State v. Kyle A. ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. KYLE A.*
(AC 43377)
Elgo, Suarez and Sullivan, Js.
Syllabus
Convicted, after a jury trial, of various crimes in connection with an alterca-
tion with his brother, A, the defendant appealed to this court. The
defendant called A on the phone, and, during that call, A was given
reason to believe that the defendant had been consuming alcohol. The
defendant expressed his intent to go to A’s home, where A lived with
his minor daughter. A warned the defendant that he could not come to
the home if he was intoxicated because A’s daughter was with him.
Later that day, while A and his girlfriend, T, were inside of the home,
the defendant arrived. The defendant, who did not have a key to the
home, banged on the locked front door, and then broke a window on
the locked back door and entered the home. A and T fled the home
through the front door. The defendant, brandishing a wooden baseball
bat, emerged from the home and began to strike A’s automobile, which
was parked in the driveway, with the bat. The defendant also used the
bat to damage property inside of the home. Held:
1. The defendant could not prevail on his claim that the state presented
insufficient evidence that he committed burglary in the first degree:
the state’s theory of the case, that the defendant entered or remained
unlawfully in the victim’s home, was legally viable as the defendant’s
entry into the home was unlawful because A, who was occupying the
home, testified that the defendant was not a resident of the home at
the time of the incident, that A and his daughter resided there, and that
A had communicated to the defendant that he was not permitted to
enter the home and, although the defendant claimed that he was granted
a license to enter the home by J, his mother and the undisputed owner
of the home, this claim rested entirely on the credibility of J’s testimony,
which was challenged at trial, and this court presumed that the jury,
the sole arbiter of the credibility of the witnesses, disbelieved J’s testi-
mony to the extent that she testified that she gave the defendant permis-
sion to enter the home; moreover, J’s familial relationship to the defen-
dant reasonably could have given the jury reason to consider with
skepticism her testimony as, contrary to J’s testimony that the defendant
had a key to the residence, the state presented evidence that the defen-
dant broke down a door in order to enter the home and that the defendant
wrote letters to J in which he urged her not to cooperate with the
prosecution; furthermore, the evidence was sufficient to prove beyond
a reasonable doubt that the defendant was armed with a dangerous
instrument as there was direct evidence, through T’s testimony, regard-
ing the defendant’s use of a baseball bat in A’s driveway immediately
after he had illegally entered and remained in A’s home, which made it
more likely that the defendant possessed the baseball bat while he was
inside of the home and that he used the bat to cause damage to property
inside of the home, which was undamaged prior to his unlawful entry.
2. The defendant’s unpreserved claim that the trial court’s instruction to
the jury concerning the charge of burglary in the first degree constituted
plain error was unavailing: notwithstanding the defendant’s claim that
the court improperly omitted a necessary portion of the instruction
because, although it instructed the jury that it needed to find that the
defendant acted with the specific intent to commit either a felony or a
misdemeanor in the home, it failed to identify by name one or more
specific felony or misdemeanor offenses, the alleged error did not
involve the court’s failure to include language from a mandatory charging
statute; moreover, this court was not persuaded that allowing the alleged
error in the instruction to stand uncorrected would work a manifest
injustice, as the defendant’s argument was undermined by the fact pat-
tern that was reflected in the evidence and expressly relied on by the
prosecutor during oral argument, which pointed to the defendant’s intent
to commit three different crimes, all of which would rise to the level
of intent required by the burglary statute; furthermore, although the
better practice would have been for the trial court to have instructed
the jury with respect to the intent to commit one or more named felony
or misdemeanor offenses, the claimed error was unlikely to have guided
the jury to an incorrect verdict in light of the evidence and arguments
advanced in the present case.
Argued October 21, 2021—officially released May 3, 2022
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of burglary in the first degree,
criminal mischief in the first degree, and threatening
in the second degree, and substitute information, in the
second case, charging the defendant with the crime of
attempt to commit criminal violation of a protective
order, and substitute information, in the third case,
charging the defendant with the crime of criminal viola-
tion of a protective order, and substitute information,
in the fourth case, charging the defendant with the
crime of tampering with a witness, brought to the Supe-
rior Court in the judicial district of Ansonia-Milford
and tried to the jury before McShane, J.; verdicts and
judgments of guilty, from which the defendant appealed
to this court. Affirmed.
Julia K. Conlin, assigned counsel, with whom were
James Sexton, assigned counsel, and, on the brief,
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, senior assistant state’s attorney,
with whom, on the brief, was Margaret E. Kelley, state’s
attorney, for the appellee (state).
Opinion
SUAREZ, J. The defendant, Kyle A., appeals from the
judgments of conviction, rendered following a jury trial,
of burglary in the first degree in violation of General
Statutes § 53a-101 (a) (1), criminal mischief in the first
degree in violation of General Statutes § 53a-115 (a)
(1), threatening in the second degree in violation of
General Statutes § 53a-62 (a) (2) (A), criminal violation
of a protective order in violation of General Statutes
§ 53a-223, tampering with a witness in violation of Gen-
eral Statutes § 53a-151, and attempt to commit criminal
violation of a protective order in violation of General
Statutes §§ 53a-49 and 53a-223.1 The defendant’s appel-
late claims pertain solely to his burglary conviction.
