State v. Young , 174 Conn. App. 760 ( 2017 )

 STATE OF CONNECTICUT v. PATRICK YOUNG
(AC 37995)
(AC 37997)
Alvord, Keller and Beach, Js.
Syllabus
Convicted, after a jury trial, of the crimes of assault in the first degree and
carrying a pistol without a permit in connection with an incident in
which the defendant shot the victim, the defendant, whose probation
was revoked in connection with his conviction, appealed to this court.
The defendant’s girlfriend, Z, had stolen a $6500 check, and she and the
defendant asked the victim and M to assist them in cashing it. The
victim and M were able to obtain $200 by depositing the check into an
automated teller machine, but when they notified the defendant, he
questioned whether they had received the full amount of the check and
kept the remainder of the money. Z and the defendant thereafter picked
up the victim and M in Z’s car, and the defendant repeatedly questioned
them regarding the money. Z drove to a wooded area and stopped the
car. The defendant then retrieved a silver .38 caliber revolver from the
car’s glove compartment, again asked about the money, forced the victim
to exit the car, and pointed the revolver at her head. At some point, the
victim was able to flee into the woods, and the defendant returned to
the car, told M to exit the car, and he and Z drove away. While the
victim and M walked down the road to search for help, the defendant
emerged from behind some bushes, pointed the revolver at the victim’s
head, and shot her with multiple bullets. At trial, the court permitted
the state to introduce evidence of the names of certain felony convictions
of which the defendant, who testified at his trial, previously had been
convicted. The court permitted the admission of the evidence only for
the purpose of impeaching the defendant’s veracity. Held:
1. The defendant could not prevail on his claim that there was insufficient
evidence to support his conviction of assault in the first degree because
of inconsistencies between the trial testimony of the victim, M and Z,
and their statements to the police, there having been ample evidence
from which the jury reasonably could have found that the defendant
had caused serious physical injury to the victim by means of a deadly
weapon and that he had intended to cause such injury: the victim testified
and the evidence established that the defendant had pointed a silver
revolver at her head, that he had shot her in her hand and that the bullet
existed through her wrist, that he had shot her under her arm, near her
rib cage, that Z had directed the police to a the location in a marina
where the defendant had discarded the revolver, that a silver .38 caliber
revolver was recovered in that location, and that a .38 caliber bullet
was surgically removed from the victim’s torso.
2. There was no merit to the defendant’s claim that the trial court had
abused its discretion in admitting into evidence the names of certain
of his prior felony convictions for the purpose of impeachment; the
defendant’s prior convictions for larceny and robbery related to his
untruthfulness, and, therefore, they were relevant to the jury’s evaluation
of his veracity, the dissimilar nature of the crimes charged in the present
case, as compared to the nature of the prior felony convictions, mini-
mized the chance that the jury would view the prior convictions as
propensity evidence, and this court could not conclude that the evidence
of those convictions was likely to arouse the emotions of the jurors.
3. The trial court did not abuse its discretion by giving a supplemental charge
to the jury in which it named the defendant’s prior felony convictions,
thereby highlighting those convictions, the charge having protected the
defendant from the jury’s improper use of his prior convictions as evi-
dence that he had committed the charged crimes: the court, in its supple-
mental charge, properly instructed the jury that the defendant’s prior
convictions were to be used only for assessing the defendant’s credibil-
ity, as the court in its main charge inadvertently had omitted to empha-
size to the jury that the convictions were admitted for that limited
purpose; moreover, contrary to the defendant’s claim, the court did not
improperly marshal the evidence by naming the defendant’s prior felony
convictions in its supplemental charge, as the names of the convictions
already were in evidence, and the court’s reference to them properly
guided the jury in understanding the limitations on how such evidence
could be used and, when viewed in context, served to protect the defen-
dant against the improper use of the evidence rather than to highlight
adverse evidence.
