State v. Toro , 172 Conn. App. 810 ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. JOSE A. TORO
(AC 38215)
DiPentima, C. J., and Mullins and Bishop, Js.
Argued January 12—officially released May 9, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Moll, J.)
James E. Mortimer, with whom, on the brief, was
Michael D. Day, for the appellant (defendant).
Peter A. McShane, state’s attorney, with whom, on
the brief, were Maureen Platt, state’s attorney, Lisa
Herskowitz, senior assistant state’s attorney, and Elena
Palermo, assistant state’s attorney, for the appellee
(state).
Opinion
MULLINS, J. The defendant, Jose A. Toro, appeals
from the judgment of conviction, rendered after a jury
trial, of attempt to commit assault in the first degree
in violation of General Statutes §§ 53a-59 (a) (1) and
53a-49 (a) (1), and breach of the peace in the second
degree in violation of General Statutes § 53a-181 (a)
(1).1 The defendant claims that the court abused its
discretion by admitting evidence of his uncharged mis-
conduct. The defendant, however, has not included an
analysis in his main appellate brief pertaining to how
this allegedly improper ruling was harmful. Conse-
quently, we conclude that the defendant’s claim is inad-
equately briefed and, therefore, unreviewable.
Accordingly, we affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history inform our review.
In February, 2013, the victim, Wilfredo Rivera, had been
dating his girlfriend, Luz Torres, for approximately four
years. Prior to their relationship, Torres had been
involved with another individual, who had been a friend
of the defendant. When that relationship ended, the
defendant sought to date Torres, but she was not inter-
ested. Instead, she began dating the victim, which upset
the defendant. The defendant then began threatening
the victim and Torres, telling them that he would kill
them if they did not end their relationship. These threats
soon escalated to physical violence.
On February 4, 2013, at approximately 8:15 a.m., the
victim took his dog for a walk on the sidewalk outside
of his Waterbury apartment. As the dog made its way
to some bushes on the side of a building, the victim let
go of its leash but followed the dog into the bushes.
As the victim exited the bushes, he saw the defendant
standing on the sidewalk holding a machete in his
hands. The victim grabbed his dog and started running
back toward his apartment. The defendant chased the
victim, repeatedly saying that he was going to kill him.
The victim was yelling as the defendant chased him,
which caused Torres to look out of the window of the
victim’s apartment. Torres observed the victim running
while being chased by another person, but she could
not see the face of the other person. A neighbor, Roberto
Millan, also heard yelling, and, when he looked out of
his window, he saw the victim and a man with a machete
engaged in a confrontation.
During the chase, the victim fell to the ground. The
defendant then swung the machete at him and hit him
on the back of his leg. The victim was able to block
the blow substantially by using a metal flashlight he
had been carrying. As a result, the victim sustained only
a minor injury to his leg. After taking the hit, the victim
managed to get on his feet, and he ran behind a vehicle.
At that point, the defendant left the scene. The victim
returned to his apartment and told Torres what had
happened, and she telephoned police.
Shortly thereafter, the defendant was arrested on sev-
eral charges, and, following a jury trial, the jury found
him guilty of attempt to commit assault in the first
degree and breach of the peace in the second degree.
See footnote 1 of this opinion. The court sentenced the
defendant to a total effective sentence of twelve years
incarceration, execution suspended after seven years,
five years of which were mandatory, followed by three
years probation. This appeal followed. Additional facts
will be set forth as necessary in consideration of the
defendant’s claim.
In this appeal, the defendant claims that the court
abused its discretion by admitting evidence of
uncharged misconduct. Specifically, he asserts that the
court erred in admitting the uncharged misconduct evi-
dence that, on February 3, 2013, the day before the
attack on the victim that is the subject of this appeal,
the defendant had chased the victim with a knife and
threatened to kill him. The defendant argues that this
evidence was unduly prejudicial and that the court
should have excluded it. He fails to argue in his main
brief to this court, however, that the trial court’s errone-
ous admission of this evidence was harmful error. Thus,
because the defendant has failed to brief adequately
how he was harmed by this allegedly improper eviden-
tiary ruling, we decline to review the defendant’s claim.
