author: Hetman, J.

text:
    State of Connecticut v. Craig Ulen
    (10436)
    Dupont, C. J., Daly and Heiman, Js.
    Argued February 24
    decision released April 13, 1993

      Suzanne Zitser, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, was Patricia Swords, state’s attorney, for the appellee (state).
   Hetman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in a spousal relationship in violation of General Statutes § dSa-TOb and unlawful restraint in the first degree in violation of General Statutes § 53a-95. Both crimes involved acts occurring on October 2,1989. The jury acquitted the defendant of an additional count of sexual assault in a spousal relationship and of kidnapping in the first degree with a firearm. On appeal, the defendant asserts that the trial court (1) improperly permitted the state, under the theory of proving intent, motive or common scheme, to introduce evidence of the defendant’s prior acts of misconduct consisting of an alleged rape and threat in September, 1989, (2) violated the defendant’s constitutional rights to confrontation, to present a defense and to due process by prohibiting him from questioning the victim regarding her refusal to testify against him in an out-of-state prosecution based on the same incident for which he was being tried, and for prohibiting the defendant from bringing to the jury’s attention the fact that a not guilty finding was entered by the out-of-state court, and (3) improperly instructed the jury on the permissible use of misconduct evidence that had been admitted for a limited purpose. We disagree and affirm the judgment of the trial court.

The jury could have reasonably found the following ■facts. The victim and the defendant were married in Springfield, Massachusetts, on October 23,1976. Three children were bom of this union, two sons and a daughter, ranging from three to fourteen years of age. The victim and the defendant separated in early August, 1989. On September 7, 1989, the victim obtained a restraining order from a Massachusetts court, prohibiting the defendant from contacting the victim at her home or place of employment.

The victim was employed as a pharmacy technician at Mercy Hospital in Springfield. While she was at work, her sister-in-law, the defendant’s sister, Sharon Pouliot, took care of the victim’s two younger children at the Pouliot home at 857 Belmont Avenue in Springfield. On October 2,1989, in accordance with her usual practice, the victim dropped off the children at the Pouliot home and returned for them after work.

When the victim attempted to open her car door after driving into the Pouliot’s driveway, she felt something hit the door and saw the defendant standing next to the car. The defendant told the victim to move over into the passenger seat. The victim attempted to blow the horn to attract attention but was unsuccessful. The defendant pushed the victim to the passenger seat, got into the vehicle, and backed the car out of the driveway.

As the defendant drove, he told the victim that he wanted to talk and “get this thing [the marital problems] straightened out once and for all.” The defendant also stated that he could not understand why the victim wanted a divorce and why they could not agree on some terms that would permit them to reunite. The victim requested that the defendant take her back to the Pouliot home. The defendant continued to drive away from the Pouliot home.

He drove to Camp Ayapo in Somers, Connecticut. Upon arriving there, the defendant stopped the vehicle, exited the car, went around to the passenger side of the vehicle, opened the passenger side door, pulled the victim from the car, picked her up and carried her inside one of the cabins. In his hand, he held an object wrapped in a yellow jacket.

Once inside the cabin, he placed the wrapped object on the floor and told the victim to remove her clothing. When she refused, the defendant picked up the wrapped object, revealing it to be a gun. He then pointed the gun at her and again told her to undress. She refused. The defendant forcibly removed all of the victim’s clothing, pushed her down onto a mattress on the floor, and pulled down his pants and underwear. While undressing the victim, the defendant repeatedly stated that he had to make sure that he did not leave any marks on her.

The defendant demanded that the victim perform oral sex. She refused and stated, “No. I’ll just bite it off.” The defendant picked up the gun, placed it in the victim’s vagina, and again demanded that the victim perform fellatio. When she refused, the defendant withdrew the gun and penetrated her with his penis. During this incident, the victim was extremely frightened.

When the defendant got off the victim, he told her to dress. He said to her, “Why did you make me do this?” She responded, “Craig, I didn’t make you do this. You did it on your own and I don’t know why.”

The defendant pointed the gun at the victim and said, “You are not going to tell anybody, right? You’re not going to tell your lawyer. You’re not going to call the police. You’re not going to tell anybody about this?” The victim refused to make this promise.

The defendant then went around the side of the cabin and walked down a hill. The victim got into the car but could not leave because the defendant had the car keys. She heard a noise and saw the defendant standing near the cabin. He motioned for the victim to lower the car window and when she complied, the defendant fired the gun into the ground. He then repeated his question about the victim’s not telling anyone what had occurred and the victim agreed. As they returned to Springfield, the defendant repeated his questions about the victim’s not filing a complaint and that the whole event had been her fault because she would not discuss a solution to their marital problems.

The defendant drove the victim to a lot in the area of Belmont Avenue near the defendant’s truck. He exited the car and removed items from the backseat. After a brief conversation, he left in his truck and the victim drove to the Pouliot house.

The victim told her brother-in-law that the defendant had accosted her when she arrived after work to pick up her children, taken her to Camp Ayapo, and raped her at gunpoint. She made several telephone calls from the Pouliot house before she went to her own house with her children. Shortly after the victim arrived at her house, the Springfield police were called.

The victim was sent to Baystate Medical Center where she was examined by medical personnel. She was then taken to a police station where she made a statement concerning the events of the evening.

The next day, the victim was contacted by Trooper Diane Davis of the Connecticut state police. Davis came to the victim’s house and together they went to Camp Ayapo. They searched the area and the victim identified the mattress on which the sexual assault had taken place. The victim then gave a written statement to the Connecticut state police. On January 31, 1990, a warrant was issued for the arrest of the defendant.

I

The defendant first asserts that the trial court improperly permitted the state to introduce evidence of a prior act of misconduct involving another alleged rape and threat that occurred in September, 1989. The defendant also asserts that the court admitted the evidence to prove intent, motive or common scheme. We disagree with both assertions.

The following additional facts are necessary to a resolution of this issue. On September 1, 1989, the victim was in her house in Springfield talking on the telephone. The defendant had retained a key to the house when he moved out and used it on that day to gain admission to the victim’s house. After a brief conversation, the defendant picked up the victim and carried her into her bedroom. He placed the victim on the bed and tied her arms to the bedposts. He removed her slacks and underclothing, pulled up her sweater, and fondled her. Each time that she screamed, he put a pillow over her head and told her to be quiet. The defendant pulled down his pants, and penetrated the victim’s vagina with his penis. The victim kept telling the defendant to stop and to remove his penis because she was in pain. He continued to place the pillow over her head to stop her from screaming. He finally released her and she was able to dress and leave the room.

As a result of the defendant’s actions, the victim sustained bruises to her face and marks on her wrists from the rope that was used to tie her to the bedposts. The victim made a complaint to the police on the day following the assault although she did not report the sexual assault, because she was embarrassed to discuss it with the responding male officers.

The victim also testified, without objection, to a telephone call she received from the defendant four days before the October 2, 1989 incident, in which the defendant was alleged to have warned the victim to look over her shoulder whenever she left the house, entered the car, exited the car, entered her workplace, or went anywhere. The defendant now complains that the trial court improperly admitted this evidence. We disagree.

We note the very limited objection raised by the defendant to the evidence of the prior assault and sexual assault, and the lack of objection to the questions relating to the telephoned threat a few days before the sexual assault that resulted in these charges.

We are limited in the scope of review that can be afforded to the claim of the inadmissibility of evidence of the prior sexual assault and assault committed on the victim by the defendant by the nature of the defendant’s objection. The only objection raised to the proffered evidence of the prior acts of misconduct was that of relevancy. Our rules of practice require that a proper objection be made, setting forth the grounds on which the evidence is claimed to be inadmissible and an exception taken to the ruling of the trial court. Practice Book § 288. Here, the only objection set forth by the defendant was a claim that the evidence was irrelevant. We review evidentiary rulings solely on the ground on which the party’s objection is based. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983); State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); State v. Dukes, 29 Conn. App. 409, 416, 616 A.2d 800 (1992), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993). We thus limit our review to the issue of the relevancy of the evidence, the only ground for excluding the evidence asserted by the defendant at trial. State v. Braman, supra; State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); State v. Dukes, supra.

