State v. Martone ( 2015 )

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STATE OF CONNECTICUT v. CHERYL J. MARTONE
(AC 36350)
Beach, Prescott and Mullins, Js.
Argued March 12—officially released October 6, 2015
(Appeal from Superior Court, judicial district of Anso-
nia-Milford, geographical area number twenty-two, Mar-
kle, J.)
Laila Haswell, senior assistant public defender, for
the appellant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were Kevin D. Lawlor,
state’s attorney, Alexander C. Beck, assistant state’s
attorney, and Laurie N. Feldman, special deputy assis-
tant state’s attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Cheryl J. Martone,
appeals from the judgment of conviction of one count
of criminal trespass in the first degree in violation of
General Statutes § 53a-107 (a) (1). On appeal, she
claims: (1) There was insufficient evidence to support
her conviction of criminal trespass in the first degree;
(2) the trial court improperly declined to instruct the
jury on the infraction of simple trespass, General Stat-
utes § 53a-110a, which the defendant claims is a lesser
included offense of criminal trespass in the first degree;
(3) the court improperly admitted certain testimony of
a police officer; and (4) the court gave an improper and
harmful jury instruction on the elements of order and
knowledge. We affirm the judgment of the trial court.
The following facts are relevant to our consideration
of the defendant’s appeal. The defendant and R.G. had a
son together. A few months after his birth, their intimate
relationship ended.1 Following their separation, their
son lived with the defendant for approximately twelve
years. Near the end of 2009, however, the son went to
live at the home of R.G., R.G.’s girlfriend, T.P., and T.P.’s
two children (residence or property). R.G. obtained sole
legal custody of his son, and the defendant had reason-
able rights of visitation, which she exercised regularly.
R.G. and T.P., however, told the defendant that they
did not want her at their residence. T.P. also telephoned
the police on several occasions, and, on those occa-
sions, the police informed the defendant that she should
not go to the residence.
On her son’s sixteenth birthday, September 19, 2011,
the defendant went from her Westport home to the
train station on her bicycle. She then took her bicycle
with her as she traveled by train to New Haven, took
a bus, and then rode her bicycle from the bus stop to
the residence. She had hoped to see her son and give
him some birthday gifts that she had brought along with
her. The defendant was unable to make contact with
her son via telephone, so she went onto the porch of
the residence and rang the doorbell. When no one
answered the door, the defendant left the gifts on a
chair on the porch and went back onto the sidewalk. She
rode her bicycle to a nearby parking lot and watched to
see if her son came out of the house. Shortly thereafter,
T.P. returned home, and she saw the defendant. R.G.
also returned home and saw the defendant in the park-
ing lot, where she remained for a couple of minutes
before leaving the area on her bicycle. R.G. and T.P.
decided to notify the police and to request that the
defendant be arrested for trespassing. The defendant
later was arrested and charged with criminal trespass
in the first degree, and she was found guilty by a jury.
After accepting the jury’s verdict, the court rendered
judgment of conviction and sentenced the defendant to
a one year term of imprisonment, execution suspended
after sixty days, with eighteen months probation. This
appeal followed. Additional facts will be set forth as
necessary.
I
The defendant claims that there was insufficient evi-
dence to support her conviction. Specifically, she
argues that the state failed to prove, beyond a reason-
able doubt, that she knew that she was not licensed or
privileged to go onto the property where her son lived,
or that an owner or authorized person personally com-
municated to her an order that she not enter the prop-
erty. We disagree.
‘‘The standard of review for a claim involving the
sufficiency of the evidence employs a two part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [finder of fact] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . . [T]he relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) State v. Samms, 139 Conn.
App. 553, 560–61, 56 A.3d 755 (2012), cert. denied, 308
Conn. 902, 60 A.3d 287 (2013).
Section 53a-107 provides in relevant part: ‘‘(a) A per-
son is guilty of criminal trespass in the first degree
when: (1) Knowing that such person is not licensed or
privileged to do so, such person enters or remains in
a building or any other premises after an order to leave
or not to enter personally communicated to such person
by the owner of the premises or other authorized per-
son . . . .’’
‘‘[T]o convict the defendant of criminal trespass in
the first degree [under § 53a-107 (a) (1)], the state [had]
to prove beyond a reasonable doubt the following essen-
tial elements of that offense: (1) that the defendant,
knowing he was not privileged or licensed to do so,
entered or remained in a building [or any other prem-
ises]; and (2) that the defendant committed that act after
an order to leave or not to enter had been personally
communicated to him by the owner or other authorized
person.’’ (Internal quotation marks omitted.) State v.
Kinchen, 243 Conn. 690, 702–703, 707 A.2d 1255 (1998);
see State v. Gemmell, 151 Conn. App. 590, 598–99, 94
A.3d 1253, cert. denied, 314 Conn. 915, 100 A.3d 405
(2014). In the present case, the defendant challenges
the sufficiency of the evidence as to both elements.
