State v. Stephenson ( 2021 )

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STATE OF CONNECTICUT v. JOSEPH
A. STEPHENSON
(AC 40250)
Alvord, Prescott and Alexander, Js.
Syllabus
Convicted of the crimes of burglary in the third degree, attempt to commit
tampering with physical evidence and attempt to commit arson in the
second degree in connection with a break-in at a courthouse, the defen-
dant appealed to this court, claiming, inter alia, that the evidence was
insufficient to support his conviction of all three offenses. At the time
of the events at issue, the defendant had two felony charges pending
against him and was scheduled to commence jury selection in a trial
of those charges. Two days before the start of jury selection, a silent
alarm was triggered at the courthouse at about 11 p.m. The police
discovered, inter alia, a broken window that provided ingress to an
office shared by assistant state’s attorneys, a duffel bag containing six
canisters of industrial strength kerosene on the floor of the hallway
outside the office, and case files atop a desk that had two of its drawers
open and other files scattered on the floor. Surveillance video also
depicted a vehicle, similar to one the defendant drove, driving by the
courthouse repeatedly in the hours before the break-in, and, while the
defendant was in custody after having been convicted of other charges
that had been pending against him, he asked his brother, in a recorded
telephone call, to get rid of ‘‘bottles of things’’ for a heater, speculated
about how the police located the vehicle and attempted to arrange an
alibi. On the defendant’s appeal to this court, this court concluded
that the state had failed to produce sufficient evidence regarding the
defendant’s intent to commit tampering, which was a requirement com-
mon to all of the charged offenses, reversed the defendant’s conviction
and remanded the case to the trial court with direction to render judg-
ment of acquittal as to all three charges. Our Supreme Court thereafter
granted the state’s petition for certification to appeal, reversed this
court’s judgment and remanded the case to this court for further proceed-
ings. On remand, the defendant reiterated his claim that the evidence
was insufficient to support his conviction of all three charges and
asserted that the court improperly excluded testimony from L, who had
represented him on the felony charges, that, prior to the break-in, the
defendant had told L that he intended to plead guilty to the felony
charges, which the defendant alleged would have provided a defense
to his motive to disrupt or delay the proceedings against him. Held:
1. The defendant’s claim that the evidence was insufficient to support his
conviction was unavailing:
a. The totality of the evidence regarding the defendant’s actions before,
during and after the break-in supported the jury’s finding that he broke
into the prosecutors’ area of the courthouse with the intent to tamper
with evidence: from the manner in which the defendant conducted recon-
naissance of the closed courthouse late at night and his chosen point
of entry, the jury reasonably could have inferred that he planned to
engage in criminal conduct and wanted to gain access to the office of
the prosecutor who was handling the pending felony charges and to his
own specific file, and the reasonable inference that the staff of the
prosecutor’s office would not have left files strewn on the floor permitted
the jury’s successive reasonable inference that it was the defendant who
had been searching for his own case file and that, if he could tamper
with it, the state would be unable to secure a conviction against him;
moreover, that the defendant brought industrial strength kerosene into
an office filled with combustible materials provided a reasonable basis
for the jury to infer that he intended to start a fire that would consume
the file associated with his case and any physical evidence contained
therein, and that he understood that he also needed to destroy other
files to cover up his destruction of the evidence in his case; furthermore,
those reasonable inferences were supported by the defendant’s conduct
after the break-in, which included his flight from the courthouse, a
phone call he made to the public defender’s office inquiring whether the
courthouse would be open on the day after the break-in and incriminating
statements he made to his family.
b. Contrary to the defendant’s assertion that the evidence was insufficient
to support his arson conviction because the state failed to prove that
he committed the completed crime of tampering with physical evidence,
the state’s burden was to prove that he intended to start a fire to conceal
the crime of tampering with physical evidence and that he had taken a
substantial step in a course of conduct planned to culminate in his
commission of the crime; moreover, the jury reasonably could have
inferred that the defendant, by bringing kerosene into an area packed
with files and other combustibles, possessed the requisite intent to dam-
age or destroy the building as a natural consequence of his actions, and,
even if his primary intent was to damage or destroy the files in the
prosecutors’ office area, the jury reasonably could have inferred that he
also intended to damage the building to achieve that objective.
c. Notwithstanding the defendant’s contention that his tampering convic-
tion could not stand because the state failed to prove that any materials
in the prosecutors’ office constituted ‘‘physical evidence’’ as defined by
statute (§ 53a-146 (8)), this court was not persuaded by his assertion
that, even though the text of the tampering statute ((Rev. to 2013) § 53a-
155) does not contain the phrase ‘‘physical evidence,’’ the legislature
intended to incorporate its definition in § 53a-146 (8) as an element of
§ 53a-155 because ‘‘physical evidence’’ is included in the title of § 53a-
155; despite the title of § 53a-155, the plain language of the text of § 53a-
155 required the state to prove that the defendant, believing that an
official proceeding was pending, altered, destroyed, concealed or
removed any record, document or thing with the purpose of impairing
its verity or availability in an official proceeding.
2. The defendant could not prevail on his claim that the trial court’s improper
exclusion of his statement to L constituted harmful error:
a. Although the trial court abused its discretion by excluding the state-
ment, which the defendant contended was admissible as evidence of his
then existing mental state pursuant to § 8-3 (4) of the Connecticut Code
of Evidence, he was not deprived of his constitutional rights to present
a defense, as he was able to present his defense that he was not the
perpetrator as well as alibi evidence via the testimony of his brother,
and the defendant challenged the state’s evidence regarding the issue
of identity; moreover, the state presented considerable evidence regard-
ing the defendant’s activities prior to, during and after the break-in to
establish his identity as the perpetrator and his intent, and his motivation
to disrupt the court proceedings remained, as his stated interest in plead-
ing guilty to the prior felony charges may have been diminished upon
the realization that the offered plea agreement involved incarceration.
b. The trial court’s improper exclusion of L’s testimony did not constitute
harmful error, as the state introduced substantial evidence of the defen-
dant’s identity and actions with respect to the offenses with which he
was charged, and the period of incarceration that would have resulted
from his stated intention to plead guilty to the prior felony charges may
have provided him with an incentive to commit the burglary, arson and
tampering offenses such that a fair assurance existed that the improper
exclusion of L’s testimony did not substantially affect the jury’s verdict.
Argued March 11—officially released August 31, 2021
Procedural History
Substitute information charging the defendant with
the crimes of burglary in the third degree, attempt to
commit tampering with physical evidence and attempt
to commit arson in the second degree, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk, geographical area number twenty, and tried to
the jury before White, J.; verdict and judgment of guilty,
from which the defendant appealed to this court, Shel-
don, Bright and Mihalakos, Js., which reversed the trial
court’s judgment and remanded the case to that court
with direction to render judgment of acquittal; there-
after, the state, on the granting of certification, appealed
to the Supreme Court, which reversed this court’s judg-
ment and remanded the case to this court for further
proceedings. Affirmed.
Vishal K. Garg, for the appellant (defendant).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Paul J. Ferencek, state’s attor-
ney, and Michelle Manning, senior assistant state’s
attorney, for the appellee (state).
Opinion
ALEXANDER, J. This appeal returns to us on remand
from our Supreme Court. In State v. Stephenson, 187
Conn. App. 20, 201 A.3d 427 (2019), rev’d, 337 Conn.
643, A.3d (2020), the defendant, Joseph A. Ste-
phenson, appealed from the judgment of conviction,
rendered after a jury trial, of burglary in the third degree
in violation of General Statutes § 53a-103, attempt to
commit tampering with physical evidence in violation
of General Statutes § 53a-49 (a) (2) and General Statutes
(Rev. to 2013) § 53a-155 (a) (1),1 and attempt to commit
arson in the second degree in violation of General Stat-
utes §§ 53a-49 (a) (2) and 53a-112 (a) (1) (B). The court
imposed a total effective sentence of twelve years of
incarceration followed by eight years of special parole.
On appeal, the defendant claimed that (1) the state
presented insufficient evidence to support his convic-
tion of those charges, and (2) the court improperly
excluded evidence regarding his mental state prior to
the commission of those offenses.
This court concluded that the state had failed to pro-
duce sufficient evidence regarding the defendant’s
intent to commit the crime of tampering with physical
evidence, a requirement common to all the charged
offenses. Id., 39. Accordingly, we reversed the defen-
dant’s conviction and remanded the case with direction
to render a judgment of acquittal on all three charges.
Id. As a result of this conclusion, we did not address
the other claims raised by the defendant in his appeal.