Our examination of the question of whether the trial court properly admitted into evidence testimony that the defendant claimed lacked relevance must be examined against the backdrop of what has long been our law, that the trial court is vested with broad discretion in resolving questions of relevancy. State v. Santiago, 224 Conn. 325, 326, 618 A.2d 32 (1992); State v. Maxwell, 29 Conn. App. 704, 715, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993). “ ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue.’ ” State v. Boucino, 199 Conn. 207, 228, 506 A.2d 125 (1986), quoting State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985).

Evidence óf other misconduct is admissible if it meets two tests. The evidence must (1) be relevant and material to the establishment of knowledge, intent, motive, and common scheme or design or to the establishment of an element of the crime, and (2) have probative value that outweighs its prejudicial effect. State v. Payne, 219 Conn. 93, 98, 591 A.2d 1246 (1991); State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). We conclude, on the basis of our review of the record, that the trial court did not abuse its discretion in overruling the defendant’s objection based on relevancy because it is apparent that the evidence was relevant to a common scheme and to some of the elements of General Statutes § 53a-70b.

The defendant also asserts that the trial court either failed to engage in a balancing test to determine whether the probative value of the evidence outweighed its prejudicial effect or mistakenly concluded that its probative value exceeded its prejudicial effect. Although the defendant preserved his claim as to the relevancy of the misconduct evidence, nothing in the record indicates that the defendant ever raised as a ground of objection before the trial court that the prejudicial effect of the misconduct evidence outweighed its probative value. We have not yet reached a jurisprudential stage where we require trial judges to be mentally telepathic. Thus, we have consistently declined to review claims based on a ground different, from that raised in the trial court. State v. Dukes, supra. We have applied this rule even where the claim made on appeal was the failure of the trial court to perform its balancing function, sua sponte, when the only objection raised before the trial court was based on relevance. State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985); State v. Dukes, supra.

The defendant does not claim entitlement to review based on any perceived violation of his constitutional rights; State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); nor does the defendant raise the specter of plain error. Thus, we decline to depart from our well settled precedents and will not afford review to this unpreserved claim. See State v. Weidenhof 205 Conn. 262, 277, 533 A.2d 545 (1987); State v. Dukes, supra.

We also conclude that the issue concerning the admissibility of the telephone threat is not reviewable because of the defendant’s failure to object properly to the proffered evidence. Practice Book § 288. No objection was interposed to the series of questions and answers relating to that telephone call. “Our rules of practice make it clear that counsel must object to a ruling of evidence, state the grounds upon which objection is made, and take exception to the ruling to preserve the grounds for appeal. . . . These requirements are not simply formalities. ... We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection and exception.” (Citations omitted.) State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986). Because of the defendant’s failure to comply with the rules of practice, the claim concerning the admissibility of this particular evidence was not properly preserved for appeal. State v. Pecoraro, 198 Conn. 203, 206, 502 A.2d 396 (1985).

The defendant has not claimed reviewability of this claim under the doctrine of State v. Golding, supra, and State v. Evans, supra. We therefore decline to review the merits of this unpreserved claim. State v. Lizotte, supra.

II

The defendant next asserts that the trial court improperly prohibited him from questioning the victim regarding her refusal to testify against him in a criminal prosecution in Massachusetts that arose out of the same incident as the Connecticut prosecution. He further asserts that the trial court improperly excluded evidence that a directed verdict of not guilty was entered in the Massachusetts prosecution. The defendant claims that the trial court’s actions constituted an abuse of discretion and violated the defendant’s constitutional rights, under both the state and federal constitutions, to confrontation, to present a defense, and to due process of law. He also posits that this action constituted an improper restriction on his right of cross-examination. We are unpersuaded by these claims.

Certain additional facts are necessary to a proper resolution of this issue. As a result of his alleged conduct in Massachusetts that set in motion the chain of events that led to the defendant’s arrest in Connecticut, the defendant was charged in Massachusetts with certain criminal violations. He was also charged in Massachusetts with certain criminal violations arising out of his alleged acts of prior misconduct. When the case was ready for trial in Massachusetts, the victim declined to testify, and, as a consequence, the trial judge entered findings of not guilty with respect to those charges. The victim never recanted her claims concerning the acts of misconduct, but simply indicated in open court that she did not want to testify.

The state of Connecticut filed a motion in limine seeking to preclude the defendant from introducing any and all evidence of the sexual conduct of the victim, of the proceedings in the Massachusetts District and Superior Courts regarding the charges against this defendant arising out of the victim’s complaints and of the ongoing relationship between the defendant and the victim. Only the trial court’s ruling with respect to the resolution of the Massachusetts prosecution is at issue.

We must again note that in the entirety of the argument addressed to the issue of the motion in limine, the defendant never asserted that the granting of the motion addressed to the issue of the Massachusetts prosecution would implicate his right to confrontation or deny him any form of due process. In short, no claim of a constitutional violation'was addressed to the trial court. The only basis on which the defendant opposed the motion in limine was his claim that the victim’s declination to testify in Massachusetts went to the issue of the victim’s credibility. Thus, he asserted that this information could be used by him for impeachment purposes. We also note that the defendant does not claim that he was not permitted wide latitude to explore fully the factual predicate for the claims of the misconduct that was alleged to have occurred on September 1, 1989, as well as the factual predicate for the charges on trial. His only complaint is that he was precluded from exploring the court proceedings in Massachusetts and the result. We do not agree that the trial court acted improperly in granting the motion in limine and excluding this evidence.

In precluding the defendant from exploring the Massachusetts court proceedings, the trial court did not in any way preclude him from completely exploring the facts that underlay the defendant’s arrest in Massachusetts or the truthfulness of those factual assertions made by the victim.

We also note that the transcript reveals that the defendant conducted a broad cross-examination of the victim that included extensive inquiry as to the events that were alleged to have taken place in Massachusetts in September, 1989. As a result of that cross-examination, the jury heard the victim examined as to past illegal narcotic use, money disputes between her and the defendant and the fact that there was a deteriorating relationship between her and her mother-in-law and sister-in-law. In addition, she admitted that at the time she applied for and secured the Massachusetts restraining order on September 7, 1989, she did not tell the judge in her application that she had been raped by the defendant on September 1,1989. She also admitted that she had not disclosed to the two male investigating officers the fact that she had been raped by the defendant. More important, the evidence that the defendant now asserts was excluded from the jury, was in fact, in large measure, exposed to the jury for use in weighing the victim’s credibility.

“The Confrontation Clause of the Sixth Amendment [to the United States constitution] guarantees the right of an accused in a criminal prosecution to be confronted with witnesses against him.....[T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. . . .While [c]ross-examination is the principal means by which the believability of a witness and the truth [or reliability] of his testimony are tested ... a defendant’s right to cross-examination is not absolute and is subject to reasonable limitation by the [trial] court. . . . The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge. This discretion comes into play, however, only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Milner, 206 Conn. 512, 524-25, 539 A.2d 80 (1988).

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). Here, it is disingenuous for the defendant to suggest that in applying this test an appellate court should conclude that his cross-examination of the victim was unduly restricted since the very evidence that was the subject matter of the motion in limine was brought to the attention of the jury by the victim’s responses to questions put to her on cross-examination.

The defendant further contends in his statement of the issues that the trial court’s action also constituted a violation of his right to present a defense and his right to due process. His argument, however, is limited to his claim that the trial court’s action constituted a denial of his right to confrontation, and he has failed to brief his claim fully with respect to the other two aspects; thus, we deem those two grounds abandoned. State v. Marra, 222 Conn. 506, 536 n.16, 610 A.2d 611 (1992); State v. Rumore, 28 Conn. App. 402, 410-11, 615 A.2d 1054, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992).

Finally, the defendant argues that the court improperly excluded relevant evidence. We do not agree.

As we have already pointed out, the evidence supposedly excluded by the trial court’s ruling on the motion in limine was presented to the jury. Further, the issue of the credibility of the victim was more than adequately covered by the extensive and exhaustive cross-examination to which she was subjected. Thus, any additional evidence as to the withdrawal of the Massachusetts criminal prosecution would be cumulative of the already extensive evidence presented in the defendant’s attempt to impeach the victim’s credibility. The trial court did not abuse its discretion in its relatively minor limitation on the scope of the cross-examination. See State v. Castonguay, 218 Conn. 486, 501, 590 A.2d 901 (1991).

The claim of the defendant is without merit.

