State v. Lanier

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 STATE OF CONNECTICUT v. TRAVIS LANIER
(AC 43671)
Bright, C. J., and Moll and Bear, Js.

Syllabus

Convicted of the crime of burglary in the second degree in connection with
a confrontation in the victim’s apartment, the defendant appealed to
this court, claiming, inter alia, that his constitutional rights to confronta-
tion and to present a defense were violated when the trial court pre-
cluded him from cross-examining the victim about matters pertaining
to the victim’s bias against him and motive to falsify his claims to the
police. The victim, the defendant and M had been at a bar when the
defendant asked the victim if he could borrow twenty dollars. The victim
gave the defendant the money and stated that he had other money at
home for his rent. When the bar closed, the defendant invited the victim
to his apartment, where he and M punched the victim and asked him
about a watch he allegedly had stolen from M. The men then went to
the victim’s apartment, where the defendant took $400 and threatened
to shoot the victim if he talked to the police. The state charged the
defendant with six crimes, including burglary in the second degree by
entering or remaining unlawfully in the victim’s apartment with the
intent to commit any, some or all of the underlying crimes of robbery
in the first degree, robbery in the second degree, threatening in the
second degree in violation of statute (§ 53a-62 (a) (1)) and larceny in
the sixth degree. Prior to trial, the defendant filed a motion in limine
seeking to impeach the victim’s credibility with evidence of his felony
conviction of driving while under the influence of intoxicating liquor or
drugs, which had occurred prior to the incident with the defendant and
M, and for which the victim was serving a sentence of probation both
at the time of the incident with the defendant and M and at the time of
trial. The defendant claimed, inter alia, that there would likely be testi-
mony that the victim’s conduct during the incident with the defendant
and M violated the terms of the victim’s probation, and that such evi-
dence was relevant to the victim’s state of mind during the incident and
motive to fabricate claims against the defendant. The defendant also
sought to question the victim about a violation of the victim’s probation
that occurred prior to the pendency of this case, asserting that, because
the victim had not been incarcerated as a result of that violation, he
had an interest in staying in the state’s good graces, which was relevant
to his veracity and motive to falsify claims against the defendant. The
defendant further contended that, because M claimed that the victim
had stolen his watch, the victim would have a motive to fabricate his
allegations against the defendant if he knew that a condition of his
probation was that he not have any new arrests. The trial court denied
the defendant’s motion but permitted him to question the victim regard-
ing his felony conviction, the name of the crime of which he had been
convicted and the fact that he was on probation as a result of that
conviction at the time of the incident with the defendant and M and at
the time of trial. Held:
1. The trial court did not impermissibly infringe on the defendant’s constitu-
tional rights to confrontation or to present a defense and did not abuse
its discretion in limiting his cross-examination of the victim: although
the court did not explicitly find that the defendant’s proffered line of
questioning was irrelevant, it determined that it was speculative and
that its probative value was outweighed by its prejudicial effect, the
issues related to the victim’s probationary status, which the court
excluded, were marginally related, at best, to the issues in the case, and
the defendant failed to provide a sufficient foundation to support his
claim that his proffered line of questioning related to the victim’s motive
to fabricate the allegations against him, as it strained credulity to believe
that the victim would initiate contact with the police if he was worried
that they would learn he had been drinking alcohol or that the defendant
and M would accuse him of larceny as to M’s watch; moreover, the
defendant’s attempt to characterize his proffered line of questioning as
 relating to the victim’s state of mind was tenuous and did not change
its speculative nature, this court having previously determined that spec-
ulative evidence is irrelevant; furthermore, defense counsel undertook
an extensive and robust cross-examination of the victim that addressed
many inconsistencies in his testimony, and the jury found the defendant
not guilty of five of the six charges against him, which indicated that
it did not credit all of the victim’s testimony.
2. The defendant could not prevail on his unpreserved claim that the trial
court’s jury instruction on burglary in the second degree misled the
jury because the court did not define the terms ‘‘physical threat’’ and
‘‘imminent’’ as elements of the underlying crime of threatening in the
second degree:
a. The defendant was not entitled to review of his claim pursuant to
State v. Golding (213 Conn. 233), as it was clear from the record that,
under State v. Kitchens (299 Conn. 447), he implicitly waived his right
to challenge the trial court’s instructions on appeal; defense counsel
had a meaningful opportunity to review, comment on and suggest modifi-
cations to the court’s proposed instructions, she affirmatively accepted
the instructions as proposed by repeatedly telling the court that she
had no other issues to raise concerning the instructions, the proposed
instructions were provided to defense counsel six days prior to when
the jury was charged, defense counsel had the opportunity, overnight,
to review the final jury instructions as modified from the charging confer-
ence with the court, and at no time before or after the final charge did
defense counsel raise any issue or objection concerning the instructions
as they related to the underlying crime of threatening.
b. The defendant’s assertion that the state failed to provide an adequate
record to show that he waived his instructional claim was unavailing:
although the record did not contain a copy of the trial court’s proposed
jury charge, which had not been made an exhibit at trial, and despite the
defendant’s contention that there was not enough evidence to determine
what was in the draft of the court’s proposed instructions, the record
was adequate for this court to closely examine the particular facts and
circumstances and to make a determination as to whether the defendant
had implicitly waived his right to challenge the instructions on appeal,
as the trial court had held an on-the-record charging conference in which
it addressed each jury instruction the parties requested, and gave the
parties multiple opportunities to comment on them and on the court’s
proposed instructions; moreover, the waiver rule in Kitchens did not
require that a copy of the proposed instructions be marked as an exhibit
but, rather, only evidence that the court gave the parties a copy of the
proposed instructions, and that the reviewing court’s determination of
implied waiver be based on a close examination of the record and the
particular facts and circumstances of the case.
c. Contrary to the defendant’s alternative claim, the trial court did not
commit plain error when it failed to include the definitions of ‘‘physical
threat’’ and ‘‘imminent’’ in its jury charge relating to the underlying
crime of threatening in the second degree, as this court previously has
determined that a ‘‘threat,’’ consistent with its dictionary definition, is
an expression of intent to cause future harm, and the defendant did not
demonstrate that ‘‘imminent,’’ as used in § 53a-62, has anything other
than its ordinary meaning: because the jury returned a general verdict
on the burglary charge, it was unknown whether the verdict was based
on the underlying crime of threatening or the underlying crime of larceny
in the sixth degree, any error in the court’s instructions on threatening
was harmless beyond a reasonable doubt, as the evidence was sufficient
to support the defendant’s conviction of burglary on the basis of the
underlying crime of larceny, which the defendant conceded in his appel-
late brief, the defendant did not raise any challenge to the jury instruc-
tions, and he did not show that the verdict was based on a legally
inadequate underlying theory of conduct on his part or allege that the
court misstated the law, that the state’s theory of conviction was time
barred or that his actions were constitutionally protected.
Argued March 9—officially released July 6, 2021

Procedural History

Two part substitute information charging the defen-
dant, in the first part, with the crimes of conspiracy to
commit robbery in the first degree, conspiracy to com-
mit robbery in the second degree, robbery in the first
degree, robbery in the second degree, assault in the
second degree and burglary in the second degree, and,
in the second part, with being a persistent felony
offender, brought to the Superior Court in the judicial
district of Middlesex, where the court, Suarez, J.,
denied the defendant’s motion to admit certain evi-
dence; thereafter, the first part of the information was
tried to the jury; verdict of guilty of burglary in the
second degree; subsequently, the defendant was tried
to the court on the second part of the information;
finding of guilty; thereafter, the court rendered judg-
ment in accordance with the verdict and the finding,
from which the defendant appealed to this court.
Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Michael A. Gailor, state’s
attorney, and Russell C. Zentner, senior assistant state’s
attorney, for the appellee (state).
 Opinion

BEAR, J. The defendant, Travis Lanier, appeals from
the judgment of conviction, rendered following a jury
trial, of burglary in the second degree in violation of
General Statutes § 53a-102 (a). He claims that (1) the
trial court violated his constitutional rights to confron-
tation and to present a defense when it precluded him
from cross-examining the victim regarding matters that
allegedly concerned the victim’s bias against the defen-
dant and motive to falsify his claims to the police regard-
ing the defendant, and (2) the court’s jury instruction on
burglary in the second degree misled the jury because
it did not define the elements of threatening in the
second degree, which was one of the alleged underlying
crimes for the burglary charge.1 We disagree and affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. On the evening of January 28, 2018, at about 11
p.m., after the victim, Alejandro Marrinan, had finished
working, he went to a local bar in Middletown called
the Corner Pocket. While at the bar, he encountered
the defendant, whom he had met on previous occasions
at the bar and who went by the name ‘‘Taz.’’ The defen-
dant was at the bar with two other individuals, a man
named Mason Moniz and Moniz’ mother. At some point,
the defendant bought the victim a drink, and the two
had a conversation. The defendant asked to borrow
twenty dollars from the victim, who gave him the money
and stated, ‘‘I have my other money at home for my
rent.’’2 The victim testified that he stayed at the bar
with the defendant until the bar closed at 1 a.m., at
which time the defendant invited the victim and Moniz
to his apartment. Before they left the bar, they bought
beer to bring to the apartment.
At the defendant’s apartment, when the victim was
taking off his jacket, he turned around and was punched
in the face by the defendant and ‘‘knocked out.’’ The
victim testified that he was ‘‘out cold’’ or unconscious
for about thirty seconds, and that he remembered the
defendant picking him up and hitting him again, this
time in the mouth. Thereafter, he also was hit by Moniz.
At that time, the defendant and Moniz asked the victim
about a watch,3 and stated that they were going to go
to the victim’s apartment to get his money or they were
going to hurt him.
While the three men walked to the victim’s apartment,
which was on Main Street in Middletown, the victim
walked slowly because he had dialed 911 on his cell
phone, which was in his pocket, and hoped that the
call would alert the police to his location. The victim
testified that, during that time, the defendant and Moniz
walked behind him and pushed him. When they arrived
at the victim’s apartment, the defendant was very angry
and demanded that the victim open the door. The victim
testified that the defendant and Moniz forced him to
go inside his apartment, and, once inside, the defendant
said, ‘‘give me the money, where’s the money?’’ The
victim kept his money in a bank envelope in a bedroom
closet, with $400 folded in the envelope and $400 the
long way in the envelope. When the victim took the
envelope out of the closet, the defendant grabbed the
envelope, took the money and left the room, stating
that he would shoot or hurt the victim if the victim
talked to the police. Although the envelope contained
$800, the victim testified that the defendant took only
$400. The defendant and Moniz then left the apartment,
and the victim called 911 again. This time, the victim
spoke to a 911 operator and stated that two people had
just robbed him, that the two individuals were walking
down the street, and that he was scared for his life
because one of the robbers had threatened to shoot
him if he talked to the police. During that call, the victim
also stated that he had been hanging out with friends
when the incident occurred and that, after the defen-
dant took his money, the defendant asked if the victim
wanted to go back to the defendant’s apartment.
Officer Kyle Pixley of the Middletown Police Depart-
ment was working a late shift on the evening of January
28, 2018, into the morning of January 29, 2018, when
he received a call at 2:47 a.m. from police dispatch to
go to the north end of Main Street to canvass the area
for two suspects involved in an armed robbery. Once
there, he saw two individuals who matched the descrip-
tions of the suspects walking northbound on the side-
walk on the east side of Main Street, just south of
Rapallo Avenue, and they were the only two people on
Main Street at that time. He drove his police cruiser
alongside the suspects, stopped, got out, and asked
them to show him their hands. The men ignored the
officer and continued to walk in a northbound direction,
at which point the officer drew his pistol and asked
several more times for them to comply. Moniz stopped,
raised his hands, and ‘‘froze,’’ while the defendant kept
walking and rounded the corner onto Rapallo Avenue,
out of Officer Pixley’s sight. At that time, Officer Jeffrey
Scoppetto of the Middletown Police Department had
arrived at the corner of Main Street and Rapallo Avenue,
stopped his police cruiser on Rapallo Avenue, got out
of his vehicle, and approached the defendant, who was
walking in an easterly direction on Rapallo Avenue.