See id., 30 n.4, 39.
After granting the state’s petition for certification to
appeal, our Supreme Court reversed the judgment of
this court. State v. Stephenson, supra, 337 Conn. 654.
Specifically, it agreed with the state that this court
improperly had ‘‘addressed an issue of evidentiary suffi-
ciency sua sponte without calling for supplemental
briefing as required by Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 84 A.3d 840 (2014) (Blumberg).’’ State v.
Stephenson, supra, 645–46. As a result of this conclu-
sion, our Supreme Court remanded the case to this
court ‘‘in order to address the claims raised by the
defendant in his initial appeal. If, during that proceed-
ing, the Appellate Court chooses to exercise its discre-
tion to reach the sufficiency issue raised in its previous
decision, it must do so in a manner consistent with
this court’s decision in Blumberg.’’ Id., 654; see also
Stephenson v. Commissioner of Correction, 203 Conn.
App. 314, 317 n.2, 248 A.3d 34, cert. denied, 336 Conn.
944, 249 A.3d 737 (2021).
In accordance with the directive from our Supreme
Court, we ordered the parties to file simultaneous sup-
plemental briefs addressing whether the evidence was
sufficient to prove the defendant’s intent to tamper with
physical evidence. Following the receipt of the parties’
supplemental briefs, we heard additional oral argument.
With this recitation of the appellate history of the
case in mind, we set forth the issues before us, as
presented in the defendant’s original and supplemental
briefs. The defendant first claims that the state failed
to present sufficient evidence to support his conviction.
Specifically, he argues that the evidence was insuffi-
cient to prove that (1) he had intended to tamper with
evidence, an element common to all three offenses
charged by the state, (2) he had (a) committed the
completed crime of tampering with evidence or (b)
intended to destroy or damage a building, which are
elements of the offense of attempt to commit arson in
the second degree as charged in this case, and (3) he
had tampered with items that constituted physical evi-
dence for the purpose of § 53a-155 (a) (1). Second,
the defendant claims that the court erred in excluding
evidence regarding his mental state prior to the commis-
sion of these offenses. Specifically, he argues that he
suffered harm as a result of the court’s improper ruling,
or, in the alternative, that he was deprived of his consti-
tutional rights to present a defense and that the state
failed to demonstrate that the court’s ruling was harm-
less beyond a reasonable doubt.
As to the defendant’s first claim, the state counters
that the evidence adduced at trial was sufficient to
support the defendant’s conviction. With respect to his
second claim, the state concedes that the court’s eviden-
tiary ruling constituted an abuse of discretion but
asserts that it amounted to harmless error. We agree
with the state on both claims and, accordingly, affirm
the judgment of conviction.2
In its decision, our Supreme Court set forth the follow
relevant facts and procedural history. ‘‘A silent alarm
at the [Norwalk] courthouse was triggered at around
11 p.m. on Sunday, March 3, 2013, when the defendant
entered the state’s attorney’s office by breaking a win-
dow on the building’s eastern side. Although the police
were able to respond in about ninety seconds, the defen-
dant successfully evaded capture by running out of
a door on the building’s southern side. Footage from
surveillance cameras introduced by the state at trial
show that the defendant was inside of the building for
slightly more than three minutes. In the investigation
that followed, the police determined that the broken
window belonged to an office shared by two assistant
state’s attorneys. One of those attorneys was scheduled
to commence jury selection for a criminal trial [of] the
defendant on certain felony charges [pending felony
charges] only two days after the break-in occurred. No
other cases were scheduled to begin jury selection that
week. Immediately after the break-in, various case files
were discovered in an apparent state of disarray at the
northern end of a central, common area located outside
of that room. Specifically, several files were found sit-
ting askew on top of a desk with two open drawers;
still other files were scattered on the floor below in an
area adjacent to a horizontal filing cabinet containing
similar files. Photographs admitted as full exhibits
clearly show labels on these files reading ‘TUL’ and
‘SUM.’ Finally, in a short hallway at the opposite end
of that same common area, the police found a black
bag containing six bottles of industrial strength kero-
sene with their UPC labels cut off. The bag and its
contents were swabbed, and a report subsequently gen-
erated by the Connecticut Forensic Science Laboratory
included the defendant’s genetic profile as a contributor
to a mixture of DNA discovered as a result.
‘‘Various other components of the state’s case against
the defendant warrant only a brief summary. The day
after the break-in, the defendant called the public
defender’s office at the Norwalk courthouse to ask
whether the courthouse was open and whether he was
required to come in that day. The state also submitted
evidence showing that the defendant drove a 2002 Land
Rover Freelander with an aftermarket push bumper, a
roof rack, and a broken taillight, and that surveillance
videos from the area showed a similar vehicle driving
by the courthouse repeatedly in the hours leading up
to the break-in. Finally, the state submitted recordings
of various telephone calls the defendant made after he
had been taken into custody as a result of his conviction
on the criminal charges previously pending against him
in Norwalk. During one such telephone call, the defen-
dant asked his brother, Christopher Stephenson, to get
rid of ‘bottles of things’ for a heater, speculated about
how the police located the vehicle, and attempted to
arrange an alibi.’’ (Footnote omitted.) State v. Stephen-
son, supra, 337 Conn. 646–47.
We noted in our previous opinion that the state sought
to prove that the defendant had committed burglary in
the third degree, attempt to commit tampering with
physical evidence, and attempt to commit arson in the
second degree under the following closely intertwined
theories of factual and legal liability. State v. Stephen-
son, supra, 187 Conn. App. 27–28. ‘‘As to the charge of
burglary in the third degree, the state claimed that the
defendant had entered or remained unlawfully in the
courthouse, when it was closed to the public and he
had no license or privilege to be there for any lawful
purpose, with the intent to commit the crime of tam-
pering with physical evidence therein. Although the
state conceded that the defendant had not completed
the crime of tampering with physical evidence while
he was inside the courthouse, it nonetheless claimed
that he had intended to commit that offense within
the courthouse by engaging in conduct constituting an
attempt to commit that offense therein. On that score,
the state further argued that the defendant had broken
into the courthouse through the window of the assistant
state’s attorney who was prosecuting him on two pend-
ing felony charges, entered the larger state’s attorney’s
office and gone directly to the file cabinets where the
state stored its case files, and in the short time he had
there before the state police arrived in response to the
silent alarm, begun to rummage through the state’s case
files in an effort to find and tamper with the contents
of his own case files. Claiming that the defendant was
desperate to avoid his impending trial, the state argued
that the defendant thereby attempted to tamper with
his case file by altering, destroying, concealing or
removing its contents, and thus to impair the verity or
availability of such materials for use against him in his
upcoming trial. Finally, as to the charge of attempt to
commit arson in the second degree, the state claimed
that the defendant had committed that offense by break-
ing into the Norwalk courthouse as aforesaid, while
carrying a duffel bag containing six canisters of indus-
trial strength kerosene, and thereby intentionally taking
a substantial step in a course of conduct planned to
culminate in the commission of arson in the second
degree by starting a fire inside the courthouse, with
the intent to destroy or damage the courthouse build-
ing, for the purpose of concealing his planned crime
of tampering with physical evidence, as described pre-
viously.’’ (Emphasis added.) Id., 28–29.
I
The defendant first claims that the state failed to
present sufficient evidence to sustain his conviction
of all three charges.3 Specifically, he argues that the
evidence was insufficient to prove that (1) he intended
to tamper with evidence, an element common to all
three offenses charged by the state, (2) he committed
the completed crime of tampering with evidence or
intended to destroy or damage a building, which are
elements of the offense of attempt to commit arson in
the second degree as charged in this case, and (3) the
documents or materials he tampered with qualified as
physical evidence for the purpose of § 53a-155 (a). The
state counters that the evidence presented at the trial,
and the fair inferences that the jury reasonably could
draw therefrom, provided a sufficient basis to support
his conviction. We agree with the state.
We begin with the relevant principles and our stan-
dard of review. Our Supreme Court has noted that ‘‘[a]
party challenging the validity of the jury’s verdict on
grounds that there was insufficient evidence to support
such a result carries a difficult burden. . . . In particu-
lar, before [an appellate] court may overturn a jury
verdict for insufficient evidence, it must conclude that
no reasonable jury could arrive at the conclusion the
jury did. . . . Although the jury must find every ele-
ment proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense . . .
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rhodes, 335 Conn. 226, 233, 249 A.3d
683 (2020).
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a [two part] test. First, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict. Second, we determine whether upon the facts so
construed and the inferences reasonably drawn there-
from the [jury] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. . . .