The defendant claims that, because the state did not
present sufficient evidence that he committed the bur-
glary offense, he is entitled to a judgment of acquittal
with respect to that offense. Alternatively, the defen-
dant claims that, because the court’s instruction con-
cerning the burglary offense constituted plain error, the
conviction for burglary should be overturned and the
case remanded for a new trial with respect to that
offense. We affirm the judgments of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On August 28, 2016, A resided with his daughter, who
was eight years old, in a single-family residence in West
Haven. A’s girlfriend, T, frequently visited him at the
home. The home was owned by J, who is the mother
of A and his brother, who is the defendant. J did not
reside in the home at that time.
The defendant had been living in Maryland, but as
of August 28, 2016, he made plans to move to Connecti-
cut and live with his brother, A, at the West Haven
home. The defendant called A at approximately 6 a.m.
on August 28, 2016. During the call, the defendant gave
A reason to immediately become concerned about his
pending arrival. On the basis of statements made by
the defendant, A believed that the defendant had been
consuming alcohol and ‘‘partying . . . .’’ At one point
in the conversation, the defendant asked A if he could
provide him with ‘‘Adderall or something to help keep
him awake.’’ A warned the defendant that he could not
come to the home if he was intoxicated because his
daughter was at the home with him. A stated, ‘‘please
[do] not show up if you’re drinking or anything . . . .’’
A also told the defendant that if he came to the home
while intoxicated ‘‘that we probably couldn’t let you in
because my daughter was there.’’ Initially, the defendant
was upset with these restrictions, but after he spoke
with A further, he asked A for time ‘‘to sober up and
everything and do what I have to do.’’ A agreed that he
would talk to the defendant later that day.
At approximately 9 a.m., the defendant called A a
second time. A asked the defendant if he was doing
any better and again cautioned the defendant to ‘‘just
please wear it off before you make any efforts or steps
to come to the house.’’ Once again, A asked the defen-
dant not to come to the home in light of the defendant’s
condition or state of mind, and emphasized that, under
the circumstances, the defendant could not come in
contact with A’s daughter. A offered to help the defen-
dant, at a different location, but the defendant hung up
on him. At approximately 1 p.m., the defendant called
A a third time. He made it clear that he was coming to
the house regardless of A’s objections. Once more, A
asked the defendant not to come if he was intoxicated
and stressed that, because a child resided at the home,
the defendant had to be sober. The defendant, upset
with the restrictions being placed on him by A, sent A
a text message that stated, ‘‘Do you want to play with
fire, you are going to get burned.’’
Later that day, while A and T were inside of the home,
the defendant arrived. The defendant, who did not have
a key to the home, angrily banged on the front door,
which was locked. The defendant was screaming and
yelling. The defendant went to a locked back door,
broke a window on the door, and entered the home. A
and T, fearing for their safety, fled from the home by
means of the front door. As he left the home, A saw
the defendant entering and asked him to ‘‘please stop,
stop . . . .’’
After they exited the home, A and T stayed a safe
distance away, while seeking the aid of neighbors and
attempting to contact the police. The defendant, bran-
dishing a wooden baseball bat, emerged from the home
and began to strike A’s automobile, which was parked
in the driveway, with the bat. The defendant used the
bat to cause significant damage to property inside of
the home as well. The police arrived on the scene a
short time later, at which point the defendant was inside
of the home. The defendant exited the home when the
police instructed him to do so and, while he was being
taken into custody, he noticed A standing nearby and
stated that he ‘‘was going to kill [him] when [he] get[s]
out of this . . . .’’ Hours later, while in police custody
at the police department and undergoing the booking
process, the defendant repeated his threat to kill A.
Following the defendant’s arrest, but prior to trial,
the court issued three separate protective orders that,
among other things, prohibited the defendant from hav-
ing contact with A and A’s daughter. The orders stated,
‘‘Do not contact the protected person in any manner,
including by written, electronic or telephone contact,
and do not contact the protected person’s home, work-
place or others with whom the contact would be likely
to cause annoyance or alarm to the protected person.’’
While he was bound by this provision, the defendant
called A from prison on nine separate occasions. Also,
on several occasions, the defendant mailed letters from
prison to several persons in an attempt to persuade A
not to cooperate with the prosecution of the charges
related to his conduct on August 28, 2016, and the
charges that related to his violation of a protective
order. Additional facts will be set forth as necessary.
I
First, the defendant claims that because the state did
not present sufficient evidence that he committed the
burglary offense, he is entitled to a judgment of acquittal
with respect to that offense.2 We disagree.
