State v. Chapman

Berdon, J.

The defendant, Donald L. Chapman, was convicted by a jury of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l)1 and sentenced to a term of fourteen years, execution suspended after seven years. The defendant appealed to the Appellate Court, claiming that the trial court had improperly instructed the jury that it could find him guilty of sexual assault in the first degree if it found that he had compelled sexual intercourse either by the use of force or by the threat of use of force. The state had not charged the defendant with having threatened to use force, nor did the state introduce evidence of the threat of use of force.2 The Appellate Court concluded that the trial court had “improperly instructed the jury on a statutory alternative for which there was no supporting evidence” and ordered a new trial. State v. Chapman, 28 Conn. App. 360, 366, 610 A.2d 1328 (1992). We granted the state’s petition for certification limited to the following issues: “(1) Did the Appellate Court correctly conclude that the statutory alternative analysis set forth in State v. Williams, 202 Conn. 349, 363-64 [521 A.2d 150] (1987), applied to alternative language occurring within the same statutory subdivision] and that the trial court’s instruction permitted the jury to consider a separate and distinct theory of criminal liability? (2) Was the Appellate Court correct in its failure to consider whether any error in the trial court’s charge was harmless beyond a reasonable doubt?” State v. Chapman, 223 Conn. 923, 614 A.2d 827 (1992). We conclude that the trial court improperly instructed the .jury on a statutory alternative for which the defendant was not charged and for which there was no supporting evidence.3 We also conclude that the trial court’s instruction violated the defendant’s due process rights under the Connecticut constitution and that harmless error analysis is not required. We therefore affirm the judgment of the Appellate Court.

For the purposes of the issues raised in this appeal, we need to concern ourselves only with the following limited facts. The state charged only that the defendant had compelled sexual intercourse by the use of force and introduced evidence to that end.4 The state concedes that it introduced no evidence that the defendant had committed the offense by threatening the use of force against the victim. Nevertheless, the trial court instructed the jury that “a person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or by the threat of the use of force against such person which reasonably causes such person to fear physical injury.” (Emphasis added.) Indeed, the trial court instructed on the use of a threat as an alternative means of committing the crime on three separate occasions. The defendant took an exception to the instruction on committing sexual assault by threatening the use of force, thereby appropriately preserving this claim for appellate review. See Practice Book § 852;5 State v. Smith, 219 Conn. 160, 592 A.2d 382 (1991); State v. Hill, 201 Conn. 505, 512, 518 A.2d 388 (1986).

I

Statutory Alternative Analysis

Sexual assault in the first degree may be committed by two methods under § 53a-70 (a) (1): (1) by compelling another person to engage in sexual intercourse by “the use of force”; or (2) by compelling another person to engage in sexual intercourse by “the threat of use of force.” We have held on numerous occasions that “ ‘[w]here a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Asherman, 193 Conn. 695, 730, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984); see State v. Silveira, 198 Conn. 454, 459, 503 A.2d 599 (1986). This rule is based on the principle that jurors are presumed to follow the instructions given by the judge. State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977); State v. DellaCamera, 166 Conn. 557, 567, 353 A.2d 750 (1974).” State v. Williams, supra. By instructing the jury on a theory of criminality for which there is no supporting evidence, the trial court implies that there is a factual dispute for the jury to resolve regarding that theory of criminality. The trial court’s instruction authorizes the jury to consider and to resolve the implied factual dispute. Id., 364. “The trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence.” (Internal quotation marks omitted.) State v. Campbell, 225 Conn. 650, 659, 626 A.2d 287 (1993); see also State v. Williams, supra.

The state claims that the statutory alternative analysis employed in State v. Williams, supra, is not applicable in this case because the two methods of committing sexual assault in the first degree at issue here—use of force and the threat of use of force—are set forth in the same subdivision of the statutory definition. The state argues that the analysis in Williams should apply only when the statutory alternatives are framed in separately numbered statutory subdivisions. We disagree. Whether the legislature has distinguished between methods of achieving a result by placing them in separately labeled subdivisions or within a single subdivision is not determinative for deciding whether to apply the statutory alternative analysis set forth in Williams. We decline to adopt the distinction advanced by the state because it would elevate form over substance by analyzing a statute on the basis of its structure rather than its purpose. See State v. Wood, 208 Conn. 125, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Gonzalez, 206 Conn. 213, 219, 537 A.2d 460 (1988).

