Burke v. Mesniaeff ( 2017 )

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ELIZABETH BURKE v. GREGORY MESNIAEFF
(AC 38350)
Lavine, Keller and Bishop, Js.
Syllabus
The plaintiff brought this action for assault and battery against the defendant
to recover damages for personal injuries she sustained during an incident
involving the defendant. At the time of the incident, the parties, who
were married, were residing in New York and had been experiencing
marital problems. The defendant previously had purchased a house in
Sharon and recorded the deed in his name only. The incident at issue
occurred at the Sharon house, when a tour involving guests was being
conducted at the house. The plaintiff learned of the tour and drove to
Sharon to surprise and confront the defendant. When she entered the
house she was enraged and screaming, and the tour guests were fearful
of her conduct and concerned for their safety. The defendant told the
plaintiff to leave, grabbed her upper arm, and escorted her from the
house and down the driveway, but the plaintiff resisted the defendant’s
escort and attempted to strike him and to break loose from his hold to
return to the house. The plaintiff thereafter commenced this action, and
the defendant filed an answer and a number of special defenses, includ-
ing justification, wrongful conduct and defense of others. The plaintiff
did not file a request to revise or a motion to strike any of the amended
special defenses. After a trial, the jury returned a verdict in favor of
the defendant, finding that his conduct toward the plaintiff constituted
intentional assault and battery and was a substantial factor in causing
her injuries, but that the plaintiff’s recovery was barred by the special
defenses of justification and defense of others. The court rendered
judgment in accordance with the verdict, and the plaintiff appealed to
this court. Held:
1. The plaintiff could not prevail on her claim that the trial court improperly
charged the jury with respect to the defendant’s special defense of
justification by incorporating a charge on criminal trespass:
a. The plaintiff could not prevail on her claim that the charge was
improper because, as a matter of law, she could not have been tres-
passing on the subject premises, which she claimed was marital property;
the jury did not find that the plaintiff had trespassed on the premises,
and even if this court were to assume that the jury had been misled by
the criminal trespass charge, the plaintiff was not harmed by it because
the jury found that her recovery was not barred by the doctrine of
wrongful conduct, which necessarily relates to trespassing.
b. The plaintiff’s claim that the charge of criminal trespass was improper
because she did not have notice of the statute on which the defendant
had grounded his justification special defense was unavailing; despite
the defendant’s failure to identify the pertinent statute (§ 53a-20) specifi-
cally by number as required by the rules of practice (§ 10-3 [a]), the
plaintiff had sufficient notice of the defendant’s criminal trespass special
defense, as trespass had been alleged several times in the defendant’s
special defenses and her counsel had made a strategic decision not to
file a request to revise or a motion to strike any of the defendant’s
special defenses, and the plaintiff failed to demonstrate that the jury
had been misled or that she was harmed by the court’s use of the term
trespass in its charge, as the jury, in finding that the plaintiff’s claims
were not barred by the defendant’s wrongful conduct special defense,
necessarily found that the plaintiff had not committed criminal trespass.
c. The trial court properly did not charge the jury with regard to whether
the defendant had a duty to retreat during the subject incident, as the
duty to retreat exception pertains to the use of deadly physical force,
which was not an issue in the present case.
2. There was sufficient evidence in the record on which the jury reasonably
could have relied in determining that the defendant was acting in defense
of others during the subject incident; the record revealed that the plaintiff
unexpectedly entered the Sharon house and began shouting in a loud
and aggressive manner, causing the tour guests to be concerned for
their safety, that, in response, the defendant took the plaintiff by the
arm and escorted her from the house, and that the plaintiff resisted the
defendant’s escort and attempted to strike him and to break loose from
his hold to return to the house, and, therefore, under those circum-
stances, the jury reasonably could have found that the defendant’s
response was reasonable and that he had used reasonable physical force
in the defense of others when he escorted the plaintiff from the house.
(One judge dissenting)
Argued February 15—officially released November 7, 2017
Procedural History
Action to recover damages for, inter alia, assault and
battery, and for other relief, brought to the Superior
Court in the judicial district of Litchfield and transferred
to the judicial district of Stamford-Norwalk, where the
matter was tried to the jury before Lee, J.; verdict and
judgment for the defendant, from which the plaintiff
appealed to this court. Affirmed.
Campbell D. Barrett, with whom were Johanna Katz
and, on the brief, Anne C. Dranginis, Jon T. Kukucka,
Gabrielle Levin and Naomi Takagi, pro hac vice, for
the appellant (plaintiff).
Charles S. Harris, with whom was Stephanie C.
Laska, for the appellee (defendant).
Opinion
LAVINE, J. In this personal injury action, the plaintiff,
Elizabeth Burke, appeals from the judgment of the trial
court, rendered after a jury trial, in favor of the defen-
dant, her former husband Gregory Mesniaeff. On
appeal, the plaintiff claims that (1) the court improperly
charged the jury on the defendant’s special defense of
justification and (2) the special defense of defense of
others was legally and factually barred. We affirm the
judgment of the trial court.
The following relevant evidence was presented to
the jury. The plaintiff and the defendant married one
another in 1989. On December 5, 2009, the date of the
incident that is the subject of the present appeal (inci-
dent), the parties resided together in their home in New
Rochelle, New York. The defendant, however, pur-
chased a house in Sharon in 1998 and recorded the
deed in his name alone. According to the defendant,
the plaintiff never lived in the Sharon house, except
for two weeks in August, 2002. The plaintiff, however,
testified that the parties spent extensive amounts of
time at the Sharon house. She testified that she had
painted the interior of the house in a color scheme that
she had selected, had a key to the house, and kept
clothing and other personal belongings there.
