State v. Brown

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 STATE v. BROWN—DISSENT

SHELDON, J., dissenting. The majority has rejected
the claim by the defendant, Christopher Brown, that
the trial court erred in admitting evidence of his prior
involvement with his alleged accomplice and coconspir-
ator, Frederick Johansen, in committing certain Litch-
field car burglaries to prove his motive and intent to
commit the offenses charged against him in this case on
two related grounds: first, that the challenged evidence
tended logically to prove his motive and intent to com-
mit the charged offenses; and second, that the probative
value of such evidence on those issues outweighed its
prejudicial effect, as measured by the risk that it would
cause his jury to find him guilty on a basis other than
his proven guilt. Because I cannot accept either of these
conclusions, I respectfully dissent.
The majority sets forth the correct rules and princi-
ples under which the defendant’s claim must be ana-
lyzed. ‘‘As a general rule, evidence of guilt of other
crimes is inadmissible to prove that a defendant is guilty
of the crime charged against him. State v. Harris, 147
Conn. 589, 599, 164 A.2d 399 [1960]. State v. Fredericks,
149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick,
Evidence (2d Ed. 1972) § 190; 1 Wharton, Criminal Evi-
dence (13th Ed.) § 170. The rationale of this rule is to
guard against its use merely to show an evil disposition
of an accused, and especially the predisposition to com-
mit the crime with which he is now charged. See State
v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983);
State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167
(1982); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d
382 (1982); State v. Barlow, 177 Conn. 391, 393, 418
A.2d 46 (1979); 1 Wigmore, Evidence (3d Ed.) §§ 215–18.
. . . State v. Braman, 191 Conn. 670, 675, 469 A.2d 760
(1983). The fact that such evidence tends to prove the
commission of other crimes by an accused does not
render it inadmissible if it is otherwise relevant and
material. Id.; State v. Ibraimov, supra, 352; State v.
Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976); State
v. Marshall, 166 Conn. 593, 600, 353 A.2d 756 (1974).
Such evidence is admissible for other purposes, such
as to show intent, an element in the crime, identity,
malice, motive or a system of criminal activity. State
v. Ibraimov, supra, 352; State v. Falby, 187 Conn. 6, 23,
444 A.2d 213 (1982); State v. Brown, 169 Conn. 692,
701, 364 A.2d 186 (1975).
‘‘Our analysis of whether evidence of the uncharged
misconduct is admissible is two-pronged. First, the evi-
dence must be relevant and material to at least one of
the circumstances encompassed by the exceptions to
the propensity rule. Second, the probative value of such
evidence must outweigh the prejudicial effect of the
other crimes evidence. State v. Braman, supra, 191
Conn. 676; State v. Howard, supra, 187 Conn. 685; State
v. Ibraimov, supra, 187 Conn. 352; State v. Onofrio,
179 Conn. 23, 28–29, 425 A.2d 560 (1979). The primary
responsibility for conducting the prejudicial-probative
balancing test rests with the trial court, and its conclu-
sion will be disturbed only for a manifest abuse of
discretion. State v. Morowitz, 200 Conn. 440, 446, 512
A.2d 175 (1986); State v. Mandrell, 199 Conn. 146, 152,
506 A.2d 100 (1986); State v. Shindell, 195 Conn. 128,
136, 486 A.2d 637 (1985); State v. Johnson, 190 Conn.
541, 548–49, 461 A.2d 981 (1983); State v. Tucker, 181
Conn. 406, 416, 435 A.2d 986 (1980); 1 F. Wharton, Crimi-
nal Evidence (13th Ed.1972) § 241. [W]e will indulge in
every reasonable presumption in favor of the trial
court’s ruling. State v. Mooney, [218 Conn. 85, 131, 588
A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116
L. Ed. 2d 270 (1991)]; State v. Sierra, 213 Conn. 422,
435, 568 A.2d 448 (1990); State v. Braman, supra, [677];
State v. Johnson, supra, 549; State v. Howard, supra,
[685]; State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107
(1980).’’ (Internal quotation marks omitted.) State v.
Figueroa, 235 Conn. 145, 161–63, 665 A.2d 63 (1995).
Where I part company with the majority is in its
application of the foregoing rules and principles to the
challenged evidence of the Litchfield car burglaries, as
admitted by the trial court to prove the defendant’s
motive and intent to commit the offenses charged
against him in this case. Although evidence of certain
types of prior misconduct is admissible to prove both
motive and intent, motive and intent are distinct and
different exceptions to the general rule prohibiting the
use of prior misconduct evidence against a criminal
defendant. Therefore, the application of these excep-
tions to the challenged evidence must be separately con-
sidered.
