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STATE OF CONNECTICUT v. CHRISTOPHER BROWN
(AC 35508)
Lavine, Sheldon and Bishop, Js.
Argued January 23—officially released October 14, 2014
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen,
Mullarkey, J.)
James B. Streeto, assistant public defender, for the
appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Nicole I. Christie, assistant state’s attor-
ney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Christopher Brown,
appeals from the judgment of conviction rendered
against him after a jury trial on charges of conspiracy
to commit burglary in the third degree in violation of
General Statutes §§ 53a-48 and 53a-103, accessory to
burglary in the third degree in violation of General Stat-
utes §§ 53a-8 and 53a-103, conspiracy to commit larceny
in the third degree in violation of General Statutes
§§ 53a-48 and 53a-124, and accessory to larceny in the
third degree in violation of General Statutes §§ 53a-8
and 53a-124. On appeal, the defendant claims that (1)
the trial court erred in allowing the state to introduce
evidence of his prior misconduct to prove his intent
and motive to commit the charged offenses; (2) his
conviction of certain charges violated his constitutional
right against double jeopardy; and (3) the trial court’s
jury instructions on the essential elements of conspir-
acy were erroneous. We affirm the judgment of the
trial court.
The following procedural history and evidence
adduced at trial are relevant to our resolution of this
appeal. In January, 2010, Gerald Hargrave and his wife,
Carrie Hargrave, resided in a single-family home located
at 6 Longview Street in Ellington. On January 10, 2010,
Carrie Hargrave died. Shortly thereafter, Gerald Har-
grave1 was admitted to a hospital as a result of a pre-
scription drug overdose, for which he was still in the
hospital on February 4, 2010, the date at issue, until he
was discharged sometime later in February, 2010. While
Hargrave was in the hospital, he gave his mother and
brother the keys to his home so that they could clean
and prepare it for his return from the hospital. As a
part of their work in this regard, Hargrave’s mother and
brother intentionally removed all prescription drugs
from the premises.
When Hargrave’s mother visited the home on Febru-
ary 3, 2010, she did not notice anything out of order.
All of the doors and windows were closed and locked
when she left the premises that day. When she returned
to the home on the next day, however, she noticed that
several of her son’s possessions had disappeared. The
missing items included Hargrave’s desktop computer,
monitor and several related computer accessories, his
surround sound system, his DVD/VCR player, his Xbox
video game system and Xbox games, and his sixty-seven
inch television. Hargrave later estimated that the total
value of the missing items was approximately $6250.
While Hargrave was in the hospital, the defendant,
Hargrave’s cousin, conspired with Frederick E.
Johansen to burglarize Hargrave’s home and to steal
property from it. According to Johansen’s written state-
ment, given to the police while in custody, the defendant
told him that Hargrave had ‘‘piles of drugs’’ in the home,
including prescription Oxycontin and Percocet pills,
informed him that he could ‘‘take the pills and whatever
else you want,’’ and that he ‘‘could just go in [to Har-
grave’s home] because he had someone that would
leave the door open’’ and instructed him to ‘‘do it on
the fourth.’’2 Johansen’s written statement also recites
that the defendant told Johansen that if he did all the
‘‘dirty work, [he] could keep most of the profit,’’ pro-
vided only that he gave the defendant ‘‘a couple of
hundred dollars as kind of a finder’s fee.’’
On the morning of February 4, 2010, Johansen and
Victor Kozubenko, drove in Kozubenko’s car to Har-
grave’s home to retrieve the drugs that the defendant
had said would be there. On their way, they gave a ride
to Rockville to two of their friends, Frederick Colby
and his wife, where Colby, a self-confessed drug addict
and convicted criminal, was appearing as a defendant
in a motor vehicle case. After dropping off the Colbys
in Rockville, Johansen and Kozubenko drove directly
to Hargrave’s home in Ellington.
When Johansen and Kozubenko arrived at Hargrave’s
home, Johansen initially attempted to enter through
the rear door, which he found to be locked, and then
attempted to enter the home through the front door,
which was also locked. According to Kozubenko’s testi-
mony, Johansen said that he had been told that the
door would be open, but upon arriving at Hargrave’s
home, Johansen found, first, that the back door was
locked, and next, that the front door was locked as well.
Johansen searched for an unlocked window through
which to enter the home. Although he found an
unlocked window on the side of the home, he was
unable to open it on his own. Kozubenko then suggested
that Johansen look in the toolbox attached to the bed
of a truck parked in the driveway to see if there was
anything in there with which to open the window. Find-
ing a screwdriver in the toolbox, Johansen used it to
open the side window and gain entrance to the home.
He then opened the back door to let Kozubenko enter
the residence.
Upon realizing that there were no drugs in the home,
Johansen told Kozubenko that he was also ‘‘supposed
to sell all [of Hargrave’s] stuff,’’ and so, on that pretext,
he asked Kozubenko if he wanted to buy any of the items
in the home. Johansen and Kozubenko then agreed that
Kozubenko would give Johansen fifteen Oxycontin pills
and $250 in cash in exchange for Hargrave’s television,
DVD/VCR player, computer, monitor and computer
accessories, printer, Xbox and Xbox games and sur-
round sound system. Johansen and Kozubenko then
loaded the selected items in Kozubenko’s car, and left
some items in the garage of Kozubenko’s mother’s home
in Manchester.
