State v. Petersen ( 2020 )

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STATE OF CONNECTICUT v. CHARLES
NICHOLAS PETERSEN
(AC 41907)
Lavine, Prescott and Moll, Js.
Syllabus
Convicted, after a jury trial, of the crime of failure to appear in the first
degree, the defendant appealed to this court. The defendant had been
arrested and charged with a felony offense; a trial was scheduled to
commence at 10 a.m. on October 3, 2017. The defendant was not present
in court on the scheduled date and time and the court ordered the
defendant’s bond forfeited and that he be rearrested. The defendant
entered the courthouse at 10:34 a.m., then briefly went outside to tele-
phone his attorney, W. The defendant and W reentered the courthouse
and the court ordered that jury selection proceed; the defendant, how-
ever, left the courthouse and, subsequently, he was charged with failure
to appear. On appeal, the defendant claimed, inter alia, that the evidence
was insufficient to sustain his conviction. Held:
1. The evidence was sufficient to support the defendant’s conviction of
failure to appear in the first degree: the evidence admitted at trial and
the reasonable inferences from that evidence that the jury was permitted
to draw were sufficient to establish that the defendant wilfully failed
to appear, as the defendant knew that he must appear in court to
commence jury selection, he admitted that he could have walked to the
courthouse from his home and arrived on time but chose not to do so,
and the jury reasonably could have inferred from that decision that he did
not intend to appear; moreover, the defendant’s conduct after arriving
at the courthouse provided a basis for the jury reasonably to have
inferred that he wilfully failed to appear in court at the place and time
to which the charges against him were continued, the court provided
an opportunity for the defendant to remedy his failure to appear by
stating that, even though it ordered a rearrest, it was willing to commence
with jury selection that day and reopened a courtroom to do so, and,
despite knowing of this opportunity, the defendant fled the courthouse;
furthermore, the defendant did not remedy his failure to appear in the
following days and failed to surrender to authorities for more than one
month, from which the jury reasonably could have inferred that his
failure to appear was not accidental but, instead, demonstrated an intent
to avoid any incarceration that might result from his criminal trial and,
thus, his conduct after arriving at the courthouse and in the weeks that
followed October 3, 2017, arguably demonstrated a consciousness of
guilt regarding his intention to appear in court at 10 a.m.
2. The defendant could not prevail on his claim that the trial court abused
its discretion by admitting evidence of the events that occurred after
he arrived at the courthouse, which was based on his claim that the
evidence was irrelevant because once the court forfeited his bond and
ordered him rearrested, he was no longer obligated to appear; the defen-
dant’s conduct after entering the courthouse was probative of his state
of mind as to whether he intended to appear in a courtroom at all that
day, and the jury reasonably could have inferred that the defendant’s
failure to appear at the continued proceeding was part of his scheme
to avoid the commencement of his trial.
3. The defendant’s claim that the trial court improperly admitted W’s testi-
mony because it did not place the burden on the state to demonstrate
a compelling need for the testimony, and that the state did not show a
compelling need, was unavailing: the court understood that it must apply
the compelling need test and was satisfied that the state met that burden,
and, even if the court’s decision was ambiguous, this court presumes
the court applied the correct legal standard; moreover, W was uniquely
positioned to testify about what he told the defendant and his impression
of the defendant’s understanding of the situation, and W’s testimony
was, thus, relevant to the defendant’s state of mind.
4. The trial court properly instructed the jury on the third element of failure
to appear in the first degree: despite the defendant’s claim that the court
instructed the jury in a manner that permitted the jury to convict him
on the basis of conduct that occurred after he was no longer required
to appear, the court’s instructions were consistent with the applicable
statute (§ 53a-172 (a)) and case law, the instructions directly quoted the
statutory language the defendant contended was necessary, and, thus,
the jury understood that it could convict the defendant only if he wilfully
failed to appear when legally called according to the terms of his bail
bond; moreover, the court’s use of the phrase ‘‘as required’’ in explicating
the third element of the offense was a shorthand reference to § 53a-172
(a), and, read in context, tied the defendant’s obligation to appear at
the time and place he was legally called according to the terms of his
bail bond; furthermore, when the court forfeited the defendant’s bond,
it stated that it was willing to proceed with jury selection if W could
get the defendant to the courthouse, and the practical effect of that
statement was to condition the forfeiture of the bond until later in the
day to give the defendant an opportunity to cure his failure to appear
and, accordingly, the defendant’s bond continued to obligate him to
appear in a courtroom after he arrived at the courthouse.
Argued October 18, 2019—officially released March 31, 2020
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crime of failure to appear
in the first degree, and, in a second part, with having
committed an offense while on release, brought to the
Superior Court in the judicial district of New Britain,
geographical area fifteen, where the first part of the
information was tried to the jury before Graham, J.;
verdict of guilty; thereafter, the defendant was pre-
sented to the court on a plea of guilty to having commit-
ted an offense while on release; judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Andrew S. Marcucci, assigned counsel, for the appel-
lant (defendant).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Dave Clifton, assistant state’s attorney, for the
appellee (state).
Opinion
PRESCOTT, J. The defendant, Charles Nicholas Pet-
ersen, appeals from the judgment of conviction, ren-
dered after a jury trial, of failure to appear in the first
degree in violation of General Statutes § 53a-172 (a)
(1). The defendant claims that (1) there was insufficient
evidence to prove beyond a reasonable doubt that he
had wilfully failed to appear in court when the court
forfeited his appearance bond, (2) the court improperly
admitted evidence of the conduct in which he engaged
after the court had forfeited his bond, (3) the court
improperly permitted the state to call his former attor-
ney as a witness because there was no compelling need
for his testimony, and (4) the court improperly
instructed the jury on the elements of failure to appear
in the first degree. We affirm the judgment of the
trial court.
The following procedural history and facts, as reason-
ably could have been found by the jury, are relevant to
this appeal. The defendant was arrested on May 7, 2015,
and charged with a felony offense.1 He was released
from custody that same day in accordance with the
terms of a nonsurety appearance bond, pursuant to
which he promised to appear in court on the date and
time specified on the bond, and ‘‘at any other place
and time to which the charge(s) against me may be
continued . . . .’’ Consistent with the language of the
bond, the defendant also acknowledged that ‘‘if I fail
to appear, in accordance with the foregoing promises
. . . I will be committing the crime of Failure to
Appear’’ and be subject to arrest. Attorney William Wat-
son filed an appearance on behalf of the defendant on
March 29, 2017.
