State v. Urbanowski ( 2016 )

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STATE OF CONNECTICUT v. MICHAEL A.
URBANOWSKI
(AC 36771)
Keller, Prescott and Mullins, Js.
Argued October 23, 2015—officially released March 1, 2016
(Appeal from Superior Court, judicial district of
Tolland, Bright, J.)
Arthur L. Ledford, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Nicole I. Christie, assistant state’s attor-
ney, for the appellee (state).
Opinion
KELLER, J. The defendant, Michael Urbanowski,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of assault in the second degree in
violation of General Statutes § 53a-60 (a) (1), breach of
the peace in the second degree in violation of General
Statutes § 53a-181 (a) (2), strangulation in the second
degree in violation of General Statutes § 53a-64bb (a),
and threatening in the second degree in violation of
General Statutes § 53a-62 (a) (1). Additionally, follow-
ing the defendant’s plea of nolo contendere, the defen-
dant was convicted of being a persistent serious felony
offender in violation of General Statutes § 53a-40 (c)
and (j), as alleged in a part B information.1 The defen-
dant claims that the trial court improperly (1) rendered
a judgment of conviction that encompassed both assault
in the second degree and strangulation in the second
degree or, in the alternative, punished him for both of
these offenses in violation of the constitutional prohibi-
tion against double jeopardy, and (2) admitted evidence
of his prior uncharged misconduct. We affirm the judg-
ment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The victim, Patricia Staveski, became acquainted with
the defendant because he was a patron of a bar at which
she worked. The victim learned that the defendant was
willing to help others by performing maintenance work
on their automobiles free of charge. In early May, 2012,
the defendant, using parts that the victim had pur-
chased, fixed the brakes in the victim’s automobile free
of charge.
On May 11, 2012, the defendant agreed to replace
the water pump on the victim’s automobile. The victim
understood that this would be done without charge,
simply as ‘‘a nice deed’’ by the defendant. Late in the
day, after the defendant had completed work for his
employer, the defendant repaired the victim’s automo-
bile in the driveway of a residence, where the defendant
was renting a room. The victim sat in her automobile
while the defendant performed the repair, which took
several hours. While performing the repair, the defen-
dant consumed beer.
By the time that the defendant finished working on
the victim’s automobile, it was dark outside. The victim
stated that she was tired and that she intended to leave.
The defendant ‘‘copped an attitude’’ when the victim
made these statements, stating, ‘‘you’re going to leave
after I just helped you out?’’ Reluctantly, the victim
accompanied the defendant inside of the residence.
Inside, the defendant played some music, the victim
consumed a drink, and the defendant and the victim
talked for a brief period of time. The defendant invited
the victim to join him in lying down on a couch. The
victim declined the invitation and stated that she was
leaving. The victim understood the defendant’s invita-
tion to lie on the couch to suggest that he wanted to
have sexual relations with her. The victim, who had
known the defendant for several weeks, did not want
an intimate relationship with the defendant, and did
not consider him to be a friend or a boyfriend.
The victim’s stated intention to leave caused the
defendant to become very angry. The defendant began
yelling that the victim was not going to leave. For a brief
period of time, the defendant went into a bathroom, at
which time the victim used her cell phone to call her
son, Jordan Bechard, for assistance. The victim told
Bechard that she was in trouble and provided him with
the defendant’s address. When the defendant came out
of the bathroom, he grabbed the cell phone from the
victim and destroyed it. Before the call ended abruptly,
Bechard heard the defendant yell at the victim to ‘‘get
the F off’’ of the cell phone.
The defendant threw the victim across the room,
causing her head to strike a wall in a kitchen. The
defendant threw the victim a second time in an area
near the kitchen that had a small porch, causing further
injury to her head. There, the defendant repeatedly
punched the victim in her face for a lengthy period
of time.
The defendant ordered the victim to get up but, by
this point in time, she physically was unable to do so.
Then, the defendant grabbed the victim by her feet and
dragged her down the driveway in the direction of her
automobile. The defendant, who was wearing work
boots, intermittently punched and kicked the victim in
the face and head. A neighbor, Leanne Litz, overheard
the defendant yelling, ‘‘I’m going to fucking kill you,’’
while the victim repeatedly screamed for help. The
neighbor called 911.
Ultimately, the defendant positioned the victim on a
seat in her automobile. He put his weight on her with
his knee and repeatedly strangled her by wrapping his
hands around her neck and pushing. He punched her
in the face with both fists. He stated: ‘‘[Y]ou die, bitch.
Say goodbye to your kids.’’ Inside the automobile, the
victim lost and regained consciousness several times.
Several times when she regained consciousness and
began to open her eyes, the defendant expressed his
anger and assaulted her yet again. At one point, he
stated, ‘‘[w]hy won’t you die, you dumb bitch?’’
After a lengthy assault in the automobile, the defen-
dant walked to a nearby garage on the property. The
victim opened a door, fell out of the automobile, and
crawled to a neighbor’s house that was located across
the street, where she summoned help. The neighbor,
Andrew Scott, permitted the victim to take refuge inside
of his residence, provided assistance to the victim, and
called 911. Bechard, who was in Springfield, Massachu-
setts, when his mother, the victim, called him earlier
that evening, arrived at the defendant’s residence. Ini-
tially, he could not find the victim at the residence, but
observed massive amounts of blood in his mother’s
automobile, which remained in the driveway. The victim
used Scott’s telephone to call Bechard and inform him
of her whereabouts. Later, Bechard accompanied her
to a hospital.
After the victim had fled from her automobile, the
defendant drove away from the scene in his automobile.
He drove to the home of one of his relatives, where,
shortly after his assault of the victim, police found him
asleep in the backseat of his automobile. The defendant
told police that he had been involved in an altercation
with his girlfriend, and police observed that the defen-
dant’s knuckles were swollen and that he had dried
blood on his hands, clothing, and face. The police offi-
cers placed the defendant under arrest.