Proof of motive is a well established exception to
the general rule prohibiting the admission of prior mis-
conduct evidence against a criminal defendant when
the probative value of such evidence on that issue out-
weighs its prejudicial effect. Although proof of motive
is not typically required to obtain a criminal conviction,
it can furnish powerful and appropriate evidence of
guilt on the traditional theory that, if the defendant had
a special reason or incentive to commit the charged
offense in the manner alleged and proved—against the
particular victim, to accomplish a particular result, or
otherwise—then it reasonably can be inferred that he
acted in furtherance of that motive by committing that
offense. State v. Lopez, 280 Conn. 779, 795, 911 A.2d
1099 (2007) (prior misconduct that tends to show defen-
dant harbored hostility toward victim of violent crime
admissible to establish motive). Whether the defen-
dant’s motive is one of revenge, self-protection, self-
enrichment or otherwise, evidence of the defendant’s
involvement in prior misconduct tending to establish
that motive is admissible to prove both that he engaged
in the conduct claimed to constitute the charged offense
and that he did so with the intent required for commis-
sion of that offense, provided its probative value on
that issue is found to outweigh its prejudicial effect.
Where, then, the connection between proffered evi-
dence of the defendant’s prior misconduct and his
motive to commit the charged offense is sufficiently
strong that a properly instructed jury can be counted
on to confine its use of the evidence to that purpose,
such evidence is properly ruled admissible on that issue
as an exception to the general rule. See State v. Mar-
shall, supra, 166 Conn. 599–601 (evidence of murder
suspect and murder victim’s joint involvement in notori-
ous gang rape as to which victim had considered coop-
erating with state ruled admissible to prove defendant’s
motive to kill victim).
Proof of intent is also a well established exception to
the general rule prohibiting the use of prior misconduct
evidence to prove the guilt of a criminal defendant.
Such evidence is admissible to prove the defendant’s
intent, provided it is relevant and its probative value
on that issue outweighs any prejudice naturally arising
from its tendency to cause the jury to find the defendant
guilty for reasons other than his proven guilt. Import-
antly, however, evidence admitted under the intent
exception to the general rule can only be used to prove
that, if the defendant engaged in the conduct claimed
to constitute the charged offense, he did so with the
intent required for commission of that offense. State
v. Meehan, 260 Conn. 372, 396, 796 A.2d 1191 (2002)
(emphasizing distinction between using prior miscon-
duct evidence to prove an alleged act and to prove an
alleged intent); see also State v. Baldwin, 224 Conn. 347,
355–56, 618 A.2d 513 (1993) (prior misconduct evidence
irrelevant and inadmissible to prove defendant’s subse-
quent act of possession, but relevant and admissible to
prove intent with which that subsequent act, if other-
wise established, was committed, particularly the
intent to sell); State v. Tucker, supra, 181 Conn. 415
(trial court properly admitted evidence of prior acts of
child abuse against same victim to prove specific intent
to murder and lack of accident, but not to prove act of
murder itself).1 Such evidence cannot be used to prove
that the defendant actually engaged in the underlying,
allegedly criminal conduct, unless it was also admitted
under a different exception to the general rule which
permits substantive use of such evidence to prove the
defendant’s acts as well as his intent due to the direct
relationship between the prior misconduct and the
charged offense. Prior misconduct that has such a direct
relationship to the charged offense as to permit evi-
dence of such misconduct to be used to prove the defen-
dant’s acts as well as his intent includes, for example,
misconduct tending to prove the defendant’s motive to
commit the charged offense; see State v. Marshall,
supra, 166 Conn. 599–601; misconduct tending to prove
that the charged offense was a ‘‘signature crime,’’ com-
mitted in such a distinctive manner as to identify the
defendant as its likely perpetrator; see State v. Figue-
roa, supra, 235 Conn. 163–64; and misconduct tending
to prove that the charged offense was committed as
part of a system of criminal activity. See State v. McFar-
lane, 88 Conn. App. 161, 164–65, 868 A.2d 130, cert.
denied, 273 Conn. 931, 873 A.2d 999 (2005).
Although evidence of prior misconduct that is admit-
ted solely to prove the defendant’s intent cannot law-
fully be used to prove that he actually committed the
acts claimed to constitute the charged offense, such
evidence nonetheless carries with it the risk that,
despite its expressly limited purpose, it will lead the
jury to find that the defendant is a person of bad charac-
ter who has, and has acted on, a propensity or predispo-
sition to commit similar offenses. This problem is
especially significant when, as is often the case, there
are generic, albeit nonsignature, similarities between
the prior misconduct and the charged offense. Great
care must be taken in admitting evidence of prior, unre-
lated misconduct to prove the defendant’s later intent,
for as Professor Tait and Judge Prescott have observed,
‘‘when the prior uncharged misconduct is ‘extrinsic,’
namely, separate and distinct from the crime charged,
the use of uncharged misconduct to prove intent is . . .
practically indistinguishable from prohibited propen-
sity evidence. . . . [T]o use misconduct at one time to
prove an intent to do the same thing at another time
borders on the forbidden theme of ‘once a thief always
a thief.’ ’’ (Citation omitted.) C. Tait & E. Prescott, Con-
necticut Evidence (4th Ed. 2008) § 4.19.6, p. 164.