‘‘Additionally, [a]s we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the [jury], would have resulted in an
acquittal. . . . On appeal, we do not ask whether there
is a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence
that supports the [jury’s] verdict of guilty.’’ (Internal
quotation marks omitted.) State v. Covington, 335 Conn.
212, 219, 229 A.3d 1036 (2020); see also State v. Adams,
327 Conn. 297, 304–305, 173 A.3d 943 (2017).
We are mindful, however, that inferences cannot be
based on conjecture, surmise or possibilities. State v.
Josephs, 328 Conn. 21, 35, 176 A.3d 542 (2018); State
v. Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986);
State v. Ramey, 127 Conn. App. 560, 565, 14 A.3d 474,
cert. denied, 301 Conn. 910, 19 A.3d 177 (2011). As our
Supreme Court recently has stated: ‘‘The line between
permissible inference and impermissible speculation is
not always easy to discern. . . . [P]roof of a material
fact by inference from circumstantial evidence need
not be so conclusive as to exclude every other hypothe-
sis, but it must suffice to produce in the mind of the trier
a reasonable belief in the probability of the existence
of the material fact. . . . When we infer, we derive a
conclusion from proven facts because such considera-
tions as experience, or history, or science have demon-
strated that there is a likely correlation between those
facts and the conclusion. If that correlation is suffi-
ciently compelling, the inference is reasonable. But if
the correlation between the facts and the conclusion
is slight, or if a different conclusion is more closely
correlated with the facts than the chosen conclusion,
the inference is less reasonable. At some point, the
link between the facts and the conclusion becomes so
tenuous that we call it speculation. When that point is
reached is, frankly, a matter of judgment. . . . We
therefore also must bear in mind that jurors are not
expected to lay aside matters of common knowledge
or their own observations and experiences . . . .
[C]ommon sense does not take flight when one enters
a courtroom.’’ (Citations omitted; internal quotation
marks omitted.) State v. Rhodes, supra, 335 Conn. 238;4
see also State v. Torres, 242 Conn. 485, 501, 698 A.2d
898 (1997) (noting that no clear line of demarcation
exists between permissible inference and impermissi-
ble speculation); State v. Hall-George, 203 Conn. App.
219, 226, 247 A.3d 659 (line between permissible infer-
ences and impermissible speculation not always easy
to discern), cert. denied, 336 Conn. 934, 248 A.3d 709(2021). Guided by these principles, we address each of
the defendant’s arguments in turn.
A
The defendant first argues that the evidence was
insufficient to prove that he intended to tamper with
physical evidence, an element common to all three
offenses charged by the state in this case. The state
counters that, upon a complete consideration of the
entirety of the evidence,5 sufficient evidence existed to
prove that the defendant possessed the requisite intent.
We agree with the state.
We begin by setting forth the relevant statutory lan-
guage. See State v. Knox, 201 Conn. App. 457, 468, 242
A.3d 1039 (2020), cert. denied, 336 Conn. 905, 244 A.3d
146 (2021), and cert. denied, 336 Conn. 906, 243 A.3d
1180 (2021). Section 53a-155 (a)6 provides in relevant
part: ‘‘A person is guilty of tampering with or fabricating
physical evidence if, believing that an official proceed-
ing is pending, or about to be instituted, he: (1) Alters,
destroys, conceals or removes any record, document
or thing with purpose to impair its verity or availability
in such proceeding . . . .’’ See also State v. Jordan,
314 Conn. 354, 376–77, 102 A.3d 1 (2014).
The claim advanced by the defendant focuses on the
element of his intent7 as it relates to the offense of
tampering with physical evidence. ‘‘As we have
observed on multiple occasions, [t]he state of mind of
one accused of a crime is often the most significant
and, at the same time, the most elusive element of the
crime charged. . . . Because it is practically impossi-
ble to know what someone is thinking or intending at
any given moment, absent an outright declaration of
intent, a person’s state of mind is usually [proven] by
circumstantial evidence . . . .’’ (Internal quotation
marks omitted.) State v. Best, 337 Conn. 312, 320, 253
A.3d 548 (2020); State v. Francis, 195 Conn. App. 113,
124, 223 A.3d 404 (2019) (same), cert. denied, 335 Conn.
912, 228 A.3d 662 (2020). Intent may be proven by the
defendant’s conduct before, during and after the com-
mission of the crime. State v. Bonilla, 317 Conn. 758,
766, 120 A.3d 481 (2015); State v. Raynor, 175 Conn.
App. 409, 432, 167 A.3d 1076 (2017), aff’d, 334 Conn.
264, 221 A.3d 401 (2019). ‘‘Such conduct yields facts
and inferences that demonstrate a pattern of behavior
and attitude . . . that is probative of the defendant’s
mental state.’’ (Internal quotation marks omitted.) State
v. Bonilla, supra, 766.
In his supplemental brief, the defendant focuses on
the dearth of evidence regarding the prosecutors’ files
on the floor; specifically, how these materials ended
up in disarray on the floor and the absence of any
direct connection to the defendant. This myopic view,
however, ignores the other evidence produced by the
state, and the resulting permissible inferences, that pro-
vided a sufficient basis for the jury to find that the
defendant intended to tamper with physical evidence.
In the hour prior to the 11 p.m. Sunday night break-
in, surveillance cameras recorded the defendant slowly
driving an SUV registered to his stepfather past the
front of the courthouse and in and out of the courthouse
parking lot. State v. Stephenson, supra, 187 Conn. App.
25. Additionally, these cameras captured the defendant,
dressed in all black and carrying a dark colored bag,
approach the side of the courthouse. Id. He entered the
prosecutors’ office in the closed courthouse by breaking
a window. State v. Stephenson, supra, 337 Conn. 646.
The broken window provided ingress to an office
used by the prosecutor who was scheduled to begin
jury selection in a case involving the pending felony
charges against the defendant. Id. The defendant’s case
was the only one scheduled for jury selection that week.
Various files, including those labeled ‘‘TUL’’ and ‘‘SUM,’’
were found in disarray. Id. The police discovered a
bag containing six bottles of industrial kerosene,8 a
flammable liquid, in the prosecutors’ area with numer-
ous combustibles, and testing revealed the defendant’s
genetic profile as a contributor to the DNA mixture
recovered from the bag and its contents. Id., 646–47.
Following the break-in, the defendant called the
office of the public defender and inquired whether the
courthouse was open and whether he was required to
appear in court that day. Id., 647. He subsequently made
various incriminating statements. The defendant asked
his brother to ‘‘get rid of ‘bottles of things’ for a heater,
speculated about how the police located the [SUV], and
attempted to arrange an alibi.’’ Id.
The evidence presented at the defendant’s trial detail-
ing his actions before, during and after the break-in, and
the reasonable inferences drawn therefrom, provided
a sufficient basis for the jury reasonably to conclude
that the defendant had entered the courthouse with the
intent to alter, destroy, conceal, or remove any record,
document or thing with the purpose of impairing its
verity or availability for his imminent trial on the pend-
ing felony charges. See, e.g., State v. Soyini, 180 Conn.
App. 205, 222, 183 A.3d 42, cert. denied, 328 Conn. 935,
183 A.3d 1174 (2018). Specifically, the jury reasonably
could infer that the defendant planned to engage in
criminal conduct on the basis of the manner in which
he conducted reconnaissance of the closed courthouse
late at night when it was likely that no one would be
present. The jury also reasonably could infer, on the
basis of his chosen point of entry, that the defendant
wanted to gain access to the office of the prosecutor
who was handling his pending felony charges and to
his specific file. If the defendant’s sole intent was to
damage the courthouse, he could have chosen to make
entry into the courthouse at any number of other loca-
tions. Thus, the jury reasonably could infer that there
was significance to the point of entry chosen by the
defendant.
Most importantly, the evidence and testimony regard-
ing the scattered files on the floor of the prosecutors’
office provided a basis from which the jury could make
a series of additional reasonable inferences. First, the
jury reasonably could infer, from common sense, logic,
and the testimony of Suzanne Vieux, the supervisory
assistant state’s attorney at the courthouse, that the
staff of the prosecutors’ office would not have left the
files strewn on the floor in the haphazard manner that
is depicted in state’s exhibit 27. Indeed, other photo-
graphs of the prosecutors’ office admitted into evidence
depict an orderly, well maintained, and professional
office that is consistent with the requisite organization
and careful recordkeeping necessary to prosecute a
large volume of cases.