We first consider the evidence that an owner or other
authorized person personally communicated to the
defendant an order that she not enter the property.
During trial, R.G. testified that he did not want the
defendant coming to his residence and that he had
communicated this to her many times. He also testified
that he had asked the police on numerous occasions
to tell the defendant to not go to his residence. R.G.
also stated that, although he initially had no issue with
the defendant picking up their son at his home, prob-
lems developed, and he, then, insisted that she pick up
their son down the street, at the home of their son’s
friend. T.P. also testified that she previously told the
defendant not to be on the property and that she asked
the police to tell her also.
Detective Steven Viele of the West Haven Police
Department testified that, on May 18, 2010, he was
called to the property for an unwanted person com-
plaint. Viele stated that when he arrived, he met with
T.P., who complained that the defendant had been at
the property. T.P. asked Viele to contact the defendant
to tell her to stay away from the property, and Viele
telephoned the defendant, warning her not to come
back to the property. Specifically, Viele testified that
he ‘‘told [the defendant] of the complaint, and stated
that, based on the fact that we believe she was . . .
advised to stay away from the home prior, that I was
giving her warning not to come to the home or to harass
the family.’’2
West Haven police Officer Scott Vitelli testified that
on July 2, 2010, he was dispatched to the property,
where he encountered T.P. and the defendant, along
with two other officers. T.P. told Vitelli that she did not
want the defendant there and that she did not want her
to return to the property. Vitelli further testified that
T.P. then asked him to instruct the defendant not to
return to the property, and Vitelli instructed the defen-
dant accordingly. He further stated that he told the
defendant to leave and ‘‘not to come back . . . .’’
Finally, and perhaps most significantly, the defendant
gave testimony showing that she had been told not to
go to the residence. In particular, she testified during
cross-examination that T.P. told her that she did not
want her there. She also testified that R.G. told her not
to go to his residence.
Viewing this evidence in the light most favorable to
upholding the verdict, as we must, we conclude that
there was sufficient evidence for the jury to conclude,
beyond a reasonable doubt, that an owner or other
authorized person personally communicated to the
defendant an order that she not enter the property.
We next consider whether there was sufficient evi-
dence that the defendant knew that she was not privi-
leged or licensed to enter the property. As expressed
previously, several people personally communicated to
the defendant that she was not to enter the property.
The defendant, although denying that the police specifi-
cally told her not to return to the property, admitted
that R.G. and T.P. told her not to go to the property.
Additionally, she stated: ‘‘Of course, they don’t want
me there . . . .’’
Nevertheless, during trial, the defendant opined that
because she had reasonable rights of visitation with her
son, she had ‘‘a license and a privilege as a normal
human being and mother, and guardian [to go to the
property] . . . .’’ On the basis of the record, we con-
clude that there was sufficient evidence for the jury to
conclude, beyond a reasonable doubt, that the defen-
dant knew that she was not privileged to enter the
property.
II
The defendant next claims that the court improperly
declined to instruct the jury that the infraction of simple
trespass is a lesser included offense of criminal tres-
pass. Specifically, the defendant argues: ‘‘The trial court
wrongly declined to give [an instruction on simple tres-
pass], finding that the second prong of the Whistnant
test3 was not satisfied because simple trespass has an
element not found in criminal trespass [in the first
degree]. The court erroneously interpreted the phrase
in the simple trespass statute ‘without intent to harm
any property’ as being an element of simple trespass.
In fact, the phrase ‘without the intent to harm any prop-
erty’ found in . . . § 53a-110a is not an element of that
offense.’’ (Footnote added.)
The state argues that an infraction cannot be a lesser
included ‘‘offense’’ because an infraction is not an
offense. The state further argues that, even if an infrac-
tion could be a lesser included offense, the infraction
of simple trespass contains an element not found in the
criminal offense of criminal trespass in the first degree,
namely, that the defendant must have no intent to harm
the premises when she enters.
After the parties submitted their briefs and attended
oral argument, we requested supplemental briefs. First,
we requested that the parties address what effect, if
any, State v. Menditto, 315 Conn. 861, 110 A.3d 410
(2015) (discussing, in part, various categories of illegal
conduct, including crimes, offenses, violations and
infractions), had on their arguments in this appeal. Both
parties essentially agreed that Menditto had no effect.4
We then asked the parties to address whether the defen-
dant had prompted, induced or otherwise encouraged
the court to decline to give a lesser included offense
instruction on simple trespass. In her supplemental
brief, the defendant argues that counsel did not prompt,
induce or otherwise encourage the court to decline the
request for a charge on simple trespass as a lesser
included offense to criminal trespass in the first degree.
She also argues that ‘‘defense counsel never equivocally
or unequivocally expressed any intention to abandon
the request for a lesser included offense.’’ In its supple-
mental brief, the state argues that defense counsel had
prompted and induced the court to decline to give such
an instruction. We conclude that this claim is not
reviewable.
