State v. Wynne , 182 Conn. App. 706 ( 2018 )

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STATE OF CONNECTICUT v. PAUL WYNNE
(AC 39169)
Sheldon, Bright and Harper, Js.
Syllabus
Convicted of the crime of operating a motor vehicle while under the influence
of intoxicating liquor or drugs, the defendant appealed to this court. He
claimed that the evidence was insufficient to support his conviction and
that the trial court abused its discretion in admitting the testimony of
E, the state’s expert on drug recognition. Held:
1. The evidence was sufficient to support the defendant’s conviction of
operating a motor vehicle while under the influence of intoxicating
liquor or drugs: the arresting police officer testified that he observed
the defendant having difficulty maintaining his lane and crossing over
the fog line several times while driving, that he noticed the smell of
alcohol and marijuana when the defendant lowered his passenger side
window and that the defendant was speaking slowly and in a monotone
voice, the defendant admitted that he had consumed two beers and
smoked marijuana prior to driving, and he was unsteady on his feet
after he exited his vehicle and could not keep his balance, exhibited
seven out of eight clues indicative of impairment during the walk and
turn test, exhibited three out of four clues of impairment during the
one leg stand test, and exhibited a lack of smooth pursuit during the
horizontal gaze nystagmus test; moreover, the evidence showed that
the officer asked the defendant if he had any physical ailments or injuries
that would have prevented him from performing the field sobriety tests,
to which the defendant responded negatively, and the jury was not
required to accept the defendant’s view that there could have been
explanations other than intoxication for his poor performance on the
tests or that evidence of his cooperation throughout the process proved
that he was not intoxicated.
2. The defendant could not prevail on his claim that the trial court abused
its discretion in admitting E’s testimony, which was based on his claim,
inter alia, that the trial court improperly failed to conduct a hearing
pursuant to State v. Porter (241 Conn. 57) prior to admitting E’s testi-
mony: the defendant having failed to raise his Porter claim before the
trial court or in his motion in limine, the claim was not preserved for
appellate review, and under the circumstances here, where E was not
being offered to testify as to the defendant’s level of intoxication, but
was offered only to explain the combined effects of marijuana and
alcohol on a driver, which was not improper, the trial court’s failure to
conduct a Porter hearing sua sponte on the facts of this case was
not the type of extraordinary situation for which plain error review
is reserved; moreover, the trial court did not abuse its discretion in
determining that E’s testimony was relevant, as E testified regarding
the physical effects of marijuana on the body and the effects that the
combination of marijuana and alcohol could have on a person’s perfor-
mance of field sobriety tests, which in no way required personal observa-
tion of the defendant to be relevant; furthermore, the defendant’s claim
that the trial court improperly permitted E to answer a hypothetical
question was not reviewable, as the defendant did not state the basis
for his general objection to the hypothetical question, which denied the
trial court the opportunity to consider the arguments now made by the
defendant on appeal, and his unpreserved evidentiary claim that the
trial court improperly permitted E to estimate a blood alcohol content
equivalent based on a person’s use of marijuana in conjunction with
alcohol was not reviewable pursuant to State v. Golding (213 Conn.
233), as the claim was not of constitutional magnitude, nor did the
defendant demonstrate that the claimed error was both so clear and so
harmful that reversal was required under the plain error doctrine.
Argued February 8—officially released June 19, 2018
Procedural History
Substitute information charging the defendant with
the crime of operating a motor vehicle while under
the influence of intoxicating liquor or drugs and the
infraction of failure to drive in the proper lane, brought
to the Superior Court in the judicial district of Stamford-
Norwalk, geographical area number twenty, where the
charge of operating a motor vehicle while under the
influence of intoxicating liquor or drugs was tried to
the jury before Hernandez, J.; verdict of guilty; there-
after, the infraction of failure to drive in the proper
lane was tried to the court; judgment of guilty, from
which the defendant appealed to this court. Affirmed.