The inference that the staff would not have left these
files in such a manner also would certainly permit a
successive, reasonable inference that it was the defen-
dant who had been searching through these files at the
time he realized that there was a police presence at
the courthouse. The fact that two of those files were
associated with other defendants who had last names
alphabetically close to the defendant’s last name but-
tresses the inference that it was the defendant who had
been going through these files and, more importantly,
searching for his own case file. Indeed, the jury reason-
ably could infer that the defendant was searching for
the file related to his case because he believed, even if
mistakenly so, that it likely contained evidence that
would be introduced against him at his criminal trial
and that, if he could tamper with that evidence, the state
would be unable to secure a conviction against him.9
The fact that the defendant brought six bottles of
industrial strength kerosene into an office filled with
combustible materials also provided a reasonable basis
for the jury to infer that the defendant had intended to
start a fire that would consume the file associated with
his case and any physical evidence contained therein.
Indeed, the jury reasonably could infer that the defen-
dant knew that he could not simply steal or remove
just his file from the office because that would make
it easier for the police to determine who had broken
into the courthouse. Instead, the jury reasonably could
have inferred that the defendant understood that to
cover-up his destruction of the evidence in his case, he
also would have needed to destroy other files as well.
The mere fact that such a fire might have also caused
perhaps greater damage to the courthouse also does
not in any way negate the jury’s right reasonably to
infer that he intended to tamper with physical evidence
associated with his case. Indeed, from this evidence,
there simply is no reason why the jury would be prohib-
ited from determining that the defendant had the dual
intent to tamper with the physical evidence in his case
as well as damage the courthouse itself and thereby
delay his impending court date.
These reasonable inferences are further supported
by the defendant’s conduct following his break-in at
the courthouse and flight therefrom, including his call
to the public defender’s office inquiring whether the
courthouse would be open on the day after the break-
in and incriminating statements he made to his family.
See State v. Rhodes, supra, 335 Conn. 244 (in viewing
evidence that could yield contrary inferences, jury is
not barred from drawing those inferences consistent
with guilt and is not required to draw only those consis-
tent with innocence). The fact that this consciousness
of guilt evidence could have been used by the jury to
infer that the defendant had an intent to commit arson
in the courthouse more generally does not mean that
the jury was prohibited from using the same evidence
to support an inference, in conjunction with all of the
other evidence and inferences reasonably drawn there-
from, that the defendant had the necessary intent to
tamper with the physical evidence in his case. See State
v. Richards, 196 Conn. App. 387, 403, 229 A.3d 1157(2020) (consciousness of guilt evidence may be used
by jury to draw inference of intent to commit criminal
offense), aff’d, Conn. , A.3d (2021); see
generally State v. Otto, 305 Conn. 51, 73, 43 A.3d 629(2012) (Supreme Court rejected defendant’s argument
that consciousness of guilt evidence could be used only
to prove guilty act and not level of intent that attended
such act, and noted that consciousness of guilt evidence
is part of evidence jury can use to draw inference of
intent to kill); State v. Sivri, 231 Conn. 115, 130, 646
A.2d 169 (1994) (consciousness of guilt evidence is part
of evidence jury can use to draw inference of intent to
kill); State v. Grant, 149 Conn. App. 41, 50, 87 A.3d 1150(consciousness of guilt evidence is part of evidence
from which jury may draw inference of intent to kill),
cert. denied, 312 Conn. 907, 93 A.3d 158 (2014); State
v. Santos, 41 Conn. App. 361, 371, 675 A.2d 930 (intent
to kill may be inferred from defendant’s failure to seek
medical assistance for victim and consciousness of guilt
evidence), cert. denied, 237 Conn. 932, 677 A.2d 1374(1996).
We conclude, on the basis of this chain of evidence
and the permissible inferences drawn therefrom, that
the jury reasonably could have found that the defen-
dant, who possessed a strong motive, broke into the
prosecutors’ area of the courthouse with the intent to
tamper with evidence. See State v. Soyini, supra, 180
Conn. App. 222; see generally State v. Bonilla, supra,
317 Conn. 768 (while not essential for state to prove
motive for crime, state’s case strengthened when it can
show adequate motive).
In reaching this conclusion, we are mindful that
‘‘[p]roof of a material fact by inference from circumstan-
tial evidence need not be so conclusive as to exclude
every other hypothesis. It is sufficient if the evidence
produces in the mind of the trier a reasonable belief in
the probability of the existence of the material fact. . . .
Thus, in determining whether the evidence supports a
particular inference, we ask whether that inference is
so unreasonable as to be unjustifiable. . . . In other
words, an inference need not be compelled by the evi-
dence; rather, the evidence need only be reasonably
susceptible of such an inference.’’ (Internal quotation
marks omitted.) State v. Hall-George, supra, 203 Conn.
App. 226. Further, we emphasize that, in reviewing a
claim of insufficient evidence, we construe the evidence
in the light most favorable to sustaining the verdict and
ask whether there is a reasonable view of the evidence
that supports the verdict. State v. Luciano, 204 Conn.
App. 388, 396–98, 253 A.3d 1005, cert. denied, 337 Conn.
903, 252 A.3d 362 (2021); see also State v. Rhodes, supra,
335 Conn. 233 (before reviewing court may overturn
jury verdict for insufficient evidence, it must conclude
that no reasonable jury could arrive at conclusion that
jury did); State v. Torres, supra, 242 Conn. 501–502
(reviewing court must uphold jury’s verdict when it is
sufficiently supported by circumstantial evidence even
though another jury rationally could have reached dif-
ferent conclusion). Additionally, ‘‘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
. . . .’’ (Emphasis added; internal quotation marks
omitted.) State v. Capasso, 203 Conn. App. 333, 338,
248 A.3d 58, cert. denied, 336 Conn. 939, 249 A.3d 352(2021); see also State v. Sivri, supra, 231 Conn. 130(proof beyond reasonable doubt properly may be based
on chain of inferences, each link of which may depend
for its validity on validity of prior link in chain); State
v. James, 141 Conn. App. 124, 132, 60 A.3d 1011 (same),
cert. denied, 308 Conn. 932, 64 A.3d 331 (2013).
In the present case, the totality of the evidence pre-
sented by the state regarding the defendant’s actions,
and the permissible inferences drawn therefrom, sup-
port the jury’s finding that the defendant intended to
tamper with evidence. We therefore reject the defen-
dant’s claim that the evidence was insufficient to prove
his intent.
B
The defendant next argues that the evidence was
insufficient to prove that he committed the crime of
attempt to commit arson in the second degree. Specifi-
cally, he contends that the state failed to prove that he
had committed the completed crime of tampering with
physical evidence, which, due to the information, was
a necessary element of the offense of attempt to commit
arson in the second degree. He also claims that the
state failed to prove that he had intended to destroy or
damage a building, as required by § 53a-112 (a) (1) (B).
We are not persuaded.
We begin our analysis with the language of the opera-
tive information. Count three of the information pro-
vides in relevant part: ‘‘And said [s]tate’s [a]ttorney fur-
ther . . . alleges that in the [c]ity of Norwalk on or
about the [third] day of March, 2013, the said defendant
. . . with intent to destroy and damage a building, did
an act, which, under the circumstances as he believed
them to be, was an act which constituted a substantial
step in a course of conduct planned to culminate in
starting a fire, and such fire was intended to conceal
the crime of tampering with physical evidence in viola-
tion of [§§] 53a-112 (a) (1) (B), 53a-49 (a) (2), and 53a-
155 (a) (1).’’
Next, we turn to the relevant statutory text. Section
53a-112 (a) provides in relevant part: ‘‘A person is guilty
of arson in the second degree when, with intent to
destroy or damage a building, as defined in section 53a-
100, (1) he starts a fire or causes an explosion and . . .
(B) such fire or explosion was intended to conceal some
other criminal act . . . .’’ See also State v. Rivera, 268
Conn. 351, 353 n.4, 844 A.2d 191 (2004).
Section 53a-49 (a) provides in relevant part that ‘‘[a]
person is guilty of an attempt to commit a crime if,
acting with the kind of mental state required for com-
mission of the crime, he . . . (2) intentionally does
. . . anything which, under the circumstances as he
believes them to be, is an act . . . constituting a sub-
stantial step in a course of conduct planned to culminate
in his commission of the crime.’’ Our inquiry therefore
into whether a ‘‘substantial step’’ has occurred focuses
not on what remains to be done but, rather, on what
the defendant already has done. State v. Daniel B., 331
Conn. 1, 13, 201 A.3d 989 (2019).