A jury trial with respect to the unclassified felony
and the other charges was scheduled to commence at
10 a.m. on October 3, 2017, in the Superior Court in
New Britain. The defendant knew that his presence in
court was required at that time and place.
At 10 a.m. on October 3, 2017, the court, Hon. Edward
J. Mullarkey, judge trial referee, the prosecutor, the
clerk, and Watson were present in courtroom 4A, where
jury selection was to be held. The defendant, however,
was not. The court passed the matter to give Watson
time to find the defendant. During that time, judicial
marshals also searched the courthouse for the defen-
dant. He still was not present at 10:25 a.m. Accordingly,
the court ordered that the defendant’s bond be forfeited
and that he be rearrested. The court also ordered coun-
sel and the clerk to remain available in case the defen-
dant appeared later that day. Watson returned to his
office across the street from the courthouse.
The defendant entered the courthouse at 10:34 a.m.
After being unable to locate his attorney, the defendant
briefly went outside the courthouse and contacted Wat-
son by telephone. Watson told the defendant that they
needed to be in the courthouse because the judge had
stated that he would ‘‘deal with the outstanding rearrest
orders . . . and we would continue with jury selec-
tion’’ if the defendant appeared. Watson informed the
defendant that they needed to address the defendant’s
outstanding failure to appear, and he also told the defen-
dant what steps the court might take with respect to
his failure to appear in court at 10 a.m. Watson testified
that he intended to ask the court to vacate the rear-
rest order.
The defendant and Watson met and reentered the
courthouse at approximately 10:45 a.m. They proceeded
to courtroom 4A together, but it was locked. The clerk
received word that Watson had found the defendant and
that the defendant was in the courthouse. She conveyed
this information to the court. Upon learning this, the
court ordered that the defendant be taken into custody.
The court also ordered that jury selection proceed in
a courtroom on the third floor that had direct access
to the courthouse lockup facilities, which would be
necessary if the defendant were taken into custody.
The court ordered the clerk to inform counsel of this
change. Watson, in turn, informed the defendant that
he was required to appear in the courtroom on the
third floor.
Court was opened in a third floor courtroom to con-
tinue the proceedings. The prosecutor, the clerk, and
Watson appeared in that courtroom, but the defendant
did not. Surveillance footage later showed that the
defendant had left the courthouse. The court indicated
that its prior rearrest order would remain in effect. Per
the court’s instructions, counsel and the clerk remained
on standby until approximately noon, in case the defen-
dant appeared again. Although the defendant had
entered the courthouse at 10:34 a.m. on October 3, 2017,
at no time did he appear in a courtroom before a judge
as required. Jury selection did not proceed, and an
arrest warrant charging the defendant for failure to
appear in the first degree in violation of § 53a-172 was
later issued. The defendant waited approximately one
month before he surrendered to law enforcement, dur-
ing which time he claimed he needed to ‘‘put [his] affairs
in order . . . .’’
The defendant subsequently was arraigned on the
charge of failure to appear in the first degree for ‘‘wil-
fully fail[ing] to appear in court when legally called
according to the terms of his bail bond . . . .’’ The
state also charged the defendant in a part B information
with being a subsequent offender in possession of a
controlled substance and with committing an offense
while on release.
Following the grant of a motion to suppress filed by
the defendant, the court dismissed all of the charges
pending against the defendant except for the charge of
failure to appear in the first degree and the charge of
committing an offense while on release. The defendant
pleaded not guilty to the remaining charges and elected
to be tried by a jury with respect to the charge of failure
to appear in the first degree and by the court with
respect to the charge in the part B information.
Trial commenced on March 8, 2018. After the state
rested, the court, Graham, J., denied the defendant’s
motion for a judgment of acquittal. The defendant testi-
fied that on October 3, 2017, he awoke at 7 a.m. and
was ready for court at approximately 8 a.m. He admitted
that he had to be in court for jury selection that day, so
he planned to arrive at court at 9:30 a.m. The defendant
testified that, the night before, he had arranged for his
friend, Jason Nadeau, to drive him to court because the
defendant did not own a vehicle and his license had
been suspended. The defendant lived 1.6 miles from
the courthouse, and he testified that the drive was
approximately fifteen minutes long. He also testified
that he briskly could have walked that distance in
thirty minutes.
The defendant testified that he tried to confirm his
ride with Nadeau at approximately 9:20 a.m. on October
3, 2017, but did not receive a response from him. He
began looking for another ride to court. According to
the defendant, he contacted his sister at approximately
9:25 or 9:30 a.m., then contacted his friend Shawn, and
then Amanda Russo. The defendant called Todd Russo
(Russo) at approximately 9:30 a.m.; Russo returned that
call at approximately 9:45 a.m. Russo agreed to drive
the defendant to court and arrived at the defendant’s
house at approximately 10 a.m.
The defendant testified that when he arrived at the
courthouse and contacted Watson by telephone, Wat-
son told him that ‘‘they revoked [his bond]. They issued
a cash only bond and a warrant . . . .’’ He also testified
that Watson did not tell him to go to a different court-
room. Instead, he claimed that Watson told him that
there was nothing more he could do.
Russo also testified on behalf of the defendant. He
had known the defendant for the defendant’s entire life.
At approximately 9:45 a.m. on the morning of October
3, 2017, he received a call from the defendant, who
asked for a ride to court. Following that call, Russo got
dressed and went to the defendant’s house. It took
approximately fifteen to twenty minutes to get there.
After picking the defendant up, Russo drove straight
to the courthouse. Russo testified that they arrived at
the courthouse ‘‘later than [10 a.m.] but not by much’’
and that he watched the defendant enter the court-
house. During closing arguments to the jury, the state
argued that, as demonstrated by the defendant’s contin-
uing course of conduct throughout the day of October
3, 2017, the defendant wilfully had failed to appear in
court on that date for trial on his pending felony charge.