Argued January 31—officially released July 18, 2017
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of assault in the first degree,
attempt to commit assault in the first degree, and car-
rying a pistol without a permit, and substitute informa-
tion, in the second case, charging the defendant with
violation of probation, brought to the Superior Court
in the judicial district of New Haven, where the first case
was tried to the jury before B. Fischer, J.; thereafter, the
court denied the defendant’s motion to preclude certain
evidence; verdict of guilty of assault in the first degree
and carrying a pistol without a permit; subsequently,
the second case was tried to the court; judgment in
accordance with the verdict and judgment revoking the
defendant’s probation, from which the defendant filed
separate appeals with this court; thereafter, this court
consolidated the appeals. Affirmed.
Mary Boehlert, assigned counsel, for the appellant
(defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Patrick Griffin, state’s attor-
ney, and John Doyle, senior assistant state’s attorney,
for the appellee (state).
Opinion
BEACH, J. In this consolidated appeal, the defendant,
Patrick Young, appeals from the judgment of convic-
tion, rendered after a jury trial, of assault in the first
degree in violation of General Statutes § 53a-59 (a) (1)
and carrying a pistol without a permit in violation of
General Statutes § 29-35, and the judgment revoking
his probation. The defendant claims that (1) there was
insufficient evidence to support his conviction for
assault in the first degree, (2) the trial court abused its
discretion by admitting into evidence the names of his
prior felony convictions, and (3) the court abused its
discretion by giving a supplemental charge to the jury
in which it named the defendant’s prior convictions.
We disagree and affirm the judgments of the trial court.
The following facts, as reasonably could have been
found by the jury, and procedural history are relevant to
this appeal. The defendant’s girlfriend, Maria Zambrano,
worked as a home health care aide and stole a $6500
check from one of her patients. After Zambrano told
the defendant about the stolen check, the defendant,
who did not have a bank account, approached Diane
Turner, his cousin, and Jessica McFadden, Turner’s
roommate, for assistance in cashing the check. Zam-
brano, Turner, McFadden, and the defendant rode
together in Zambrano’s car in order to cash the check.
McFadden was unable to cash the check at the first
bank that she tried because the check was postdated;
the defendant then had Zambrano alter the date on the
check. At a second bank, McFadden was able to obtain
$200 by depositing the check into an automatic teller
machine. The bank later informed McFadden that the
check was stolen and that she would be arrested if she
did not repay the bank $200. The defendant became
angry when he was told that the check would not be
cashed for its entire amount. He thought that Turner
and McFadden had lied to him, cashed the check, and
kept for themselves the full amount of $6500.
On the night of the following day, June 24, 2013,
Zambrano and the defendant picked up Turner and
McFadden at their New Haven residence under the
guise of driving to Hamden to retrieve $200 so that
McFadden could repay the bank. While Zambrano
drove, the defendant repeatedly questioned Turner and
McFadden about what they did with the $6500 and why
they had not given it to him. Zambrano stopped the
vehicle on a dark road near a wooded area. The defen-
dant again asked Turner and McFadden about the loca-
tion of the money. The defendant reached into the car’s
glove compartment, retrieved a silver revolver, waved
the revolver in the direction of the backseat where
Turner and McFadden were seated, and again asked
where the money was.
The defendant forced Turner to exit the car. The
defendant pointed the revolver at Turner’s head, and
she pleaded for her life. At some point, Turner ran
into the woods and yelled for McFadden to follow. The
defendant then returned to the car, pointed the revolver
at McFadden, told her to exit the car, and he and Zam-
brano drove away. McFadden found Turner in the
woods, and they hid. They then left the wooded area and
walked down the road to search for help. The defendant
jumped out from behind bushes and pointed the gun
at Turner’s head; Turner raised her hands. The defen-
dant said that Turner was throwing him under the bus.
He then shot Turner in her left palm, and the bullet
exited by her wrist. The defendant fired more shots,
and one bullet hit Turner under her right arm near her
rib cage. The defendant then ran away, and McFadden
and Turner hid in the woods before flagging down a
work crew for assistance.
Turner was taken to Yale-New Haven Hospital and
treated for her injuries. Doctors were unable to remove
a .38 caliber bullet at that time, but it was surgically
removed months later when it migrated near her spine.
