Burke v. Mesniaeff ( 2019 )

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ELIZABETH BURKE v. GREGORY MESNIAEFF
(SC 20062)
Robinson, C. J., and Palmer, D’Auria, Mullins,
Kahn, Ecker and Vertefeuille, Js.
Syllabus
The plaintiff sought to recover damages from the defendant, her former
husband, for, inter alia, intentional assault and battery in connection
with an incident that occurred during a tour of the defendant’s historic
house. The defendant had purchased the house while the parties were
still married and recorded the deed in his name only. Although the house
was not the parties’ primary marital residence, the plaintiff had spent
time there periodically and stored possessions there. At the time of the
incident, the parties were experiencing marital difficulties, and, after
the plaintiff learned that the defendant would be hosting a tour of the
house, she drove there to confront him. The tour was in progress when
the plaintiff arrived, and, after aggressively entering the house, she
became enraged and began screaming. The defendant and his guests
all were afraid of the plaintiff’s conduct and believed that it posed a
risk to their safety. The defendant asked the plaintiff to leave, and, when
she refused, he took her by the arm and forcibly escorted her out of
the house and down the driveway. The plaintiff resisted the defendant’s
escort, continued to shout at the defendant, and repeatedly attempted
to break loose of his hold in order to return to the house, but she was
unable to do so. The defendant raised a number of special defenses,
including justification and defense of others. At a charging conference,
the defendant clarified that his justification defense was essentially
based on a defense of premises defense and argued that his use of force
was justified because the plaintiff was trespassing on his property at
the time of the incident. In response, the plaintiff argued that trespass
was inapplicable because a spouse cannot, as a matter of law, commit
a criminal trespass on marital property in the absence of a court order
or pending divorce proceedings. Over the plaintiff’s objection, however,
the trial court included in its jury instruction on justification a charge
on the law of criminal trespass. The jury subsequently returned a verdict
for the defendant, finding that, although the defendant’s conduct consti-
tuted an intentional assault and battery, the plaintiff’s recovery was
barred by the special defenses of justification and defense of others.
The trial court rendered judgment for the defendant in accordance with
the verdict, and the plaintiff appealed to the Appellate Court, which
affirmed the trial court’s judgment. On the granting of certification,
the plaintiff appealed to this court. Held that, although the trial court
improperly charged the jury with respect to the defendant’s special
defense of justification by including a charge on the law of criminal
trespass, that instructional impropriety was harmless because the evi-
dence was sufficient to support the jury’s independent finding with
respect to the special defense of defense of others:
1. The trial court improperly charged the jury on the law of criminal trespass
in its jury instruction on the defendant’s special defense of justification:
in determining whether a spouse has committed the crime of trespass,
the focus of the inquiry is on whether that spouse had a right or privilege
to enter or remain on the premises and not solely on whether the spouse
has an ownership interest in the property or whether the property is
marital in nature, and a spouse requesting a jury charge on criminal
trespass must demonstrate that both parties understood that the tres-
passing spouse had relinquished his or her possessory interest in the
property; in the present case, although the defendant had purchased
the house and recorded the deed in his name only, the record demon-
strated that the plaintiff had a possessory interest in the property, as
she had a key to the house, went back and forth between the house
and the parties’ primary marital residence, and stored her possessions
at the house, her driver’s license listed the address of the house as her
residential address, the parties were not estranged, separated or in the
process of divorcing at the time of the incident, and the defendant’s
single request that the plaintiff leave the house, made during a marital
dispute, was insufficient to support a criminal trespass instruction.
2. The jury was misled by the trial court’s improper instruction on criminal
trespass and defense of premises in arriving at its finding on the defen-
dant’s justification defense; the parties and the trial court treated that
defense as the functional equivalent of a defense of premises defense,
and the jury, by finding in favor of the defendant on his defense of
justification, necessarily found that the defendant’s use of force was
justified by the plaintiff’s commission or attempted commission of crimi-
nal trespass.
3. The trial court’s improper instruction on criminal trespass and defense
of premises did not affect the jury’s independent finding with respect
to the defense of others defense, and, therefore, the instructional error
was harmless; although defense of others is a type of justification
defense, the defendant pleaded and tried his case in a manner that
would have led the jury to believe that his defense of others defense
was separate and distinct from his justification defense, the trial court
likewise treated those defenses as separate and independent in both
the jury instructions and the verdict form and properly instructed the
jury on the elements of defense of others, that instruction did not include
any reference to criminal trespass or defense of premises, and the jury’s
finding with respect to the defense of others defense did not depend
implicitly or explicitly on whether the jury had found the plaintiff to be
a criminal trespasser and indicated that the jury properly distinguished
among the various defenses.
4. The evidence was sufficient to support the jury’s finding that the defendant
was acting in defense of others when he forcibly removed the plaintiff
from the house, as the jury reasonably could have found, on the basis
of the totality of the evidence and the reasonable inferences drawn
therefrom, that the defendant subjectively believed that the plaintiff
posed an imminent risk of physical harm to his guests and that the
defendant’s use of force under the circumstances was objectively reason-
able: the record demonstrated that, when the plaintiff arrived at the
house, she was enraged, hysterical, and screaming at the defendant and
the guests, her conduct was aggressive and out of control, and, on the
basis of body language that the defendant had previously observed the
plaintiff exhibit during prior incidents, the defendant was terrified that
the plaintiff would harm the guests; moreover, the jury reasonably could
have inferred, on the basis of her yelling during the incident, that the
plaintiff believed that the defendant was having an extramarital affair
with one of the guests, and two of the guests testified that they were
afraid of the plaintiff and felt physically threatened by her out of con-
trol behavior.
(Two justices concurring separately in one opinion)
Argued December 19, 2018—officially released December 17, 2019
Procedural History
Action to recover damages for, inter alia, intentional
assault and battery, and for other relief, brought to the
Superior Court in the judicial district of Litchfield and
transferred to the judicial district of Stamford-Norwalk,
where the case was tried to the jury before Lee, J.;
verdict and judgment for the defendant, from which
the plaintiff appealed to the Appellate Court, Lavine,
Keller and Bishop, Js., which affirmed the trial court’s
judgment, and the plaintiff, on the granting of certifica-
tion, appealed to this court. Affirmed.
Gregory Jacob, pro hac vice, with whom were
Mishima Alam, pro hac vice, and Anne C. Dranginis,
for the appellant (plaintiff).
Charles S. Harris, with whom was Stephanie C.
Laska, for the appellee (defendant).
Joseph D. Jean filed a brief for the Connecticut Coali-
tion Against Domestic Violence as amicus curiae.
Opinion
ECKER, J. The plaintiff, Elizabeth Burke, appeals
from the Appellate Court’s affirmance of the trial court’s
judgment rendered in favor of the defendant, Gregory
Mesniaeff, after a jury returned a verdict finding that,
although the defendant had perpetrated an intentional
assault and battery on the plaintiff, his use of physical
force was justified because, first, the plaintiff was tres-
passing at the time of the incident, and, second, he was
acting in the defense of others. The plaintiff claims on
appeal that (1) the jury should not have been instructed
on the special defense of criminal trespass because the
parties were married at the time of the assault and
battery, and a spouse cannot, as a matter of law, tres-
pass on marital property, and (2) the evidence was
insufficient to support the jury’s finding that the defen-
dant was acting in defense of others. We conclude that
the trial court improperly instructed the jury on criminal
trespass and defense of premises as part of the jury
charge on justification but that the instructional impro-
priety was harmless because the evidence was suffi-
cient to support the jury’s independent finding with
respect to the special defense of defense of others. We
therefore affirm the judgment of the Appellate Court.