The defendant was a member of a historic preserva-
tion organization called The Questers. The Questers
facilitated a tour of the Sharon house that the defendant
arranged to take place between 2:30 and 4 p.m. on
December 5, 2009. The defendant intentionally did not
tell the plaintiff about the tour, did not invite her to
attend, and did not want her to attend because she was
not a member of The Questers. He also was ‘‘afraid that
there could be some problems if she was there.’’1 The
plaintiff, however, learned of the tour the morning of
December 5, 2009, when she went online to find out
when the Sharon Christmas tree lighting ceremony was
to take place. While she was online, she saw The Quest-
ers’ posting regarding the tour of the Sharon house.
The plaintiff was concerned about the cleanliness of
the Sharon house because the defendant set cleaning
limits. She telephoned the defendant at his Manhattan
office, but was unable to reach him. According to the
plaintiff, the parties had plans to attend a Christmas
party in Manhattan that evening, but the defendant
denied having such plans.
Although it snowed on December 5, 2009, the plaintiff
drove to Sharon because the defendant had been ‘‘lying
to [her] about everything and [she] knew that when
[she] met him in Manhattan later that night, he would
deny that such a tour took place. And [she] couldn’t
take the lying anymore and he would deny it and [she]
was hoping to talk to him and figure out why he was
lying to [her] about everything.’’ On her way to Sharon,
the plaintiff called some of her friends to advise them
that she was going to surprise and confront the defen-
dant about his alleged lying. She also stopped at Powers’
greenhouse and told Laurel Powers and Eddie Powers
that the defendant ‘‘had been physically violent with
[her] before and there was a possibility that that could
happen again so [she] wanted them to make sure that
they heard from [her] and to check on [her].’’ As a safety
precaution, the plaintiff planned to arrive at the end of
the tour when people were still in the house.
The plaintiff arrived at the Sharon house at approxi-
mately 4:15 p.m. Three women, Anne Teasdale, Suzanne
Chase Osborne, and Lauren Silberman, were taking part
in the tour when she arrived. The plaintiff did not park
her car in the driveway, but near the guest cottage and
walked down the driveway to the Sharon house. She
entered the house by the back entry. Teasdale testified
that, when the plaintiff walked into the house, she was
yelling. According to one of the guests, the plaintiff was
out of control when she entered the house, shrieking
and yelling, ‘‘who is that woman and what is she doing
in my house.’’ One guest ‘‘didn’t know if our lives were
in danger [or if the plaintiff] had a gun and she was
going to go after [the defendant].’’
The defendant testified that when the plaintiff
entered the house, she was enraged, repeatedly scream-
ing in a shrill voice: ‘‘Who is that woman? Why is she
in my house?’’ The defendant confronted the plaintiff
and stated, ‘‘you are leaving now.’’ The plaintiff admitted
that the defendant asked her to leave. The defendant
took the plaintiff by the upper right arm and walked
her down the driveway. Out a window, one of the guests
saw the defendant holding the plaintiff by the arm.
While they were walking down the driveway, the plain-
tiff attempted to break from the defendant’s grasp and
return to the house. The plaintiff was screaming, and
one of the guests ‘‘was really worried about our safety,
my safety, everyone’s safety.’’
According to the defendant, while he and the plaintiff
were walking down the driveway, the plaintiff resisted
and attempted to strike him in the face. He admitted
that he restrained the plaintiff from returning to the
Sharon house where the guests remained. He also
admitted that he caused bruises to the plaintiff’s upper
arm, but he denied that he caused other injuries to
the plaintiff.
The plaintiff’s version of the incident differs from
that of the defendant. She denied that she tried to strike
the defendant. According to her, the defendant grabbed
her by the arm, pulled her away from the Sharon house,
put her in a headlock, and dragged her down the drive-
way and up the sidewalk toward the Sharon Center
School. While he was dragging her, the defendant force-
fully threw the plaintiff to the ground several times and
pulled her up by her arm. The plaintiff screamed: ‘‘Help,
help! Call the police!’’ The defendant denied throwing
the plaintiff to the ground but testified that the plaintiff
slipped once or twice on the snow and that he helped
her up.
At the time, Pierce Kearney and his wife were driving
by on their way to the Christmas tree lighting ceremony
on the Sharon green. Kearney saw the plaintiff being
pushed into the snow. He slowed down, opened the
window, and heard the plaintiff calling for someone to
call the police. Kearney thought that the defendant was
handling the plaintiff in an aggressive fashion. He got
out of his vehicle and approached the parties, who then
separated. The defendant stated to him, ‘‘It’s okay, she’s
my wife.’’ Kearney got between the parties and stated,
‘‘No, this is over.’’ Kearney’s wife called the police. The
defendant left the sidewalk, returned to the Sharon
house, and departed with the tour guests.
The plaintiff commenced the present action on
December 6, 2011.2 Trial commenced on August 4, 2015.
