimes charged, and where intent was not seriously disputed, we have held erroneous instructions suggesting the probability standard for drawing inferences from circumstantial evidence to be harmless error.” Id., 360.

In this case, the direct testimony of the victim played the major role. The only real dispute in the trial was the identity of the defendant as the perpetrator, and that was proved primarily by the direct testimony of the victim, whose credibility in identifying the defendant was at issue. Indeed, the defendant’s counsel argued as much to the jury. Contrary to the first two assertions of the defendant, any circumstantial evidence employed to bolster the victim’s identification of the defendant and to establish the defendant’s consciousness of guilt, played a subordinate, and not the major, role. Similarly, the principal evidence regarding the defendant’s use of a dangerous instrument was the direct testimony of the victim in describing the shiny metal object that the defendant held in his hand, with which he threatened and touched her during the criminal episode. Under these circumstances, having reviewed the court’s instructions as a whole, we conclude that it is not reasonably possible that the erroneous instruction misled the jury in rendering its verdict on the burglary and robbery charges.

II

We next consider the defendant’s claim that the court’s instructions regarding the defendant’s testimony were erroneous because they were not evenhanded and impermissibly singled out his testimony, thereby undermining the presumption of innocence, impermissibly reducing the state’s burden of proof, and impermissibly burdening the defendant’s right to testify in his own defense. We agree that the court’s instructions were erroneous, but we conclude that this error was harmless.

The defendant challenges the following portion of the court’s instructions to the jury: “Now in this particular case the accused took the witness stand and he has a perfect right to do so. Although the state clearly has the burden of proof to establish guilt beyond a reasonable doubt and although the defendant clearly has the right to elect not to testify, if he does testify a jury may properly base its finding of guilt in part on the defendant’s testimony and their disbelief in its truth.

“When the defendant elects to testify on his own behalf he assumes the risk that the jury cannot only disbelieve his story but also might wonder, quite properly, why his explanation of his conduct was so improbable, if that is your judgment.

“The accused stands before you just like any other witness and he is entitled to the same considerations and must have his testimony measured in the same way as that of any other witness. However, in weighing the credibility of the accused’s testimony you will consider the interest of the accused in the case as you would consider that of any other person who has testified and in that connection you will consider the importance to the accused of the outcome of this trial.”

The defendant did not except to the court’s instructions. It is well settled, however, that under State v. Evans, supra, the defendant may challenge on appeal an instruction regarding the defendant’s credibility arising from his interest in the outcome of the case. State v. Mack, 197 Conn. 629, 637, 500 A.2d 1303 (1985); State v. Avcollie, 188 Conn. 626, 637, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983).

We have recently considered and rejected a different challenge to a portion of a similar charge. In State v. Smith, 10 Conn. App. 624, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987), the defendant focused only on that portion of the charge which stated: “ When the defendant elects to testify on his own behalf, he assumes the risk that the jury cannot only disbelieve his story, but might also wonder quite properly why his explanation of his conduct was so improbable, if that is your finding.’ ” (Emphasis in original.) Id., 639. We rejected the defendant’s claim that the portion of the charge challenged violated his right to an impartial jury. Id., 638-40. In this case, the defendant raises different challenges, and his challenges are directed to the court’s entire charge regarding his testimony. State v. Smith, supra, therefore, does not control this case.

Our Supreme Court and this court have repeatedly held to be constitutionally permissible instructions that a defendant’s interest in the outcome of the trial should be considered by the jury in evaluating his credibility. See, e.g., State v. Higgins, 201 Conn. 462, 475-76, 518 A.2d 631 (1986); State v. Mack, supra, 636-38; State v. Maselli, 182 Conn. 66, 74, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 866, 66 L. Ed. 2d 807 (1981); State v. Waterman, 7 Conn. App. 326, 353, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986). These holdings have been qualified, however, by a caution that the court would examine any future instructions in order to determine whether they involved a “significant variation from those we have approved previously”; State v. Higgins, supra, 476; stressing “the importance of evenhandedness in referring to the defendant’s interest as compared with that of other witnesses . . . [and] recognizing] that technically correct instructions on this subject may violate this principle if repeated unnecessarily or overemphasized in some other manner. See State v. Kurvin, [186 Conn. 555, 570 n.3, 442 A.2d 1327 (1982)].” State v. Mack, supra, 638.

Because the defendant did not except to the court’s instructions which he challenges on appeal, “[w]e must . . . examine the nuances of language, belatedly relied upon by the defendant, only for the purpose of determining whether they are significant enough to have affected the fairness of his trial.” Id., 637. In this connection, we note that the third paragraph of the instructions is essentially identical to the charge approved by our Supreme Court in State v. Mack, supra, 636-37 n.8. We focus our analysis, therefore, on the language of the first two paragraphs of the instruction. That analysis leads us to conclude that the instructions were not evenhanded in referring to the defendant’s testimony as compared with other witnesses, and that this defect impermissibly reduced the state’s burden of proof, and impermissibly burdened the defendant’s right to testify in his own defense.

The language of the first two paragraphs of the instructions goes significantly beyond the instructions previously approved by our Supreme Court regarding the defendant’s credibility. See, e.g., State v. Higgins, supra; State v. Mack, supra; State v. Maselli, supra; State v. Waterman, supra. In none of these cases did the trial court instruct the jury that if the defendant testifies, “a jury may properly base its finding of guilt in part on the defendant’s testimony and their disbelief in its truth,” or that a testifying defendant “assumes the risk that the jury cannot only disbelieve his story but also might wonder, quite properly, why his explanation of his conduct was so improbable, if that is your judgment.” Moreover, a comparison of these instructions with the court’s instructions regarding the credibility of other witnesses discloses no similar instruction regarding those witnesses. These instructions were not, therefore, evenhanded; they emphasized an aspect of the defendant’s credibility which was not shared by the instructions on the credibility of other witnesses.

We next consider the defendant’s argument that the instructions undermined the presumption of innocence. We disagree with this claim.

The defendant draws his principal support for this claim from the dissenting position of Justice Bogdanski which our Supreme Court has repeatedly rejected. See, e.g., State v. Maselli, supra; State v. Mastropetre, 175 Conn. 512, 400 A.2d 276 (1978); State v. Bennett, 172 Conn. 324, 374 A.2d 247 (1977); State v. Jonas, 169 Conn. 566, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 332 (1976). Furthermore, the United States Supreme Court has made clear that the function of the presumption of innocence is analytically unrelated to the issues presented by this case.

In Taylor v. Kentucky, 436 U.S. 478, 484, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978), the United States Supreme Court noted that the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt are “logically similar.” Id., 484. That court stated that the presumption of innocence “is not evidence — not even an inference drawn from a fact in evidence — but instead is a way of describing the prosecution’s duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt.” Id., 483-84 n.12. The court recognized that the presumption of innocence is an inaccurate description of the right of the accused to remain securely inactive until the prosecution has carried its burden of persuasion. Id. “The principal inaccuracy is the fact that it is not technically a ‘presumption’ — a mandatory inference drawn from a fact in evidence. Instead, it is better characterized as an ‘assumption’ that is indulged in the absence of contrary evidence.” Id., quoting Carr v. State, 192 Miss. 152, 156, 4 So. 2d 887 (1941).

In Taylor, the court defined the principal function of the presumption of innocence: It is aimed to ensure that the jury bases its decision solely on the evidence presented, and not on extraneous factors such as arrest, information, arraignment, custody and the status of the defendant as an accused. Taylor v. Kentucky, supra, 484-86. It provides significant guidance and caution to the jurors, over and above the rule regarding the state’s burden of persuasion, “ ‘to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced . . . to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused.’ ” (Emphasis in original.) Id., 485, quoting 9 J. Wigmore, Evidence (Ed Ed.) p. 407. The effect of an instruction on the presumption of innocence “simply represents one means of protecting the accused’s constitutional right to be judged solely on the basis of proof adduced at trial.” Taylor v. Kentucky, supra, 486.

Viewed in the light of this analysis, it becomes clear that the court’s instructions did not undermine the presumption of innocence, because they had nothing to do with that principle. They did not suggest that the jury could decide the case based on factors other than the evidence produced in the trial. They did not suggest that the jury could, in deciding the case, rely on extraneous factors such as the arrest or information, or the defendant’s status as the accused. Indeed, the focus of the instructions was on evidence in the case, namely, the defendant’s testimony, not on factors outside that evidence.