I
The evidence regarding virtually every material
aspect of the underlying events was the subject of vigor-
ous dispute at trial. Construing the evidence in the light
most favorable to sustaining the verdict, as we must;
see, e.g., Carrol v. Allstate Ins. Co., 262 Conn. 433, 442,
815 A.2d 119 (2003); the jury reasonably could have
found the following facts relevant to this appeal. The
plaintiff and the defendant were married in 1989. In
1998, the defendant, who is interested in the historic
preservation of old homes, purchased a historic house
in Sharon (Sharon house), which he titled solely in his
name. Although the Sharon house was not the parties’
primary marital residence, they both had Connecticut
drivers’ licenses listing the Sharon house as their resi-
dential address. The defendant spent more time at the
Sharon house than the plaintiff, but the plaintiff had
keys to the home, spent two weeks there in 2002 with
the defendant, stayed there occasionally at other times,
and stored personal possessions on the premises.
The Sharon house is subject to a historic preservation
easement, which requires the home occasionally to be
opened to the public for viewing. To fulfill this require-
ment, the defendant invited members of The Questers, a
historical preservation organization, to tour the Sharon
house on December 5, 2009, between the hours of 2
and 4:30 p.m. The defendant did not invite the plaintiff
to attend the tour because she was not a member of
The Questers, they were not ‘‘on the best of terms at
that time,’’ and he was ‘‘afraid that there could be some
problems if she was there.’’
On the morning of December 5, 2009, the plaintiff
went online to find out the date and time of the annual
Christmas tree lighting ceremony in Sharon, only to
discover that a tour of the Sharon house was scheduled
for that afternoon. The plaintiff was ‘‘shocked and puz-
zled’’ because the defendant had not mentioned the
tour, and she believed that he was at work that day.
She called the defendant at his office but was unable
to reach him. The plaintiff decided to go to the Sharon
house and talk to the defendant because she was con-
vinced that he would deny the existence of the historic
house tour, and she ‘‘couldn’t take the lying anymore
. . . .’’
Due to the snowy weather that afternoon, only three
members of The Questers other than the defendant
were present for the tour: Anne Teasdale, Suzanne
Chase Osborne, and Lauren Silberman. When the plain-
tiff arrived at the Sharon house, the defendant was in
the kitchen, Osborne was in the television room, and
Teasdale and Silberman were in the living room. Rather
than park her car in the driveway of the Sharon house,
the plaintiff parked at an adjacent guest cottage and
entered the house through the back door that leads into
the television room. Osborne walked midway across
the television room to greet the plaintiff, whom she
believed was another guest arriving for the tour. The
defendant entered the television room from the kitchen
to greet the new arrival but, upon realizing it was the
plaintiff, immediately instructed Osborne to go into the
living room.
When the plaintiff opened the door and saw the defen-
dant and Osborne alone together in the television room,
she flew into a rage, screaming, ‘‘Who is that woman?’’
and ‘‘What are you doing in my house?’’ Osborne testi-
fied1 that she was afraid of the plaintiff, who ‘‘came in
like a raging bull, screaming,’’ and who ‘‘was aggres-
sively attempting to enter the house.’’ The defendant
testified that the plaintiff was ‘‘angry,’’ ‘‘enraged’’ and
‘‘shrieking . . . hysterically high.’’ The defendant
stated: ‘‘There was body language that I recognized from
previous such incidents, where I was terrified. . . . I
was scared. I was scared of her demeanor and what
she was saying and what I thought she could do, given
the fact that we have been married for twenty years
and, you know . . . I was afraid, but I was also embar-
rassed in front of the guests [who] were in the house,
that this is my wife.’’ Although the plaintiff did not
verbally threaten to harm Osborne, the defendant
believed that her out of control behavior posed a risk
of harm to his guests.
The defendant approached the plaintiff and asked
her to leave. He then took hold of the plaintiff’s upper
arm and ‘‘escorted’’ her out the door and down the
driveway toward the Sharon town green, where he
believed her car was parked. The plaintiff kept turning
around, trying to return to the house, but the defendant
would not permit her to do so. The defendant testified
that the plaintiff was shrieking, ‘‘over and over, ‘who’s
that woman in my house, what’s going on here, what are
you doing?’ ’’ The plaintiff continued shouting, ‘‘[W]ho’s
that woman? What’s going on between the two of you?’’2
The defendant ‘‘felt at that moment [that the plaintiff]
was trying to run back into the house and confront the
guests . . . and [he] was terrified of that.’’
Osborne and Teasdale watched through the windows
as the defendant escorted the plaintiff to the end of the
driveway. Teasdale testified that she was ‘‘very con-
cerned for everybody, so I watched out of the side
window and I saw . . . [the plaintiff] coming by, and
she was screaming, and she was really mad. She was
just out of control. Mad screaming . . . .’’ Teasdale
continued: ‘‘I could hear the screaming and screaming,
that same ‘Who is that woman?’ . . . . When I saw her
in the side window, her face, she was screaming; she
was shaking, [en]raged, screaming.’’ Teasdale testified
that she ‘‘felt in danger—[like] my life was in danger
with what was going on by [the plaintiff’s] showing up
and screaming like that,’’ and ‘‘I didn’t know if [the
plaintiff] had a gun . . . . I didn’t know what was going
on out there, and I was really worried about our safety,
my safety, everyone’s safety.’’
Although the plaintiff testified that the defendant
‘‘dragged’’ her down the driveway by her arm, head,
and neck and repeatedly ‘‘flung’’ her to the ground and
yanked her back up again, Osborne, Teasdale, and the
defendant testified to a very different version of events.
Teasdale explained that it ‘‘looked like [the plaintiff and
the defendant] were walking as a couple. At that point,
it looked like they were—he had his arm on her—
around her elbow, like, you know, like a gentle—like a
man would walk with a woman . . . .’’ Teasdale further
explained that ‘‘it was snowy, and . . . it looked like
[the plaintiff] was slipping, but [the defendant] . . .
kept her steady . . . .’’ Osborne testified that the defen-
dant escorted the plaintiff away from the house by
putting ‘‘his arm around her’’ and that the level of force
used by the defendant was ‘‘appropriate for the occa-
sion’’ because it was ‘‘[e]nough to keep her from getting
back into the house and to move her down the driveway
. . . .’’ The defendant admitted that he held the plaintiff
by the arm and forcibly led her down the driveway
away from the house, even though she was actively
resisting him, slipping in the snow, and trying to return
to the house, but explained that he did so to protect
his guests from harm.
After the parties reached the sidewalk, the plaintiff
began waving her arms and yelling, ‘‘Help, help! Call
the police!’’ Pierce Kearney, who was driving to the
Christmas tree lighting ceremony with his family,
observed the parties on the sidewalk. At first, Kearney
believed that they were ‘‘clowning around,’’ but, when
he slowed down the car and rolled down his windows,
he could hear the plaintiff ‘‘screaming that she was
being assaulted by her husband and could you please
call the police.’’ Kearney pulled over, exited the car, and
ran across the street, where he observed the defendant
holding the plaintiff in ‘‘a very aggressive fashion.’’ The
defendant told Kearney, ‘‘It’s okay, she’s my wife.’’ Kear-
ney’s wife called the police while he interposed himself
between the parties and said, ‘‘No, this is over.’’ The
defendant then turned around and returned to the
Sharon house.