Ill

The defendant next asserts that the trial court improperly instructed the jury as to the permissible use of the prior misconduct evidence that had been admitted for a limited purpose. We are unpersuaded.

We first note that the defendant filed no request to charge with respect to the issue of the proper use of other misconduct evidence, nor did he take exception to the cautionary instruction or to that portion of the jury charge that he now attacks. “The [appellate] court shall not be bound to consider error as to the giving of, or failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. ...” Practice Book § 852.

Despite the clear mandate of Practice Book § 852, the defendant nonetheless asserts that the claim is reviewable under the plain error standard of Practice Book § 4185. As an alternative, he claims that if the issue cannot be resolved under the plain error doctrine, he is then entitled to review pursuant to the doctrine of State v. Golding, supra, and State v. Evans, supra. We do not agree.

“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 239-40. “We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).

We conclude that the defendant cannot satisfy the second prong of Golding, since he has failed to demonstrate that his claim alleges a violation of a fundamental constitutional right. State v. Golding, supra. Robing garden variety claims of improper jury instructions concerning evidentiary matters in the majestic garb of constitutional claims does not make such claims constitutional in nature. See State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). We have previously held that the failure of the trial court to give a limiting instruction concerning the use of evidence of prior misconduct is not a matter of constitutional magnitude. State v. Servello, 14 Conn. App. 88, 94-95, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988). Thus, we decline to afford Golding review to this claim.

We also conclude that the charge concerning the use of evidence of prior misconduct is not entitled to plain error review. See id., 95; Practice Book § 4185. “Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. . . . Such review is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988). Having concluded that the charge to the jury of which the defendant now belatedly complains did not implicate his constitutional rights so as to warrant review under State v. Golding, supra, we find that the charge as given did not result in manifest injustice, and, therefore, does not merit plain error review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70b provides in pertinent part: “(a) For the purposes of this section:
      “(1) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or.cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body; and
      “(2) ‘Use of force’ means: (A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.
      “(b) No spouse . . . shall compel the other spouse ... to engage in sexual intercourse by the use of force against such other spouse ... or by the threat of the use of force against such other spouse . . . which reasonably causes such other spouse . . . to fear physical injury. . . .”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       Additional facts will be set forth where they are relevant to the issue raised.

       The transcript of the proceedings sets forth the following with respect to the evidence of prior acts of misconduct:
      “Q. [State’s Attorney] Okay. And, ma’am, directing your attention to September 1 of 1989, do you recall that day?

        “A. Yes, I do.
      “Q. Okay. And could you tell us what occurred on that day between yourself and the defendant?
      “[Defense Counsel]: Objection, Your Honor. Relevancy.

      “[State’s Attorney]: I would claim it, Your Honor. It’s intended to be an act of misconduct on the part of the defendant showing intent, an element of the crimes which are charged here, and particularly the kidnapping and unlawful restraint. It is also corroborating an element of the sexual assault, the use of force or threat of the use of force, an element of that crime. Also to show motive on the part of the defendant. Also showing a pattern of criminal conduct and abusive behavior towards that particular witness, all of which I would submit to the court is permissible under Connecticut law.
      “[The Court]: I’m going to overrule the objection based on the offer of proof. It appears to have relevance to these proceedings.

      “[Defense Counsel]: My exception please.” (Emphasis added.)

       Practice Book § 288 provides in pertinent part: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. . . . An exception to the ruling must be taken in order to make it a ground of appeal.”

       The transcript of the proceedings sets forth the following with respect to the telephone call in issue:
      “[State's Attorney]: Okay. And do you recall one phone call in particular ma’am ?
      “A. Yes, I do.
      “Q. And when did that occur?
      “A. It happened on the Thursday before the incident on October 2.
      “Q. And what happened that night?
      “A. He called and threatened — he called and warned me to look over my shoulder whenever I leave the house, whenever I get into the car, get out of the car, my workplace, anywhere in general that I go.”
      The record also reflects that no objection was made to this testimony nor does the record reflect a motion to strike.

       Because the defendant has not analyzed any of his state constitutional claims separately from their federal counterparts, we exercise our discretion to consider only his federal constitutional claims. State v. Campbell, 224 Conn. 168, 181 n.12, 617 A.2d 889 (1992); State v. Glenn, 30 Conn. App. 783, 785 n.3, 622 A.2d 1024 (1993).

       The motion in limine read in pertinent part: “The State of Connecticut hereby moves . . . that the defendant be precluded from introducing any and all evidence of:
      “1. the sexual conduct of the victim/complainant . . .
      “2. the proceedings held in the District and/or Superior Court in Springfield, Massachusetts, docket number 89-6782-6787, arising out of the arrest of Craig Ulen on or about October 2,1989, by the Springfield Police Department. Said proceedings concern criminal charges filed against the defendant by complaint ... for incidents occurring on October 2, 1989 and September 1, 1989;
      “3. the ongoing relationship between [the victim] and Craig Ulen subsequent to October 2, 1989.”

       The trial court ruled as follows with respect to the motion in limine: “I’m going to grant the motion in limine with respect to paragraph two. Of course, you may cross examine the witness as to the incidents of September first, when it happened, whether it happened the way she said it happened, but as far as the court proceedings, I am going to grant the motion in limine to prohibit questioning about the court proceedings involved in that. ” (Emphasis added.)
      “[Defense Counsel]: May the court note my exception?”

       We also note that despite the ruling of the trial court with respect to the motion in limine, in the course of the cross-examination of the victim, the jury heard testimony, without objection, that the Massachusetts prosecution had been dropped.
      “Q. When did you tell [Sharon Ulen] that, on the second of October?
      “A. No, I told her on the day that we had gone in and I had the charges dropped in Massachusetts. . . .
      “Q. When, in May of 1990?
      “A. I don’t remember the exact date. We went in and had those charges dropped.

      “Q. Have you had any discussion with [Marguerite Ulen] about that September rape having occurred at all other than some time when you went to court?
      “A. Like I said before, the only time I discussed it or made any mention of it was the day we had gone to court in Springfield and had the charges dropped in Massachusetts.” (Emphasis added.)

       See footnote 10, supra.

       Sec footnote 10, supra.

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Centerbank v. Robert G. Gross et al.
    (11632)
    Lavery, Landau and Schaller, Js.
    Argued February 17
    decision released April 13, 1993

      David S. Grossman, for the appellants (named defendant et al.).

      Thomas A. Kaelin, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from a supplemental judgment rendered after a deficiency hearing. The defendants, Robert G. Gross, Carol A. Dellebovi and Donald L. St. John, Sr., assert that the trial court’s factual finding regarding the fair market value of the subject property was incorrect. We affirm the judgment of the trial court.

“When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in the . . . decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, the facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Cupina v. Bernklau, 17 Conn. App. 159, 161, 551 A.2d 37 (1988). Furthermore, “[t]he appellant bears the burden of providing us with a record adequate to review a claimed error. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Citations omitted; internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); Practice Book § 4061.

The defendants’ challenge to the trial court’s factual finding is conspicuous for its reliance solely on the transcript of the trial court’s oral ruling from the bench. The defendants failed to file any of the exhibits, including the appraisals or the transcript of the testimony of the witnesses. A careful reading of the unsigned transcript reveals that even the defendants’ attorney is not certain of the factual basis of the trial court’s decision. In the absence of the basis of the essential factual conclusions furnished by the trial court, either on its own or in response to a motion for articulation, any decision made by us with respect to this claim would be entirely speculative. See State v. Hoeplinger, supra. Therefore, because the defendants have not fulfilled their duty to provide an adequate record for review, their claim must fail. Oakes v. New England Dairies, Inc., 219 Conn. 1, 16, 591 A.2d 1261 (1991).

The judgment is affirmed.

       The defendants have filed an unsigned transcript of the trial court’s decision.


author: O’Connell, J.

text:
    Anna Tessitore v. Emanuele Mario Tessitore
    (10033)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued October 5, 1992
    decision released April 8, 1993

      William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and Giacinto G. Costa, for the appellant (defendant).

      Gary I. Cohen, with whom was Lee Marlow, for the appellee (plaintiff).
   O’Connell, J.