Following the presentation of evidence, the court held
a charge conference on the record, at which time the
court heard considerable argument from the parties’
counsel with respect to its proposed instructions. The
parties, however, agreed on the interrogatories that
were submitted to the jury.3 The jury returned a defen-
dant’s verdict on August 18, 2015. Although the jury
found that the defendant’s conduct toward the plaintiff
on December 5, 2009, constituted intentional assault
and battery and was a substantial factor in causing
the plaintiff’s injuries, it also found that the plaintiff’s
recovery was barred by the special defenses of justifica-
tion and defense of others. See footnotes 3 and 6 of
this opinion. The court rendered judgment in favor of
the defendant, and the plaintiff appealed.4
The plaintiff’s claims on appeal center on the court’s
jury charge. We therefore set forth the applicable stan-
dard of review. ‘‘Our standard of review concerning
claims of instructional error is well settled. [J]ury
instuctions must be read as a whole and . . . are not
to be judged in artificial isolation from the overall
charge. . . . The whole charge must be considered
from the standpoint of its effect on the jurors in guiding
them to a proper verdict . . . and not critically dis-
sected in a microscopic search for possible error. . . .
The instruction must be adapted to the issues and may
not mislead the jury but should reasonably guide it in
reaching a verdict. . . . We must review the charge as
a whole to determine whether it was correct in law and
sufficiently guided the jury on the issues presented at
trial. . . .
‘‘Our standard of review on this claim is whether it
was reasonably probable that the jury was misled. . . .
The test of a court’s charge is not whether it is as
accurate upon legal principles as the opinions of a court
of last resort but whether it fairly presents the case to
the jury in such a way that injustice is not done to either
party under the established rules of law. . . . There-
fore, jury instructions need not be exhaustive, perfect,
or technically accurate. Nonetheless, the trial court
must correctly adapt the law to the case in question
and must provide the jury with sufficient guidance in
reaching a correct verdict.’’ (Internal quotation marks
omitted.) Opotzner v. Bass, 63 Conn. App. 555, 558–59,
777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134(2001), cert. denied, 259 Conn. 930, 793 A.2d 1086(2002).
To determine whether the court properly charged the
jury, we look to the law regarding a court’s instructions.
‘‘Jury instructions should be confined to matters in issue
by virtue of the pleadings and evidence in the case.’’
(Internal quotation marks omitted.) Cooks v. O’Brien
Properties, Inc., 48 Conn. App. 339, 350, 710 A.2d 788(1998). ‘‘[P]leadings have their place in our system of
jurisprudence. While they are not held to the strict and
artificial standard that once prevailed, we still cling to
the belief, even in these iconoclastic days, that no
orderly administration of justice is possible without
them. . . . The purpose of a complaint, special defense
or counterclaims is to limit the issues at trial, and such
pleadings are calculated to prevent surprise.’’ (Citation
omitted; internal quotation marks omitted.) Shapero v.
Mercede, 77 Conn. App. 497, 503, 823 A.2d 1263 (2003).
We therefore briefly review the allegations of the par-
ties’ pleadings as they form the framework of the court’s
jury charge.
The plaintiff amended her complaint several times.
Although she filed the operative complaint at the close
of evidence to conform her alleged injuries to the evi-
dence, the relevant allegations are consistent with her
March 20, 2015 amended complaint. It alleges six counts
against the defendant: intentional assault and battery,
reckless assault and battery, negligent assault and bat-
tery, intentional infliction of emotional distress, negli-
gent infliction of emotional distress, and reckless
infliction of emotional distress. The plaintiff also
alleged that, as a direct and proximate result of the
defendant’s assault and battery, she sustained numer-
ous injuries, including injuries to her left arm, neck,
lower back, hip, and leg, and experienced depression,
anxiety, and an aggravation of her lupus condition.5 The
allegations that are relevant to the plaintiff’s instruc-
tional claim are that the defendant was the owner of
the Sharon house and that she was married to him on
the date of the incident.
On May 1, 2015, the defendant filed an amended
answer and special defenses in response to the plain-
tiff’s amended complaint dated March 20, 2015. He
admitted that he was the owner of the Sharon house
and that he was married to the plaintiff on the date of
the incident. He denied the allegations as to his conduct
and that he caused the plaintiff’s alleged injuries. He
also alleged thirteen special defenses, some of which
were equitable in nature. The plaintiff moved to strike
the equitable special defenses, and on May 28, 2015,
the defendant filed nine amended special defenses. In
four of his special defenses, the defendant alleged that
at the time of the incident the plaintiff was trespassing.6
The plaintiff did not file a request to revise or a motion
to strike the trespassing allegations, but merely filed a
single general denial of all of the special defenses.
I
The plaintiff claims that the court improperly charged
the jury with respect to the defendant’s special defense
of justification by incorporating a charge on criminal
trespass.7 More specifically, the plaintiff claims that (1)
as a matter of law, she could not have been trespassing
on marital property, (2) the defendant failed to plead
that his special defenses relied on a criminal statute,
and (3) it was plain error for the court not to include
an instruction on the duty to retreat and the mere words
doctrine. We conclude that the jury was not misled by
the court’s instruction, and, therefore, the plaintiff’s
claim fails.
The plaintiff takes issue with the following portion
of the court’s charge. ‘‘The defendant has also raised
the defense of ‘wrongful conduct,’ claiming that the
plaintiff is barred, in whole or in part, from pursuing
her claims under the doctrine of wrongful conduct.