Upon reentering the Sharon house, the defendant
apologized to his frightened guests and told them that
he was going to drive them to the train station for their
safety. The defendant drove Teasdale, Osborne, and
Silberman to the train station and then returned to
the Sharon house, where the police were present. The
defendant cooperated with the police investigation,
calmly informing the officers that he had escorted the
plaintiff from the property because she was not wel-
come at the Sharon house and that ‘‘he is the sole owner
of the house and his wife’s name is not on the deed.’’
Sometime after the December 5, 2009 incident, the
parties divorced, and the plaintiff filed this action, seek-
ing compensatory damages from the defendant for per-
sonal injuries she sustained during the assault and bat-
tery. The complaint contained six counts: (1) intentional
assault and battery; (2) reckless assault and battery;
(3) negligent assault and battery; (4) intentional inflic-
tion of emotional distress; (5) negligent infliction of
emotional distress; and (6) reckless infliction of emo-
tional distress. The defendant raised, among others, the
following special defenses: (1) the plaintiff’s injuries
were caused by her own contributory negligence; (2)
the plaintiff’s action is barred by her own wrongful
conduct, including her trespassing on the premises of
the Sharon house, exhibiting disorderly conduct, creat-
ing a public disturbance, and/or assaulting and battering
the defendant; (3) his actions were in self-defense; (4)
his actions were in defense of others; and (5) his actions
were justified because ‘‘the plaintiff was trespassing on
[his] property.’’
After an eight day jury trial, the trial court held a
charge conference, at which it asked the defendant to
clarify the distinction between the special defenses of
‘‘justification’’ and ‘‘wrongful conduct.’’ The defendant
explained that ‘‘the case law is, if there is a criminal
trespass, you are justified in removing the person. That’s
from the criminal statutes. So that’s how that ties into
the trespass part of it. And the wrongful conduct, it
could be trespass. It could be [the plaintiff’s] trying to
hit [the defendant]. It could be all these other things.
But for justification, if she was there after he ordered
her to leave, he has a physical right to remove her using
reasonable force.’’ The trial court asked the defendant
whether his justification defense ‘‘is premised largely
on trespass.’’ The defendant answered that he was ‘‘jus-
tified in the use of force’’ against the plaintiff because
‘‘she became a criminal trespasser after [he] told her
to leave and she refused.’’
As relevant to this appeal, the plaintiff objected to a
jury instruction on criminal trespass on the ground that
a wife cannot ‘‘commit a criminal trespass on marital
property when there [are] no divorce proceedings’’
pending or court orders regarding the property. The
defendant disagreed, arguing that the Sharon house was
not marital property because it ‘‘was bought in his name
[and] titled in his name.’’ The trial court noted that
‘‘there is evidence on both sides’’ and, therefore, consid-
ered an instruction on criminal trespass to be appro-
priate.
The trial court instructed the jury that the defendant
had raised ‘‘five special defenses . . . . They are: (1)
[t]he contributory negligence of [the plaintiff]; (2) [j]us-
tification; (3) self-defense; (4) defense of others; [and]
(5) [w]rongful conduct of [the plaintiff].’’ With respect
to the second special defense, which the trial court
referred to as ‘‘justification,’’3 the trial court instructed
the jury as follows: ‘‘Justification is a general defense
to the use of physical force. The use of physical force
upon another person that results in actual injury, while
usually a criminal assault, is not criminal if it is permit-
ted or justified by a provision of law or statute.
‘‘Therefore, when one who is accused of committing
an assault claims that he or she acted under a legal
justification, the jury must examine the circumstances
and discover whether the act was truly justified. The
court’s function in instructing the jury is to tell the jury
the circumstances in which the use of physical force
against another person is legally justified.
‘‘Justification defenses focus on the defendant’s rea-
sonable beliefs as to circumstances and the necessity
of using force. The jury must view the situation from the
perspective of the defendant. However, the defendant’s
belief ultimately must be found to be reasonable. For
example, a person in possession or control of premises
is justified in using reasonable physical force upon
another person when and to the extent that he reason-
ably believes such to be necessary to prevent or termi-
nate the commission or attempted commission of a
criminal trespass by such other person in or upon such
premises. A person commits criminal trespass when,
knowing that such person is not licensed or privileged
to do so, such person enters or remains in a building
or any other premises, after an order to leave, or after an
order not to enter, that was personally communicated
to such person by the owner of the premises.
‘‘The claim focuses on what the defendant reasonably
believes under the circumstances and presents a ques-
tion of fact. The jury’s initial determination requires the
jury to assess the veracity of witnesses, often including
the defendant, and to determine whether the defen-
dant’s account of his belief at the time of the confronta-
tion is in fact credible. The jury must make a further
determination as to whether that belief was reasonable,
from the perspective of a reasonable person in the
defendant’s circumstances.
‘‘The defendant’s conduct must be judged ultimately
against that of a reasonably prudent person. It is not
required that the jury find that the victim was, in fact,
using or about to use physical force against the
defendant.’’
The trial court then proceeded to instruct the jury
regarding the defenses of self-defense and defense of
others. This portion of the jury charge provided as fol-
lows: ‘‘The defendant raised the issues of self-defense
and defense of others as to the incident on December
5, 2009. After you have considered all of the evidence
in this case, if you find that the plaintiff has proved her
claims, you must go on to consider whether . . . the
defendant acted in [the defense] of himself or of others.
‘‘A person is justified in the use of force against
another person that would otherwise be illegal if he is
acting in the defense of himself or others under the
circumstances.
‘‘The statute defining self-defense reads in pertinent
part as follows:
‘‘ ‘[A] person is justified in using reasonable physical
force upon another person to defend himself [or a third
person] from what he reasonably believes to be the use
or imminent use of physical force, and he may use such
degree of force which he reasonably believes to be
necessary for such purpose . . . .’
‘‘The statute requires that, before a defendant uses
physical force upon another person to defend himself,
he must have two ‘reasonable beliefs.’ The first is a
reasonable belief that physical force is then being used
or about to be used upon him. The second is a reason-
able belief that the degree of force he is using to defend
himself from what he believes to be an ongoing or
imminent use of force is necessary for that purpose.
‘‘A defendant is not justified in using any degree of
physical force in self-defense against another if he pro-
vokes the other person to use physical force against
him. Also, a defendant is not justified in using any
degree of physical force in self-defense against another
if he is the initial aggressor. A defendant cannot use
excessive force in his self-defense or defense of others.’’
After deliberating for more than one day and asking,
among other things, to rehear the testimony of Osborne
and Teasdale regarding their views of the alleged assault
and battery, the jury returned a verdict in favor of the
defendant. The plaintiff’s verdict form reveals the fol-
lowing basis for the jury’s verdict.4 The jury found that
the defendant’s conduct on December 5, 2009, consti-
tuted an intentional assault and battery and that the
defendant’s conduct proximately caused or aggravated
the plaintiff’s injuries and damages. The jury also found,
however, that the plaintiff’s recovery was barred by
the defendant’s special defenses of justification and
defense of others. The jury rejected the plaintiff’s claims
of intentional and negligent infliction of emotional dis-
tress, and also rejected the defendant’s special defenses
of self-defense and wrongful conduct. The trial court
rendered judgment in favor of the defendant, and the
plaintiff appealed to the Appellate Court.
On appeal to the Appellate Court, the plaintiff raised
two claims: (1) the jury improperly was charged on the
defendant’s special defense of justification because the
trial court incorporated an instruction on criminal tres-
pass, even though a spouse cannot trespass on marital
property as a matter of law;5 and (2) the evidence was
insufficient to support the defendant’s special defense
of defense of others. See Burke v. Mesniaeff, 177 Conn.