The state contended that the defendant’s intent was to
prevent the commencement of his trial, and that even
though he had gone to the courthouse that morning,
he never intended to appear in the courtroom for the
commencement of trial. The state argued that the jury
should consider his flight from the courthouse as con-
sciousness of guilt evidence from which it could infer
that his failure to appear in court for jury selection that
day was wilful.
In response, the defendant argued to the jury, through
counsel, that his conduct in failing to appear in the
courtroom at 10 a.m. on October 3, 2017, was not wilful.
The defendant asserted that if he truly had not intended
to appear in court that day, he never would have both-
ered coming to the courthouse at all. With respect to
his decision to leave the courthouse after he had met
with Watson, the defendant argued that he knew that
he likely was to be taken into custody and that he
became ‘‘understandably upset and frustrated about the
fact that no one seemed to care that he had done his
best to get to court on time that day . . . .’’ Finally,
the defendant argued to the jury that it should not
consider his conduct in leaving the courthouse because,
by that time, his bond already had been forfeited as a
consequence of Judge Mullarkey’s order and, thus, he
no longer was under an obligation to appear in a court-
room. In sum, the defendant contended to the jury that
he unsuccessfully had tried to get to court on time and
that his decision to leave the courthouse was a ‘‘red
herring’’ and should not be considered as evidence of
wilfulness because he was no longer obligated to come
to court and simply was frustrated that he likely was
going to be taken into custody during his trial.
The jury found the defendant guilty of failure to
appear in the first degree. The defendant then elected
to plead guilty to the charge in the part B information,
conditioned on his right to file this appeal. See Practice
Book § 61-6. The court subsequently imposed on the
defendant a total effective sentence of five years of
incarceration, and this appeal followed.
I
The defendant first claims that there was insufficient
evidence to support his conviction of failure to appear
in the first degree because ‘‘[n]o reasonable fact finder
could determine . . . that the defendant’s failure to
appear prior to 10:25 a.m. on October 3, 2017 was wil-
ful.’’ With respect to this claim, the defendant makes
two related arguments. First, the defendant asserts that
any evidence regarding the events that occurred after
he arrived at the courthouse was legally irrelevant to
the jury’s assessment of whether he wilfully failed to
appear prior to the forfeiture of his bond because, once
his bond had been forfeited, he no longer was under a
legal obligation to appear in a courtroom. Second, the
defendant argues that, in the absence of the evidence
regarding his conduct after he arrived at the courthouse,
the remaining evidence was insufficient to prove that
he wilfully failed to appear in court at the time that his
bond was forfeited. In this regard, the defendant asserts
that the facts of his case are nearly identical to the facts
in State v. Khadijah, 98 Conn. App. 409, 909 A.2d 65
(2006), appeal dismissed, 284 Conn. 429, 934 A.2d 241
(2007), in which this court concluded that the evidence
was insufficient to prove that the defendant in that case
wilfully failed to appear. We are not persuaded that the
evidence in the present case was insufficient to prove
beyond a reasonable doubt that the defendant’s failure
to appear for trial was wilful, and we find the defen-
dant’s reliance on Khadijah unconvincing.
We begin our analysis with the well established stan-
dard of review for assessing an insufficiency of the
evidence claim. ‘‘In reviewing the sufficiency of the
evidence to support a criminal conviction 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 construed and
the inferences reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . .
‘‘We note that the [finder of fact] must find every
element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense, [but]
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt. . . . If it is reasonable and logical for the [finder
of fact] to conclude that a basic fact or an inferred fact
is true, the [finder of fact] is permitted to consider the
fact proven and may consider it in combination with
other proven facts in determining whether the cumula-
tive effect of all the evidence proves the defendant
guilty of all the elements of the crime charged beyond
a reasonable doubt. . . .
‘‘In evaluating evidence, the [finder] of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The [finder of fact] may draw whatever inferences from
the evidence or facts established by the evidence it
deems to be reasonable and logical. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [finder of fact’s] verdict of guilty.’’ (Internal quota-
tion marks omitted.) State v. Shin, 193 Conn. App. 348,
357–58, 219 A.3d 432, cert. denied, 333 Conn. 943, 219
A.3d 374 (2019).
As a preliminary matter, we first address the defen-
dant’s assertion that, in assessing the sufficiency of the
evidence, this court should not consider as part of that
calculus any evidence presented to the jury regarding
his conduct after the court revoked his bond and
ordered him rearrested. We reject this assertion
because it is inconsistent with the well established rule
that the sufficiency of the evidence must be assessed
in light of all of the evidence submitted to the jury,
including evidence that the defendant argues was
improperly admitted.
As we recently stated, established case law com-
mands us to ‘‘review claims of evidentiary insufficiency
in light of all of the evidence [adduced at trial]. . . .
State v. Morelli, 293 Conn. 147, 153, 976 A.2d 678 (2009).
In other words, we review the sufficiency of the evi-
dence as the case was tried . . . . Accordingly, we
have traditionally tested claims of evidentiary insuffi-
ciency by reviewing no less than, and no more than, the
evidence introduced at trial. . . . [Id.]; see also State
v. Adams, 139 Conn. App. 540, 550, 56 A.3d 747 (2012)
(appellate review of evidentiary insufficiency claim
incorporates all evidence, even inadmissible evidence,
adduced at trial), cert. denied, 308 Conn. 928, 64 A.3d
121 (2013).’’ (Citations omitted; internal quotation
marks omitted.) State v. Cancel, 149 Conn. App. 86,
94, 87 A.3d 618, cert. denied, 311 Conn. 954, 97 A.3d
985 (2014).
In light of this rule, we next discuss the sufficiency
of the evidence as a whole and the defendant’s reliance
on State v. Khadijah, supra, 98 Conn. App. 409. We
begin with the elements of the offense for which the
defendant was charged. Section 53a-172 (a) provides
in relevant part: ‘‘A person is guilty of failure to appear
in the first degree when (1) while charged with the
commission of a felony and while out on bail or released
under other procedure of law, such person wilfully fails
to appear when legally called according to the terms
of such person’s bail bond or promise to appear . . . .’’
The defendant’s insufficiency of the evidence claim
focuses only on the state’s obligation to demonstrate
that his failure to appear was wilful.
‘‘To prove the wilful element of failure to appear the
state must prove beyond a reasonable doubt . . . that
the defendant received and deliberately ignored a notice
to appear . . . . [T]he word wilful means doing a for-
bidden act purposefully in violation of the law. It means
that the defendant acted intentionally in the sense that
his conduct was voluntary and not inadvertent . . . .