In light of these concerns, the admission of prior
misconduct evidence solely to prove a defendant’s
intent to commit a charged offense is properly limited
to cases in which there is a genuine dispute as to
whether, if the defendant actually engaged in the con-
duct claimed to constitute the charged offense, he
engaged in such conduct with the mental state required
for conviction of that offense. State v. Gilligan, 92 Conn.
526, 536–37, 103 A. 649 (1918); see also State v. Ves-
sichio, 197 Conn. 644, 664–65, 500 A.2d 1311 (1985),
cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed.
2d 187 (1986). Such is the case, for example, when the
defendant concedes that his allegedly guilty conduct
has been proven, but claims that he engaged in such
conduct by accident or mistake or with some other
innocent purpose. See State v. Perry, 195 Conn. 505,
522, 488 A.2d 1256 (1985) (evidence of other robberies
in which defendant participated probative in negating
his claims of duress and ignorance of companion’s crim-
inal intent). In that event, proof of the defendant’s guilty
purpose when he engaged in similar misconduct in the
past can logically be used to disprove his current claim
of accident, mistake or other innocent purpose when he
so acted in the case at bar without having any prejudicial
impact on the undisputed nonissue of whether or not
he actually engaged in the allegedly criminal conduct.
When, by contrast, there is no genuine dispute that, if
the defendant actually engaged in the conduct claimed
to constitute the charged offense, he did so with the
mental state required for commission of that offense,
evidence of prior misconduct cannot be admitted to
prove his intent because, having no probative value on
that issue, its only logical use by the jury would be to
support the illicit inference that the defendant commit-
ted the charged offense because he had the propensity
or predisposition to do so. See State v. Meehan, supra,
260 Conn. 395–97.
The majority begins its analysis of the relevancy of
the challenged evidence on the issues of motive and
intent by noting, unobjectionably, that intent is an
essential element of each of the crimes with which the
defendant was charged in this case. On this score, it
notes, more particularly, that to convict the defendant
of burglary in the third degree or larceny in the third
degree, the two substantive crimes with which the
defendant was charged as an alleged accessory to
Johansen, the state was required to prove that the defen-
dant acted with the mental state required for commis-
sion of a larceny, which it refers to colloquially as the
intent to steal. It further notes that to convict the defen-
dant of conspiracy to commit burglary in the third
degree or conspiracy to commit larceny in the third
degree, the two remaining, inchoate crimes with which
he was charged as Johansen’s alleged coconspirator,
the state was required to prove that he acted with two
related intents: first, the intent to agree with Johansen
to commit each essential element of the substantive
crime which was the alleged object of the charged con-
spiracy, here, either burglary or larceny, as appropriate
to the charge; and second, as part of its proof of his
intentional agreement with Johansen to commit that
substantive crime—the intent required for commission
of that substantive crime—here, to reiterate, the intent
to steal.
Thereafter, however, instead of explaining how evi-
dence of the defendant’s involvement in the Litchfield
car burglaries tended logically to prove that he acted
with any such necessary intent, by establishing his
motive to act with that intent or otherwise, the majority
addresses the relevancy of the challenged evidence to
the defendant’s motive and intent simply by paraphras-
ing and agreeing with the following argument advanced
by the state: ‘‘[T]he defendant’s prior dealing with
Johansen in the Litchfield car burglaries, which
involved some acts of parallel behavior in terms of the
relationship between Johansen and the defendant in
the manner in which the underlying crimes were com-
mitted, provided some evidence of the defendant’s
motive and intent to commit the subject crimes with
Johansen. We agree with the state.’’
 Here, although the majority suggests that there are
certain ‘‘acts of parallel behavior’’ between the defen-
dant’s admitted conduct in Litchfield and his alleged
conduct in Ellington approximately six months later, it
offers no specifics as to what those parallels are or
why, in its judgment, they tend to prove that the defen-
dant had the motive or intent to conspire with Johansen
to commit the crimes charged against him in connection
with the burglary at the Ellington home of Gerald Har-
grave. Instead, it offers only brief, and in my judgment
unconvincing, explanations of its reasoning in reaching
its previously stated conclusions.
As for the defendant’s motive to commit the charged
offenses, the majority adds only that it agrees with the
state’s further argument that ‘‘the admission of evidence
of the defendant’s past misconduct with Johansen pro-
vided some evidence of the defendant’s motive to entice
and conspire with Johansen to commit the Hargrave
burglary and larceny because Johansen was indebted
to the defendant, who had previously posted bail for him
due to past arrests.’’ ‘‘As noted,’’ the majority continues,
‘‘the jury heard from Johansen that he was indebted to
the defendant before [the date of the Hargrave burglary]
February 4, 2010, and that when the defendant con-
spired with him for the commission of the burglary and
larceny, the defendant indicated that he would expect
a small finder’s fee. Although the defendant argues that
there was no evidence that Johansen repaid him,
Johansen’s failure to satisfy that obligation to the defen-
dant serves only to create an implication that the defen-
dant’s financial motive in enticing Johansen may not
have been realistic and that his expectation may not
have been fulfilled.’’ I disagree.