James B. Streeto, senior assistant public defender,
with whom was Christopher M. Shea, certified legal
intern, for the appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Justina Moore, assistant state’s
attorney, for the appellee (state).
Opinion
BRIGHT, J. The defendant, Paul Wynne, appeals from
the judgment of conviction, rendered following a jury
trial, of operating a motor vehicle while under the influ-
ence of intoxicating liquor or any drug or both in viola-
tion of General Statutes § 14-227a (a) (1). The defendant
claims that (1) the evidence was insufficient to support
his conviction; and (2) the court abused its discretion
in admitting the testimony of the state’s expert on drug
recognition. We affirm the judgment of the trial court.
The jury was presented with the following evidence
on which to base its verdict. On September 6, 2014, at
approximately 9:43 p.m., while Trooper Joel Contreras
of the state police was patrolling a portion of the Inter-
state 95 southbound corridor, he observed that the
driver of a Nissan pickup truck (vehicle) was ‘‘having
difficulty maintaining [his] lane’’ and that he had
‘‘cross[ed] into the fog line several times.’’ Contreras
followed the vehicle, and the driver of the vehicle con-
tinued to drive in a similar manner. As the two vehicles
approached the area of exit eighteen, Contreras acti-
vated his cruiser’s emergency lights and sirens and initi-
ated a traffic stop. Contreras exited his cruiser and
knocked on the passenger window of the vehicle. The
defendant, the sole occupant and operator of the vehi-
cle, lowered the passenger window. Contreras immedi-
ately noticed the smell of alcohol and marijuana.
Contreras then asked the defendant for his driver’s
license, his vehicle’s registration, and his insurance
card, and he asked the defendant to what location he
was driving. The defendant explained that he was going
home to Norwalk. Contreras noticed that the defendant
was speaking slowly and in a monotone voice. Con-
treras also noticed that the vehicle was stopped in an
unsafe spot in a curve and asked the defendant to drive
approximately one tenth of a mile off of exit eighteen.
After the defendant moved his vehicle, Contreras
again approached and asked the defendant if he had
consumed any alcoholic beverages prior to driving. The
defendant responded that he had consumed two beers.
Contreras then asked the defendant if he would submit
to standardized field sobriety tests, and the defendant
agreed. Contreras noticed that the defendant was
‘‘unsteady on his feet’’ and ‘‘couldn’t keep his balance’’
when he exited the vehicle. Before explaining the nature
of the field sobriety tests, Contreras asked the defen-
dant if he had any ailments that would impair his ability
to perform the tests, and the defendant responded in
the negative. Contreras first conducted the horizontal
gaze nystagmus test,1 during which he observed the
lack of smooth pursuit in each eye, but did not observe
the onset of nystagmus prior to forty-five degrees or at
maximum deviation. Consequently, Contreras could not
conclude that the defendant failed the test.
Contreras then administered the walk and turn test.
He explained to the jury that there are a total of eight
clues in the walk and turn test, and an individual who
displays two or more clues is considered to have failed
the test. The defendant exhibited seven clues, including
losing his balance, starting too soon, and stopping dur-
ing the test in order to prevent himself from falling.
The defendant also failed the one leg stand test because
he swayed while balancing, put down his foot several
times, and raised his arms. Based on the totality of
Contreras’ observations, including the smell of alcohol
and marijuana, the field sobriety tests, and the defen-
dant’s speech and unsteadiness on his feet, Contreras
concluded that the defendant was impaired. Contreras
then arrested him for operating a motor vehicle while
under the influence of alcohol or drugs or both.