App. 824, 826, 173 A.3d 393 (2017). With respect to the
plaintiff’s first claim, the Appellate Court determined
that it need not decide whether the trial court improp-
erly instructed the jury on criminal trespass because
it ‘‘construe[d] the jury’s findings to indicate [that] it
decided that the plaintiff was not trespassing.’’ Id., 837.
The Appellate Court reasoned that, even though ‘‘tres-
passing is understood to be a form of wrongful con-
duct,’’ the jury did not find that the plaintiff’s recovery
was barred by the doctrine of wrongful conduct, and,
therefore, the jury necessarily found that the plaintiff
was not trespassing. Id. With respect to the plaintiff’s
second claim regarding the sufficiency of the evidence
of the defense of others defense, the Appellate Court
determined that ‘‘the jury’s verdict is supported by the
evidence and by its commonsense evaluation of what
happened during the incident.’’ Id., 846. The Appellate
Court therefore affirmed the judgment of the trial
court. Id.
Judge Bishop filed a dissenting opinion in which he
expressed his view that the ‘‘wrong minded notion’’ of
‘‘the plaintiff as a trespasser in a marital residence’’
likely ‘‘confus[ed] the jury and, as a result, render[ed]
its verdict unreliable.’’ Id., 847 (Bishop, J., dissenting).
Judge Bishop believed that there was no ‘‘basis for the
court to instruct the jury on the law of criminal tres-
pass’’; id., 858; because ‘‘both parties understood the
Sharon house to be a marital residence,’’ and, as such,
the plaintiff was licensed and privileged to be on the
property notwithstanding the defendant’s title owner-
ship. Id., 859. Judge Bishop also believed that the evi-
dence was insufficient to support the jury’s finding of
defense of others because there was no objective evi-
dence ‘‘that, at any time, the plaintiff, by gesture or
words, made any threats against the houseguests.’’ Id.,
862. Accordingly, Judge Bishop would have reversed
the judgment of the trial court and remanded the case
for a new trial. Id., 863.
The plaintiff filed a motion for reconsideration en
banc or, in the alternative, for reconsideration, which
the Appellate Court denied. This certified appeal
followed.6
II
The plaintiff claims that the trial court improperly
instructed the jury on the law of criminal trespass
because she, as the defendant’s spouse, had a legal right
to be at their shared marital residence, regardless of
the title ownership of the property. She argues that the
defendant’s justification defense was premised entirely
on the law of criminal trespass, and, therefore, the jury
necessarily found that the plaintiff was a criminal tres-
passer at the time of the assault and battery. She further
argues that the improper instruction on criminal tres-
pass irrevocably tainted the jury’s finding that the defen-
dant was acting in defense of others because a criminal
trespasser’s ‘‘refusal to leave when so instructed by the
‘rightful owner’ is inherently threatening . . . .’’ Alter-
natively, the plaintiff contends that the evidence was
insufficient to support the jury’s finding of defense of
others because the defendant ‘‘provided no evidence
that he believed [the plaintiff] was imminently about
to use physical force against his houseguests, much
less any evidence that such a belief would have been
reasonable.’’ (Footnote omitted.)
The defendant responds that the trial court’s instruc-
tion on the law of criminal trespass was proper because
the Sharon house was not a marital residence but the
defendant’s individually owned property, and the plain-
tiff did not acquire an ownership interest in the Sharon
house by virtue of the parties’ marriage. Because it was
undisputed that the plaintiff refused to leave after being
instructed to do so by the defendant-owner, the defen-
dant contends that the evidence supported the trial
court’s criminal trespass instruction. Lastly, the defen-
dant argues that the evidence was sufficient to support
the jury’s finding that he was acting in defense of others
in light of his testimony, as well as the testimony of
Teasdale and Osborne, that the plaintiff’s aggressive
and out of control behavior posed a risk of harm to
his guests.
A
We first address the plaintiff’s claim that the trial
court’s instruction on the defendant’s special defense
of justification was improper because one cannot crimi-
nally trespass on the property of his or her spouse.
‘‘Our analysis begins with a well established standard
of review. When reviewing [a] challenged jury instruc-
tion . . . 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 component 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 guidance of the jury . . . we will
not view the instructions as improper.’’ (Internal quota-
tion marks omitted.) Jacobs v. General Electric Co., 275
Conn. 395, 400, 880 A.2d 151 (2005).
To determine whether the trial court properly
instructed the jury on criminal trespass, we turn first
to General Statutes § 53a-20, which governs the use of
physical force in defense of premises.7 Section 53a-20
provides in relevant part that ‘‘[a] person in possession
or control of premises, or a person who is licensed or
privileged to be in or upon such premises, is justified
in using reasonable physical force upon another person
when and to the extent that he reasonably believes such
to be necessary to prevent or terminate the commission
or attempted commission of a criminal trespass by such
other person in or upon such premises . . . .’’ A person
commits a criminal trespass when, ‘‘[k]nowing that such
person is not licensed or privileged to do so, such per-
son enters or remains in a building or any other prem-
ises after an order to leave or not to enter personally
communicated to such person by the owner of the prem-
ises or other authorized person . . . .’’ General Stat-
utes § 53a-107 (a) (1). Both criminal trespass and
defense of premises contain a scienter requirement.
Specifically, in order to commit a criminal trespass,
the trespasser must know that ‘‘he is not privileged or
licensed to enter or to remain on the premises’’; State
v. Garrison, 203 Conn. 466, 474, 525 A.2d 498 (1987);
and, in order to be justified in using physical force
to prevent or terminate the commission or attempted
commission of a criminal trespass, the person in posses-
sion or control of the premises must ‘‘reasonably
[believe]’’ that the use of force is ‘‘necessary to prevent
or terminate the commission or attempted commission
of a criminal trespass . . . .’’ General Statutes § 53a-20.
Our sister states uniformly have held that, in
determining whether one spouse has committed the
crime of trespass (or a similar crime) on the property
of the other spouse, the focus is not on ownership per
se but, rather, on the ‘‘trespassing’’ spouse’s right or
privilege to enter or remain on the property. See, e.g.,
People v. Johnson, 906 P.2d 122, 125 (Colo. 1995) (hold-
ing that, in determining whether estranged spouse has
committed crime of trespass or burglary against other
spouse, ‘‘the focus is [on] the possessory rights of the
parties, and not their ownership rights’’); State v.
Hagedorn, 679 N.W.2d 666, 671 (Iowa 2004) (upholding
defendant’s burglary conviction, even though he for-
merly had lived in marital home, because his wife had
removed his personal belongings, told him on multiple
occasions that he no longer was welcome, and changed
locks); Commonwealth v. Robbins, 422 Mass. 305, 315
and n.5, 662 N.E.2d 213 (1996) (holding that marital
relationship does not preclude burglary conviction,
regardless of title or leasehold ownership, and that jury
must be instructed on ‘‘factors that bear on a defen-
dant’s right to enter’’ spouse’s premises); State v.
Spence, 768 N.W.2d 104, 108–10 (Minn. 2009) (upholding
defendant’s burglary conviction, even though he co-
owned residence with his estranged spouse, because
property owners can divest themselves of possessory
interests by agreement); State v. McMillan, 158 N.H.