After purchasing rope at a hardware store, they drove
back to Hargrave’s house to retrieve the television. They
placed a blanket on the roof of the car, placed the
television on top of the blanket and tied the television
in place with the recently purchased rope.3 With the
television on the roof of the car, Kozubenko and
Johansen picked up Colby and Colby’s wife in Rockville
and gave them a ride to Colby’s house. When Colby
asked Johansen about the television, Johansen
explained that ‘‘he got it from my sister’s house . . . .’’
Colby testified that he then rode with Kozubenko to
his mother’s house in Manchester where he helped
Kozubenko unload the television, computer and Xbox
from Kozubenko’s car and take the items into the house.
Colby’s written statement to the police reveals that
Johansen later explained that he and Kozubenko had
stolen the television and other ‘‘stuff from [Hargrave’s]
house.’’ Johansen explained to Colby that ‘‘he knew the
house was going to be empty because the people were
away . . . because [the defendant] told him. . . . [I]t
was arranged by the [defendant] . . . .’’ Colby further
explained in his statement that ‘‘[a]bout a week after I
found out from [Johansen], I heard the same from [the
defendant] . . . .’’
Several weeks later, the police obtained a warrant
to search the home of Kozubenko’s mother. Upon exe-
cuting the warrant, the police found most of the items
that had been taken from Hargrave’s home and arrested
Kozubenko. Shortly thereafter, Johansen was also
arrested in connection with the Hargrave burglary and
was taken into custody. The defendant was arrested
on April 17, 2010, and charged, by way of long form
information, with two counts of conspiracy to commit
burglary in the third degree in violation of §§ 53a-48
and 53a-103, and two counts of conspiracy to commit
larceny in the third degree in violation of §§ 53a-48 and
53a-124. The defendant was also charged, by way of
a part B information, with having committed various
crimes while on pretrial release in violation of General
Statutes § 53a-40b. On May 10, 2011, the defendant
pleaded not guilty to the first part of the information
and elected to be tried by a jury.
Following trial, the defendant, on June 1, 2011, was
convicted of all charges.4 The court then sentenced
the defendant to a total effective term of ten years
incarceration, execution suspended after six years, fol-
lowed by four years probation. This appeal ensued.
I
The defendant first claims that the court abused its
discretion in permitting the state to present evidence
at trial of his prior misconduct because such evidence
was not relevant to any disputed issue in the case, and,
even if relevant, the prejudicial impact of this evidence
outweighed its probative value. Finally, on this issue,
the defendant claims that the court’s admission of this
evidence was not harmless error. We are not persuaded.
A
The following additional facts and procedural history
are relevant to our resolution of this claim. On May
17, 2011, approximately one week before the start of
evidence at trial, the state filed a detailed notice of its
intent to introduce evidence of the defendant’s prior
bad acts against him at trial. Specifically, the state gave
notice of its intent to offer evidence that on August 13,
2009, approximately six months before the Hargrave
burglary and larceny, the defendant and one of his
alleged coconspirators in the present crimes, Johansen,
had jointly committed ten car burglaries in Litchfield,
as described in an attached police report concerning
those offenses and sworn written statements by
Johansen and the defendant admitting to them. The
state’s purposes for introducing such prior misconduct
evidence, as disclosed in its notice, were to demonstrate
a system of criminal activity between the defendant and
Johansen, to prove the elements of the crimes charged
against the defendant involving conspiracy, and to
establish a relationship between the defendant and
Johansen as coconspirators.
The evidence submitted by the state in support of its
notice showed, more particularly, that on the day in
question, the defendant and Johansen had driven to
Litchfield to break into trucks that a third party had
told the defendant he would leave unlocked so that
the defendant could steal chain saws that were stored
inside them. When, however, the defendant and
Johansen arrived at the location in Litchfield where the
trucks were located, they discovered that there were
no chain saws inside them, and so they left the immedi-
ate area. Johansen, however, did not want to leave
Litchfield empty-handed, so he proposed to the defen-
dant, and the defendant agreed, that Johansen would
break into and steal valuables from cars they found in
the area while the defendant drove him from the loca-
tion of one set of cars to the next. Johansen and the
defendant were subsequently arrested and charged with
several counts of larceny and burglary on the basis of
this conduct. The evidence submitted in support of the
state’s notice also showed that Johansen, in his written
statement to the state police following his arrest in
connection with the Litchfield car burglaries, stated that
on certain previous occasions when he was arrested, he
would give stolen goods to the defendant, who would
use them to ‘‘barter . . . with a bondsman [the defen-
dant] knows so [that Johansen] could get bonded out.’’5
Before the start of the second day of trial, the state
argued to the court that the proffered evidence should
be admitted because it was relevant and material to
demonstrate a system of criminal activity between the
defendant and Johansen, to prove the element of intent
for commission of the crime of conspiracy against the
defendant, and to establish a relationship between the
defendant and Johansen as coconspirators. The state
contended that the probative value of this evidence
outweighed its prejudicial effect because it would
‘‘assist the trier of fact in making a decision as to
whether or not a conspiracy existed here between
Johansen and [the defendant] . . . .’’ The defendant
countered that the state’s sole purpose for introducing
this evidence was ‘‘to argue that he has the propensity
to engage in’’ criminal acts. The defendant also claimed
that the ‘‘prejudicial impact [of such evidence] far out-
weigh[ed] any probative value that it [might] ha[ve]
. . . .’’