Instead, we must focus on the underlying purpose of the statutory alternative analysis set forth in State v. Williams, supra, 364, which serves the essential function of ensuring that juries do not convict under a theory of criminality unless the evidence is sufficient to establish guilt under that theory. In view of this underlying purpose, we must turn to the substance of the statutory text to determine whether the use of force and the threat of the use of force are separate statutory alternatives.

Section 53a-70 (a) provides that sexual assault may be committed by the “use of force against such other person . . . or by the threat of the use of force against such other person . . . which reasonably causes such person to fear physical injury to such person or a third person . . . .” The text of the statute clearly separates “force” from “threat of use of force” by using the disjunctive “or.” The “use of the disjunctive ‘or’ between the two parts of the statute indicates a clear legislative intent of separability.” State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963). Thus, in State v. Belton, 190 Conn. 496, 500-501, 461 A.2d 973 (1983), we held that the trial court had impermissibly enlarged the offense charged by incorporating the uncharged disjunctive phrase “remains unlawfully” when explaining the elements of burglary in the first degree. Under General Statutes § 53a-101 (a), “[a] person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein . . . .” We noted that “a burglary is committed when either type of ‘entry’ is established”; id., 501; and concluded that the trial court had violated the defendant’s due process rights under the state and federal constitutions by repeatedly using the disjunctive phrase “remains unlawfully,” when the state had not charged the defendant with that theory of liability.

Similarly, we have consistently held that the “use of force” and the “threat of use of force” are “two methods of committing the same crime.” State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984); State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Carter, 189 Conn. 611, 628-29, 458 A.2d 369 (1983); see also 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) (suggesting separate jury instructions for the use of force [§ 10.2] and the threat of use of force [§ 10.1]).

The state argues that the use of force and the threat of force cannot be statutory alternatives, however, because they can occur together and because they cause an identical result—namely, compelled sexual intercourse. We reject both of these arguments. Although an assailant may use force simultaneously with a threat to use force, each method may occur in isolation, as indicated by the plain language of the statute, which delineates the use of force separately from the threat of the use of force, and by the facts of this case. As previously noted, the state concedes that it neither charged nor introduced evidence to show that the defendant had threatened to use force, but limited its case to the actual use of force. As a result, the rationale behind the statutory alternative analysis of State v. Williams, supra, which seeks to ensure that the jury is not charged on a theory of liability for which no evidence has been introduced, applies whether the statutory alternatives are set forth in separately numbered subdivisions or within the same subdivision.

Our conclusion that the Appellate Court properly applied the statutory alternative analysis of Williams to the present case gains further support from the legislative history. Section 53a-70 was substantially amended by No. 75-619 of the 1975 Public Acts, which substituted the term “assault” for “misconduct” and provided that sexual assault could be committed by the threat of force as well as force. During the debate, Senator Betty Hudson stated: “The present statute requires that there be force, force enough ... to overcome earnest resistance, whatever that means. Well in most rape cases, there is no resistance. . . . In fact, in eighty-seven percent of rape cases, there is no resistance . . . because the rapist has a knife or a gun and threatens the woman’s life or that of her child.” 18 S. Proc., Pt. 7,1975 Sess., p. 3222. Senator Hudson’s remarks indicate that the legislature intended to punish for sexual assault those individuals who compelled sexual intercourse by threatening to use force, in addition to those who used actual force. This legislative history indicates an intent not to merge force and the threat of force, but rather supports the conclusion that force and threat of force are two separate methods of committing the same crime.

We conclude that the use of force and the threat of force, as used to define sexual assault in the first degree in violation of § 53a-70 (a) (1), are distinct statutory alternatives. Accordingly, we affirm the Appellate Court’s application of the analysis in State v. Williams, supra.