Emergency medical personnel provided life sus-
taining treatment to the victim before they transported
her to a hospital. The defendant’s assault caused the
victim to suffer many serious injuries with long-lasting
negative effects that interfered with her ability to
engage in the normal activities of life. Among other
injuries, the victim suffered a concussion, lacerations
and hematomas about her head and face, as well as
bruising, especially around her throat and neck. She
sustained a ‘‘golf ball sized depression’’ on the top of
her head. The assault caused the victim a great deal of
pain and, at times, left her unable to see. Immediately
following the assault, the victim exhibited confusion,
lethargy, and decreased cognitive function. For many
weeks following the assault, the victim experienced
pain, headaches, dizziness, bruising, vertigo, cognitive
impairment, vision problems, and problems with bal-
ance. Additionally, the defendant’s actions affected the
sound of the victim’s voice.
The defendant’s case was tried before a jury in
December, 2013. This appeal followed the defendant’s
conviction of assault in the second degree, breach of
the peace in the second degree, strangulation in the
second degree, and threatening in the second degree.
Additional facts will be set forth as necessary.
I
First, the defendant claims that the court improperly
rendered a judgment of conviction that encompassed
both assault in the second degree and strangulation
in the second degree. The defendant argues that his
conviction of both assault and strangulation violated
§ 53a-64bb (b). Alternatively, the defendant argues that
his conviction of both charges ultimately violated the
prohibition against double jeopardy under the state and
federal constitutions because, under the test set forth
in Blockburger v. United States, 284 U.S. 299, 304, 52
S. Ct. 180, 76 L. Ed. 306 (1932), as a result of a single
act or transaction, he received multiple punishments
resulting from his conviction of two offenses that
required proof of substantively identical elements.2
The defendant correctly acknowledges before this
court that he failed to raise the present claim, in any
form, before the trial court. On multiple grounds, how-
ever, the defendant argues that the claim is reviewable
on appeal.
Initially, the defendant argues that his claims ‘‘[are]
properly preserved in that [he] may challenge the legal-
ity of a sentence at any time, and the court has the
authority to correct an illegal sentence.’’ This, however,
is not an appeal from the denial of a motion to correct
an illegal sentence. Although we recognize that the
defendant’s claim involves issues that properly may
have been raised before the trial court in a motion to
correct an illegal sentence,3 we also recognize that, in
recent decisions, this court has determined that it is
inappropriate to review an illegal sentence claim that
is raised for the first time on appeal. ‘‘Our rules of
practice confer the authority to correct an illegal sen-
tence on the trial court, and that court is in a superior
position to fashion an appropriate remedy for an illegal
sentence. . . . Furthermore, the defendant has the
right, at any time, to file a motion to correct an illegal
sentence and raise [an illegal sentence] claim before
the trial court.’’ (Citation omitted.) State v. Starks, 121
Conn. App. 581, 592, 997 A.2d 546 (2010) (declining to
review unpreserved claim of illegal sentence under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
[1989], or plain error doctrine embodied in Practice
Book § 60-5); see also Cobham v. Commissioner of
Correction, 258 Conn. 30, 38 n.13, 779 A.2d 80 (2001)
(clarifying that ‘‘judicial authority’’ in context of Prac-
tice Book § 43-22 refers exclusively to trial court); State
v. Crump, 145 Conn. App. 749, 766, 75 A.3d 758 (‘‘[i]t
is not appropriate to review an unpreserved claim of
an illegal sentence for the first time on appeal’’ [internal
quotation marks omitted]), cert. denied, 310 Conn. 947,
80 A.3d 906 (2013); State v. Brown, 133 Conn. App. 140,
145–46 n.6, 34 A.3d 1007 (2012) (same), rev’d on other
grounds, 310 Conn. 693, 80 A.3d 878 (2013).
Apart from inviting this court to correct an illegal
sentence, the defendant argues that the claim is review-
able under State v. Golding, supra, 213 Conn. 239–40,
or the plain error doctrine. Under Golding, ‘‘a defendant
can prevail on a claim of constitutional error not pre-
served 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 magni-
tude 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.’’ (Emphasis in original; footnote omitted.) Id.; see
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)
(modifying Golding’s third prong).
Insofar as the defendant’s claim is based on a viola-
tion of § 53a-64bb (b),4 the claim is not reviewable under
Golding because it alleges only a violation of statutory
magnitude. See State v. Graham S., 149 Conn. App. 334,
343, 87 A.3d 1182 (claim brought under § 53a-64bb [b]
is statutory in nature), cert. denied, 312 Conn. 912, 93
A.3d 595 (2014). Insofar as the defendant’s claim is
based on a violation of the prohibition against double
jeopardy afforded under the state and federal constitu-
tions, however, the claim is reviewable under Golding
because the record is adequate for review, and the claim
is of constitutional magnitude. See, e.g., State v. Chi-
cano, 216 Conn. 699, 704–705, 584 A.2d 425 (1990), cert.
denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d
1062 (1991), overruled in part on other grounds by State
v. Polanco, 308 Conn. 242, 261, 61 A.3d 1084 (2013);
State v. Kurzatowski, 119 Conn. App. 556, 568, 988 A.2d
393, cert. denied, 296 Conn. 902, 991 A.2d 1104 (2010).
The defendant claims that he received multiple punish-
ments for the same offense in a single trial. ‘‘A defendant
may obtain review of a double jeopardy claim, even if
it is unpreserved, if he has received two punishments
for two crimes, which he claims were one crime, arising
from the same transaction and prosecuted at one trial
. . . . Because the claim presents an issue of law, our
review is plenary.’’ (Citations omitted.) State v. Crudup,
81 Conn. App. 248, 252, 838 A.2d 1053, cert. denied, 268
Conn. 913, 845 A.2d 415 (2004).
Thus, we turn to an evaluation of the defendant’s
claim to determine whether a double jeopardy violation
exists and deprived him of a fair trial.5 ‘‘A defendant’s
double jeopardy challenge presents a question of law
over which we have plenary review. . . . The double
jeopardy clause of the fifth amendment to the United
States constitution provides: [N]or shall any person be
subject for the same offense to be twice put in jeopardy
of life or limb. The double jeopardy clause is applicable
to the states through the due process clause of the
fourteenth amendment. . . . This constitutional guar-
antee prohibits not only multiple trials for the same
offense, but also multiple punishments for the same
offense in a single trial. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met. . . .