The present claim consists of two subclaims. First,
relying on evidence that J, who owned the home, granted
him permission to reside at the home, the defendant
argues that the state’s theory of the case, that he entered
or remained unlawfully in the home on August 28, 2016,
was not legally viable. Second, the defendant argues that
the evidence was insufficient to prove beyond a reason-
able doubt that he was armed with a dangerous instru-
ment.
Before analyzing each subclaim, we set forth our stan-
dard of review and relevant legal principles. ‘‘When a
criminal conviction is reviewed for the sufficiency of
the evidence, we apply a well established [two part] test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [jury] reasonably could
have concluded that the cumulative force of the evi-
dence established guilt beyond a reasonable doubt.
. . . [P]roof beyond a reasonable doubt does not mean
proof beyond all possible doubt . . . nor does proof
beyond a reasonable doubt require acceptance of every
hypothesis of innocence posed by the defendant that,
had it been found credible by the [finder of fact], would
have resulted in an acquittal. . . . On appeal, we do
not ask whether there is a reasonable view of the evi-
dence that would support a reasonable hypothesis of
innocence. We ask, instead, whether there is a reason-
able view of the evidence that supports the [fact find-
er’s] verdict of guilty.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Fisher, 342 Conn. 239,
249, 269 A.3d 104 (2022).
‘‘Our review is a fact based inquiry limited to determin-
ing whether the inferences drawn by the [fact finder]
are so unreasonable as to be unjustifiable. . . . [T]he
inquiry into whether the record evidence would support
a finding of guilt beyond a reasonable doubt does not
require a court to ask itself whether it believes that the
evidence . . . established guilt beyond a reasonable
doubt. . . . Instead, the relevant question is whether,
after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. . . .
‘‘We do not sit as a [seventh] juror who may cast a
vote against the verdict based upon our feeling that
some doubt of guilt is shown by the cold printed record.
We have not had the [fact finder’s] opportunity to observe
the conduct, demeanor, and attitude of the witnesses
and to gauge their credibility. . . . We are content to
rely on the [fact finder’s] good sense and judgment.’’
(Internal quotation marks omitted.) State v. Whitnum-
Baker, 169 Conn. App. 523, 525–26, 150 A.3d 1174 (2016),
cert. denied, 324 Conn. 923, 155 A.3d 753 (2017).
Section 53a-101 (a) provides in relevant part: ‘‘A per-
son is guilty of burglary in the first degree when (1)
such person enters or remains unlawfully in a building
with intent to commit a crime therein and is armed with
explosives or a deadly weapon or dangerous instrument
. . . .’’ The state bore the burden of proving the follow-
ing essential elements beyond a reasonable doubt: (1)
the defendant entered or remained unlawfully in a build-
ing, (2) he did so with the intent to commit a crime
therein, and (3) he was armed with a dangerous instru-
ment. See State v. Weaver, 85 Conn. App. 329, 341–42,
857 A.2d 376 (setting forth essential elements of offense),
cert. denied, 271 Conn. 942, 861 A.2d 517 (2004).
A
With respect to the first essential element of the
offense, that the defendant entered or remained unlaw-
fully in a building, the state’s theory of the case was
that the defendant’s entry into the home was unlawful
because A, who currently occupied the home, expressly
forbid him from entering the home. The prosecutor
argued before the jury that A was residing at the home
on August 28, 2016, that the defendant was not residing
at the home on that date, and that A communicated to
the defendant that he was not permitted to come into
the home because he was not sober. Thus, the prosecu-
tor argued to the jury that the defendant ‘‘unlawfully
entered the home where [A] was living . . . .’’ The pros-
ecutor acknowledged that there was testimony from J
that she had granted the defendant permission to enter
the home, which she owned. The prosecutor argued,
however, that the privilege to enter the home could
only be granted ‘‘by the person who has [a] possessory
interest in the house.’’ The prosecutor argued that A
possessed the home on August 28, 2016, and that J
was residing in Florida on that date, and, thus, the
permission that she may have granted the defendant
was ‘‘of no moment . . . .’’ Moreover, the prosecutor
argued that, for several reasons, J’s testimony that she
gave the defendant permission to enter the home was
not credible in light of other evidence presented at trial.
With respect to the ‘‘unlawful entry’’ essential ele-
ment of the offense, the court instructed the jury in
relevant part: ‘‘You must . . . determine whether the
defendant unlawfully entered or remained in [a] build-
ing. A person unlawfully enter[s] or remains in a build-
ing at the time [that it] is not open to the public and
the defendant is not licensed or privileged to do so. To
be licensed or privileged, the defendant must either
have consent from the person in possession of the build-
ing or have some right to be in that building. . . . You
must determine whether the defendant unlawfully
entered or remained in a building. A person unlawfully
enters or remains in a building when the building, at
that time, is not open to the public and the defendant
is not licensed or privileged to do so. When I say not
licensed or privileged to do so, I mean the defendant
must either have had consent from the person in posses-
sion of the building or have some other right to be in
the building.’’ In this appeal, the defendant does not
raise a claim of error related to this instruction.