II

Harmless Error Analysis

In its second claim, the state argues that the Appellate Court should have applied harmless error analysis in determining whether to order a new trial because the trial court’s instruction authorized the jury to consider a separate and distinct theory of liability. The state’s contention cannot properly be addressed without first considering whether a jury instruction that allows a jury to convict a defendant on the basis of a statutory alternative for which there was no evidence violates a defendant’s right to due process.

The underlying federal rule of due process was announced in Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). In that case, the government had charged the defendants with conspiring to (1) advocate and teach the duty and necessity of overthrowing the government and (2) organize persons who so advocate and teach with the intent of overthrowing the government. The court noted that “in order to convict, the jury was required, as the court charged, to find an overt act which was ‘knowingly done in furtherance of an object or purpose of the conspiracy charged in the indictment,’ and we have no way of knowing whether the overt act found by the jury was one which it believed to be in furtherance of the ‘advocacy’ rather than the ‘organizing’ objective of the alleged conspiracy. ... In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Id., 311-12.

The state contends, however, that following the United States Supreme Court’s decision in Griffin v. United States, 502 U.S. , 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), a general verdict is valid so long as the evidence is sufficient with respect to any one of the alternatives charged.6 In Griffin, the court reaffirmed the rule, under federal law, set forth in Turner v. United States, 396 U.S. 398, 420, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), as follows: “ ‘[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.’ ” Id., 473. Griffin is therefore inapposite in this case because it is limited to statutory alternatives charged in the conjunctive.7 In the present case, the trial court’s instructions to the jury were predicated on an information that charged the defendant disjunctively. We need not speculate as to whether the United States Supreme Court would apply the tailored rule set forth in Griffin to statutory alternatives charged disjunctively because the defendant invokes the state constitution as well as the federal constitution.8

“It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991).” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). We have held that, among other things, it is appropriate to focus on our state common law and state history in construing the contours of our state constitution. Id., 686. “State courts . . . must be empowered to determine, in light of state interests and state history, what meaning to attribute to provisions contained in state constitutions.” E. Peters, “State Constitutional Law: Federalism in the Common Law Tradition,” 84 Mich. L. Rev. 583, 588 (1986). Moreover, we may look to the historical record and due process tradition in Connecticut in determining whether article first, § 8, of the Connecticut constitution affords greater rights than its federal counterpart. State v. Stoddard, 206 Conn. 157, 164-66, 537 A.2d 446 (1988).

An instruction on a statutory alternative that is not supported by the evidence violates a defendant’s fundamental right, protected by the due process clause of article first, § 8, of the Connecticut constitution, “to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.”9 State v. Williams, supra, 363; see also State v. Rodriguez, 223 Conn. 127, 147, 613 A.2d 211 (1992); State v. Allen, 216 Conn. 367, 388-89, 579 A.2d 1066 (1990); State v. John, 210 Conn. 652, 688, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Arnold, 201 Conn. 276, 281-82, 514 A.2d 330 (1986); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). A similar principle applies when the trial court instructs the jury that it may convict a defendant on the basis of a statutory alternative for which there is no evidence. Accordingly, it is firmly entrenched in the common law of this state that “ ‘[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.’ ” State v. Williams, supra, 364; Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). “[I]f a claim is made against the evidence in the case, and wholly unsupported by proof, it is error to submit it to the jury as if the evidence justified the claim, and without comment, as there is great danger of its leading to an unjust verdict.” Lewis v. Phoenix Mutual Life Ins. Co., 44 Conn. 72, 88 (1876); see also Allen v. Rundle, 50 Conn. 9, 33, 47 A. 599 (1882); Hartford v. Champion, 58 Conn. 268, 276, 20 A. 471 (1890); McGarry v. Healey, 78 Conn. 365, 367, 62 A. 671 (1905); Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250 (1933) (“instruction which left the door open for the entrance of a finding by the jury of negligence on the defendant’s part, or of due care upon the plaintiff’s part, which did not arise out of the evidence in the case, was calculated to do the defendant harm”); Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979).