The court ruled that the evidence was admissible to
prove the defendant’s intent and motive, and that its
probative value on those issues outweighed its prejudi-
cial effect.6 On the basis of this ruling, the state intro-
duced at trial the prior misconduct evidence regarding
the Litchfield car burglaries. It introduced testimony of
two state police troopers who had taken part in the
arrests of Johansen and the defendant, and the sworn
postarrest statements of Johansen and the defendant to
the state police, admitting the Litchfield car burglaries,
were read into the record in their entirety.
Litchfield Resident State Trooper James Holm, a
state’s witness, testified to the following events regard-
ing the Litchfield car burglaries. In the early morning
hours of August 13, 2009, he was dispatched to investi-
gate a report of a series of car burglaries and a suspi-
cious vehicle. When he arrived in the area of the alleged
burglaries, Holm and another trooper located the suspi-
cious car, but were unable to find its operator. There-
after, Holm and several other troopers were dispatched
to various homes in response to homeowners’ com-
plaints that their cars had been burglarized. Holm was
advised that another trooper had located Johansen near
the suspicious car, which contained items reported
missing from some of the burglarized vehicles. Holm
subsequently placed Johansen under arrest, advised
him of his Miranda rights,7 and transported him to the
state police barracks, where he agreed to provide a
sworn written statement in which he inculpated himself
and the defendant.
Detective Paul Lukienchuk, the state police trooper
who took Johansen’s written statement following his
arrest on August 13, 2009, read Johansen’s statement
into the record. In this statement, Johansen explained
that he and the defendant had been at a friend’s house
on the night of August 12, 2009, when the defendant
asked if Johansen would help him pick up some chain
saws from one of his friends in Litchfield. Johansen
claimed that the defendant had said his friend would
‘‘leave 4 or 5 [chain saws] outside of a building for him
. . . [because] this guy owed him some money.’’
Johansen explained that the defendant ‘‘lets people bor-
row money for an interest charge.’’ Early in the morning
on August 13, 2009, Johansen and the defendant drove
in their respective cars to Litchfield, but when they
arrived, no chain saws could be found, and so they left
the area. Johansen stated that he then ‘‘decided that
[he] wanted to break into some cars [because he] had
used about $15.00 worth of gas and [he] was not going
to leave the area with nothing at all.’’ The defendant
drove Johansen to ‘‘a spot where there were some
houses and he parked his car.’’ Johansen explained that
the defendant was ‘‘supposed to wait for [him] to get
back from breaking into the cars.’’ Johansen stated that
he broke into about twelve cars in all, stealing items
from inside each of them. After Johansen broke into
the cars, he made piles of the stolen items on the street
to come back and pick up later when he was finished.
Johansen claimed to have stolen a knife, a flashlight,
an mp3 player, an iPod, a laptop, and a suitcase from
the cars. When he was finished breaking into the cars,
he returned to where the defendant was supposed to
have been waiting for him, only to find that the defen-
dant had left. Johansen then walked back to where he
had parked his own car and returned to the area where
he had left the piles of stolen items. While Johansen
was picking up the stolen items, he was arrested by
state police.
In his written statement, Johansen further stated that
he had been living with the defendant for about one
month at the time of the break-ins but that this was the
first time he had ‘‘done anything like this with [the
defendant].’’ He admitted in his statement that he had
been using heroin for about four months at the time of
his arrest. He also explained that when he was arrested
on previous occasions, he ‘‘would give the stolen items
to [the defendant] . . . [who] would then barter these
items with a bondsman he knows so that [Johansen]
could get bonded out.’’
On August 13, 2009, the defendant was arrested by
state police in Hartford in connection with the Litchfield
car burglaries, and was transported to the state police
barracks in Litchfield by Holm. Prior to leaving the state
police barracks in Hartford, the defendant was read his
Miranda rights and signed a waiver of rights form.
During the drive to the Litchfield barracks, the defen-
dant spoke to Holm about his involvement in the inci-
dents that had occurred that morning. Holm testified
at trial that during this conversation, the defendant told
him that he had gone to Litchfield with the plan to
steal chain saws from trucks belonging to a tree service
company that would be left open by someone named
‘‘Jeff.’’ When the defendant and Johansen arrived at the
location of the tree service trucks, they found that the
truck’s doors were unlocked, but that no chain saws
were inside. The defendant then explained that
Johansen said he wanted to go up the street because
he knew where there were some vehicles he could break
into. The defendant thus drove Johansen up the street
and dropped him off. While Johansen was breaking into
vehicles, the defendant drove back and forth, ‘‘waiting
for Johansen to go into vehicles,’’ so that he could pick
him up when he was finished.
Lukienchuk testified that once the defendant arrived
at the Litchfield barracks, he took the defendant’s writ-
ten statement, which he read into the record at trial.
In his written statement regarding the Litchfield car
burglaries, the defendant stated that on August 12, 2009,
someone named ‘‘Jeff,’’ who owns a tree cutting busi-
ness, had offered to pay him $200 for one day of work,
but that the defendant would ‘‘ha[ve] to do something
else for him first.’’ Jeff explained that he wanted the
defendant to ‘‘rob another guy who had ripped him off’’
by stealing chain saws from some trucks owned by the
person who had ‘‘ripped off’’ Jeff. Jeff instructed the
defendant that he ‘‘would unlock all of the locks and
doors on the trucks,’’ and that ‘‘after [the defendant]
stole the [chain saws] . . . [he should] slash some of
the truck tires.’’ Jeff offered to buy the stolen chain
saws from the defendant, which he valued at about
$8000, for $3000. The defendant ‘‘agreed to this arrange-
ment,’’ and thus planned to meet Jeff at 2 a.m. on the
next morning, August 13, 2009.