We turn, therefore, to the remainder of the defendant’s claim, namely, that the lack of evenhandedness in the instructions impermissibly reduced the state’s burden of persuasion in proving guilt beyond a reasonable doubt, and impermissibly burdened the defendant’s right to testify. We agree.

The particular language of this instruction reduced the state’s burden of proof by permitting the jury to consider an essential fact or facts proven by the state, at least in part, from the jury’s disbelief of the defendant’s testimony. See People v. Russell, 266 N.Y. 147, 153-54, 194 N.E. 65 (1934) (holding that a similar instruction reduced the state’s burden of proof). The standard of proof beyond a reasonable doubt refers to the degree of certainty that the evidence produces in the minds of the jurors. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1983); State v. Pannone, 9 Conn. App. 111, 115, 516 A.2d 1359 (1986). This constitutional standard focuses on the importance of probative evidence establishing guilt. Its purpose is to ensure that the jury’s determination is based on sufficient evidence probative of guilt. It 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.” (Emphasis added.) Jackson v. Virginia, supra, 316. This standard recognizes that it is “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. ” (Emphasis added.) Id., 319. It requires that the defendant’s guilt be established by “probative evidence.” (Emphasis added.) Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).

It is axiomatic under Connecticut law that, while a jury may reject a defendant’s testimony, “ ‘a jury in rejecting such testimony cannot conclude that the opposite is true.’ ” State v. Alfonso, 195 Conn. 624, 634, 490 A.2d 75 (1985), quoting Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); see also State v. Carter, 196 Conn. 36, 50, 490 A.2d 1000 (1985) (Shea, J., dissenting) (trier cannot make affirmative factual finding from disbelief of testimony); State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972) (jury cannot make affirmative finding from disbelief of obviously concocted alibi testimony of defendant). Thus, under Connecticut law, the jury is not permitted to infer, from its disbelief of the defendant’s testimony, that any of the facts which he denied were true. Under this principle, therefore, the jury is barred from directly inferring that a defendant was present at the scene of a crime from its finding that he was lying when he denied his presence there. State v. Mayell, supra.

Since the principle of proof beyond a reasonable doubt refers to the degree of certainty produced in the jurors’ minds, since that principle requires that the jury’s determination be based on sufficient evidence probative of guilt, and since under our law a jury may not directly infer guilt from its disbelief of the defendant’s testimony, we conclude that it violates that principle for the court to instruct the jury that it may use that disbelief to find proven a fact or facts necessary to its determination of guilt. Put another way, because a jury’s disbelief in the defendant’s denial of certain facts cannot be the basis for an inference of the contrary of those facts, such denial cannot be considered as evidence probative of those facts or be used directly to supplant any reasonable doubt about the defendant’s guilt, and the court may not instruct the jury that it may consider the defendant’s testimony in such a way. Such an instruction violates the principle of proof beyond a reasonable doubt because it puts the court’s unique prestige and power as perceived by the jury; State v. Tatem, 194 Conn. 594, 599, 483 A.2d 1087 (1984); behind an inference of guilt which the law specifically prohibits, and thus specifically converts evidence, namely the defendant’s testimony, which if disbelieved must be given no weight in the jury’s calculus, into evidence either directly probative of guilt or available to supplant what may be a reasonable doubt about guilt.

We do not suggest that a violation of the principle of proof beyond a reasonable doubt occurs whenever the jury is erroneously exposed to evidence which is not probative of guilt. Such a suggestion would convert every erroneous evidentiary ruling on relevance into a constitutional violation. Nor do we suggest that it violates the principle of proof of guilt beyond a reasonable doubt for the jury to base its conclusion of guilt on all the evidence, including that adduced by the defendant. See State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986). Where, as here, however, the law specifically forbids such evidence to be considered in the calculus leading to a determination of guilt, it violates that principle for the court specifically to instruct the jury that it may consider that evidence for that forbidden purpose.

The first two paragraphs of the instruction at issue here were so flawed. By instructing the jury that “if [the defendant] does testify a jury may properly base its finding of guilt in part on the defendant’s testimony and their disbelief in its truth,” and by linking that instruction with the instruction that the jury, upon such disbelief, “might wonder, quite properly, why his explanation of his conduct was so improbable,” the court permitted the jury to conclude that, if it disbelieved the defendant’s testimony, the contrary of that testimony was true. Thus, the jury was told in effect by the court that from its disbelief in the defendant’s alibi testimony, it could find that he was present in the victim’s apartment and that he did assault and rob her, or that any reasonable doubt which it may have entertained arising from the other evidence in the case, or lack thereof, could be supplanted by its disbelief of the defendant’s testimony. This constituted permission by the court to the jury to use its disbelief of the defendant’s testimony for a purpose which our law forbids, and directly to use the result of that forbidden process in its determination of the defendant’s guilt.

In this connection, we are not persuaded by the state’s argument that the court’s use of the phrase “in part” sufficiently limited the jury’s improper use of the defendant’s testimony. What that phrase refers to is unclear. If it were apparent that it referred only to the use of the defendant’s testimony by way of consciousness of guilt, or to the principle that disbelief of part of his testimony could permit disbelief of all; see infra; our conclusion might be different. In the context of the charge as given, however, that phrase permitted the jury to conclude that at least the only disputed element of the crimes charged, namely, the defendant’s identity as the perpetrator; see State v. Murrell, 7 Conn. App. 75, 80, 507 A.2d 1033 (1986); D. Borden & L. Orland, Connecticut Criminal Jury Instructions § 3.13; could be proven by a disbelief in his testimony, or that the jury could use that disbelief to supplant any reasonable doubt it may have had about that element. Such a conclusion would be improper under our law.

The court’s instructions also impermissibly burdened the defendant’s right to testify. It is axiomatic that a defendant has a federal constitutional right to testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); see also State v. Higgins, supra, 477 (referring to constitutional right to testify implicitly recognized under due process provisions of state and federal constitutions). This right is “a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Rock v. Arkansas, supra. It is true that this right “is not without limitation.” Id., 55. Just as the defendant’s constitutional right to silence may not be unduly burdened, however; South Dakota v. Neville, 459 U.S. 553, 565, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983); his constitutional right to testify, which is a corollary of his right to silence, must also be regarded as being free from undue cost. “[Restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.” Rock v. Arkansas, supra.

It is true that when a defendant testifies, he subjects his testimony to all appropriate tests of credibility applicable to any other witness, including the jury’s evaluation of his interest in the outcome of the trial. See State v. Kurvin, supra, 570. It is also true that he opens his case to fair comment by the state in final argument on his “failure to support his own factual theories with [other] witnesses.” State v. Kluttz, 9 Conn. App. 686, 706, 521 A.2d 178 (1987); and that he opens himself to the possibility of enhanced punishment if the sentencing judge believes that he lied on the witness stand. United States v. Grayson, 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978); State v. Huey, 199 Conn. 121, 505 A.2d 1242 (1986). We conclude, however, that the court’s instructions to the jury in this case imposed an arbitrary and disproportionate cost on the defendant’s assertion of his right to testify.

As noted above, it has long been our law that the jury cannot infer facts from its disbelief of the defendant’s testimony. State v. Alfonso, supra, 634; State v. Mayell, supra. The defendant in this case, in making his “tactical decision” on whether to testify; Brooks v. Tennessee, 406 U.S. 605, 612, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972); was entitled to rely on that rule of law. Although he assumed the risk that the jurors would disbelieve him, he cannot be held to assume the additional risk, which the court’s instructions permitted to be imposed on him, that their disbelief either could itself supply a fact which the state had the burden to prove, or could operate directly to cure a reasonable doubt about that fact. That is simply too heavy a burden on the assertion of his constitutional right to testify, and serves no legitimate interest of the state which we can perceive.