Initially, the defendant did not comply with the requests
of either officer to come back, but he eventually walked
back toward Officer Pixley. After the defendant and
Moniz were handcuffed, Officer Pixley walked around
the corner onto Rapallo Avenue to see if the defendant
had discarded a weapon or other evidence, and he found
two 100 dollar bills lying on the sidewalk, which were
taken and tagged as evidence. Two 50 dollar bills were
taken from Moniz and also tagged as evidence.
In response to the victim’s second 911 call concern-
ing a robbery, Sergeant Nicholas Puorro and Officer
Michael Pellegrini of the Middletown Police Depart-
ment went to the victim’s apartment, where they inter-
viewed the victim. Sergeant Puorro observed that the
victim was ‘‘shaken up,’’ nervous, and scared, and had
visible injuries about his face. Thereafter, Officer Pelle-
grini took the victim in his police cruiser to the area
of Main Street and Rapallo Avenue, where the defendant
and Moniz had been detained on the sidewalk. Officer
Pellegrini asked the victim to identify the two suspects,
and he did so ‘‘[i]mmediately’’ and ‘‘[w]ithout hesita-
tion.’’ After the identifications were made by the victim,
which occurred at 3:20 a.m., he was taken back to his
apartment, and he subsequently was transported by
ambulance to a hospital after complaining to Officer
Pellegrini about a head injury. The victim told staff
at the emergency department of the hospital that he
thought he might have been drugged. Matthew Dolan,
an emergency medical doctor, saw the victim in the
early morning of January 29, 2018, and ordered certain
tests because the victim had signs of blunt trauma to
his face. The results of those tests indicated that the
victim’s nose was broken.
The defendant was arrested and charged in a third
substitute information with having committed the fol-
lowing crimes: in count one, conspiracy to commit rob-
bery in the first degree in violation of General Statutes
§§ 53a-48 (a) and 53a-134 (a) (1); in count two, conspir-
acy to commit robbery in the second degree in violation
of General Statutes §§ 53a-48 (a) and 53a-135 (a) (1) (A);
in count three, robbery in the first degree in violation
of § 53a-134 (a) (1); in count four, robbery in the second
degree in violation of § 53a-135 (a) (1) (A); in count
five, assault in the second degree in violation of General
Statutes § 53a-60 (a) (1); and in count six, burglary in
the second degree in violation of § 53a-102 (a). Specifi-
cally, in count six, the state alleged that the defendant
committed burglary in the second degree by entering
or remaining unlawfully in the victim’s apartment some-
time between 1 and 2:50 a.m. on January 29, 2018, while
the victim was present, with the intent to commit a
crime therein, namely, robbery in the first degree as
alleged in count three, and/or robbery in the second
degree as alleged in count four, and/or threatening in
the second degree in violation of General Statutes § 53a-
62 (a) (1), and/or larceny in the sixth degree in violation
of General Statutes § 53a-125b (a). The defendant also
was charged in a part B information with being a persis-
tent felony offender in violation of General Statutes
§ 53a-40 (g) as a result of his two prior convictions in
2006 and 2000 of possession of narcotics in violation
of General Statutes § 21a-279 (a).
Following a jury trial, the jury found the defendant
guilty of burglary in the second degree as alleged in
count six and not guilty of the charges in counts one
through five. Thereafter, on June 7, 2019, a trial was
held before the court with respect to the part B informa-
tion, and the defendant was found guilty and adjudi-
cated to be a persistent felony offender. The court there-
after sentenced the defendant on count six to seven
years of incarceration, followed by three years of spe-
cial parole with special conditions. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
The defendant’s first claim is that the court violated
his constitutional rights to confrontation and to present
a defense when it prevented him from cross-examining
the victim about matters that he claimed were highly
relevant to the victim’s bias against the defendant and
motive to falsify his claims to the police. We disagree.
The following additional facts are relevant to this
claim. On April 26, 2019, prior to the commencement
of trial, the defendant filed a motion in limine,
requesting ‘‘that the court allow him to impeach the
[victim’s] credibility with evidence of the [victim’s] fel-
ony conviction and to confront him with certain con-
duct, while on probation, which [was] probative of his
lack of veracity.’’ Specifically, the victim had been con-
victed in 2017 of the felony of operating a motor vehicle
while under the influence of intoxicating liquor or
drugs, and, at the time of the incident underlying the
criminal charges against the defendant, the victim was
serving a period of probation in connection with that
conviction. In his motion, the defendant stated that he
was seeking to cross-examine the victim, a key witness
for the state, ‘‘on evidence of prior crimes, as well as
the status, standard conditions, and special conditions
of the probationary period that he is currently serving,
in addition to the facts and circumstances surrounding
his conviction, the original sentence and the sentence
following a violation of probation.
‘‘In this case, where there is suspended prison time
hanging over the [victim], the fact that a jury might
reasonably contemplate that a person in such a situation
might have a tendency to wish to curry favor with the
prosecuting authorities is a legitimate [ground] of cross-
examination. Secondly, where there will likely be testi-
mony from the [victim] and other witnesses that [the
victim’s] conduct at the time of the alleged incident
[violated] the terms and conditions of his probation,
[such evidence], at [a] minimum, goes to the state of
mind of the [victim], and certainly towards the [victim’s]
motive to fabricate. As such, these are matters properly
considered by a jury. . . . These facts are different
from mere impeachment as a result of prior criminal
convictions and go directly towards the jury’s ability to
weigh the credibility of the [victim].’’ (Citation omitted.)
In his motion, the defendant acknowledged that the
victim’s felony conviction did not involve a crime that
necessarily related to the victim’s credibility but argued
that the court should balance the probative value of
the evidence against its prejudicial effect. According to
the defendant, the fact that the victim previously had
been convicted of a crime that did not directly reflect
on his credibility did not bar admission of evidence of
that conviction, as the jury could simply afford less
weight to the evidence if it chose to do so.
On May 10, 2019, the court held a hearing on the
defendant’s motion in limine. At the hearing, defense
counsel stated that she wanted to ask the victim about
the fact that the victim previously had violated his pro-
bation, although that violation did not occur during the
pendency of this case.4 Specifically, defense counsel
argued that, because the victim previously had violated
his probation and was not incarcerated as a result of
that violation, he had an interest in making sure that
he stayed ‘‘in the state’s good graces . . . .’’ Defense
counsel stated: ‘‘That certainly goes to any motive to
fabricate, also veracity. We do have the fact that he is
being accused throughout these allegations of larceny.
He has recently—again, he has experienced the effect
of being arrested while on probation and having the
risk of going back to jail three weeks before, and he
did not. So, certainly he is on notice that, if it happens
again, which could have happened if—if he had been
reported for this larceny, that he could have violated
again shortly—in very short succession, and my guess
is, the state would not have looked quite as kindly on
him for the second violation.’’ The court responded,
stating, ‘‘[t]hat’s all too speculative. That’s way too spec-
ulative. There are many reasons why somebody can get
violated [on] probation. It’s way too speculative.’’
In an oral decision, the court denied the defendant’s
motion in limine, stating: ‘‘So, first of all, our courts
have held that the sixth amendment right to compulsory
process is limited by controverting public interest and
the rules of evidence. The constitution does not require
that a defendant be permitted to present every piece
of evidence he wishes. The trial court retains the power
to rule on admissibility of evidence pursuant to tradi-
tional evidentiary standards.
‘‘In Connecticut, we have a Code of Evidence, which
specifically addresses the issue of prior convictions.
Section 6-7 . . . states that ‘[f]or the purpose of
impeaching the credibility of a witness, evidence that
a witness has been convicted of a crime is admissible
if the crime was punishable by imprisonment of more
than one year. In determining whether to admit evi-
dence of a conviction, the court shall consider the
extent of the prejudice likely to arise, the significance
of the particular crime in indicating untruthfulness, and
the remoteness in time of the conviction.’
‘‘Before the court are requests to allow the defendant
to cross-examine the [victim] on his [operating a motor
vehicle while under the influence] conviction and a
violation of that probation. The violation of that proba-
tion arose as a result of an action prior to the incident
here in question. The [victim] remains on probation.
‘‘Of course, every cross-examination based on a con-
viction has, in itself, a degree of prejudice. To this court,
the question really is what’s the probative value? Having
considered the prejudice and the probative value of
what’s being requested, the court will order as follows.
The defendant may inquire of the [victim] of a prior
felony conviction, and the defendant may inquire as to
whether or not he is currently on probation. Any inquiry
as to whether or not he violated that probation, [or the]
basis of the violation of that probation, the court finds
that its probative value is outweighed by its [prejudice].
Therefore, the court is going to limit the inquiry as to
those two areas.’’
On direct examination by the state, the victim
acknowledged that he had a prior felony conviction in
2017 for operating a motor vehicle while under the
influence of intoxicating liquor or drugs. He also testi-
fied that he was on probation for that offense. Before
the commencement of cross-examination, the state
made an oral motion in limine to preclude the defendant
from asking the victim about whether the victim thought
that his consumption of alcohol on the night in question
could result in a violation of a condition of his proba-
tion. In response, defense counsel asked the court that
she be able to question the victim about his consump-
tion of alcohol on the night in question. The following
colloquy transpired:
‘‘[Defense Counsel]: . . . It may not—based on the
state’s representation, even though [the victim’s con-
sumption of alcohol] may not be a technical violation
[of his probation], it could change the conditions of his
current probation. If he had finished substance abuse
treatment and his probation officer learned that he was
now consuming excess amounts of alcohol, then the
probation officer could potentially change those condi-
tions, require him to go back into treatment. That may
be something that the [victim] would wish to avoid and,
because of that, he may not want the probation officer
to get information about what had happened that night,
the fact that he was consuming potentially excess
amounts of alcohol, that he was intoxicated, as he repre-
sented in the emergency room. And for those reasons,
the defense believes that probing into that line of ques-
tioning is relevant to his motive to fabricate, his verac-
ity, and we believe that we should be able to have that
opportunity to question him.
‘‘The Court: Well, isn’t that speculative, whether or
not the probation officer may or may not use this to
violate his probation? He hasn’t done it yet.
‘‘[Defense Counsel]: Well, it is in the mind of the
[victim], whether he has those concerns, we should be
able to ask him about, because that may lead him to
have a motive to fabricate. So, he may speculate, but
that is something that we should be able to question
him about. Did he have those concerns?
‘‘[The Court]: No. But isn’t that speculation on your
part? I mean, you’re assuming that the probation officer
may violate him if he—if he drank alcohol.
‘‘[Defense Counsel]: I’m not—I’m not assuming that
the probation officer would violate him if he drank
alcohol. What we would want to question the witness
about is whether or not he knew that one of the condi-
tions of his probation was substance abuse treatment
and whether he knew that, potentially, the knowledge
of him being intoxicated on that night or drinking exces-
sive amounts of alcohol while he’s on probation for a
felony [conviction of operating a motor vehicle while
under the influence] could potentially change those con-
ditions of his probation.
‘‘I’m not speculating as to whether it would, but we
believe that being able to question him about his
thoughts on that, whether he knew those [conditions]
of his probation is relevant and necessary in order to
delve into his motive to fabricate and his veracity.
‘‘The Court: Okay.
‘‘[Defense Counsel]: And bias, for that matter. Thank
you.
‘‘[The Prosecutor]: Your Honor, I would direct the
court’s attention to § 6-6 of the Connecticut Code of
Evidence, subsection (b), on specific instances of con-
duct where it says [the] general rule, where it’s codified
that a witness may be asked, in good faith, about spe-
cific instances of conduct of the witness, if probative
of the witness’ character for truthfulness. The fact that
he consumed alcohol is not something that would be
probative of his truthfulness. . . .
‘‘[Defense Counsel]: Your Honor, just in response,
the defense filed a motion specifically delving into this
area regarding the [victim’s] state of mind. The court
has made a ruling regarding our questioning of him on
probation, the fact that he was on probation at the time,
the fact that he’s on probation now, the fact that he
has that felony conviction for [operating a motor vehicle
while under the influence]. This goes specifically to his
state of mind at the time and is particularly relevant to
show motive, bias, or interest, and there is case law in
Connecticut that any evidence tending to show motive,
bias, or interest of an important witness is never collat-
eral or irrelevant.