Contreras informed the defendant of his constitu-
tional rights and brought him to the police station for
processing. In response to questioning, the defendant
stated that between 5 p.m. and 9 p.m. he had consumed
two beers and had smoked a marijuana joint prior to
driving. The defendant submitted to a Breathalyzer test
at approximately 10:41 p.m. that measured his blood
alcohol content at 0.0352 percent, which is below the
legal limit of 0.08. See General Statutes § 14-227a (a)
(2). Nevertheless, on the basis of Contreras’ observa-
tions, the state charged the defendant with operating a
motor vehicle while under the influence of intoxicating
liquor or drugs or both.2
Following a jury trial, the jury returned a verdict
finding the defendant guilty of operating a motor vehicle
while under the influence of intoxicating liquor or any
drug or both. The trial court rendered a judgment of
conviction in accordance with the jury’s verdict and
sentenced the defendant to a total effective sentence
of six months incarceration, execution suspended after
twenty days, two days of which were the mandatory
minimum, followed by two years’ probation with special
conditions. This appeal followed. Additional facts will
be set forth as necessary.
I
The defendant first claims that the evidence adduced
at trial was insufficient to sustain his conviction of
operating a motor vehicle while under the influence of
intoxicating liquor or drugs. Specifically, he argues that
alleged evidentiary inconsistencies made it unreason-
able for the jury to conclude beyond a reasonable doubt
that he drove his vehicle while under the influence of
intoxicating liquor or drugs such that his mental, physi-
cal or nervous processes were so affected that he lacked
the ability to operate his vehicle properly in violation
of § 14-227a (a) (1). We disagree.
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [jury] reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . In evaluating evi-
dence, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier may draw
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical.’’ (Internal quotation marks omitted.) State v.
Stovall, 316 Conn. 514, 520, 115 A.3d 1071 (2015).
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty.’’3 (Internal quotation marks
omitted.) State v. Torres, 242 Conn. 485, 490, 698 A.2d
898 (1997).
Section 14-227a (a) provides in relevant part: ‘‘No
person shall operate a motor vehicle while under the
influence of intoxicating liquor or any drug or both. A
person commits the offense of operating a motor vehi-
cle while under the influence of intoxicating liquor or
any drug or both if such person operates a motor vehicle
(1) while under the influence of intoxicating liquor or
any drug or both . . . .’’ Thus, pursuant to § 14-227a
(a) (1), ‘‘[a] conviction of operating a motor vehicle
while under the influence of intoxicating liquor [or any
drug or both] . . . requires proof [beyond a reasonable
doubt] of (1) operation of a motor vehicle (2) on a
public highway or one of the other designated areas
(3) while under the influence of intoxicating liquor [or
any drug or both]. . . . Driving while under the influ-
ence of liquor means, under the law of Connecticut,
that a driver had become so affected in his mental,
physical or nervous processes that he lacked to an
appreciable degree the ability to function properly in
relation to the operation of his vehicle.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Howell,
98 Conn. App. 369, 374–75, 908 A.2d 1145 (2006).
The defendant does not contest that he was operating
a motor vehicle on a public highway or that he had
alcohol in his bloodstream. The defendant argues that
there was insufficient evidence to prove that his con-
sumption of alcohol, marijuana or both so affected his
mental, physical or nervous processes that he lacked,
to an appreciable degree, the ability to function properly
in relation to the operation of his vehicle. He contends
that several reasons unrelated to intoxication caused
him to cross the fog line, make an unsafe lane change,
and fail two field sobriety tests. He notes that Contreras
failed to ask him if he had any medical issues which
prevented him from performing the walk and turn test
and the one leg stand test. The defendant argues that
he was cooperative and polite throughout the process;
that Contreras could not recall whether the defendant
had any difficulty producing documentation, answering
questions or comprehending instructions; that he was
able to drive his vehicle without incident when Con-
treras ordered him to change locations; and that he
passed the horizontal gaze nystagmus test, which was
a scientific test, unlike the walk and turn test and one
leg stand test, which are subjective in nature. The defen-
dant further argues that although his admission to hav-
ing consumed marijuana is sufficient to establish drug
use prior to operation, it does not prove that he was
impaired while driving.