Thus, wilful misconduct is intentional misconduct,
which is conduct done purposefully . . . .’’ (Citation
omitted; emphasis altered; internal quotation marks
omitted.) State v. Bereis, 114 Conn. App. 554, 561, 970
A.2d 768, cert. denied, 293 Conn. 902, 975 A.2d 1278
(2009).
‘‘[T]he state of mind of one accused of a crime is
often the most significant and, at the same time, the
most elusive element of the crime charged. . . .
Because it is practically impossible to know what some-
one is thinking or intending at any given moment, absent
an outright declaration of intent, a person’s state of
mind is usually [proven] by circumstantial evidence
. . . . For example, intent may be proven by conduct
before, during and after [the commission of the crime].
Such conduct yields facts and inferences that demon-
strate a pattern of behavior and attitude . . . that is
probative of the defendant’s mental state.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Bonilla, 317 Conn. 758, 766, 120 A.3d 481 (2015).
The evidence admitted at trial, and the reasonable
inferences from that evidence that the jury was permit-
ted to draw, were more than sufficient to establish that
the defendant wilfully failed to appear in court for the
commencement of his jury trial. The defendant knew
that he must appear in court on October 3, 2017, at 10
a.m. to commence jury selection. The defendant lived
only 1.6 miles from the courthouse and admitted in his
testimony that he could have walked to the courthouse
and arrived by 10 a.m. He deliberately chose not to do
so, and the jury reasonably could have inferred from
that choice that he did not really intend to appear in
court.
Additionally, the defendant’s conduct after arriving
late to the courthouse also provides a basis for the jury
reasonably to have inferred that he wilfully chose not
to appear in court ‘‘at the place and time to which the
charges against [him had been] continued . . . .’’ The
court provided the defendant an opportunity to remedy
his failure to appear in court at 10 a.m. by communicat-
ing to the defendant through his attorney that, even
though he had ordered a rearrest of the defendant, it
was still willing to commence with jury selection that
day and, in fact, reopened a courtroom to do so. Despite
knowing of an additional opportunity to appear for jury
selection, and his attorney’s direction to the defendant
that he must appear in a courtroom on the third floor,
the defendant instead chose to flee the courthouse.
From this evidence, the jury reasonably could have
inferred that, in spite of his protestations, the defendant
had never intended to appear in a courtroom for jury
selection at any point that day even though he had come
to the courthouse that morning. See State v. Turmon,
34 Conn. App. 191, 196, 641 A.2d 138 (evidence sufficient
to prove wilful failure to appear even though defendant
came to courthouse on required date but left because
of alleged intestinal illness without appearing in court-
room or notifying court personnel), cert. denied, 229
Conn. 922, 642 A.2d 1216 (1994).
Moreover, despite knowing that he had failed to
appear in court for the commencement of jury selection,
the defendant did nothing to remedy that failure in the
following days, such as filing a motion to vacate the
rearrest order. He did not surrender to authorities for
more than one month, a fact from which the jury reason-
ably could have inferred that his failure to appear at
10 a.m. on October 3, 2017, was not accidental but,
instead, demonstrated an intent to avoid, at least tempo-
rarily, any incarceration that might result following the
completion of his criminal trial. Thus, his conduct after
arriving at the courthouse late and in the weeks that
followed October 3, 2017, arguably demonstrated a con-
sciousness of guilt regarding his intention to appear in
court at 10 a.m. See State v. Oliveras, 210 Conn. 751,
759, 557 A.2d 534 (1989) (‘‘[e]vidence that an accused
has taken some kind of evasive action to avoid detection
for a crime, such as flight, concealment of evidence, or
a false statement, is ordinarily the basis for a charge
on the inference of consciousness of guilt’’).2
In large measure, the defendant’s insufficiency of the
evidence claim is premised on the misguided assertion
that the jury was obligated to credit his testimony that
his conduct prior to 10:34 a.m. demonstrated that he
had intended to appear in court as required. See, e.g.,
State v. Gibson, 114 Conn. App. 295, 303, 969 A.2d 784
(2009) (jury was free to not credit defendant’s ‘‘testi-
mony about why he missed his court date’’), reversed
in part on other grounds, 302 Conn. 653, 31 A.3d 346
(2011).3 For example, the jury was not obligated to
credit the defendant’s testimony (1) regarding the
alleged efforts that the defendant made to arrange trans-
portation to the courthouse, (2) that he had called the
clerk’s office to inform the court that he would be late,
and (3) that he left the courthouse because Watson had
told him in the hallway ‘‘nothing could be done’’ to
vacate the order of a rearrest.
In support of the defendant’s contention that his fail-
ure to appear was not wilful, he relies primarily on
State v. Khadijah, supra, 98 Conn. App. 409, in which
this court concluded that the evidence was insufficient
to prove that the defendant in that case wilfully failed
to appear. Id., 418–19. Khadijah, however, is distin-
guishable from the present case.
In Khadijah, the defendant appeared for the first day
of jury selection in a criminal prosecution of various
felony charges. Id., 411. At the end of the first day of
jury selection, the court ordered the parties to return
to court the next day at 10:45 a.m. to resume the pro-
ceedings. Id. The defendant then went to work deliv-
ering newspapers from 1 to 8 a.m. Id., 415. When the
defendant returned home after her shift, she sat on
her couch and told her boyfriend to wake her if she
inadvertently fell asleep. Id. The defendant, in fact, fell
asleep, but she did not wake up until her attorney tele-
phoned her from the courthouse. Id. The defendant
immediately departed for court but arrived at approxi-
mately 11:30 a.m., forty-five minutes after the proceed-
ing was scheduled to begin. Id., 415 n.6. Later that day,
the trial court refused to vacate the rearrest that had
been ordered. Id., 412.
On the basis of these facts, a jury found that the
defendant wilfully failed to appear for the second day
of jury selection. Id. On appeal, however, this court
concluded that ‘‘[w]orking late the night before a court
appearance, pursuant to a regularly kept work schedule,
failing to set an alarm clock or asking a friend to awaken
her from a potentially inadvertent doze does not amount
to purposefully and intentionally absenting oneself from
the courthouse.’’ Id., 418.