The conclusion we have reached, namely, that the first two paragraphs of the court’s instructions were erroneous, does not mean, however, that a trial court may not appropriately instruct the jury regarding the link between a determination that a defendant has testified falsely and consciousness of guilt on his part. Just as the jury may consider a defendant’s lies to the police as consciousness of guilt; State v. Fullard, 5 Conn. App. 338, 342, 497 A.2d 1041 (1985); it may under appropriate circumstances also consider a defendant’s false testimony at trial as consciousness of guilt. United States v. Fabric Garment Co., 262 F.2d 631, 639 (2d Cir. 1958), cert. denied, 359 U.S. 989, 79 S. Ct. 1117, 3 L. Ed. 2d 978 (1959) (jury may have considered defendant’s testimony “entirely false and fabricated and . . . indicative of consciousness of guilt”); accord United States v. Teasley, 408 F.2d 1012, 1013 (7th Cir.), cert. denied, 396 U.S. 880, 90 S. Ct. 161, 24 L. Ed. 2d 139 (1969); see also Johnson v. United States, 426 F.2d 651, 656 (D.C. Cir. 1970), cert. dismissed, 401 U.S. 846, 91 S. Ct. 1258, 28 L. Ed. 2d 523 (1971); Thompson v. United States, 405 F.2d 1106, 1107-1108 (D.C. Cir. 1968). The jury’s determination that a defendant’s conduct evinces a consciousness of guilt is not the same, however, as a direct inferential step from a disbelief in his testimony to proof of facts on which the state has the burden of persuasion.

Nor does our conclusion mean that the defendant is insulated from the principle, applicable to all witnesses, that disbelief of part of his testimony may, if the jury deems it appropriate, justify disbelief of all of that testimony. The court may properly instruct the jury that it may apply to the defendant the principle of falsus in uno, falsus in omnibus. Raia v. Topehius, 165 Conn. 231, 234-36, 332 A.2d 93 (1973). The court may not, however, instruct the jury that it is entitled to find that the contrary of the disbelieved testimony is the truth.

The challenged instructions in this case cannot fairly be read to refer to the concept of consciousness of guilt or to the principle of falsus in uno, falsus in omnibus. The court charged on those matters in other parts of the jury charge quite separate from these instructions. We must read the court’s instructions as it is likely the jury heard them. State v. Foshay, 12 Conn. App. 1, 27, 530 A.2d 611, cert. granted in part, 205 Conn. 813, 532 A.2d 587 (1987). Such a reading precludes the conclusion that, when the court stated to the jury that it could base a finding of guilt on its disbelief of the defendant’s testimony, the court was simply referring to the concept of consciousness of guilt, or to the principle that the jury could, from its disbelief of part of the defendant’s testimony, disbelieve all of it, and precludes the conclusion that the jury heard that instruction as such a reference.

This analysis does not end our inquiry, however. We must consider whether the error in the court’s instructions requires reversal. This requires application of the harmless error doctrine in the context of a federal constitutional error.

. We therefore consider the proper standard to apply in deciding whether the error was harmless. Both our Supreme Court and this court have stated that whether an instructional error in a criminal case requires reversal of the conviction depends on whether the error is nonconstitutional or constitutional. If the instructional error is nonconstitutional, the defendant has the appellate burden of establishing that it is reasonably probable that the jury was misled. State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986); State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982); State v. Greene, 11 Conn. App. 575, 581, 528 A.2d 855, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987). If the instructional error is constitutional, the state has the appellate burden of establishing that there is no reasonable possibility that the jury was misled. State v. Shifflet, supra; State v. Mason, supra; State v. Greene, supra. In either situation, the inquiry focuses on the degree of likelihood that the error influenced the jury. State v. Shifflett, supra. Thus, our Supreme Court and this court have routinely applied to federal constitutional instructional errors the standard of whether there is a reasonable possibility that the jury was misled in rendering its verdict.

We have, however, applied a somewhat different standard of harmlessness to noninstructional federal constitutional errors, namely, whether the state met its appellate burden of establishing that on the whole record the error was harmless beyond a reasonable doubt State v. Hoeplinger, 206 Conn. 278, 294-95, 537 A.2d 1010 (1988); State v. Silano, 204 Conn. 769, 781-82, 529 A.2d 1283 (1987); State v. Douglas, 10 Conn. App. 103, 118, 522 A.2d 302 (1987). Thus, we have been applying a bifurcated standard of harmlessness to federal constitutional errors: for instructional errors, whether it is reasonably possible that the jury was misled; for noninstructional errors, whether the record as a whole establishes that the error was harmless beyond a reasonable doubt. Examination of recent precedents, including United States Supreme Court cases which control the harmless error analysis of federal constitutional errors, leads us to conclude that this bifurcation is not proper, and that the proper harmless error standard applicable to federal constitutional errors — instructional and noninstructional alike — is whether “ ‘the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ ” Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).

It has long been firmly established that the harmless error standard applicable to a federal constitutional error is itself a matter of federal, not state, constitutional law. Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). It is also well established that “[wjhen a state court confronts a question of federal constitutional law ‘it may not impose . . . greater restrictions as a matter of federal constitutional law when [the United States Supreme] Court specifically refrains from imposing them.’ (Emphasis in original.) Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975).” State v. Perez, 10 Conn. App. 279, 287 n.6, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987). Thus, in applying the harmless error test to a federal constitutional error, we are constitutionally required to apply that test as articulated by the United States Supreme Court. State v. Perez, supra. This court has recognized these principles in the context of the so-called Rodgers-type instructional error. Id., 285-90; State v. Butler, 11 Conn. App. 673, 679, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987); see State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985).

In Chapman v. California, supra, 24, the court held “that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” In doing so, the court specifically departed from its previously articulated standard, which derived from Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963), namely, “ ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Chapman v. California, supra, 23, quoting Fahy v. Connecticut, supra, 86-87. Our Supreme Court recently applied the Chapman test to a federal constitutional noninstructional error by focusing on whether there was independent overwhelming evidence of guilt; State v. Hoeplinger, supra (Miranda violation); and by examining the procedural and instructional context of the error. State v. Walker, 206 Conn. 300, 313, 537 A.2d 1021 (1988) (indirect prosecutorial comment on defendant’s failure to testify); State v. Silano, supra (Doyle violation, where prosecutor asked the defendant about his silence after interrogation).

In Rose v. Clark, supra, the United States Supreme Court held that “the harmless error standard of Chapman v. California, [supra], applies to jury instructions that violate the principles of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), and Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).” Rose v. Clark, supra, 572. The court made clear that, except for certain exceptions not applicable here, the Chapman standard applies to instructional as well as noninstructional federal constitutional errors. Id. In doing so, the court emphasized that the “ ‘harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence . . . and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Id., 577, quoting Delaware v. Van Arsdall, supra, 681. The Chapman harmless error standard, reaffirmed and applied to instructional error in Rose v. Clark, supra, 576, quoting Delaware v. Van Arsdall, supra, 681, is whether, “ ‘on the whole record . . . the error . . . [is] harmless beyond a reasonable doubt.’ ” In determining whether an instructional error is harmless, the focus is not only on the language of the erroneous charge, but on the evidence and on the trial’s factfinding process; such an error is harmless if the reviewing court is satisfied beyond a reasonable doubt that it did not contribute to the verdict. Rose v. Clark, supra, 577; see State v. Perez, supra, 290.

It is self-evident that jury instructions are neither delivered nor heard in a vacuum. They are delivered and heard in the context of the entire charge of the court, and they are intended to apply to, and are heard by the jury with reference to, the evidence in the case. Moreover, the evidence in a case is not considered by the jury in a vacuum. The jury evaluates it informed by the instructions of the court. Application of the Rose and Chapman harmless error doctrine, which requires that we evaluate the entire record, also requires, therefore, that we consider the erroneous instruction taken both in the context of the entire charge, and in the context of the factual record developed at the trial. This evaluation convinces us beyond a reasonable doubt that the court’s instructional error in this case did not contribute to the verdict.

As we have explained above, the problem with the erroneous instruction here is that it permitted the jury to use its disbelief of the defendant’s testimony directly to conclude that the defendant was the perpetrator of the crime, or to use that disbelief directly to supplant any reasonable doubt it may have had regarding the identity of the defendant as the perpetrator. Thus, the risk created by the instruction is that the jury might not undertake a proper evaluation of the only evidence in the case bearing directly on the issue of the defendant’s identity as the perpetrator, namely, the victim’s direct identification testimony and any circumstantial evidence bearing on that issue, and that the jury’s determination of that issue might, therefore, be skewed. We conclude beyond a reasonable doubt, however, that this risk did not materialize because it was significantly mitigated by the court’s other instructions, and because the evidence of identity was overwhelming. Thus, the error did not contribute to the verdict.