The following additional facts are relevant. Prior to
trial, the state filed two notices of intent to admit
uncharged misconduct. The defendant does not chal-
lenge on appeal the court’s admission of various
uncharged misconduct evidence offered by the state in
its first notice.2
In the second notice, which is the subject of this
appeal, the state sought ‘‘to introduce testimony from
[the victim] that, on February 3, 2013, the defendant
came at [the victim] with a knife threatening to kill
him.’’ In response to the two notices, the defendant
filed a motion in limine asking the court to preclude
the state from eliciting any testimony, or offering any
evidence, as to any uncharged misconduct on the part
of the defendant, including the February 3, 2013 inci-
dent. The court denied the motion in limine, thereby
permitting the state to offer evidence of the defendant’s
prior misconduct. At trial, the state elicited the details
of the February 3, 2013 incident during its direct exami-
nation of the victim, and it relied on such testimony in
its closing argument.
On appeal, the defendant claims that the evidence
from the February 3, 2013 incident should not have
been admitted because it was unduly prejudicial. He
contends that the evidence of the February 3, 2013
incident ‘‘made the defendant appear as a knife wielding
criminal, actively attempting to stab [the victim] the
day before the operative crime,’’ and that it, therefore,
was unduly prejudicial. Moreover, according to the
defendant, the evidence of such uncharged misconduct
was particularly prejudicial because the charged con-
duct did not ‘‘far outweigh, in terms of severity, the
character of the uncharged misconduct . . . .’’ In his
main brief, however, the defendant did not present any
argument on how the court’s alleged improper admis-
sion of this evidence constituted harmful error.
The state responds that we should not review the
defendant’s claim because it is inadequately briefed.
Specifically, the state contends that because the defen-
dant fails to allege in his main brief what harm he
suffered, even if the court had abused its discretion by
admitting this evidence, he has abandoned his claim by
not adequately briefing it.
In his reply brief, the defendant presents his harmful
error analysis for the first time. He also contends in his
reply brief that he had addressed the issue of harm
adequately in his main brief. In particular, he argues
that his discussion of the court’s improper admission
of the uncharged misconduct evidence focused on his
contention that the evidence’s probative value did not
outweigh its prejudicial effect. Therefore, according to
the defendant, his argument regarding the evidence’s
prejudicial effect was the equivalent of an argument on
harmful error. We agree with the state that the defen-
dant failed to brief the issue of harm adequately and,
therefore, has abandoned this claim.3
‘‘Evidence of a defendant’s uncharged misconduct is
inadmissible to prove that the defendant committed the
charged crime or to show the predisposition of the
defendant to commit the charged crime. . . . Excep-
tions to this rule have been recognized, however, to
render misconduct evidence admissible if, for example,
the evidence is offered to prove intent, identity, malice,
motive, a system of criminal activity or the elements of
a crime. . . . To determine whether evidence of prior
misconduct falls within an exception to the general
rule prohibiting its admission, we have adopted a two-
pronged analysis. . . . First, the evidence must be rele-
vant and material to at least one of the circumstances
encompassed by the exceptions. Second, the probative
value of such evidence must outweigh the prejudicial
effect of the other crime evidence. . . . Since the
admission of uncharged misconduct evidence is a deci-
sion within the discretion of the trial court, we will
draw every reasonable presumption in favor of the trial
court’s ruling. . . . We will reverse a trial court’s deci-
sion only when it has abused its discretion or an injus-
tice has occurred.’’ (Internal quotation marks omitted.)
State v. Kalil, 314 Conn. 529, 539–40, 107 A.3d 343(2014).