During her testimony, J testified that, in August, 2016,
she was not residing in the West Haven home, which
she owned since 1988. She testified that, prior to and
including August 28, 2016, A and his daughter were
residing at the home but that the defendant had been
residing with a relative in Maryland.3 She testified, how-
ever, that she gave the defendant permission to reside
at the home, that it was ‘‘our home,’’ and that she had
not placed any restrictions on his right to enter the
home. J testified that the defendant has ‘‘always had a
key’’ to the home. When asked if the defendant had a
right to damage her property, J testified that she ‘‘can’t
answer that . . . .’’
The defendant, relying on the testimony of J, asserts
that, ‘‘to the extent that [he] needed an express license
or privilege to be in the home, the homeowner had
granted it to him, so the evidence was insufficient to
establish that he entered or unlawfully remained in the
house.’’ The defendant also argues that ‘‘[he] did not
‘remain unlawfully’ in the house as his license to be
there never was extinguished by the licensor, i.e., his
mother; nor did she place any limitations on the scope
of that license.’’ The defendant asserts that the state’s
theory of the case was not legally viable because it
rested on the flawed premise that ‘‘one can burglarize
one’s own residence . . . .’’ The defendant argues that
‘‘[w]hile [his] conduct at the home could have poten-
tially given rise to other criminal charges, it strains
the bounds of logic that [he] was charged with and
convicted of burglary of his own home.’’ The defendant
argues that he neither unlawfully entered nor unlawfully
remained in the home because the evidence reflects
that, after he entered the home, he did not interact with
anyone therein.
Although the defendant’s claim is couched in terms
of the sufficiency of the evidence, he purports to chal-
lenge the viability of the legal theory advanced by the
state. In other words, he questions whether his conduct
in entering or remaining in the home could be unlawful
in light of the evidence that the owner of the home, J,
granted him permission to reside there. We conclude
that the state’s theory was legally viable and that the
evidence sufficiently supported the jury’s guilty verdict
with respect to the burglary offense.
Because we must examine one of the essential ele-
ments of burglary in the third degree, related to unlaw-
ful entry and remaining in the home, we note that this
issue presents an issue of law that we review under the
plenary standard of review. As we stated previously,
§ 53a-101 (a) provides in relevant part: ‘‘A person is
guilty of burglary in the first degree when (1) such
person enters or remains unlawfully in a building with
intent to commit a crime therein and is armed with
explosives or a deadly weapon or dangerous instrument
. . . .’’ ‘‘A person ‘enters or remains unlawfully’ in or
upon premises when the premises, at the time of such
entry or remaining, are not open to the public and when
the actor is not otherwise licensed or privileged to do
so.’’ General Statutes § 53a-100 (b).
‘‘To enter unlawfully means to accomplish an entry
by unlawful means, while to remain unlawfully means
that the initial entering of the building . . . was lawful
but the presence therein became unlawful because the
right, privilege or license to remain was extinguished.
When either of these situations is established, the
threshold element of burglary is present.’’ State v.
Edwards, 10 Conn. App. 503, 511, 524 A.2d 648, cert.
denied, 204 Conn. 808, 528 A.2d 1155 (1987).
‘‘A license in real property is defined as a personal,
revocable, and unassignable privilege, conferred either
by writing or parol, to do one or more acts on land
without possessing any interest therein. . . . Gener-
ally, a license to enter premises is revocable at any time
by the licensor. . . . It is exercisable only within the
scope of the consent given. . . . The term, privilege,
is more general. It is a right or immunity granted as a
peculiar benefit, advantage, or favor; special enjoyment
of a good or exemption from an evil or burden; a pecu-
liar or personal advantage or right esp. when enjoyed
in derogation of common right; prerogative. . . . The
phrase, licensed or privileged, as used in [our burglary
statutes], is meant as a unitary phrase, rather than as
a reference to two separate concepts.’’ (Emphasis omit-
ted; internal quotation marks omitted.) State v. Marsan,
192 Conn. App. 49, 56, 216 A.3d 818, cert. denied, 333
Conn. 939, 218 A.3d 1049 (2019).
The state’s theory of the case was that, on August
28, 2016, the defendant lacked a license or privilege to
enter or remain in the home in which he was not a
resident and which was occupied by A and his daughter.
The prosecutor argued that, in the absence of any credi-
ble evidence that the defendant was licensed or privi-
leged to enter or remain in the home, his forcible entry
into the home and his remaining in the home were,
for purposes of § 53a-103 (a), unlawful. In light of the
foregoing authorities, we conclude that the state’s the-
ory of the case, which focused on a lack of a license
or privilege to enter and remain, was legally viable.