In his written statement, the defendant further stated
that Johansen had said that he ‘‘wanted to go break
into some cars’’ in order to ‘‘make some real money.’’
The defendant thus drove Johansen ‘‘to a location where
there were some houses with cars in the driveway’’
and dropped off Johansen. The defendant then left the
immediate area and parked his car down the street,
where he stayed until he heard ‘‘a banging noise in the
distance,’’ which caused him to return at once to the
area where he had dropped off Johansen and to yell
for him to get in the car. The defendant saw that
Johansen was ‘‘now carrying a flashlight that [he] had
not seen him with earlier.’’ They drove about one mile
away, and the defendant again dropped off Johansen
so that he could break into more cars. While waiting
for Johansen to return, the defendant ‘‘saw a car coming
down the street with [its] hazard lights flashing,’’ and
was ‘‘concerned that this [might have been] someone
looking for’’ him and Johansen. The defendant ‘‘got
scared and drove away, leaving [Johansen] behind.’’ He
returned to the area three times looking for Johansen
and on one occasion saw a police car in the area. After
several unsuccessful attempts to locate Johansen, he
left the area and returned home.
In addition to introducing the defendant’s and
Johansen’s statements at trial through Lukienchuk, the
state also questioned Johansen about his involvement
in the Litchfield car burglaries. In his testimony,
Johansen, in the main, affirmed the portions of the
statement he had given to the police following his arrest
in connection with the Litchfield car burglaries regard-
ing his own culpability but he recanted the portions
in which he had implicated the defendant. Johansen
testified that on August 13, 2009, he drove to Litchfield
with the defendant to ‘‘pick . . . something up from
. . . somebody he knew,’’ but that when they arrived,
the ‘‘stuff . . . wasn’t there,’’ so Johansen ‘‘started
[burglarizing] cars.’’ Johansen asserted, contrary to his
statement to police, that the defendant had given him
a ride, but that the defendant was not involved in the car
burglaries. Johansen also denied that he had burglarized
the cars in Litchfield in order to repay the defendant
with stolen goods for the debt he owed him for pre-
viously bailing him out of jail.
At trial, the court gave limiting instructions to the
jury regarding the use of the prior misconduct evidence.
Following the testimony of Holm regarding the Litch-
field car burglaries, the court sua sponte gave the fol-
lowing limiting instruction to the jury: ‘‘Holm, who
testified to events in Litchfield and a conversation with
the defendant, and—I assume—the next witness [Lukie-
nchuk]—are testifying to alleged misconduct on the
part of the defendant. And that is offered only on the
issue of the defendant’s intent or motive in the crimes
that you are presently going to decide or decide next
week. We don’t offer or allow to be offered evidence
to prove the bad character of the defendant or his ten-
dency to commit criminal acts. Such evidence of mis-
conduct is only offered on the defendant’s intent and
motive concerning the four charges that you will be
deciding next week. You may not consider the evidence
from Trooper Holm or any of the other evidence that
has come out about the defendant’s misconduct or the
defendant’s activities in Litchfield—even if you believe
that evidence—as establishing a predisposition on his
part to commit any of the crimes currently charged or
to demonstrate a criminal propensity. Of course, if you
don’t believe the evidence or even if you do, if you
find it does not logically, rationally, and conclusively
support the issues on which it is offered, to wit, motive
and specific intent—that will be defined for you in great
detail—then you may not consider that testimony for
any purpose.’’
Additionally, before the statements of Johansen and
the defendant were read into the record by Lukienchuk,
the court, sua sponte, provided the jury with another
limiting instruction regarding its use of this evidence:
‘‘[T]he information contained in [Johansen’s] statement,
even if believed by you, is entered—as is the informa-
tion on [state’s exhibit] 56, which purports to be [the
defendant]’s statement—for the limited purpose that I
have just spoken to you about on some other evidence
that came in, particularly through Trooper Holm. That
is, when evidence of other misconduct of the defendant
is being offered, it is not admitted to prove bad character
or the defendant’s tendency to commit criminal acts.
In this case, such evidence is being admitted solely to
show or establish the defendant’s intent and motive in
the cases that currently are on trial, the four charges
that you will have to consider next week. You may not
consider such evidence as establishing a predisposition
on the part of the defendant to commit any of the
currently charged crimes or to demonstrate a criminal
propensity. You may consider such evidence if you
believe it and further find that it logically, rationally,
and conclusively supports the issues for which it is
being offered by the state, to wit, the defendant’s intent
on each of these conspiracy counts and accessory or
accomplice counts. If you don’t believe such evidence
or you don’t find it logically, rationally, and conclusively
supports the issues on intent and motive, then you may
not consider that testimony for any purpose.’’