Zambrano informed the police that she had accompa-
nied the defendant to a marina where he threw the
revolver off the dock. A police dive team recovered the
revolver, which was a .38 caliber stainless steel Smith &
Wesson revolver.
Following a jury trial, the defendant was convicted of
assault in the first degree and carrying a pistol without a
permit.1 The defendant was on probation at the time,
and the court found him to be in violation of his proba-
tion. The defendant was sentenced to a total effective
sentence of thirty-one years incarceration, execution
suspended after twenty-four years, with five years of
probation. This consolidated appeal followed.2
I
The defendant first claims that there was insufficient
evidence to support his conviction of assault in the first
degree. We disagree.
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [jury] reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt . . . . This court cannot
substitute its own judgment for that of the jury if there
is sufficient evidence to support the jury’s verdict. . . .
Moreover, we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
jury’s verdict of guilty.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Revels, 313 Conn. 762,
778, 99 A.3d 1130 (2014), cert. denied, U.S. , 135
S. Ct. 1451, 191 L. Ed. 2d 404 (2015).
General Statutes § 53a-59 (a) (1) provides in relevant
part: ‘‘A person is guilty of assault in the first degree
when . . . [w]ith intent to cause serious physical
injury to another person, he causes such injury to such
person . . . by means of a deadly weapon or a danger-
ous instrument . . . .’’ General Statutes § 53a-3 (6)
defines ‘‘deadly weapon’’ as ‘‘any weapon, whether
loaded or unloaded, from which a shot may be dis-
charged . . . .’’ Thus, the state was required to prove
that the defendant (1) intended to cause Turner serious
physical injury and (2) caused such injury to her by
means of a deadly weapon or dangerous instrument.
The defendant argues that the state’s case rested
largely on inconsistent and unreliable testimony of
three witnesses—Turner, McFadden, and Zambrano.
He argues that the trial testimony of Turner, McFadden,
and Zambrano differed from statements that each had
given to the police regarding the number of shots fired,
whether the defendant left and then returned to the
crime scene, whether the defendant ordered Turner
onto her hands and knees rather than to put her hands
behind her back, whether the defendant pulled Turner
out of the car or ordered her to do so herself, whether
McFadden alone received the check from the defendant
and Zambrano rather than Turner and McFadden
together receiving the check, and whether the defen-
dant fired shots at Turner and then left or whether
Turner and McFadden ran into the woods before the
defendant fired a shot and only upon Turner and McFad-
den leaving the woods did the defendant fire the gun
at Turner. The defendant further contends that, because
of the inconsistencies in the evidence presented by the
state, the state failed to present sufficient evidence to
sustain his conviction.
The defendant claims that the evidence was insuffi-
cient because of inconsistencies between the trial testi-
mony of Turner, McFadden, and Zambrano, on the one
hand, and their police statements, on the other hand.
Such inconsistencies do not undermine the sufficiency
of the evidence but more aptly affect the credibility of
the witnesses.3 See, e.g., State v. Franklin, 115 Conn.
App. 290, 292, 972 A.2d 741, cert. denied, 293 Conn. 929,
980 A.2d 915 (2009). Credibility determinations rest with
the jury. ‘‘[E]vidence is not insufficient . . . because
it is conflicting or inconsistent. . . . It is the [jury’s]
exclusive province to weigh the conflicting evidence
and to determine the credibility of witnesses. . . . The
[jury] can . . . decide what—all, none, or some—of a
witness’ testimony to accept or reject.’’ (Internal quota-
tion marks omitted.) State v. Rodriguez, 133 Conn. App.
721, 726, 36 A.3d 724 (2012), aff’d, 311 Conn. 80, 83 A.3d
595 (2014).