753, 759, 973 A.2d 287 (2009) (concluding that ‘‘holding
a legal interest in property, such as a leasehold, is not
dispositive on the issue of license or privilege’’ to enter
premises but, rather, ‘‘the fact finder must look beyond
legal title and evaluate the totality of the circumstances
in determining whether a defendant had license or privi-
lege to enter’’); State v. Parvilus, 332 P.3d 281, 283, 286
(N.M. 2014) (upholding defendant’s burglary convic-
tion, despite statute providing that ‘‘neither [spouse]
can be excluded from the other’s dwelling,’’ because
‘‘marital property provisions . . . do not provide
immunity from prosecution for burglary of a spouse’s
separate residence’’ [internal quotation marks omit-
ted]); State v. Lilly, 87 Ohio St. 3d 97, 102, 717 N.E.2d
322 (1999) (‘‘in Ohio, one can commit a trespass and
burglary against property of which one is the legal
owner if another has control or custody of that prop-
erty’’); State v. Wilson, 136 Wash. App. 596, 606–607, 150
P.3d 144 (2007) (noting that, ‘‘[i]n domestic violence
cases, determining possession of a residence presents
a murky area of law,’’ but ‘‘Washington case law is clear
that an offender can burglarize the residence of his
or her spouse or partner despite legal ownership of
property’’). We find these precedents persuasive and
hold that ‘‘whether one has a right or privilege to enter
property is not determined solely by [the spouse’s] own-
ership interest in the property, or by whether the struc-
ture can be characterized as the ‘marital home,’ ’’ but,
rather, ‘‘[by] whether the [spouse] had any possessory
or occupancy interest in the premises at the time of
entry.’’ State v. Hagedorn, supra, 670.
Whether one spouse has a possessory or occupancy
interest in the premises of the other spouse at the time
of entry is a fact intensive inquiry that depends on
multiple factors, including, but not limited to, the rela-
tionship status of the spouses (i.e., whether the parties
are legally separated or involved in divorce proceed-
ings), the existence of extended periods of separation,
the applicability of any relevant court orders, the estab-
lishment of separate residences, the existence of any
agreements regarding access to the subject property,
and the method and manner of entry. See, e.g., Com-
monwealth v. Robbins, supra, 422 Mass. 315; State v.
Spence, supra, 768 N.W.2d 109–10. In light of the scien-
ter requirements contained in the criminal trespass and
defense of premises statutes, the party requesting a jury
charge on criminal trespass and defense of premises
in the context of a case involving a spousal relationship
must adduce evidence demonstrating that both parties
‘‘understood that the possessory interest of one was
being relinquished, even if it was relinquished begrudg-
ingly or reluctantly.’’ State v. O’Neal, 103 Ohio App. 3d
151, 155, 658 N.E.2d 1102, appeal dismissed, 73 Ohio
St. 3d 1411, 651 N.E.2d 1309 (1995). In general, when
the marital relationship is legally intact and both
spouses have a possessory or occupancy interest in the
premises, an isolated request to leave during a heated
marital argument will not suffice to revoke one spouse’s
possessory or occupancy interest in the premises vis-
à-vis the other. See, e.g., id.; cf. State v. Garrison, supra,
203 Conn. 473–74 (holding that evidence was insuffi-
cient to support defense of premises defense, even
though defendant had asked victim, who was dating
and living with defendant’s sister in shared apartment,
to leave apartment, because sister had not revoked vic-
tim’s possessory or occupancy interest in ‘‘manifest
fashion’’; instead, because of couple’s ‘‘stormy relation-
ship’’ and sister’s intoxication, ‘‘her order to the victim
to leave was simply a part of the couple’s ongoing rela-
tionship’’).
In the present case, the undisputed evidence estab-
lished that the plaintiff had a possessory or occupancy
interest in the Sharon house at the time of her entry
on December 5, 2009. The plaintiff had a key to the
Sharon house, would ‘‘go back and forth’’ between there
and the parties’ primary marital residence, and stored
her personal possessions on the premises. The plaintiff
had obtained a Connecticut driver’s license that listed
the Sharon house as her residential address, and she
was involved in the management and improvement of
the property.8 Furthermore, although the parties’ mari-
tal relationship was strained, they were neither
estranged nor separated at the time of the incident, and
a dissolution action had not yet been commenced. In
light of these facts, the defendant’s request that the
plaintiff leave the Sharon house, made in the midst of
a heated marital dispute, plainly was insufficient to
support the trial court’s criminal trespass instruction.
See, e.g., Godwin v. Danbury Eye Physicians & Sur-
geons, P.C., 254 Conn. 131, 139, 757 A.2d 516 (2000) (trial
court’s instructions must be ‘‘reasonably supported by
the evidence’’ [internal quotation marks omitted]).
Our conclusion is bolstered by the fact that the defen-
dant himself did not believe the plaintiff was trespassing
when he used force to remove her from the Sharon
house on the afternoon of December 5, 2009. At trial,
the defendant testified that ‘‘we were married at the
time so I didn’t think . . . [trespassing] was an issue
at all.’’ The defendant explained that it did not occur
to him that the plaintiff may have been a criminal tres-
passer until sometime after the incident. Because the
defendant did not believe that the use of force was
‘‘necessary to prevent or terminate the commission or
attempted commission of a criminal trespass’’; General
Statutes § 53a-20; he lacked the requisite state of mind
to support a defense of premises instruction.
B
Having determined that the trial court improperly
instructed the jury on criminal trespass and defense of
premises, we next consider whether the improper jury
instruction was harmful. It is well established that ‘‘not
every improper jury instruction requires a new trial
because not every improper instruction is harmful. [W]e
have often stated that before a party is entitled to a new
trial . . . he or she has the burden of demonstrating the
error was harmful. . . . An instructional impropriety
is harmful if it is likely that it affected the verdict.’’
(Internal quotation marks omitted.) Mahon v. B.V. Uni-
tron Mfg., Inc., 284 Conn. 645, 656, 935 A.2d 1004 (2007).
‘‘When two or more separate and distinct defenses . . .
are present in a case, an error in the charge as to one
normally cannot upset’’ the jury’s verdict if the jury was
‘‘properly charged as to the remaining defenses.’’ Dinda
v. Sirois, 166 Conn. 68, 75, 347 A.2d 75 (1974).
We conclude that the plaintiff has not established
that the improper instruction in this case affected the
jury’s verdict. As we previously explained, the jury
returned a verdict in favor of the defendant on the basis
of its findings in connection with two different special
defenses: justification and defense of others. These spe-
cial defenses were pleaded and charged as separate
and distinct theories of defense at trial; the justification
defense was limited to the plaintiff’s alleged criminal
trespass and the defendant’s corresponding right to use
physical force in defense of his premises; see part II B
1 of this opinion; whereas the defense of others defense
was premised on the plaintiff’s alleged threatening
behavior and the defendant’s corresponding right to
use physical force to protect his guests from imminent
physical harm. We conclude that the jury charge on
defense of others was insulated from any taint affecting
the justification charge and, consequently, hold that the
jury’s finding in the defendant’s favor on the basis of
his special defense of defense of others renders harm-
less the instructional impropriety on the special defense
of justification.
1
We first address whether the trial court’s improper
instruction on justification affected the jury’s finding
on that special defense. As background, we point out
that the defense of justification, although not treated
as such in the present case, ordinarily is understood to
encompass the defense of premises, self-defense, and
the defense of others. See State v. Bryan, 307 Conn.
823, 832, 60 A.3d 246 (2013) (‘‘[t]he defense of others,
like self-defense, is a justification defense’’); State v.
Garrison, supra, 203 Conn. 472 (‘‘[j]ustification for the
use of deadly force may also be found in the provisions
of § 53a-20 dealing with defense of premises’’). ‘‘These
defenses operate to exempt from punishment otherwise
criminal conduct when the harm from such conduct is
deemed to be outweighed by the need to avoid an even
greater harm or to further a greater societal interest.