This appeal arises from a marriage dissolution action in which the trial court found that the defendant’s transfer by quitclaim deed to his parents of a two-thirds interest in the parties’ residence constituted a fraudulent conveyance in violation of General Statutes (Rev. to 1991) § 52-552. The defendant appeals from the judgment of the trial court, Ram say, J., claiming that (1) the trial court applied the wrong standard of proof in determining the fraudulent conveyance issue and (2) the evidence was insufficient to support a finding of a fraudulent conveyance. The defendant later amended the appeal to claim further that the trial court, DeMayo, J., improperly awarded the plaintiff $2500 in counsel fees to defend the appeal. Following postdissolution proceedings, the defendant filed a second amendment to his appeal claiming that Judge DeMayo improperly (1) ordered the defendant to make an accounting and (2) modified the dissolution decree to include a motor vehicle allowance without a substantial change in circumstances. We affirm in part and reverse in part.

I

The defendant first claims that the trial court applied the wrong standard of proof in concluding that his transfer by quitclaim deed to his parents of a two-thirds interest in the parties’ residence constituted a fraudulent conveyance. A party who seeks to set aside a con-, veyance as fraudulent bears the burden of proving that the conveyance was made without substantial consideration and that, as a result, the transferor was unable to meet his obligations (constructive fraud) or that the conveyance was made with fraudulent intent in which the transferee participated (actual fraud). Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990). If the fraudulent conveyance claim is joined with a marriage dissolution action, as in the present case, the court is not concerned with whether the transfer renders the transferor insolvent or unable to meet his or her obligations. In such a situation, the issue is whether the conveyance removed property from the marital estate that would otherwise have been subject to claims of equitable distribution. Gaudio v. Gaudio, 23 Conn. App. 287, 308, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). The standard of proof of a fraudulent conveyance is the same on allegations of actual or constructive fraud and, in view of our disposition of this appeal, it is unnecessary for us to analyze the facts to determine which type of fraud, if any, was involved here.

A fraudulent conveyance must be proven by clear and convincing evidence; id., 307; and whether the trial court has applied a lesser standard of proof is reviewable on appeal. Kovarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984). In the present case, the trial court’s corrected memorandum of decision fails to state the standard of proof that it used. Under such circumstances, we assume that the usual civil preponderance of the evidence standard was used. Id.

Despite the failure of the trial court to refer explicitly to the standard of proof, we need not reverse the decision if the memorandum implies that the court applied the proper standard. Patrocinio v. Yalanis, 4 Conn. App. 33, 36, 492 A.2d 215 (1985). Here, the plaintiff attempts to find an implication of the correct standard in an analysis of the dictionary definition of the word obvious. This disingenuous argument is not persuasive. Accordingly, because we are not satisfied that the more exacting, clear and convincing standard was used, we reverse the trial court’s finding and order a new trial.

In view of our disposition of the first issue, we do not reach the sufficiency of the evidence claim.

II

The defendant next claims that the trial court improperly awarded the plaintiff $2500 in counsel fees to defend the appeal. After the defendant’s appeal was filed, the plaintiff moved for an allowance to defend the appeal and was awarded $2500. The defendant amended his appeal to contest this award. Chief among the defendant’s arguments is that the record is devoid of consideration by the court of the statutory criteria for making this award. We do not agree.

The order for counsel fees was entered after a full trial on the merits in which financial affidavits and the required health form were filed. The court had before it the ages, employment information, sources of income and assets of the parties. The trial court has broad discretion in determining whether to award attorney’s fees in a dissolution action. Passamano v. Passamano, 28 Conn. App. 854, 860, 612 A.2d 141, cert. granted, 224 Conn. 904, 615 A.2d 1047 (1992); Graham v. Graham, 25 Conn. App. 41, 50, 592 A.2d 424 (1991). It was not an abuse of discretion for the trial court to award the plaintiff $2500 to defend this appeal.

III

While the appeal as first amended was pending, the trial court, DeMayo, J., granted the plaintiff’s motion for an accounting of the income from certain rental properties that were awarded to the defendant, and later granted her motion to modify alimony and support, ordering the defendant to pay a $100 weekly motor vehicle allowance. The defendant amended his appeal a second time seeking review of these orders.

A

The first claim in the second amendment concerns the order for an accounting. In his brief, the defendant argued that the trial court lacked jurisdiction to order an accounting on the ground that General Statutes §§ 52-401 through 52-405 provide the exclusive procedure for obtaining an accounting. At oral argument, however, the defendant reluctantly conceded that the extremely broad equitable powers of the trial court in dissolution matters probably included jurisdiction to require an accounting here. The defendant then adopted the position that the order was an abuse of discretion. He reasoned that if the plaintiff were to prevail on the defendant’s challenge to the trial court’s judgment, the accounting would have been unnecessary because her interest in the property would have been lost from the date of the decree of dissolution.

In view of our disposition of the defendant’s appeal, the plaintiff will remain a cotenant until a retrial has been completed. We have frequently noted that “[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” (Internal quotation marks omitted.) Sands v. Sands, 188 Conn. 98, 105, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). In the present case, the trial court properly employed its equitable powers to protect the plaintiff’s interest in the property during the appeal.

B

The defendant next claims that the trial court improperly granted the plaintiff’s motion to modify the alimony and support decree to include a weekly motor vehicle allowance because there had been no showing of a substantial change in circumstances. General Statutes § 46b-86 provides that a final order for alimony or support may be modified by the trial court “upon a showing of a substantial change in the circumstances of either party . . . The party seeking a modification bears the burden of demonstrating that such a change exists. Emerick v. Emerick, 28 Conn. App. 794, 802, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992).

Prior to the dissolution, the defendant had been paying a $100 per week pendente lite motor vehicle allowance. This order terminated with the dissolution decree awarding the plaintiff the defendant’s 1985 Chevrolet. See Febbroriello v. Febbroriello, 21 Conn. App. 200, 206, 572 A.2d 1032 (1990) (pendente lite orders cease once a final judgment has been rendered). The practical result of the dissolution decree was to substitute the vehicle for the pendente lite weekly automobile allowance. The appeal stayed the transfer of the vehicle. The effect of the appeal, therefore, was to deprive the plaintiff of transportation. We conclude that this constituted a substantial change in circumstances. The trial court properly granted the plaintiff’s motion to modify alimony and support to include a $100 weekly motor vehicle allowance.

The judgment is reversed as to the financial orders and the division of property and the case is remanded for a new trial. The postjudgment orders are affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 52-552, which was in effect at all times relevant to this appeal, provided: “All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”
      This section was repealed by Public Acts 1991, No. 91-297, § 13. See the Uniform Fraudulent Transfer Act, Public Acts 1991, No. 91-297, §§ 1 through 12.

       Emanuele Tessitore originally was the sole defendant. His parents, Giuseppe and Carmine Tessitore, however, were later impleaded by the plaintiff as third party defendants. For simplicity, we refer to Emanuele Tessitore as the defendant.

       There were two memoranda of decision. The first was issued on January 17,1991. On January 25,1991, the plaintiff filed a motion to open and vacate the judgment primarily on the grounds that the court had mistakenly held that the defendant’s parents were not parties to the action. The defendant filed a motion to correct the judgment. On February 15,1991, the court issued a corrected memorandum of decision recognizing that the defendant’s parents had been made parties to the action on August 3, 1988.

       The trial court used the word obvious in its corrected memorandum as follows: “Secretly, [the defendant] executed a quitclaim deed of two thirds of the property to his parents .... It was not recorded until after the plaintiff filed suit for divorce against the defendant, an obvious effort to deprive the plaintiff of any interest in the property.” (Emphasis added.)

       Practice Book § 4046 provides in pertinent part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause. . . . This section shall not apply to . . . periodic alimony and support orders . . .


author: Lavery, J.

text:
    State of Connecticut v. Aaron Littles
    (10407)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued January 6
    decision released April 20, 1993

      Lisa R. Stevens, deputy assistant public defender, with whom, on the brief, was Joseph G. Bruckmann, public defender, for the appellant (defendant).

      James M. Ralls III, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and James Bernardi, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), and robbery in the second degree in violation of General Statutes § 53a-135 (a) (l). The defendant was found guilty of these crimes as an accessory in accordance with General Statutes § 53a-8. On appeal, the defendant claims that his conviction should be reversed because (1) the evidence was not sufficient for the jury to find him guilty of larceny in the second degree and robbery in the second degree, and (2) his conviction of both robbery in the second degree and larceny in the second degree violated the principle of double jeopardy. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 6,1991, some time before 12:30 a.m., the victim was walking alone on Ely Avenue near the train station in South Norwalk. As the victim was walking, he noticed a car with its lights off near the entrance to the railroad station parking lot.