Implicit in the foregoing observations is the sugges-
tion that the defendant’s motive for enticing and con-
spiring with Johansen to commit the Hargrave burglary
was to obtain repayment of a debt which Johansen
owed to him, at least in part, for posting his bail follow-
ing his arrest for the Litchfield car burglaries. Respect-
fully, I believe that this theory is unsupported by the
evidence.
First, although Johansen did indeed state to the police
that at the time of the Hargrave burglary he owed the
defendant money for previously bailing him out of jail,
he never stated that he had incurred any part of that
unpaid debt in connection with the Litchfield car bur-
glaries. The evidence did not show that Johansen was
released on bail after his arrest in Litchfield, much less
that, if he was so released, it was the defendant who
posted his bail. Absent such a connection between the
Litchfield car burglaries and the debt from Johansen
to the defendant, which assertedly motivated the defen-
dant to entice Johansen to commit the Hargrave bur-
glary, evidence of the defendant’s involvement in
committing the Litchfield car burglaries was completely
irrelevant to his motive to recruit and conspire with
Johansen in the manner claimed.
Second, consistent with the absence of any proven
connection between the Litchfield car burglaries and
the debt Johansen owed to the defendant at the time
of the Hargrave burglary, Johansen never claimed,
either in his statement to the police or in his trial testi-
mony, that part of the defendant’s inducement to him
to commit the Hargrave burglary was to lower the
amount or modify the terms of repayment of any such
preexisting debt. Instead, as the majority itself acknowl-
edges, the defendant’s only proposed compensation in
connection with the Hargrave burglary was claimed to
have been a small finder’s fee which he was to have been
given for setting up the burglary and giving Johansen the
opportunity to commit it. Johansen, on the other hand,
was to have kept most of the profits from the burglary
because, as the defendant reportedly put it, Johansen
would be doing ‘‘the dirty work . . . .’’ There was noth-
ing in the evidence to suggest that any part of Johansen’s
small payment to the defendant from the profits of the
Hargrave burglary was to have been made not as a
finder’s fee, but as a partial repayment of Johansen’s
preexisting debt to the defendant for previously bailing
him out of jail.
Third, even if evidence had been adduced at trial to
suggest that part of Johansen’s debt to the defendant
had been incurred when the defendant posted his bail
after the Litchfield car burglaries, such an evidentiary
link between the two crimes, had in fact there been
one, would not have justified the state in introducing
evidence of the defendant’s involvement in committing
those unrelated offenses to prove him guilty of the
Hargrave burglary. The complete story of the defen-
dant’s alleged recruitment of Johansen to commit the
Hargrave burglary in order to repay a debt he owed to
the defendant for posting his bail in connection with
the Litchfield car burglaries could readily have been
told in all necessary detail without revealing that the
defendant had played any role in committing the Litch-
field car burglaries. For all of these reasons, I disagree
with the majority that the defendant’s involvement in
the Litchfield car burglaries had any logical tendency
to prove that the defendant had a debt repayment
motive for enticing and conspiring with Johansen to
commit the Hargrave burglary.
Alternatively, the majority submits that the evidence
was relevant to prove the defendant’s intent. The major-
ity’s only explanation of its reasoning as to its asserted
relevancy for this purpose appears in footnote 9 of its
opinion, as follows: ‘‘In the case at hand, evidence of
the defendant’s past relationship with Johansen in the
commission of the Litchfield car burglaries was relevant
to the issue of intent. That is, such evidence is not
admitted to prove relationship as an end; rather, the
relationship between the defendant and another actor
as past misconduct is some evidence of the defendant’s
intent to conspire with that same person. Contrary to
the defendant’s claim, the evidence is not admitted to
prove the defendant’s propensity to commit crimes;
rather, it provides some evidence of an intent to form
a conspiracy with that particular person.’’ I do not agree.
Here, as previously noted, although the majority sug-
gests that there are ‘‘certain parallels’’ between the
defendant’s admitted conduct in Litchfield and his
alleged conduct in Ellington approximately six months
later, it offers no specifics as to what those parallels
might be or why, in its judgment, they tend to prove
that the defendant intended to conspire with Johansen
to commit the crimes charged against him in connection
with the Hargrave burglary. This, I think, is not surpris-
ing, for there is no direct connection between the Litch-
field car burglaries and the Hargrave burglary, and the
only parallels between them are very general and super-
ficial, while the distinctions between them are apparent
and very significant. Both criminal episodes, to be sure,
involved break-ins and thefts, generic burglaries and
larcenies. As previously noted, however, the Litchfield
car burglaries targeted cars of unknown victims for
random valuables, while the Hargrave burglary targeted
the residence of a known victim, Hargrave, for prescrip-
tion drugs and, ultimately, household electronic equip-
ment. Both episodes, moreover, were allegedly
committed by Johansen as a principal offender with
the defendant as his accessory. The Litchfield car bur-
glaries, however, involved the defendant as an active
participant in the commission of crimes proposed to
him by Johansen, whereas the Hargrave burglary alleg-
edly involved the defendant only as an absent setup
man for a break-in that he had allegedly proposed to
Johansen. There was thus nothing about the manner
in which the two sets of crimes were instigated or
perpetrated that supported the logical inference that,
if the defendant committed the former, then logically
he intended to commit the latter. At most, evidence of
the defendant’s involvement in committing the Litch-
field car burglaries tended to show that he was a thief,
who had previously committed property crimes of the
same general sort together with Johansen.