Thus, in order to convict the defendant of attempt
to commit arson in the second degree in violation of
§§ 53a-49 (a) (2) and 53a-112 (a) (1) (B), the state was
required to prove, beyond a reasonable doubt, that the
defendant acted with the specific intent to commit
arson in the second degree, which, in turn, includes the
intent to start a fire to conceal the crime of tampering
with physical evidence, and that the defendant took
a substantial step in a course of conduct planned to
culminate in his commission of the crime.10 See State
v. Servello, 59 Conn. App. 362, 370, 757 A.2d 36, cert.
denied, 254 Conn. 940, 761 A.2d 764 (2000). With this
in mind, we consider each of the defendant’s arguments
in turn.
1
The defendant first contends that the state failed to
present any evidence that any ‘‘records, documents,
or items had been altered, destroyed, concealed, or
removed’’ and, therefore, that there was insufficient
evidence for the jury to find that he had tampered with
physical evidence, which was the ‘‘other criminal act’’
that he had intended to conceal, as charged in the infor-
mation. The state counters that proof of the completed
crime of tampering with physical evidence was not a
requirement for conviction; rather, its burden was satis-
fied upon proof of the defendant’s intent to tamper with
physical evidence and that his actions constituted a
substantial step in a course of conduct planned to culmi-
nate in his commission of the crime. We agree with
the state.
‘‘An attempt of a crime is accomplished when a per-
son intentionally does . . . anything which, under the
circumstances as he believes them to be, is an act . . .
constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime.
. . . The defendant also must have possessed the spe-
cific intent to commit the underlying crime. An attempt
is an inchoate crime, meaning that it is unfinished
or begun with the proper intent but not finished.’’
(Emphasis added; internal quotation marks omitted.)
State v. Jones, 96 Conn. App. 634, 641, 902 A.2d 17, cert.
denied, 280 Conn. 919, 908 A.2d 544 (2006); see also
State v. Carey, 13 Conn. App. 69, 74–75, 534 A.2d 1234(1987) (attempt under § 53a-49 is act or omission done
with intent to commit some other crime, and underlying
rationale is that, although defendant may have failed
in his or her purpose, conduct remains criminally culpa-
ble); see generally I. Robbins, ‘‘Double Inchoate
Crimes,’’ 26 Harv. J. on Legis. 1, 3 (1989) (‘‘The inchoate
crimes of attempt, conspiracy, and solicitation are well
established in the American legal system. ‘Inchoate’
offenses allow punishment of an action even though
[the actor] has not consummated the crime that is the
object of his efforts.’’ (Footnote omitted.)).
‘‘[T]he standard for the substantial step element of
criminal attempt focuse[s] on what the actor has already
done and not what remains to be done. . . . The sub-
stantial step must be at least the start of a line of conduct
which will lead naturally to the commission of a crime.
. . . [T]he ultimate measure of the sufficiency of the
defendant’s conduct to constitute a substantial step in
a course of conduct planned to culminate in the com-
mission of [a crime] is not, to reiterate, how close in
time or place or final execution his proven conduct
came to the consummation of that crime, but whether
such conduct, if at least the start of a line of conduct
leading naturally to the commission of the crime,
strongly corroborated his alleged criminal purpose.’’
(Internal quotation marks omitted.) State v. Juarez, 179
Conn. App. 588, 600, 180 A.3d 1015 (2018), cert. denied,
331 Conn. 910, 203 A.3d 1245 (2019); see also State
v. Carter, 317 Conn. 845, 856, 120 A.3d 1229 (2015).
Additionally, our Supreme Court has reasoned that,
‘‘[w]hen the legislature codified the crime of attempt
and incorporated the substantial step as one of the
means by which a defendant could be held liable, it
adopted the substantial step provision from the Model
Penal Code. . . . The Model Penal Code’s substantial
step provision did not require a last proximate act or
one of its various analogues in order to permit the
apprehension of dangerous persons at an earlier stage
than . . . other approaches without immunizing them
from attempt liability. . . . The drafters of the Model
Penal Code explained that just because further major
steps must be taken before the crime can be completed
does not preclude a finding that the steps already under-
taken are substantial.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Daniel B., supra, 331
Conn. 15–16.
Our analysis is informed by State v. Servello, supra,
59 Conn. App. 364–65. There, the state charged the
incarcerated defendant with attempt to commit arson
in the second degree by hiring another individual to
start a fire. Id., 365. The defendant had attempted to
hire an undercover state police trooper, posing as a
Mafia associate, to set fire to a courthouse and to the
house and car of a prosecutor. Id. On appeal, the defen-
dant claimed, inter alia, that the evidence was insuffi-
cient to establish that his conduct had constituted a
substantial step toward hiring the undercover state
trooper. Id., 371. In rejecting this claim, we noted that
the pertinent question was whether the defendant had
committed a substantial step toward hiring the under-
cover trooper to commit an arson, and not whether
that act had been completed. Id., 372. ‘‘Any other inter-
pretation would impose a requirement of a more strin-
gent standard of proof for attempt than is provided by
§ 53a-49.’’ Id., 375.
Similarly, in the present case, the state was not
required to prove the completed crime of tampering
with physical evidence for purposes of convicting the
defendant of attempt to commit arson in the second
degree in violation of §§ 53a-49 and 53a-112 (a) (1) (B).
We iterate that the state’s burden was to prove, beyond
a reasonable doubt, that the defendant had intended to
start a fire in the courthouse to conceal the crime of
tampering with physical evidence and that he had taken
a substantial step in a course of conduct planned to
culminate in his commission of the crime. We conclude,
therefore, that this sufficiency argument raised by the
defendant must fail.
2
The defendant next argues that the evidence was
insufficient to prove that he intended to destroy or
damage a building. Specifically, he claims that the
state’s theory of the case was that he intended to dam-
age or destroy some of the contents of the building,
namely, the evidence contained in the prosecutors’ area
of the courthouse, but that the state failed to show
that he intended to damage or destroy the structural
components of the building itself. The state counters
that, ‘‘one intends the natural consequences of his/her
actions, and, therefore, the defendant’s intent to dam-
age or destroy the contents of the building necessarily
supports the inference that he also intended to damage
or destroy the building itself.’’ We agree with the state.
The state presented evidence that the defendant
entered the courthouse with six bottles of industrial
strength kerosene. The jury heard testimony from the
state’s expert witness, Jack Hubball, that kerosene is
a flammable liquid that could be used as an accelerant
to start a fire.11 Hubball further testified that if kerosene
were poured on combustibles, such as papers, rags,
cloth, curtains, carpeting, chairs, or the materials on
chairs, both the kerosene and the combustibles will
burn and propagate the fire.
The specific intent to damage or destroy a building12
is an essential element of the crime of arson in the
second degree. State v. Chasse, 51 Conn. App. 345, 369,
721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723
A.2d 816 (1999). ‘‘[I]t is well established that the ques-
tion of intent is purely a question of fact. . . . The state
of mind of one accused of a crime is often the most
significant and, at the same time, the most elusive ele-
ment of the crime charged. . . . Because it is practi-
cally impossible to know what someone is thinking
or intending at any given moment, absent an outright
declaration of intent, a person’s state of mind is usually
proven by circumstantial evidence. . . . Intent may be
and usually is inferred from conduct. . . . [W]hether
such an inference should be drawn is properly a ques-
tion for the jury to decide.’’ (Internal quotation marks
omitted.) State v. Servello, supra, 59 Conn. App. 369.
The jury may infer that a defendant intended the
natural consequences of his actions. State v. McRae,
118 Conn. App. 315, 320, 983 A.2d 286 (2009); see also
State v. Daniel G., 147 Conn. App. 523, 538, 84 A.3d 9,
cert. denied, 311 Conn. 931, 87 A.3d 579 (2014). Here,
the defendant entered the courthouse while carrying
six bottles of industrial strength kerosene, a chemical
substance that generates more heat and smoke than
standard kerosene. His entry point was where the prose-
cutors’ offices and their files were located. The jury
reasonably could find that, by bringing this flammable
liquid into an area packed with files and other combusti-
bles, the defendant possessed the requisite intent to
damage or destroy the building as a natural conse-
quence of his actions had he completed the act of start-
ing a fire in that area of the courthouse. Additionally,
we note that, even if the defendant’s primary intent was
to damage or destroy the contents of the building, i.e.,
the files contained in the prosecutors’ office area, the
jury reasonably could have inferred that he also
intended to damage the building to achieve that objec-
tive. See, e.g., State v. Ramey, supra, 127 Conn. App.
568 (although suicide may have been defendant’s pri-
mary goal, jury still reasonably could infer that he
intended to damage building as means to that goal).