‘‘Traditionally we have applied the Blockburger test
to determine whether two statutes criminalize the same
offense, thus placing a defendant prosecuted under
both statutes in double jeopardy: [W]here the same act
or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not. . . . This test is a technical one and examines
only the statutes, charging instruments, and bill of par-
ticulars as opposed to the evidence presented at
trial. . . .
‘‘Our analysis of [the defendant’s] double jeopardy
[claim] does not end, however, with a comparison of
the offenses. The Blockburger test is a rule of statutory
construction, and because it serves as a means of dis-
cerning [legislative] purpose the rule should not be con-
trolling where, for example, there is a clear indication
of contrary legislative intent. . . . Thus, the
Blockburger test creates only a rebuttable presumption
of legislative intent, [and] the test is not controlling
when a contrary intent is manifest. . . . When the con-
clusion reached under Blockburger is that the two
crimes do not constitute the same offense, the burden
remains on the defendant to demonstrate a clear legisla-
tive intent to the contrary.’’ (Citations omitted; internal
quotation marks omitted.) State v. Wright, 319 Conn.
684, 689–90, A.3d (2015).
The state argues, and we agree, that the defendant’s
claim fails because he has failed to prove that the assault
and the strangulation charges arose from the same act
or transaction. Thus, we may resolve the claim without
engaging in the technical exercise of examining the
statutes and charging documents to determine whether
each provision of two distinct statutes require proof of
a fact that the other does not or in a statutory analysis
of legislative purpose under Blockburger.6 See State v.
Marsala, 1 Conn. App. 647, 650, 474 A.2d 488 (1984)
(once court concludes that offenses at issue did not
arise out of same act or transaction, it need not consider
distinction between them). ‘‘On appeal, the defendant
bears the burden of proving that the prosecutions are
for the same offense in law and fact.’’ (Internal quota-
tion marks omitted.) State v. Ferguson, 260 Conn. 339,
361, 796 A.2d 1118 (2002); see also State v. Brown, 299
Conn. 640, 654, 11 A.3d 663 (2011) (same).
‘‘Although [d]ouble jeopardy prohibits multiple pun-
ishments for the same offense in the context of a single
trial . . . distinct repetitions of a prohibited act, how-
ever closely they may follow each other . . . may be
punished as separate crimes without offending the dou-
ble jeopardy clause. . . . The same transaction, in
other words, may constitute separate and distinct
crimes where it is susceptible of separation into parts,
each of which in itself constitutes a completed offense.
. . . [T]he test is not whether the criminal intent is one
and the same and inspiring the whole transaction, but
whether separate acts have been committed with the
requisite criminal intent and are such as are made pun-
ishable by the [statute].’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Brown, supra, 299
Conn. 652; see also State v. Miranda, 260 Conn. 93,
122–23, 794 A.2d 506 (in determining whether two con-
victions arose from same act or transaction, reviewing
court looks to evidence presented at trial), cert. denied,
537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002);
State v. Thompson, 197 Conn. 67, 71–72, 495 A.2d 1054
(1985) (same). ‘‘If a violation of law is not continuous
in its nature, separate indictments may be maintained
for each violation. Thus, a distinct repetition of a prohib-
ited act constitutes a second offense and subjects the
offender to an additional penalty.’’ (Internal quotation
marks omitted.) State v. Snook, 210 Conn. 244, 261, 555
A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106
L. Ed. 2d 603 (1989).
Initially, we observe that the present claim does not
involve distinct repetitions of the same prohibited act,
but the commission of distinct offenses, each of which
required proof of an intent to cause a different result.
With respect to the offense of assault in the second
degree, the state bore the burden of proving beyond a
reasonable doubt that the defendant intended to cause
serious physical injury to the victim. General Statutes
§ 53a-60 (a) (1).7 With respect to the offense of strangu-
lation in the second degree, the state bore the burden of
proving beyond a reasonable doubt that the defendant
intended to impede the victim’s ability breathe or
intended to restrict her blood circulation. General Stat-
utes § 53a-64bb (a).8
Previously, we set forth the facts that reasonably
could have been found by the jury. The state presented
evidence that the defendant threw the victim across a
room in his residence, causing her to strike her head
on a wall in the kitchen. Next, the defendant threw
the victim into a porch area near the kitchen of the
residence, causing further injury to her head. While the
victim was still on the porch, the defendant repeatedly
punched her in the face. Next, the defendant dragged
the victim by her feet outdoors, down the driveway, at
which time he punched and kicked the victim about
the face and head. Finally, the defendant positioned the
victim inside of her automobile, where he held her down
and repeatedly strangled her by wrapping his hands
around her neck and pushing.
At trial, the prosecutor argued that it was reasonable
for the jury to find the defendant guilty of both assault
and strangulation. Cf. State v. King, 149 Conn. App.
361, 371, 87 A.3d 1193 (state precluded from arguing
on appeal that there were two separate crimes because
it did not so argue at trial), cert. granted on other
grounds, 312 Conn. 917, 94 A.3d 642 (2014). In argument
before the jury, the prosecutor distinguished between
the evidence related to each of the offenses at issue.
With regard to the assault charge, the prosecutor drew
the jury’s attention to the defendant’s initial conduct
that occurred inside of the victim’s residence, when the
defendant caused the victim to strike her head. Next,
the prosecutor drew the jury’s attention to the evidence
that the defendant repeatedly punched and kicked the
victim in the driveway. Also, the prosecutor drew the
jury’s attention to the fact that, during these events,
she was struck many times about her face and head,
which caused her to sustain black eyes and a traumatic
brain injury.
With regard to the strangulation charge, the prosecu-
tor drew the jury’s attention to the defendant’s conduct
that occurred inside of the automobile, in which he
held her down and wrapped his hands around her neck,
thereby restricting her airway or blood flow. Also, the
prosecutor referred to the fact that, during these acts
that took place inside of the automobile, the defendant
made statements in which he expressed a desire to kill
the victim.