The following additional facts inform our conclusion.
On October 28, 2013, the defendant’s attorney submitted
to the trial court a written request that the court charge
the jury on simple trespass as a lesser included offense
to criminal trespass in the first degree. In the written
request to charge, defense counsel asked that the court
give the following charge:
‘‘The defendant is charged in the information with
criminal trespass first degree in violation of Connecticut
General Statutes § 53a-107.
‘‘(Instruction on elements of greater offense.)
‘‘If you have unanimously found the defendant not
guilty of the crime of criminal trespass first degree, you
shall then consider the lesser included offense of simple
trespass in violation of Connecticut General Statutes
§ 53a-110a. Do not consider this offense unless and until
you have unanimously acquitted the defendant of crimi-
nal trespass first degree.
‘‘(Instruction on elements of lesser included offense
of simple trespass.)
‘‘Authority: Criminal jury instruction 2.11-2, state of
Connecticut Judicial Branch website. State v. Whist-
nant, [179 Conn. 576, 427 A.2d 414 (1980)] . . . .’’ In
this written request to charge, defense counsel did not
set forth the elements of the purported lesser included
offense of simple trespass or give the court the precise
language he was requesting for an instruction.5
At the close of evidence the next day, the following
colloquy occurred during the on-the-record charging
conference:
‘‘The Court: All right. Back on the record. Where the
additional issue of the request to charge on a lesser
included . . . .
‘‘[Defense Counsel]: Yes, Your Honor, we had—
‘‘The Court: I don’t find any charge on that. Did you
find a charge on that?
‘‘[Defense Counsel]: I didn’t, Your Honor, and all I
can submit to the court is that—that the jury can be
instructed on § 53a-110a, simple trespass. And the rea-
son why we claim it, Your Honor, the Whistnant test
is obviously our test as [to] whether or not—
‘‘The Court: I’m just not sure of that, at this point. . . .
‘‘[Defense Counsel]: So, going through the Whistnant
criteria, Your Honor . . . number one, that the instruc-
tions requested by either the state or the defendant, we
did request it. Number two, it’s required that it is not
possible to commit the greater offense . . . [i]n other
words, trespass in the first degree . . . [w]ithout hav-
ing first committed the lesser offense.
‘‘The Court: And the elements of the lesser offense,
because I didn’t—just for the record . . . it’s not plac-
ing blame . . . I don’t have any proposed instruction.
I just have that you said, give an instruction . . . . [S]o,
you’re going to have to prepare an instruction for the
court. . . .
‘‘[Defense Counsel]: Oh, okay. Would you—if Your
Honor would consider it. Should I—
‘‘The Court: Well, what I think I had said earlier is
that—I mean—I don’t know until your proposed
instruction, if it’s—and I haven’t looked at whether it
is truly a lesser included [offense]. Your argument is
that it is because there’s only one element to prove?
‘‘[Defense Counsel]: The elements are—is just know-
ing that she is not licensed or privileged to do so, she
enters any premises without intent to harm any prop-
erty. That’s—I’m just reading the statute.
‘‘The Court: Yes, but that’s more than one element.
‘‘[The Prosecutor]: And there’s a different . . . ele-
ment as well in simple trespass.
‘‘The Court: . . . about harm to property.
‘‘[The Prosecutor]: Right. Which is not included in
the criminal trespass in the first degree.
‘‘The Court: Yes, that’s what I’m thinking. . . . And
that’s why I’m trying to distinguish between there’s
more than one element there. One has to [trespass]
without [the intent to] caus[e] harm to property, which
is not in the criminal trespass in the first degree,
correct?
‘‘[Defense Counsel]: That’s right. That’s true.
‘‘The Court: You would have to agree with that.
‘‘[Defense Counsel]: Although it could be implied.6
‘‘The Court: All right. I’m going to decline giving the
lesser included. I’ll make a finding that it is a different
element that is not included in the criminal trespass
in the first degree. So, that takes care of that issue.’’
(Emphasis added; footnote added.)
The defendant never raised this issue again before
the trial court, never took an exception on this issue
to the charge given, and filed no motion to set aside
on the ground that the court improperly failed to give
the requested instruction.
On the basis of our review of the record, we conclude
that when defense counsel agreed with the trial court
that simple trespass contained an element not found
in criminal trespass in the first degree, he prompted the
court to deny the requested instruction, and essentially
conceded that the purported lesser included offense
failed under the second prong of the Whistnant test.
See footnote 2 of this opinion.
In addition, although the defendant, on appeal, argues
that the lack of intent to harm property is not an element
of the simple trespass statute that must be proven by the
state, defense counsel did not make such an argument
before the trial court. We thoroughly have reviewed the
record and are unable to find a single instance where
defense counsel made such an argument to the trial
court, and the defendant has not cited to any such
instance in her appellate briefs.