For these reasons, we conclude that the defendant’s
sufficiency argument regarding the charge of attempt
to commit arson in the second degree fails.
C
The defendant finally argues that the evidence was
insufficient to prove that the documents or materials
he had tampered with qualified as physical evidence.
Specifically, he claims that the state failed to prove that
any materials in the prosecutors’ case files constituted
‘‘physical evidence’’ as defined by General Statutes
§ 53a-146 (8). The state responds that the text of § 53a-
155 does not incorporate the definition of physical evi-
dence set forth in § 53a-146 (8). We conclude that the
plain language of § 53a-155 prohibits the alteration,
destruction, concealment or removal of any record,
document or thing with the purpose of impairing its
verity or availability in an official proceeding. Accord-
ingly, we reject the defendant’s argument.
This specific sufficiency argument challenges the
interpretation of the text of § 53a-155. ‘‘When . . . the
claim of insufficient evidence turns on the appropriate
interpretation of a statute . . . our review is plenary.
. . . The process of statutory interpretation involves
the determination of the meaning of the statutory lan-
guage as applied to the facts of the case . . . . When
construing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case . . . . In
seeking to determine that meaning . . . [General Stat-
utes] § 1-2z directs us first to consider the text of the
statute itself and its relationship to other statutes. If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extra-
textual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . . We recognize that terms in
a statute are to be assigned their ordinary meaning,
unless context dictates otherwise . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Webster, 308 Conn. 43, 51–52, 60 A.3d 259 (2013); see
also State v. Sabato, 152 Conn. App. 590, 595–96, 98
A.3d 910 (2014), aff’d, 321 Conn. 729, 138 A.3d 895(2016); see generally State v. Jackson, 39 Conn. 229,
230 (1872) (‘‘[i]t is generally sufficient to describe a
statutory [offense] in the words of the statute’’).
We begin our analysis with the title and text of § 53a-
155. Specifically, that statute provides in relevant part:
‘‘Tampering with or fabricating physical evidence: Class
D felony. (a) A person is guilty of tampering with or
fabricating physical evidence if, believing that an offi-
cial proceeding is pending, or about to be instituted,
he: (1) Alters, destroys, conceals or removes any record,
document or thing with purpose to impair its verity
or availability in such proceeding . . . .’’ (Emphasis
added.) General Statutes (Rev. to 2013) § 53a-155 (a).
Next, we consider the statutory definition of the term
‘‘physical evidence.’’ Section 53a-146 (8) provides:
‘‘ ‘Physical evidence’ means any article, object, docu-
ment, record or other thing of physical substance which
is or is about to be produced or used as evidence in
an official proceeding.’’
Despite the absence of the phrase ‘‘physical evi-
dence’’ in the text of § 53a-155 identifying it as an ele-
ment of that crime, the defendant contends that its
inclusion in that statute’s title signals an incorporation
of the § 53a-146 (8) definition into § 53a-155. He further
contends that, in the absence of any evidence as to what
the files from the prosecutors’ office actually contained,
the state failed to meet its burden as to this element
of § 53a-155. We are not persuaded.
Our Supreme Court has stated that, although a statu-
tory title may provide some evidence as to its meaning,
it cannot trump an interpretation that is based on the
statutory text. Commissioner of Correction v. Freedom
of Information Commission, 307 Conn. 53, 75, 52 A.3d
636 (2012); see also State v. Tabone, 279 Conn. 527,
539–40 n.14, 902 A.2d 1058 (2006); State v. Castillo, 165
Conn. App. 703, 726 n.7, 140 A.3d 301 (2016), aff’d, 329
Conn. 311, 186 A.3d 672 (2018); 1A N. Singer & J. Singer,
Sutherland Statutes and Statutory Construction (7th Ed.
2009) § 18:7, pp. 77–78 (title of statute neither controls
nor limits plain meaning of statutory text and, where
text is clear and unambiguous, title is not considered
to determine meaning of statute). Additionally, in In re
Jacklyn H., 162 Conn. App. 811, 826 n.14, 131 A.3d 784(2016), this court determined that, although the title of
General Statutes § 52-146s, a statute setting forth vari-
ous definitions, contained the phrase ‘‘confidential
information,’’ the text of the statute used the word ‘‘priv-
ileged,’’ and clearly intended that a privileged status
would apply to communications and records between
a professional counselor and a person consulting such
a counselor.
On the basis of the plain language of the text of § 53a-
155, we conclude that the state was required to prove
beyond a reasonable doubt that the defendant, believing
that an official proceeding was pending, altered,
destroyed, concealed or removed any record, docu-
ment or thing, with the purpose of impairing its verity
or availability in an official proceeding. In other words,
despite the title of § 53a-155, we are not persuaded that
our legislature intended to incorporate the definition
of ‘‘physical evidence’’ contained in § 53a-146 (8) as an
element of § 53a-155. The defendant’s argument, there-
fore, must fail.
II
The defendant next claims that the court improperly
excluded evidence regarding his mental state prior to
the commission of these offenses. Specifically, he
argues that the court erred in sustaining the state’s
objection to the testimony of Attorney James LaMon-
tagne, who represented the defendant with respect to
the pending felony charges. LaMontagne would have
testified that, prior to the break-in at the courthouse,
the defendant had stated that he was going to plead
guilty to the pending felony charges. The defendant
contends that the court abused its discretion by sus-
taining the state’s hearsay objection and that this error
was harmful. The state concedes that the court improp-
erly excluded this testimony but maintains that any
error was harmless. We agree with the state.
The following additional facts are necessary for our
discussion. Outside the presence of the jury, LaMon-
tagne stated during the defendant’s offer of proof that
he had represented the defendant with respect to the
pending felony charges that had been brought in 2012.
The defendant pleaded guilty to these charges on Tues-
day, March 5, 2013, two days after the break-in at the
courthouse. LaMontagne explained that he had a
lengthy discussion with the defendant on Friday, March
1, 2013, prior to the break-in. During that conversation,
LaMontagne came to believe that the trial on the pend-
ing felony charges would not go forward because a plea
bargain had been reached.
Defense counsel subsequently argued that he had
proffered the testimony of LaMontagne ‘‘to establish at
least a defense to the motive. [Defense counsel] had
asked [LaMontagne] . . . whether or not he antici-
pated going to trial the following week based on his
conversations with [the defendant] on the Friday before
the incident, and he said, no, and that’s because [the
defendant] had told [LaMontagne] he was going to plead
guilty.’’ Defense counsel acknowledged that what the
defendant had said to LaMontagne on March 1, 2013,
constituted hearsay but claimed it was admissible,
under, inter alia, the ‘‘then existing mental—mental
state of the declarant at the time; that is, he did not
have a future intention to go to trial, and, therefore,
have an intention to get out [of] it somehow. He was
going to accept responsibility. He was going to plead
guilty . . . .’’ Defense counsel further claimed that the
inability to call LaMontagne as a witness impacted the
defendant’s constitutional right to present a defense.
The state argued that the defendant’s statements to
LaMontagne regarding his intention to plead guilty were
inadmissible hearsay and not relevant.
After hearing further argument, the court agreed with
the state that LaMontagne’s proffered testimony consti-
tuted inadmissible evidence. The court further described
the statements as a means ‘‘of the defendant testifying
without taking the witness stand.’’
On appeal, the defendant claims that the court
improperly excluded the evidence of the defendant’s
then existing mental state. He acknowledges that this
evidence constituted hearsay but contends that it was
admissible pursuant to the ‘‘state of mind exception’’
codified in § 8-3 (4) of the Connecticut Code of Evi-
dence.13
The defendant argues that he was harmed by this
improper evidentiary ruling because the exclusion of
LaMontagne’s testimony substantially affected the
jury’s verdict. In the alternative, the defendant contends
that the improper exclusion of this evidence violated
his state and federal constitutional rights to present a
defense, and that the state cannot demonstrate that the
court’s improper ruling was harmless beyond a reason-
able doubt.
In its appellate brief, the state agrees that the court
abused its discretion in excluding LaMontagne’s testi-
mony from evidence. The state claims, however, that
the exclusion of this evidence did not deprive the defen-
dant of his constitutional rights to present a defense.
Finally, the state maintains that the defendant failed
to establish harm as a result of the court’s improper
evidentiary ruling. We agree with state.