In addition to its limiting instructions during the tak-
ing of evidence at trial, the court, in its final jury charge,
reiterated that ‘‘some testimony and exhibits have been
admitted for limited purposes. Wherever I have given
you a limiting instruction, you must follow it.’’ The court
further instructed the jury during its final instructions
that the evidence of the defendant’s prior acts of mis-
conduct, ‘‘is being admitted solely to show or establish
the defendant’s intent and motive for the commission
of the crimes alleged. You may not consider such evi-
dence as establishing a predisposition on the part of
the defendant to commit any of the crimes charged or
to demonstrate a criminal propensity. You may consider
such evidence if you believe it and further find that it
logically, rationally, and conclusively supports the
issues for which it is being offered by the state but only
as it may bear upon the issues of the defendant’s intent
and motive for the commission of the crimes alleged.
On the other hand, if you don’t believe such evidence,
or even if you do, if you find that it does not logically,
rationally, conclusively support the issues for which it
is being offered by the state—namely, the defendant’s
intent or motive for the commission of the crimes
alleged—then you may not consider that testimony for
any purpose.’’
Regarding Johansen’s statement to Lukienchuk con-
cerning the Litchfield car burglaries, the court stated:
‘‘Since it concerns the alleged prior misconduct by the
defendant, it has been admitted only on the issues of the
defendant’s intent and motive concerning the currently
pending charges under the heading misconduct of
defendant on pages 5 and 6 of [the] instruction[s].
‘‘Similarly, exhibit 56, the defendant’s statement, is
admitted only on the issue of his misconduct and may
be considered by you—prior misconduct, I should say—
and may be considered by you only on the issues of
intent and motive under all the guidelines and limita-
tions in that instruction. Again, I refer you back to pages
5 and 6.’’8
B
At the outset of our analysis of the defendant’s eviden-
tiary claim regarding prior misconduct, we note, as a
general proposition, that in reviewing claims of eviden-
tiary impropriety, we accord the trial court’s ruling sub-
stantial deference. As stated by our Supreme Court,
‘‘It is axiomatic that [t]he trial court’s ruling on the
admissibility of evidence is entitled to great deference.
. . . In this regard, the trial court is vested with wide
discretion in determining the admissibility of evidence
. . . . Accordingly, [t]he trial court’s ruling on eviden-
tiary matters will be overturned only upon a showing
of a clear abuse of the court’s discretion. . . . Further-
more, [i]n determining whether there has been an abuse
of discretion, every reasonable presumption should be
made in favor of the correctness of the trial court’s
ruling, and we will upset that ruling only for a manifest
abuse of discretion. . . . Despite this deferential stan-
dard, the trial court’s discretion is not absolute. . . .
Thus, [i]n reviewing a claim of abuse of discretion, we
have stated that [d]iscretion means a legal discretion,
to be exercised in conformity with the spirit of the law
and in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . In general, abuse
of discretion exists when a court could have chosen
different alternatives but has decided the matter so
arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors.’’ (Citations omitted;
internal quotation marks omitted.) State v. Jacobson,
283 Conn. 618, 626–27, 930 A.2d 628 (2007).
With those tenets in mind, we turn now to the defen-
dant’s specific evidentiary claim that the evidence of
the Litchfield car burglaries was improperly admitted
to prove his intent and motive to commit the charged
offenses. ‘‘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. . . . 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 commit the crime with which he is
now charged.’’ (Citations omitted; internal quotation
marks omitted.) State v. Braman, 191 Conn. 670, 675,
469 A.2d 760 (1983). The fact that such evidence, how-
ever, tends to prove the commission of other crimes
by an accused does not render it inadmissible if it is
otherwise relevant and material. Id., 675–76; see also
State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382
(1982); 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 may be admitted for
other purposes, such as to show intent, an element in
the crime, identity, malice, motive or a system of crimi-
nal 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).9
‘‘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. . . . The primary responsibility
for conducting the prejudicial-probative balancing test
rests with the trial court, and its conclusion will be
disturbed only for a manifest abuse of discretion. . . .
[W]e will indulge in every reasonable presumption in
favor of the trial court’s ruling.’’ (Citations omitted;
internal quotation marks omitted.) State v. Figueroa,
235 Conn. 145, 162, 665 A.2d 63 (1995).
The defendant argues that the court abused its discre-
tion by permitting the state to present prior misconduct
evidence at trial relating to the Litchfield car burglaries.
In response, the state contends that evidence of the
defendant’s prior misconduct with Johansen was proba-
tive of his motive and intent to commit the crimes of
which he was convicted in the case at hand. Specifically,
the state argues that the 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.10
As noted, the defendant was charged in four counts
with conspiracy to commit burglary and conspiracy to
commit larceny, and with being an accessory to bur-
glary and to larceny. To prove the defendant’s guilt of
each of these crimes, the state was required to demon-
strate the defendant’s specific intent to commit these
crimes. In support of the conspiracy counts, the state
was required to prove that the defendant, as a conspira-
tor, had the intent to conspire with Johansen, enter into
an illegal agreement and, further, that they had the
intent to commit the elements of the underlying
offenses of larceny and burglary. See State v. Jones, 44
Conn. App. 338, 342–43, 689 A.2d 517, cert. denied, 240
Conn. 929, 693 A.2d 301 (1997). In sum, and as noted
previously by a panel of this court, conspiracy is a
specific intent crime with intent divided into two com-
ponents: a person must intend to agree or conspire with
another, and that person must also intend to commit
the offense which is the subject of the conspiracy. See
State v. Douglas, 126 Conn. App. 192, 202, 11 A.3d 699,
cert. denied, 300 Conn. 926, 15 A.3d 628 (2011). So, too,
in order to prove the defendant guilty of the underlying
crimes of larceny and burglary, the state was required
to prove that the defendant had the specific intent to
enter the Hargrave home with criminal intent to steal.11
Thus, all of the criminal conduct charged by the state
required proof of the defendant’s intent.