Reducing the majority’s explanation for its contrary
conclusion to its essence, one finds a single troubling
rationale: if, on a prior occasion, in different circum-
stances, the defendant and Johansen conspired
together to commit the Litchfield car burglaries, then
logically it can be inferred from their prior relationship
that they later renewed or continued that relationship
by conspiring once again, six months later, to commit
the otherwise unrelated Hargrave burglary and larceny.
That inference, however, is nothing more than an infer-
ence of guilt based upon propensity or predisposition,
under the forbidden logic of ‘‘once a thief, always a
thief.’’
The challenged evidence does not tend to prove that
the defendant intended to steal property from Hargrave,
as required to convict him of each charged offense, nor
does it tend to prove his alleged intent to agree with
Johansen to commit all of the essential elements of
burglary or larceny, as required to convict him of con-
spiracy to commit either such substantive offense in this
case. Instead, it bears only on the defendant’s identity as
one of the perpetrators of the charged offenses on the
theory that since he once before conspired with
Johansen to commit generically similar crimes, then he
intended to do so again in this case.
This is not a case in which there is a genuine dispute
as to whether, if the defendant engaged in the conduct
claimed to constitute the four charged offenses, he
acted with the intent required for commission of any
such offense. According to Johansen’s police statement,
the defendant contacted him with information that the
Hargrave home was full of prescription drugs and other
valuables which he could simply go in and take on the
date of the burglary, that Hargrave, who was dying,
would not be home at that time, and that the defendant
would arrange to have the door to the home left open
for him. Johansen further stated that the defendant
told him that if he agreed to do ‘‘the dirty work’’ by
committing the break-in and theft of Hargrave’s prop-
erty, he could keep most of the profit as long as he
paid the defendant a small finder’s fee. If the defendant
engaged in such conduct, as alleged, then surely he
did so with the intent to steal Hargrave’s property, for
otherwise he would not have made plans for its removal
in secret or referred to the break-in and taking of prop-
erty as ‘‘the dirty work . . . .’’ If, by the same token,
the defendant agreed with Johansen to commit the pro-
posed crimes in order to realize a profit they would
later share, then just as surely his agreement with
Johansen to commit the resulting burglary and larceny
was intentional, for he obviously had the financial
incentive to work together with Johansen to commit
those crimes.
There is nothing in the record, moreover, to show
that the defendant ever engaged in any ambiguous,
potentially incriminatory conduct in relation to the Har-
grave burglary which he later claimed to have engaged
in by accident or mistake or without a guilty purpose.
He was never seen in Johansen’s company at any time
before, during or after the break-in, and was never
shown to have possessed or been in the presence of
the fruits or instrumentalities of the break-in, either
before or after its occurrence. Most significantly, he
never claimed or was shown to have had any potentially
innocent discussion with or in the presence of Johansen
concerning Hargrave’s illness or absence from his
home, much less the presence in the home of drugs or
electronic equipment, that might have given Johansen
the incentive to commit the ensuing burglary and lar-
ceny entirely on his own initiative. Had he so claimed,
then evidence of his and Johansen’s prior misconduct
in Litchfield might conceivably have been relevant to
rebut the defendant’s claim of innocence when dis-
cussing what amounted to an available opportunity to
commit, in the case at bar, a potentially profitable break-
in. Here, however, the defendant consistently denied
all involvement in planning, setting up or otherwise
facilitating the Hargrave burglary, innocent or other-
wise, and thus never defended himself against any of
the offenses charged against him based on a claim of
accident, mistake or other innocent purpose, which
evidence of his prior misconduct in similar circum-
stances might appropriately have been used to rebut.
In short, this is not a case in which evidence of such
misconduct shed any light at all on the defendant’s
intent to commit the Hargrave burglary.
Concluding, as I have, that evidence of the defen-
dant’s involvement in the unrelated Litchfield car bur-
glaries fails to support a logical inference of his motive
or intent to commit or conspire with Johansen to com-
mit the Hargrave burglary, I must next determine if
the prejudicial effect of such evidence outweighed its
probative value. The majority focuses its discussion of
prejudice on factors affecting the admissibility of prior
misconduct evidence when it is shown to have at least
some discernible relevance to issues potentially justi-
fying its admission under one or more established
exceptions to the general rule. When it does, of course,
the question presented for the court’s consideration
is whether it should be excluded despite its logical
relevance because of its collateral tendency to arouse
the jury’s passions, to waste its time, to divert its atten-
tion from the central issues of the case or unfairly to
surprise the party against whom it is offered. State v.