There was ample evidence from which the jury rea-
sonably could have found that the defendant caused
serious physical injury to Turner by means of a deadly
weapon and that he intended to cause such serious
physical injury. Turner testified that the defendant
pointed a silver revolver at her and that she pleaded
for her life. She further testified that the defendant shot
her on the top of her left hand and that the bullet exited
near her wrist. She stated that the defendant also shot
her under her right arm near her ribcage. Zambrano
showed the police the location in a marina where the
defendant had discarded the revolver, and the police
recovered a .38 caliber stainless steel snub nose Smith &
Wesson revolver from that location. Subsequently, a .38
caliber bullet was surgically removed from Turner’s
torso. The jury reasonably could have inferred from the
defendant’s conduct of pointing the revolver at Turner
and pulling the trigger,4 and from the resultant injury
to Turner’s wrist and torso, that the defendant intended
to cause serious physical injury to her. See State v.
Papandrea, 120 Conn. App. 224, 230, 991 A.2d 617 (2010)
(intent may be inferred from conduct and jury may infer
defendant intended natural consequences of actions),
aff’d, 302 Conn. 340, 26 A.3d 75 (2011). Accordingly,
there was sufficient evidence to support the defendant’s
conviction of assault in the first degree
II
The defendant next claims that the trial court abused
its discretion by admitting the names of his prior felony
convictions into evidence.5 We disagree.
At the close of the state’s case, the defendant’s attor-
ney referred to an in-chambers discussion and objected
to the state’s proposed admission into evidence of the
names of the defendant’s prior felony convictions dur-
ing the cross-examination of the defendant. The court
noted that, pursuant to § 6.7 of the Connecticut Code
of Evidence, evidence of a felony conviction may be
admissible for the purpose of impeachment. The court
reasoned that it would allow the felonies to be named
because the names of three felonies provided more
specific guidance as to the defendant’s veracity. In the
course of his direct examination, the defendant testified
that, in March, 2009, he was convicted of two felonies
arising from one incident and that, in 2012, he was
convicted of a third felony. On cross-examination by
the state, the defendant testified that he had been con-
victed of conspiracy to commit larceny in the second
degree, conspiracy to commit robbery in the first
degree, and criminal attempt to commit robbery in the
first degree. He further testified that he was aware that,
as a result of his felony convictions, he was not permit-
ted to possess a firearm.
‘‘It is well settled that evidence that a criminal defen-
dant has been convicted of crimes on a prior occasion
is not generally admissible. . . . There are, however,
several well recognized exceptions to this rule, one of
which is that [a] criminal defendant who has previously
been convicted of a crime carrying a term of imprison-
ment of more than one year may be impeached by the
state if his credibility is in issue. . . . In its discretion
a trial court may properly admit evidence of prior con-
victions provided that the prejudicial effect of such
evidence does not far outweigh its probative value. . . .
[Our Supreme Court] has identified three factors which
determine whether a prior conviction may be admitted:
(1) the extent of the prejudice likely to arise; (2) the
significance of the commission of the particular crime
in indicating untruthfulness; and (3) its remoteness in
time. . . . A trial court’s decision denying a motion to
exclude a witness’ prior record, offered to attack his
credibility, will be upset only if the court abused its
discretion. . . . Those three factors have been incor-
porated in [the Connecticut] [C]ode of [E]vidence.
Conn. Code Evid. § 6-7 (a).’’ (Citation omitted; internal
quotation marks omitted.) State v. Ciccio, 77 Conn. App.
368, 385–86, 823 A.2d 1233, cert. denied, 265 Conn. 905,
831 A.2d 251 (2003).
There is no doubt that if evidence of a felony convic-
tion is otherwise admissible, the name of the crime is
generally also admissible. See Conn. Code Evid. § 6-7
(c) (‘‘[i]f, for purposes of impeaching the credibility of
a witness, evidence is introduced that the witness has
been convicted of a crime, the court shall limit the
evidence to the name of the crime . . . except that
. . . the court may exclude evidence of the name of
the crime . . . .’’ [emphasis added]). As indicated in
§ 6-7, the court has discretion to admit the prior convic-
tion as an unnamed felony. Factors to consider include
whether the prior crime reflects directly on credibility
and whether the prejudice inherent in the name of the
crime outweighs the probative impeaching value. See
State v. Crumpton, 202 Conn. 224, 232–33, 520 A.2d
226 (1987); State v. Geyer, 194 Conn. 1, 16, 480 A.2d
489 (1984).