The erroneous instruction was given in the context of a charge which in other closely related respects significantly mitigated the error by specifically directing the jury’s attention to the factors properly bearing on the issue of identity. “ ‘An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole,’ ” it did not contribute to the verdict. State v. Cobb, 199 Conn. 322, 325, 507 A.2d 457 (1986), quoting State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed 2d 347 (1983). The court numerous times emphasized to the jury that it was the state’s burden to prove guilt beyond a reasonable doubt, including specifically the state’s burden to establish beyond a reasonable doubt that the defendant was the perpetrator. The court emphasized that the “[sjtate has the burden to prove that the defendant was the very same person who committed the crimes as charged. The matter of identification of an assailant by the complainant is of importance in this case, and must be considered in light of the defendant’s testimony and his denial of the crime.” In this connection, the court specifically directed the jury’s attention to the victim’s identification testimony, and charged that her eyewitness testimony “should be carefully examined to assure its accuracy.” The court charged further that in evaluating her identification of the defendant, the jury should consider her opportunity to identify the perpetrator at the time of the crime, her emotional state at the time of the crime and at the time of her out-of-court identification, the degree of attention she paid to her assailant, the degree of accuracy of her prior description of her assailant, the time period between the crime and her identification of the defendant, and her level of certainty in identifying the defendant. Also, in giving the erroneous portion of its charge, the court did not emphasize its error by specifically referring to the content of the defendant’s testimony.

It is clear from this record that the jury’s verdict had to rest essentially on its belief of the victim’s testimony identifying the defendant as her assailant, and its corresponding disbelief of the defendant’s alibi evidence. In short, the jury either believed that the victim’s identification of the defendant was accurate, or it believed the defendant. Indeed, both counsel argued the case to the jury as one primarily involving the question of the credibility of the victim and the defendant. Under these circumstances, we are convinced that the error in the charge, namely, that the jury might also have improperly used its disbelief of the defendant’s testimony, did not contribute to the verdict.

In this connection, we note that the defendant took no exception to the court’s instruction. We have repeatedly noted that such a failure sends a powerful signal that because of the posture of the case the defendant’s counsel, who was in the courtroom when the instruction was delivered, did not hear the error in the harmful way which he presses on appeal. State v. Williams, 204 Conn. 523, 533, 529 A.2d 653 (1987); State v. Scott, 11 Conn. App. 102, 122, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987); State v. Huff, 10 Conn. App. 330, 333, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). This is the rationale for the principle that it is a rare case where an improper instruction, not objected to in the trial court, will justify a reversal of a conviction. State v. Kurvin, 186 Conn. 555, 563-64, 442 A.2d 1327 (1982).

Furthermore, the factual record developed at the trial demonstrates overwhelming evidence of guilt. “ '[Virtually no other crime offers the opportunity for observation of the perpetrator as the crime of [sexual assault.]’ ” State v. Williamson, 206 Conn. 685, 693, 539 A.2d 561 (1988), quoting State v. Amarillo, 198 Conn. 285, 294, 503 A.2d 146 (1986). The victim spent approximately twenty minutes with the unmasked defendant in the afternoon in her well lit apartment, and during that time made a conscious effort to fix his face and appearance in her mind. She positively and repeatedly identified him on the street near her apartment a very short time after the crime, and repeated that positive identification at trial. There was very strong circumstantial evidence corroborating her testimony, particularly the match of the defendant’s unusual lacing of his left sneaker when he was arrested with that of the assailant. There was also the corroboration supplied by the defendant’s jacket, pants, identification card, can opener and money in his pockets, and the gloves he carried in the plastic bag. In addition, there was evidence of his consciousness of guilt in holding the flowers up to his face upon seeing the victim and the police officer, and in turning abruptly away from them in a direction opposite to the direction of his girlfriend’s house, where he testified he was going.

We recognize that in State v. Hoeplinger, 206 Conn. 278, 298, 537 A.2d 1010 (1988), the court considered as one factor in its harmless error analysis the fact that the jury asked to rehear the defendant’s testimony, and that the jury in this case asked to rehear the defendant’s testimony regarding his alibi. The record in this case indicates that the court completed its instructions at 3:10 p.m. At some time between then and 3:50 p.m., the defendant’s alibi testimony was read to the jury, after which the jury resumed its deliberations until it was excused at the end of the court day. At 11 a.m. the next day, the jury returned its verdict.

Hoeplinger is distinguishable, however. In Hoeplinger, the issue was whether an improperly admitted statement of the defendant contributed to the verdict because it “seriously undermined, if not effectively devastated,” his credibility. Id. The jury never should have heard the improperly admitted statement at all, and thus its request to rehear the defendant’s testimony, which was seriously undermined by that statement, indicated that the error in admitting the statement could, not be considered harmless beyond a reasonable doubt.

In the present case, however, there was no such improperly admitted evidence. The trial court had properly instructed the jury that the issue of identification “must be considered in light of the defendant’s testimony and his denial of the crime.” Thus, the jury’s request to rehear his alibi testimony indicates no more than its scrupulous adherence to this instruction. There is no suggestion in this record that the jury’s request indicated an improper use of that testimony.

Ill

The defendant’s final claim, which we must consider because, if successful, it would require a judgment of acquittal on the burglary and robbery charges; State v. McIntosh, 12 Conn. App. 179, 187 n.3, 530 A.2d 191, cert. denied, 205 Conn. 808, 532 A.2d 77 (1987); is that the evidence was insufficient regarding the element that the defendant was armed with, and used or threatened the use of, a dangerous instrument. See footnotes 1 and 2, supra. The defendant’s argument is premised on the fact that no knife was found on the defendant, and on the claim that the can opener could not be considered a dangerous instrument. This argument is without merit.

A dangerous instrument is defined in pertinent part as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing serious physical injury . . .” General Statutes § 53a-3 (7). “The question is whether the instrument possessed the potential for causing either death or serious physical injury under the circumstances in which it is used [or threatened to be used].” State v. Frazier, 7 Conn. App. 27, 39, 507 A.2d 509 (1986). Serious physical injury is defined as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” General Statutes § 53a-3 (4).

The victim testified that the defendant held and pressed to her skin a shiny metal object, that he told her was a knife and that she thought was a knife. He also threatened to cut and blind her with that object. The jury could have inferred that it was in fact a knife. Furthermore, any metal object handled in the manner that this object was used and threatened to be used by the defendant could be considered a dangerous instrument. Certainly a rational jury could therefore find that it was an article that, under the circumstances in which it was used and threatened to be used, was capable of causing serious disfigurement, impairment of health or impairment of the function of a bodily organ.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) (1) provides in pertinent part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with . . . a . . . dangerous instrument . . . . ”

       General Statutes § 53a-134 (a) (3) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... he ... (3) uses or threatens the use of a dangerous instrument . . . . ”

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

       We note, however, that at least two members of our Supreme Court now apparently conclude that such an instruction is not necessarily erroneous. See State v. McDonough, 205 Conn. 352, 362-64, 533 A.2d 857 (1987) (Callahan and Covello, Js., concurring).

       The defense counsel stated: “Here you have an eyewitness identification case, not a circumstantial evidence an eyewitness identification ease— you must be convinced beyond a reasonable doubt of an eyewitness who was under great stress. That is not the same as other kinds of cases which are supported by circumstantial evidence. . . . Please consider the evidence. It’s a tough case, because it’s a case where nothing is disputed, it seems to me, but the identification of this defendant."

       Although the defendant purports to rely on both the federal and state constitutions, he offers no separate analysis under the state constitution, which we decline to undertake. State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986).

       Although in Smith we quoted the court’s entire charge regarding the defendant’s credibility, we only considered the portion quoted in the text, on which the defendant’s claim in that case focused. See State v. Smith, 10 Conn. App. 624, 639 n.5, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987).

       “The accused stands before you just like any other witness and he is entitled to the same considerations and must have his testimony measured in the same way as that of any other witness. However in weighing the credibility of the accused’s testimony you will consider the interest of the accused in the case as you would consider that of any other person who has testified and in that connection you will consider the importance to the accused of the outcome of this trial.”