It cannot be disputed that the defendant’s arguments
concerning the license or privilege that was allegedly
granted to him by the undisputed owner of the home,
J, rest entirely on the credibility of J’s testimony that
she had granted the defendant license or privilege with
respect to entering the home. The legal flaw in the
defendant’s argument is that he treats the challenged
testimony of J as if it constituted an unassailable fact.
As we have stated previously in this opinion, this court
evaluates sufficiency of the evidence claims by viewing
the evidence in the light most favorable to the prosecu-
tion. See State v. Fisher, supra, 342 Conn. 249. Accord-
ingly, we presume in this case that the jury, the sole
arbiter of the credibility of the witnesses, disbelieved
the testimony of J to the extent that she testified that
she gave the defendant a license or privilege to enter
or to remain in the home. We do so mindful that the state
presented ample fodder for the jury’s consideration that
supported a determination that J, in an attempt to assist
the defendant, testified untruthfully in this regard. J’s
familial relationship to the defendant reasonably could
have given the jury reason to consider with skepticism
her testimony. We note that, contrary to J’s testimony
that the defendant had a key to the residence, the state
presented evidence that the defendant, armed with a
baseball bat, broke down a door in order to gain entry
into the home on August 28, 2016. Moreover, the state
presented evidence that, while he was awaiting trial,
the defendant wrote letters to J in which he urged her
not to cooperate with the prosecution and to create
an untruthful narrative that would assist his defense,
including suggesting that she inform ‘‘the judge’’ that
he ‘‘[had] permission to be there . . . .’’
The jury, having discredited the testimony of J, rea-
sonably could have found that there was no other evi-
dence that the defendant had a license or a privilege
to enter the home or to remain in the home. Certainly,
the testimony of A, which we presume the jury found
persuasive, reflects that, as of August 28, 2016, the
defendant was not a resident of the home, A and his
daughter resided at and were the occupants of the
home, and A had communicated to the defendant that
he was not permitted to enter the home. The evidence
also supported a finding that the defendant’s conduct
on his arrival at the home was that of someone who
lacked a license or a privilege to enter. Specifically, the
defendant did not use a key to enter the home, he did
not wait for an occupant of the home to let him in,
and he did not contact J, who presumably could have
spoken with A to resolve any dispute concerning the
defendant’s arrival, for her assistance to gain entry to
the home. Rather, the evidence reflects that the defen-
dant forcibly entered the home and caused substantial
damage to the property.
In light of the foregoing, we reject the defendant’s
claim that the jury could not reasonably have concluded
that his entry of or remaining in the home was unlawful.
B
With respect to the third element of the offense, that
the defendant was armed with a dangerous instrument,
the prosecutor argued that the evidence demonstrated
that the defendant used a bat inside of the home after
his illegal entry therein. With respect to this essential
element, the prosecutor argued that the defendant used
a wooden baseball bat during the commission of the
offense. The defendant argues that although the evi-
dence demonstrated that he used a baseball bat outside
of the home to damage A’s automobile that was parked
in the driveway, the state did not present any evidence
to support a finding that he was armed with a baseball
bat while he was inside of the home.
General Statutes § 53a-3 (7) defines ‘‘[d]angerous
instrument’’ in relevant part as ‘‘any instrument, article
or substance which, under the circumstances in which
it is used or attempted or threatened to be used, is
capable of causing death or serious physical injury
. . . .’’ Although the defendant disputes that he used a
wooden baseball bat inside of the home on August 28,
2016, he does not dispute that a wooden baseball bat
could constitute a dangerous instrument.
We now turn to the evidence. A testified that when
the defendant arrived at the home, he heard a bang on
the front door and then, shortly thereafter, he heard
the sound of glass breaking at the back door. A testified
that, as he fled from the home by means of the front
door, he saw the defendant entering the home. T, who
fled the home with A as the defendant was entering
through the back door, testified that while she was
exiting through the front door, she heard ‘‘a bat or a
kick’’ and ‘‘things smashing . . . .’’ There was photo-
graphic evidence presented that the glass on the rear
door was broken, and A testified that the glass on the
rear door was not broken prior to the defendant’s
arrival. A and T testified that, after they exited the home,
they remained nearby while attempting to summon
assistance. The state presented photographic evidence
of damage inside of the home, including a damaged
table with a ceramic or marble top in the kitchen, pieces
of which were cracked and strewn about the kitchen
floor, as well as a damaged television set in the living
room. T testified that neither the table nor the television
set were damaged prior to the defendant’s entry into
the home. As he was being questioned about the damage
in the home, A, without objection, identified the televi-
sion set in the living room as ‘‘the TV that was hit with
a baseball bat.’’