The present case differs substantially from Khadijah.
In the present case, the defendant admitted that he
could have walked to the courthouse and arrived in
time for the commencement of jury selection. Addition-
ally, the defendant’s conduct after arriving at the court-
house, unlike the defendant’s conduct in Khadijah, pro-
vided a basis for the jury to infer that the defendant
never intended to appear in court on that day. Despite
being given an opportunity by the court to commence
jury selection even though he had arrived late, the
defendant in the present case decided to flee the court-
house rather than attempt to persuade the court to
vacate the order of rearrest. From this conduct, the
jury was free to infer that the defendant had never
intended to appear in court at the time and place to
which the charges had been continued in order to com-
mence jury selection. By contrast, the defendant in Kha-
dijah appeared in a courtroom, albeit late, and took
steps to persuade the court that jury selection should
resume.
In sum, the jury in the present case reasonably could
have inferred that the defendant’s conduct throughout
the day evinced an intent to avoid the commencement
of his trial. The jury was free to discredit the defendant’s
version of events and his testimony that he fully
intended to appear in court that day and only fled the
courthouse after he had been told by his attorney that
nothing could be done with respect to the court’s deci-
sion to order a rearrest earlier that morning. See State
v. Whitford, 260 Conn. 610, 627 n.9, 799 A.2d 1034 (2002)
(‘‘[i]t is axiomatic that the jury, in its role as fact finder,
may choose to believe all, some or none of a witness’
testimony’’). Instead, the jury reasonably could have
considered the defendant’s conduct throughout the day
of October 3, 2017, and in the weeks that followed,
as evidence that the defendant never had intended to
appear in court at 10 a.m. for the commencement of
jury selection. We therefore conclude that there was
sufficient evidence from which the jury reasonably
could have found the defendant guilty beyond a reason-
able doubt.
II
The defendant next claims that the trial court abused
its discretion by admitting evidence of the events that
occurred after he entered the courthouse at 10:34 a.m.
on October 3, 2017. Such evidence consisted of (1)
testimony and video footage regarding the defendant’s
movements within and departure from the courthouse,
(2) testimony regarding discussions he had with his
attorney regarding the proceeding after he arrived at
the courthouse, and (3) evidence that the defendant
failed to surrender to law enforcement authorities in
the weeks that followed his failure to appear.
The defendant’s principal argument in this regard is
that such evidence was irrelevant because, once the
trial court had forfeited his bond and ordered him to
be rearrested at 10:25 a.m., he no longer was under any
obligation to appear. Thus, according to the defendant,
his conduct after arriving at the courthouse, including
his decision to depart the courthouse, was not probative
of any material issue in the case. We disagree because,
even if we accept for purposes of argument, the premise
of his assertion that he no longer was under a legal
obligation to appear in court after 10:25 a.m. when the
court revoked his bond, his subsequent conduct was
probative of whether he ever had intended, in the first
instance, to appear in a courtroom at any time that day.4
At trial, the defendant filed a motion in limine to
exclude evidence of the events that occurred after he
entered the courthouse. Upon hearing oral argument
on the motion, the court ruled as follows: ‘‘I understand
why the defense would prefer this evidence not come
in but based on the pieces of factual information avail-
able to me, it sounds like a classic consciousness of
guilt testimony. And on that basis alone it’s admissible
whether it has some greater relevance beyond that we
will see but certainly at least as a consciousness of
guilt, it’s admissible, so the motion [in limine] by the
defendant is denied.’’5 (Emphasis added.)
‘‘We begin by setting forth the standard of review
and legal principles applicable to this claim. To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of the Code of Evidence,
our standard of review is plenary. . . . We review the
trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion. . . .
‘‘It is axiomatic that [if premised on a correct view
of the law, the] trial court’s ruling on the admissibility
of evidence is entitled to great deference. . . . In this
regard, the trial court is vested with wide discretion in
determining the admissibility of evidence . . . .
Accordingly, [t]he trial court’s ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . Further-
more, [i]n determining whether there has been an abuse
of discretion, every reasonable presumption should be
made in favor of the correctness of the trial court’s
ruling, and we will upset that ruling only for a manifest
abuse of discretion.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Ayala, 333 Conn. 225,
243–44, 215 A.3d 116 (2019).
We conclude that the court did not abuse its discre-
tion by ruling that evidence of the events that occurred
after the defendant entered the courthouse was relevant
and admissible. ‘‘Relevant evidence, that is, evidence
having any tendency to make the existence of any fact
that is material to the determination of the proceeding
more probable or less probable than it would be without
the evidence . . . generally is admissible . . . unless
its probative value is outweighed by the danger of unfair
prejudice or surprise, confusion of the issues, or mis-
leading the jury, or considerations of undue delay, waste
of time or needless presentation of cumulative evi-
dence.’’ (Internal quotation marks omitted.) State v.
Rosario, 99 Conn. App. 92, 101, 912 A.2d 1064, cert.
denied, 281 Conn. 925, 918 A.2d 276 (2007); see also
Conn. Code Evid. § 4-1. Evidence that the defendant
was told by Watson that his case had been continued
in a reassigned courtroom and, upon hearing that infor-
mation, he departed the courthouse, was probative of
the defendant’s state of mind regarding whether he
wilfuly had chosen not to appear in court prior to the
time that his bond was called. Indeed, the evidence
reasonably could have supported an inference that the
defendant’s departure from the courthouse later in the
morning and his failure to appear at the continued pro-
ceeding was part of his overall scheme that day to
avoid the commencement of his trial. Thus, even if we
accepted the premise of the defendant’s argument that
he was no longer under an obligation to appear in court
after his bond had been forfeited, the evidence of his
conduct after arriving at the courthouse was still inde-
pendently relevant to the defendant’s state of mind.
Accordingly, we reject the defendant’s evidentiary
claim.6
III
The defendant next claims that the court abused its
discretion by admitting Watson’s testimony because it
failed to place the burden on the state to demonstrate
a compelling need for the testimony and that there was,
in fact, no compelling need shown by the state. We
disagree with the defendant.
The following additional facts are relevant to our
disposition of this claim. Watson did not represent the
defendant at his trial on the charge of failure to appear.