       “Now in this particular case the accused took the witness stand and he has a perfect right to do so. Although the state clearly has the burden of proof to establish guilt beyond a reasonable doubt and although the defendant clearly has the right to elect not to testify if he does testify a jury may properly base its finding of guilt in part on the defendant’s testimony and their disbelief in its truth.
      “When the defendant elects to testify on his own behalf he assumes the risk that the jury cannot only disbelieve his story but also might wonder, quite properly, why his explanation of his conduct was so improbable, if that is your judgment.”

       Our research discloses that the United States Court of Appeals for the Ninth Circuit, apparently alone among American courts, has held squarely to the contrary. That court holds that “[djisbelief of a defendant’s own testimony may provide at least a partial basis for a jury’s conclusion that the opposite of the testimony is the truth.” United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975), and cases cited therein. Indeed, the language of the trial court’s charge in the case before us appears to have come directly from United States v. Ledesma, 499 F.2d 36, 43 (9th Cir. 1974). This line of cases, however, is directly contrary to the well settled law in Connecticut.
      The rule prohibiting such a finding apparently first surfaced in Connecticut in State v. Poplowski, 104 Conn. 493, 495, 133 A. 671 (1926), where the court, citing Massachusetts and New York cases, stated: “ ‘Facts cannot be established by not believing witnesses who deny them.’ ” As a matter of human experience and inference, however, if a witness specifically denies having done something and he is found to be, or admits to be, lying in that denial, it is certainly a permissible if not an inevitable inference that he in fact did it. At least one other court has recognized the logical validity of such an inference, but has nonetheless recognized the rule prohibiting the inference on the policy ground that such proof would be unreviewable on appeal. See Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952) (L. Hand, J.). At this time, however, the rule is too firmly rooted in Connecticut jurisprudence for us to question. See State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972), and cases cited therein.

       In articulating the new standard, the Chapman court recognized, however, that “[tjhere is little, if any, difference between our statement in Fahy v. Connecticut, [375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963)] about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The court also recognized that in fashioning a new standard, it did “no more than adhere to the meaning of . . . Fahy .... "Id. Thus, although in any given case there may not be a practical difference in the result achieved by applying the “no reasonable possibility standard” and the result achieved by applying the “harmless beyond a reasonable doubt on the whole record” standard, it is important that we reach that result by the proper, constitutionally mandated standard. See also State v. Hufford, 205 Conn. 386, 408-409, 533 A.2d 866 (1987) (equating reasonable possibility standard with harmless beyond reasonable doubt standard).


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Martin Warren
    (4450)
    Daly, Bieluch and Norcott, Js.
    Argued November 18, 1987
    decision released June 14, 1988

      Richard Emanuel, with whom, on the brief, was Burton M. Weinstein, for the appellant (defendant).

      Daniel C. Casagrande, special assistant state’s attorney, with whom was Bradford J. Ward, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and conspiracy to commit sexual assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-70 (a). The defendant claims (1) that the trial court erred in instructing the jury on the elements of the crime of sexual assault in the first degree, (2) that the rape victims shield law, General Statutes § 54-86f, is unconstitutional because it violates the separation of powers provision of the Connecticut constitution, (3) that the rape victims shield law is unconstitutional as applied to this case, (4) that the trial court erred in limiting his cross-examination of the complainant regarding a prior rape complaint, (5) that the trial court erred in denying the defendant’s motion to admit evidence of the complainant’s prior sexual conduct, (6) that the trial court erred in instructing the jury on evidentiary exhibits, (7) that the trial court erred in its instructions on circumstantial evidence, and (8) that the evidence was insufficient to establish his guilt beyond a reasonable doubt of the crimes charged. We find no reversible error.

The jury could reasonably have found the following facts. On June 1,1984, the complainant left her home at approximately 10:30 p.m. and went to Gig’s, a nightclub and bar in Torrington. The complainant left Gig’s at 1 a.m. on June 2,1984. Sometime between the hours of 1 and 1:30 a.m., the complainant arrived at a bar in Waterbury called Toad’s Place where she sat alone and had one or two beers. While at Toad’s Place, the complainant was approached by a man she had met approximately one year earlier at a company outing. After a brief conversation, the complainant accompanied the man and one of his friends to a place in Naugatuck known as the Naugatuck Social Club.

The three arrived at the Naugatuck Social Club (NSC), a boarded-up, two room clubhouse where members and their guests shot pool and drank beer, at approximately 3 a.m. When the complainant walked in, she noticed that there were approximately twenty-five people in the clubhouse and that all but one or two were men. The defendant, who was then and had been the president or chairman of the NSC since its inception in 1983, was present when the complainant entered the clubhouse.

The complainant walked into the front room of the NSC. When she did, the men crowded around her. One of the men handed her a beer. She took a sip and the beer was taken away from her. Some of the men then began grabbing the complainant and pinching her. The complainant climbed up on top of the bar and tried to push the men away. The men continued to grab her, and she began clawing anyone who tried to touch her.

The complainant grabbed her pocketbook and tried to leave, but a man the complainant later identified as the defendant blocked the door. While the other men crowded around her, the defendant said, “I’ll be the doorman.” The defendant then said he wanted to play pool. He kicked the complainant and threw her onto the pool table. The complainant rolled off the table and someone handed her a pool stick. The defendant then proceeded to take a shot on the pool table. After the complainant had taken a shot, someone took the pool stick away from her. Some of the men grabbed the complainant and carried her to the back room, threw her down on a couch and proceeded to gang rape her. One of the men who participated in the gang rape was the defendant.

I

The defendant’s first claim is that the trial court erred in instructing the jury on the elements of the crime of sexual assault in the first degree. Specifically, the defendant takes issue with the court’s statement that the “first element of [the crime of sexual assault in the first degree] . . . requires proof . . . that there was sexual intercourse with the complainant’s body. . . . If you find that such intercourse took place, whether by the defendant or someone else, then the requirement of the first element is met.” (Emphasis added.) It is the defendant’s contention that this instruction enlarged the crime of sexual assault beyond the terms of the statute, thereby depriving him of his right to notice of the charges against him and his right to due process law. We find no error.

At the outset, we note that the defendant did not properly preserve this issue for appeal. The defendant neither filed a specific request to charge on this issue nor did he take an exception to the charge given. Practice Book § 854. Despite the defendant’s failure to preserve this claim properly, we will review it for the first time on appeal because it implicates the defendant’s fundamental constitutional right to a fair trial. State v. Brown, 199 Conn. 14, 26, 505 A.2d 690 (1986); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The due process clause of the fourteenth amendment to the United States constitution requires that every fact necessary to constitute the crime of which the accused stands charged must be proven beyond a reasonable doubt before the accused may be convicted. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). In order to ensure that every fact is proven beyond a reasonable doubt, “[i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). “ ‘ ‘ “If justice is to be done . . . it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime.” United States v. Clark, 475 F.2d 240, 248 (2d Cir. [1973])’. ...” State v. Kurvin, [186 Conn. 555, 561, 442 A.2d 1327 (1982)].’ State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983); State v. Griffin, 175 Conn. 155, 163, 397 A.2d 89 (1978).” State v. Williamson, supra, 709.

In this case, the defendant claims that the court’s instruction was inaccurate in that it allowed him to be convicted of sexual assault in the first degree as a principal even if he, himself, did not have sexual intercourse with the complainant. Our Supreme Court has recognized 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. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977).” State v. Preyer, 198 Conn. 190, 198, 502 A.2d 858 (1985). We find, however, that the court’s instruction is not a misstatement of the law.

General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person . . . .’’It is axiomatic that the words in a statute are to be given their plain and ordinary meaning. Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977). By its very terms, this statute imposes liability for sexual assault on any person who compels another person, by the use of force, to engage in sexual intercourse, regardless of with whom the sexual act is performed. That the statute is to be given this construction is clear from its legislative history. “In construing a statute, [the] court will consider its plain language, its legislative history, its purpose and the circumstances surrounding its enactment.” State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985).