The state argues, as well, that the admission of evi-
dence of the defendant’s past misconduct with
Johansen provided 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, at
trial, the jury heard from Johansen that he was indebted
to the defendant before February 4, 2010, and that when
the defendant conspired 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 defendant serves only to create an
implication that the defendant’s financial motive in
enticing Johansen may not have been realistic and that
his expectation may not have been fulfilled.
Accordingly, evidence probative of the defendant’s
intent and motive was relevant to the state’s burden of
proof at trial. ‘‘[E]vidence is relevant if it has a tendency
to establish the existence of a material fact.’’ (Internal
quotation marks omitted.) State v. Smith, 42 Conn. App.
41, 49, 680 A.2d 1340 (1996). As a panel of this court
has previously noted, ‘‘[b]ecause intent is almost always
proved, if at all, by circumstantial evidence, prior mis-
conduct evidence, where available, is often relied upon.
. . . [E]xtrinsic act evidence is often a useful source
of circumstantial evidence of what a person’s mental
state was on the occasion in question . . . . Evidence
is relevant if it has a logical tendency to aid the trier
in the determination of an issue. . . . All that is
required is that the evidence tend to support a relevant
fact even to a slight degree.’’ (Citations omitted; empha-
sis added; internal quotation marks omitted.) State v.
Irizarry, 95 Conn. App. 224, 234–35, 896 A.2d 828, cert.
denied, 279 Conn. 902, 901 A.2d 1224 (2006); see also
State v. Kalil, 136 Conn. App. 454, 463–65, 46 A.3d 272
(2012), to the same effect. We do not fault the court in
its determination that this evidence of motive and intent
was relevant.
We next address whether the court properly con-
cluded that the prior misconduct evidence was more
probative than prejudicial in ruling that the evidence
could be admitted at trial. When weighing the admissi-
bility of relevant prior misconduct evidence, a trial
court is required to conduct a further balancing assess-
ment of whether the evidence is more prejudicial than
probative. This inquiry is required in order to militate
against the risk that the attention of a jury may be
distracted from consideration of the proof of the
charges at hand, and, instead, and for improper reasons,
fix the defendant’s guilt on evidence of marginal eviden-
tiary value. ‘‘Of course, [a]ll adverse evidence is damag-
ing to one’s case, but it is inadmissible only if it creates
undue prejudice so that it threatens an injustice were
it to be admitted. . . . The court bears the primary
responsibility for conducting the balancing test to deter-
mine whether the probative value outweighs the preju-
dicial impact, and its conclusion will be disturbed only
for a manifest abuse of discretion.’’ (Internal quotation
marks omitted.) State v. Douglas, supra, 126 Conn. App.
219. In balancing whether evidence is more prejudicial
than probative, ‘‘[t]he test for determining whether evi-
dence is unduly prejudicial is not whether it is damaging
to the defendant but whether it will improperly arouse
the emotions of the jury.’’ (Internal quotation marks
omitted.) State v. Smith, 275 Conn. 205, 218, 881 A.2d
160 (2005).
Put differently, as our Supreme Court stated in State
v. James G., 268 Conn. 382, 399, 844 A.2d 810 (2004),
‘‘[U]ndue prejudice is not measured by the significance
of the evidence which is relevant but by the impact of
that which is extraneous.’’ (Emphasis omitted; internal
quotation marks omitted.) The court in James G.
observed that there are certain situations in which the
potential prejudicial effect of relevant evidence would
suggest its exclusion. They are: ‘‘(1) where the facts
offered may unduly arouse the jur[ors’] emotions, hos-
tility of sympathy, (2) where the proof and answering
evidence it provokes may create a side issue that will
unduly distract the jury from the main issues, (3) where
the evidence offered and the counterproof will consume
an undue amount of time, and (4) where the defendant,
having no reasonable ground to anticipate the evidence,
is unfairly surprised and unprepared to meet it.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 398.
None of the facts noted by the court in James G.
is present in this case. The prior misconduct, though
criminal, did not involve the sort of criminal behavior
likely to incite the passions of a jury; the evidence of
the defendant’s involvement in the Litchfield burglaries
and larcenies consisted of the defendant’s and
Johansen’s admissions of culpability. Thus, the state
did not have to derail the present trial with a side issue
or spend an inordinate amount of trial time in order to
prove the prior misconduct. Finally, because the state
filed its notice of intention regarding this evidence
before the start of trial, the defendant can make no
claim of surprise or lack of preparedness.
In assessing the trial court’s determination that the
evidence was more probative than prejudicial, we also
note that the trial court gave limiting instructions to
the jury during the trial testimony and, as well, gave
the jury oral and written instructions sculpting the jury’s
use of this evidence. Where the record reflects that the
court has ‘‘minimized any potential undue prejudice
[caused by the admission] of the prior misconduct evi-
dence by giving the jury detailed limiting instructions as
to the role the evidence was to play in its deliberations’’;
State v. Kalil, supra, 136 Conn. App. 469; we have con-
sidered that fact significant in determining whether the
court properly conducted the probative versus prejudi-
cial balancing test before admitting prior misconduct
evidence. See also State v. Douglas, supra, 126 Conn.