Our Supreme Court ‘‘has identified four factors rele-
vant to determining whether the admission of otherwise
probative evidence is unduly prejudicial. These are: (1)
where the facts offered may unduly arouse the [jurors’]
emotions, hostility or sympathy, (2) where the proof
and answering evidence it provokes may create a side
issue that will unduly distract the jury from the main
issues, (3) where the evidence offered and the count-
erproof will consume an undue amount of time, and
(4) where the defendant, having no reasonable ground
to anticipate the evidence, is unfairly surprised and
unprepared to meet it.’’ (Internal quotation marks omit-
ted.) State v. Hill, 307 Conn. 689, 698, 59 A.3d 196 (2013).
‘‘It is well settled that, absent structural error, the
mere fact that a trial court rendered an improper ruling
does not entitle the party challenging that ruling to
obtain a new trial. An improper ruling must also be
harmful to justify such relief. . . . The harmfulness of
an improper ruling is material irrespective of whether
the ruling is subject to review under an abuse of discre-
tion standard or a plenary review standard. . . . When
the ruling at issue is not of constitutional dimensions,
the party challenging the ruling bears the burden of
proving harm.’’ (Internal quotation marks omitted.)
State v. Baker, 168 Conn. App. 19, 36, 145 A.3d 955,
cert. denied, 323 Conn. 932, 150 A.3d 232 (2016).
‘‘[W]hether [an improper ruling] is harmless in a par-
ticular case depends upon a number of factors, such
as the importance of the witness’ testimony in the prose-
cution’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 per-
mitted, and, of course, the overall strength of the prose-
cution’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
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Eleck, 314 Conn. 123, 129, 100 A.3d 817(2014).
‘‘It is a fundamental rule of appellate review of eviden-
tiary rulings that if [the] error is not of constitutional
dimensions, an appellant has the burden of establishing
that there has been an erroneous ruling which was
probably harmful to him.’’ (Internal quotation marks
omitted.) State v. Gonzalez, 272 Conn. 515, 527, 864
A.2d 847 (2005); see also State v. Kirsch, 263 Conn.
390, 412, 820 A.2d 236 (2003) (‘‘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’’). ‘‘We do not
reach the merits of [a] claim [where] the defendant
has not briefed how he was harmed by the allegedly
improper evidentiary ruling.’’ State v. Baker, supra, 168
Conn. App. 35; see also In re James O., 160 Conn. App.
506, 526, 127 A.3d 375 (‘‘[E]ven if we assume, without
deciding, that . . . the exhibits in question were
improperly admitted into evidence, the respondent has
failed adequately to brief how she was harmed by the
erroneous admission. Because the respondent has
failed to brief the issue of harmfulness, we deem the
claim abandoned and, accordingly, decline to review
it.’’), aff’d, 322 Conn. 636, 142 A.3d 1147 (2016).
Additionally, ‘‘[i]t is well settled that this court does
not address claims raised for the first time in a reply
brief.’’ BTS, USA, Inc. v. Executive Perspectives, LLC,
166 Conn. App. 474, 498 n.7, 142 A.3d 342, cert. denied,
323 Conn. 919, 150 A.3d 1149 (2016); see also Bovat v.
Waterbury, 258 Conn. 574, 585 n.11, 783 A.2d 1001(2001) (‘‘[i]t is a well established principle that argu-
ments cannot be raised for the first time in a reply
brief’’ [internal quotation marks omitted]).
In the present case, the defendant did not address in
his main brief how the allegedly improper admission
of uncharged misconduct evidence harmed him. To the
extent that he argues that he effectively addressed this
issue by analyzing how it was an abuse of discretion
for the court to admit evidence whose probative value
did not outweigh its prejudicial effect, we disagree.
The defendant conflates the distinct concepts of
whether the prejudicial effect of evidence outweighs
its probative value and harmful error. The former con-
cerns a trial court’s consideration of whether the prof-
fered evidence would be improper for the jury to
consider, while the latter concerns a reviewing court’s
retrospective consideration of whether or how the alleg-
edly improper admission of evidence corrupted the
jury’s verdict.