Prior to the start of trial, the defendant filed two motions
in limine to prevent Watson from testifying. In the
motions in limine, the defendant asserted that Watson’s
testimony was irrelevant and otherwise protected by
the attorney-client privilege and work product doctrine.
The motions in limine did not assert, however, that the
state would be unable to demonstrate a compelling
need for Watson’s testimony. The court deferred resolu-
tion of the motions until trial.
At trial, the state proffered Watson’s testimony out-
side the presence of the jury. The defendant objected
on the basis that another witness could testify as to the
defendant’s contact with Watson’s law firm as well as
the defendant’s movements within the courthouse. Dur-
ing argument on the motions, the court indicated that
it needed to apply the compelling need test set forth
in ‘‘the Ullmann case . . . .’’ See Ullmann v. State, 230
Conn. 698, 716–21, 647 A.2d 324 (1994). Defense counsel
asserted to the court that, in his view, the state had
failed to meet its burden to demonstrate a compelling
need for Watson’s testimony.
In response, the state requested that the court defer
its ruling on the defendant’s objection until after the
October 3, 2017 courtroom clerk had testified because
the clerk’s testimony would illustrate that Watson’s tes-
timony would concern facts to which only he was privy.
The court granted the state’s request.
After hearing testimony from the courtroom clerk, a
marshal, and the deputy chief clerk of the criminal
division at the courthouse, the court heard additional
argument regarding the motions in limine, during which
defense counsel again argued that the state had failed
to meet its burden to establish a compelling need for
the testimony. Defense counsel argued that a clerk or
marshal could testify to the defendant’s movements
within the courthouse but did not identify anyone in
particular who may have such knowledge. In response,
the state argued that it knew of no one else who could
testify as to the information that Watson had conveyed
to the defendant in the courthouse.
The court ultimately denied in part the defendant’s
motions in limine. In doing so, the court explicitly
referred to the compelling need test and determined
that the state had met its burden in this case. It specifi-
cally reasoned that it had not heard any witness testify
as to whether and how the defendant had been informed
of his trial date, Watson’s efforts to inform the defendant
of the court date, Watson’s course of action after the
court ordered the defendant’s rearrest, the defendant’s
contact with Watson and the extent of their discussions,
and the defendant’s movements within the courthouse.
Thus, the court permitted the state to call Watson as a
witness, but ordered that the state would not be allowed
to elicit attorney-client privileged communications
from him.
In Ullmann v. State, supra, 230 Conn. 716–21, our
Supreme Court held that the state may call a defendant’s
prior defense counsel to testify as a witness in his crimi-
nal prosecution provided that the state demonstrates
a ‘‘compelling need’’ for that testimony. In so holding,
the court adopted the ‘‘compelling need’’ test applied
by federal courts in criminal cases in which a party
seeks testimony from the prosecuting attorney. (Inter-
nal quotation marks omitted.) Id., 716, 718. In describing
the parameters of the test, the court explained as fol-
lows: ‘‘When either party in a criminal case seeks testi-
mony from the prosecuting attorney, the federal courts
have applied a ‘compelling need’ test. . . . Under this
test, the party wishing to call a prosecutor to testify
must show that the testimony of the prosecutor is ‘nec-
essary and not merely relevant,’ and that all other avail-
able sources of comparably probative evidence have
been exhausted.’’ (Citations omitted; footnote omitted.)
Id., 716–17. According to our Supreme Court, the ‘‘same
or analogous concerns’’ underlying the compelling need
test with respect to prosecuting attorneys ‘‘exist if the
prospective witness is or had been counsel for the
defendant.’’ Id., 717. The court believed ‘‘that the policy
concerns underlying the compelling need test are valid
and adopt[ed] that test as the criteria to be applied
when either side in a criminal case seeks to call a
prosecutor or defense attorney, who is or has been
professionally involved in the case, to testify. The com-
pelling need test strikes the appropriate balance
between the need for the information and the potential
adverse effects on the attorney-client relationship and
the judicial process in general.’’ (Footnote omitted.)
Id., 717–18.
‘‘[T]he trial court is charged with making the determi-
nation of the materiality of the witness’ testimony and
must, of course, honor the defendant’s constitutional
rights of confrontation and compulsory process. . . .
[T]he vast weight of authority indicates that any deci-
sion whether or not to allow an attorney to be called
is left to the discretion of the trial judge. Therefore, in
reviewing [the] appellant’s claims we will only reverse
the decision of the trial court if there was an abuse
of discretion.’’ (Citations omitted; internal quotation
marks omitted.) Ullmann v. State, supra, 230 Conn. 721.
We disagree with the defendant’s contention that the
trial court did not properly apply the compelling need
test and, instead, placed the burden on him to demon-
strate why there was not a compelling need for Watson’s
testimony. The court’s comments in denying the motion
make clear that it fully understood that it must apply
the compelling need test as set forth in Ullmann and
that it was satisfied that the state had met its burden
in that regard. Moreover, even if the court’s decision
was ambiguous, it is well settled that, in the absence
of a contrary indication, we must presume that the
court applied the correct legal standard. See, e.g., In
re Jason R., 306 Conn. 438, 456, 51 A.3d 334 (2012).
We also disagree with the defendant’s claim that the
court abused its discretion by concluding that there
was, in fact, a compelling need for Watson’s testimony.
Although it is possible that other witnesses might have
been available to testify as to the defendant’s move-
ments within the courthouse, Watson was uniquely
positioned to testify about what he told the defendant
and his impression of the defendant’s understanding
of the situation facing him on October 3, 2017. We,
therefore, conclude that the court did not abuse its
discretion by finding that Watson’s testimony was nec-
essary and that all other sources of comparably proba-
tive evidence had been exhausted. Moreover, for the
reasons discussed in part II of this opinion, Watson’s
testimony was relevant to the defendant’s state of mind
on October 3, 2017. Accordingly, we conclude that the
court did not abuse its discretion in permitting Watson
to testify.