Prior to 1975, the act of forcibly compelling someone to engage in sexual intercourse was considered rape in the first degree as proscribed by General Statutes (Rev. to 1975) § 53a-72. State v. Rodgers, 198 Conn. 53, 60-61, 502 A.2d 360 (1985). General Statutes (Rev. to 1975) § 53a-72 provided: “A male is guilty of rape in the first degree when he engages in sexual intercourse with a female: (1) By forcible compulsion . . . . ” (Emphasis added.) It is clear under the terms of that statute that, in order to be guilty of rape in the first degree, a male had to personally engage in sexual intercourse with a female victim.

In 1975, however, General Statutes § 53a-72 was repealed and its provisions divided between sexual assault in the first degree, General Statutes § 53a-70, and sexual assault in the second degree, General Statutes § 53a-71. State v. Rodgers, supra, 60-61. In enacting this change, the legislature eliminated the requirement that the defendant must engage in a sexual act with the victim. “ ‘[W]e may not presume that the legislature has enacted futile or meaningless legislation or that a change in the law was made without a reason.’ City Council v. Hall, 180 Conn. 243, 251, 429 A.2d 481 (1980). ‘We can assume that this change in the law was made to accomplish some purpose.’ Brown v. Cato, 147 Conn. 418, 162 A.2d 175 (1960).” State v. Mackor, 11 Conn. App. 316, 322, 527 A.2d 710 (1987).

“The difference between the language used in the former and the present statutes evinces a legislative intent to overcome the construction given the earlier statute by previous cases in this jurisdiction.” Id. The elimination of the requirement that the defendant personally engage in sexual intercourse with the victim shows unmistakably that the legislature intended to extend liability under the sexual assault statute to those who compelled another to engage in sexual intercourse but did not engage in intercourse themselves. Because we hold that a person may be convicted of the crime of sexual assault in the first degree as a principal even if he, himself, does not engage in intercourse, we find that neither the defendant’s due process rights nor his right to be apprised of the crimes with which he was charged were infringed.

II

The defendant’s next four claims of error relate to the trial court’s refusal to permit the introduction of (1) certain evidence regarding a prior sexual assault claim made by the complainant, and (2) evidence that the complainant had, on prior occasions, simulated oral sex with a beer bottle. The defendant claims that the evidence proffered was relevant and admissible and that the trial court’s refusal to allow its admittance denied him his constitutional right to confront witnesses, his right to present a defense, and his right to due process of law. U.S. Const., amends. VI and XIV; Conn. Const., art. I, § 8. The defendant further contends that the rape victims shield law, General Statutes § 54-86f, is violative of the separation of powers provision of the state constitution. Conn. Const., art. II; see also Conn. Const., art. V, § 1.

The following facts are pertinent to these claims of error. On direct examination, the complainant testified that after she had been thrown down on the couch, the defendant came and sat on her chest. As the defendant sat on her chest, other men began inserting things into her vagina. The complainant testified that she believed that one of the objects inserted into her vagina was a beer bottle.

On cross-examination, the complainant was asked how she could identify the object that was inserted into her vagina. The complainant testified that it “just felt like a beer bottle.” The complainant was then asked if she had ever had an experience like that before. She replied that she had not. On cross-examination, defense counsel also sought to inquire of the complainant whether she had ever before claimed to have been sexually assaulted. The state objected and the court sustained the objection.

At the close of the state’s case, the trial court reconsidered its earlier ruling and allowed the defendant to cross-examine the complainant about the prior claim of sexual assault. In making this ruling, however, the trial court limited the cross-examination to questions relevant to credibility and indicated that it would not permit any detailed examination into the collateral facts involved in that line of questioning.

On cross-examination, the complainant testified that approximately two years earlier, she had told several people that she had been raped. She further testified that she could not identify her attacker because she had been unconscious at the time and had only found out about the incident because someone had told her about it. Defense counsel then inquired as to who told the complainant she had been raped. The state objected and the objection was sustained. Defense counsel also sought to inquire as to why the complainant was unconscious, but an objection to that line of questioning was sustained.

The defense then proceeded to put on its case. After the presentation of four witnesses, but before resting, the defendant made a motion to introduce evidence regarding (1) the complainant’s simulated oral sex with a beer bottle, and (2) the complainant’s prior rape complaint. The defendant claimed that this evidence was relevant to the issue of the complainant’s credibility. The court denied the defendant’s motion.

With regard to the proffered evidence regarding the complainant’s simulated oral sex on a beer bottle, the trial court found that the evidence was too remote to bear on the complainant’s credibility. The trial court’s finding that the evidence was too remote was clearly a finding that the evidence was irrelevant. State v. Hoeplinger, 9 Conn. App. 147, 155, 517 A.2d 632 (1986), rev’d on other grounds, 206 Conn. 278, 537 A.2d 1010 (1988). “The rules governing the determination of relevancy are well established. ‘[Ejvidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.’ State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985).” State v. Franko, 199 Conn. 481, 485-86, 508 A.2d 22 (1986). A trial court has broad discretion to determine the relevancy of proffered evidence. State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975).

In this case, the trial court clearly did not abuse its discretion in holding that the proffered evidence was irrelevant. The fact that the complainant may have, at one time, had a beer bottle in her mouth does not tend to show that she has ever had a beer bottle in her vagina, nor does it tend to show that the complainant was untruthful when she said that she had never had an experience like that before. We find that this evidence was properly excluded from the jury’s consideration.

With regard to the evidence concerning the complainant’s prior rape complaint, the defendant first contends that the trial court impermissibly restricted his cross-examination of the complainant.

The defendant’s right to cross-examine the witnesses against him is guaranteed by the sixth amendment to the United States constitution and by article first, § 8, of the Connecticut constitution. “The right of the defendant to confront and cross-examine the witnesses against him [however] is not absolute; Chambers v. Mississippi, [410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)]; State v. Franko, supra, 488; ‘but may bow to “other legitimate interests in the criminal trial process.” Chambers v. Mississippi, supra, 295; State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978).’ . . . State v. Franko, supra, 488.” State v. Daniels, 8 Conn. App. 190, 193, 512 A.2d 936 (1986). “The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial court, but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.” State v. Cox, 7 Conn. App. 377, 384, 509 A.2d 36 (1986). A trial court may limit the cross-examination of a witness so as to prohibit the intrusion into collateral matters. State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980); State v. Cox, supra, 384.

While it would have been a denial of the defendant’s right of confrontation to refuse any cross-examination on the prior rape complaint; see State v. Ouellette, 190 Conn. 84, 102-103, 459 A.2d 1005 (1983); the trial court did not so limit the cross-examination of the complainant in this case. Defense counsel was given an opportunity to cross-examine the complainant about her prior complaint and, in the process, was permitted to develop facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the complainant, thus satisfying the constitutional standard. State v. Gaynor, supra; State v. Cox, supra; see also State v. Heinz, 3 Conn. App. 80, 86, 485 A.2d 1321 (1984). “Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply ‘[ejvery reasonable presumption ... in favor of the correctness of the trial court’s ruling in determining whether there has been an abuse of discretion.’ State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).” State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). “ ‘ “To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” United States v. Elliott, 571 F.2d 880, 909 (5th Cir. 1978); Gordon v. United States, 438 F.2d 858, 865 (5th Cir. 1971).’ State v. Gaynor, supra, 510.” State v. Castro, supra, 426.

In this case, we cannot say that the trial court abused its discretion in limiting the scope of the complainant’s cross-examination. As we noted above, the trial court allowed the defendant to cross-examine the complainant about this matter so as to put the issue of her reliability before the jury. The two additional questions the defendant sought to ask were clearly collateral, and the defendant has failed to demonstrate that he was prejudiced by their exclusion.

The defendant also claims that he should have been allowed to produce extensive evidence that the complainant was not unconscious at the time the prior rape had occurred. In proffering this evidence, the defendant was attempting to impeach the complainant by contradictory testimony.

“The testimony of any witness may be contradicted by the testimony of any other witness.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.24.1. Extrinsic evidence, however, is not admissible to impeach the credibility of a witness on a collateral issue. State v. Carbone, 172 Conn. 242, 262, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977); State v. Rogers, 9 Conn. App. 208, 212, 518 A.2d 399 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1288 (1987). In this case, the trial court was correct in ruling that the proffered evidence was inadmissible to impeach the complainant’s credibility. The proffered evidence was clearly collateral to the present case. See State v. Rogers, supra.