‘‘[A] party cannot take a path at trial and change
tactics on appeal.’’ Moran v. Media News Group, Inc.,
100 Conn. App. 485, 501, 918 A.2d 921 (2007). ‘‘Both
our Supreme Court and this court have stated the princi-
ple that, when a party abandons a claim or argument
before the trial court, that party waives the right to
appellate review of such claim because a contrary con-
clusion would result in an ambush of the trial court.
. . . [W]aiver is [t]he voluntary relinquishment or aban-
donment—express or implied—of a legal right or
notice. . . . In determining waiver, the conduct of the
parties is of great importance. . . . [W]aiver may be
effected by action of counsel. . . . When a party con-
sents to or expresses satisfaction with an issue at trial,
claims arising from that issue are deemed waived and
may not be reviewed on appeal. . . . Thus, [w]aiver
. . . involves the idea of assent, and assent is an act
of understanding.’’ (Internal quotation marks omitted.)
State v. Reddick, 153 Conn. App. 69, 85, 100 A.3d 439,
appeal dismissed, 314 Conn. 934, 102 A.3d 85, and cert.
denied, 315 Conn. 904, 104 A.3d 757 (2014).
Moreover, ‘‘[t]his court routinely has held that it will
not afford review of claims of error when they have been
induced.’’ (Internal quotation marks omitted.) State v.
Grant, 149 Conn. App. 41, 57, 87 A.3d 1150, cert. denied,
312 Conn. 907, 93 A.3d 158 (2014). ‘‘As we previously
have explained, the term induced error, or invited error,
has been defined as [a]n error that a party cannot com-
plain of on appeal because the party, through conduct,
encouraged or prompted the trial court to make the
[alleged] erroneous ruling. . . . It is well established
that a party who induces an error cannot be heard to
later complain about that error. . . . This principle
bars appellate review of induced nonconstitutional
error and induced constitutional error.’’ (Citation omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) State v. Brunetti, 279 Conn. 39, 59 n.32, 901 A.2d
1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328,
167 L. Ed. 2d 85 (2007). ‘‘The invited error doctrine
rests [on principles] of fairness, both to the trial court
and to the opposing party.’’ (Internal quotation marks
omitted.) State v. Grant, supra, 57.
Here, whether we call it induced error, encouraged
error, waiver, or abandonment, the result—that the
defendant’s claim is unreviewable—is the same. Indeed,
we are persuaded that defense counsel prompted the
claimed error when he agreed with the court that there
was an additional element in simple trespass that was
not present in criminal trespass in the first degree. And,
after indicating such an agreement, defense counsel did
not raise the issue before the trial court again; he did
not provide the court with the language of a proposed
charge; he did not provide facts or law to support such
a charge; he did not take an exception to the charge
that was given; and, he did not file a motion to set aside.
Viewing the entirety of the record, we conclude that
the defendant’s claim of instructional error is not
reviewable.
III
The defendant next claims that the court improperly
admitted certain testimony of West Haven police Officer
Christopher Nolan, which she claims involved prior mis-
conduct. Specifically, she argues that the court abused
its discretion in admitting Nolan’s testimony (1) that
the defendant had made false allegations that R.G. and
T.P. had abused her son, and (2) that the defendant
had admitted to him that she had gone to the property
to see her son fourteen months prior to this incident.7
The defendant claims that this evidence involved prior
misconduct, and that it was not probative of the intent
element of criminal trespass in the first degree and that
it was highly prejudicial. We disagree.
The following additional facts inform our review. The
state called Nolan to the witness stand and began direct
examination of him. When the prosecutor asked Nolan
to direct his attention to July 3, 2010, and whether he
had occasion to meet with the defendant that evening,
the defendant objected and asked the court to excuse
the jury. With the jury out of the courtroom, the defense
attorney argued that he believed that Nolan would be
‘‘getting into very dangerous territory . . . in terms of
uncharged misconduct.’’ The court asked for a proffer,
and the following colloquy took place:
‘‘[The Prosecutor]: Where did you meet with the
defendant . . . on July 3, 2010?
‘‘[Nolan]: At the lobby of the police department.
‘‘Q. Okay. And how did that come about?
‘‘A. I was dispatched there for an unwanted person
complaint. . . .
‘‘Q. Okay. And specifically, what happened when you
arrived? Did you arrive at the police department?
‘‘A. I did. Prior to arriving, they advised me that [the
defendant] was there trying to make a complaint regard-
ing an incident on—at [the property]. . . .
‘‘Q. Okay. What was the complaint?
‘‘A. That she wanted to go visit her son, and that she
was threatened by the residents there, so she came to
the police department to make a complaint.
‘‘Q. Okay. Did you speak with her?
‘‘A. I spoke with her, and she had the same allega-
tions—that she went to go visit her son, and he’s being
abused, and same complaints that she normally has
when she calls the police department.
‘‘Q. Okay. And how did you respond to her complaint?