Although the state charged the defendant with multi-
ple offenses that occurred at the same residence at
approximately the same time, the evidence and the
state’s theory of the case reflects that each offense was
proven by a separately completed act committed with
the requisite criminal intent. The state’s theory of the
case, supported by the evidence, was that the defen-
dant, intending to cause serious physical injury,
engaged in assaultive behavior toward the victim inside
of the residence and when he dragged the victim down
the driveway. Among other things, this behavior caused
a brain injury. In contrast, later, while inside of the
automobile, the defendant, intending to impede the vic-
tim’s ability to breathe or to restrict her blood circula-
tion, wrapped his hands around the victim’s neck,
causing her to be unable to breathe. Thus, the state
demonstrated that the defendant had committed dis-
tinct types of violent acts at distinct locations at his
residence. Moreover, the state demonstrated that these
violent acts resulted in distinct results. Inside of the
residence and while she was being dragged down the
driveway, the victim sustained serious physical injuries.
Inside of the automobile, the victim experienced an
inability to breathe.
The defendant suggests that his conduct in assaulting
the victim inside of the residence and while he dragged
her down the driveway merely was incidental to his
commission of the crime of strangulation. He argues
that it was reasonable for the jury to infer that his
conduct prior to that which occurred in the automobile
was necessary for him to gain physical control over the
victim so that he could ‘‘overpower her and strangle
her.’’ It is apparent, however, that the defendant’s con-
duct toward the victim inside of the residence and in
the driveway—which occurred before he positioned her
inside of the automobile and strangled her—established
his guilt for assault in the second degree on a basis
separate from his later act of strangulation inside of
the automobile. It is unreasonable to suggest that the
defendant had engaged in conduct that constituted one
continuous offense, strangulation in the second degree,
when he assaulted the victim inside of the residence
and in the driveway. The evidence demonstrated that
he did not engage in conduct that constituted strangula-
tion in the second degree until after he had positioned
the victim inside of her automobile, held her down,
and wrapped his hands around her neck. See State v.
Miranda, 142 Conn. App. 657, 664–65, 64 A.3d 1268
(2013) (holding in analysis under § 53a-64bb that defen-
dant’s conduct toward victim in bathroom established
guilt of unlawful restraint in first degree on basis of
conduct separate from his later act of strangulation that
occurred in kitchen), appeal dismissed, 315 Conn. 540,
109 A.3d 452 (2015).
It is not dispositive in a double jeopardy analysis that
multiple offenses were committed in a short time span
and during a course of conduct that victimized a single
person. Instead, the relevant inquiry focuses on whether
each offense of which the defendant has been convicted
and punished properly is based upon distinct criminal
acts or transactions that occurred within that course
of conduct. See, e.g., State v. James E., 154 Conn. App.
795, 833–34, 112 A.3d 791 (2015) (holding on double
jeopardy grounds that defendant’s conduct in shooting
victim twice supported conviction of two assault
charges); State v. Beaulieu, 118 Conn. App. 1, 14, 982
A.2d 245 (holding on double jeopardy grounds that
defendant’s act of luring minor victim into situation for
purpose of engaging in sexual act with minor victim
was separate and distinct act from his immediately sub-
sequent conduct engaging in sexual act with that vic-
tim), cert. denied, 294 Conn. 921, 984 A.2d 68 (2009);
State v. Servello, 80 Conn. App. 313, 324–26, 835 A.2d
102 (2003) (holding on double jeopardy grounds that
defendant was properly convicted of multiple counts of
perjury arising from testimony regarding same general
subject matter at single hearing), cert. denied, 267 Conn.
914, 841 A.2d 220 (2004).
Because the defendant is unable to prove that his
separate punishments for assault in the second degree
and strangulation in the second degree arose out of the
same act or transaction, he is unable to demonstrate
that a constitutional violation exists and deprived him
of a fair trial. Accordingly, this claim fails.9
II
Next, the defendant claims that the court improperly
admitted evidence of his prior uncharged misconduct.
We agree with the defendant that the admission of the
evidence was improper, but conclude that the error
was harmless.
The facts underlying this claim are as follows. Prior
to trial, the state provided written notice to the defen-
dant and to the court that it sought to introduce evi-
dence of uncharged misconduct involving the defendant
and three women who were not otherwise connected
to the present case, namely, Suzanne Schulman, Joanne
Shustock, and Julie Bradley. The state provided the
court with information about the misconduct at issue
involving each potential witness. The court precluded
the state from presenting evidence concerning prior
misconduct that involved Bradley and Shustock, and
those rulings are not at issue in the present claim.
With respect to uncharged misconduct evidence con-
cerning Schulman, prior to her testifying before the
jury, the prosecutor proffered that Schulman would
testify that, in or before October, 2002, she was in an
intimate relationship with the defendant, that he was
residing at her home, and that she wanted to end the
relationship. Schulman was lying in a bed with the
defendant when the defendant ‘‘got on top of her’’ and
‘‘wanted to start something sexually.’’ Schulman
refused the defendant’s advances and told him that she
wanted him to leave. At this point, the defendant choked
Schulman. Schulman convinced the defendant to walk
with her to a nearby gas station, where she reported
the incident to a third party. The defendant then took
her to the back of the building and choked her again.
Schulman did not report this incident to the police.
Additionally, the prosecutor represented that in Octo-
ber, 2002, there was a second violent incident involving
the defendant that led Schulman to call the police. The
defendant was in Schulman’s residence, and she asked
him to leave. Although he did so, he wanted to reenter
Schulman’s residence, but Schulman would not let him
do so. Thereafter, the defendant forcibly entered the
home and ‘‘lunged at her throat area.’’ The police report
concerning this incident, which the state provided to
the court, indicated that Schulman had sustained minor
physical injuries in connection with this incident.
Essentially, the prosecutor argued that the prior mis-
conduct evidence was admissible to demonstrate the
defendant’s intent and motive in the present case. The
prosecutor argued that the evidence would establish
that the defendant used force and choked the victim
when she refused his sexual advances, and that Schul-
man’s representations demonstrated that the defendant
behaved in a similar manner when she had refused his
sexual advances. The prosecutor argued that Schul-
man’s testimony was relevant to demonstrate that
because of his prior violent interactions with Schulman,
the defendant had understood the nature of his violent
actions toward the victim and, thus, had intended to
harm her. Also, the prosecutor argued that Schulman’s
testimony was relevant to demonstrating that he was
motivated by a desire to gain control of the victim when
she had refused his sexual advances.