Because we have found that the evidence proffered by the defendant was properly excluded as irrelevant and collateral, we need not address the defendant’s challenge to the constitutionality of the rape victims shield law. “‘We have held on numerous occasions that the court will not pass upon a constitutional question if there is present some other ground upon which the case may be decided.’ Hartford v. Powers, 183 Conn. 76, 84-85, 438 A.2d 824 (1981) and cases cited therein, including State v. Gold, 180 Conn. 619, 639-40, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).” State v. Williams, 200 Conn. 310, 322, 511 A.2d 1000 (1986); see also State v. Franko, supra, 485.

Ill

The defendant next claims that the trial court erred in its instructions to the jury on the use of evidentiary exhibits. The defendant concedes that no exception was taken to this charge at the trial level but asserts that this claim is reviewable under the doctrine of State v. Evans, supra. We find that this claim implicates the défendant’s fundamental constitutional right to a fair trial, and hence, we will review this claim for the first time on appeal. Id.

It is axiomatic that “it is the trial court judge, and not the jury, who determines the admissibility .of evidence.” State v. Randolph, 190 Conn. 576, 587, 462 A.2d 1011 (1983); see also Fed. R. Evid. Rule 104 (a) (“[preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court”). This rule is based on the long established principle that it is the province of the trial court to determine questions of law while it is the province of the jury to determine only questions of fact. State v. Tomassi, 137 Conn. 113, 123, 75 A.2d 67 (1950). By removing the question of the admissibility of evidence from the jury, this rule ensures that the jury will only consider that evidence that is properly before it and also, that the jury will not disregard evidence it is bound to consider.

In this case, it is clear that the trial court made an initial determination of the admissibility of all the exhibits entered at trial. After the presentation of all of the evidence, however, the trial court instructed the jury that “You must decide, under the same test of reasonable probability, whether the identification nature of the item is sufficient to warrant its reception in evidence.” The defendant claims that this instruction was error because it required the jury to make an independent determination as to the admissibility of the physical evidence.

Several courts have had the opportunity to consider charges, such as the one given in this case, which allow the jury to determine the admissibility of evidence even after the court had deemed it to be admissible. In United States v. Dennis, 183 F.2d 201, 230-32 (2d Cir. 1950), aff'd, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), Judge Hand reviewed such a charge dealing with the admissibility of a coconspirator’s statement. Judge Hand noted that “the better doctrine is that the judge is always to decide, as concededly he generally must, any issues of fact on which the competence of evidence depends, and that, if he decides it to be competent, he is to leave it to the jury to use like any other evidence, without instructing them to consider it as proof only after they too have decided a preliminary issue which alone makes it competent. Indeed, it is a practical impossibility for laymen, and for that matter most judges, to keep their minds in the isolated compartments that this requires.” Id., 231. Almost all of the courts who have recently addressed this issue have reached the same conclusion. See, e.g., United States v. Federico, 658 F.2d 1337, 1342 (9th Cir. 1981); United States v. Jackson, 627 F.2d 1198, 1217-18 (D.C. Cir. 1980); United States v. Bey, 437 F.2d 188, 190-92 (3d Cir. 1971). We agree with the rationale expressed in those decisions. “ ‘When the judge decides admissibility, the jurors should not be told anything about the issue. Giving them a “second bite at the apple” serves only to confuse, and achieves no useful purpose . . . . ’ ” United States v. Mastropieri, 685 F.2d 776, 789 (2d Cir.) cert. denied sub nom. Pate v. United States, 459 U.S. 945, 103 S. Ct. 260, 74 L. Ed. 2d 203 (1982), quoting 1 Weinstein, Evidence § 104.[05] at 104-44.9.

Under this standard, the trial court’s instruction was clearly erroneous. We must now determine, however, whether the court’s instruction was harmless beyond a reasonable doubt. State v. Coleman, 14 Conn. App. 657, 678-83, 544 A.2d 194 (1988). We find that it was.

The defendant contends that the error was not harmless because it allowed the jury to refuse to consider a jacket that had been entered into evidence which the defendant purported to have worn on the night of the incident at the NSC. The thrust of the defense in this case was that the defendant was present at the NSC when the complainant was assaulted but that the complainant misidentified him as the man who led the assault. The complainant had testified that the man who led the attack was wearing a specific type of jacket, and the defendant produced evidence that he was wearing another type of jacket. The defendant entered into evidence the jacket he claims to have been wearing that night.

We begin by noting that there were no questions raised at trial concerning the authenticity of the jacket the defendant entered into evidence. No objection was made to its admission into evidence. It is hard to believe that when no objection was made to its admission, the jury could conclude that the “identification nature of the item [was not sufficient] to warrant its reception into evidence.” We further note that the question in this case was not whether the jacket the defendant claimed to have worn existed. The question was whether he was wearing that jacket on the night in question, and whether the complainant misidentified him. The defendant had several witnesses who testified as to what he was wearing on the night in question, and the jury was bound to consider that evidence. Given these facts and the fact that the instruction worked to the defendant’s benefit for the exhibits entered by the state, we find this instructional error to be harmless beyond a reasonable doubt.

IV

The defendant next claims that the court erred in its instructions to the jury on circumstantial evidence. The defendant claims that the court’s instructions unconstitutionally diluted the state’s burden of proving guilt beyond a reasonable doubt.

In the past, our courts have found no error in the giving of an instruction which requires that all inferences drawn must be reasonable. State v. Silano, 204 Conn. 769, 772-75, 529 A.2d 1283 (1987); State v. Wright, 9 Conn. App. 275, 280-83, 518 A.2d 658 (1986), cert. denied, 203 Conn. 802, 522 A.2d 293 (1987). This charge compares favorably with those earlier instructions. Even if we were to find error in this case, we note that the primary disputed issue at trial was the identity of the defendant. We have often held that where the principal disputed factual issue at trial is identity, which is not classically dependent upon circumstantial evidence for its proof, 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 instruction regarding the use of circumstantial evidence. State v. Peay, 13 Conn. App. 578, 582, 538 A.2d 708 (1988); State v. Biggs, 13 Conn. App. 12, 21, 534 A.2d 1217 (1987); State v. Perez, 10 Conn. App. 279, 283-84, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987). Reading the instructions as a whole, we find that it is not reasonably possible that the jury was misled. State v. Biggs, supra, 22-23.

y

The defendant’s final claim is that the evidence was insufficient to support either his conviction for sexual assault in the first degree or his conviction for conspiracy to commit sexual assault in the first degree. “The standard that applies when a jury verdict is challenged for insufficiency of the evidence is well settled. The issue is 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. Baskins, 12 Conn. App. 313, 316, 530 A.2d 663 (1987). ‘The evidence must be given a construction most favorable to sustaining the jury’s verdict.’ State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); see State v. Monk, 198 Conn. 430, 432, 503 A.2d 591 (1986). Every element of the crime charged must be proved, and although it is in the province of the jury to draw logical inferences from the facts proven, they may not resort to speculation.” State v. Robinson, 14 Conn. App. 40, 42, 539 A.2d 606 (1988).

Construing the evidence in a light most favorable to sustaining the jury’s verdict, we find the evidence sufficient to support the defendant’s conviction on both counts.

There is no error.

In this opinion the other judges concurred.

       The state contends that the trial court properly instructed the jury on the elements of accessorial liability. We disagree. In order to be considered adequate, an instruction on accessorial liability must inform the jury that the defendant can be found guilty only if (1) he intended to commit the underlying felony of sexual assault in the first degree, and (2) he intended to aid the principal. State v. Fleming, 198 Conn. 255, 271, 502 A.2d 886 (1986), cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342; General Statutes § 53a-8. The trial court’s mere statement that the defendant could be convicted even if he did not engage in intercourse did not properly instruct the jury on these elements of the crime.

       The case of State v. Gianotti, 7 Conn. App. 701, 510 A.2d 451, cert. denied, 201 Conn. 804, 513 A.2d 700 (1986), is not to the contrary. In Gianotti, we were concerned merely with whether the court’s instruction was adequate as a charge on aiding and abetting. We were not presented with the question of whether one may be convicted as a principal of sexual assault in the first degree even if one did not personally engage in the act of sexual intercourse.