‘‘A. I told her that she can’t come and try and make
the same complaints that she—of abuse that she alleges
every time because every time she contacts the police
department about her son being abused, and each time
we would go and check, and her son is fine. And so I
advised her that she cannot keep coming and making
false complaints.
‘‘Q. Okay. What, if anything, else did you advise her
about [the property]?
‘‘A. I advised her not to return there, and I believe
she told me she can go there if she feels like it to see
her son. I said that the only time she can return there
is if her son wants her there . . . because a lot of times
she goes there uninvited, and that’s how these issues
have happened.’’
The court then asked defense counsel to state his
objection, and the following colloquy occurred:
‘‘[Defense Counsel]: Your Honor, we’re getting into
the can of worms of uncharged misconduct here.
‘‘The Court: Well, first of all, I’m not so sure it’s
misconduct. . . .
‘‘[Defense Counsel]: And, Your Honor, this could lead
to obviously other prejudicial evidence or testimony
that is brought forth regarding my client [that] has noth-
ing to do with the case at hand. . . . This witness is
offered, as I understand it, for determination of whether
or not he gave prior notice to [the defendant] not to
set foot on the property. If he wants to testify to that
effect, fine. If he’s going to get into the circumstances
of how that came about, we would indicate that this is
probative of nothing, and highly prejudicial to my client,
and we would ask that anything surrounding, other than
the bare bones, the facts and circumstances of when
this witness gave—claims he gave prior notice to my
client, it’s not only irrelevant, but it’s highly prejudicial,
and it is not probative of the issue that this witness is
offered for, which was simply giving prior notice to her.
‘‘The Court: All right. What’s the state offering it for?
‘‘[The Prosecutor]: Your Honor, one of the aspects
that the state has to prove is intent to go to the property.
Obviously, her mental state is going to be at issue in
terms of whether . . . she believes that she has to fol-
low . . . directions from the police officers, Your
Honor.’’
The state conceded that this was prior misconduct
evidence8 but argued that it was being offered to show
the defendant’s intent when returning to the property.
The court then discussed with defense counsel whether
intent related to the defendant’s affirmative defense
that she believed she had a license or privilege to go
onto the property on September 19, 2011. The court
then stated: ‘‘So, in fact, it does go to the intent. It goes
to whether or not she could reasonably have believed.
‘‘[Defense Counsel]: Right. If he’s—you know, if we’re
leading to a situation where this witness is going to
testify that she’s in an unrelated arrest and accused of
some other circumstances, some other—
‘‘The Court: Well, the arrest, I’m not going to—they’re
not offering the arrest.
‘‘[Defense Counsel]: Right.’’
The court then clarified with the prosecutor that it
would not allow him to get into the defendant’s other
arrest, and it ruled that Nolan’s testimony would be
permitted ‘‘to prove intent as it does go to the elements
of that state’s offense, which is prior notice. It does go
to that. And it also goes to the affirmative defense9 that
[the defendant] had a reasonable belief [that] she had
a license or reason to be on the property. So, it is
admissible for those purposes.’’ (Footnote added.) Fol-
lowing the court’s ruling, the jury returned, and Nolan
testified, in relevant part, in accordance with the prof-
fer. The defendant claims that the court abused in dis-
cretion in allowing this testimony.
‘‘Evidence of a defendant’s uncharged misconduct is
inadmissible to prove that the defendant committed the
charged crime or to show the predisposition of the
defendant to commit the charged crime. . . . Excep-
tions to this rule have been recognized, however, to
render misconduct evidence admissible if, for example,
the evidence is offered to prove intent, identity, malice,
motive, a system of criminal activity or the elements of
a crime. . . . To determine whether evidence of prior
misconduct falls within an exception to the general
rule prohibiting its admission, we have adopted a two-
pronged analysis. . . . First, the evidence must be rele-
vant and material to at least one of the circumstances
encompassed by the exceptions. Second, the probative
value of such evidence must outweigh the prejudicial
effect of the other crime evidence. . . . Since the
admission of uncharged misconduct evidence is a deci-
sion within the discretion of the trial court, we will
draw every reasonable presumption in favor of the trial
court’s ruling. . . . We will reverse a trial court’s deci-
sion only when it has abused its discretion or an injus-
tice has occurred.’’ (Internal quotation marks omitted.)
State v. Kalil, 314 Conn. 529, 539–40, 107 A.3d 343
(2014). ‘‘In general, abuse of discretion exists when a
court could have chosen different alternatives but has
decided the matter so arbitrarily as to vitiate logic, or
has decided it based on improper or irrelevant factors.’’