As the victim walked by the lot entrance, the car backed up and stopped about fifteen yards away from the victim, facing him. Two men got out of the car, walked toward the victim and told him to “come here.” The victim knew that normally no one was in the area at that time of night, and was fearful that he would not be able to get away. The first man asked him if he had any money. The victim replied that he had $3. The man then told the victim to open his coat, and ordered him to take it off slowly and hand it over. After the victim handed over his coat, the man told him to take off his hat, and the victim also handed that to him. The second man then told the victim to take off his necklace and hand it over. The victim complied. Then the first man told the victim to run. As he ran, the victim heard two gunshots behind him.

Police officers saw two men running toward a car that had a driver at the wheel and its lights off. The officers then noticed the victim and saw that he was not wearing a coat on that cold January night. The victim told the police officers that he had just been “stuck up,” and he then pointed toward the moving car. The officers followed the car and stopped it. Three men, including the defendant, who was driving, got out of the vehicle. Although each occupant was wearing a coat, there was a fourth coat on the floor near the backseat. None of the suspects gave a definite answer as to who owned the coat. An inventory search of the vehicle revealed the victim’s hat in the back and the necklace in the ashtray.

Although the defendant did not testify, his oral statement at the police department was recounted for the jury. The defendant claimed that he was at the train station "looking for girls” when his friends got out to go to the bathroom. A short time later, they came running back to the car and he drove away. The defendant claimed to be unaware that a robbery had occurred.

I

The defendant first claims that the evidence presented at trial was insufficient to support his conviction for larceny in the second degree. Specifically, the defendant asserts that the state did not prove beyond a reasonable doubt that he had committed a larceny "from the person of another” as required by the larceny statute, and that the state failed to prove that he actively participated in the larceny. We disagree.

“When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part test. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Allen, 28 Conn. App. 81, 88, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992); State v. Simino, 200 Conn. 113, 116, 509 A.2d 1039 (1986). Evidence is sufficient to sustain a verdict if the jury could reasonably have concluded, on the facts established and the reasonable inferences drawn therefrom, that the defendant’s guilt was proven beyond a reasonable doubt. State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).

We consider first the defendant’s claim that the state failed to prove that a larceny occurred “from the person of another.” Conviction for second degree larceny under General Statutes § 53a-123 (a) (3) requires that “property, regardless of its nature or value is taken from the person of another.”

To support his first claim, the defendant cites a line of cases holding that, in order for larceny in the second degree to have occurred, there had to have been a trespass to the person of the victim. In State v. Crowe, 174 Conn. 129, 134, 384 A.2d 340 (1977), our Supreme Court, after noting a divergence among authorities on what constitutes a taking from the person, held: “In our view, larceny from the person requires an actual trespass to the person of the victim. Because of the trespass to the person, the offense is a serious crime in itself so that the value of the property stolen does not enter into the magnitude of the crime. On the other hand, the removal of property from the presence or control of the victim lacks such a trespass and is insufficient to constitute larceny from the person. We are, therefore, in accord with the rule that larceny from the person is a separate and distinct offense from that of simple larceny.” In Crowe, the defendants forced a service station attendant, at gunpoint, into a backroom of the station, and then stole a money bag and the attendant’s car. Our Supreme Court reasoned that larceny in the second degree had not occurred because the money and car keys were not taken from the person of the attendant. Likewise, in In re Juvenile Appeal (84-4), 1 Conn. App. 642, 474 A.2d 485 (1984), we held that when a radio was taken from near the victim while the victim was held at knifepoint, there was no taking from the person as required by the statute.

The facts here clearly distinguish this case from State v. Crowe, supra, and In re Juvenile Appeal (84-4), supra. In this case, the victim was walking near a dark parking lot at night when he encountered two men who asked him if he had any money. The men then asked the victim to hand over certain personal items. Although the defendant’s companions did not physically remove the items from the victim’s person, they compelled him, by implicit threat, to hand them over. The victim was wearing the items just prior to his handing them over. The items did not come from the area near the victim, but from his person. Since the stolen property was taken from the person of the victim, the statutory requirement was met.

The state presented ample evidence at trial to demonstrate that the victim handed over items from his person when he felt compelled to do so by the defendant’s companions. The jury therefore could reasonably have found the defendant guilty beyond a reasonable doubt of larceny in the second degree.

As part of his first claim, the defendant further asserts that the state did not present sufficient evidence of accessorial liability with regard to the larceny. General Statutes § 53a-8 provides in relevant part that “[a] person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . as if he were the principal offender.” It is necessary that a defendant have the mental state required for the commission of a crime while intentionally aiding another. “Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, consummate it.” State v. Crump, 201 Conn. 489, 494, 518 A.2d 378 (1986). In the present case, there was sufficient evidence, together with the reasonable inferences drawn therefrom, for the jury to find that the defendant was more than a mere inactive companion.

The evidence presented at trial showed that the defendant drove a car in which his companions were passengers to a deserted railroad station parking lot at approximately 12:30 a.m. When the victim first saw the vehicle, the defendant was behind the wheel and it was parked with its lights off. As the victim neared the lot entrance, the defendant backed up the car and parked facing the victim who was fifteen yards away. The defendant’s two companions got out of the vehicle, approached the victim, and stole the victim’s coat, hat and necklace. The police officers testified that they saw two men returning to the vehicle. They pursued the vehicle and stopped it. The defendant was driving. The defendant’s control of the car before, during and after the holdup is consistent with an inference that the defendant was acting as wheelman, and was more than a passive observer of the criminal scene. See State v. Grant, 219 Conn. 596, 594 A.2d 459 (1991); State v. Findlay, 198 Conn. 328, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Vincent, 194 Conn. 198, 479 A.2d 237 (1984); State v. Maltese, 189 Conn. 337, 455 A.2d 1326 (1983); State v. Castillo, 11 Conn. App. 621, 528 A.2d 860, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987). The defendant’s claim that there was insufficient evidence that he actively participated in the larceny therefore must fail.

II

The defendant’s second claim is that the evidence was insufficient to support a conviction for robbery in the second degree under General Statutes § 53a-135 (a) (1). Robbery occurs when a person, in the course of committing a larceny, uses or threatens the immediate use of physical force upon the victim. General Statutes § 53a-133. The defendant contends that there was insufficient evidence of a threat to constitute robbery. While there is no definition of the word “threaten” in the statutes, General Statutes § 1-1 (a) provides that the commonly approved usage of the language should control. State v. Newton, 8 Conn. App. 528, 541, 513 A.2d 1261 (1986). A threat is “1. an indication of something impending and usually undesirable or unpleasant ... 2. something that by its very nature or relation to another threatens the welfare of the latter.” Webster, Third New International Dictionary; see State v. Newton, supra. A threat has also been defined as “any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action alone constitutes consent.” Black’s Law Dictionary (4th Ed.); Hadley v. State, 575 So. 2d 145, 156 (Ala. Cr. App. 1991); State v. Hamre, 247 Or. 359, 362, 429 P.2d 804 (1967). This definition does not require that a threat be explicitly uttered.

In the present case, there was an implied threat. An implied threat is as effective as a stated threat, especially when the apparent ability to carry out the threat is overwhelming. State v. Rusk, 289 Md. 230, 246, 424 A.2d 720 (1981). The actions of the defendant and his companions constituted an implied threat of force. The defendant backed up the car into a position where he could view the events and from where his companions could approach the victim. At night, in a deserted area, the defendant’s companions walked toward the victim and told him to “come here.” The victim was then ordered to take off and hand over his coat, hat and necklace. The victim was then told to run. All of this evidence is sufficient to show that the defendant implicitly threatened the immediate use of physical force. The evidence, therefore, was sufficient to sustain a conviction of robbery in the second degree.

Just as the defendant’s claim of insufficient evidence that he did not actively participate in the larceny failed, so must this claim fail as it applies to the robbery. The prerequisites to accessorial liability are equally applicable to the charge of larceny in the second degree, and robbery in the second degree. Because there was sufficient evidence for the jury to find that the defendant was more than a mere inactively or passively acquiescing companion in the act of larceny, which was part of the same underlying chain of events as the robbery, the defendant’s claim of insufficient evidence as to the robbery must also fail.