Although the jury could have accepted the defen-
dant’s view of the evidence, it was not required to do
so. The jury had more than sufficient evidence to sup-
port the defendant’s conviction. Contreras testified that
he observed the defendant having difficulty maintaining
his lane and crossing over the fog line several times
while driving. Contreras further testified that when the
defendant lowered the passenger side window, he
immediately noticed the smell of alcohol and marijuana,
and that the defendant was speaking slowly and in a
monotone voice. The defendant admitted to Contreras
that he had consumed two beers and had smoked mari-
juana prior to driving. Contreras noticed that after the
defendant exited his vehicle, he was ‘‘unsteady on his
feet’’ and ‘‘couldn’t keep his balance.’’ During the walk
and turn test, the defendant exhibited seven out of eight
clues indicative of impairment, and he exhibited three
out of four clues of impairment during the one leg stand
test. Although the defendant did not fail the horizontal
gaze nystagmus test, he exhibited a lack of smooth
pursuit. State Trooper Tom Ehret, the state’s drug rec-
ognition expert, testified that a person who was under
the influence of marijuana would only exhibit a lack of
smooth pursuit but not the onset of nystagmus prior
to forty-five degrees or at maximum deviation in the
nystagmus test. Ehret also testified that the walk and
turn test and the one leg stand test were ‘‘good tests
for marijuana because they are divided attention tests.’’
The evidence supports the jury’s verdict of guilty.
The defendant’s argument that Contreras failed to
ask him if he had any physical ailments preventing him
from performing the walk and turn test and the one leg
stand test is unavailing. Contreras testified that before
administering the field sobriety tests and prior to
informing the defendant of the nature of those tests,
he asked the defendant if he had any physical ailments
or injuries to which the defendant responded nega-
tively. Contreras testified that ‘‘at that point [the defen-
dant] could be under the impression that he’s going to
be doing cartwheels, and if he doesn’t tell me he has
any physical injuries or aliments, then . . . it’s telling
me . . . that he doesn’t have any ailments to do a vari-
ety of tests that I would perform on the side of the road.’’
Furthermore, the jury was not required to accept the
defendant’s view that there could be explanations other
than intoxication for his poor performance on the field
sobriety tests, or that evidence of his cooperation
throughout the process proved that he was not intoxi-
cated. ‘‘[I]n viewing evidence which could yield con-
trary inferences, the jury is not barred from drawing
those inferences consistent with guilt and is not
required to draw only those inferences consistent with
innocence. The rule is that the jury’s function is to
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical.’’ (Internal quotation marks omitted.) State
v. Pulaski, 71 Conn. App. 497, 505, 802 A.2d 233 (2002).
Accordingly, we conclude that there is a reasonable
view of the evidence to support the jury’s verdict of
guilty and the judgment of conviction.
II
The defendant next claims that the court abused its
discretion in a number of ways regarding the admission
of the testimony of Ehret, the state’s drug recognition
expert. He contends that the court abused its discretion
by (a) failing to conduct a hearing, prior to admitting
Ehret’s testimony pursuant to State v. Porter, 241 Conn.
57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118
S. Ct. 1384, 140 L. Ed. 2d 645 (1998), and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993), (b) concluding that
Ehret’s testimony was relevant, (c) permitting Ehret to
answer a hypothetical question, and (d) permitting
Ehret to estimate a blood alcohol content equivalent
based on a person’s use of marijuana in conjunction
with alcohol. We disagree with each of the defen-
dant’s claims.
The following additional facts are relevant to the
defendant’s claims. On March 10, 2016, the defendant
filed a motion in limine in which he sought to preclude
the testimony of Ehret on relevancy grounds. He argued
that Ehret’s testimony was not relevant under § 4-1 of
the Connecticut Code of Evidence because he was not
the arresting officer, was not present at the scene to
observe the defendant perform the field sobriety tests,
was not the processing officer, and did not observe the
defendant on the day of his arrest or at any other time.
He further argued that Ehret’s testimony should be
excluded under § 4-3 of the Connecticut Code of Evi-
dence as confusing and a waste of time. The defendant
did not cite Porter or Daubert, nor did he argue that
Ehret’s testimony was scientifically unreliable.