T testified about what she observed after she exited
the home. In relevant part, she testified that as she and
A were running from the home, she stopped and turned
around. She saw the defendant near A’s automobile,
‘‘[h]itting the car with a bat.’’ Photographic evidence
presented by the state depicted damage to multiple
windows on the automobile. A testified that this damage
did not exist prior to that time.4
As the defendant acknowledges, the state did not
need to prove that the defendant was armed with a
dangerous instrument on his entry into the home. It
was sufficient for the state to prove that, at some point
while he remained unlawfully in the home, the defen-
dant armed himself with a dangerous instrument. See,
e.g., State v. Belton, 190 Conn. 496, 505, 461 A.2d 973(1983). The gist of the defendant’s argument is that the
state did not satisfy its burden of proof with respect to
his being armed with a baseball bat inside of the home
because there was no direct evidence of this fact, and
there were no ‘‘ ‘proven facts’ ’’ on which the jury rea-
sonably could have inferred this fact.
‘‘It is axiomatic that the burden in criminal cases is
on the prosecution to prove each essential element of
the alleged crime beyond a reasonable doubt and that
there is no burden on the defendant to prove his inno-
cence. . . . In finding guilt beyond a reasonable doubt,
a jury may not resort to speculation and conjecture but
it is clearly within the province of the jury to draw
reasonable, logical inferences from the facts proven.’’
(Citations omitted.) State v. Morrill, 193 Conn. 602, 608,
478 A.2d 994 (1984). We emphasize that ‘‘the probative
force of the evidence is not diminished because it con-
sists, in whole or in part, of circumstantial evidence
rather than direct evidence. . . . It has been repeatedly
stated that there is no legal distinction between direct
and circumstantial evidence so far as probative force
is concerned. . . . It is not one fact, but the cumulative
impact of a multitude of facts which establishes guilt
in a case involving substantial circumstantial evidence.’’
(Internal quotation marks omitted.) State v. Sanchez,
50 Conn. App. 145, 149, 718 A.2d 52, cert. denied, 247
Conn. 922, 722 A.2d 811 (1998).
‘‘The law regarding inferences . . . is clear. Due pro-
cess does not . . . require that each subordinate con-
clusion established by or inferred from evidence, or
even from other inferences, be proved beyond a reason-
able doubt. We have regularly held that a jury’s factual
inferences that support a guilty verdict need only be
reasonable. . . . Equally well established is our hold-
ing that a jury may draw factual inferences on the basis
of already inferred facts. . . .
‘‘It is axiomatic that the state’s burden of proof
beyond a reasonable doubt applies to each and every
element comprising the offense charged. But this bur-
den of proof does not operate upon each of the many
subsidiary, evidentiary, incidental or subordinate facts
. . . upon which the prosecution may collectively rely
to establish a particular element of the crime beyond
a reasonable doubt. . . . Where the prosecution must
rely upon circumstantial evidence, either in part or in
whole, each link in the chain of circumstantial evidence
need not be established beyond a reasonable doubt.’’
(Citation omitted; internal quotation marks omitted.)
State v. Hersey, 78 Conn. App. 141, 167, 826 A.2d 1183,
cert. denied, 266 Conn. 903, 832 A.2d 65 (2003).
In the present case, there was direct evidence, by
means of the testimony of T, of the defendant’s violent
use of a baseball bat in A’s driveway immediately after
he had illegally entered and remained in the A’s home.
This evidence made it more likely that the defendant
possessed the baseball bat while inside of the home. It
also supported a finding that the defendant, who was
the only person inside of the home after A and T fled,
used the baseball bat to cause the damage that was
discovered inside of the home. Moreover, the photo-
graphic and testimonial evidence concerning the nature
and extent of the damage to items inside of the home
that were undamaged prior to the defendant’s unlawful
entry into the home, including damage to the kitchen
table and the television set, was entirely consistent with
damage that would have been caused by a baseball bat.
On the basis of the evidence as a whole and the rational
inferences to be drawn therefrom, the jury could have
reasonably concluded beyond a reasonable doubt that
the defendant either entered the home with a baseball
bat or that he armed himself with a baseball bat while
inside of the home.
II
Next, the defendant claims that the court’s instruc-
tion concerning the burglary offense constituted plain
error and that the conviction for burglary should be
overturned and the case remanded for a new trial with
respect to that offense. We disagree.
We begin our analysis of this claim by setting forth
the relevant procedural history. The court distributed
to the parties a written draft of its jury instructions and,
after affording the parties a meaningful opportunity
to review the instructions, held a charging conference
during which defense counsel did not raise any objec-
tions to the court’s burglary charge. Defense counsel
submitted a written request to charge but it did not
include a burglary instruction.
During closing argument, the prosecutor argued to
the jury that, with respect to the second essential ele-
ment of the offense, that the defendant intended to
commit a crime in the home; see General Statutes § 53a-
101 (a) (1); the evidence supported a finding that the
defendant acted with the requisite mental state required
for the commission of the crime. The prosecutor sug-
gested that the crime that the defendant intended to
commit was criminal mischief.5 The state charged the
defendant with criminal mischief in the first degree in
violation of § 53a-115 (a) (1), a felony, and in connection
with this offense, it relied on evidence that he caused
damage to tangible personal property inside of the
home. The jury ultimately found the defendant guilty
of this offense as well. In her arguments, the prosecutor
also focused on the evidence of the defendant’s com-
ments concerning A, made before and after he arrived
at the home. The prosecutor argued, ‘‘[i]ntent to commit
a crime, the criminal mischief, crime of violence and
assault, a threatening, an intent to commit a crime. The
threatening threatens to commit a crime of violence
with an intent to terrorize another. . . . I ask you to
remember the words that were spoken by the defendant
and the substance of the text messages, how could that
be anything other than to terrorize . . . .’’