(Internal quotation marks omitted.) State v. Jacobson,
283 Conn. 618, 627, 930 A.2d 628 (2007).
Nevertheless, even if the trial court abused its discre-
tion in admitting evidence of prior misconduct, ‘‘the
defendant bears the burden of demonstrating that the
[impropriety] was harmful. . . . [A] nonconstitutional
[impropriety] is harmless when an appellate court has
a fair assurance that the [impropriety] did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Boyd, 295 Conn. 707, 743, 992 A.2d 1071
(2010), cert. denied, 562 U.S. 1224, 131 S. Ct. 1474, 179
L. Ed. 2d 314 (2011).
The defendant argues that the evidence of prior mis-
conduct, namely, her repeated false abuse complaints
involving her son, ‘‘should not have been admitted to
show intent, even though both incidents involved the
same complainants. There is no logical relationship
between the false abuse complaints described by Nolan
and the ‘knowing’ element of the alleged trespassing.
In other words, the abuse complaints [the defendant]
allegedly made do not provide any insight into whether
. . . [she] knew she [was] ‘not licensed or privileged
to’ enter or remain at [the property].’’ She also argues
that Nolan’s testimony that she admitted having gone
to see her son on July 2, 2010, should not have been
admitted because ‘‘the statement does nothing to prove
the elements of notice or of ‘knowing,’ nor does it dis-
prove [the defendant’s] defense.’’ She further argues
that ‘‘her purported action in routinely making false
abuse allegations about the complainants would cer-
tainly arouse the jury’s sympathy toward them and
change the whole complexion of the case.’’
In response, the state argues that the evidence prop-
erly was admitted to show intent and knowledge, and,
even if the court abused its discretion in permitting
Nolan’s testimony, the defendant has failed to prove
that the testimony was harmful. We do not reach the
question of whether the court improperly admitted the
challenged portion of Nolan’s testimony because we
agree that the defendant has failed to show that the
admission of the evidence was harmful.
‘‘[W]hether [the improper admission of a witness’
testimony] is harmless in a particular case depends
upon a number of factors, such as the importance of
the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution’s case.
. . . Most importantly, we must examine the impact of
the [improperly admitted] evidence on the trier of fact
and the result of the trial. . . . The defendant has the
burden of showing that admission of the evidence was
harmful.’’ (Citation omitted; internal quotation marks
omitted.) State v. Zachary F., 151 Conn. App. 580, 585–
86, 95 A.3d 563, cert. denied, 314 Conn. 919, 100 A.3d
851 (2014).
In the present case, Nolan’s testimony regarding his
July 3, 2010 interaction with the defendant, specifically,
his testimony concerning the defendant’s prior false
allegations of abuse toward her son and his statement
that the defendant told him that she had been to the
property prior to going to the police station were not
important to the state’s case, and we are not persuaded
that these statements had any impact on the jury. The
important aspect of Nolan’s testimony was his state-
ment that he specifically told the defendant during their
July 3, 2010 interaction not to return to the property
uninvited.
Additionally, we note that before Nolan testified in
this case, T.P. already had testified that the defendant
went to the property on May 18, 2010, leaving a note
for her son, and that, in response, she called the police
and asked them to tell the defendant not to return to
the property. T.P. further testified that the defendant
again went to the property on July 2, 2010, prompting
her to make another call to the police, requesting again
that they tell the defendant not to be on the property.
Moreover, the defendant testified that she went to the
property on July 2, 2010, and that she went to the police
station on July 3, 2010, asking the police to conduct a
well-child check on her son, but that the police ‘‘brutal-
ized [her] outside the door of the . . . police depart-
ment . . . with no rhyme, cause, or reason.’’
As fully set forth in part I of this opinion, wherein
we examined the sufficiency of the evidence, the state’s
case, here, was strong, and the evidence in question is
entirely consistent with the desire of R.G. and T.P. not
to have the defendant on the premises. The admission
of the contested portions of Nolan’s testimony, even if
improper, was not harmful.
IV
The defendant’s final claim on appeal is that the court
gave an improper instruction to the jury on the elements
of order and knowledge.10 The defendant concedes that
this issue was not preserved, but asks that we review
the claim pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989),11 or that we invoke the
plain error doctrine pursuant to Practice Book § 60-
5. In response, the state contends that the defendant
implicitly waived this claim under State v. Kitchens,
299 Conn. 447, 482–83, 10 A.3d 942 (2011), because
defense counsel had been given an opportunity to
review and comment on the court’s proposed instruc-
tions and, other than making requests with which the
court agreed, had no objection to the proposed instruc-
tions. In the alternative, the state contends that the
court properly instructed the jury. Although we are
not persuaded that the defendant implicitly waived this
claim,12 we, nevertheless, conclude that it is not reason-
ably possible that the jury was misled by the challenged
instructions, and, therefore, the claim fails under the
third prong of Golding.
‘‘[I]t is, of course, constitutionally axiomatic that the
jury be instructed on the essential elements of a crime
charged. . . . If justice is to be done in accordance
with the rule of law, it is of paramount importance that
the court’s instructions be clear, accurate, complete
and comprehensible, particularly with respect to the
essential elements of the alleged crime that must be
proved by the government beyond a reasonable doubt
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. LaFleur, 307 Conn. 115, 125, 51 A.3d
1048 (2012).