       The court instructed the jury as follows: “What a person’s purpose or intention has been is necessarily very largely a matter of inference. A person may take the stand and testify directly as to what his or her purpose or intention was and that testimony you can believe or not, according to whether or not it warrants belief. But, no witness can be expected to come here and testify that he looked into another person’s mind and saw therein a certain purpose or intention. The only way in which you, the jury, can determine what a person’s purpose or intention was in any given time, aside from that person’s own testimony, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct and from those you may infer what his purpose or intention was. This is not a mandatory inference, but it is one which you may draw, if you find it is reasonable to do so.”


author: Dupont, C. J.

text:
    Joseph R. Pepe, Trustee v. Board of Tax Review of the Town of Woodbury
    (5437)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 2, 1987
    decision released June 14, 1988

      Hillard N. Einbinder, for the appellant (plaintiff).

      James Wu, with whom, on the brief, was Thomas J. Sansone, for the appellee (defendant).
   Dupont, C. J.

This is an appeal from the denial by the trial court of the plaintiff’s request for a reduction under General Statutes § 12-118 in the assessment of a private roadway by the town of Woodbury. The basic claim of the plaintiff is that the trial court erred in finding that the defendant’s method of assessment was reasonable, nondiscriminatory and did not result in a substantial over-valuation of his land.

At issue is the determination of the fair market value of a two mile long private road. The fee of the plaintiff in the road is subject to an easement in favor of 400 residential condominium units. The town found that the road had a fair market value of $580,000 and assessed the road at $406,000. At trial, the defendant’s appraiser testified that the road had a total estimated fair market value of $1,032,752, but reduced its value by 40 percent because of its use by the owners of the condominium units, to arrive at a value of $622,512. This valuation exceeded that of the town’s tax assessor. The trial court upheld the assessment of the town and dismissed the appeal. The plaintiff argues that the court abused its discretion because (1) it failed to place a nominal assessment on the road, and (2) it used a replacement cost method in valuing the road, without a deduction for depreciation.

The parties do riot argue over the relevant law or the facts. They argue, rather, about the application of the decisional law to the facts. Neither cites any Connecticut case which discusses the valuation of a private road for tax assessment purposes or for condemnation purposes.

The plaintiff developed property on one side of the road as residential condominium units. In order to provide access to them, he was required to construct a road. He did so, granting easements over the road to the owners of the condominium complex. The road contains lights, a sewer system, markings, signs, and curbs. The condominium complex maintains it. The town refused to accept the road as a town road because the base of the road was not in compliance with town specifications. The plaintiff and the defendant agree that the highest and best use of the land is as an access road for the existing condominiums and the seventy-five acres which the plaintiff owns with another person on the other side of the road.

“There are three accepted methods of valuation which may be used for the assessment of real property. They are the comparable sales approach, the income approach or the reproduction cost, or cost approach.” Whitney Center, Inc. v. Hamden, 4 Conn. App. 426, 427-28, 494 A.2d 624 (1985). The plaintiff and the defendant both use a market data valuation or comparable sales approach for the land underlying the road. The road contains about 12.5 acres. The plaintiff would value the land at $2000 per acre for a total valuation of $25,000; the defendant would value the same land at $5000 per acre for a total valuation of $62,500. If this were the only difference in valuation espoused by the parties, this case would be a candidate for a per curiam decision. The plaintiff, however, claims that the road has no value beyond the land underlying the road because the land can never be used as anything except a road due to the easements. The defendant insists that the road not only has value as acreage but also that the cost of the improvements to the road must be added to that value.

The town’s appraiser first used a market data approach in order to value the roadway, comparing it with the value ascribed to the seventy-five acres of unimproved land which adjoin the roadway. That unimproved acreage was valued at $3000 per acre, using eleven comparable sales for substantiation of that figure. The same sales were used to value the land underlying the road. That land, however, was valued at $5000 per acre instead of $3000 because of “adjustments made for size and improvements as the subject land includes an improved roadway.” Thus, built into the valuation by the defendant’s appraiser of $62,500 for the land underlying the road was the improvement to the road. The same appraiser then valued the land using a cost approach method. He testified that the cost of reproducing the road would be $972,152, and then added this figure to the value of the land underlying the road. The appraiser did not allow any deduction from reproduction cost for depreciation because “the responsibility for maintenance is on the . . . [condominium project.”

We conclude that the assessment by the defendant reflected a substantial over-valuation of the road. This is so for at least two reasons.

The value of the land as found by the town under the market data approach included a value for its improvements. By adding to that value another increment for reproducing the improvement, value for the same improvement has been included twice. The value of a special use property is not the market value of land plus the reproduction cost of improvements but the market value of the property as improved. Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 414, 270 A. 549 (1970). The defendant’s appraiser determined the value of the roadway as improved to be $5000 per acre; he could not then add to that figure the reproduction cost of the improvement. See id.

The second reason that the value of the road upon which the assessment is based is a substantial overvaluation is that the reproduction cost of the road was not reduced by any sum for depreciation. Connecticut cases which discuss reproduction cost as an alternative method of valuation provide for the reduction of the reproduction cost by a figure attributable to depreciation. New Haven Water v. Board of Tax Review, 166 Conn. 232, 348 A.2d 641 (1974) (personalty); Federated Department Stores v. Board of Tax Review, 162 Conn. 77, 291 A.2d 715 (1971); Moss v. N. H. Redevelopment Agency, 146 Conn. 421, 426, 151 A.2d 693 (1959); Sibley v. Middlefield, 143 Conn. 100, 106-107, 120 A.2d 77 (1956); Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944); Lomas v. Nettleton, 122 Conn. 228, 230, 188 A. 433 (1936). Whether the road is maintained by its owner or the owner of an easement over it does not change the fact that under commonly accepted accounting procedures, a dollar amount for depreciation must be deducted from the basis of a structure or improvement to realty in order to obtain its fair market value. 5 Nichols, Eminent Domain (3d Ed.) § 20.3.

The valuation of the assessor was unreasonable for the reasons discussed and necessitated the conclusion that the road was over-valued. Hartensky v. Avon, 163 Conn. 433, 311 A.2d 92 (1972). The court’s conclusion that the assessment was nondiscriminatory and reasonable was not supported by the evidence. The appraisal report is, on its face, internally inconsistent. Over-valuation justifies redress under General Statutes § 12-118.

The trial court erred because it found that the defendant’s method of appraisal was reasonable and nondiscriminatory and that the road was assessed in accordance with approved and accepted methods of ascertaining the value of the real estate. Although a court may use any of three accepted methods of valuation in determining whether an assessment of real estate is just and equitable, it may not rely on inconsistent facts or improper accounting principles when applying the particular method of valuation.

There is error, the judgment dismissing the appeal as to the valuation of the roadway is set aside and the case is remanded for a new trial as to that valuation.

In this opinion the other judges concurred.

       Two appeals were taken to the Superior Court, seeking a reduction in the tax assessments of the private road and of seventy-five acres of undeveloped land which abut the private road. The latter parcel is owned by the plaintiff and another. The plaintiff, in his appeal to this court, does not complain of the assessment of the undeveloped acreage. In the case of Woodbury v. Pepe, 6 Conn. App. 330, 505 A.2d 723 (1986), it was established that the owners of both the road and the land were liable for property taxes.

       In addition to the two reasons cited in the text as causing an overvaluation of the road, it may also be argued that the value of the road, as improved, has already been included in the assessments of the condominium units since they are presumably more valuable because they abut an improved road. The plaintiff has not, however, advanced this argument. Furthermore, replacement or reproduction cost is a method of valuation usually used, not only when a special purpose property must be assessed; Whitney Center, Inc. v. Hamden, 4 Conn. App. 426, 428, 494 A.2d 624 (1985); but when the conclusion is justified that if the property were destroyed, the owner would rationally replace it. New Haven Water v. Board of Tax Review, 166 Conn. 232, 239, 348 A.2d 641 (1974). Here, since the condominium unit owners are legally responsible for the care and maintenance of the road, the plaintiff might not replace the road if it were destroyed.
      It could also be argued that the 40 percent reduction in the value of the road allowed by the defendant’s appraiser because of the use of the road by the condominium unit owners was an arbitrary reduction. Although some reduction may be proper, nowhere in his report or in his testimony is there any substantiation for a reduction in this particular percentage.