‘‘[I]n evaluating the separate ingredients to be
weighed in the balancing process, there is no way to
quantify them in mathematical terms. . . . Therefore,
[t]he trial court has wide discretion in this balancing
determination and every reasonable presumption
should be given in favor of the correctness of the court’s
ruling . . . . Reversal is required only where an abuse
of discretion is manifest or where injustice appears to
have been done. . . . The burden lies with the party
objecting to the admission of evidence of prior convic-
tions to demonstrate the prejudice that is likely to arise
from its admission. . . . The test for determining
whether evidence is unduly prejudicial is not whether
it is damaging to the defendant but whether it will
improperly arouse the emotions of the jury.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Muhammad, 91 Conn. App. 392, 397–98, 881 A.2d 468,
cert. denied, 276 Conn. 922, 888 A.2d 90 (2005).
The defendant argues that the admission into evi-
dence of the names of the three prior felony convictions
was more prejudicial than probative, and that the court
thus abused its discretion in allowing the names of the
felonies to be admitted into evidence. He contends that
the theory of his defense was that he did not intention-
ally pull the trigger, but, instead, Turner initiated a strug-
gle with him over control of the revolver, which caused
Turner to be shot. He further argues that evidence
regarding the convictions did not provide a material
benefit to the jury and misled the jury to believe that
he was more likely to have committed the crimes at
issue in the present case because he had committed
three felonies in the past.
Assault in the first degree and carrying a pistol with-
out a permit, the crimes alleged in this case, are not
strikingly similar to the crimes of conspiracy to commit
larceny in the second degree, conspiracy to commit
robbery in the first degree, and attempt to commit rob-
bery in the first degree, the names of the prior convic-
tions with which the defendant’s credibility was
impeached. Indeed, the defendant acknowledges in his
appellate brief that the prior convictions bore ‘‘no simi-
larity’’ to the crimes for which he was charged. The
dissimilar nature of the crimes charged, as compared
to the nature of the prior convictions, minimized the
chance that the jury would view the convictions as
propensity evidence. Cf. State v. Nardini, 187 Conn.
513, 522, 447 A.2d 396 (1982) (‘‘[w]here the prior crime
is quite similar to the offense being tried, a high degree
of prejudice is created and a strong showing of proba-
tive value would be necessary to warrant admissi-
bility’’).
The crimes involving larceny and robbery6 for which
the defendant was convicted on prior occasions were
significant in indicating untruthfulness. ‘‘[Our Supreme
Court] has recognized that crimes involving larcenous
intent imply a general disposition toward dishonesty or
a tendency to make false statements. . . . [I]n common
human experience acts of deceit, fraud, cheating, or
stealing . . . are universally regarded as conduct
which reflects on a [person’s] honesty and integrity
. . . .’’ (Internal quotation marks omitted.) State v.
Banks, 58 Conn. App. 603, 616, 755 A.2d 279, cert.
denied, 254 Conn. 923, 761 A.2d 755 (2000). ‘‘[C]rimes
involving larcenous intent imply a general disposition
toward dishonesty . . . . Convictions of this sort obvi-
ously bear heavily on the credibility of one who has
been convicted of them. The probative value of such
convictions, therefore, may often outweigh any preju-
dice engendered by their admission.’’ (Citation omitted;
internal quotation marks omitted.) State v. Geyer, 194
Conn. 1, 12, 480 A.2d 489 (1984).
The defendant argues that the naming of his prior
convictions was of no material benefit to the jury.
Because the prior convictions related to untruthfulness,
however, the names of the prior convictions were rele-
vant to the jury’s evaluation of the defendant’s veracity.
See State v. Crumpton, supra, 202 Conn. 233. The court,
therefore, did not abuse its discretion in allowing into
evidence the names of the prior convictions. ‘‘Although
the probative value of evidence of his prior convictions
is certainly damaging to [the defendant’s] credibility,
that does not necessarily impart an undue degree of
prejudicial effect as well. . . . The test for determining
whether evidence is unduly prejudicial is not whether
it is damaging to the defendant but whether it will
improperly arouse the emotions of the jury.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Muhammad, supra, 91 Conn. App.