App. 221. As noted, the record reflects that with respect
to the defendant’s prior misconduct, the court gave the
jury extensive limiting admonitions during the trial and
included detailed instructions on this topic in its postev-
identiary written and oral instructions to the jury.
‘‘Absent evidence to the contrary, we presume that the
jury followed the court’s limiting instruction.’’ State v.
Messam, 108 Conn. App. 744, 758, 949 A.2d 1246 (2008).
On the basis of our thorough analysis of the record
and applicable decisional norms, we do not conclude
that the court’s admission of evidence of the defendant’s
prior misconduct was an abuse of discretion or resulted
in a manifest injustice.
II
The defendant next claims that his conviction of cer-
tain charges violated his constitutional right against
double jeopardy. In his reply brief and at oral argument
before this court, however, the defendant subsequently
withdrew certain aspects of this claim. He did so specifi-
cally because the state conceded that the failure to
merge the conviction of conspiracy to commit larceny
in the third degree with the conviction of conspiracy
to commit burglary in the third degree violated princi-
ples of double jeopardy, and because the court later
granted his motion to correct an illegal sentence and
vacated without prejudice the conviction of one of the
two conspiracy counts.
Thus, the only issue before us with regard to this
claim is whether the conviction of the conspiracy and
accessory charges violated the defendant’s constitu-
tional right against double jeopardy. The defendant
acknowledges that this issue has been decided by our
Supreme Court in State v. Johns, 184 Conn. 369, 378–79,
439 A.2d 1049 (1981), in favor of the state and that he
cannot distinguish the facts of his case from the relevant
legal precedent. In Johns, our Supreme Court held that
‘‘[i]t is evident that the statutory framework for each
offense, i.e., the crime of accessory to burglary in the
third degree and conspiracy to commit burglary in the
third degree, requires proof of a fact which the other
does not. . . . The elements of these crimes are differ-
ent.’’ (Citations omitted; internal quotation marks omit-
ted.) Id. Thus, we conclude, as to the portion of the
defendant’s claim that was not withdrawn, that his con-
viction of the conspiracy and accessory to burglary and
larceny charges did not violate his constitutional right
against double jeopardy.
III
The defendant has waived his final claim that the
court’s instructions to the jury on the charge of conspir-
acy were prejudicially erroneous. Our Supreme Court
has held that, ‘‘when the trial court provides counsel
with a copy of the proposed jury instructions, allows
a meaningful opportunity for their review, solicits com-
ments from counsel regarding changes or modifications
and counsel affirmatively accepts the instructions pro-
posed or given, the defendant may be deemed to have
knowledge of any potential flaws therein and to have
waived implicitly the constitutional right to challenge
the instructions on direct appeal.’’ State v. Kitchens,
299 Conn. 447, 482–83, 10 A.3d 942 (2011). Here, counsel
for the state and the defendant were provided with the
court’s proposed instructions, and were afforded the
opportunity to review them and express their concerns
and suggested changes to the court at a charging confer-
ence held on May 27, 2011. At no time during the charg-
ing conference did the defendant’s counsel challenge
the court’s instructions on the elements of conspiracy.
Because the defendant did not challenge these instruc-
tions at trial, we deem this claim waived.
The judgment is affirmed.
In this opinion LAVINE, J., concurred.
1
For ease of reference, we refer to Gerald Hargrave as Hargrave.
2
Both Johansen and Frederick Colby gave written statements to the police,
while in custody, in which they implicated the defendant in the commission
of the burglary and larceny of Hargrave’s home. At trial, both Johansen and
Colby, who were called as witnesses by the state, recanted portions of
their written statements and testified, contrary to their statements, that the
defendant was not involved. Johansen and Colby were held in nearby holding
cells in the lockup of the Manchester Police Department. Johansen had
been arrested in connection with the Hargrave burglary, and Colby had been
arrested in connection with an unrelated series of car burglaries. Colby
testified that, when they were in nearby holding cells, Johansen devised a
plan to lower his own bond by giving the police a false statement implicating
the defendant in the Hargrave burglary and having Colby corroborate that
statement by giving his own sworn statement confirming the false allega-
tions. Colby testified that Johansen instructed him to tell the police ‘‘that
[the defendant had] told [Johansen] how to get in’’ to Hargrave’s house. The
two men purportedly agreed to this plan in the course of several conversa-
tions they had with each other through the bars of their jail cells in Manches-
ter. At trial, Johansen testified that he had ‘‘filed a false statement’’ against
the defendant because he ‘‘was upset’’ with the defendant for having sold
his car to satisfy an outstanding debt that he had owed to the defendant.
Johansen testified, contrary to his written statement that, in actuality, the
defendant ‘‘had nothing to do with the crime at all.’’ He further testified
that at the time he gave his statement to the police, he was under the
influence of Xanax.
After Johansen’s and Colby’s testimony, in which they stated that the
defendant was not involved, their written statements implicating the defen-
dant in the burglary were admitted into evidence pursuant to State v. Whelan,
200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597,
93 L. Ed. 2d 598 (1986). Thus, the substance of their written statements came
into evidence not only to impeach Johansen and Colby but, substantively, as
proof of the defendant’s guilt.