. . . Thus, conduct that is found to be justified is, under
the circumstances, not criminal.’’9 (Internal quotation
marks omitted.) State v. Bryan, supra, 832–33.
The record reflects that the defendant’s justification
defense in this case was not framed in accordance with
its conventional understanding. Instead, the defendant
used the defense of ‘‘justification’’ to encompass only
his defense predicated on criminal trespass and defense
of premises. The defendant thus pleaded that his use
of force was justified, in relevant part, because ‘‘the
plaintiff was trespassing on the defendant’s property
. . . knowing that she was not licensed or privileged
to do so . . . [d]espite the defendant, who is the owner
of the property, directing her to leave . . . .’’ At the
charge conference, the defendant explained that his
justification defense was based on the plaintiff’s alleged
criminal trespass, and the jury instructions, as well as
the plaintiff’s verdict form, listed justification as one
of the defendant’s five freestanding special defenses.
Although the jury was informed that ‘‘[j]ustification is
a general defense to the use of physical force,’’ the
jury was given only one example of a justifiable use of
physical force in the justification instruction—defense
of premises. The jury also was informed that, in order
to find that the defendant’s use of force was justified,
‘‘[i]t is not required that the jury find that the victim
was, in fact, using or about to use physical force against
the defendant.’’ This is a correct statement of the law
if the defendant’s justification defense is limited to
defense of premises; see General Statutes § 53a-20; but
an incorrect statement of the law if the defendant’s
justification defense included self-defense and defense
of others. See General Statutes § 53a-19 (a) (requiring
defendant to have reasonable belief of ‘‘imminent use
of physical force’’); see also part III of this opinion.10
On the basis of the foregoing, it is clear that the
defendant’s justification defense was treated by the par-
ties, the trial court, and the jury as the functional equiva-
lent of a defense of premises defense. By finding in
favor of the defendant on his special defense of justifica-
tion, the jury necessarily found that the defendant’s use
of force was justified by the plaintiff’s commission or
attempted commission of the crime of trespass. There-
fore, the jury was misled by the improper instruction
on criminal trespass and defense of premises in arriving
at its finding on the defendant’s justification defense.11
2
We next address whether the improper jury instruc-
tion on criminal trespass and defense of premises mis-
led the jury with respect to the special defense of
defense of others. As we previously explained, defense
of others is a type of justification defense; see State v.
Bryan, supra, 307 Conn. 832; but the present case was
pleaded, tried, and charged in a manner that reasonably
would have led the jury to believe that defense of others
was an independent, freestanding special defense sepa-
rate and distinct from the justification defense.12 The
trial court’s jury instruction on defense of others did not
include any reference to criminal trespass or defense
of premises. Rather, the trial court properly instructed
the jury that ‘‘ ‘[a] person is justified in using reasonable
physical force upon another person to defend himself
[or a third person] from what he reasonably believes
to be the use or imminent use of physical force, and
he may use such degree of force which he reasonably
believes to be necessary for such purpose.’ ’’ See Gen-
eral Statutes § 53a-19 (a). Thus, in arriving at its verdict,
the jury necessarily found that (1) the defendant
believed that the plaintiff was about to use imminent
physical force against his guests, (2) his belief was
reasonable, and (3) he used a degree of force that he
reasonably believed to be necessary to defend his
guests.13 None of these findings depended, either implic-
itly or explicitly, on the plaintiff’s status as a criminal
trespasser.
The plaintiff nonetheless argues that criminal tres-
passers are ‘‘inherently threatening,’’ and, therefore, the
trial court’s improper reference to criminal trespass in
its instruction on justification ‘‘infected . . . the entire
trial, including [the defendant’s] claim of ‘defense of
others . . . .’ ’’ We disagree. As we discussed, both the
jury instruction and the verdict form treated the special
defenses as separate and independent legal theories.
Confusion was highly unlikely under these circum-
stances because there was neither any linguistic overlap
between the justification and defense of others jury
instructions, nor was there anything about the verdict
form that created any discernible risk of confusion. The
jury’s disparate findings also indicate to us that it did
not lump together the defenses in an undifferentiated
manner but, instead, distinguished among those
defenses, rejecting some while crediting others. See
footnote 4 of this opinion; see also DeMarkey v. Frat-
turo, 80 Conn. App. 650, 660, 836 A.2d 1257 (2003)
(holding that jury’s response to interrogatories indi-
cated that it was not misled by allegedly improper jury
instruction, and any error therefore was harmless).
Moreover, although criminal trespass may pose an
inherent risk of harm to property and privacy rights;
see State v. Robinson, 105 Conn. App. 179, 193, 937 A.2d
717 (2008) (‘‘[t]he rationale for the offense of criminal
trespass is to protect property, and the privacy interest
inhering in that property, from unwanted intruders’’),
aff’d, 290 Conn. 381, 963 A.2d 59 (2009); it does not, in
the absence of additional facts, pose a similar inherent
risk of harm to the physical safety of invitees who
happen to be on the property.14 Indeed, the crime of
trespass can be committed even if the property is unin-
habited, unoccupied, or consists of public land. See
General Statutes §§ 53a-107 through 53a-109. We con-
clude that the instructional impropriety was harmless
because it did not affect the jury’s independent finding
with respect to the defendant’s defense of others
defense.
III
The only remaining issue is whether the evidence
was sufficient to support the jury’s finding that the
defendant was acting in defense of others when he used
physical force to remove the plaintiff from the Sharon
house on December 5, 2009. ‘‘The standards governing
our review of a sufficiency of evidence claim are well
established and rigorous. . . . [I]t is not the function
of this court to sit as the seventh juror when we review
the sufficiency of the evidence . . . rather, we must
determine, in the light most favorable to sustaining the
verdict, whether the totality of the evidence, including
reasonable inferences therefrom, supports the jury’s
verdict . . . . In making this determination, [t]he evi-
dence must be given the most favorable construction
in support of the verdict of which it is reasonably capa-
ble. . . . In other words, [i]f the jury could reasonably
have reached its conclusion, the verdict must stand,
even if this court disagrees with it.’’ (Citations omitted;
internal quotation marks omitted.) Carrol v. Allstate
Ins. Co., supra, 262 Conn. 442.
‘‘We apply this familiar and deferential scope of
review, however, in light of the equally familiar princi-
ple’’ that there must be ‘‘sufficient evidence to remove
the jury’s function of examining inferences and finding
facts from the realm of speculation.’’ (Internal quotation
marks omitted.) Id. The jury’s verdict cannot be upheld
if the jury ‘‘reasonably and legally could not have
reached the determination that [it] did in fact reach’’
or if, ‘‘without conjecture, [it] could not have found a
required element of the cause of action . . . .’’ Id.