On March 14, 2016, the first day of trial, the defendant
argued, in support of his motion in limine, that Ehret’s
testimony was not relevant because he did not observe
the defendant on the day of his arrest. In response, the
prosecutor explained that Ehret was not being called
to testify as to the defendant’s condition, but instead
would testify as to the effect that the combination of
alcohol and marijuana would have on the body and how
that differs from how alcohol alone affects the body.
The court concluded: ‘‘If . . . Ehret were testifying
that in his opinion, [the defendant] were intoxicated
within the meaning of the statute . . . I would agree
that his testimony would be inadmissible. But given
[the prosecutor’s] proffer, namely that . . . Ehret pos-
sesses specialized training and experience outside of
the ordinary knowledge of the lay juror and that that
testimony will be limited to the effects of alcohol and/
or marijuana in combination, I believe that his testi-
mony, A, is relevant, and B, is admissible to explain the
effects of alcohol and marijuana in combination on
a driver, albeit not [the defendant] in particular. So
accordingly, the defendant’s motion to preclude the
testimony of . . . Ehret is denied.’’
After Ehret testified regarding his specialized training
in drug recognition, the court found him to be an expert.
Ehret then testified as to the effects that the combina-
tion of a low level of alcohol and a low to moderate
level of marijuana would have on the body. He noted
that under such conditions, an individual would display
only one of the three clues, a lack of smooth pursuit,
during the horizontal gaze nystagmus test. Neverthe-
less, he testified that an individual with a low blood
alcohol content who also had marijuana in his system
would display more clues during the one leg stand test
and the walk and turn test than would an individual
who had only a low blood alcohol content. Thereafter,
the following exchange occurred between Ehret and
the prosecutor:
‘‘[The Prosecutor]: Okay. Now, have you read any
literature about the effect of both moderate levels of
marijuana and moderate levels of alcohol in some-
one’s system?
‘‘[Ehret]: Yeah. The National Highway Traffic Safety
Administration did a study in either 1999 or 2000 with
. . . the University of the Netherlands and . . . basi-
cally what it said is if there are low levels of marijuana
combined with low levels of alcohol, the effect together
could create an impairment of what they approximated
as anywhere from 0.09 to 0.16 [blood alcohol content]
level if it was just alcohol alone.
‘‘[The Prosecutor]: Okay. And I’m going to pose a
hypothetical question to you. Assume a man was pulled
over in the evening and assume that . . . when he was
pulled over, he smelled of alcohol and the scent of
marijuana, assume he had slow speech and lethargic
speech, assume he was off balance and unsteady on
his feet when he walked toward the end of his vehicle,
and assume he further failed the walk and turn and the
one [leg] stand [tests]. Assume he admitted to you he
consumed two beers and smoked a joint before driving.
He did submit to a Breathalyzer revealing a 0.035. . . .
What would you conclude from those facts?’’
‘‘[Defense Counsel]: Objection, Your Honor.
‘‘[The Court]: Overruled.
‘‘[Ehret]: Based on the facts that you set forth there,
I would determine that person was impaired.’’
We begin by setting forth the standard of review. ‘‘We
review the trial court’s decision to admit evidence, if
premised on a correct view of the law . . . for an abuse
of discretion. . . . We will make every reasonable pre-
sumption in favor of upholding the trial court’s ruling,
and only upset it for a manifest abuse of discretion.
. . . In determining whether there has been an abuse
of discretion, the ultimate issue is whether the court
could reasonably conclude as it did.’’ (Internal quota-
tion marks omitted.) State v. Acosta, 162 Conn. App.
774, 780, 129 A.3d 808 (2016), aff’d, 326 Conn. 405, 164
A.3d 672 (2017). We address the defendant’s claims
in turn.
A
The defendant claims that the court erred in failing
to conduct a Porter hearing before admitting Ehret’s
drug recognition testimony. The defendant acknowl-
edges that he did not specifically request that the trial
court conduct a Porter hearing but he contends, how-
ever, that his motion in limine, in which he argued that
Ehret’s testimony was not relevant because he did not
personally observe the defendant, combined with the
trial court’s gatekeeping functions, triggered an obliga-
tion of the trial court to hold a Porter hearing. We
decline to review this claim.