IV
The defendant’s final claim is that the court’s jury
instruction on the third element of failure to appear in
the first degree was improper because, in essence, it
informed the jury that the state must prove that he
wilfully failed to appear ‘‘as required’’ rather than ‘‘when
legally called according to the terms of [his] bail bond
. . . .’’ General Statutes § 53a-172 (a). Specifically, the
defendant argues that the court improperly instructed
the jury in a manner that permitted it to find that the
defendant was guilty of failure to appear on the basis
of conduct that occurred after he was no longer under
an obligation to appear in court because his appearance
bond already had been forfeited by the court.7
In response, the state contends that the court prop-
erly instructed the jury because the instructions were
based on a proper interpretation of the elements of the
offense contained in § 53a-172. We agree with the state
that the court’s instructions were proper under the cir-
cumstances of this case.
The following facts and procedural history are rele-
vant to this claim. The defendant submitted a written
request to charge on the elements of failure to appear
in the first degree. That request to charge stated in
relevant part: ‘‘The defendant is charged in count one
with failure to appear in the first degree. The statute
defining this offense reads in pertinent part as follows:
a person is guilty of failure to appear in the first degree
when while charged with the commission of a felony
and while out on bail or released under other procedure
of law, he wilfully fails to appear when legally called
according to the terms of his bail bond or promise to
appear. . . .
‘‘The third element is that the defendant wilfully failed
to appear when legally called according to the terms
of his bail bond. as required8 . . . .
‘‘In summary, the state must prove beyond a reason-
able doubt that (1) the defendant was released on bail
on the condition that he appear personally in connec-
tion with his criminal proceeding at a later date, (2) he
was required to appear in court on October 3, 2017,
and (3) he wilfully failed to appear on that date when
legally called according to the terms of his bail bond.’’
(Footnote added.) The defendant’s request to charge
did not seek an instruction to the jury that it was prohib-
ited from finding the defendant guilty for failing to
appear in court at a date and time after his bail bond
had been forfeited.
During the afternoon of the first day of evidence, the
court distributed its draft charge to the parties. With
respect to the instructions on the elements of failure
to appear, the court’s proposed charge directly quoted
the language of § 53a-172 (a) (1). The draft charge there-
after discussed each of the individual elements of the
offense. With respect to the third element, the charge
stated: ‘‘The third element is that the defendant wilfully
failed to appear as required.’’
During the charge conference, defense counsel
objected to the court’s proposed instruction on the third
element of failure to appear because the instruction did
not specifically state that a person is guilty of failure
to appear if he wilfully failed to appear when legally
called according to the terms of his bond. Defense coun-
sel argued that the court’s proposed use of the phrase
‘‘as required’’ unduly broadened the scope of the statute
because, in his view, the jury could only consider the
defendant’s failure to appear at the time that the clerk
‘‘recite[d] the bond, call[ed] for the defendant, and the
defendant [did] not show himself before the court.’’ In
the defendant’s view, once the bond had been forfeited
at 10:25 a.m., he was no longer under any obligation
to appear in a courtroom. The court’s instruction, the
defendant contended, permitted the jury to find him
guilty on the basis of conduct that occurred at a time
that he was no longer legally called according to the
terms of his bail bond. The court subsequently over-
ruled his objection and instructed the jury in accor-
dance with the language used in the draft charge.9
Our standard of review pertaining to a claim of
instructional error is well established. ‘‘When reviewing
the challenged jury instruction . . . we must adhere
to the well settled rule that a charge to the jury is to
be considered in its entirety, read as a whole, and judged
by its total effect rather than by its individual compo-
nent parts. . . . [T]he test of a court’s charge is not
whether it is as accurate upon legal principles as the
opinions of a court of last resort but whether it 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. . . . As long as [the instructions] are correct
in law, adapted to the issues and sufficient for the guid-
ance of the jury . . . we will not view the instructions
as improper.’’ (Internal quotation marks omitted.) State
v. Browne, 84 Conn. App. 351, 366, 854 A.2d 13, cert.
denied, 271 Conn. 931, 859 A.2d 930 (2004).
For the following reasons, we conclude that the
court’s instruction on the third element of failure to
appear in the first degree was consistent with the plain
meaning of the statute as well as case law interpreting
the statute, and did not improperly permit the jury,
under the circumstances of this case, to convict the
defendant solely on the basis of conduct that occurred
after he no longer was under a legal obligation to appear
in court.
First, it is important to note that the court’s instruc-
tions on the elements of the offense began by directly
quoting the statutory language that the defendant con-
tends was necessary to confine the offense to its proper
limits. Thus, the jury necessarily understood that it
could convict the defendant only if ‘‘he wilfully fail[ed]
to appear when legally called according to the terms
of [his] bail bond.’’
Second, we conclude that the court’s use of the
phrase ‘‘as required’’ in further explicating the third
element of the offense was simply a shorthand refer-
ence back to the language of the statute: ‘‘when legally
called according to the terms of [his] bail bond . . . .’’
The defendant’s bail bond ‘‘required’’ him to appear in
court at 9 a.m. on May 21, 2015, and ‘‘at any other place
and time to which the charge(s) against me may be
continued . . . .’’ The court’s use of the phrase ‘‘as
required,’’ in our view, and when read in context, suffi-
ciently tied the defendant’s obligation to appear at the
time and place he was ‘‘legally called according to the
terms of [his] bail bond . . . .’’
Third, the court’s instructions were also consistent
with this court’s statement that, to secure a conviction
for failure to appear, ‘‘the state must prove beyond a
reasonable doubt that the defendant was legally ordered
to appear under the terms of his bail bond, that he failed
to appear and that such failure was wilful.’’ (Internal
quotation marks omitted.) State v. Pauling, 102 Conn.
App. 556, 568, 925 A.2d 1200, cert. denied, 284 Conn.
924, 933 A.2d 727 (2007).10
Fourth, we reject the defendant’s assertion that the
court’s instructions improperly permitted the jury to
convict the defendant for conduct in which he may
have engaged after the court forfeited his bond at 10:25
a.m. The court’s instructions adequately informed the
jury that it could find the defendant guilty if they con-
cluded that the defendant failed to appear in court, as
required by the terms of his bail bond, with respect to
a felony charge at 10 a.m. on October 3, 2017, and that
his failure to appear at that time and place was wilful.