Prejudicial effect is measured in terms of whether
specific evidence would arouse the jurors’ emotions,
distract the jury, consume an undue amount of time,
or unfairly surprise the defendant. State v. Hill, supra,
307 Conn. 698. In contrast, the harm inquiry is broader
in scope because it ultimately looks at the ‘‘impact of
the . . . evidence on the trier of fact and the result of
the trial.’’ State v. Eleck, supra, 314 Conn. 129. Thus,
harm is measured by examining a different set of consid-
erations, ‘‘such as the importance of the [improper evi-
dence] in the prosecution’s case, whether the [improper
evidence] was cumulative, the presence or absence of
evidence corroborating or contradicting the [improper
evidence] on material points, the extent of cross-exami-
nation otherwise permitted, and, of course, the overall
strength of the prosecution’s case.’’ (Internal quotation
marks omitted.) Id.Accordingly, although in some cases the two con-
cepts may overlap with one another to some extent,
prejudicial effect and harm are not necessarily equiva-
lent and must be briefed separately. State v. Baker,
supra, 168 Conn. App. 35–36. Indeed, it is not inconsis-
tent for a reviewing court to conclude that, although
evidence was unduly prejudicial, and thus improperly
admitted at trial, its improper admission nevertheless
was harmless. See, e.g., State v. Silva, 201 Conn. 244,
250, 513 A.2d 1202 (1986) (‘‘The trial court is required
to balance the probative value against the prejudicial
effect of [uncharged misconduct] evidence . . . and to
exclude the evidence unless the former outweighs the
latter. . . . We can find little, if any, probative value
in the [uncharged misconduct evidence that was admit-
ted in this case]. . . . Although the trial court erred
in admitting [that] evidence, we think the error was
harmless . . . .’’ [Citations omitted.]); State v. Bell, 152
Conn. App. 570, 581–82, 99 A.3d 1188 (2014) (‘‘[T]he
probative value of the uncharged misconduct testimony
in this case was outweighed by its prejudicial effect.
. . . We therefore conclude that the court improperly
admitted [that] testimony . . . . That determination
does not, however, end our discussion . . . [because]
[w]e [ultimately] conclude that its admission was harm-
less.’’ [Citations omitted.]); see also State v. Bell, 113
Conn. App. 25, 42, 964 A.2d 568 (‘‘The defendant claims
that [the] testimony had minimal probative value, which
was outweighed by its prejudicial impact. We agree but
find the admission harmless.’’), cert. denied, 291 Conn.
914, 969 A.2d 175 (2009).
It is only in his reply brief to this court that the
defendant presents a harmful error analysis, i.e., how
the allegedly improper admission of uncharged miscon-
duct evidence substantially affected the verdict. As pre-
viously noted, we will not consider arguments raised
for the first time in a reply brief. See Bovat v. Waterbury,
supra, 258 Conn. 585 n.11; BTS, USA, Inc. v. Executive
Perspectives, LLC, supra, 166 Conn. App. 498 n.7.
Accordingly, we decline to review the defendant’s claim
because he has not addressed the issue of harm ade-
quately in his main brief.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury found the defendant not guilty of assault in the third degree in
violation of General Statutes § 53a-61 (a) (1). The jury was unable to reach
a verdict on the charge of carrying a dangerous weapon in violation of
General Statutes § 53-206 (a), and the court declared a mistrial on that count.
2
Pursuant to the first notice, the state presented evidence at trial that,
(1) prior to February 4, 2013, the defendant repeatedly harassed the defen-
dant and Torres with numerous calls and text messages threatening to hurt
or kill them, and (2) after the incident in question, he knocked on the
window of the victim’s apartment with a cane, frightening Torres.
3
The state also argues that the court did not abuse its discretion in
admitting this evidence because it was not unduly prejudicial and, further-
more, it was not harmful error for the court to admit it. Because we conclude
that the defendant’s claim is unreviewable, we do not address this argument.