Initially, the court was not inclined to admit the evi-
dence concerning Schulman, in part because it believed
that the state had the ability to and intended to present
more persuasive prior uncharged misconduct evidence
concerning Shustock. The court, however, stated that
it would reconsider the issue as necessary. Later, in light
of new information related to the incident involving
Shustock, the court reevaluated the probative value of
the evidence concerning Shustock, and inquired if the
state wanted to present testimony from Schulman
instead. The court ruled that it would permit Schulman
to testify ‘‘as to motive and intent’’ solely with regard to
the choking incident, but not about the second incident
involving the defendant that she had reported to the
police. The court stated that the evidence was relevant
to the issues of motive and intent to strangle the victim.
The defendant’s attorney objected to the court’s rul-
ing. The defendant’s attorney argued that he was
unaware of any authority that supported the admission
of uncharged misconduct evidence, particularly in light
of the fact that the case did not involve charges of a
sexual nature and it was not a case in which the identity
of the alleged perpetrator was at issue. The defendant’s
attorney argued that the defendant did not contest that
he was involved in an altercation with the victim and
that the state had an ample opportunity to prove its
case without the admission of the evidence at issue.
The defendant’s attorney argued that the evidence was
highly prejudicial and was being introduced by the state
to ‘‘put a bad light’’ on the defendant.
The court overruled the defendant’s objection. First,
the court observed that uncharged misconduct evi-
dence had been admitted as evidence of intent and
motive in prior cases that had involved crimes of a
nonsexual nature. Specifically, the court referred to
State v. Aparo, 223 Conn. 384, 614 A.2d 401 (1992), cert.
denied, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785
(1993), and State v. Hoyeson, 154 Conn. 302, 224 A.2d
735 (1966). Second, with regard to the issue of undue
prejudice, the court stated that it needed to undertake a
balancing test to evaluate whether the evidence, which
demonstrated that the defendant knew ‘‘from past expe-
rience whether his actions would cause . . . certain
effects, which shows an absence of mistake and knowl-
edge . . . and an intent to do that’’ should be excluded
because its prejudicial effect outweighed such proba-
tive value. The court stated that the evidence was proba-
tive to the jury’s understanding of why the defendant
might have behaved in the manner alleged by the state
in the present case. The court stated that it was ‘‘a close
call,’’ but that it believed that the repeated use of limiting
instructions could militate against undue prejudice. The
defendant’s attorney expressed his concern that the
jury might not follow the court’s limiting instructions,
instead viewing Schulman’s testimony as proof that the
defendant has a propensity to engage in the type of
conduct at issue.
Immediately before the state presented testimony
from Schulman, the court delivered an instruction to
the jury in which it limited its consideration of the
evidence to the issues of intent and motive.10 Schulman
testified that, in October, 2002, the defendant stayed at
her home for a period of time. She described an incident
that occurred when she and the defendant were lying
on a bed and arguing. Schulman testified that, during
the incident, the defendant was sitting on top of her
and holding her down, and he said, ‘‘you’re going to
die,’’ and, ‘‘[s]ay goodbye.’’ The defendant positioned
his hands around her neck and choked her, causing her
to be unable to breathe. Schulman testified that she
believed that she would pass out, and stared right at
the defendant, at which time he let go of her neck.
Schulman testified that the defendant told her that he
let go of her neck because he believed that she was
turning blue. Schulman stated, ‘‘[m]aybe he thought he
was going too far, and he let go.’’
The prosecutor asked Schulman: ‘‘Before he got on
top of you, did he ask of you anything? Did he want
anything from you?’’ Schulman replied, ‘‘I don’t recall.
I don’t remember.’’ Schulman testified that she and the
defendant had been intimate on five occasions prior to
this incident, but she did not recall whether the defen-
dant wanted to be intimate with her that night.
Schulman went on to testify that, after the choking
incident inside of her apartment, she suggested to the
defendant that they walk to a nearby gas station to
purchase cigarettes. She and the defendant walked to
the gas station, where she began screaming for help
and for someone to call the police because the defen-
dant was going to kill her. Schulman testified that
nobody helped her and that, when she and the defen-
dant went outside, the defendant ‘‘took [her] by [her]
neck and dragged [her] behind the building’’ where he
choked her a second time. Schulman testified that it
was difficult for her to breathe while the defendant
choked her, and that she was able to push the defendant
off of her. Afterward, Schulman and the defendant
returned to the apartment.
Immediately after Schulman testified, the court deliv-
ered a revised limiting instruction in which it instructed
the jury to consider the testimony solely for the issue
of intent.11 Notably, the court emphasized that because
Schulman could not recall what led to the choking inci-
dent, her testimony was not relevant to the issue of
motive. Outside of the presence of the jury, the defen-
dant’s attorney moved to strike Schulman’s testimony
on the ground that her testimony was unduly prejudicial
in light of the fact that it concerned an incident that
occurred in October, 2002, more than ten years earlier.12
The defendant’s attorney reiterated his earlier argument
that the testimony was unduly prejudicial. The prosecu-
tor responded that she was not sure why Schulman did
not testify that the choking incident occurred immedi-
ately after she had rebuffed the defendant’s sexual
advances, as she had related to her.