A
We first consider whether the court’s improper evi-
dentiary ruling violated the defendant’s state and fed-
eral constitutional rights to present a defense. We con-
sider this first because the resolution of that question
dictates the appropriate harmless error test that we
must apply. As our Supreme Court has stated: ‘‘Our
standard of review of an evidentiary ruling is dependent
on whether the claim is of constitutional magnitude. If
the claim is of constitutional magnitude, the state has
the burden of proving [that] the constitutional error
was harmless beyond a reasonable doubt. Otherwise,
in order to establish reversible error on an evidentiary
impropriety, the defendant must prove both an abuse
of discretion and a harm that resulted from such abuse.’’
(Citations omitted; internal quotation marks omitted.)
State v. Swinton, 268 Conn. 781, 797–98, 847 A.2d
921 (2004).
Specifically, the defendant contends that his rights
to present a defense pursuant to the fifth, sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion,14 were violated by the court’s ruling, which, he
claims, excluded ‘‘the most compelling evidence avail-
able to [him, which] was crucial to his defense.’’ The
state counters that this evidence was neither central
nor crucial to his defense and, therefore, that the impro-
priety of the court’s ruling did not rise to the level of
a constitutional violation.
Our Supreme Court has recognized that the federal
constitution requires that a criminal defendant be
afforded a meaningful opportunity to present a com-
plete defense. State v. Andrews, 313 Conn. 266, 275, 96
A.3d 1199 (2014); State v. Cerreta, 260 Conn. 251, 260,
796 A.2d 1176 (2002). ‘‘In plain terms, the defendant’s
right to present a defense is the right to present the
defendant’s version of the facts as well as the prosecu-
tion’s to the jury so that it may decide where the truth
lies. . . . It guarantees the right to offer the testimony
of witnesses, and to compel their attendance, if neces-
sary . . . . Therefore, exclusion of evidence offered
by the defense may result in the denial of the defen-
dant’s right to present a defense.’’ (Citations omitted;
internal quotation marks omitted.) State v. Wright, 320
Conn. 781, 817, 135 A.3d 1 (2016); see also State v.
Holley, 327 Conn. 576, 593–94, 175 A.3d 514 (2018);
State v. Cerreta, supra, 260–61.
Additionally, our Supreme Court has stated that
‘‘[w]hether a trial court’s . . . restriction of a defen-
dant’s or defense [witness’] testimony in a criminal trial
deprives a defendant of his [constitutional] right to pres-
ent a defense is a question that must be resolved on a
[case-by-case] basis. . . . The primary consideration in
determining whether a trial court’s ruling violated a
defendant’s right to present a defense is the centrality
of the excluded evidence to the claim or claims raised
by the defendant at trial.’’ (Internal quotation marks
omitted.) State v. Andrews, supra, 313 Conn. 276; State
v. Sandoval, 263 Conn. 524, 546, 821 A.2d 247 (2003).
The defendant claims that his discussion with LaMon-
tagne regarding his intention to plead guilty constituted
‘‘the most compelling evidence available to [him] and
was crucial to his defense.’’ In support of his claim, he
relies on State v. Cerreta, supra, 260 Conn. 251. In that
case, the defendant claimed, inter alia, that the trial
court improperly had excluded certain hair and finger-
print evidence obtained at the crime scene that forensic
testing subsequently revealed could not have come from
the defendant. Id., 257. The trial court granted the state’s
motion in limine to preclude this evidence on the basis
of relevancy. Id., 259.
Our Supreme Court first determined that the trial
court had abused its discretion in granting the state’s
motion in limine on the ground that this evidence was
irrelevant. Id., 262–63. Next, it concluded that the
improper exclusion of this evidence violated the defen-
dant’s constitutional rights to present a defense. Id.,
264. ‘‘The excluded evidence not only was relevant to
the primary issue at trial, namely, the identity of the
perpetrator, it was central to the defendant’s claim of
innocence. The defendant’s claim was, in essence, that
[two of] the state’s key witnesses who had provided
the only evidence connecting the defendant to the
crime, had concocted their statements to the police and
their testimony out of animus toward the defendant
and a desire to collect the substantial reward being
offered in the case. The excluded evidence was, in
essence, the most compelling evidence available to the
defendant and was crucial to his defense. We conclude
that the evidence was of such importance to the defen-
dant’s ability to refute the [two witnesses’] testimony
that its exclusion violated the defendant’s right under
the sixth and fourteenth amendments to defend against
the state’s accusations.’’ (Footnote omitted.) Id.
This appeal is distinguishable from the circumstances
found in State v. Cerreta, supra, 260 Conn. 251. In Cer-
reta, the crimes at issue had remained unsolved for
nine years. Id., 255. The two witnesses who eventually
implicated the defendant in the crimes were sisters;
one sister had been married to the defendant twice,
and the other had engaged in an affair with the defen-
dant during the second marriage. Id., 255. The state’s
case ‘‘rested entirely upon the testimony’’ of these two
witnesses. Id., 265.
The excluded evidence in the present case lacks the
significance or importance of that in State v. Cerreta,
supra, 260 Conn. 251. Here, the state presented consid-
erable evidence regarding the defendant’s activities just
prior to, during, and after the break-in to establish both
his identity as the perpetrator and his intent.15 Addition-
ally the defendant faced a period of incarceration. His
stated interest in pleading guilty may have been dimin-
ished upon the realization that the offered plea agree-
ment involved incarceration. Thus, the defendant’s
motivation for disrupting or delaying court proceedings
remained, despite the prospect of this agreement.
Finally, we note that the defendant was able to present
his defense that he was not the perpetrator despite the
court’s ruling regarding his statements to LaMontagne.
Specifically, he presented alibi evidence via the testi-
mony of his brother and challenged the various aspects
of the state’s evidence regarding the issue of identity.
For these reasons, we disagree with the defendant’s
assertion that he was deprived of his constitutional
right to present a defense as a result of the court’s
improper evidentiary ruling.
B
As a result of our conclusion that the trial court’s
evidentiary error did not implicate the defendant’s con-
stitutional rights, we next address the defendant’s alter-
native claim that he has satisfied his burden to demon-
strate that the court’s improper evidentiary ruling was
harmful error. Specifically, he contends that the exclu-
sion of his statement to LaMontagne substantially
swayed the jury’s verdict, as this evidence was
important and was not cumulative of other evidence.
The defendant argues that there was no other evidence
of his intent prior to the break-in and the state’s case
was not strong. The state responds that this evidence
did not establish a lack of intent, identity or motive
with respect to its prosecution of the defendant. The
state argues that this evidentiary error by the court
did not substantially affect the verdict. We agree with
the state.
‘‘The law governing harmless error for nonconstitu-
tional evidentiary claims is well settled. When an
improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [W]hether [an
improper ruling] is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the [defendant’s] case,
whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution’s case.
. . . Most importantly, we must examine the impact of
the . . . evidence on the trier of fact and the result of
the trial. . . . [T]he proper standard for determining
whether an erroneous evidentiary ruling is harmless
should be whether the jury’s verdict was substantially
swayed by the error. . . . Accordingly, a nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict.’’ (Internal quotation marks omitted.) State
v. Fernando V., 331 Conn. 201, 215, 202 A.3d 350 (2019);
State v. Favoccia, 306 Conn. 770, 808–809, 51 A.3d
1002 (2012).
The defendant correctly points out that the court
excluded the only evidence regarding his intention to
plead guilty to the pending felony charges prior to the
break-in. We disagree, however, with his overestimation
of the strength and significance of this evidence. His
intention on Friday, March 1, 2013, to enter a guilty
plea to the pending felony charges may not have elimi-
nated his intent to commit the offenses of burglary
in the third degree, attempt to tamper with physical
evidence and attempt to commit arson in the second
degree during the late night hours of March 3, 2013. As
we noted, the realization of the effect of such a plea,
i.e., a period of incarceration, may have provided the
defendant with an incentive to commit these offenses.
Further, as we repeatedly have pointed out in this opin-
ion, the state introduced substantial evidence of the
defendant’s identity and actions with respect to the
charged offenses. For these reasons, we conclude that
a fair assurance exists that the improper exclusion of
LaMontagne’s testimony did not substantially affect the
jury’s verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
1
All references to § 53a-155 are to the 2013 revision of that statute.
2
We comment briefly on the somewhat unique situation in which this
panel of the Appellate Court has reached a conclusion contrary to that of
the 2019 panel that initially heard this appeal. See State v. Stephenson, supra,
187 Conn. App. 20. We frequently have stated and consistently have adhered
to the policy that ‘‘we cannot overrule the decision made by another panel
of this court in the absence of en banc consideration.’’ State v. Freddy T.,
200 Conn. App. 577, 589 n.14, 241 A.3d 173 (2020); see also State v. Jackson,
198 Conn. App. 489, 507 n.12, 233 A.3d 1154, cert. denied, 335 Conn. 957,
239 A.3d 318 (2020); State v. White, 127 Conn. App. 846, 858 n.11, 17 A.3d
72, cert. denied, 302 Conn. 911, 27 A.3d 371 (2011).