The principle of not submitting to the jury any issue for which there is insufficient evidence has roots in our early common law. Justice Swift, writing in 1822, shortly after the adoption of the state constitution in 1818, noted that the jury in its deliberations “must find expressly all the facts put in issue, or must negate them all.” 2 Z. Swift, Digest of the Laws of the State of Connecticut (1823) p. 774. Similarly, Justice Swift recognized the court’s power to “direct the jury to say, in their verdict, on which count they find the defendant guilty, and to find him not guilty on the rest, so that if he should be found guilty on an insufficient count, he might take advantage of it by motion in arrest.” Id., p. 383. Also imbedded in our common law is the notion that the judge has the power “to defend the innocent against an unjust verdict . . . .” Id., p. 413. Implicit in the power to set aside a verdict that has no support in the evidence is the idea that the court should not submit to the jury, in the first instance, an issue that has no support in the evidence. By doing so, the court invites an unjust verdict.

Accordingly, we conclude that the due process clause of the Connecticut constitution prohibits the trial court from charging the jury on a statutory alternative for which there is no evidence and on which the jury could improperly predicate its verdict. “[A] general verdict of guilty without specific findings as to the alternative on which it rested . . . must be set aside if the evidence as to either alternative submitted was insufficient.” State v. Arnold, supra, 282; see also State v. Williams, supra, 364.

The state argues that even if the Appellate Court properly concluded that the jury charge violated the defendant’s right to due process by enlarging the offense charged, it should not have reversed his conviction without engaging in a harmless error analysis. We disagree. Ordinarily, we abide by the principle that “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). In such cases, under the state constitution as well as the federal constitution, the state must prove that the constitutional impropriety was harmless beyond a reasonable doubt. State v. Oquendo, 223 Conn. 635, 660, 613 A.2d 1300 (1992).

Nevertheless, some constitutional errors require automatic reversal in order to vindicate the fundamental right in question, “[infringements of a defendant’s constitutional rights in a criminal case where harmless error analysis is deemed inappropriate involve situations where the constitutional violation must be deemed harmful under all circumstances or where it is of such a nature that ascertainment of its harmfulness is impossible or so difficult as not to warrant the endeavor. Such cases are rare exceptions to ‘the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ Delaware v. Van Arsdall, [supra].” State v. Mebane, 204 Conn. 585, 604-605, 529 A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct. 784, 98 L. Ed. 2d 870 (1988) (Shea, J., concurring); J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1989) p. 492.

The present case falls within the category of cases that require automatic reversal. State v. Williams, supra. By instructing the jury on a statutory alternative for which there was no evidence, the trial court expressly sanctions a verdict that has no foundation in the evidence. Following such an instruction, it is “ ‘impossible to determine whether the jury based its decision on an act for which there was insufficient evidence . . . .’ United States v. Berardi, [675 F.2d 894, 902 (7th Cir. 1982)].” State v. Arnold, supra. We will never know the statutory predicate for the jury’s verdict.10 Accordingly, when the jury, on the basis of the trial court’s instructions, renders a general verdict that does not specify the statutory alternative on which it rests, it “must be set aside if the evidence as to either alternative submitted was insufficient”; id.; without engaging in a harmless error analysis.11 Accordingly, we conclude that the due process clause contained in article first, § 8, of the Connecticut constitution requires a new trial if the trial court instructs the jury that the defendant may be found guilty on a statutory alternative for which there is no evidence.

The judgment is affirmed.

In this opinion Peters, C. J., and Katz, J., concurred.

1 General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

2 In the Appellate Court, the defendant also claimed that (1) his amnesia rendered him incompetent to stand trial, (2) the trial court improperly failed to admit statements made by the victim to the defendant to show their effect on the defendant’s state of mind, and (3) the trial court improperly referred to the defendant’s “misstatements” in its charge to the jury on consciousness of guilt. State v. Chapman, 28 Conn. App. 360, 361-62, 610 A.2d 1328 (1992). Those issues are not before this court.