Because the defendant did not raise a Porter claim
in the trial court, the claim is unpreserved for appellate
review. ‘‘To raise a Porter claim, the party opposing the
admission of the scientific evidence must first object
to the validity of the expert’s methods. . . . Once the
opponent objects, the proponent of the scientific evi-
dence must demonstrate that the methods underlying
the evidence are reliable and, therefore, valid. . . . The
failure to raise a Porter claim in the trial court results
in waiver of that claim and it will not be considered
for the first time on appeal.’’ (Citations omitted.) Weaver
v. McKnight, 313 Conn. 393, 415–16, 97 A.3d 920 (2014).
In the present case, the defendant filed a motion in
limine challenging the admission of Ehret’s testimony
on relevancy grounds only. When the court addressed
the motion on the first day of trial, the defendant argued
that Ehret did not personally observe the defendant on
the night of his arrest and therefore Ehret’s opinions
were not relevant. He neither argued that Ehret’s meth-
ods were scientifically unreliable,4 nor requested that
the trial court hold a Porter hearing on the scientific
validity of Ehret’s testimony. ‘‘As the sine qua non of
preservation is fair notice to the trial court’’; (internal
quotation marks omitted) State v. Rivera, 169 Conn.
App. 343, 371, 150 A.3d 244 (2016), cert. denied, 324
Conn. 905, 152 A.3d 544 (2017); we conclude that this
claim was not preserved and is therefore unreviewable.
The defendant, alternatively, seeks review under the
plain error doctrine. See Practice Book § 60-5. The
defendant argues that it readily is discernable from the
record that the methods Ehret used to formulate his
opinions, namely without personally observing the
defendant, were scientifically invalid and so harmful as
to require reversal. We disagree.
Pursuant to Practice Book § 60-5, the plain error doc-
trine ‘‘is not . . . a rule of reviewability. It is a rule of
reversibility. That is, it is a doctrine that this court
invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised
at all in the trial court, nonetheless requires reversal
of the trial court’s judgment, for reasons of policy. . . .
In addition, the plain error doctrine is reserved for truly
extraordinary situations where the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked
sparingly. . . . A party cannot prevail under plain error
unless it has demonstrated that the failure to grant relief
will result in manifest injustice. . . . Implicit in this
very demanding standard is the notion . . . that invo-
cation of the plain error doctrine is reserved for occa-
sions requiring the reversal of the judgment under
review. . . . [Thus, a] defendant cannot prevail under
[the plain error doctrine] . . . unless he demonstrates
that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in
manifest injustice.’’ (Internal quotation marks omitted.)
State v. Terry, 161 Conn. App. 797, 820, 128 A.3d 958
(2015), cert. denied, 320 Conn. 916, 131 A.3d 751 (2016).
The defendant’s argument ignores the basis for the
court’s denial of the defendant’s motion in limine. The
court denied the motion because Ehret was not being
offered to testify as to the defendant’s level of intoxica-
tion. He was offered only to explain the combined
effects of marijuana and alcohol on a driver. We see
no error in permitting his testimony on this subject,
let alone plain error. Certainly, the court’s failure to
conduct a Porter hearing sua sponte on the facts of this
case is not the type of extraordinary situation for which
plain error review is reserved.
B
The defendant next claims that the court abused its
discretion in concluding that Ehret’s testimony was rel-
evant. Specifically, the defendant argues that, because
Ehret did not personally observe the defendant on the
night of his arrest, his testimony was irrelevant. We
disagree.
Section 4-1 of the Connecticut Code of Evidence pro-
vides: ‘‘ ‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is mate-
rial to the determination of the proceeding more proba-
ble or less probable than it would be without the
evidence.’’ ‘‘As it is used in [the Connecticut Code of
Evidence], relevance encompasses two distinct con-
cepts, namely, probative value and materiality. . . .