James G., 268 Conn. 382, 398, 844 A.2d 810 (2004). The
majority concludes that the trial court did not abuse
its discretion in determining that the probative value
of the evidence outweighed its prejudicial effect.
I disagree with the majority’s conclusion because, as
previously explained, I reject its underlying premise
that the evidence had any relevance at all on the limited
issues of motive and intent for which it was admitted.
The prejudice arising from the admission of such evi-
dence in the absence of any such potentially appropriate
use was simply and obviously its tendency to support
the forbidden inference that the defendant is a person
of bad character who has the propensity or predisposi-
tion to commit similar crimes. I conclude that the evi-
dence should not have been admitted because its
significant prejudicial effect far outweighed its nonexis-
tent probative value on the issues of motive and intent.
Having concluded that the court improperly admitted
evidence of the defendant’s prior misconduct and that
the probative value of the evidence did not outweigh
its prejudicial effect, I turn finally to the question of
whether the court’s decision constituted harmful error.
I conclude that it did.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful . . . . [W]hether
[the improper admission of a witness’ testimony] is
harmless in a particular case depends upon a number
of factors, such as the importance of the witness’ testi-
mony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength
of the prosecution’s case. . . . Most importantly, we
must examine the impact of the [improperly admitted]
evidence on the trier of fact and the result of the trial.
. . . [T]he proper standard for determining whether
an erroneous evidentiary ruling is harmless should be
whether the jury’s verdict was substantially swayed by
the error. . . . Accordingly, a nonconstitutional error
is harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict.’’
(Internal quotation marks omitted.) State v. Favoccia,
306 Conn. 770, 808–809, 51 A.3d 1002 (2012). On the
contrary, ‘‘[a]ny improper evidence that may have a
tendency to . . . influence the judgment . . . of the
jury . . . cannot be considered as harmless.’’ (Internal
quotation marks omitted.) State v. Onofrio, supra, 179
Conn. 32.
The defendant argues that the evidence in this case
was not particularly strong, and that without the addi-
tional, improperly admitted evidence of his prior mis-
conduct, the jury likely would not have returned a guilty
verdict against him. He claims that the jury found him
guilty not on the evidence of his guilt in the Hargrave
burglary, but rather on the illicit inference of his propen-
sity or predisposition to commit property crimes based
upon the evidence of his prior misconduct. I agree with
the defendant.
The state’s evidence linking the defendant to the
charged crimes was weak. Over the course of three days
of trial, the state presented the testimony of thirteen
witnesses, eleven of whom in no way implicated the
defendant in the Hargrave burglary2 and two of whom—
Johansen and Frederick Colby—recanted their prior
written statements insofar as they had implicated the
defendant in the Hargrave burglary.3 In light of the mani-
fest weakness of the state’s case,4 it is not surprising
that it devoted substantial time in the presentation of
evidence and final argument to the improperly admitted
evidence of the defendant’s prior misconduct. The
state’s evidence proving the defendant’s and Johansen’s
joint commission of the Litchfield car burglaries was
lengthy and detailed. It consisted of three live witnesses
who testified over a period of two trial days and read
two complete witness statements into the record. In
all, such evidence of the defendant’s involvement in the
Litchfield car burglaries consumed forty-five pages of
trial transcript.
Moreover, in its closing argument, the state specifi-
cally argued to the jury the impact of the improperly
admitted evidence of the defendant’s prior misconduct
as follows: ‘‘If you recall, this case has some similarities
to the Litchfield case. Six months before this happened,
in August of 2009, the defendant and Johansen are
arrested for breaking into ten cars. And you do have a
copy of the defendant’s statement about that incident.
‘‘Specifically, the defendant states that a person by
the name of Jeff . . . solicits him, calls him and says,
I need you to break into some trucks and steal some
chain saws. Jeff also says I’ll make sure that the doors
to the trucks are left open and the defendant could steal
those chain saws. And the defendant was supposed to
get three thousand dollars for stealing the chain saws
once he brought them back to Jeff . . . .
‘‘However, when they arrived to the scene and tried
to get into these trucks for this particular tree service
company, the trucks were left open, but there were no
chain saws.
‘‘That is when they moved on to plan b. . . .
Johansen and the defendant decide, we’ll break into
some cars and make money that way. And so . . .
Johansen goes to the different areas after . . . the
defendant . . . drops him off at one location, breaks
into cars. He gets back inside the vehicle, and then they
drive to another location.
‘‘And it was at that point that . . . Johansen is
caught, and he gives a statement to the police, and he
also implicates the defendant. And the defendant is
eventually arrested. . . .