‘‘We should be able to question him about that, about
his state of mind at the time and whether or not he
may have had an interest at the time, knowing that he
was on probation and that this event did happen. We
should be able to question him about that in order to
determine what his state of mind was at the time and
if he had any motive, bias, or interest at that time. . . .
‘‘The Court: Are you familiar with § 6-7 of the [Con-
necticut Code of Evidence]? . . .
‘‘[Defense Counsel]: Yes.
‘‘The Court: And it talks, as a general rule, of
impeaching the credibility of a witness, evidence that
a witness has been convicted of a crime is admissible
if the crime was punishable by imprisonment for more
than one year. In determining whether to admit evi-
dence of a conviction, the court shall consider the
extent of the prejudice likely to arise, the significance
of the particular crime indicating untruthfulness, and
the remoteness in time of the conviction.
‘‘There are several cases that talk about what types
of crimes may be admitted for untruthfulness, lack of
veracity. And the [Connecticut] Code [of Evidence] still
leaves it to the discretion of the court as to whether
or not to admit it or not, and the court has to impose
a balancing act, probative value versus prejudicial
[effect].
‘‘Now, I allowed you yesterday, or whenever we heard
the motion, to ask questions as to his conviction of a
felony [for operating a motor vehicle while under the
influence]. I’m not sure that [such] a felony [conviction]
goes toward veracity. It’s not a crime of larceny. It’s
not a crime of fraud or things of that sort. It’s a felony.
So, I allowed you to question him on that basis, and I
went beyond that and allow[ed] you to ask whether or
not he’s on probation for that.
‘‘The [Connecticut] Code [of Evidence] limits the sub-
ject matter of proof to the introduction that the witness
has been convicted of a crime. The court shall limit the
crime by its name and when and where the conviction
was rendered. Except that the court may exclude evi-
dence of the name of the crime and, if the witness
denies the conviction, the court may permit evidence
of the punishment imposed. That’s if the victim . . .
denies the conviction.
‘‘I think I—I think I’ve granted you extra latitude by
allowing you to inquire as to whether or not he’s on
probation. But whether or not he’s going to be violated
for his probation, this incident occurred a year ago, a
year and a half ago. Whether or not he’s going to be
violated or not I think goes beyond that scope.
‘‘[Defense Counsel]: Your Honor, if I may just
respond? The court did make a ruling regarding the
defense being able to question the [victim] about being
on probation at the time and also being on probation
today.
‘‘The Court: Right.
 ‘‘[Defense Counsel]: That is a separate matter from
whether or not he has a felony conviction that goes
directly towards veracity. The court also ruled that we
could discuss the fact that he has a felony conviction.
In fact, the state already elicited that information from
the [victim].
‘‘The Court: Right.
‘‘[Defense Counsel]: And the state also elicited the
information regarding the [victim] being on probation.
The questions that the defense is seeking or may seek
to ask the [victim] [do] not go to whether or not he
was on probation but whether his state of mind at the
time could have been affected by the knowledge that
being on probation and being intoxicated at the time
could give him some motive, interest, or bias to fabri-
cate. . . . Now, the defense should be able to cross-
examine this [victim] regarding whether he had any
motive, interest, bias, or prejudice based on the knowl-
edge that, because he was being monitored and because
this incident happened and if his probation officer found
out about that, it could change the conditions of his
probation. It could have a number of consequences and
I’m not—
‘‘The Court: But that’s all speculative.
***
‘‘The Court: Like I said to you when I issued the
decision, the sixth amendment is not unlimited. It does
still have to—there are rules of evidence that allow
some and exclude other testimony. Anything else?
‘‘[Defense Counsel]: Your Honor, just to conclude,
the defense believes that [the defendant’s] sixth amend-
ment right to fully cross-examine this [victim] should
allow him to fully delve into areas of motive, interest,
bias, or prejudice as a matter of right in order to deter-
mine whether this [victim] did have any ulterior motives
to fabricate, what his state of mind was at the time,
and being able to cross-examine this witness against
[the defendant] is a fundamental right in [the defen-
dant’s] trial. Any—we believe that any limit on that
ability to cross-examine would affect his due process
rights.
‘‘The Court: Well, all right. Well, okay. Thank you for
that. The court’s decision is that you can inquire as to
the crime, which is the [operating a motor vehicle while
under the influence] felony conviction. By the way, I
think the court is being even generous by allowing you
to name the crime. And the fact that he’s on probation. I
think that the court’s already gone beyond the—beyond
that which is permitted by the [Connecticut] Code [of
Evidence]. I’m going to find that asking questions with
respect to any potential violation of his probation is so
speculative that the probative value is outweighed by
any—by the prejudicial value of it. . . .
 ‘‘[Defense Counsel]: Just to clarify. Is the defense
allowed to discuss the probation conditions of his pro-
bation?
‘‘The Court: No. You can ask that he had a felony
conviction. You can ask that it’s for [operating a motor
vehicle while under the influence]. You can ask that
he’s on probation for it.’’
When defense counsel also asked the court if it was
permissible to ask the victim whether one of the stan-
dard conditions of his probation was not to be arrested,
the state objected on the ground of relevance, and the
court asked, ‘‘[h]ow is that relevant?’’ Defense counsel
explained that it was relevant ‘‘to delve into the [vic-
tim’s] state of mind and motive to fabricate,’’ given the
allegation against the victim that he stole Moniz’ watch.
See footnote 3 of this opinion. According to the defense,
if the victim knew that one of the standard conditions
of his probation was not to have any new arrests, and
he was being accused of a larceny involving the theft
of a watch, that might have given him a motive to fabri-
cate his allegations against the defendant. The court did
not agree and limited cross-examination to the victim’s
felony conviction and whether he was on probation at
the time of the incident and at trial. The court explained:
‘‘Now, you can test his veracity pursuant to the [Con-
necticut] Code [of Evidence]. You can—you can cer-
tainly cross-examine him. But the limit of his felony
conviction is limited to the fact that he has one for
[operating a motor vehicle while under the influence]
and that he’s on probation for it.’’
On cross-examination of the victim, the defense
brought out the fact that, at the time of the incident,
the victim was on probation for a 2017 felony conviction
for operating a motor vehicle while under the influence
of intoxicating liquor or drugs and that he was still on
probation at the time of trial. Defense counsel also
addressed a number of inconsistencies in the victim’s
testimony. Some of those inconsistencies included the
following: (1) although the victim testified on direct
examination that he drank a Long Island iced tea while
at the defendant’s apartment after the bar had closed,
he testified on cross-examination that he had the drink
at the bar, not the defendant’s apartment, and that he
actually did not have any drinks at the defendant’s apart-
ment; (2) the fact that the victim told a victim’s advocate
that he had had only one drink at the bar, but, at the
emergency department of the hospital, told staff that
he had one or two drinks with acquaintances and testi-
fied on direct examination that he had three drinks at
the bar; (3) the victim testified on direct examination
and told a 911 dispatcher that the defendant stole $300
from him, but the victim told a victim’s advocate and
testified on cross-examination that the defendant took
$400 from him; and (4) the victim told staff at the emer-
gency department that he might have been drugged
but never mentioned that to the 911 dispatcher or to
the police.
On appeal, the defendant claims that the trial court
erred in determining that his proposed questions of
the victim were speculative and more prejudicial than
probative. According to the defendant, the proposed
questions of the victim ‘‘went directly to establishing
that [the victim] may have had his own reasons for
fabricating his allegations,’’ and that, ‘‘[w]ithout any
evidence of [the victim’s] motive to lie, the jury had
no reason to disbelieve his claim that [the] defendant
forcefully entered his apartment so that he and Moniz
could take [the victim’s] money.’’ The defendant
explains in his brief to this court that ‘‘[t]he mere fact
that the jury learned that [the victim] had a felony con-
viction and was on probation did not matter because
[the] defendant was unable to show how those things
impacted [the victim’s] claims.’’ The defendant, thus,
claims that the court’s ruling, which deprived him of
the opportunity to develop the victim’s motive and bias,
was harmful and warrants a new trial because it violated
his constitutional rights to confrontation, to present a
defense, and to a fair trial.
Before addressing the merits of the defendant’s claim,
we set forth our standard of review and the law that
guides our analysis. ‘‘[T]he sixth amendment to the
[United States] constitution guarantees the right of an
accused in a criminal prosecution to confront the wit-
nesses against him. . . . The primary interest secured
by confrontation is the right to cross-examination
. . . . Compliance with the constitutionally guaranteed
right to cross-examination requires that the defendant
be allowed to present the jury with facts from which
it could appropriately draw inferences relating to the
witness’ reliability. . . . However, [t]he [c]onfronta-
tion [c]lause guarantees only an opportunity for effec-
tive cross-examination, not cross-examination that is
effective in whatever way, or to whatever extent, the
defense might wish. . . . Thus, [t]he confrontation
clause does not . . . suspend the rules of evidence to
give the defendant the right to engage in unrestricted
cross-examination. . . .
‘‘Although [t]he general rule is that restrictions on
the scope of cross-examination are within the sound
discretion of the trial [court] . . . this discretion
comes into play only after the defendant has been per-
mitted cross-examination sufficient to satisfy the sixth
amendment. . . . If that constitutional standard has
been satisfied, then [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. . . . [That is
to say] [t]he court’s decision is not to be disturbed
unless [its] discretion has been abused, or the error is
clear and involves a misconception of the law.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Lopez, 177 Conn. App. 651, 661–62, 173 A.3d 485,
cert. denied, 327 Conn. 989, 175 A.3d 563 (2017). Thus,
this court ‘‘must engage in a two step analysis. We must
determine first whether the cross-examination permit-
ted to defense counsel comported with sixth amend-
ment standards . . . and second, whether the trial
court abused its discretion in restricting the scope of
that cross-examination. . . . Once it is established that
the trial court’s ruling on the scope of cross-examina-
tion is not constitutionally defective, this court will
apply [e]very reasonable presumption . . . in favor of
the correctness of the court’s ruling in determining
whether there has been an abuse of discretion. . . .
To establish an abuse of discretion, [the defendant]
must show the restrictions imposed upon [the] cross-
examination were clearly prejudicial.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Errol
J., 199 Conn. App. 800, 807–808, 237 A.3d 747, cert.
denied, 335 Conn. 962, 239 A.3d 1213 (2020).
This court has stated that, ‘‘[a]lthough only relevant
evidence may be elicited through cross-examination
. . . [e]vidence tending to show motive, bias or interest
of an important witness is never collateral or irrelevant.
[Indeed, it] may be . . . the very key to an intelligent
appraisal of the testimony of the [witness]. . . .
Accordingly, cross-examination to elicit facts tending
to show that a witness’ testimony was motivated by
bias may not be unduly restricted.’’ (Internal quotation
marks omitted.) State v. Kehayias, 162 Conn. App. 310,
323, 131 A.3d 1200 (2016). Therefore, ‘‘[a]lthough it is
within the trial court’s discretion to determine the
extent of cross-examination and the admissibility of
evidence, the preclusion of sufficient inquiry into a par-
ticular matter tending to show motive, bias and interest
may result in a violation of the constitutional require-
ments [of the confrontation clause] of the sixth amend-
ment.’’ (Internal quotation marks omitted.) State v. Jes-
sie L. C., 148 Conn. App. 216, 224, 84 A.3d 936, cert.
denied, 311 Conn. 937, 88 A.3d 551 (2014). ‘‘In determin-
ing whether a defendant’s right of cross-examination
has been unduly restricted, we consider the nature of
the excluded inquiry, whether the field of inquiry was
adequately covered by other questions that were
allowed, and the overall quality of the cross-examina-
tion viewed in relation to the issues actually litigated
at trial.’’ (Internal quotation marks omitted.) State v.
Rogelstad, 73 Conn. App. 17, 22, 806 A.2d 1089 (2002).
‘‘In so inquiring, reviewing courts have declined to hold
that a defendant’s confrontation right was violated by
limits on cross-examination when the defendant was
allowed to ask other questions about the same motive,
bias, or interest.’’ State v. Kehayias, supra, 327.
In Kehayias, this court found that the defendant’s
constitutional right to confrontation was not violated
when the trial court ‘‘merely limited, and did not pre-
clude, inquiry into a specific motive that already had
been robustly developed on cross-examination . . . .’’