Later, the court instructed the jury concerning the
burglary offense: ‘‘The statute defining this offense
reads in pertinent part as follow[s]: A person is guilty
of burglary in the first degree when he unlawfully enters
or remains in a building with the intent to commit a
crime therein and he is armed with a dangerous instru-
ment.’’ After discussing the first essential element of
the offense, that the defendant unlawfully entered or
remained in a building, the court addressed the second
element of the offense: ‘‘The second element is that
the defendant unlawfully entered or remained in the
building with the intent to commit a crime in that build-
ing. A person acts intentionally with respect to a result
when his conscious objective is to cause such result.
Even if the defendant never actually committed a crime
in the building, if the evidence establishes beyond a
reasonable doubt that there was such an intention, this
is sufficient to prove the defendant unlawfully entered
or remained in the building with the intent to commit
a crime therein. Furthermore, the necessary intent to
commit a crime must be an intent to commit either a
felony or a misdemeanor in addition to the unlawful
entering or remaining in the building.’’ The court then
addressed the third essential element of the offense,
that the defendant be armed with a dangerous instru-
ment in the building. Following the court’s charge,
defense counsel did not take an exception related to
the burglary instruction.
The defendant, acknowledging that he failed to pre-
serve the present claim of instructional error at trial,
argues that he is entitled to relief under the plain error
doctrine. ‘‘It is well known that the plain error doctrine,
codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts to rectify errors com-
mitted at trial that, although unpreserved [and noncon-
stitutional in nature], are of such monumental propor-
tion that they threaten to erode our system of justice and
work a serious and manifest injustice on the aggrieved
party. [T]he plain error doctrine . . . is not . . . a rule
of reviewability. It is a rule of reversibility. That is, it
is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment
. . . for reasons of policy. . . . In addition, the plain
error doctrine is reserved for truly extraordinary situa-
tions [in which] the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . Plain error
is a doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record. . . .
‘‘Although a complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining the patent nature of the error,
the reviewing court must examine that error for the
grievousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice.’’ (Citation omitted; internal
quotation marks omitted.) State v. Jones, 210 Conn.
App. 249, 271–72, 269 A.3d 870 (2022).
The gist of the defendant’s argument is that the court
improperly omitted a necessary portion of the instruc-
tion because, although it instructed the jury that it
needed to find that the defendant acted with the specific
intent to commit either a felony or a misdemeanor in
the home, it failed to identify by name one or more
specific felony or misdemeanor offenses. The defendant
argues that the court deviated from the model criminal
jury instruction6 and that ‘‘[t]he court’s failure to include
this portion of the charge impermissibly permitted the
jury to craft its own understanding of what constitutes
a felony or misdemeanor, resulting in patent and readily
discernible error.’’ The defendant asserts that, in light
of the evidence before the jury, ‘‘the jury could have
believed any host of morally offensive behaviors, such
as angrily attempting to confront his brother, to consti-
tute a ‘crime,’ thereby using its own, incorrect interpre-
tation of criminal conduct as support for the intent
element.’’
Because the present claim of plain error arises in the
context of a claim of instructional error, we are mindful
that, ‘‘[a]lthough, on rare occasions, [our Supreme
Court has] granted plain error review for claims of
improper jury instructions . . . [it has] done so only
when the instruction in question either failed to include
language from a mandatory charging statute, or when
the instruction was so patently improper that to allow it
to stand uncorrected would work a manifest injustice.’’
(Citations omitted.) State v. Kelly, 256 Conn. 23, 58 n.18,
770 A.2d 908 (2001).
For several reasons, we disagree that the alleged
instructional error rises to the level of plain error. First,
it cannot be disputed that the alleged error does not
involve the court’s failure to include language from a
mandatory charging statute.
Second, we are not persuaded that allowing the alleged
error in the instruction to stand uncorrected would
work a manifest injustice. In State v. Zayas, 195 Conn.