Overruling the defendant’s motion to strike, the court
stated that it had provided the jury with a detailed and
lengthy curative instruction, and had later modified that
instruction to emphasize that the witness had been
unable to recall what led to the choking incident and,
therefore, her testimony was irrelevant to the issue of
motive in the present case. The court stated that in
ruling on the admissibility of the evidence, it had consid-
ered the fact that the incident involving Schulman
occurred in 2002 and that the events at issue in this
case occurred in 2012. Then, the court stated: ‘‘How-
ever, given the purpose for which it was offered, which
is to show that at the time of the allegations here . . .
the defendant intended or understood and intended that
his action could impede another person’s breathing and
restrict their blood circulation, the fact that this hap-
pened ten years ago is not too remote in time for that
particular purpose.’’ Also, the court stated that any prej-
udice was limited by its curative instructions and the
brevity of Schulman’s testimony.13
By virtue of his objections before the trial court, the
defendant preserved the present claim of evidentiary
error for appellate review. Before this court, the defen-
dant correctly acknowledges that the trial court
instructed the jury that the evidence was relevant in
the context of the strangulation charge to prove that
the defendant intended to impede the victim’s ability
to breathe and to restrict her blood flow. See footnotes
6 and 7 of this opinion. The defendant argues, however,
that the evidence, which was highly prejudicial, had no
probative value in this regard because, at most, the
evidence merely demonstrated that the defendant knew
he could strangle someone with his hands, a type of
knowledge that was not at all unique. The defendant
argues that, because the present case did not involve
a sex crime, the court failed to apply a more stringent
standard when balancing the relevance of the evidence
and its prejudicial effect.
The admission of uncharged misconduct evidence is
governed by § 4-5 of the Connecticut Code of Evidence,
which provides: ‘‘(a) Evidence of other crimes, wrongs
or acts of a person is inadmissible to prove the bad
character, propensity, or criminal tendencies of that
person except as provided in subsection (b).
‘‘(b) Evidence of other sexual misconduct is admissi-
ble in a criminal case to establish that the defendant
had a tendency or a propensity to engage in aberrant and
compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the
trial court finds that the evidence is relevant to a
charged offense in that the other sexual misconduct is
not too remote in time, was allegedly committed upon
a person similar to the alleged victim, and was otherwise
similar in nature and circumstances to the aberrant and
compulsive sexual misconduct at issue in the case; and
(3) the trial court finds that the probative value of the
evidence outweighs its prejudicial effect.
‘‘(c) Evidence of other crimes, wrongs or acts of
a person is admissible for purposes other than those
specified in subsection (a), such as to prove intent,
identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system
of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.
‘‘(d) In cases in which character or a trait of character
of a person in relation to a charge, claim or defense is
in issue, proof shall be made by evidence of specific
instances of the person’s conduct.’’ Conn. Code Evid.
§ 4-5.
‘‘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 relevant 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 decision 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 decision only
when it has abused its discretion or an injustice has
occurred.’’ (Internal quotation marks omitted.) State v.
Kalil, 314 Conn. 529, 540, 107 A.3d 343 (2014).
In ruling on the admissibility of uncharged miscon-
duct evidence in a criminal case, a court must consider
the purpose for which the evidence is offered as well
as the type of crime with which the defendant stands
charged. In cases involving aberrant and compulsive
sexual misconduct, uncharged misconduct evidence
may be admissible to demonstrate a defendant’s pro-
pensity to engage in certain types of sexual behavior.
Conn. Code Evid. § 4-5 (b); State v. DeJesus, 288 Conn.
418, 470–71, 953 A.2d 45 (2008). ‘‘In non-sexual assault
cases, evidence of uncharged misconduct may still be
admissible . . . if it is so connected with the charged
misconduct to be relevant to (1) intent, (2) identity, (3)
malice, (4) motive, (5) common plan or scheme, (6)
absence of mistake or accident, (7) knowledge, (8) a
system of criminal activity, (9) an element of the crime,
or (10) corroboration of crucial prosecution testimony.’’
C. Tait & E. Prescott, Connecticut Evidence (5th Ed.
2014) § 4.19.2, pp. 181–82.
Uncharged misconduct evidence that falls within an
exception to the general rule precluding its admission
is, by its nature, almost always prejudicial to some
degree. In its gatekeeping role, the court must consider
whether the probative value of this evidence, like all
evidence, is outweighed by its likely prejudicial effect.
See Conn. Code Evid. §§ 4-1 and 4-3. ‘‘Although relevant,
evidence may be excluded by the trial court if the court
determines that the prejudicial effect of the evidence
outweighs its probative value. . . . Of course, [a]ll
adverse evidence is damaging to one’s case, but it is
inadmissible only if it creates undue prejudice so that
it threatens an injustice were it to be admitted. . . .
The test for determining whether evidence is unduly
prejudicial is not whether it is damaging to the defen-
dant but whether it will improperly arouse the emotions
of the jur[ors]. . . . The trial court . . . must deter-
mine whether the adverse impact of the challenged
evidence outweighs its probative value.’’ (Internal quo-
tation marks omitted.) State v. Dillard, 132 Conn. App.
414, 425–26, 31 A.3d 880 (2011), cert. denied, 303 Conn.
932, 36 A.3d 694 (2012). Our Supreme Court ‘‘has identi-
fied four factors relevant 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 sympa-
thy, (2) where the proof and answering evidence it
provokes may create a side issue that will unduly dis-
tract the jury from the main issues, (3) where the evi-
dence offered and the counterproof 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.’’ (Inter-
nal quotation marks omitted.) State v. Hill, 307 Conn.
689, 698, 59 A.3d 196 (2013).
In the present case, the court admitted uncharged
misconduct evidence, in the form of Schulman’s testi-
mony, for the limited purpose of evaluating whether,
in the context of the strangulation charge, the defendant
intended to impede the victim’s ability to breathe or to
restrict her blood flow. It is not in dispute that the state
bore the burden of proving beyond a reasonable doubt
that the defendant intended to impede the ability of the
victim to breathe or to restrict her blood circulation.
General Statutes § 53a-64bb (a). ‘‘A person acts ‘inten-
tionally’ with respect to a result . . . described by a
statute defining an offense when his conscious objec-
tive is to cause such result . . . .’’ General Statutes
§ 53a-3 (11). As we frequently have observed, ‘‘[i]ntent
is generally proven by circumstantial evidence because
direct evidence of the accused’s state of mind is rarely
available. . . . Therefore, intent is often inferred from
conduct . . . and from the cumulative effect of the
circumstantial evidence and the rational inferences
drawn therefrom.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Tomasko, 238 Conn. 253,
257, 681 A.2d 922 (1996).