‘‘The defendant alleges that on December 5, 2009, the
plaintiff was trespassing on the premises and exhibiting
disorderly conduct and/or creating a disturbance. The
parties agree that the defendant did not invite the plain-
tiff to the historic tour. In addition, the defendant alleges
the plaintiff entered and/or remained on the property
after she was directed to leave by him, the owner of
the property, and that she refused to do so, among
other claims asserted with respect to trespassing. The
plaintiff does not dispute that she was told to leave. The
defendant also alleges that the plaintiff was exhibiting
disorderly conduct and/or creating a public distur-
bance. The defendant also alleges that the plaintiff was
assaulting and/or battering him during the incident of
December 5, 2009.
‘‘Under Connecticut law, a plaintiff may not maintain
a civil action for injuries allegedly sustained as the
direct result of her knowing and intentional participa-
tion in a criminal act. The wrongful conduct defense
does not apply if you find that the plaintiff sustained
injuries and damages independent of any wrongful con-
duct of the plaintiff. It further applies only if the plaintiff
has violated the law in connection with the very transac-
tion as to which she seeks redress or relief.’’
A
The plaintiff claims that the court improperly gave a
criminal trespass charge because, as a matter of law,
she could not trespass at the Sharon house because it
was marital property.8 The gist of the plaintiff’s claim
is that because on the date of the incident she was
married to the defendant, who owned the Sharon house,
she had a right to be on the premises and, therefore,
could not trespass. We need not determine whether the
plaintiff had a right to be on the premises because the
jury did not find that she was trespassing. The portion
of the charge to which the plaintiff takes exception
pertains to the defendant’s fourth special defense:
wrongful conduct. See footnotes 6 and 7 of this opinion.
The jury found that the plaintiff’s recovery was not
barred by the doctrine of wrongful conduct. See foot-
note 3 of this opinion. In common parlance, trespassing
is understood to be a form of wrongful conduct. We
therefore construe the jury’s findings to indicate it
decided that the plaintiff was not trespassing. Even if
we were to assume, which we do not, that the jury was
misled by the inclusion of the criminal trespass charge
in the court’s instruction, the plaintiff was not harmed
because the jury found that her recovery was not barred
by the doctrine of wrongful conduct.
B
The plaintiff claims that it was improper for the court
to include the charge of criminal trespass in its instruc-
tion because she did not have notice of the statute on
which the defendant was relying. We agree with the
plaintiff that our rules of practice provide that when a
special defense is ‘‘grounded on a statute, the statute
shall be specifically identified by its number.’’ Practice
Book § 10-3 (a). The plaintiff, however, has not demon-
strated that she was harmed by the court’s instruction
that used the term criminal trespass. As discussed, the
jury did not find that her claims were barred by the
defendant’s wrongful conduct special defense.
As previously noted, there was considerable disagree-
ment between the parties with respect to the court’s
proposed jury instruction. During the charge confer-
ence, counsel for the plaintiff informed the court that
the defendant’s justification special defense was
grounded in the defense of premises statute, which
includes criminal trespass.9 The plaintiff’s counsel,
therefore, objected to the court’s proposed trespass
charge on the ground that a spouse cannot trespass on
marital property and that the defendant had failed to
allege the statute number in his special defense as
required by the rules of practice.
The following colloquy then took place between the
court and counsel for the plaintiff:
‘‘The Court: [Y]ou know . . . I wish there had been
a motion to strike. I mean . . . look at some of these
things and I’m saying that’s . . . but you know . . .
we’re late in the day. . . . [W]e’ve had a trial. We’ve
had pleadings now that have survived all that.
‘‘[The Plaintiff’s Counsel]: And it was late, and I didn’t
want . . . I was going to have to go and . . . and wait
another six months to a year to get a new trial date if
I pursued the motion to strike. That was . . . and so
a decision was made and . . . my decision was made
but that it’s now up to . . . the court to charge the
things out. Okay. So, I had . . . to go, and I had to
make a tactical decision of delaying this trial for an
extended period of time to be able to go and . . . have
motions for summary judgment, motions [to] strike,
and things like that, or to go to trial and have the trial
judge at this moment in time have to make the tough
calls on the fly as opposed to . . . in your chambers
with . . . the leisure of four months to be able to go
and do it.’’10
Counsel for the defendant argued that it was disingen-
uous of the plaintiff’s counsel to make an issue of the
statute number when the plaintiff failed to file a request
to revise or a motion to strike. The defendant’s counsel
stated: ‘‘I think they have a duty to raise it, Your Honor
. . . previously . . . if they’re going to raise it today.
They amended their complaint yesterday mid-trial, and
now they’re saying, well, we couldn’t put in the statute
that for months now we’ve been saying the same thing.
And with respect to marital property, I think that is
incorrect. This isn’t marital property. The property was
bought in his name, titled in his name.’’
The court was not persuaded by the arguments of
the plaintiff’s counsel, noting that although it was the
defendant’s duty to plead the statute number, both par-
ties had offered evidence on the issue of trespass. The
court ruled that it was not going to exclude the trespass
charge, as trespass was alleged several times in the
defendant’s special defenses, which was sufficient to
put the plaintiff on notice. Despite its concern that the
parties had not adhered to the rules of practice,11 the
court observed that the rules of practice are not to be
applied so strictly as to work an injustice.12 The court,
therefore, charged the jury on the defendant’s special
defenses, including criminal trespass.13
‘‘Although Practice Book § 10-3 (a) provides that
when any claim in a complaint is grounded on a statute,
the statute shall be specifically identified by its number,
this rule has been construed as directory rather than
mandatory. . . . [When] the [opposing party] is suffi-
ciently apprised of the nature of the action . . . the
failure to comply with the directive of Practice Book
§ 10-3 (a) will not bar recovery.’’ (Internal quotation
marks omitted.) Colon v. Board of Education, 60 Conn.