The contrary result reached in this opinion from that of the 2019 panel
is made possible as a result of the remand order from our Supreme Court.
See, e.g., State v. Siler, 204 Conn. App. 171, 178–79, 253 A.3d 995 (2021)
(our Supreme Court is ultimate arbiter of law in this state, and this court
is bound by its decisions). Specifically, it reversed the judgment of the 2019
Appellate Court panel and directed us ‘‘to address the claims raised by the
defendant in his initial appeal [and consider] the sufficiency issued raised
in [our] previous decision [only after supplemental briefing].’’ State v. Ste-
phenson, supra, 337 Conn. 654. As a result of this order, our Supreme Court
effectively vacated the 2019 opinion from this court.
Having the benefit of the supplemental briefing of the parties, and guided
by the discussion and analysis contained in our Supreme Court’s opinion
in State v. Rhodes, 335 Conn. 226, 238, 249 A.3d 683 (2020), regarding the
‘‘ ‘line between permissible inference and impermissible speculation,’ ’’ we
respectfully have reached an outcome different from the one reached by
the 2019 panel of this court, which had determined that the evidence was
insufficient to support the jury’s verdict. State v. Stephenson, supra, 187
Conn. App. 39. For the reasons set forth in part I of this opinion, we have
determined that the jury’s verdict should be upheld.
3
We consider the defendant’s sufficiency claims first due to the nature
of the remedy. ‘‘We begin with this issue because if the defendant prevails
on the sufficiency claim, [he] is entitled to a directed judgment of acquittal
rather than to a new trial. See State v. Calabrese, 279 Conn. 393, 401, 902
A.2d 1044 (2006); see also State v. Smith, 73 Conn. App. 173, 178, 807 A.2d
500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002); State v. Theriault, 38
Conn. App. 815, 823 n.7, 663 A.2d 423 ([a]lthough we find the defendant’s
[jury charge claim] dispositive, we must address the sufficiency of the evi-
dence claim since the defendant would be entitled to an acquittal of the
charge if [he] prevails on this claim), cert. denied, 235 Conn. 922, 666 A.2d
1188 (1995).’’ (Internal quotation marks omitted.) State v. Badaracco, 156
Conn. App. 650, 656 n.11, 114 A.3d 507 (2015).
4
In his concurring and dissenting opinion in Rhodes, Justice Ecker, joined
by Justices Palmer and McDonald, observed: ‘‘No objective formula or uni-
form template tells us how to distinguish reasonable inference from imper-
missible speculation.’’ State v. Rhodes, supra, 335 Conn. 266 (Ecker, J.,
concurring in part and dissenting in part).
5
See State v. Petersen, 196 Conn. App. 646, 656–57, 230 A.3d 696 (estab-
lished case law directs appellate courts to review claims of evidentiary
insufficiency in light of all evidence adduced at trial), cert. denied, 335 Conn.
921, 232 A.3d 1104 (2020).
6
‘‘Section 53a-155 was amended in 2015 to add that one may be guilty of
tampering during a criminal investigation or when a criminal proceeding is
about to commence.’’ State v. Stephenson, supra, 187 Conn. App. 33 n.9;
see generally State v. Lamantia, 336 Conn. 747, 779–84, 250 A.3d 648 (2020)
(D’Auria, J., dissenting) (summarizing history and circumstances of 2015
amendment to § 53a-155). This amendment does not impact our analysis in
the present case.
7
General Statutes § 53a-3 (11) provides: ‘‘A person acts ‘intentionally’ with
respect to a result or to conduct described by a statute defining an offense
when his conscious objective is to cause such result or to engage in such
conduct . . . .’’ See also State v. Reed, 176 Conn. App. 537, 549, 169 A.3d
326, cert. denied, 327 Conn. 974, 174 A.3d 194 (2017); State v. Raynor, 175
Conn. App. 409, 431–32, 167 A.3d 1076 (2017), aff’d, 334 Conn. 264, 221 A.3d
401 (2019).
8
Jack Hubball, a chemist in the state forensic laboratory, testified that
industrial kerosene generates more BTUs when burned, has a stronger odor
and results in more smoke as compared to standard kerosene.
9
The fact that the defendant may not have been successful in locating
his own file does not in any way vitiate the right of the jury to draw the
inference that he was looking for his own file.
10
General Statutes § 53a-49 (b) provides in relevant part: ‘‘Conduct shall
not be held to constitute a substantial step under subdivision (2) of subsec-
tion (a) of this section unless it is strongly corroborative of the actor’s
criminal purpose. Without negating the sufficiency of other conduct, the
following, if strongly corroborative of the actor’s criminal purpose, shall
not be held insufficient as a matter of law . . . (3) reconnoitering the place
contemplated for the commission of the crime; (4) unlawful entry of a
structure, vehicle or enclosure in which it is contemplated that the crime
will be committed; (5) possession of materials to be employed in the commis-
sion of the crime, which are specially designed for such unlawful use or
which can serve no lawful purpose of the actor under the circumstances;
(6) possession, collection or fabrication of materials to be employed in
the commission of the crime, at or near the place contemplated for its
commission, where such possession, collection or fabrication serves no
lawful purpose of the actor under the circumstances . . . .’’ See also State
v. Osbourne, 138 Conn. App. 518, 527–28, 53 A.3d 284, cert. denied, 307
Conn. 937, 56 A.3d 716 (2012).
11
See footnote 8 of this opinion.
12
General Statutes § 53a-100 (a) provides in relevant part: ‘‘(1) ‘Building’
in addition to its ordinary meaning, includes any watercraft, aircraft, trailer,
sleeping car, railroad car or other structure or vehicle or any building with
a valid certificate of occupancy. Where a building consists of separate units,
such as, but not limited to separate apartments, offices or rented rooms,
any unit not occupied by the actor is, in addition to being a part of such
building, a separate building . . . .’’ See also State v. Domian, 35 Conn. App.
714, 724–25, 646 A.2d 940 (1994), aff’d, 235 Conn. 679, 688 A.2d 1333 (1996).
13
Section 8-3 (4) of the Connecticut Code of Evidence provides: ‘‘State-
ment of then Existing Mental or Emotional Condition. A statement of the
declarant’s then existing mental or emotional condition, including a state-
ment indicating a present intention to do a particular act in the immediate
future, provided that the statement is a natural expression of the condition
and is not a statement of memory or belief to prove the fact remembered
or believed.’’ See, e.g., State v. Perkins, 271 Conn. 218, 256 n.36, 856 A.2d
917 (2004); State v. Mekoshvili, 195 Conn. App. 154, 160–61, 223 A.3d 834,
cert. granted, 334 Conn. 923, 223 A.3d 60 (2020).
14
The defendant has not provided an independent analysis of his state
constitutional claim under State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992), and, therefore, we consider that claim abandoned and unreview-
able. See, e.g., State v. Rivera, 335 Conn. 720, 725 n.2, 240 A.3d 1039 (2020);
see also State v. Wood, 159 Conn. App. 424, 431 n.4, 123 A.3d 111 (2015)
(‘‘Because the defendant has not briefed his claims separately under the
Connecticut constitution, we limit our review to the United States constitu-
tion. We have repeatedly apprised litigants that we will not entertain a
state constitutional claim unless the defendant has provided an independent
analysis under the particular provisions of the state constitution at issue.’’
(Internal quotation marks omitted.)).
15
We iterate that, ‘‘[w]hile motive is not an element of a crime that the
state has the burden of proving, the presence of evidence of motive may
strengthen the state’s case. . . . It is conceivable that the evidence adduced
in a particular case would be so inconclusive that without evidence of
motive a judgment of acquittal might be required because the jury could
not rationally find that the state had proved the elements of the charged
offense beyond a reasonable doubt. In such a case, a judgment of acquittal
might be required not because motive was an element of the offense, but
because evidence of motive would strengthen the state’s otherwise insuffi-
cient evidence of an element of the offense, such as identification or intent.’’
(Citation omitted; emphasis added.) State v. Pinnock, 220 Conn. 765, 773,
601 A.2d 521 (1992); see also State v. Richards, supra, 196 Conn. App. 402(intent to kill may be inferred from evidence that defendant had motive
to kill).