Even if we were to agree that the court’s instructions
permitted the jury to find the defendant guilty on the
basis of conduct that occurred after the court forfeited
his bond at 10:25 a.m., we disagree with the defendant
that a verdict of guilty on that basis would be inconsis-
tent with § 53a-172 (a) (1). When the court ordered the
defendant’s bond forfeited, it also indicated that it was
willing to proceed with jury selection if Watson was
able to get his client to the courthouse. Watson
explained this fact to the defendant and told him to
appear in the courtroom that the court was opening
for that purpose. The practical effect of the court’s
statement was to stay or condition the forfeiture of the
defendant’s bond until later in the day in order to give
the defendant the benefit of an opportunity to cure his
failure to appear. Although the court could have been
clearer regarding its intent to condition its order forfeit-
ing the defendant’s bond and ordering him rearrested,
we conclude that no particular formalities such as
vacating or formally staying the forfeiture were neces-
sary in order to, in effect, grant the defendant additional
time to appear in court without simultaneously termi-
nating his legal obligation to do so. Accordingly, in our
view, the defendant’s bond continued to obligate him
to appear in a courtroom after he had arrived at the
courthouse.11 Under these circumstances, we are unper-
suaded that the court’s instructions permitted the jury
to find the defendant guilty for conduct occurring at a
time when he was no longer required to appear
according to the terms of his bail bond.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the jury was not informed about the specific charges pending
against the defendant at the time of his failure to appear, the record indicates
that the defendant had been charged with possession of narcotics, an unclas-
sified felony; two misdemeanor drug offenses; and two motor vehicle vio-
lations.
2
The trial court characterized the defendant’s conduct as evincing a con-
sciousness of guilt, and the jury was free to consider it on that basis. In
our view, however, this evidence is better described as circumstantial evi-
dence of the defendant’s state of mind regarding whether he wilfully chose
not to appear.
3
In Gibson, this court concluded that the evidence presented at trial was
sufficient to support the defendant’s conviction for failure to appear in the
first degree but awarded him a new trial because of prosecutorial impropriety
during closing argument. State v. Gibson, supra, 114 Conn. App. 303–304,
319. Following certification to appeal, our Supreme Court reversed this
court’s decision after concluding that the prosecutor’s remarks during clos-
ing argument were not improper. State v. Gibson, supra, 302 Conn. 663.
4
We ultimately also reject the premise for the defendant’s argument for
the reasons stated in part IV of this opinion.
5
The defendant did not ask the court to give a limiting instruction to the
jury regarding the appropriate use of this testimony.
6
The defendant baldly states in his brief that the court’s admission of
this evidence violated his ‘‘constitutional rights to due process and fair trial.’’
In our view, this is an evidentiary claim masquerading as a constitutional
claim. See, e.g., State v. Walker, 215 Conn. 1, 5, 574 A.2d 188 (1990) (‘‘the
admissibility of evidence is a matter of state law and unless there is a
resultant denial of fundamental fairness or the denial of a specific constitu-
tional right, no constitutional issue is involved’’ [internal quotation marks
omitted]).
7
The defendant argues that the court’s instruction misled the jury, as
evidenced by the jury’s note requesting clarification as to whether ‘‘the
wilful failure to appear charge appl[ied] to [the defendant’s] failure to appear
at 10 a.m.? Or failure to appear in the court before a judge that day?’’
(Internal quotation marks omitted.) Before the court was able to respond
to the substance of this note, however, the court was required to replace
a member of the jury, who had telephoned the court to report that she had
a sick child at home and could not continue her service. The court replaced
that juror with an alternate member of the jury and instructed the newly
constituted jury that it must start its deliberations from the beginning. The
court also informed the jury that it was not going to respond to the jury
note because it came from the ‘‘prior jury.’’ The newly constituted jury did
not send out a similar note before reaching its verdict. We see no error in
the manner in which the court proceeded.
8
This sentence fragment appears in the original. It is unclear whether the
defendant intended to delete the phrase ‘‘as required’’ from the proposed
request to charge or whether the period following the word ‘‘bond’’ is a
scrivener’s error.
9
With respect to the charge of failure to appear in the first degree, the
court instructed the jury as follows: ‘‘The defendant is charged with failure
to appear in the first degree. The statute defining this offense reads in
pertinent part as follows: a person is guilty of failure to appear in the first
degree when while charged with the commission of a felony and while out
on bail or released under other procedure of law, he wilfully fails to appear
when legally called according to the terms of his bail bond.
‘‘For you to find the defendant guilty of this charge, the state must prove
the following elements beyond a reasonable doubt: Element 1—released on
bail or promise to appear.
‘‘The first element is that the defendant was released on bail upon the
condition that he appear personally in connection with his criminal proceed-
ing at a later date. The [statute] requires that the crime with which the
defendant was charged when he was released must be a felony. Element
2—Duty to appear. The second element is that on October 3, 2017, the
defendant was required to appear before a court in connection with a
felony charge.
‘‘Element 3—Failure to appear. The third element is that the defendant
wilfully failed to appear as required. An act is done wilfully if done knowingly,
intentionally, and deliberately. In order to prove this element, the state must
prove beyond a reasonable doubt either that the defendant received and
knowingly, intentionally, and deliberately ignored a notice to appear or that
the defendant knowingly, intentionally, and deliberately embarked on a
course of conduct designed to prevent him from receiving such notice.
Please recall and apply my earlier instruction on knowledge.
‘‘Conclusion: In summary, the state must prove beyond a reasonable doubt
that (1) the defendant was released on bail on the condition that he appear
personally in connection with his criminal proceeding at a later date, (2)
he was required to appear in court on October 3, 2017, and (3) he wilfully
failed to appear on that date.’’
10
The instruction at issue was nearly identical to the model jury instruction
provided on the Judicial Branch website. See Connecticut Criminal Jury
Instructions 4.4-1 (December 1, 2007), available at https://jud.ct.gov/JI/Crimi-
nal/Criminal.pdf (last visited March 25, 2020). Although the model jury
instructions are ‘‘not dispositive of the adequacy of the [jury] instruction,
an instruction’s uniformity with the model instructions is a relevant and
persuasive factor in our analysis . . . .’’ (Internal quotation marks omitted.)
State v. Gomes, 193 Conn. App. 79, 88, 218 A.3d 1063, cert. granted on other
grounds, 334 Conn. 902, 219 A.3d 798 (2019).
11
The defendant failed to do so twice—once at 10 a.m. and again later
in the morning on the third floor.