App. 178, 188 n.4, 758 A.2d 900, cert. denied, 255 Conn.
908, 763 A.2d 1034 (2000); see also Spears v. Garcia,
66 Conn. App. 669, 676, 785 A.2d 1181 (2001), aff’d, 263
Conn. 22, 818 A.2d 37 (2003).
Although this is a civil action, the first count of the
plaintiff’s complaint alleges a criminal act, to wit: ‘‘the
[d]efendant wilfully, intentionally and maliciously
assaulted and battered the [p]laintiff.’’ In response, the
defendant alleged trespass in a number of his special
defenses and, in his ninth special defense, that the plain-
tiff exhibited disorderly conduct and/or was creating
a public disturbance. See footnote 6 of this opinion.
Notably, the plaintiff was on notice of the defendant’s
defense, and her counsel made a tactical decision not
to file a request to revise or a motion to strike any of
the defendant’s special defenses.
We conclude that the jury was not misled by the use
of the word trespass in the court’s charge. Although the
court mentioned the commission of a criminal trespass,
which it then defined, as an example of a justification
defense permitting the use of reasonable physical force,
the court went on to instruct the jury that the three
justification defenses that the defendant alleged were
self-defense, defense of others, and wrongful conduct
as to the incident on December 5, 2009. See footnote
7 of this opinion. The fact that the court only charged
on these three special defenses is further supported by
the jury interrogatories, as the jury was not asked to
determine whether the plaintiff’s recovery was barred
by the special defense of justification based on the
defense of one’s premises.
With respect to the court’s instruction on the special
defenses of defense of others and self-defense, the court
properly did not advise the jury that the defendant had
to prove that the plaintiff was trespassing as an element
of either of these special defenses. In fact, the court
never mentioned the word trespassing in its instructions
on these two special defenses.
As to the special defense of wrongful conduct, the
court clearly instructed the jury that it would have to
find that, during the incident on December 5, 2009, the
plaintiff knowingly and intentionally participated in one
of four criminal acts by criminally trespassing, exhib-
iting disorderly conduct, creating a public disturbance,
or assaulting the defendant.
The jury answered interrogatories indicating that it
had found that the plaintiff’s claims were not barred
by the special defenses of self-defense and wrongful
conduct, but were barred by the special defense of
defense of others. Because the court charged that the
special defense of wrongful conduct required proof that
the plaintiff had knowingly and intentionally partici-
pated in a criminal act by either criminally trespassing,
exhibiting disorderly conduct, creating a public distur-
bance or assaulting the defendant, the jury, in finding
that the defendant had failed to prove this special
defense, concluded that the plaintiff had not violated
the law, which necessarily included finding that she
had not committed criminal trespass. Therefore, the
plaintiff cannot prevail on this claim of an improper
jury instruction.
C
The plaintiff claims that the court improperly charged
the jury by failing to instruct that the defendant had a
duty to retreat in the Sharon house because she was a
codweller. See State v. Shaw, 185 Conn. 372, 382, 441
A.2d 561 (1981), cert. denied, 45 U.S. 1155, 102 S. Ct.
1027, 71 L. Ed. 2d 312 (1982). The plaintiff’s claim is
predicated on her belief that she dwelled in the Sharon
house. We need not determine, however, whether she
dwelled in the Sharon house. The plaintiff did not pre-
serve this claim at trial and seeks reversal of the judg-
ment pursuant to the plain error doctrine. The plaintiff
cannot prevail because the duty to retreat exception
on which she relies pertains to the use of deadly force,
which is not an issue in this case.
General Statutes § 53a-19 provides in relevant part
that ‘‘(a) . . . a person is justified in using reasonable
physical force upon another person to defend himself
or a third person from what he reasonably believes to
be the use or imminent use of physical force, and he
may use such degree of force which he reasonably
believes to be necessary for such purpose . . . (b)
. . . a person is not justified in using deadly physical
force upon another person if he or she knows that he
or she can avoid the necessity of using such force with
complete safety (1) by retreating, except that the actor
shall not be required to retreat if he or she is in his
dwelling . . . .’’ ‘‘The dwelling exception to the duty
to retreat does not apply, however, if the actor is threat-
ened by another person who also dwells in the same
place.’’ (Internal quotation marks omitted.) State v.
James, 54 Conn. App. 26, 33, 734 A.2d 1012, cert. denied,
251 Conn. 903, 738 A.2d 1092 (1999). The court, there-
fore, properly did not charge the jury that the defendant
had a duty to retreat.14
II
The plaintiff’s last claim is that the defense of others
special defense was legally and factually barred because
there was insufficient evidence that the defendant was
acting in defense of others when he assaulted her. When
reviewing sufficiency of the evidence claims we must
determine ‘‘in the light most favorable to sustaining the
verdict, whether the totality of the evidence, including
reasonable inferences therefrom, supports the jury’s
verdict . . . .’’ (Emphasis in original; internal quotation
marks omitted.) Gaudio v. Griffin Health Services
Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).
The defense of defense of others is codified in Gen-
eral Statutes § 53a-19 (a). ‘‘The defense of others, like
self-defense, is a justification defense. These defenses
operate to exempt from punishment otherwise criminal
conduct when the harm from such conduct is deemed
to be outweighed by the need to avoid an even greater
harm or to further a greater societal interest.’’ (Internal
quotation marks omitted.) State v. Bryan, 307 Conn.