611, 612, 616–18, 490 A.2d 68 (1985), our Supreme Court
rejected a similar claim, albeit one of constitutional
magnitude, which was raised by a defendant who was
convicted of attempted burglary in the second degree
in violation of General Statutes (Rev. to 1979) § 53a-
102 and § 53a-49. In Zayas, ‘‘[t]he [trial] court charged
the jury that in order to convict the defendant they
must find that he intended to commit a crime inside
the dwelling. The court did not instruct the jury on any
particular crime regarding this element of attempted
burglary. The defendant argue[d] that this lack of speci-
ficity in the jury instructions deprived him of due pro-
cess of law because it allowed the jury to find him
guilty without necessarily finding all of the elements
of attempted burglary to have been proved beyond a
reasonable doubt.’’ Id., 616. Our Supreme Court noted
that it did not approve of the court’s instruction and
that ‘‘[t]he better practice would have been to instruct
the jury on the statutory names and definitions of spe-
cific crimes for which there was sufficient evidence of
an intent to commit.’’ (Internal quotation marks omit-
ted.) Id., 618. Nonetheless, the court rejected the defen-
dant’s constitutional challenge and concluded that it
was not possible that the jury was misled because (1)
the trial court instructed the jury that it must find that
the defendant acted with the intent to commit a felony
or a misdemeanor offense in the home that he entered
unlawfully, and (2) the fact pattern, presented by the
evidence, was such that it was not likely that the jury
would have viewed noncriminal conduct to constitute
a felony or a misdemeanor offense. Id., 617–18. The
court stated: ‘‘If the fact pattern, presented by the evi-
dence, was such that it was capable of varying interpre-
tations, some criminal but others noncriminal though
perhaps morally offensive, we would find persuasive
the defendant’s assertion that, by failing to specify the
crime or crimes which the evidence suggested, the court
impermissibly allowed the jury to define criminal con-
duct. . . . But on the record before us we cannot con-
clude that, taken as a whole and specifically related to
the facts of this case, the trial court’s instructions failed
to guide the jury to a clear understanding of the
offense.’’ (Citations omitted.) Id., 618.
In the present case, the defendant’s attempt to dem-
onstrate that the alleged error resulted in a manifest
injustice is undermined by the fact pattern that was
reflected in the evidence and expressly relied on by
the prosecutor during oral argument. This fact pattern
points to the defendant’s intent to commit three differ-
ent crimes, all of which would rise to the level required
by the burglary statute. The defendant was charged
with and convicted of criminal mischief based on his
destructive conduct inside of the home. As the prosecu-
tor stated during oral argument, there was evidence
that the defendant had made threatening statements
to A prior to his arrival at the home and after the police
arrived at the scene. The jury reasonably could have
viewed the defendant’s statements, made in the pres-
ence of the police, in which he expressed an intent to
‘‘kill’’ A, combined with the evidence of the defendant’s
violent entry into the home and his destructive use of
a baseball bat while he was inside of the home, as
reflecting an intent to assault A. Against this factual
backdrop, we do not conclude that, taken as a whole
and specifically related to the facts of this case, the
court’s instructions did not guide the jury to a clear
understanding of the offense.
Third, in light of the foregoing, the defendant has not
demonstrated that the claimed error is of such monu-
mental proportion that it threatens to erode our system
of justice and result in a serious and manifest injustice.
Although we do not approve of the instruction provided
and note that the better practice would have been for
the trial court to have instructed the jury with respect
to the intent to commit one or more named felony or
misdemeanor offenses, the claimed error was unlikely
to have guided the jury to an incorrect verdict in light
of the evidence and arguments advanced in the present
case. The claimed error is not patently unjust nor does
it threaten to erode our system of justice. In short, the
defendant has raised an unpreserved instructional error
claim that does not give rise to concerns of manifest
injustice in this case, let alone concerns that affect our
system of justice generally. Thus, the defendant’s claim
of plain error is not persuasive.
The judgments are affirmed.
In this opinion the other judges concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
1
The trial court imposed a total effective sentence of fourteen years of
imprisonment, execution suspended after nine years, followed by five years
of probation.
2
Although it is not a prerequisite to our review of this claim, we note
that, at the conclusion of the state’s case-in-chief, defense counsel moved
for a judgment of acquittal, asserting, in general terms, that the state ‘‘failed
to make out a prima facie case, warranting submission of the case to the
jury.’’ The court denied the motion. After defense counsel rested his case,
he renewed the motion for a judgment of acquittal, which the court again
denied.
3
A testified that he was residing at the home with J’s permission.
4
The state also presented evidence that the police officers who responded
to the scene located shards of a wooden baseball bat in various places
outside of the home, including near the rear door.
5
General Statutes § 53a-115 (a) provides in relevant part: ‘‘A person is
guilty of criminal mischief in the first degree when: (1) With intent to cause
damage to tangible property of another and having no reasonable ground
to believe that such person has a right to do so, such person damages
tangible property of another in an amount exceeding one thousand five
hundred dollars . . . .’’
6
See Connecticut Criminal Jury Instructions 9.2-1, available at https://
jud.ct.gov/JI/Criminal/Criminal.pdf (last visited April 18, 2022); see also State
v. Gomes, 337 Conn. 826, 853 n.19, 256 A.3d 131 (2021) (cautioning that
model jury instructions are to be used as ‘‘ ‘guide’ ’’ and are for instructive
purposes).