Id., 328. In contrast, in State v. Milum, 197 Conn. 602,
607–608, 500 A.2d 555 (1985), ‘‘our Supreme Court found
error where the trial court refused to allow the defen-
dant to ask the victim at all about either the victim’s
pending civil suit arising from the same events against
the defendant, or about the victim’s demand for $25,000
in exchange for her recommendation of a suspended
sentence for the defendant.’’ (Emphasis in original.)
State v. Kehayias, supra, 162 Conn. App. 328.
In the present case, the trial court based its ruling
on § 6-7 of the Connecticut Code of Evidence, which
concerns evidence of a conviction of a crime and pro-
vides in relevant part: ‘‘For the purpose of impeaching
the credibility of a witness, evidence that a witness has
been convicted of a crime is admissible if the crime
was punishable by imprisonment for more than one
year. . . .’’ See also State v. Clark, 137 Conn. App. 203,
207, 48 A.3d 135 (2012) (it is well established that ‘‘[t]he
credibility of a witness may be attacked by introducing
the witness’ conviction of a crime if the maximum pen-
alty for that conviction is imprisonment exceeding one
year’’ (internal quotation marks omitted)), aff’d, 314
Conn. 511, 103 A.3d 507 (2014). The rule lists a number
of factors that the court should consider in determining
whether to admit evidence of a conviction, including
‘‘the extent of the prejudice likely to arise’’; Conn. Code
Evid. § 6-7 (a) (1); and ‘‘the significance of the particular
crime in indicating untruthfulness . . . .’’ Conn. Code
Evid. § 6-7 (a) (2). In determining the admissibility of
such evidence, the test is ‘‘whether the probative value
of the evidence outweighs its prejudicial effect.’’ State
v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986). ‘‘The
trial court, because of its intimate familiarity with the
case, is in the best position to weigh the relative merits
and dangers of any proffered evidence. . . . This prin-
ciple applies with equal force to the admissibility of
prior convictions.’’ (Internal quotation marks omitted.)
State v. Ciccio, 77 Conn. App. 368, 386, 823 A.2d 1233,
cert. denied, 265 Conn. 905, 831 A.2d 251 (2003); see
also State v. Harrell, 199 Conn. 255, 262, 506 A.2d 1041
(1986) (‘‘[the] balancing of intangibles—probative val-
ues against probative dangers—is so much a matter
where wise judges in particular situations may differ
that a [leeway] of discretion is generally recognized’’
(internal quotation marks omitted)). We also note that
‘‘conviction of a crime not directly reflecting on credibil-
ity clearly lacks the direct probative value of a criminal
conviction indicating dishonesty or a tendency to make
false statement. Thus, the balance used to measure
admissibility of prior convictions is weighted less heav-
ily toward admitting the prior conviction when it
involves a crime related only indirectly to credibility.’’
(Internal quotation marks omitted.) State v. Swilling,
180 Conn. App. 624, 658, 184 A.3d 773, cert. denied, 328
Conn. 937, 184 A.3d 268 (2018).
 In the present case, we must examine whether the
court’s limitation on the defendant’s cross-examination
of the victim deprived the defendant of his constitu-
tional right to confrontation and, if not, whether the
court’s ruling was an abuse of its discretion. Despite
the fact that the victim’s prior felony conviction of
operating a motor vehicle while under the influence of
intoxicating liquor or drugs did not involve a crime that
reflected on the victim’s credibility, the court permitted
questioning regarding the victim’s conviction of that
crime, the name of the crime and the fact that the victim
was on probation for his conviction of that crime, both
at the time of the incident underlying the charges and
at the time of trial. Our Supreme Court has stated that
the right to cross-examination under the sixth amend-
ment is satisfied ‘‘when . . . the defendant is allowed
to impeach the witness by [inquiring into the existence
of] a prior, unspecified felony conviction.’’ (Emphasis
omitted.) State v. Dobson, 221 Conn. 128, 137, 602 A.2d
977 (1992). Here, the court went beyond that and permit-
ted the name of the crime underlying the felony convic-
tion, as well as questioning regarding the defendant’s
probationary status, even though the felony conviction
did not involve a crime relating directly to the credibility
of the victim. See State v. Swilling, supra, 180 Conn.
App. 658–59 (‘‘[t]o avoid unwarranted prejudice to the
witness, when a party seeks to introduce evidence of
a felony that does not directly bear on veracity, a trial
court ordinarily should permit reference only to an
unspecified crime carrying a penalty of greater than
one year that occurred at a certain time and place’’
(internal quotation marks omitted)).
For this court to determine that the defendant’s sixth
amendment right to confrontation has been met, we
must be satisfied that ‘‘defense counsel [was] permitted
to expose to the jury the facts from which [the] jurors,
as the sole triers of fact and credibility, could appropri-
ately draw inferences relating to the reliability of the
witness.’’ (Internal quotation marks omitted.) State v.
Fernando R., 103 Conn. App. 808, 819, 930 A.2d 78, cert.
denied, 284 Conn. 936, 937 A.2d 695 (2007). In doing so,
we must consider ‘‘the nature of the excluded inquiry,
whether the field of inquiry was adequately covered
by other questions that were allowed, and the overall
quality of the cross-examination viewed in relation to
the issues actually litigated at trial.’’ (Internal quotation
marks omitted.) Id.
First, it is important to note that the trial court did
not completely exclude all inquiry regarding the victim’s
prior felony conviction; in fact, the court permitted
questions regarding the felony conviction, the name of
the crime underlying the conviction, and the fact that
the defendant was on probation for that conviction, and
its ruling complied with the requirements of § 6-7 of
the Connecticut Code of Evidence. On appeal, the
defendant challenges the court’s ruling precluding
inquiry regarding (1) the conditions of the victim’s pro-
bation, (2) the victim’s consumption of alcohol on the
night in question and whether the victim thought that
might result in a violation or change in the conditions
of his probation, and (3) whether the victim feared that
the allegations of larceny against him for the theft of
a watch would result in his arrest and a violation of his
probation. The defendant claims that he was deprived
of the opportunity to develop the victim’s motive and
bias because he could not delve further into how the
victim’s probationary status may have impacted and
motivated the victim to fabricate the allegations against
the defendant. We do not agree.
We agree with the trial court’s determination that the
proffered line of questioning was based on speculation
and that its probative value was outweighed by its preju-
dicial effect. With respect to the conditions of the vic-
tim’s probation and his consumption of alcohol on the
night in question, defense counsel acknowledged that
the victim’s consumption of alcohol would not have
been a technical violation of his probation, which
required substance abuse treatment, and claimed that
the victim might have been worried that the conditions
of his probation could potentially change and require
him to undergo more substance abuse treatment. The
fact that the victim might have been worried about a
potential change in a condition of his probation is
clearly within the realm of speculation, and we con-
clude that the defendant has failed to provide a suffi-
cient foundation to support his claim that the proffered
evidence related to the victim’s motive to fabricate the
allegations against him. This is particularly so given
that the victim called the police, prompting his meeting
with them. It strains credulity to believe that if the
victim was worried about the police learning that he
was drinking alcohol he would initiate contact with
them so that they could observe him after he had just
done so.
Moreover, the defendant’s claim that he should have
been allowed to question the victim about his motive
to fabricate relating to the theft of Moniz’ watch is
equally unavailing. According to the defendant, the vic-
tim’s alleged fear that a larceny charge might be brought
against him for the theft of Moniz’ watch, resulting in
a violation of his probation, may have motivated the
victim to fabricate the allegations against the defendant.
Again, we agree with the court’s determination that
the proffered questioning was based on speculation.
According to the victim’s testimony, he ‘‘had no idea’’
what the defendant and Moniz were talking about when
they had asked the victim about a watch after hitting
him. It was a relatively short time period between when
the victim was first confronted about the theft of the
watch, and when he called 911 both on the walk to
his apartment and immediately after the defendant and
Moniz left his apartment after stealing his rent money.
Although the defendant claimed at trial that the victim
might have feared that an arrest for larceny would result
in a violation of the victim’s probation, the defendant
never explained to the trial court or to this court how
the victim’s initiation of contact with the police on the
night of the incident was consistent with the victim’s
desire to avoid police involvement. To the contrary,
involving the police in his dispute with the defendant
and Moniz only increased the possibility that the two
men would accuse the victim of larceny when con-
fronted by the accusation that they assaulted the victim.
Under these circumstances, the court was justified in
excluding the proffered line of questioning as specula-
tive. Consequently, the court’s rulings restricting the
defendant’s cross-examination of the victim did not vio-
late his sixth amendment right to confrontation. That
being the case, ‘‘[t]he trial court has broad discretion
. . . in determining the admissibility of evidence
claimed to be remote, repetitious, or otherwise lacking
in probative value.’’ State v. Bova, 240 Conn. 210, 229,
690 A.2d 1370 (1997). We cannot say that the court
abused its wide discretion in determining that the pro-
bative value of the evidence did not outweigh its prejudi-
cial effect.
The defendant’s attempt to characterize the proffered
line of questioning as relating to the victim’s state of
mind is tenuous and does not change its speculative
nature. ‘‘The trial court has the discretion to exclude
speculative evidence, expert or otherwise.’’ (Internal
quotation marks omitted.) Bridgeport Harbour Place
I, LLC v. Ganim, 131 Conn. App. 99, 123, 30 A.3d 703,
cert. granted, 303 Conn. 904, 31 A.3d 1179 (2011) (appeal
withdrawn January 27, 2012), and cert. granted, 303
Conn. 905, 31 A.3d 1180 (2011) (appeal withdrawn Janu-
ary 26, 2012). Although the trial court did not explicitly
find that the proffered evidence was irrelevant, it did
find the evidence to be speculative in nature, and this
court has determined previously that speculative evi-
dence is irrelevant. See State v. Sulser, 109 Conn. App.
852, 874, 953 A.2d 919, cert. denied, 289 Conn. 939, 959
A.2d 1006 (2008); see also State v. Davis, 298 Conn. 1,
23–24, 1 A.3d 76 (2010) (trial court did not abuse its
discretion in excluding evidence when defendant’s
foundation for proffered evidence was ‘‘wholly specula-
tive’’). Moreover, ‘‘[a] defendant . . . may introduce
only relevant evidence, and, if the proffered evidence is
not relevant, its exclusion is proper and the defendant’s
right [to confrontation] is not violated.’’ (Internal quota-
tion marks omitted.) State v. Lee-Riveras, 130 Conn.
App. 607, 622, 23 A.3d 1269, cert. denied, 302 Conn. 937,
28 A.3d 992 (2011).
Finally, we note that the defendant undertook an
extensive and robust cross-examination of the victim.
As the defendant pointed out in his appellate brief, there
were many inconsistencies in the victim’s testimony
that he addressed on cross-examination, and the vic-
tim’s ‘‘testimony was so riddled with inconsistencies
that, on redirect examination, the prosecutor asked him
if he was working nights during the trial, and later
suggested to the jurors [that] he was sleep-deprived
. . . [as a] reason for the inconsistencies.’’ In fact, the
jury found the defendant not guilty of five of the six
charges against him, which was indicative that the jury
did not credit all of the victim’s testimony. The issues
related to the victim’s probationary status on which the
court excluded questioning were marginally related, at
best, to the issues in the case. ‘‘Every evidentiary ruling
which denies a defendant a line of inquiry to which he
thinks he is entitled is not constitutional error.’’ (Inter-
nal quotation marks omitted.) State v. Moye, 214 Conn.
89, 95, 570 A.2d 209 (1990). In the present case, the
defendant was afforded the opportunity on cross-exam-
ination ‘‘to expose to the jury the facts from which
jurors, as the sole triers of fact and credibility, could
appropriately draw inferences relating to the [victim’s]
reliability . . . .’’ (Internal quotation marks omitted.)
Id.
We conclude that the court’s ruling limiting the defen-
dant’s cross-examination of the victim did not imper-
missibly infringe on his constitutional right to confron-
tation.5 Having found no constitutional violation, we
also conclude that the court’s evidentiary ruling was
not a clear abuse of the court’s wide discretion. See
State v. Lopez, supra, 177 Conn. App. 662.
II
The defendant next claims that the trial court’s jury
instruction on burglary in the second degree misled the
jury because the court never instructed the jury on the
definitions of two terms, ‘‘physical threat’’ and ‘‘immi-
nent,’’ set forth in the elements of threatening in the
second degree, which was one of the alleged underlying
crimes for the burglary charge. The state counters that
the defendant waived his claim of instructional error.