3
As part of the state’s case, the jury heard testimony from Ellen Riemer,
an Ellington neighbor of the Hargraves, who drove by the home at approxi-
mately 11:30 a.m. on February 10, 2010. She testified that she observed a
car in the Hargraves’ driveway and two men who appeared to be securing
a tarp to the top of the car. She stated that when she made eye contact
with the individuals, ‘‘they sort of looked back at me.’’ She indicated, as
well, that neither of the men ran when she saw them or took any other
furtive action At trial, Johansen testified that he first went to the back door
to avoid detection and not because the defendant had told him a door would
be left open for him. In assessing the veracity of Johansen’s recanting
of his Whelan statement implicating the defendant, the jury could give
consideration to the incongruity of the behavior of Johansen and Kozubenko,
securing the fruits of their larceny in plain sight of this passerby with
Johansen’s claim, at trial, that he first went to the back door in order to
avoid detection.
4
While the record discloses that the defendant had also been charged
with a part B information and the court stated that the state had proven its
part B allegations, the court did not expressly make a finding of guilt regard-
ing part B of the information. Rather, the court indicated that it would
take the defendant’s past criminal convictions into account in formulating
its sentence.
5
Johansen testified at trial that at the time of the Hargrave burglary, he
still was indebted to the defendant for having previously bailed him out of jail.
6
We draw no inference from the absence, in the court ruling, of any
discussion of its reasoning in concluding that the misconduct evidence was
relevant to intent and motive. Nor do we draw any inference from the
absence, in the record, of any discussion by the court of the factors it
considered in conducting the balancing test regarding whether the evidence
was more prejudicial than probative. Because the defendant did not request
an articulation by the court, we presume, as the court is entitled, that the
court properly fulfilled its responsibilities in this part of the trial proceedings.
In sum, although the court did not explicitly discuss the basis of its ruling
that the evidence was relevant to motive and intent or its reasoning regarding
the balancing test, we will not infer error from this silence because ‘‘the
court is presumed to know the law and apply it correctly to its legal determi-
nations.’’ (Internal quotation marks omitted.) State v. Kuncik, 141 Conn.
App. 288, 295, 61 A.3d 561, cert. denied, 308 Conn. 936, 66 A.3d 498 (2013).
7
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
8
The court’s written instructions, given to the jury for reference during
deliberations, include the following regarding the evidence of the defendant’s
prior misconduct: ‘‘Misconduct of Defendant. The state has offered evidence
of other acts of misconduct of the defendant. This is not being admitted to
prove the bad character of the defendant or the defendant’s tendency to
commit criminal acts. Such evidence is being admitted solely to show or
establish the defendant’s intent and motive for the commission of the crimes
alleged. You may not consider such evidence as establishing a predisposition
on the part of the defendant to commit any of the crimes charged or to
demonstrate a criminal propensity. You may consider such evidence if you
believe it and further find that it logically, rationally and conclusively sup-
ports the issues for which it is being offered by the state, but only as it may
bear on the issues of intent and motive. On the other hand, if you do not
believe such evidence, or even if you do, if you find that it does not logically,
rationally and conclusively support the issues for which it is being offered
by the state, namely, intent and motive, then you may not consider that
testimony for any purpose. You may not consider evidence of other miscon-
duct of the defendant for any purpose other than the ones I’ve just told
you, because it may predispose your mind uncritically to believe that the
defendant may be guilty of the offense here charged merely because of the
alleged other misconduct. For this reason, you may consider this evidence
only on the issues of intent and motive, and for no other purpose.’’
9
In Connecticut, the general rule is embodied in § 4-5 of the Connecticut
Code of Evidence, which is entitled ‘‘Evidence of Other Crimes, Wrongs or
Acts Inadmissible to Prove Character; Admissible for Other Purposes; Spe-
cific Instances of Conduct.’’ That section provides: ‘‘(a) Evidence of other
crimes, wrongs or acts inadmissible to prove character. Evidence of other
crimes, wrongs or acts of a person is inadmissible to prove the bad character
or criminal tendencies of that person.
‘‘(b) When evidence of other crimes, wrongs or acts is admissible. Evi-
dence of other crimes, wrongs or acts of a person is admissible for purposes
other than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.’’ Conn. Code Evid. § 4-5.
10
At trial, the state argued that the prior misconduct evidence was admissi-
ble to prove the defendant’s relationship to Johansen. Although the court
permitted the evidence only to prove intent and motive, we are aware of
substantial decisional law opining that a defendant’s past relationship with
another may be admitted in a conspiracy prosecution. See, e.g., State v.
Jones, 46 Conn. App. 640, 652, 700 A.2d 710 (when defendant charged with
conspiracy, prior misconduct evidence admissible to establish relationship
between defendant and coconspirators), cert. denied, 243 Conn. 941, 704
A.2d 797 (1997); see also State v. Harris, 43 Conn. App. 830, 836–37, 687
A.2d 544 (1996) (when defendant charged with conspiracy to commit murder,
evidence of drug operation admissible to show relationship among vari-
ous individuals).
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 in 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. Additionally, the risk that it could be taken
as propensity evidence was mitigated, as noted previously, by the court’s
thorough limiting and final instructions to the jury.
11
In this regard, it is not legally relevant that the defendant did not intend
to enter the home himself but, rather, that he intended for Johansen to do
so. Accessorial culpability may be imposed on the basis of advice and
impulse given to Johansen by the defendant.
General Statutes § 53a-8 (a) provides that the requirements for accessorial
liability are as follows: ‘‘[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.’’