‘‘Six months later, February 4, 2010—in that area—
the defendant now is the one making the solicitation.
He requests that . . . Johansen break into the home
to steal Percocets and Oxycontin and anything else
he wanted.
‘‘Just like Jeff, he tells him when to go, February 4.
Just like Jeff, he tells him he would arrange to have
someone leave the door open. And he tells . . .
Johansen . . . that he . . . could profit from breaking
into the home.
‘‘By this point, the defendant has a mistaken belief
that as long as someone else committed the criminal
activity, he can’t get into trouble. The laws of our state
hold the planner of a criminal agreement—of an
agreement to commit a crime, accountable, just as the
one who actually does it.’’
The theme throughout the state’s closing argument
was that the defendant mistakenly believed that as long
as Johansen did the ‘‘dirty work,’’ he would not be found
guilty of conspiracy to commit or accessory to burglary
or conspiracy to commit or accessory to larceny.5 This
use of the prior misconduct evidence, as argued by the
state in its closing argument, amounted to nothing more
than a claim that if the defendant committed a similar
crime with Johansen in the past, he likely committed
such a crime with him on this occasion, in effect show-
ing that he is the sort of person who would do so. Not
only was this evidence not admitted for that purpose
but it was not admissible for that purpose because the
crimes were not shown to have been committed as part
of a common scheme or plan or to have had such unique
commonalities between them as to make proof of the
commission of the one crime evidence of identity as
the perpetrator of the other. The Litchfield car bur-
glaries were not committed pursuant to a common
scheme or plan for the obvious reason that the alleged
plan to commit those crimes was not concocted until
the defendant and Johansen found no chain saws in
the truck that had been left unlocked for them. The
whole purpose of the car burglaries was for Johansen
‘‘to make some real money’’ to pay for the gas that
he had used to drive his car to Litchfield that night.
Meanwhile, the Hargrave burglary, as described in
Johansen’s statement, was not conceived of or under-
taken for any purpose related to the Litchfield car bur-
glaries. The crimes were not signature crimes,
moreover, because they were committed in different
ways, against different kinds of victims, in different
communities, and had little else in common except the
technical names of the offenses allegedly committed
and the identities of Johansen and the defendant as
two of their alleged perpetrators.
Against this background, the harm suffered by the
defendant was substantial. The jury’s attention was
directed at trial and in the state’s closing argument to
evidence that showed that the defendant was a person
who had previously committed the Litchfield car bur-
glaries, thus suggesting the defendant’s propensity or
predisposition to commit similar crimes, upon which
the jury relied, substantially affecting the verdict. From
this inference, the jury was tempted to find the defen-
dant guilty based on the illicit inference that he had
acted in accordance with his propensity or predisposi-
tion. This is precisely the type of inference that is
intended to be avoided by the general rule prohibiting
evidence of a defendant’s prior uncharged misconduct,
as it ‘‘borders on the forbidden theme of ‘once a thief
always a thief.’ ’’ C. Tait & E. Prescott, supra, § 4.19.6,
p. 164.
It is true, of course, that the trial court issued repeated
curative instructions to the jury that the disputed evi-
dence concerning the Litchfield car burglaries was to
be considered only on the issues of motive and intent,
and that if the jury found that it had no relevance to
those issues, then it was to be disregarded. In addition,
the court specifically instructed the jury that the evi-
dence was not to be used as a basis for inferring that
the defendant was a person of bad character. Notwith-
standing such instructions, I conclude that the court’s
error in admitting the disputed evidence was not harm-
less. I reach this conclusion for two reasons. First, the
challenged evidence was so extensive and so centrally
featured in the state’s evidence and closing argument
that it would have been virtually impossible for the jury
to ignore. Second, in the absence of any explanation
from the court as to how precisely the evidence could
have been used on the issue of intent, I think it is highly
likely that the jury used the evidence precisely as the
state argued it to them and of which the majority has
approved, for the illicit purpose of inferring that if he
once agreed with Johansen to commit certain generi-
cally similar property crimes, then he likely did so here
as well.
In summary, I conclude that the prior misconduct
evidence was improperly used to support the illicit
inference that the defendant committed the Hargrave
burglary because, as shown by his involvement in the
Litchfield car burglaries, he had a propensity or predis-
position to commit such crimes. Because, for that rea-
son, there can be no substantial assurance that the
challenged evidence did not affect the jury’s verdict, I
would reverse the defendant’s conviction on all counts
and order a new trial.
1
Professor Wigmore has described the proper use of evidence of prior
bad acts or offenses admitted to show intent as follows: ‘‘It will be seen
that the peculiar feature of this process of proof is that the act itself is
assumed to be done,—either because (as usually) it is conceded, or because
the jury are instructed not to consider the evidence from this point of view
until they find the act to have been done and are proceeding to determine
the intent. . . . [T]he attempt is merely to discover the intent accompanying
the act in question . . . .’’ (Footnote omitted.) 2 J. Wigmore, Evidence
(Chadbourn Rev. Ed. 1979) § 302, p. 245.