823, 832–33, 60 A.3d 246 (2013). ‘‘[T]he defendant bears
the initial burden of producing sufficient evidence to
raise the issue[s] of self-defense [and defense of others],
this burden is slight.’’ State v. Terwilliger, 105 Conn.
App. 219, 224 n.5, 937 A.2d 735 (2008), aff’d, 294 Conn.
399, 984 A.2d 721 (2009).
‘‘[I]t is not the function of this court to sit as a seventh
juror when we review the sufficiency of the evidence
. . . rather, we must determine, in the light most favor-
able to sustaining the verdict, whether the totality of the
evidence, including reasonable inferences therefrom,
supports the jury’s verdict . . . . In making this deter-
mination, [t]he evidence must be given the most favor-
able construction in support of the verdict of which it
is reasonably capable. . . . In other words, [i]f the jury
could reasonably have reached its conclusion, the ver-
dict must stand . . . .’’ (Emphasis added; internal quo-
tation marks omitted.) Mann v. Regan, 108 Conn. App.
566, 579, 948 A.2d 1075 (2008).
On the basis of our review of the evidence, we con-
clude that there was sufficient evidence upon which
the jury reasonably could have reached its verdict that
the defendant was acting in defense of others when he
escorted the plaintiff from the Sharon house. Prior to
arriving at the Sharon house, the plaintiff told some of
her friends that she was going to the Sharon house
during a house tour to surprise and confront the defen-
dant about his ‘‘lying.’’ When she arrived at the Sharon
house, she did not park in the driveway but at the guest
cottage. She entered the house from the rear and began
to scream, ‘‘who is that woman and what is she doing
in my house.’’ The plaintiff was enraged and tour guests
were fearful of her behavior. At least one guest was
worried that the plaintiff may have had a gun.15 The
defendant told the plaintiff to leave and escorted her
from the house. The plaintiff resisted the defendant’s
escort and attempted to strike him and to break loose
from his hold to return to the house. Under those cir-
cumstances, the jury reasonably could have found that
the defendant’s response was reasonable in the face
of the plaintiff’s unexpectedly entering the house and
shouting in a loud and aggressive manner.16 Moreover,
the jury reasonably could have found that the defendant
took the plaintiff by the arm to escort her from the
house and used reasonable physical force in the defense
of others. On the basis of our review of the record,
notwithstanding the fact that the charge to the jury was
less than perfect, we conclude that the jury’s verdict is
supported by the evidence and by its common sense
evaluation of what happened during the incident. The
plaintiff’s claim of insufficient evidence therefore fails.17
The judgment is affirmed.
In this opinion KELLER, J., concurred.
1
The parties had been experiencing marital difficulties for approximately
one year prior to the incident. In the week before to the incident, the plaintiff
consulted a divorce attorney. Subsequent to the incident, the defendant
commenced an action for the dissolution of the parties’ marriage; the parties
were divorced at the time of trial in the present matter.
2
The plaintiff placed the writ of summons and complaint in the hands of
a marshal on December 2, 2011, pursuant to General Statutes § 52-593a.
3
The court submitted the following interrogatories to the jury. The jury’s
responses to the interrogatories are key to our resolution of the plaintiff’s
claim that the court’s instruction misled the jury. The plaintiff’s verdict form
included, in part, the following questions; the jury’s answers are in brackets.
‘‘1. Assault and Battery (Answer All)
‘‘a. We find that the conduct of [the defendant] on December 5, 2009
constituted intentional assault and battery.
‘‘Yes [X] No
‘‘b. We find that the conduct of [the defendant] on December 5, 2009
constituted reckless assault and battery.
‘‘Yes No [X]
‘‘c. We find the conduct of [the defendant] on December 5, 2009 constituted
negligent assault and battery.
‘‘Yes No [X]
‘‘2. Infliction of Emotional Distress (Answer All)
‘‘a. We find that the conduct of [the defendant] on December 5, 2009
constituted intentional infliction of emotional distress.
‘‘Yes No [X]
‘‘b. We find that the conduct of [the defendant] on December 5, 2009
constituted negligent infliction of emotional distress.
‘‘Yes No [X]
‘‘3. Proximate Cause
‘‘We find that the conduct of [the defendant] on December 5, 2009 was
a substantial factor in causing or aggravating the injuries and damages of
[the plaintiff].
‘‘Yes [X] No
‘‘(If you answered no, you must render a Defendant’s Verdict, using the
Defendant’s verdict form.)
‘‘4. Defendant’s Defenses (Answer all)
‘‘a. We find Plaintiff’s recovery is barred by the doctrine of justification
‘‘Yes [X] No
‘‘b. We find Plaintiff’s recovery is barred by the doctrine of self-defense
‘‘Yes No [X]
‘‘c. We find Plaintiff’s recovery is barred by the doctrine of defense of
others
‘‘Yes [X] No
‘‘d. We find Plaintiff’s recovery is barred by the doctrine of wrongful
conduct
‘‘Yes No [X] . . . .’’
4
The plaintiff did not file a motion to set aside the verdict.
5
The plaintiff presented evidence that she incurred damages of $267,512.95
for medical care and treatment.
6
The defendant’s relevant special defenses alleged in part:
‘‘Fourth Special Defense: Wrongful Conduct
‘‘The plaintiff is barred, in whole or in part, from pursuing her claims
under the doctrine of wrongful conduct. On December 5, 2009, the plaintiff
was trespassing on the premises. The plaintiff exhibited disorderly conduct
and/or was creating a public disturbance. In addition, the plaintiff was
assaulting and/or battering the defendant. . . .