We agree with the state.
For this court to address the issue of waiver, it is
necessary to provide a detailed account of what tran-
spired between the court and the parties, and, thus, we
set forth the following additional facts, as gleaned from
the record. Count six of the third substitute information
charged the defendant with burglary in the second
degree, alleging that, on January 29, 2018, between 1
and 2:50 a.m., he entered or remained unlawfully in a
dwelling, while the victim was present in such dwelling,
with the intent to commit a crime therein, namely, rob-
bery in the first degree, robbery in the second degree,
threatening in the second degree, and/or larceny in the
sixth degree.
The defendant’s trial commenced on May 15, 2019.
After the jury was excused and before the court
adjourned for that day, the court stated: ‘‘Counsel,
before we adjourn for today, I had to—I should let you
know that I have a draft of the jury instructions ready.
It is a draft. It is a rough draft. We will have a conference
at the end of all the evidence, and I certainly will wel-
come any—any comments, suggestions, requests, or
otherwise. If you want to have a copy of the draft
instructions now, I’m happy to give it to you.’’ The next
day, May 16, 2019, the court stated: ‘‘[B]efore you get
started, I’d like to just put on the record that yesterday,
at the close of evidence, the court gave both parties a
draft of the jury instructions. It’s a draft. Obviously,
we’re going to have a charging conference at the end
of all the evidence. I just want everybody to have an
ample opportunity to review it, to make comments or
suggestions or additions or subtractions, and we’ll take
care of that at the right time. But I just want to put
on the record that everybody has a copy of the draft
instructions.’’ Evidence and testimony continued on
May 16 and Friday, May 17, 2019. At the close of the
day on May 17, the prosecutor stated that he had a
request to charge that he could file that day so that
defense counsel and the court could review it over the
weekend. In response, the court requested that both
the state and the defendant submit proposed charges
and stated that, if time allowed, they would have a
charging conference on Monday. When defense counsel
requested that the court permit her to submit a pro-
posed charge on Monday, the court agreed to the
request.
On Monday, May 20, 2019, defense counsel explained
to the court that the one witness she had planned to
call that day would not be testifying and that she needed
time to discuss with the defendant whether he would
testify. She also asked for additional time to look over
the state’s supplemental request to charge, which she
had just received that morning, to which the court
replied: ‘‘Well, you’ve had the court’s version, right, for
some time, right?’’ Defense counsel stated, ‘‘yes,’’ in
response to the question, and the court granted her
request for additional time. At 11:30 a.m., when court
resumed, defense counsel informed the court that the
defendant would not be testifying. After the court can-
vassed the defendant, it addressed the issue of whether
it would charge the jury that afternoon or wait until
the next day. After a discussion with counsel, it was
decided that the jury would be instructed the following
day. Subsequently, the defense made an oral motion
for a judgment of acquittal, which the court denied.
Thereafter, the court stated: ‘‘So, now we have the
opportunity to have a jury charge conference. I’ve—
the court has provided copies of the court’s instruction
on Wednesday, May 15. It’s now Monday, May 20. The
court received on Friday the state’s request for charge.
The court also received this morning a supplemental
request to charge, and this morning the court received
the defendant’s request to charge.’’
The court then proceeded to address the state’s
request to charge, each time asking the defense for
comment with respect to each issue addressed. As to
each issue, after hearing comments from both sides,
the court stated whether it adopted the request and, if
so, the language of the instruction with the modifica-
tion. The court followed the same procedure concern-
ing the defendant’s request to charge. After the court
addressed all of the issues raised in the defendant’s
request to charge, it asked: ‘‘Anything else we should
address in the instructions?’’ Defense counsel replied:
‘‘Nothing further, Your Honor.’’ The court next
addressed the state’s supplemental request to charge,
after which it, again, asked if there was anything else
that needed to be addressed at that time. Defense coun-
sel replied: ‘‘Nothing with regard to the jury charge,
Your Honor.’’ The written requests to charge filed by
the state6 and the defendant7 did not raise any issues
concerning either the court’s proposed charge on bur-
glary in the second degree or its charge on threatening
in the second degree as a crime underlying the burglary
charge. Nor did either party or the court address any
issue relating to the court’s proposed charge on threat-
ening in the second degree as alleged in count six during
the charging conference, despite the court’s repeated
requests of counsel as to whether anything further
needed to be addressed.
At the charging conference, the state did raise a claim
concerning the jury charge as to count six as it related
to the underlying offense of larceny in the sixth degree.
Specifically, the prosecutor asked whether the court
was ‘‘going to instruct the jury on the elements . . .
of larceny’’ in the sixth degree. The issue concerned
whether the court would charge the jury regarding the
element of the monetary amount needed for larceny in
the sixth degree. The court then stated: ‘‘Counsel, hold
on. The elements of count six are as follows. A person
is guilty of burglary in the second degree when such
person unlawfully enters and/or remains in a dwelling,
while a person other than a participant in the crime is
actually present in such dwelling, with intent to commit
a crime therein. . . .
‘‘For you to find the defendant guilty of this charge,
the state must prove the following elements beyond a
reasonable doubt. One, the first element is that the
defendant knowingly and unlawfully entered and/or
remained in a dwelling. A person acts knowingly with
respect to conduct or circumstances when he is aware
that his conduct is of such nature or that such circum-
stances exist. Dwelling means a building that is usually
occupied by a person lodging therein at night. There-
fore, a structure that cannot possibly be occupied as a
lodging cannot be a dwelling.
‘‘You must also determine whether the defendant
unlawfully entered and/or remained in the dwelling. A
person unlawfully enters and/or remains in a dwelling
when he is not licensed or privileged to do so. To be
licensed or privileged, the defendant must either have
consent from the person in possession of the dwelling
or have some other right to be in the dwelling. To enter,
etcetera, etcetera.
‘‘Element two, to commit a crime therein. The second
element is that the defendant intended to commit a
crime in that dwelling. A person acts intentionally with
respect to a result when his conscious objective is to
cause such result.
‘‘Even if the defendant never actually committed a
crime in the dwelling, if the evidence establishes beyond
a reasonable doubt that [he] was [there] with such
[intent], that is sufficient to prove that the defendant
unlawfully entered and/or remained in the dwelling with
the intent to commit a crime therein. . . .
‘‘In this case, the state claims that the defendant
intended to commit the crimes of robbery in the first
degree and/or robbery in the second degree and/or
threatening in the second degree and/or a larceny in
the sixth degree. I have previously defined the crimes
of robbery in the first degree, robbery in the second
degree, and larceny. I refer you to those definitions
above.
‘‘Threatening in the second degree is defined as, etcet-
era, etcetera, etcetera.
‘‘If you unanimously find that the state has proved
beyond a reasonable doubt each of the elements of the
crime of burglary in the second degree, then you shall
find the defendant guilty.’’
At no point during the discussion at the charging
conference concerning count six and whether the
charge needed to include the monetary element to sup-
port an allegation of larceny as an underlying crime, or
when the court specifically referenced the threatening
charge, did the defendant raise any issue concerning
the failure of the court’s charge to address the elements
of the crime of threatening in the second degree. At
the end of the charging conference on May 20, 2019,
the court again asked if there was anything else that
needed to be addressed with respect to the jury instruc-
tions, to which defense counsel replied: ‘‘Nothing from
the defense.’’ Following a short break, the court pro-
vided counsel with a copy of the jury instructions, which
included any changes from the charging conference,
and stated that they could talk about anything further
regarding the proposed charge at 9:30 a.m. the next
morning.
After court convened on May 21, 2019, the court first
addressed some minor spelling, punctuation, and gram-
matical changes it had made to the charge, and then it
discussed another issue raised by the parties the previ-
ous day. When the court asked if there was anything
else that should be addressed, defense counsel stated
that she had one more concern regarding the jury
instructions, which related to the definition of serious
physical injury, and the court addressed the issue. When
the court charged the jury regarding burglary in the
second degree, it stated, in part: ‘‘[T]he state claims the
defendant intended to commit the crimes of robbery
in the first degree, and/or robbery in the second degree,
and/or threatening in the second degree, and/or a lar-
ceny in the sixth degree. I have previously defined the
crimes of robbery in the first degree, robbery in the
second degree, and larceny. I refer you to those defini-
tions above.
‘‘Threatening in the second degree is defined in [§]
53a-62 (a) (1) of the Connecticut General Statutes as
follows. A person is guilty of threatening in the second
degree when that person, by physical threat, intention-
ally places or attempts to place another person in fear
of imminent serious physical injury.’’
After the court completed its charge to the jury and
the jury had exited the courtroom, the following collo-
quy occurred:
‘‘The Court: Before we take the luncheon recess, does
anybody have any comments on the instructions as read
to the jury?
‘‘[The Prosecutor]: None from the state, Your Honor.
‘‘[Defense Counsel]: None from the defense.’’
On appeal, the defendant claims that the court’s jury
instructions on burglary in the second degree were inad-
equate and constitutionally defective in that the court,
other than reading the statutory language for the crime
of threatening in the second degree, failed to instruct
the jury on the elements of threatening, as one of the
crimes underlying the burglary charge. The record, how-
ever, belies this claim. Pursuant to § 53a-62, the statute
governing threatening in the second degree, the state
had to prove beyond a reasonable doubt that the defen-
dant made a physical threat to the victim and that he
specifically intended by his conduct to put the victim
in fear of imminent serious physical injury. See, e.g.,
State v. Ervin B., 202 Conn. App. 1, 7–8, 243 A.3d 799
(2020). In the present case, the court instructed the jury
that ‘‘[a] person is guilty of threatening in the second
degree when that person, by physical threat, intention-
ally places or attempts to place another person in fear
of imminent serious physical injury.’’ Just prior to that
instruction, the court also had instructed the jury that
‘‘[a] person acts intentionally with respect to a result
when his conscious objective is to cause such result.’’
The court, thus, informed the jury of the essential ele-
ments of threatening in the second degree. The defen-
dant’s real claim, therefore, is that the court erred in
failing to define in greater detail the elements of the
crime of threatening in the second degree. Specifically,
he takes issue with the court’s failure to define the terms
‘‘physical threat’’ and ‘‘imminent,’’ as used in § 53a-62.
At no time during the proceedings relating to the jury
charge did the defendant raise this claim to the trial
court. The defendant concedes that he neither filed a
request to charge on burglary in the second degree nor
objected to the court’s instructions, and requests review
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015).8 Alternatively, he
seeks review of this claim pursuant to the plain error
doctrine. See Practice Book § 60-5. The state, relying
on State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011),
counters that the defendant’s claim of instructional
error is not reviewable under Golding because the
defendant implicitly waived it. Moreover, with respect
to the defendant’s claim of plain error, the state argues
that the defendant failed to show that any error in
the court’s instructions as to threatening in the second
degree was so grievous that a failure to reverse the
judgment would result in manifest injustice. We agree
with the state.
A
We first address the issue of implied waiver under
Kitchens and set forth our standard of review and the
applicable law governing an implied waiver of a claim
of instructional error. ‘‘Whether a defendant has waived
the right to challenge the court’s jury instructions
involves a question of law, over which our review is
plenary.’’ State v. Ramon A. G., 190 Conn. App. 483,
500, 211 A.3d 82 (2019), aff’d, 336 Conn. 386, 246 A.3d
481 (2020); see also Lapointe v. Commissioner of Cor-
rection, 316 Conn. 225, 312–13, 112 A.3d 1 (2015) (even
though inquiry regarding implied waiver of jury instruc-
tion is fact intensive, appellate court’s determination
of whether to draw inference of waiver must be based
on close examination of record and particular facts
and circumstances of case, and that decision involves
question of law over which plenary review applies).
‘‘The doctrine of implied waiver is based on the idea
that counsel had sufficient notice of . . . the jury
instructions and was aware of their content . . . .’’
(Internal quotation marks omitted.) State v. Davis, 311
Conn. 468, 477–78, 88 A.3d 445 (2014).