398. We are not persuaded that the evidence of the
prior convictions was likely to arouse the emotions of
the jurors.
We conclude that the trial court did not abuse its
discretion in admitting evidence of the names of the
defendant’s prior convictions involving larceny and rob-
bery for the purpose of impeachment.
III
The defendant last claims that the trial court abused
its discretion by giving a supplemental charge to the
jury in which it named the defendant’s prior felony
convictions after deliberations had begun, thus unduly
highlighting the prior convictions. The defendant also
argues that the court’s supplemental charge unfairly
prejudiced him by marshaling the evidence.7 We
disagree.
After the state rested, the defendant’s attorney
informed the court that the defendant decided to testify.
Following closing arguments and outside the presence
of the jury, the court invited comment from counsel on
its draft jury charge, which had been sent to counsel
by e-mail days earlier; the draft charge contained no
instruction regarding the use of prior convictions. Later
that day, the court instructed the jury, and the jury
began deliberating. The next morning, the court
informed counsel that it intended to supplement the
jury charge by instructing the jury that it could consider
the defendant’s prior convictions only for the purpose
of assessing the defendant’s credibility. The defendant’s
attorney objected, arguing that the supplemental charge
was prejudicial because it marshaled the evidence and
because it would emphasize the prior convictions after
deliberations had begun. The court stated that because
the defendant’s prior convictions were in evidence, it
wanted to make clear to the jury that the prior convic-
tions were to be used only for the purpose of assessing
the defendant’s credibility. The court did not want the
jury to infer from the prior convictions that the defen-
dant was likely to have committed the crimes charged.
The court stated that the supplemental charge was ‘‘for
. . . the protection of the defendant . . . .’’
The court then instructed the jury as follows: ‘‘I have
one more page of a charge that I inadvertently did not
give you yesterday, a charge meaning this is the law
that you’re to apply to the facts that you find, and I’m
going to read that to you now. It’s going to be—It is
part of the charge. We literally are going to plug it into
the charge you have in there, its going to page 20a, and
it’s as follows, and this is the law. Impeachment, prior
convictions of a witness. Evidence that one of the wit-
nesses, [the defendant], was previously convicted of a
crime or crimes is only admissible on the question of
the credibility of that witness, that is, the weight that
you will give the witness’ testimony. The witness’ crimi-
nal record bears only on this witness’ credibility and
the one witness was [the defendant] and the convictions
are as follows: conspiracy to commit larceny in the
second degree, attempt to commit robbery in the first
degree, conspiracy to commit robbery in the first
degree. It is your duty to determine whether this witness
is to be believed wholly or partly or not at all. You may
consider the witness’ prior convictions in weighing the
credibility of this witness and give such weight to those
facts that you decide is fair and reasonable in determin-
ing the credibility of this witness.’’
‘‘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.’’ (Internal quotation
marks omitted.) State v. Peeler, 271 Conn. 338, 360–61,
857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.
Ct. 94, 163 L. Ed. 2d 110 (2005). ‘‘In evaluating the
propriety of a supplemental charge, we must examine
both the main and supplemental charge as a whole.’’
State v. Miller, 36 Conn. App. 506, 514, 651 A.2d 1318,
cert. denied, 232 Conn. 912, 654 A.2d 357 (1995).
Practice Book § 42-24 provides in relevant part that
‘‘[t]he judicial authority . . . upon its own motion . . .
may recall the jury to the courtroom and give it addi-
tional instructions in order to . . . [i]nstruct the jury
on any matter which should have been covered in the
original instructions.’’ The decision whether to add a
supplemental instruction lies within the sound discre-
tion of the court; State v. Fletcher, 10 Conn. App. 697,
703, 525 A.2d 535 (1987), aff’d, 207 Conn. 191, 540 A.2d
370 (1988); and the additional instruction, like any other
instruction, is to be read in the context of the charge
as a whole. State v. Wokoma, 37 Conn. App. 35, 39,
656 A.2d 226, cert. denied, 233 Conn. 905, 657 A.2d
645 (1995).