‘‘Seventh Special Defense: Self Defense
‘‘With respect to the allegations of December 5, 2009, any actions taken
by the defendant were in self-defense. The plaintiff was trespassing at the
time of the incident and was assaulting and/or battering the defendant.
‘‘Eighth Special Defense: Defense of others
‘‘With respect to the allegations of December 5, 2009, any actions taken
by the defendant were in defense of others. The plaintiff was trespassing
at the time of the incident and was acting in a disorderly manner.
‘‘Ninth Special Defense: Justification
‘‘At the time of the incident, the plaintiff was trespassing on the defen-
dant’s property. The plaintiff, knowing that she was not licensed or privileged
to do so, entered and remained on the property. Despite the defendant, who
is the owner of the property, directing her to leave, the plaintiff refused to
do so. The plaintiff then continued to exhibit disorderly conduct and/or
create a public disturbance. As such, the defendant was justified in using
reasonable force in escorting the plaintiff from the premises.’’ (Emphasis
added.)
7
The following portion of the court’s charge is at the center of the plaintiff’s
claims on appeal: ‘‘Justification is a general defense to the use of physical
force. The use of physical force upon another person that results in actual
injury, while usually a criminal assault, is not criminal if it is permitted or
justified by a provision of law or statute.
‘‘Therefore, when one is accused of committing an assault claims that he
or she acted under a legal justification, the jury must examine the circum-
stances and discover whether the act was truly justified. The court’s function
in instructing the jury is to tell the jury the circumstances which the use
of physical force against another person is legally justified.
‘‘Justification defenses focus on the defendant’s reasonable beliefs as to
circumstances and the necessity of using force. The jury must view the
situation from the perspective of the defendant. However, the defendant’s
belief ultimately must be found to be reasonable. For example, a person
in possession or control of premises is justified in using reasonable physi-
cal force upon another person when and to the extent that he reasonably
believes such to be necessary to prevent or terminate the commission or
attempted commission of a criminal trespass by such other person in or
upon such premises. A person commits criminal trespass when, knowing
that such person is not licensed or privileged to do so, such person enters
or remains in a building or any other premises, after an order to leave,
or after an order not to enter, that was personally communicated to such
person by the owner of the premises.
‘‘The claim focuses on what the defendant reasonably believes under the
circumstances and presents a question of fact. The jury’s initial determina-
tion requires the jury to assess the veracity of witnesses, often including
the defendant, and to determine whether the defendant’s account of his
belief at the time of the confrontation is in fact credible. The jury must
make a further determination as to whether that belief was reasonable, from
the perspective of a reasonable person in the defendant’s circumstances.
‘‘The defendant’s conduct must be judged ultimately against that of a
reasonably prudent person. It is not required that the jury find that the victim,
was in fact, using or about to use physical force against the defendant. . . .
‘‘The defendant raised the issues of self-defense and defense of others as
to the incident on December 5, 2009. After you have considered all of the
evidence in this case, if you find that the plaintiff has proved her claims
you must go on to consider whether or not the defendant acted in self-
defense of himself or of others.
‘‘A person is justified in the use of force against another person that would
otherwise be illegal if he is acting in the defense of himself or others under
certain circumstances. The statue defining self-defense reads in pertinent
part as follows:
‘‘ ‘[A] person is justified in using reasonable physical force upon another
person to defend himself from what he reasonably believes to be the use
or imminent use of physical force, and he may use such degree of force
which he reasonably believes to be necessary for such purpose.’
‘‘The statute requires that, before a defendant uses physical force upon
another person to defend himself, he must have two ‘reasonable beliefs.’
The first is a reasonable belief that physical force is then being used or
about to be used upon him. The second is a reasonable belief that the degree
of force he is using to defend himself from what he believes to be an ongoing
or imminent use of force is necessary for that purpose.
‘‘A defendant is not justified in using any degree of physical force in self-
defense against another if he provokes the other person to use physical
force against him. Also, a defendant is not justified in using any degree of
physical force in self-defense against another if he is the initial aggressor.
A defendant cannot use excessive force in his self-defense or defense of
others. . . .
‘‘The defendant has also raised the defense of ‘wrongful conduct,’ claiming
that the plaintiff is barred, in whole or in part, from pursuing her claims
under the doctrine of wrongful conduct.
‘‘The defendant alleges that on December 5, 2009, the plaintiff was tres-
passing on the premises and exhibiting disorderly conduct and/or creating
a disturbance. The parties agree that the defendant did not invite the plaintiff
to the historic tour. In addition, the defendant alleges the plaintiff entered
and/or remained on the property after she was directed to leave by him,
the owner of the property, and that she refused to do so, among other claims
asserted with respect to trespassing. The plaintiff does not dispute that she
was told to leave. The defendant also alleges that the plaintiff was exhibiting
disorderly conduct and/or creating a public disturbance. The defendant also
alleges that the plaintiff was assaulting and/or battering him during the
incident of December 5, 2009.
‘‘Under Connecticut law, a plaintiff may not maintain a civil action for
injuries allegedly sustained as the direct result of her knowing and intentional
participation in a criminal act. The wrongful conduct defense does not apply
if you find that the plaintiff sustained injuries and damages independent of
any wrongful conduct of the plaintiff. It further applies only if the plaintiff
has violated the law in connection with the very transaction as to which
she seeks redress or relief.’’ (Emphasis added.)