Ill

The defendant next argues that, as charged, second degree larceny was a lesser included offense of second degree robbery, so that his conviction for both constitutes double jeopardy. We find no such violation of the defendant’s double jeopardy rights.

The double jeopardy prohibition of the fifth amendment of the United States constitution applies to the states through the fourteenth amendment to the United States constitution. State v. McCall, 187 Conn. 73, 89, 444 A.2d 896 (1982). Double jeopardy analysis in the context of a single trial is a two step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense, or, in other words, whether the proof of a violation of one statute necessarily requires proof of a violation of the other. State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986). As to whether the crimes constitute the same offense, the test to be applied “is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

In making his double jeopardy claim, the defendant directs us to the substitute information. That document in its first paragraph charges that the defendant committed robbery in the second degree in that he “stole certain property from [the victim] and was aided by another person actually present, in violation of section 53a-135 (a) (1) and 53a-133 of the Connecticut General Statutes.” In the second paragraph, the substitute information alleges that the defendant committed larceny in the second degree when “with intent to deprive another ... of his property or to appropriate the same to himself [or] a third person, wrongfully took, from the person of [the victim] such property in violation of section 53a-119 and 53a-123 (a) (3) of the Connecticut General Statutes.” The defendant argues that these two counts allege the same crime because it would have been impossible for the defendant to have “stolen certain property from [the victim]” without having first taken “from the person of [the victim] such property.” Our prior analysis discusses the important requirement of larceny in the second degree that property be taken “from the person of another,” and not merely stolen. We have concluded in part I that the evidence was sufficient to show that property was taken from the person of the victim in this case. The plain language of the substitute information, therefore, clearly alleges two separate crimes.

The defendant further argues that if we adopt the view that the facts recited earlier regarding the larceny did in fact constitute larceny in the second degree, second degree robbery and second degree larceny would be indistinguishable crimes, and we would have to find double jeopardy. We disagree because the state had to prove different elements in order to convict the defendant of both second degree larceny and second degree robbery.

A review of the relevant statutes indicates that the crimes of larceny in the second degree and robbery in the second degree require proof of distinct elements. To convict the defendant of second degree larceny, the state had to prove that “the property, regardless of its nature or value, is taken from the person of another.” General Statutes § 53a-123 (a) (3); see footnote 1, supra. The elements of second degree larceny, therefore, are (1) property and (2) taken from the person of another. We concluded in part I that the actions taken by the defendant’s companions constituted a taking of property from the person of another. Conviction for robbery in the second degree requires that the defendant, while committing a robbery “is aided by another person actually present . . . .” General Statutes § 53a-135 (a) (1); see footnote 2, supra. A person commits robbery when, while committing a larceny he “uses or threatens the immediate use of physical force upon another person for the purpose of . . . (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133; see footnote 2, supra. The elements of second degree robbery therefore are (1) a larceny, (2) a threat that (3) compels the delivering up of the property (4) while aided by another person actually present. This court has held that larceny in the second degree under § 53a-123 (a) (3) is a separate offense from that of robbery because a taking from a victim’s person as required for larceny in the second degree under subdivision (3) is not required to satisfy the larceny component of a robbery. State v. Hudson, 14 Conn. App. 472, 476, 541 A.2d 539 (1988). Robbery in the second degree under § 53a-135 (a) (1), on the other hand, requires both a threat and assistance by another person actually present, neither of which is required for second degree larceny. Thus, each statute requires proof of facts that the other does not and the defendant’s double jeopardy claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-123 (a) provides in pertinent part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”
      General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

       General Statutes § 53a-135 provides in pertinent part: “(a) A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present
      General Statutes § 53a-133 provides in pertinent part: “robbery defined. A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-8 (a) provides: ‘ ‘A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”


author: Foti, J.

text:
    State of Connecticut v. Richard Weber
    (11502)
    Dupont, C. J., Daly and Foti, Js.

      Argued February 8
    decision released April 20, 1993

      Thomas Ullmann, public defender, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Turcotte, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (3), as a lesser included offense of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that the trial court improperly (1) ruled that certain evidence was inadmissible, and (2) failed to instruct as he requested on the defense of property. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. On March 17, 1988, David Mason, a tow truck operator employed by Towne Auto in New Haven, was working with a coworker, Paul Goulet, towing illegally parked vehicles. The company had ten accounts to tow vehicles that were improperly parked blocking garage doors. Sometime after 11 p.m., Mason drove his tow truck into the rear parking lot at 90-98 Norton Street, one of Towne Auto’s accounts. He had been called three times about a black van owned by the defendant that was parked in a no parking area. As Mason pulled into the driveway, he saw a black van parked on the left side of the driveway, blocking three garage doors. There was a no parking sign on each of the garages and a similar sign on the opposite side of the driveway. With the help of Goulet, who was there with his own tow truck, Mason hooked the van onto his tow truck. The van was suspended from the tow truck when the defendant appeared, wearing only boxer shorts. When asked by the defendant what he was doing, Mason replied that he was towing the van because it was blocking three garage doors. The defendant then shouted, “You ain’t taking the fucking truck out of here” and went back inside the building.

Because it was difficult to turn the truck in the narrow driveway, Mason had to get out of the cab of his vehicle and walk around the wrecker to check the area. While out of the vehicle, Mason saw the defendant exit the building holding a rifle or shotgun, which he pointed at Mason while shouting profanities. Mason grabbed the weapon and threw it towards Goulet; then Mason and the defendant got into a fistfight, which resulted in both going to the ground. The fight broke up after several minutes, and Mason climbed back into his truck and the defendant went back inside the building. After driving the truck forward a few more feet, Mason again found it necessary to exit the cab to determine if he had clearance. The defendant appeared a third time and said, “You, you driving the truck.” As Mason turned, the defendant, who was holding a handgun, fired a shot, hitting Mason on the left side of his chest. The defendant then ran back into the building. Mason fell to the ground and yelled to Goulet for help. Mason could not get up and Goulet put him inside his tow truck. Police officers and an ambulance arrived shortly thereafter. As a result of the gunshot wound, Mason’s spinal cord was injured, leaving him paraplegic.

After the shooting, the defendant discarded the pistol, a .38 caliber for which he did not have a permit, into a nearby body of water. The defendant turned himself in to the police five days later.

I

The defendant first claims that the trial court improperly excluded evidence of Mason’s violent character, which he offered on the issue of initial aggressor in connection with his claim of self-defense. Specifically, the defendant argues that the trial court should have admitted evidence of Mason’s criminal convictions and the nature of those underlying convictions to show Mason’s violent disposition. The defendant further argues that he should have been allowed to cross-examine Mason as to specific acts of violence that did not result in conviction, also to show Mason’s propensity for violence. We conclude that the trial court properly excluded this evidence.

Before the introduction of evidence, both the defendant and the state filed motions addressing the issue of the victim’s propensity for violence and the issue of initial aggressor in a self-defense case. The defendant filed a motion for supplemental discovery, seeking information about Mason’s convictions, arrests and misconduct history involving acts of violence or use of a weapon. The state filed a motion in limine, seeking to exclude any evidence attempting to show Mason’s violent character as a means of establishing that he was the initial aggressor. The trial court ruled that while evidence of a victim’s propensity for violence is admissible in an assault case when self-defense has been raised, the defendant had not raised such a claim. The court therefore denied the defendant’s motion and granted the state’s motion in limine.

Following the defendant’s presentation of witnesses after the state’s case-in-chief, the defendant made an offer of proof as to ten separate incidents to determine whether any of Mason’s convictions or acts of misconduct involving violence would be admissible on the issue of initial aggressor. The ten incidents, in chronological order, and the court’s ruling on each are as follows:

(1) July, 1978 breach of peace conviction, stemming from Mason’s verbal abuse of and threat of physical harm to a neighbor. The court ruled that the incident, having occurred almost ten years earlier, was too remote in time and involved an incident that was not sufficiently similar in nature to the factual allegations in the present case. While the court agreed with the defendant that an incident does not have to present an identical fact pattern to be admissible, the court ruled that this conviction lacked sufficient probative value to be admissible.