The issue in the present case, then, is whether the
uncharged misconduct evidence shed any light on the
defendant’s intent. Although the evidence related to the
prior incident supported a finding that the defendant
had strangled a female with whom he was familiar, the
prior incident involving Schulman and the defendant
was in all other respects separate and distinct from the
circumstances of the crime charged. The prior incident
involved a different victim—with whom the defendant
was in an established, romantic relationship—and it
occurred almost ten years prior to the incident at issue
in the present case. Schulman testified that, during an
argument of some type, the defendant choked and, later,
choked her a second time, after she attempted to get
help at a gas station. In the present case, the victim’s
testimony supported a finding that the defendant
choked the victim after she indicated that she did not
want to stay at his residence, thereby rejecting his invi-
tation to engage in an intimate relationship. The testi-
mony from Schulman was probative of the defendant’s
intent to harm Schulman, yet it did not shed any light
on the defendant’s attitude toward the well-being of the
victim in the present case. The court stated that the
evidence was admissible because it tended to explain
that the defendant understood that he had the ability
to use his hands to impede another person’s ability to
breathe and to restrict their blood flow and, thus, helped
to demonstrate that he intended to harm the victim
in this manner. We agree with the defendant that the
uncharged misconduct evidence hardly could be viewed
as especially probative with regard to his understanding
of the consequences of wrapping his hands around the
neck of another person and exerting force, conse-
quences that we may presume are within the common
knowledge of the average juror. Nor was the uncharged
misconduct evidence probative with regard to whether
the defendant intended to inflict those consequences
on the victim in the present case, in different circum-
stances. In argument, the state suggested that the evi-
dence was relevant not only to demonstrate that the
defendant understood the consequence of his actions
when he strangled another person, but the violent man-
ner in which the defendant reacts when he is rebuked.
To use evidence of the defendant’s prior, violent con-
duct toward another victim as evidence that he acted
similarly at a later time, however, suggests that the
defendant had a propensity or criminal tendency to
engage in such violent conduct.14 Such use was imper-
missible in the present case. Conn. Code Evid. § 4-5
(a).15
Having determined that the uncharged misconduct
evidence was not so connected to the present case as
to be relevant to the issue of intent, and that the court
thus erred by admitting the evidence, we next turn to
whether the error was harmless or whether it warrants
reversal of the defendant’s conviction. ‘‘[W]hether [an
improper evidentiary ruling that is not constitutional in
nature] is harmless in a particular case depends upon
a number of factors, such as the importance of the
witness’ testimony in the prosecution’s case, whether
the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testi-
mony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case. . . .
Most importantly, we must examine the impact of the
[improperly admitted] 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. Osimanti, 299 Conn. 1, 18–19, 6 A.3d 790
(2010). ‘‘When an improper evidentiary ruling is not
constitutional in nature, the defendant bears the burden
of demonstrating that the error was harmful.’’ (Internal
quotation marks omitted.) State v. Badaracco, 156
Conn. App. 650, 674, 114 A.3d 507 (2015).
Although Schulman did not testify in a manner
entirely consistent with the state’s proffer, there were
no issues of surprise to the defense with respect to
the uncharged misconduct evidence. Yet, the obvious
danger to the defendant posed by the evidence was that
it would tend to arouse the hostility of the jury because
it portrayed him as a person with a criminal tendency,
or propensity, to engage in domestic violence involving
the strangulation of women. There are several factors,
however, that weigh against a conclusion that the jury
was unduly prejudiced by the evidence or that the evi-
dence swayed the jury in reaching a verdict. First, in the
context of a trial in which the presentation of evidence
lasted for four days, the presentation of the uncharged
misconduct evidence was brief and did not create side
issues that potentially could have distracted the jury
from the central issues before it.16 Second, the evidence
was not a prominent part of the state’s case. The prose-
cutor referred to Schulman’s testimony only once dur-
ing her closing argument.17 Third, the evidence related
to the incident involving Schulman was remote in time,
and, in terms of its impact, the evidence was not more
egregious in nature than the evidence related to the
incident in the present case. See, e.g., State v. Allen,
140 Conn. App. 423, 440–41, 59 A.3d 351 (uncharged
misconduct evidence not unduly prejudicial when not
more egregious than evidence related to charged mis-
conduct), cert. denied, 308 Conn. 934, 66 A.3d 497
(2013).
Fourth, apart from the uncharged misconduct evi-
dence, the state’s case was very strong. There was no
dispute as to the defendant’s identity as the victim’s
attacker; the defendant’s defense rested on disputing
the severity of the victim’s injuries and his intent in
causing them. Accordingly, he argued for a conviction
on lesser charges.18 In evaluating the strength of the
state’s case, we observe that the state presented a great
deal of evidence, including photographic evidence, of
the victim’s serious physical injuries, as detailed pre-
viously in this opinion. Moreover, both the victim and
the defendant’s neighbor, Litz, testified that, during the
incident, the defendant expressed an intent to kill her.
The evidence of the physical condition of the victim’s
neck following the incident, which included photo-
graphs that depicted significant bruising to her neck,
strongly corroborated the victim’s testimony that she
had been strangled.
Finally, we observe that the court provided the jury
with detailed limiting instructions both immediately
before and immediately after Schulman testified, as well
as additional instructions related to the evidence during
its jury charge. The court’s contemporaneous instruc-
tions were tailored to prevent the jury from viewing
the uncharged misconduct evidence as evidence of the
defendant’s violent criminal nature. Rather, they guided
the jury to consider the uncharged misconduct evidence
solely in determining his intent to strangle in the present
case. In light of the nature of the evidence at issue, and
in the absence of any indication to the contrary, we
will presume that the jury followed the court’s instruc-
tions in the present case. State v. James G., 268 Conn.
382, 397–98, 844 A.2d 810 (2004).
In light of the foregoing, we are left with a fair assur-
ance that the court’s erroneous admission of uncharged
misconduct evidence did not substantially affect the
jury’s verdict. Thus, the defendant has failed to demon-
strate that the error was harmful.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court granted the defendant’s motion for a judgment of acquittal
with regard to one count of using drug paraphernalia in violation of General
Statutes § 21a-267 (d). The court imposed a total effective sentence of four-
teen years of incarceration, followed by six years of special parole.