In State v. Kitchens, supra, 299 Conn. 482–83, our
Supreme Court provided a framework for review of
whether a claim of instructional error has been waived,
and our analysis begins with that seminal decision. In
Kitchens, the defendant claimed that the trial court
improperly instructed the jury on the intent element
needed for a finding of guilty of charges of kidnapping
in the second degree and unlawful restraint in the first
degree. Id., 462. On appeal, the defendant conceded
that his claim was unpreserved and sought review pur-
suant to Golding. Id., 462–63. In addressing this claim,
our Supreme Court stated that ‘‘[i]t is well established
in Connecticut that unpreserved claims of improper
jury instructions are reviewable under Golding unless
they have been induced or implicitly waived.’’ Id., 468.
Specifically, the court explained: ‘‘[I]n the usual Golding
situation, the defendant raises a claim on appeal [that],
while not preserved at trial, at least was not waived at
trial. . . . [A] constitutional claim that has been waived
does not satisfy the third prong of the Golding test
because, in such circumstances, we simply cannot con-
clude that injustice [has been] done to either party . . .
or that the alleged constitutional violation . . . exists
and . . . deprived the defendant of a fair trial . . . .’’
(Internal quotation marks omitted.) Id., 467.
In Kitchens, our Supreme Court reexamined and clar-
ified the law in Connecticut concerning implied waiver;
id., 474; and concluded ‘‘that, when the trial court pro-
vides counsel with a copy of the proposed jury instruc-
tions, allows a meaningful opportunity for their review,
solicits comments from counsel regarding changes or
modifications and counsel affirmatively accepts the
instructions proposed 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.
Such a determination by the reviewing court must be
based on a close examination of the record and the
particular facts and circumstances of each case.’’ Id.,
482–83. In Kitchens, the court had reminded defense
counsel two times of his right to file a request to charge,
and each time, defense counsel declined to file such a
request; two additional charge conferences were held
by the court to discuss the instructions, at which
defense counsel never raised an issue with the intent
instructions concerning kidnapping and unlawful
restraint, and stated that there was nothing further that
he wanted to discuss; and defense counsel did not take
an exception to the charge as given. Id., 498–99. Thus,
our Supreme Court concluded that, under those circum-
stances, ‘‘defense counsel’s repeated statements indi-
cating his affirmative acceptance of the proposed jury
instructions after being given a meaningful opportunity
to review them constituted an implicit waiver of the
defendant’s claim of instructional error.’’ Id., 498.
In State v. Davis, supra, 311 Conn. 468, our Supreme
Court ‘‘noted that in every post-Kitchens case in which
defense counsel was given the opportunity to review the
proposed jury instructions overnight, [it has] concluded
that defense counsel had received a meaningful oppor-
tunity to review the proposed instructions under the
Kitchens test . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 480–81; see also State v. Web-
ster, 308 Conn. 43, 63, 60 A.3d 259 (2013) (defense
counsel had meaningful opportunity to review proposed
instructions when counsel had opportunity to review
instructions overnight).
For example, in State v. Bellamy, 323 Conn. 400, 410,
147 A.3d 655 (2016), our Supreme Court concluded that
the defendant implicitly waived his claim of instruc-
tional error pursuant to Kitchens, stating: ‘‘In the pres-
ent case, all of the [Kitchens] criteria were satisfied.
The trial court gave both defense counsel and the state
a copy of its proposed jury instructions four days before
the charging conference. Two of the four days fell on
a weekend, thus providing counsel with even more time
to review the instructions. The court also solicited com-
ments from counsel regarding modifications to the
instructions during the in-chambers charging confer-
ence, during the proceedings in open court directly
after the charging conference and on the following day
immediately before instructing the jury. In addition,
when the court discussed portions of the identification
instruction on the record, defense counsel expressed
no dissatisfaction with the instruction, although he
commented on several other instructions. Counsel thus
indicated that he had read and understood the instruc-
tions in their entirety and took no issue with any part,
including the instruction on identification. Finally,
defense counsel explicitly conceded during the sentenc-
ing hearing that he had agreed with the substance of
the jury instructions before they were given and that
his only objection was to the speed with which they
had been delivered by the court.’’
The facts of the present case are squarely on point
with Bellamy and Kitchens. Here, the court provided
the state and defense counsel with a copy of its pro-
posed jury instructions on the first day of trial, May 15,
2019, five days before the charging conference, two of
which were weekend days. The court stated on the
record that it wanted to give everyone ‘‘ample opportu-
nity to review it, to make comments or suggestions or
additions or subtractions . . . .’’ The court held an on-
the-record charging conference on May 20, 2019, during
which it addressed the instructions requested by the
state and the defendant in their written requests to
charge, giving each party the opportunity to address
each requested instruction and any proposed modifica-
tions. During that conference, the court asked defense
counsel multiple times if there were any other issues
that needed to be addressed, and each time defense
counsel replied in the negative. The defendant’s request
to charge did not raise any issue concerning either
the court’s proposed charge on burglary in the second
degree, as alleged in count six of the third substitute
information, or its charge on threatening in the second
degree as a crime underlying the burglary charge. Even
when the state raised an issue at the charging confer-
ence related to count six and the underlying larceny
charge, which was discussed at length by the parties
and the court, the defendant never alerted the court to
his claim that the jury instructions related to count six
and the underlying threatening charge improperly failed
to include the elements of threatening in the second
degree. The court again asked defense counsel at the
end of the charging conference whether anything else
needed to be addressed, to which defense counsel
replied, ‘‘[n]othing from the defense.’’ The parties were
then provided with copies of the proposed charge, with
any alterations included from the charging conference,
to review overnight. The next day, before the court
instructed the jury, defense counsel raised an issue
regarding the jury instruction on serious physical injury,
which the court addressed. Finally, after the court
instructed the jury, the court asked if counsel had any
comments on the instructions as read to the jury, to
which defense counsel replied, ‘‘[n]one from the
defense.’’
The record in the present case more than demon-
strates that the Kitchens waiver criteria have been met.
On numerous occasions, the court solicited comments
from counsel regarding any issues with the proposed
instructions, and multiple times defense counsel explic-
itly stated that there was nothing from the defense. The
instructions were provided to counsel for review six
days prior to when the jury was charged, and, at a
minimum, counsel had the opportunity to review, over-
night, the instructions as modified from the charging
conference. At no time before the final charge was given
to the jury, or after the charge, did defense counsel raise
any issue or objection concerning the jury instructions
relating to the underlying threatening charge in count
six, despite having had numerous opportunities and a
great amount of time to do so. Because it is clear from
the record that defense counsel had a meaningful oppor-
tunity to review the proposed instructions and to com-
ment on them or suggest modifications, and counsel
affirmatively accepted the instructions as proposed and
given by repeatedly telling the court that the defense
did not have any other issues to raise concerning the
instructions, the defendant implicitly waived his right
to challenge those instructions on appeal. Accordingly,
he is not entitled to Golding review of his unpreserved
claim of instructional error.
B
One day prior to oral argument before this court,
defense counsel filed a notice with this court, pursuant
to Practice Book § 67-10, of two cases, not mentioned
in the one brief that was filed by the defendant, that
were asserted to be pertinent to the defendant’s claim of
instructional error. Specifically, defense counsel cited
State v. Brown, 299 Conn. 640, 659, 11 A.3d 663 (2011),
and State v. Ruocco, 151 Conn. App. 732, 742–43, 95
A.3d 573 (2014), aff’d, 322 Conn. 796, 144 A.3d 354
(2016), for the proposition that ‘‘the state bears the
burden of proving the defendant waived a claim of
instructional error.’’9 At oral argument before this court,
the defendant’s appellate counsel referenced the point
in the charging conference when the trial court, while
reciting the proposed charge on burglary in the second
degree as alleged in count six, stated: ‘‘Threatening in
the second degree is defined as, etcetera, etcetera,
etcetera.’’ She claimed, for the first time, that, because
there is no copy in the record of the trial court’s pro-
posed charge, a draft of the proposed charge was never
made an exhibit, and there is not enough evidence to
determine what was in the draft of the court’s proposed
charge, the state has failed to meet its burden of provid-
ing an adequate record to show that there was Kitch-
ens waiver.
Before we discuss the merits of this claim, a brief
discussion of the facts of Brown and Ruocco is neces-
sary. In Brown, the defendant raised two unpreserved
claims of instructional error on appeal. State v. Brown,
supra, 299 Conn. 643. With respect to the first claim,
our Supreme Court concluded that, pursuant to Kitch-
ens, the defendant implicitly had waived his right to
challenge the court’s instructions on intent and was not
entitled to Golding review of that unpreserved claim.
Id., 658–59. With respect to the second claim, which
related to the court’s instructions concerning liability
under the doctrine set forth in Pinkerton v. United
States, 328 U.S. 640, 647–48, 66 S. Ct. 1180, 90 L. Ed.
1489 (1946), the court found that the case was distin-
guishable from Kitchens. State v. Brown, supra, 659.
Specifically, the court stated: ‘‘Because we have no
record of the charging conference or copy of the court’s
intended charge, we do not know if the trial court
expressly rejected the state’s proper request to charge
[which included an instruction on Pinkerton liability],
or included the proper instruction in the copy of the
charge that it provided to counsel, but inadvertently
omitted it from the actual charge to the jury. The ele-
ments of Pinkerton liability are well established. . . .
It is reasonable to assume, therefore, that the omission
was inadvertent. Under these circumstances, we cannot
determine from the record whether the copy of the
final instructions given to defense counsel included the
correct charge or the charge as actually given. Thus,
unlike in Kitchens, we cannot infer that defense counsel
had knowledge of any potential flaws in the court’s
Pinkerton instruction. . . . Because we cannot rea-
sonably conclude that counsel was aware in advance
of the instructional deficiency, we will not conclude
that the defendant has waived his right to challenge the
charge on direct appeal.’’ (Citations omitted.) Id.
In Ruocco, the defendant claimed on appeal that the
trial court erred in failing to instruct the jury that it
may draw no unfavorable inferences from the failure
of the defendant to testify, as mandated by General
Statutes § 54-84 (b). State v. Ruocco, supra, 151 Conn.
App. 734. Although the state and the defendant con-
ceded that the mandatory instruction had not been
given to the jury; id., 738–39; the state claimed that the
record was inadequate for review of the defendant’s
claim because ‘‘it [was] ambiguous as to whether the
defendant waived the mandatory instruction . . . .’’
Id., 739. In Ruocco, ‘‘[a]fter the parties presented their
closing arguments, and before adjourning for its lunch
recess, the court stated: ‘Counsel, I’ve given you each
a copy of my proposed charge. . . . [I]f you have any
questions, or concerns, or comments, I’ll be available
at 1:30 in my chambers. If I don’t see you at 1:30, I’ll
just assume that you have no comments or questions.
But we will be starting a little before 2 because I’d like
to have as much time this afternoon for the jury and
its deliberations.’ After the recess, the jury entered the
courtroom and the court gave the jury charge. The court
did not put on the record whether any party had come
to its chambers to discuss the charge. Furthermore,
there is no reference to any charge conference and no
copy of the proposed charge in the record.’’ Id.
On appeal, the parties in Ruocco disagreed as to
whether the record was adequate for review of the
defendant’s instructional error claim. Id., 740. According
to the state, there was ‘‘a possibility that the defendant
could have waived [the mandatory instruction] in an
in-chambers conference during the lunch recess’’;
(internal quotation marks omitted) id.; and the defen-
dant, as the appellant, had the burden of providing an
adequate record. Id., 741. This court rejected the state’s
claim and concluded ‘‘that the record . . . [was] clear,
unambiguous, and adequate for review with respect
to the defendant’s claim that the court improperly
refrained from giving the no unfavorable inference
instruction. Presuming that the trial court acted prop-
erly, as we must, the record leads to the conclusion
that no off-the-record charge conference occurred. Had
an in-chambers charge conference occurred, as the
state suggests, then a court acting properly would have
summarized it on the record . . . . There is no record
of either party taking exception to the charge and no
record of the defendant waiving the mandatory instruc-
tion . . . .’’ (Footnotes omitted.) Id. We explained fur-
ther that, ‘‘[i]f the state intends to argue that the defen-
dant waived a mandatory instruction, the burden is on
the state to secure an adequate record to support that
argument’’; id., 742; as it would have been ‘‘manifestly
unjust’’ to place the burden on the defendant to secure
an adequate record to review the state’s claim. Id., 743.