8
‘‘Marital property’’ is a term of art reserved for the distribution of assets
in an action for marital dissolution. General Statutes § 46b-81 provides in
relevant part that the court may assign to either party ‘‘all or any part of
the estate of the other spouse’’ in a marital dissolution proceeding. See also
General Statutes §§ 46b-36 and 46b-37; Porter v. Thrane, 98 Conn. App. 336,
342 n.6, 908 A.2d 1137 (2006) (neither husband nor wife acquires by virtue
of marriage interest in real property of other during other’s lifetime). We
need not determine whether the Sharon house was marital property.
9
Defense counsel cited General Statutes § 53a-20, which provides in rele-
vant part: ‘‘A person in possession or control of premises . . . is justified
in using reasonable physical force upon another person when and to the
extent that he reasonably believes such to be necessary to prevent . . . the
commission or attempted commission of a criminal trespass by such other
person in or upon such premises . . . .’’
10
The record discloses that the defendant first pleaded trespass in his
answer and special defenses dated March 27, 2015. Trespass appears in four
of his special defenses. The plaintiff filed a general denial of the special
defenses on July 15, 2015, without having moved to strike any of the spe-
cial defenses.
11
It is not the role of the trial court to frame the issues for trial but to admit
legally and logically relevant evidence in accordance with the pleadings;
see, e.g., State v. Hunter, 62 Conn. App. 767, 775, 772 A.2d 709 (2001); and
to assist the jury in applying the law correctly to the facts they might find
established. State v. Blango, 102 Conn. App. 532, 543, 925 A.2d 1186, cert.
denied, 284 Conn. 913, 931 A.2d 932 (2007). The issues raised in this appeal
are largely of the parties’ own making in that they failed to comply with
our rules of practice. See Suntech of Connecticut, Inc. v. Lawrence Brunoli,
Inc., 173 Conn. App. 321, 333–34 n.15, 164 A.3d 36 (2017).
12
See Practice Book § 60-1; see also Connecticut Light & Power Company
v. Lighthouse Landings, Inc., 279 Conn. 103–104, 900 A.2d 1242 (2006)
(rules are to be interpreted liberally in cases where strict adherence will
work surprise or injustice).
13
In his appellate brief, the defendant has pointed out that his special
defenses initially were filed in March, 2015, and that the justification special
defense, as well as others, included the words trespass and disorderly con-
duct. The court found that the plaintiff had notice of the subject statute
and that she had failed to file a motion to strike, when she could have
brought the issue to the attention of the court before the parties presented
evidence as to whether she was trespassing at the Sharon house. The plaintiff
does not claim that she objected to the presentation of evidence regard-
ing trespass.
14
The plaintiff also claimed that the court should have instructed the jury
that mere words cannot justify the use of force in defense of others. The
plaintiff admits that she did not request this charge. The claim therefore
has not been preserved, and we decline to review it. See State v. Angell, 36
Conn. App. 383, 393–94, 651 A.2d 263 (1994), aff’d, 237 Conn. 321, 627 A.2d
912 (1996).
15
We cannot conclude that the guest’s concern was unreasonable given
the prevalence of gun violence in in our society, including domestic disputes.
Jurors do not leave their common sense and life experience at the courthouse
door. See State v. Koslik, 80 Conn. App. 746, 756, 837 A.2d 813, cert. denied,
268 Conn. 908, 845 A.2d 413 (2004).
16
Plainly, there was sufficient evidence in the form of testimony for the
jury to have concluded that the defendant acted in defense of others. He
testified that as he escorted the plaintiff from the house, he ‘‘felt she was
trying to run back into the house and confront the guests,’’ and that his
guests ‘‘were terrified.’’ According to his testimony, one of the guests had
a ‘‘look of horror and fear’’ on her face.
During their deliberations, the jury asked to review the testimony of two
of the defendant’s guests. The defendant was afraid that the plaintiff was
going to do harm to them. Teasdale testified that she ‘‘didn’t know if [their]
lives were in danger. I didn’t know if she had a gun and she was going to
go after him. . . . I felt trapped in that house, and I didn’t know what was
going on. I was concerned for our safety. . . . I didn’t know what was going
on out there, and I was really worried about our safety, my safety, everyone’s
safety.’’ Osborne testified that she ‘‘was scared’’ of the plaintiff. When the
defendant returned to the house, he told the guests that for their ‘‘safety
I’m taking you to the train now.’’ Osborn also testified that ‘‘we were all
shaking. We were just kind of recapping how terrifying it was to be just
completely ambushed by someone.’’
17
The plaintiff also claims that the court’s charge subverted Connecticut’s
well established policy against domestic violence. The plaintiff failed to
raise this claim in the trial court; we therefore decline to consider it. ‘‘As
our Supreme Court has explained, [t]he reason for the rule is obvious: to
permit a party to raise a claim on appeal that has not been raised at trial—
after it is too late for the trial court or the opposing party to address the
claim—would encourage trial by ambuscade, which is unfair to both the
trial court and the opposing party.’’ (Internal quotation marks omitted.) U.S.
Bank National Assn. v. Iaquessa, 132 Conn. App. 812, 815, 34 A.3d 1005(2012). Nonetheless, it should go without saying that by affirming the judg-
ment of the trial court, this court in no way would ever condone domestic
violence or unjustified violence of any sort.