3 The defendant claims that the state waived its first claim, that the use of force and the threat of use of force are not statutory alternatives, by failing to raise the issue in the Appellate Court. State v. Duhan, 194 Conn. 347, 354, 481 A.2d 48 (1984) (failure to raise issue before Appellate Court is grounds to deny review in this court). Indeed, the state in its brief before the Appellate Court referred to “force” as the charged theory of liability and ‘ ‘threat of force’ ’ as the uncharged theory of liability; it further referred to them as “both theories.” Nevertheless, because the first issue is so interwoven with the second certified question concerning harmlessness; see Cahn v. Cahn, 225 Conn. 666, 679 n.1, 626 A.2d 296 (1993) (Berdon, J., concurring); we will review the claim. Furthermore, both parties have fully briefed the issue.

4 By way of a substitute information, the state charged that “at the Highland Horse Farm in the Town of Ledyard, on or about the late evening hours of March 2, 1990, to the early morning hours of March 3, 1990, the defendant attempted to, and did compel, the victim to engage in sexual intercourse by the use of force against said victim, to wit: the said Donald L. Chapman restrained the victim, attempted to, and did forcibly penetrate her vagina with his penis, in violation of Sections 53a-49 (a) (2) and 53a-70 (a) (1) of the Connecticut General Statutes.”

5 Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

6 The United States Supreme Court predicated its holding in Griffin v. United States, 502 U.S. , 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), on common law pertaining to the “general verdict” rule. “The rule of criminal procedure applied by the Seventh Circuit here is not an innovation. It was settled law in England before the Declaration of Independence, and in this country long afterwards, that a general jury verdict 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.” Id., 469. Nevertheless, under Connecticut common law, firmly established before the adoption of our state constitution in 1818, litigants were able to protect themselves from the effects of a general verdict by taking separate verdicts on separate counts. Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993); Wolcott v. Coleman, 2 Conn. 324, 338 (1817) (“[i]n a case where there are good and bad counts in a declaration, if the defendant wishes to question the sufficiency of any of them, verdicts can be taken on each count separately”).

7 In Griffin v. United States, 502 U.S. , 112 S. Ct. 466, 470, 116 L. Ed. 2d 371 (1991), the United States Supreme Court stated that “[n]one of the three authorities cited for that expansive proposition [in Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)] in fact establishes it.” The court noted that one of the statutory alternatives at issue in Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931), overruled by Griffin, was of doubtful constitutionality; that one of the statutory alternatives at issue in Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942), violated the full faith and credit clause; and that two of the overt acts proffered by the prosecution in Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L. Ed. 1441 (1945), did not satisfy the overt act requirement of article three, § 3, of the United States constitution. Griffin v. United States, supra, 471-72.

In State v. Reid, 193 Conn. 646, 667 n.22,480 A.2d 463 (1984), however, this court cautioned against confusing cases in which the trial court permits the jury to consider an “improper basis for a conviction under circumstances where it is impossible to tell whether the conviction rests upon the impermissible ground” with cases involving the rule that “where a guilty verdict is returned on an information charging several acts in the conjunctive the information is not defective in relation to the verdict if the evidence is sufficient with respect to any of the acts charged.”

8 “The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed .under the federal Constitution when the claim before the court in fact is fully met by state law.” Massachusetts v. Upton, 466 U.S. 727, 736, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984) (Stevens, J., concurring); Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981).

9 Article first, § 8, of the Connecticut constitution provides in part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”

10 The state argues that because there was no evidence of a threat in this case, it is inconceivable that the jury could have found the defendant guilty predicated on the threat of force theory. The state’s argument overlooks the basic tenet of our jurisprudence that “jurors are presumed to follow the instructions given by the judge.” State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987). “We cannot presume that the jury rejected this issue because of the absence of evidence.” Id.

11 Furthermore, it is clear that we have always required reversal and a new trial under our common law in the case of an “unjust verdict.” We have consistently held that no issue may be submitted to the jury for which there is no evidence. Thus, we have ordered new trials in cases in which the trial court improperly submitted to the jury an issue for which there was no evidence. Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); Miles v. Sherman, 116 Conn. 678, 683, 166 A. 250 (1933); Lewis v. Phoenix Mutual Life Ins. Co., 44 Conn. 72, 88 (1876). Moreover, this court has recognized the trial court’s inherent power to set aside an unjust verdict. State v. Hammond, 221 Conn. 264, 267-70, 604 A.2d 793 (1992); State v. Avcollie, 178 Conn. 450, 456, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).