This is a civil case, but self-defense or, by extension,
a defense of others defense ‘‘is available to a defendant
faced with the intentional torts of civil assault and bat-
tery, provided that there is sufficient evidence in sup-
port of that defense.’’ See Brown v. Robishaw, 282
Conn. 628, 636, 922 A.2d 1086 (2007). The defendant
bears the initial burden to produce sufficient evidence
to inject the defense of others into the case; id., 643; but
this burden of production ‘‘is slight.’’ (Internal quotation
marks omitted.) State v. Terwilliger, 294 Conn. 399,
408, 984 A.2d 721 (2009). To prevail on a defense of
others defense, ‘‘a defendant must introduce evidence
that the defendant reasonably believed [the attacker’s]
unlawful violence to be imminent or immediate.’’ (Inter-
nal quotation marks omitted.) State v. Bryan, supra,
307 Conn. 835; see General Statutes § 53a-19 (a). The
standard encompasses both a subjective and objective
component: (1) the defendant must have subjectively
believed that an attack was imminent; and (2) the defen-
dant’s subjective belief must have been objectively rea-
sonable under the circumstances. See, e.g., State v. Pri-
oleau, 235 Conn. 274, 286–87, 664 A.2d 743 (1995)
(explaining that ‘‘subjective-objective inquiry’’ requires
jury to ‘‘make two separate affirmative determinations
in order for the defendant’s’’ special defense to succeed:
[1] ‘‘the jury must determine whether, on the basis of
all of the evidence presented, the defendant in fact had
believed that he had needed to use . . . physical force
. . . in order to repel the victim’s alleged attack’’; and
[2] ‘‘the jury must make a further determination as to
whether that belief was reasonable, from the perspec-
tive of a reasonable person in the defendant’s circum-
stances’’ [emphasis in original]).
The plaintiff contends that the evidence was insuffi-
cient to establish that the defendant subjectively
believed that the plaintiff ‘‘was imminently about to
use physical force against his houseguests, much less
. . . that such a belief would have been reasonable.’’
(Emphasis added; footnote omitted.) We disagree.
Although the evidence surrounding the defendant’s use
of physical force against the plaintiff was conflicting,
the jury reasonably could have found that, when the
plaintiff arrived at the Sharon house, she was enraged,
hysterical, and screaming ‘‘[w]ho is that woman’’ and
‘‘[w]hat are you doing in my house?’’ The plaintiff’s
behavior was described as ‘‘aggressive’’ and ‘‘out of
control,’’ and the defendant testified that, on the basis
of ‘‘body language that [he] recognized from previous
such incidents,’’ he was ‘‘terrified’’ that the plaintiff
would harm his guests. Throughout the December 5,
2009 incident, the plaintiff continually tried to return
to the house. The defendant testified that he believed
that the plaintiff was ‘‘trying to run back into the house
and confront the guests,’’ and he continued to use physi-
cal force against the plaintiff ‘‘[t]o protect [his] guests
from harm’s way.’’ We conclude that this evidence was
sufficient to support the jury’s finding that the defen-
dant subjectively believed that the plaintiff posed an
imminent risk of physical harm to his guests.
The plaintiff also contends that the defendant’s sub-
jective belief was not objectively reasonable under the
circumstances because she never made any verbal
threats and the defendant’s guests ‘‘remained safely
ensconced inside the house during the entirety of the
assault . . . .’’ Again, we are not persuaded. First, ver-
bal threats are not required if the assailant’s physical
acts and behavior support a ‘‘reasonably perceived
threat of [imminent] physical force . . . .’’ State v.
Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994).
Although a defense of others defense does ‘‘not encom-
pass a preemptive strike,’’ neither does it obligate the
defendant ‘‘to stand by meekly and wait until an assail-
ant [strikes] the first blow before responding.’’ (Internal
quotation marks omitted.) State v. Jones, 320 Conn.
22, 53–54, 128 A.3d 431 (2015). Second, the physical
distance between the plaintiff and Osborne at the time
the defendant intercepted the plaintiff is unclear, but
the jury heard evidence that the plaintiff was enraged,
out of control, and ‘‘aggressively attempting to enter’’
the room in which Osborne was present.15 The plaintiff
repeatedly was screaming ‘‘[w]ho is that woman,’’
‘‘[w]hat’s going on between the two of you,’’ and ‘‘I
know what’s going on,’’ from which the jury reasonably
could have inferred, on the basis of the totality of the
evidence, that the plaintiff was accusing the defendant
and Osborne of having an extramarital affair. Under
these factual circumstances, ‘‘we cannot . . . con-
clude that the evidence introduced at trial was of such
a nature that the jury needed to resort to speculation
that the defendant reasonably believed that [he] had to
act in [defense of his guests].’’ (Internal quotation marks
omitted.) State v. Edwards, 234 Conn. 381, 390, 661
A.2d 1037 (1995). But cf. State v. Bryan, supra, 307
Conn. 837–39 and n.7 (holding that there was no immi-
nent threat of harm to victim because undisputed evi-
dence established that assailant was moving away from
building in which victim was present at time of assault
and declining to address whether victim was subject
to ‘‘an imminent attack because she was inside the
school building at the time of the stabbing’’).
The objective reasonableness of the defendant’s use
of force is further supported by Osborne’s and Teas-
dale’s testimony that they were afraid of the plaintiff
and felt physically threatened by her out of control
behavior. Teasdale explained that she felt like her ‘‘life
was in danger’’ because she ‘‘didn’t know if [the plain-
tiff] had a gun,’’ and she ‘‘was really worried about our
safety, my safety, everyone’s safety.’’ In light of the risk
of violence and volatility surrounding domestic disputes
generally, we agree with the Appellate Court that ‘‘the
jury’s verdict is supported by the evidence and by its
commonsense evaluation of what happened during the
incident.’’ Burke v. Mesniaeff, supra, 177 Conn. App.
846. We therefore conclude that the evidence was suffi-
cient to support the jury’s verdict in favor of the
defendant.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and PALMER, MUL-
LINS AND VERTEFEUILLE, Js., concurred.
1
Osborne was unavailable to testify at trial, so her deposition testimony
was read into the record.
2
The defendant testified that the plaintiff had accused him of having an
affair multiple times ‘‘during the course of the year 2009, up until this
incident.’’
3
As we discuss in greater detail later in this opinion, the trial court adopted
the defendant’s inexact and potentially confusing nomenclature to classify
the various special defenses relevant to this appeal. Properly conceived, the
defense of justification is a broad category that subsumes more specific
claims such as self-defense, defense of others, and defense of premises. See
part II B 1 of this opinion. At trial, however, the court treated the defense
of justification as synonymous with only one subtype of the broader theory—
the use of physical force in defense of premises. The plaintiff did not provide
suggested instructions that would have alleviated this confusion. This opin-
ion adheres to the terminology used at trial to avoid any further confusion.
4
The plaintiff’s verdict form included, in relevant part, the following ques-
tions; the jury’s answers are in brackets.
‘‘1. Assault and Battery (Answer All)
‘‘a. We find that the conduct of [the defendant] on December 5, 2009,
constituted intentional assault and battery.
‘‘Yes [X] No
‘‘b. We find that the conduct of [the defendant] on December 5, 2009,
constituted reckless assault and battery.
‘‘Yes No [X]
‘‘c. We find that the conduct of [the defendant] on December 5, 2009,
constituted negligent assault and battery.
‘‘Yes No [X]
‘‘2. Infliction of Emotional Distress (Answer All)
‘‘a. We find that the conduct of [the defendant] on December 5, 2009,
constituted intentional infliction of emotional distress.
‘‘Yes No [X]
‘‘b. We find that the conduct of [the defendant] on December 5, 2009,
constituted negligent infliction of emotional distress.
‘‘Yes No [X]
‘‘3. Proximate Cause
‘‘We find that the conduct of [the defendant] on December 5, 2009 was
a substantial factor in causing or aggravating the injuries and damages of
[the plaintiff].
‘‘Yes [X] No
‘‘(If you answered no, you must render a Defendant’s Verdict, using the
Defendant’s Verdict Form.)