Conceptually, relevance addresses whether the evi-
dence makes the existence of a fact material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
In contrast, materiality turns upon what is at issue in
the case, which generally will be determined by the
pleadings and the applicable substantive law. . . . If
evidence is relevant and material, then it may be admis-
sible. . . . [T]he trial court has broad discretion in rul-
ing on the admissibility . . . of evidence.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Sampson, 174 Conn. App. 624, 635–36, 166 A.3d 1, cert.
denied, 327 Conn. 920, 171 A.3d 57 (2017).
The court did not abuse its discretion in ruling that
Ehret’s testimony was relevant. In this case, Ehret did
not opine as to whether the defendant himself, was
under the influence of alcohol or marijuana. Instead, he
testified, as an expert witness concerning the physical
effects of marijuana on the body and the effects that
the combination of marijuana and alcohol could have
on a person’s performance of field sobriety tests. His
testimony included answering a hypothetical question
based on facts similar to those presented to the jury
through Contreras’ testimony. Consequently, his testi-
mony in no way required personal observation of the
defendant to be relevant. Even without such observa-
tion, his testimony had a tendency to make the exis-
tence of a material fact-—whether the defendant was
impaired by the combination of alcohol and mari-
juana—more or less probable.
C
The defendant next claims that the court abused its
discretion in permitting Ehret to answer the hypotheti-
cal question posed to him by the prosecutor. He argues
that the hypothetical question was improper because
it constituted an opinion on an ultimate issue in the
case and the hypothetical failed to include all essential
facts. We decline to review this claim.
At trial, the defendant made a general objection to
the following hypothetical question: ‘‘Assume a man
was pulled over in the evening and assume that . . .
when he was pulled over, he smelled of alcohol and
the scent of marijuana, assume he had slow speech
and lethargic speech, assume he was off balance and
unsteady on his feet when he walked toward the end
of his vehicle, and assume he further failed the walk
and turn and the one [leg] stand [tests]. Assume he
admitted to you he consumed two beers and smoked
a joint before driving. He did submit to a Breathalyzer
revealing a 0.035 . . . . What would you conclude from
those facts?’’ He did not state a basis for the objection.
The defendant’s failure to specify the grounds for
his objection to the hypothetical question renders his
evidentiary claim unreviewable on appeal. ‘‘The stan-
dard for the preservation of a claim alleging an improper
evidentiary ruling at trial is well settled. This court is
not bound to consider claims of law not made at the
trial. . . . In order to preserve an evidentiary ruling
for review, trial counsel must object properly. . . . In
objecting to evidence, counsel must properly articulate
the basis of the objection so as to apprise the trial
court of the precise nature of the objection and its
real purpose, in order to form an adequate basis for a
reviewable ruling. . . . Once counsel states the author-
ity and ground of [the] objection, any appeal will be
limited to the ground asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) State v. Gonzalez, 272 Conn. 515, 539–
40, 864 A.2d 847 (2005).
Because the defendant did not state a basis for the
objection, the court had no opportunity to consider
the arguments the defendant now makes on appeal.
Furthermore, the state did not have the opportunity to
respond to the arguments, reformulate the question or
present additional evidence if the objection had been
properly argued and sustained. For these reasons, we
will not review the defendant’s claim.
D
Finally, the defendant claims that Ehret’s testimony
regarding the resultant blood alcohol content of an indi-
vidual who had consumed low levels of marijuana and
alcohol violated § 14-227a.
Section 14-227a (c) provides that in any prosecution
under the behavior subdivision ‘‘reliable evidence
respecting the amount of alcohol in the defendant’s
blood or urine at the time of the alleged offense, as
shown by a chemical analysis of the defendant’s blood,
breath or urine, otherwise admissible under subsection
(b) of this section, shall be admissible only at the request
of the defendant.’’
During cross-examination of Contreras, the defen-
dant elicited testimony that a Breathalyzer test revealed
that the defendant’s blood alcohol content at 10:41 p.m.
on the night he was arrested was .0352, and offered the
Breathalyzer test results into evidence. During direct
examination of Ehret, the prosecutor asked if he had
read any literature regarding the effects of moderate
levels of marijuana and moderate levels of alcohol.