2
On the first day of trial, the state presented five witnesses, none of whom
implicated the defendant in the burglary. Norma Hargrave’s only testimony
regarding the defendant was that she knew him as her nephew’s son. Gerald
Hargrave testified that he did not know the defendant. James Hargrave
testified that he knew the defendant only as his ‘‘relative.’’ Ellen Riemer
testified that on the day of the burglary, she was driving home and saw two
‘‘young men’’ in their ‘‘late teens to mid-twenties,’’ who appeared to be
securing a tarp to an older white sedan and ‘‘stuffing things under’’ it, but
did not identify the defendant as one of these two men. Kozubenko testified
that he knew the defendant through other friends, but not closely, and at
no time during his testimony did he implicate the defendant in the burglary.
Moreover, Kozubenko specifically stated that the defendant was not present
at Hargrave’s home at the time of the burglary and that he did not speak
to the defendant on the day of the burglary.
On the second day of trial, in addition to Johansen and Colby, the state
called Robert Given, a resident state trooper in Ellington, who testified that
he had assisted Ellington Resident State Trooper Veronica Carpenter in the
execution of the warrant to search Kozubenko’s residence for the items
stolen from Hargrave’s home, but did not offer any evidence about the
defendant’s alleged involvement in the burglary of Hargrave’s home.
 Similarly, none of the state’s witnesses on the third day of trial implicated
the defendant in the Hargrave burglary. Carpenter read Colby’s and
Johansen’s recanted statements into the record in their entirety. Ellington
Resident State Trooper Bart Alexander briefly testified that he was one of
the officers who first responded to the report of the burglary of Hargrave’s
home, but did not testify as to the defendant’s alleged involvement in the
burglary. Steven Koss of the Manchester Police Department testified about
his oral interviews of Colby and Johansen regarding the burglary of Har-
grave’s home and testified that both Colby and Johansen mentioned the
involvement of a ‘‘cousin’’ in the Hargrave burglary, but could not recall if
either of them ever mentioned the defendant by name.
3
Contrary to his written statement to the police, in which he had impli-
cated the defendant in setting up the burglary, Johansen testified that the
defendant was not involved in the burglary, did not advise him that there
would be drugs in Hargrave’s home, and did not tell him that the house
would be left unlocked for him on February 4, 2010. Like Johansen, Colby,
at trial, recanted that portion of his written statement in which he had
implicated the defendant in the burglary. Colby explained that he ‘‘didn’t
know anything about’’ the burglary and ‘‘didn’t even have a statement to
give without [Johansen] telling [him]’’ the names of those allegedly involved.
4
The lack of evidence presented to the jury supporting the state’s theory
of the case is particularly noteworthy. Specifically, the state’s theory that
the defendant conspired with Johansen by informing him that there would
be ‘‘piles of drugs’’ at Hargrave’s home and that Johansen would be able to
enter the home on February 4, 2010, because the defendant would have
someone leave the door open, is unsupported by the evidence. To the
contrary, Johansen and Kozubenko arrived at the home on that date not
only to find the doors and windows locked, but also rid of drugs. There
also was no evidence supporting the state’s theory that the defendant had
conspired with Johansen in order to receive a finder’s fee or repayment for
an outstanding debt owed to him. No evidence was presented establishing
that after the burglary, Johansen gave the defendant any amount of money
or stolen goods as payment for any purpose—either as a finder’s fee or as
a partial payment for previously bailing him out of jail. There also was no
evidence that the defendant was ever present at Hargrave’s home on the
day of the burglary.
Similarly, none of the state’s forty-seven photographic exhibits tended to
show the defendant’s presence at Hargrave’s home. In fact, the only evidence
that ever implicated the defendant in the burglary was the initial statements
of Johansen and Colby, which were recanted in relevant part at trial.
5
The state also argued to the jury that the live testimony of Johansen and
Colby as to the defendant’s noninvolvement in the burglary was unreliable
because ‘‘they seem to have a poor recollection of what took place when
the state would ask them questions about the crime,’’ and they ‘‘testified in
a poor manner’’ by not ‘‘look[ing] up when answering any of the questions’’
and mumbling. The state also argued to the jury that Johansen and Colby
‘‘[b]oth had a strong bias to testify falsely on behalf of the defendant’’
because ‘‘Johansen owed the defendant money for bailing him out’’ and is
the defendant’s first cousin, and that Colby ‘‘had a strong bias to lie’’ because
the defendant ‘‘is, again, a good friend of his.’’ The state claimed that ‘‘both
of these individuals . . . weren’t concerned about the consequences for
lying on the [witness] stand because they are already incarcerated.’’ The state
also asserted that Colby’s and Johansen’s ‘‘testimony was unreasonable,’’ in
that they claimed to have been high when they gave their statements, but
testified that portions of their statements still should be believed, even
though some other portions implicating the defendant were false.