‘‘The standard of review for claims of instructional
impropriety is well established. [I]ndividual jury
instructions should not be judged in artificial isolation
. . . but must be viewed in the context of the overall
charge. . . . The pertinent test is whether the charge,
read in its entirety, fairly presents the case to the jury
in such a way that injustice is not done to either party
under the established rules of law. . . . Thus, [t]he
whole charge must be considered from the standpoint
of its effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error. . . . Accordingly, [i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we
must consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury. . . . A challenge
to the validity of jury instructions presents a question
of law over which [we have] plenary review.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Santiago, 305 Conn. 101, 190–91, 49 A.3d 566 (2012),
supplemented and judgment superseded by State v.
Santiago, 318 Conn. 1, A.3d (2015).
‘‘[T]o convict the defendant of criminal trespass in
the first degree [under § 53a-107 (a) (1)], the state [had]
to prove beyond a reasonable doubt the following essen-
tial elements of that offense: (1) that the defendant,
knowing [s]he was not privileged or licensed to do
so, entered or remained in a building [or any other
premises]; and (2) that the defendant committed that
act after an order to leave or not to enter had been
personally communicated to [her] by the owner or other
authorized person.’’ (Internal quotation marks omitted.)
State v. Kinchen, supra, 243 Conn. 702–703.
The defendant claims that the court improperly
instructed the jury on the elements of knowledge and
order. She argues that the actual instructions given by
the court ‘‘did not go far enough because the court
did not explain to the jury that [the] order must be
unequivocal and leave no room for doubt.’’ She also
argues that the court must ‘‘tell the jury that the commu-
nications must notify [the defendant] of the parameters
of the directive, including the length of time the order
will last and the consequences [the defendant] will face
if she does not comply . . . [including that the order]
must be express and unequivocal. It must be more than
a suggestion. It must inform [the defendant] that she
is not to enter any portion of the premises and if she
does so she is committing a trespass and is subject to
arrest.’’ (Citations omitted.) Moreover, she argues, the
court should have specifically defined the word ‘‘order’’
for the jury so that the jury could determine whether
‘‘the communications from the state’s witnesses were
actually orders or whether they were advice.’’ We are
not persuaded.
In this case, the court instructed the jury in relevant
part: ‘‘The second element is ‘knowledge.’ The second
element is that the defendant knew that she was not
privileged to [be on the premises]. A person acts know-
ingly with respect to conduct or circumstances when
she is aware that her conduct is of such nature, or that
such circumstances exist. It is defined that a person acts
knowingly with respect to conduct to a circumstance
described by a statute defining an offense when she is
aware that her conduct, again, is of such nature or that
such circumstance exists. An act is done with knowl-
edge if done voluntarily and purposely, and not because
of mistake, inadvertence, or accident.
‘‘Ordinarily, knowledge can be established only
through an inference from other proven facts and cir-
cumstances. The inference may be drawn if the circum-
stances are such that a reasonable person of honest
intention, in the situation of the defendant, would have
concluded that she was not allowed on the premises.
The determinative question is whether the circum-
stances in this particular case form a basis for a sound
inference as to the knowledge of the defendant in the
transaction under inquiry.’’
‘‘Now, the third element that the state must prove
beyond a reasonable doubt is that the defendant had
been ordered not to enter, and that the order had been
personally communicated to the defendant by the
owner or authorized person.
‘‘So, in conclusion, the state must prove beyond a
reasonable doubt that (1) the defendant entered the
premises . . . (2) that the state must prove beyond a
reasonable doubt that she knew that she was not
licensed or privileged to do so; and (3) the state must
prove beyond a reasonable doubt that an order to not
enter the premises . . . had been personally communi-
cated to her by any of the following: [T.P., R.G.] or
by members of the . . . police department, including
Detective Viele, Officer Vitelli, or Officer Nolan.’’
The definitions of knowledge and order given by the
court in this case are consistent with the definitions
set forth in our online criminal jury instructions; see
Connecticut Criminal Jury Instructions (Rev. to 2007)
instruction 9.4-1, available at http://jud.ct.gov/JI/Crimi-
nal/part9/9.4-1.htm (last visited September 25, 2015);
and are generally consistent with the definitions set
forth in D. Borden & L. Orland, 5A Connecticut Practice
Series: Criminal Jury Instructions (4th Ed. 2007) § 12.3,
pp. 324–27. See State v. Ebron, 292 Conn. 656, 688 n.27,
975 A.2d 17 (2009) (‘‘[w]hile not dispositive of the ade-
quacy of the [jury] instruction, an instruction’s unifor-
mity with the model instructions is a relevant and
persuasive factor in our analysis’’ [internal quotation
marks omitted]), overruled in part on other grounds by
State v. Kitchens, 299 Conn. 447, 472–73, 10 A.3d 942
(2011); State v. Sanchez, 84 Conn. App. 583, 592 n.10,
854 A.2d 778 (same), cert. denied, 271 Conn. 929, 859
A.2d 585 (2004). Our reading of the court’s instructions
reveals no error. The charge, taken as a whole, fully
instructed the jury regarding the elements of criminal
trespass in the first degree. We conclude, therefore,
that it is not reasonably possible that the jury was misled
by the challenged instructions.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant and R.G. never married.