Ehret testified regarding a study that indicated that the
effect of low levels of both intoxicants on an individual
would be equivalent to the effect of a blood alcohol
content between 0.09 and 0.16. The defendant neither
objected to the state’s question, nor moved to strike
Ehret’s answer.
Because the defendant did not preserve this claim,
he seeks review under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989),5 and the plain error doc-
trine. First, the claim fails under the second prong of
Golding because it is an evidentiary claim that is not of
constitutional magnitude. ‘‘[U]npreserved [e]videntiary
claims do not merit review pursuant to Golding . . .
because they are not of constitutional magnitude.’’
(Internal quotation marks omitted.) State v. Terry,
supra, 161 Conn. App. 819. Accordingly, we will not
review the defendant’s evidentiary claim under Gold-
ing. Second, the defendant has not demonstrated that
the claimed error is both so clear and so harmful that
reversal is required pursuant to the plain error doctrine.
Section 14-227a (c) prohibits the state only from offer-
ing into evidence the defendant’s blood alcohol content
at the time of the offense. In this case, it was the defen-
dant who introduced the Breathalyzer test results. By
doing so, the defendant opened the door to questioning
about those results. Furthermore, Ehret did not testify
to the defendant’s blood alcohol content at the time of
the incident, but rather he discussed in general terms
the effect that low levels of marijuana and alcohol have
on an individual, and how that would compare to a
blood alcohol content that measures the effects of alco-
hol alone. The defendant has not demonstrated that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice. See State v. Terry, supra, 820.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘The horizontal gaze nystagmus test measures the extent to which a
person’s eyes jerk as they follow an object moving from one side of the
person’s field of vision to the other. The test is premised on the understanding
that, whereas everyone’s eyes exhibit some jerking while turning to the side,
when the subject is intoxicated the onset of the jerking occurs after fewer
degrees of turning, and the jerking at more extreme angles becomes more
distinct.’’ (Internal quotation marks omitted.) State v. Popeleski, 291 Conn.
769, 770 n.3, 970 A.2d 108 (2009).
2
The defendant was charged only under § 14-227a (a) (1), the behavior
subdivision of the statute. The defendant also was charged with failure to
drive within the proper traffic lane in violation of General Statutes § 14-236
(1). The court found the defendant guilty of this infraction and imposed a
$50 fine.
3
Although the defendant’s second claim challenges the admissibility of
certain evidence, ‘‘[f]or the purposes of sufficiency review . . . we review
the sufficiency of the evidence as the case was tried . . . . [A] claim of
insufficiency of the evidence must be tested by reviewing no less than, and
no more than, the evidence introduced at trial.’’ (Internal quotation marks
omitted.) State v. Chemlen, 165 Conn. App. 791, 816, 140 A.3d 347, cert.
denied, 322 Conn. 908, 140 A.3d 977 (2016).
4
The defendant’s objection to Ehret’s testimony stands in marked contrast
to his objection to the proposed testimony of the state’s toxicology expert.
In the context of his motion in limine seeking to preclude the admission of
a toxicology report and testimony from the toxicologist regarding the drug
screening test results of a urine sample from the defendant, which revealed
the presence of cannabinoids in his system, the defendant argued that the
test results were scientifically unreliable under Porter and Daubert. The
court granted the motion and concluded that the testimony of the toxicolo-
gist and the toxicology report regarding the testing of the defendant’s urine
sample did not satisfy the requirements of Porter. As noted previously, the
defendant did not raise a Porter claim in his motion in limine regarding
Ehret’s testimony.
5
‘‘Under Golding, a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate tribunal is free,
therefore, to respond to the defendant’s claim by focusing on whichever
condition is most relevant in the particular circumstances.’’ (Internal quota-
tion marks omitted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015);
see also In re Yasiel, 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying
third prong of Golding).