The supplemental charge informed the jury of the
proper use of evidence of the defendant’s prior felony
convictions. The court had admitted the evidence of
the defendant’s prior convictions for impeachment pur-
poses only. Section 4-5 (a) of the Connecticut Code
of Evidence provides that ‘‘[e]vidence of other crimes,
wrongs or acts of a person is inadmissible to prove the
bad character or criminal tendencies of that person.’’
The main charge apparently had inadvertently omitted
the instruction emphasizing the limited purpose for
which this evidence could be used. The court’s supple-
mental charge, however, properly instructed the jury
that the defendant’s prior convictions were not to be
used as evidence that he committed the crimes charged
but, rather, were only to be used in assessing his credi-
bility. The supplemental charge protected the defendant
from the jury’s use of his prior convictions as evidence
of his guilt of the current charged offenses; giving the
charge, therefore, was well within the court’s dis-
cretion.
Further, the court did not improperly marshal the
evidence by naming the defendant’s prior convictions.8
The names of the three prior convictions were in evi-
dence. The court’s reference to them properly guided
the jury to understand the limitations on how such
evidence could be used and, viewed in context, was
part of an instruction to protect the defendant against
improper use of the evidence, not an instruction merely
to highlight adverse evidence. Accordingly, the trial
court did not abuse its discretion in giving its supple-
mental charge.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The jury found the defendant not guilty of attempt to commit assault in
the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-
59 (a) (1).
2
The defendant filed two separate appeals. Pursuant to Practice Book
§ 61-7 (3), this court sua sponte ordered that the appeals in AC 37995 and
AC 37997 be consolidated. The appeal from the violation of probation raises
no independent issues.
3
The defendant also argues that, according to his own testimony, Turner
reached for the revolver, initiated a struggle during which the revolver fired
a shot, and the defendant did not intend that Turner be shot. The existence
of contrary testimony does not undermine the sufficiency of the evidence
supporting the conviction. Credibility determinations are within the sole
province of the jury. See State v. Rodriguez, 133 Conn. App. 721, 725–28,
36 A.3d 724 (2012), aff’d, 311 Conn. 80, 83 A.3d 595 (2014).
4
There was testimony that a minimum of ten to twelve pounds of pressure
was required to pull the trigger.
5
The defendant’s attorney objected at trial only to the naming of the three
prior felony convictions. There was no objection to the admission of those
convictions without naming them. We review only the preserved claim of
evidentiary error. See, e.g., State v. Francis D., 75 Conn. App. 1, 11, 815
A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003).
6
Larceny generally is an element of robbery. See, e.g., General Statutes
§ 53a-133.
7
The defendant also argues that the court abused its discretion in reading
the supplemental charge without reading the entire charge again and
inserting the additional language. The defendant did not raise this issue
before the trial court, and we decline to review it. See, e.g., State v. Francis
D., 75 Conn. App. 1, 11, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d
842 (2003).
8
‘‘A trial court has broad discretion to comment on the evidence adduced
in a criminal trial. . . . A jury trial in which the judge is deprived of the
right to comment on the evidence and to express his opinion as to the facts
. . . is not the jury trial which we inherited. . . . A trial court often has
not only the right, but also the duty to comment on the evidence. . . . The
principal function of a jury charge is to assist the jury in applying the law
correctly to the facts which they might find to be established . . . and
therefore, we have stated that a charge must go beyond a bare statement
of accurate legal principles to the extent of indicating to the jury the applica-
tion of those principles to the facts claimed to have been proven. . . . The
purpose of marshalling the evidence, a more elaborate manner of judicial
commentary, is to provide a fair summary of the evidence, and nothing
more; to attain that purpose, the [trial] judge must show strict impartiality.’’
(Citations omitted; internal quotation marks omitted.) State v. Hernandez,
218 Conn. 458, 461–63, 590 A.2d 112 (1991).
In this case, the only ‘‘marshaling’’ was a recitation that the defendant had
testified and that the named convictions had been introduced into evidence.