2
We note that the defendant’s brief misquotes this testimony as providing,
in relevant part, that Viele stated: ‘‘ ‘I was giving her warning not to come
to the home to harass the family.’ ’’ (Emphasis in original.) The transcript
clearly reveals that Viele stated that he gave the defendant a warning ‘‘not
to come to the home or to harass the family.’’ (Emphasis added.)
3
See State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980) (‘‘[a]
defendant is entitled to an instruction on a lesser offense if, and only if, the
following conditions are met: (1) an appropriate instruction is requested by
either the state or the defendant; (2) it is not possible to commit the greater
offense, in the manner described in the information or bill of particulars,
without having first committed the lesser; (3) there is some evidence, intro-
duced by either the state or the defendant, or by a combination of their
proofs, which justifies conviction of the lesser offense; and (4) the proof
on the element or elements which differentiate the lesser offense from the
offense charged is sufficiently in dispute to permit the jury consistently to
find the defendant innocent of the greater offense but guilty of the lesser’’).
4
Because we conclude that the defendant’s claim is not reviewable, we
need not determine what effect, if any, Menditto has on the issue of whether
an infraction can be a lesser included offense.
5
We note, without actually deciding, that the defendant’s request to charge
may not comply fully with Practice Book § 42-18. ‘‘It is well settled that
. . . [a] proposed instruction on a lesser included offense constitutes an
appropriate instruction for purposes of the first prong of Whistnant if it
complies with Practice Book [§ 42-18]. . . . We previously . . . held, in the
context of a written request to charge on a lesser included offense, [that
the] requirement of [§ 42-18] is met only if the proposed request contains
such a complete statement of the essential facts as would have justified the
court in charging in the form requested. . . . State v. Jones, 289 Conn. 742,
759, 961 A.2d 322 (2008); see also Practice Book § 42-18.’’ (Internal quotation
marks omitted.) State v. Marsha P., 126 Conn. App. 497, 505, 11 A.3d
1164 (2011).
The request to charge in this case simply set forth that the defendant was
requesting a charge on § 53a-110a, to the effect that the infraction of simple
trespass was a lesser included offense to criminal trespass in the first degree.
We note that neither this court nor our Supreme Court has decided whether
an infraction may be considered a lesser included offense. Nevertheless,
during its colloquy with counsel, the court appeared to be willing to consider
whether this infraction could be considered a lesser included offense. The
defendant’s request, however, contained no facts, no authority, and no pro-
posed instruction that defense counsel wanted the court to give to the jury.
Indeed, at no point did defense counsel prepare an instruction for the court
to consider. Thus, under these circumstances, it is entirely unclear what
instruction the defendant wanted the trial court to give. In this appeal, we
still are unaware of what language the proposed instruction would contain.
6
It is unclear what counsel meant by, ‘‘[a]lthough it could be implied,’’
and we decline to speculate.
7
We note that the defendant also testified during cross-examination that
she went to the property on July 2, 2010.
8
The prosecutor acknowledged that the defendant had been arrested after
the incident.
9
The defendant had not yet withdrawn her affirmative defense. See foot-
note 10 of this opinion.
10
The state filed proposed jury instructions with the trial court on October
25, 2013. The defendant did not file proposed jury instructions, except for
a proposed instruction on her affirmative defense, which she later withdrew,
and a request to charge on simple trespass as a lesser included offense,
which the court denied. See part II of this opinion.
11
Under State v. Golding, supra, 213 Conn. 233: ‘‘[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. The
appellate tribunal is free, therefore, to respond to the defendant’s claim by
focusing on whichever condition is most relevant in the particular circum-
stances.’’ (Emphasis omitted; footnote omitted.) Id., 239–40; see In re Yasiel
R., 317 Conn. 773, 781, A.3d (2015) (modifying third prong).
12
Our conclusion that the defendant did not implicitly waive this claim
is based on the following events. After having gone over, page by page, its
proposed jury instructions with counsel, the court recessed for the evening.
The next morning, the court told counsel that the courthouse secretaries
were preparing the final version of the jury charge, and that the instructions
could be reviewed by counsel following final arguments. Counsel proceeded
to give closing argument, after which, the court gave its final instructions
to the jury. When the court excused the jury, it noted, on the record, that
the final instructions had not been handed out to counsel as it had indicated
would be done. Although the court then gave counsel some time to review
the instructions at that time, and it agreed to clarify one aspect of the
instructions at the request of defense counsel, the parties did not have the
opportunity for the type of meaningful review that is required for a Kitchens
type waiver.