We conclude that the present case is distinguishable
from both Brown and Ruocco. First, unlike the situation
in Brown, in which there was no record of a charging
conference or a copy of the court’s intended charge,
the court in the present case held an on-the-record
charging conference, in which it addressed each
requested instruction from the state and the defendant,
and gave the parties multiple opportunities to comment
on those requests and the court’s proposed charge.
Although the record does not contain a copy of the
court’s proposed charge, our Supreme Court observed
in Bellamy that ‘‘the waiver rule in Kitchens does not
require that a copy of the proposed jury instructions
be marked as an exhibit. It only requires evidence that
the trial court gave the parties a ‘copy of the proposed
jury instructions’ and that the reviewing court’s determi-
nation of implied waiver ‘be based on a close examina-
tion of the record and the particular facts and circum-
stances of each case.’ ’’ State v. Bellamy, supra, 323
Conn. 411.
It is also clear from the record in the present case
that, when the court was reciting the language of the
proposed instruction concerning the second degree bur-
glary charge in count six, which was in response to an
issue raised concerning a different underlying offense,
larceny, the court used the words ‘‘etcetera, etcetera,
etcetera,’’ to skip over language in the proposed charge
that was not relevant to the issue that had been raised.
Neither party made a request to charge related to the
instruction on threatening in count six, and no claim
has been made that the court’s final instruction to the
jury regarding that offense differed in any way from
the proposed charge that had been given to the parties
on the first day of trial, except with respect to the
few grammatical and spelling corrections the court had
made on the morning of May 21, 2019. This is not a
situation, as in Brown, involving on appeal an issue of
whether the final charge to the jury differed from the
proposed instructions the parties had been given for
review, which required a review of the proposed
instructions.
Likewise, we conclude that the defendant’s reliance
on Ruocco is misplaced. In that case, in which the state
claimed that a mandatory jury instruction may have
been waived by the defendant during an off-the-record
charging conference that may have occurred, we con-
cluded that it would have been unfair to place the bur-
den on the defendant to provide an adequate record to
review the state’s claim. Thus, we concluded that the
state had the burden of providing an adequate record
for its claim of waiver, which was not made on the
basis of Kitchens. The record in the present case is
adequate for this court to closely examine the particular
facts and circumstances and to make a determination
of whether an implicit waiver has occurred. See State
v. Bellamy, supra, 323 Conn. 411.
C
Having determined that the defendant is not entitled
to Golding review of his unpreserved claim of instruc-
tional error, we next address his alternative claim that
the court’s instruction amounted to plain error. See
Practice Book § 60-5. Our Supreme Court determined
in State v. McClain, 324 Conn. 802, 815, 155 A.3d 209
(2017), that a Kitchens waiver does not preclude plain
error review, and, thus, we address this claim. Although
the defendant attempts to couch his claim in constitu-
tional terms by arguing that the court failed to instruct
the jury on the essential elements of the underlying
crime of threatening in the second degree; see State v.
Gooden, 89 Conn. App. 307, 315, 873 A.2d 243 (‘‘[t]he
trial court is constitutionally required to instruct the
jury properly on every essential element of the crime
charged’’ (internal quotation marks omitted)), cert.
denied, 275 Conn. 919, 883 A.2d 1249 (2005), and cert.
denied, 275 Conn. 918, 883 A.2d 1249 (2005); as stated
previously in this opinion, the court’s charge to the jury
did set forth the essential elements of threatening in
the second degree under § 53a-62, and the defendant’s
claim essentially challenges the court’s failure to define
the terms ‘‘physical threat’’ and ‘‘imminent’’ as set forth
in § 53a-62.
‘‘It is well established that the plain error doctrine
. . . is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved [and nonconstitutional in nature], are of
such monumental proportion that they threaten to
erode our system of justice and work a serious and
manifest injustice of the aggrieved party. . . . That is,
it is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment
. . . for reasons of policy. . . . In addition, the plain
error doctrine is reserved for truly extraordinary situa-
tions [in which] the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . Plain error
is a doctrine that should be invoked sparingly. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernable] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . [A] com-
plete record and an obvious error are prerequisites for
plain error review . . . . [An appellant] cannot prevail
under [the plain error doctrine] . . . unless he demon-
strates that the claimed error is both so clear and so
harmful that a failure to reverse the judgment would
result in manifest injustice.’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.) State v.
Moon, 192 Conn. App. 68, 97–99, 217 A.3d 668 (2019),
cert. denied, 334 Conn. 918, 222 A.3d 513 (2020).
In the present case, we must determine whether the
court’s failure to define the elements of ‘‘physical
threat’’ and ‘‘imminent’’ in its jury instructions relating
to count six and the underlying charge of threatening
in the second degree constituted plain error. First, the
defendant has not demonstrated that the word ‘‘immi-
nent’’ as used in the statute has ‘‘ ‘anything other than
its ordinary meaning.’ ’’ State v. Walker, 9 Conn. App.
373, 378, 519 A.2d 83 (1986), cert. denied, 202 Conn.
805, 520 A.2d 1286 (1987); see also State v. March, 39
Conn. App. 267, 273, 664 A.2d 1157 (1995) (‘‘ ‘[w]hen
a word contained in an essential element carries its
ordinary meaning, failure to give the statutory defini-
tion will not constitute error’ ’’), cert. denied, 235 Conn.
930, 667 A.2d 801 (1995). Second, this court recently
addressed a sufficiency of the evidence challenge to
the ‘‘physical threat’’ requirement of threatening in the
second degree and stated ‘‘that a threat, by definition,
is an expression of an intent to cause some future
harm,’’ and that that definition was ‘‘consistent with
the dictionary definition of a threat as [a] communicated
intent to inflict harm or loss on another . . . . Black’s
Law Dictionary (11th Ed. 2019) p. 1783; see also Mer-
riam-Webster’s Collegiate Dictionary (11th Ed. 2003) p.
1302 (defining threat as expression of intention to inflict
evil, injury, or damage . . .).’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Ervin B., supra, 202 Conn. App. 8. The defen-
dant, therefore, has not shown that the trial court’s
failure to include the definitions of ‘‘imminent’’ and
‘‘physical threat’’ in its jury charge constituted plain
error. See State v. Coltherst, 87 Conn. App. 93, 109
n.11, 110, 864 A.2d 869 (concluding that any error was
harmless when court’s jury charge included essential
elements of larceny but failed to define one of those
elements), cert. denied, 273 Conn. 919, 871 A.2d 371
(2005).
We also note that count six of the third substitute
information alleges that the defendant committed bur-
glary in the second degree on the basis of his having
entered or having remained unlawfully in the victim’s
apartment, while the victim was present, with the intent
to commit any, some or all of the four different underly-
ing crimes therein, namely, robbery in the first degree,
robbery in the second degree, threatening in the second
degree and larceny in the sixth degree. Because the
defendant also had been charged in counts three and
four with robbery in the first degree and robbery in
the second degree, and was found not guilty of those
charges, the guilty verdict of burglary in the second
degree in count six could have been based on a finding
either that the defendant intended to commit the crime
of threatening in the second degree or that he intended
to commit the crime of larceny in the sixth degree while
in the dwelling. Because the jury returned a general
verdict as to count six, we do not know on which under-
lying crime the jury based its verdict—threatening in
the second degree or larceny in the sixth degree. More-
over, the defendant has not raised on appeal any chal-
lenge to the jury instructions or the sufficiency of the
evidence relating to the underlying crime of larceny in
the sixth degree as alleged in count six.
In charging the jury as to larceny, the court explained
that ‘‘[a] person commits larceny when, with intent to
deprive another of property or to appropriate the same
to himself, he wrongfully takes, obtains, or withholds
such property from an owner.’’ The court further
explained that ‘‘[l]arceny in the sixth degree is a larceny
where the value of the property is less than $500.’’
The evidence in the record was sufficient for the jury
to have found that the defendant committed burglary
in the second degree by entering or remaining unlaw-
fully in the victim’s apartment, while the victim was
present, with the intent to commit larceny in the sixth
degree while therein. The victim testified that the defen-
dant and Moniz forced the victim into his apartment,
and that, once inside, the defendant took his money.
Although there was a discrepancy as to how much
money was stolen from the victim, either $300 or $400,
either value was less than $500. There also was evidence
in the record, including testimony, demonstrating that
the defendant and Moniz matched the descriptions of
the perpetrators given by the victim and had been appre-
hended a short distance from the victim’s apartment
within minutes of the larceny, that the defendant ini-
tially did not comply with requests of police officers to
stop but eventually walked back toward the officers,
that two 100 dollar bills were found on the sidewalk in
the area where the defendant had attempted to walk
away, and that two $50 bills were taken from Moniz
and tagged as evidence.
The jury returned a general verdict finding the defen-
dant guilty as to count six of the third substitute infor-
mation, and the evidence supports the defendant’s con-
viction of the burglary charge on the basis of larceny in
the sixth degree as the underlying crime. The defendant
conceded this in his brief when he stated: ‘‘In addition,
the [instructional] error was not harmless, even though
there was enough evidence (by [the victim’s] account)
that [the] defendant intended to commit a larceny.’’
We find the decision of the United States Supreme
Court in Griffin v. United States, 502 U.S. 46, 47, 112
S. Ct. 466, 116 L. Ed. 2d 371 (1991), instructive on this
issue. In that case, the United States Supreme Court
addressed the issue of ‘‘whether, in a federal prosecu-
tion, a general guilty verdict on a multiple-object con-
spiracy charge must be set aside if the evidence is
inadequate to support conviction as to one of the
objects.’’ The petitioner had been charged with conspir-
ing to defraud the federal government, and the unlawful
conspiracy was alleged to have had two objects. Id. The
evidence introduced at trial implicated the petitioner
in the first object but did not connect her to the second
one. Id., 47–48. Nevertheless, the jury was instructed
in a manner that permitted it to return a guilty verdict
against the petitioner if it found that she had partici-
pated in either one of the two objects of the conspiracy.
Id., 48. The United States Court of Appeals for the Sev-
enth Circuit rejected the argument ‘‘that the general
verdict could not stand because it left in doubt whether
the jury had convicted her’’ as to the first or second
object of the conspiracy. Id.
In affirming the judgment, the United States Supreme
Court in Griffin explained: ‘‘It was settled law in
England before the Declaration of Independence, and
in this country long afterwards, that a general jury ver-
dict was valid so long as it was legally supportable on
one of the submitted grounds—even though that gave
no assurance that a valid ground, rather than an invalid
one, was actually the basis for the jury’s action. . . .
[I]n the United States, with but few exceptions, the
courts have united in sustaining general judgments on
an indictment in which there are several counts stating
cognate offences, irrespective of the question whether
one of these counts is bad. . . . In criminal cases, the
general rule . . . is that if there is any one count to
support the verdict, it shall stand good, notwithstanding
all the rest are bad. And it is settled law in this court,
and in this country generally, that in any criminal case
a general verdict and judgment on an indictment or
information containing several counts cannot be
reversed on error, if any one of the counts is good
and warrants the judgment, because, in the absence
of anything in the record to show the contrary, the
presumption of law is that the court awarded sentence
on the good count only.’’ (Citation omitted; internal
quotation marks omitted.) Id., 49–50. That common-law
rule has been applied in a number of contexts, including
within the context of ‘‘a general jury verdict under a
single count charging the commission of an offense by
two or more means.’’ (Emphasis in original.) Id., 50.
The rule set forth in Griffin was first cited with
approval by our Supreme Court in State v. Chapman,
229 Conn. 529, 540–41, 643 A.2d 1213 (1994). In Chap-
man, our Supreme Court held that, when ‘‘the state
charges that a defendant has committed a crime in
more than one way, and those ways are charged in
the conjunctive, as they must be, and the trial court
instructs, as it must, that the state need only prove one
of its allegations, and not all, the verdict must be upheld
so long as there is sufficient evidence under any of the
allegations.’’ Id., 543. The court further explained that,
‘‘[i]n effect, we assume that the jury found the defendant
guilty under the supported allegation, rather than the
unsupported allegation.’’ Id., 543–44. Since Chapman
was decided, our appellate courts have adhered to this
general rule. See, e.g., State v. Gaines, 257 Conn. 695,
718 n.16, 778 A.2d 919 (2001); State v. Dyson, 238 Conn.