(2) December, 1978 conviction for carrying a dangerous weapon, involving an incident in which Mason used a gun during a dispute. The court ruled that evidence of the arrest lacked sufficient probative value, because it arose out of a domestic dispute that occurred more than nine years before the present incident. The court also disallowed the evidence because it would divert the jury from the issues in the case, unduly delay the case, and bring in collateral matters. The court rejected the defendant’s claim that introducing this evidence would not violate the concerns set forth in State v. Miranda, 176 Conn. 107, 109-10, 405 A.2d 622 (1978).

(3) May, 1979 conviction for breach of peace, involving a domestic dispute in which Mason drove his vehicle over another person’s lawn. The court refused to admit this evidence because the incident was too remote, having occurred almost nine years before the incident at issue, and because the nature of the violence was not sufficiently similar to the violence in this case. There also appeared to be a question as to how the altercation began, specifically, whether the witness or the complainant was the instigator. The court noted that while the defendant was attempting to demonstrate that Mason "is not a very nice man . . . that is not the issue.”

(4) July, 1979 disorderly conduct conviction, for which the court described the charge as involving Mason’s trying to “beat some gas station out of $5 worth of gas and he yelled a few obscenities ... as he tried to drive away.” Here, again, the court noted that the incident might demonstrate that Mason was a “real wise guy” but that this was not sufficient to demonstrate Mason’s violent character. The court also pointed out that the incident had occurred almost nine years earlier and was not sufficiently similar to have any probative value.

(5) October, 1980 felony conviction for reckless burning, involving Mason’s burning of an automobile during a domestic dispute with his wife. While the defendant was permitted to use this felony conviction for impeachment purposes, the court would not permit the defendant to inquire into the underlying facts to demonstrate Mason’s propensity for violence. The court ruled that the conviction was too remote and that the nature of the violence was unlike that in the present case, thereby depriving the evidence of sufficient probative value.

(6) and (7) Two January, 1982 convictions for conspiracy to commit arson, involving Mason’s hiring someone to burn four vehicles and his torching the house of a person who Mason claimed owed him money. While the defendant had been permitted to use these prior convictions for impeachment purposes, the court again noted that unless there was some similarity between the facts of these convictions and those of the alleged aggression in the case before the jury, they could not be admitted. The court observed that neither incident bore this similarity. With respect to the first conviction, the court expressed concern that the evidence would confuse the jury. The state argued that the nature of the first incident was really fraud, that Mason was attempting to get insurance proceeds by having his wife’s car destroyed, that the conviction was remote in time (over six years ago) and that the element of violence was completely different from that in the present incident. The court agreed and disallowed the evidence.

With respect to the second conviction, the defendant pointed out that Mason was involved in setting fire to a porch. The court noted, however, that to be admissible there had to be some assaultive behavior on another person sufficiently similar to that in the present case. The court considered the nature of the crime and its remoteness in time and found that the evidence lacked sufficient probative value to warrant admission. The court further noted its concern with confusing the jury and diverting the jury from the issues in this case.

(8) February, 1986 breach of peace conviction, involving Mason’s throwing snowballs at the driver of another car. The court found that this was not sufficiently probative on the trait of violence.

(9) and (10) Two incidents, one in April, 1989, and one in December, 1989, involving acts not resulting in conviction. The court ruled that evidence of these incidents was inadmissible because propensity for violence may not be proved by specific acts of misconduct unless those acts result in conviction.

“The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). The determination of remoteness, like relevancy, is left to the trial court’s sound discretion. State v. Payne, 219 Conn. 93, 112, 591 A.2d 1246 (1991); State v. Maldonado, 193 Conn. 350, 365, 478 A.2d 581 (1984). “The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done.” State v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992).

The defendant acknowledges that he has assumed a heavy burden in seeking to reverse the exercise of judicial discretion. With respect to his attempt to introduce the underlying facts of each conviction to demonstrate Mason’s propensity for violence, he relies heavily on State v. Miranda, supra. We have recently stated, however, that “[n]othing in that holding of the Supreme Court permits the view that this allows an exploration of the factual predicate for the convictions. While the victim’s violent character may be established by proof of his convictions of crimes of violence; [State v. Miranda, supra, 114]; it may not be proven by evidence of other specific acts. State v. Webley, 17 Conn. App. 200, 206, 551 A.2d 428 (1988).” State v. Maxwell, 29 Conn. App. 704, 713-14, 618 A.2d 43 (1992).

While specific convictions for violent acts may be admissible, a defendant may not “introduce any and all convictions of crimes involving violence, no matter how petty, how remote in time, or how dissimilar in their nature to the facts of the alleged aggression. In each case, the probative value of the evidence of certain convictions rests in the sound discretion of the trial court.” State v. Miranda, supra.

Our review of the.record convinces us that the trial court properly excluded evidence of Mason’s prior convictions that were remote in time and dissimilar in nature to the alleged aggression in this case. The court also properly excluded as irrelevant Mason’s misdemeanor convictions that were not sufficiently probative of a violent trait. While the defendant was permitted to use evidence of three unnamed felony convictions to impeach Mason, the court, in a reasonable exercise of discretion, prohibited the defendant from inquiring into the underlying facts of these convictions. The court properly determined that the convictions were too remote and not sufficiently probative of violence because they were not similar to the incident in this case.

The defendant argues that he should have been allowed to introduce evidence concerning details of the two incidents that did not result in Mason’s conviction as specific acts of misconduct tending to show Mason’s propensity for violence. Specific acts of violence, other than convictions, may not be introduced to show a victim’s violent character because such evidence “ ‘has the potential to surprise, to arouse prejudice, to multiply the issues and confuse the jury, and to prolong the trial.’ State v. Miranda, supra, 112 . . . "State v. Smith, 222 Conn. 1, 18, 608 A.2d 63, cert. denied, U.S. , 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992).

The defendant contends that sound policy reasons exist for allowing cross-examination of a victim as to specific acts of violence to show the victim’s propensity for aggression. We note that the alleged acts occurred the year after Mason had been paralyzed. Even if Mason’s propensity for violence and aggression could be demonstrated by those acts, it is highly speculative whether Mason had always had those traits or had acquired them as a result of his permanent injuries caused by the defendant.

The defendant argues that the trial court’s refusal to allow him to introduce Mason’s prior crimes prevented him from establishing a proper defense. This evidence of Mason’s violent nature was necessary, he claims, for the jury to determine whether he or Mason had been the initial aggressor. A victim’s violent character can be proved in more than one way. It can be proved by reputation testimony, by opinion testimony, or by relevant evidence of his convictions for crimes of violence. State v. Miranda, supra, 114. We cannot conclude that the court abused its discretion in prohibiting the defendant from admitting the proffered evidence or from cross-examining Mason regarding prior specific acts of violence not resulting in conviction.

II

The defendant next claims that the trial court improperly failed to instruct the jury, as he requested, on the defense of property pursuant to General Statutes §§ 53a-21 and 53a-16.

In reviewing a claim that the trial court failed to charge as requested, we adopt the version of the facts most favorable to the defendant that the evidence would reasonably support. State v. Lewis, 220 Conn. 602, 619, 600 A.2d 1330 (1991). A request to charge that is relevant to the issues of the case and that is an accurate statement of the law must be given. State v. Nesmith, 220 Conn. 628, 632, 600 A.2d 780 (1991). Moreover, a defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible. State v. Havican, 213 Conn. 593, 597, 569 A.2d 1089 (1990).

Justification under General Statutes § 53a-16 is a defense permitting the use of physical force in defense of property, as described in General Statutes § 53a-21. Section 53a-21 provides that under certain circumstances, physical force may be used to prevent an attempted larceny involving property or to regain property that was acquired by larceny. That section also provides, however, that a person “may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19.” (Emphasis added.) The facts clearly did not permit the defendant reasonably to believe that Mason was engaged in an attempted larceny of the defendant’s van. Even if such an argument could be made, the defendant was not, under § 53a-21, permitted to use “deadly physical force.”

The lack of justification is an element of a criminal prosecution on which the state bears the burden of proof. State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985). Before a self-defense instruction is warranted, however, “[a] defendant bears the initial burden of producing sufficient evidence to inject self-defense into the case.” State v. Bailey, 209 Conn. 322, 335, 551 A.2d 1206 (1988).