‘‘4. Defendant’s Defenses (Answer All)
‘‘a. We find [the plaintiff’s] recovery is barred by the doctrine of justifi-
cation
‘‘Yes [X] No
‘‘b. We find [the plaintiff’s] recovery is barred by the doctrine of self-
defense
‘‘Yes No [X]
‘‘c. We find [the plaintiff’s] recovery is barred by the doctrine of defense
of others
‘‘Yes [X] No
‘‘d. We find [the plaintiff’s] recovery is barred by the doctrine of wrong-
ful conduct
‘‘Yes No [X]
‘‘e. With respect to a finding of negligent assault and battery or of negligent
infliction of emotional distress, we find that the percentage of negligence
attributable to [the defendant] is: . . . .’’
5
The plaintiff also claimed that the trial court improperly instructed the
jury on criminal trespass because ‘‘the defendant failed to plead that his
special defenses relied on a criminal statute, and . . . it was plain error
for the court not to include an instruction on the duty to retreat and the
mere words doctrine.’’ Burke v. Mesniaeff, supra, 177 Conn. App. 836. The
Appellate Court noted that our rules of practice require a special defense
grounded on a statute to be specifically identified by its number; see Practice
Book § 10-3; but held that the improper instruction on criminal trespass
was harmless because ‘‘the jury did not find that [the plaintiff’s] claims
were barred by the defendant’s wrongful conduct special defense.’’ Burke
v. Mesniaeff, supra, 838. The Appellate Court further held that the plaintiff
could not prevail under the plain error doctrine ‘‘because the duty to retreat
exception on which she relies pertains to the use of deadly force, which is
not an issue in this case’’; id., 843; and the plaintiff did not request an
instruction on the mere words doctrine. Id., n.14.
6
We granted the plaintiff’s petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court properly affirm the trial court’s
judgment when it determined that (1) the trial court did not improperly
charge the jury on the defendant’s justification defense of criminal trespass,
(2) the special defense of others was not barred by insufficient evidence,
and (3) no finding needed to be made on the plaintiff’s rights to the property?’’
Burke v. Mesniaeff, 328 Conn. 901, 177 A.3d 564 (2018).
7
Section 53a-20 is a criminal statute, but the parties do not question its
general applicability to civil actions, and, therefore, we assume for the
purpose of this appeal that § 53a-20 provides a special defense to the tort
of intentional assault and battery, provided there is sufficient evidence to
support the defense. Cf. Brown v. Robishaw, 282 Conn. 628, 636, 922 A.2d
1086 (2007) (‘‘it is well established that the defense of self-defense is available
to a defendant faced with the intentional torts of civil assault and battery,
provided that there is sufficient evidence in support of that defense’’).
8
The undisputed evidence established that the plaintiff had painted the
interior of the Sharon house and managed the rental of an adjacent guest
cottage.
9
Wrongful conduct, by contrast, is not a justification defense; it is a
limitation on liability in civil actions premised on the notion that a plaintiff
should not recover ‘‘for injuries that are sustained as the direct result of
his or her knowing and intentional participation in a criminal act.’’ Greenwald
v. Van Handel, 311 Conn. 370, 377, 88 A.3d 467 (2014).
10
The idiosyncratic terminology adopted by the trial court in the jury
charge, following the defendant’s lead, was carried over to the jury interroga-
tories, which also treated the special defenses separately. In relevant part,
the jury was requested to answer four different questions, one for each
special defense. See footnote 4 of this opinion. Again, the special defense
of justification was kept separate and distinct from the special defense of
defense of others.
11
We disagree with the Appellate Court majority that the plaintiff was not
harmed by the improper justification instruction because the jury’s finding
that the plaintiff’s recovery ‘‘was not barred by the doctrine of wrongful
conduct’’ must mean that the jury ‘‘decided that the plaintiff was not tres-
passing.’’ Burke v. Mesniaeff, supra, 177 Conn. App. 837. We agree with
the dissenting opinion that the jury’s findings on the special defenses of
justification and wrongful conduct cannot be deemed irreconcilable for two
reasons. See id., 854 (Bishop, J., dissenting) (‘‘I do not believe it is reasonable
to glean from the jury’s answer to the wrongful conduct interrogatory that
the jury found that the plaintiff had not been trespassing’’); see also Suarez
v. Dickmont Plastics Corp., 242 Conn. 255, 270, 698 A.2d 838 (1997) (noting
that court has duty to ‘‘harmonize’’ answers to jury interrogatories if possi-
ble). First, the jury was instructed that the defendant’s special defense of
wrongful conduct was predicated on the defendant’s claim that the plaintiff
‘‘was trespassing on the premises and exhibiting disorderly conduct and/
or creating a disturbance.’’ (Emphasis added.) The use of the conjunctive
‘‘and’’ necessarily conveyed to the jury that it had to find both that the
plaintiff had committed a criminal trespass and that she had engaged in
disorderly conduct and/or creating a disturbance. The jury reasonably may
have found that, although the plaintiff had committed the crime of trespass,
she had not committed the crimes of disorderly conduct and/or creating a
disturbance, and, therefore, her recovery was not barred by the wrongful
conduct doctrine. Second, the jury was instructed that ‘‘[t]he wrongful con-
duct defense does not apply if you find that the plaintiff sustained injuries
and damages independent of any wrongful conduct of the plaintiff.’’ The
jury reasonably may have found that the plaintiff sustained her injuries after
the completion of the commission or attempted commission of the criminal
trespass, and, therefore, her recovery was not barred by the wrongful con-
duct doctrine.
12
The trial court combined self-defense and defense of others in a sin-
gle instruction.
13
As we previously explained, the details surrounding the assault were
hotly disputed at trial, and the jury was presented with two very different
versions of events. According to the plaintiff, the defendant perpetrated a
violent and unprovoked physical assault, during which he dragged her out
of the house and down the driveway, flinging her to the ground and yanking
her back up multiple times. The defendant, Teasdale, and Osborne, by
contrast, testified that the defendant’s unwanted physical contact with the
plaintiff was provoked by the plaintiff’s out of control verbal and physical
behavior and consisted only of holding her arm ‘‘like a man would walk
with a woman’’ and escorting her away from the Sharon house and the
defendant’s frightened guests. The jury interrogatories reveal that the jury
resolved this factual dispute in favor of the defendant, finding that the
defendant used an amount of force that was reasonable under the circum-
stances to protect his guests from the imminent threat of harm posed by
the plaintiff. Given the jury’s finding that the defendant’s use of force was
reasonable, we can fairly presume that the jury did not credit the plaintiff’s
testimony that the defendant ‘‘flung [her]’’ to the ground multiple times
and ‘‘jerked [her] up . . . by [her] right arm’’ each time that she struck
the ground.
14
Recall that the jury rejected the defendant’s special defense of self-
defense, thereby indicating that it did not find the plaintiff’s trespassing
behavior to be so ‘‘inherently threatening’’ as to justify the use of force in
self-defense.
15
The plaintiff contends that there was no imminent threat of physical
harm to the defendant’s guests because, according to the defendant’s own
testimony, his physical contact with the plaintiff was consensual until the
parties were three-quarters of the way down the driveway. The defendant’s
testimony was contradicted, however, by the plaintiff’s testimony that the
assault and battery began inside the Sharon house and that the defendant
pulled her out of the Sharon house without her consent. It is well established
that the ‘‘defendant’s own testimony need not support [his] theory of
defense,’’ and the defendant may ‘‘rely on evidence adduced either by himself
or by the [plaintiff] to meet [his] evidentiary’’ burden. (Emphasis in original;
internal quotation marks omitted.) State v. Bryan, supra, 307 Conn. 834. In
light of the evidence indicating that the defendant’s use of force began inside
the Sharon house, in the same room as one of the defendant’s guests, we
reject the plaintiff’s claim that there was insufficient evidence to support
the imminence requirement.