784, 795, 680 A.2d 1306 (1996); State v. Wright, 111
Conn. App. 389, 396, 958 A.2d 1249 (2008), cert. denied,
290 Conn. 907, 962 A.2d 795 (2009); State v. Torres, 82
Conn. App. 823, 833–34, 847 A.2d 1022, cert. denied,
270 Conn. 909, 853 A.2d 525 (2004); State v. Tinsley,
47 Conn. App. 716, 718–20, 706 A.2d 1008, cert. denied,
244 Conn. 915, 713 A.2d 833 (1998).
In the present case, the state cites to Griffin in its
brief and argues: ‘‘Where, as here, the state alleges in
one count several alternative ways of committing a
crime, and the ‘trial court instructs, as it must, that the
state need only prove one of its allegations, and not all,
the verdict must be upheld so long as there is sufficient
evidence under any of the allegations.’ State v. Wohler,
231 Conn. 411, 415 [650 A.2d 168] (1994); see Griffin
v. United States, [supra, 502 U.S. 56–57] (when jury
returns guilty verdict on indictment charging several
acts in the conjunctive, verdict must stand if evidence
is sufficient with respect to any one of the acts).
Because the evidence here was sufficient to support a
finding by the jury that the defendant intended to com-
mit, for example, the crime of sixth degree larceny . . .
and because the trial court correctly instructed the jury
on that crime . . . any error in its instructions on
threatening was harmless beyond a reasonable doubt.’’
(Citation omitted.) The defendant never responded to
these arguments by filing a reply brief addressing the
state’s discussion of the relevance of Wohler and Grif-
fin.
We also note that our Supreme Court and the United
States Supreme Court have discussed and distinguished
the situation involved in Griffin, in which one of the
possible grounds for conviction was not supported by
sufficient evidence, from those in which the basis for
the conviction is legally insufficient or invalid, to which
the rule in Griffin does not apply.10 See Griffin v.
United States, supra, 502 U.S. 54–60; State v. Chapman,
supra, 229 Conn. 540–41. We do not glean from the
record that the defendant has made any such claim of
legal invalidity here. Although the defendant cites to
Chapman in his brief for the proposition that a reversal
of the judgment is required ‘‘if one theory charged is
legally inadequate and cannot determine [the] basis for
conviction,’’ his brief is devoid of any analysis or argu-
ment asserting that the jury’s verdict of guilty of bur-
glary in the second degree was based on a legally inade-
quate theory of recovery. On the contrary, the defendant
states in his brief that, ‘‘[w]hile there was evidence of
threats made at Moniz’ apartment, [the victim] did not
testify about any threats, physical or otherwise, at the
time [the] defendant entered or remained in his apart-
ment before obtaining the money. Although he claimed
that, as they were leaving, [the] defendant threatened
to shoot him if he told anybody, those were mere words
and did not amount to a physical threat. Even if it
somehow did, it was not a threat of imminent physical
injury.’’ Those assertions sound more in the nature of
a sufficiency of the evidence claim, rather than one of
legal insufficiency.
Moreover, to the extent that the defendant’s claim of
instructional error can be construed as a claim that his
conviction of burglary in the second degree was based
on a legally insufficient ground, we rely on Chapman
and its progeny, and the rule of law set forth therein,
simply to demonstrate why this case does not present
the type of extraordinary situation in which plain error
can be found. If a factually supported verdict stands,
even when there is no assurance that a valid ground,
rather than an invalid one, was the basis for the jury’s
verdict, we are hard-pressed to find plain error under
the circumstances here when (1) the defendant was
charged in count six with having committed burglary
in the second degree on the basis of more than one
underlying crime, (2) one of those underlying crimes
alleged—larceny in the sixth degree—was supported
by sufficient evidence in the record, (3) the defendant’s
challenge to the jury charge on another underlying
crime—threatening in the second degree—does not
allege that the theory of conviction was contrary to the
law in that it was time barred or that the defendant’s
actions at issue were protected by the constitution, and
(4) the defendant’s claim of instructional impropriety
concerns the court’s failure to define the terms ‘‘immi-
nent’’ and ‘‘physical threat,’’ as they relate to the under-
lying threatening charge, and does not allege any mis-
statement of law by the court, the defendant has not
cited any authority that required the court specifically
to charge the jury on those definitions other than the
model criminal jury instructions on the Judicial Branch
website; see Connecticut Criminal Jury Instructions,
available at https://www.jud.ct.gov/JI/Criminal/Crimi-
nal.pdf (last visited June 23, 2021); which are meant as
a guide for judges and attorneys and are discretionary;
State v. Reyes, 325 Conn. 815, 822 n.3, 160 A.3d 323
(2017); and the defendant failed to show that those
terms do not carry their ordinary meaning, which
weighs against finding any constitutional error in the
court’s failure to define the terms.
The defendant, therefore, has not shown that a failure
to reverse the judgment would result in manifest injus-
tice; see State v. Moon, supra, 192 Conn. App. 99; and,
thus, his claim of plain error fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also raised a claim on appeal concerning his conviction,
after a trial to the court, of being a persistent felony offender in violation
of General Statutes § 53a-40 (g) and the court’s denial of his motion to
dismiss the part B information, which charged him as such on the basis of
his two prior convictions in 2000 and 2006 of possession of narcotics in
violation of General Statutes § 21a-279 (a). His motion to dismiss the part
B information was based on the fact that, pursuant to Public Acts, Spec.
Sess., June, 2015, No. 15-2 (P.A. 15-2), which became effective October
1, 2015, a conviction of possession of narcotics under § 21a-279 (a) is a
misdemeanor and no longer is a felony. Therefore, according to the defen-
dant, his prior convictions under that statute could not be the basis for a
finding that he is a persistent felony offender. In denying the defendant’s
motion to dismiss, the trial court relied on this court’s decision in State v.
Moore, 180 Conn. App. 116, 124, 182 A.3d 696, cert. denied, 329 Conn.
905, 185 A.3d 595 (2018), in which we held that P.A. 15-2 does not apply
retroactively and which this court followed in State v. Bischoff, 189 Conn.
App. 119, 122–23, 206 A.3d 253 (2019), aff’d, Conn. , A.3d
(2021). During the pendency of the appeal in the present case, our Supreme
Court issued its decision in State v. Bischoff, Conn. , A.3d
(2021), affirming this court’s judgment that P.A. 15-2 does not apply
retroactively. At oral argument before this court, the defendant’s appellate
counsel acknowledged that we are bound by our Supreme Court’s decision
in Bischoff and that the defendant’s claim concerning his conviction as a
persistent felony offender no longer is viable. Therefore, counsel withdrew
the issue from consideration on appeal. Accordingly, we do not address
this claim.
2
The victim testified that, on the previous day, Saturday, January 27, 2018,
he withdrew $800 from the bank to pay his rent. He explained that he
withdrew the money in 100 and 50 dollar bills, so that he would not waste it.
3
Regarding the watch, the victim testified on direct examination that he
‘‘had no idea what [the defendant and Moniz] were talking about . . . .’’
Moniz testified regarding this issue, stating that, about two weeks prior to
the incident at issue here, he had the victim over to his apartment, where
they had been drinking. A watch and chain belonging to Moniz were on a
living room table, and, according to Moniz, the victim was the only one at
his house at the time. When Moniz had his back turned to the victim, the
victim said he was leaving. After the victim left, Moniz noticed that the
watch was not there anymore. At the defendant’s apartment on January 29,
2018, Moniz confronted the victim about the watch, asking him where it
was and if he took it. Moniz testified that the victim denied stealing the
watch but, nevertheless, offered to give him money for it. Moniz testified
further that the victim told him he would give him $300 for the watch, that
the money was at the victim’s apartment, and that they finished another
drink before heading to the victim’s apartment to get the money.
4
The record shows that the victim was found to be in violation of his
probation on October 20, 2017, and that he admitted the violation and was
resentenced on January 8, 2018, which was approximately three weeks prior
to the incident at issue in this case. Defense counsel also sought to inquire
about the fact that the victim had been arrested, twice, while on probation.
The court declined the request, stating that ‘‘an arrest is not a conviction.
Anybody can be arrested.’’ The defendant does not challenge in this appeal
the court’s ruling prohibiting questions about the two arrests.
5
In his appellate brief, the defendant also claims that the court’s exclusion
of the proffered line of questioning violated his constitutional right to present
a defense. For the same reason we have rejected the defendant’s claimed
violation of his constitutional right to confrontation, we reject this claim
as well. See State v. Saucier, 90 Conn. App. 132, 142–43, 876 A.2d 572
(2005) (‘‘The defendant’s constitutional claim that he was prohibited from
presenting a defense by the court’s exclusion of the proffered evidence first
required him to show that the exclusion was improper. . . . Because we
conclude that the court did not abuse its discretion in excluding the proffered
evidence [as speculative and irrelevant], it follows that the defendant’s
constitutional right to present a defense was not violated.’’ (Citation omit-
ted.)), aff’d, 283 Conn. 207, 926 A.2d 633 (2007).
6
The state’s written request to charge included jury instructions regarding
the police investigation, assault in the second degree as it relates to the
element of serious physical injury, consciousness of guilt and exhibits that
contained partial redactions. The state’s supplemental written request to
charge included a charge on accessory liability.
7
The defendant’s written request to charge included jury instructions
concerning reasonable doubt, the credibility of witnesses, impeachment
evidence, the prior inconsistent statements of the victim and Moniz, and a
specific unanimity charge. In his request to charge, the defendant also
objected to the state’s request to charge on assault in the second degree as
it relates to the element of serious physical injury, as well as the state’s
requests to charge as to the police investigation and consciousness of guilt.
8
Pursuant to Golding, as modified by In re Yasiel R., ‘‘a defendant can
prevail on a claim of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation . . . exists and . . . deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt. In the absence of any one of these conditions, the defendant’s claim
will fail. . . . State v. Golding, supra, 213 Conn. 239–40.’’ (Emphasis in
original; internal quotation marks omitted.) State v. Coleman, 199 Conn.
App. 172, 186 n.8, 235 A.3d 655, cert. denied, 335 Conn. 966, 240 A.3d
281 (2020).
9
We note that the state raised and briefed its Kitchens claim in its appellate
brief. Although the defendant filed a motion for an extension of time to file
a reply brief, which was granted, no reply brief was filed, nor did the
defendant’s principal brief address the Kitchens waiver issue. The defen-
dant’s appellate counsel, nevertheless, filed the letter of supplemental
authority pursuant to Practice Book § 67-10 related to this issue, and the
state never objected. At oral argument before this court, the defendant’s
appellate counsel and the state addressed the supplemental authority and
the state’s assertion that the defendant’s claim of instructional error was
waived. Accordingly, although claims must be adequately briefed and, nor-
mally, we do not address claims raised for the first time at oral argument;
Bridgeport v. Grace Building, LLC, 181 Conn. App. 280, 294, 186 A.3d 754
(2018); given the defendant’s letter pursuant to § 67-10 and the absence of
an objection by the state, under the circumstances here, we will consider
the defendant’s claim concerning Brown and Ruocco.
10
In Griffin, for example, the United States Supreme Court explained:
‘‘[T]he term ‘legal error’ means a mistake about the law, as opposed to a
mistake concerning the weight or the factual import of the evidence. . . .
Jurors are not generally equipped to determine whether a particular theory
of conviction submitted to them is contrary to law—whether, for example,
the action in question is protected by the [c]onstitution, is time barred, or
fails to come within the statutory definition of the crime. When, therefore,
jurors have been left the option of relying upon a legally inadequate theory,
there is no reason to think that their own intelligence and expertise will
save them from that error. Quite the opposite is true, however, when they
have been left the option of relying upon a factually inadequate theory,
since jurors are well equipped to analyze the evidence . . . . ‘It is one thing
to negate a verdict that, while supported by evidence, may have been based
on an erroneous view of the law; it is another to do so merely on the
chance—remote, it seems to us—that the jury convicted on a ground that
was not supported by adequate evidence when there existed alternative
grounds for which the evidence was sufficient.’ ’’ (Citation omitted; emphasis
in original.) Griffin v. United States, supra, 502 U.S. 59–60.