“The justification defense allowed under General Statutes § 53a-21 is expressly limited to the use of reasonable physical force in the defense of property. By its limiting proviso, excluded from the defendant’s request to charge, one may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19. Under General Statutes § 53a-3 (5), [djeadly physical force means physical force which can be reasonably expected to cause death or serious physical injury.” (Emphasis in original; internal quotation marks omitted.) State v. Woolfolk, 8 Conn. App. 667, 672A, 517 A.2d 252 (1986), cert. denied, 202 Conn. 802, 519 A.2d 1207 (1987). Section 53a-21 thus precludes the use of deadly physical force in the defense or retrieval of personal property.

The defendant argues that because Mason was taking the defendant’s van, the jury was entitled to know that the defendant was entitled to use reasonable force to prevent the theft of the van. He further argues that the fact that “Weber’s use of reasonable physical force in protecting his property escalated to an attack on his person at knife-point by Mason is anticipated by the defense of property statute's reference to the defense of person provision should deadly force come into play.” The defendant contends that he presented substantial evidence justifying the defendant’s use of reasonable physical force in protecting his van. We disagree.

Mason was driving a tow truck; his coworker Goulet was driving another tow truck. Mason’s vehicle had the name and telephone number of Towne Auto on it. Mason wore a jacket clearly showing the company’s insignia. The defendant went back inside his apartment twice before coming out with a handgun. At no time did the defendant call the police. Mason clearly told him that the van was being towed because it blocked three bays. Under all of the circumstances, the defendant could not reasonably have believed that Mason was engaging in a larceny or an unlawful trespass by towing the van.

The trial court charged extensively on self-defense. The defendant’s theory of defense was that he was defending himself, not the van, when he used the revolver. The court did not improperly refuse to give an instruction on defense of property.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant attempted to show that Mason had been the initial aggressor in the incident. He claimed that he told Mason that the rifle (or shotgun) was not loaded, but that Mason, who the defendant alleged was intoxicated at the time, came at him with a lockblade folding knife. The defendant claimed that Mason poked and slashed at him with the knife as the two fought. The defendant claimed that he then retreated to his apartment and returned with his handgun; as Mason approached him, he pulled the weapon from his jacket pocket and fired one shot toward Mason. The defendant claimed that he was not sure whether Mason had the knife as he approached.

       General Statutes § 53a-19 provides in pertinent part: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. . . .
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor . . . .”

       The court had earlier ruled that the defendant could introduce evidence of Mason’s conviction of three felonies and the dates of conviction without referring to the names of the offenses, as part of Mason’s prior criminal record, for impeachment purposes.

       General Statutes § 53a-21 provides: “A person is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent an attempt by such other person to commit larceny or criminal mischief involving property, or when and to the extent he reasonably believes such to be necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force; but he may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19.”
      General Statutes § 53a-16 provides: “In any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense.”

       The defendant recited the following facts in support of his request for jury instructions on defense of property: “The defendant, by his testimony, has raised the defense of justification by the defense of property. Mr. Weber testified that he owned the 1978 Chevy van that was about to be towed by Mr. Mason and Mr. Goulet. In addition he testified that items of personal property such as his tools, a miniature T.V. and a radio cassette deck were located inside the van. Mr. Weber thought that Mr. Mason and/or Mr. Goulet were trying to steal certain of his possessions and these accusations were even heard by witness Maureen O’Brien. A couple of minutes prior to the shooting, Mr. Weber testified to being stabbed and slashed at knifepoint by Mr. Mason. At the time Mr. Weber pulled the revolver out of his pocket, he testified that Mr. Mason was coming toward him and that he believed that Mr. Mason was coming toward him and that he believed that Mr. Mason was about to use deadly physical force and/or about to inflict great bodily harm.”

       The court instructed as follows: “Now the law of self defense is as follows: Mr. Weber was justified in using reasonable physical force upon Mr. Mason to defend himself from what he reasonably believed to be the eminent use of physical force, and he was entitled to use such degree of force which he reasonably believed to be necessary for that purpose. Except that Mr. Weber was not permitted to use deadly physical force unless he reasonably believed that Mr. Mason was, one, using or about to use deadly physical force; or two, inflicting or about to inflict great bodily harm.
      “Notwithstanding that, Mr. Weber would not have been justified in using physical force if you are convinced that the state has proved beyond a reasonable doubt that, one, with intent to cause serious physical injury to Mr. Mason, Mr. Weber provoked the use of physical force upon him.
      “Or two, Mr. Weber was the initial aggressor except that his use of physical force on Mr. Mason was justifiable if he withdrew from the encounter and effectively communicated to Mr. Mason his intent to do so. Nevertheless, Mr. Mason continued or threatened the use of physical force.
      “Further, Mr. Weber would not have been justified in using deadly physical force if you are convinced that the state proved beyond a reasonable doubt that Mr. Weber knew he could have avoided the necessity of using force with complete safety by retreating.
      “Deadly physical force is defined as physical force which can be reasonably expected to cause death or serious physical injury. The reasonableness of the force used by Mr. Mason in this case, I am sorry, used by Mr. Weber in this case must be judged objectively in light of all the circumstances which were existing at the rear of 90-98 Norton Street just about 11:30 p.m. on the date in question, and judged subjectively in light of Mr. Weber’s belief at that time.
      “You should bear in mind that a person is not entitled to use greater force than is necessary to withhold the attack against him. However, when you evaluate Mr. Weber’s conduct you should bear in mind the situation in which he found himself. A person who reasonably believes that he is fighting for his life may properly use more force than would appear necessary to a detached observer of the event.
      “A reasonable belief does not mean that Mr. Weber must be without fault. His belief could have been mistaken or inaccurate yet reasonable given the fast happening circumstances and the need to make a decision and react. The key word is reasonable.
      “First of all, the defendant must have a reasonable belief that he is faced with the imminent use of physical force upon him. A reasonable belief is one which a reasonable prudent person in the same circumstances would have. It is not an irrational belief, nor is it a belief which is not justified by all the circumstances existing then and there.
      “You must view the situation from the perspective of the defendant. However, you must determine whether the defendant’s belief ultimately was reasonable.
      "Secondly, acting with the reasonable belief, the amount and degree of force which he uses must be reasonable. It must be that degree of force which a reasonable person in the same circumstances would use and no more. If the degree of force used is excessive or unreasonable in view of all the circumstances, the defendant is not entitled to the defense of self defense.
      “Finally, a person is not justified in using physical force if intending to cause physical injury to the other person he provokes the use of physical force by that other person or if he is the initial aggressor. That is, the first one to use physical force. Whether the defendant’s belief was reasonable, whether the degree of force he used was reasonable, and whether he provoked the use of force or was the aggressor are questions of fact for you to determine from the evidence.
      “As I mentioned earlier, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating. The law stresses that the defensive measures must never be retaliatory. The force must be a defensive force not a reprisal or a punishment force. The law says that if it is feasible or possible, the person attacked should retreat and get away from there before standing his ground and returning force with force.
      “And the conclusion on the matter of self defense, you must consider whether the defendant took the proper defensive measure to protect himself. Did he retreat? Did he take retaliatory measures or some stronger measures not responsible in light of the attack.”

       The defendant took an exception as follows:
      “Mr. Ullmann: My final exception is to failure to instruct on the defense of property, the defense of premises, only in regard to the fact that when Your Honor instructed pursuant to my request about the reasonable force to be used, and again you [were] talking about reasonable, the jury does not have an understanding that Mr. Weber could have reacted with reasonable physical force in regard to those other things such as the defense of premises and the defense of property, not just physical injury. And that’s why I think that those two items to be presented to the jury were important. In other words, Your Honor gave them one reason.
      “The Court: Mr. Ullmann, the ultimate question on a self-defense claim is: Was he justified in shooting Mr. Mason?
      “Mr. Ullmann: I understand.
      “The Court: That’s what we are talking about. He would not have been justified in shooting if he was defending his premises other than perhaps his home. I am not sure about that. But defense of premises or defense of property from someone who is taking his property, let’s assume there is evidence that there was some clue Mr. Mason was stealing his van, he would not be justified in taking out a gun and shooting him. What’s the purpose of getting into defense of property or premises?
      “Mr. Ullmann: Because the second altercation if Mr. Weber is justified in using physical force there, that circumstance is used to view his justification later on. And the jury under this instruction only believes that he is entitled to use reasonable physical force if he was in fear of some physical injury himself.”