2
The defendant’s claim implicates the aspect of double jeopardy protec-
tion that precludes the imposition of multiple punishments for a single
offense. ‘‘[T]he role of the constitutional guarantee [against double jeopardy]
is limited to assuring that the court does not exceed its legislative authoriza-
tion by imposing multiple punishments for the same offense.’’ Brown v.
Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). The record
reflects that the defendant, in fact, was punished for both of the offenses
at issue. The court sentenced the defendant under count one, which charged
him with assault in the second degree, to a seven year term of incarceration,
followed by three years of special parole. The court sentenced the defendant
under count three, which charged him with strangulation in the second
degree, to a seven year term of incarceration followed by three years of
special parole. The court’s sentence under count three runs consecutive to
the sentence that it imposed under count one, and concurrently with the
sentence that it imposed under counts two and four.
3
‘‘Although the [trial] court loses jurisdiction over [a] case when [a] defen-
dant is committed to the custody of the commissioner of correction and
begins serving [his] sentence . . . [Practice Book] § 43-22 embodies a com-
mon-law exception that permits the trial court to correct an illegal sentence
or other illegal disposition. . . . Thus, if the defendant cannot demonstrate
that his motion to correct falls within the purview of § 43-22, the court lacks
jurisdiction to entertain it. . . . [I]n order for the court to have jurisdiction
over a motion to correct an illegal sentence after the sentence has been
executed, the sentencing proceeding [itself] . . . must be the subject of the
attack. . . . [T]o invoke successfully the court’s jurisdiction with respect
to a claim of an illegal sentence, the focus cannot be on what occurred
during the underlying conviction. . . .
‘‘Connecticut courts have considered four categories of claims pursuant
to § 43-22. The first category has addressed whether the sentence was within
the permissible range for the crimes charged. . . . The second category
has considered violations of the prohibition against double jeopardy. . . .
The third category has involved claims pertaining to the computation of the
length of the sentence and the question of consecutive or concurrent prison
time. . . . The fourth category has involved questions as to which sentenc-
ing statute was applicable. . . . [I]f a defendant’s claim falls within one of
these four categories the trial court has jurisdiction to modify a sentence
after it has commenced. . . . If the claim is not within one of these catego-
ries, then the court must dismiss the claim for a lack of jurisdiction and
not consider its merits.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. St. Louis, 146 Conn. App. 461, 466–67, 76 A.3d 753, cert. denied,
310 Conn. 961, 82 A.3d 628 (2013).
4
General Statutes § 53a-64bb (b) provides: ‘‘No person shall be found
guilty of strangulation in the second degree and unlawful restraint or assault
upon the same incident, but such person may be charged and prosecuted
for all three offenses upon the same information. For the purposes of this
section, ‘unlawful restraint’ means a violation of section 53a-95 or 53a-96,
and ‘assault’ means a violation of section 53a-59, 53a-59a, 53a-59b, 53a-59c,
53a-60, 53a-60a, 53a-60b, 53a-60c, 53a-61 or 53a-61a.’’
5
The defendant alleges a violation of his rights under the state and federal
constitutions. He analyzes his claim under the framework set forth in
Blockburger, which emanates from federal double jeopardy jurisprudence,
and he does not suggest that the state constitution affords him any greater
protection with respect to his double jeopardy rights. We observe that this
court and our Supreme Court have held that with respect to the protection
against double jeopardy, the state constitution does not afford greater protec-
tion than that afforded by its federal counterpart. See, e.g., State v. Michael
J., 274 Conn. 321, 354, 875 A.2d 510 (2005) (‘‘Connecticut appellate courts
never have held that the double jeopardy guarantees implied in the state
constitution exceed those embodied in the federal constitution’’); State v.
Laws, 37 Conn. App. 276, 295, 655 A.2d 1131 (1994) (‘‘we decline the defen-
dant’s invitation to find that our state constitution affords any greater due
process rights than those afforded under the federal constitution’s double
jeopardy clause’’), cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).
6
In its long form information, the state alleged in count one that the
defendant committed assault in the second degree ‘‘in the area of . . . 5
Bilton Road in the town of Somers, on or about the 12th day of May, 2012,
at approximately 2:44 a.m., with intent to cause serious physical injury to
[the victim] . . . .’’ The state alleged in count three that the defendant
committed strangulation in the second degree ‘‘in the area of . . . 5 Bilton
Road in the town of Somers, on or about the 12th day of May, 2012, at
approximately 2:44 a.m., [in that he] restrained another person by the neck
and throat with the intent to impede the ability of such other person to
breathe and restrict blood circulation of such other person, and he impeded
the ability of such other person to breathe or restricted blood circulation
of such other person, [the victim] . . . .’’ The state alleged that the offenses
occurred at the same address and at approximately the same time, but these
facts are not dispositive in our analysis of whether the offenses arose from
the same act or transaction.
7
General Statutes § 53a-60 (a) provides in relevant part: ‘‘A person is
guilty of assault in the second degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person . . . .’’
8
General Statutes § 53a-64bb (a) provides: ‘‘A person is guilty of strangula-
tion in the second degree when such person restrains another person by
the neck or throat with the intent to impede the ability of such other person
to breathe or restrict blood circulation of such other person and such
person impedes the ability of such other person to breathe or restricts blood
circulation of such other person.’’
9
In addition to seeking review of his double jeopardy claim under Golding,
the defendant summarily states that ‘‘this issue is also reviewable under the
plain error doctrine.’’ Although we have reviewed the claim under Golding,
which makes it unnecessary to undertake an analysis for plain error, we
observe that the defendant has not set forth any analysis under the plain
error doctrine.
10
The court stated: ‘‘All right. Ladies and gentlemen, you’re going to hear
the testimony from a witness about an incident she had with the defendant
that took place years before the events at issue in this case.
‘‘The evidence is not being offered to prove the bad character, propensity,
or criminal tendencies of the defendant. It is being offered for two specific
limited purposes and may only be considered by you for those purposes.
‘‘First, as I mentioned to you at the outset of this trial, the state has the
burden of proving beyond a reasonable doubt each of the elements of the
crimes it claims the defendant committed. One element of four of the crimes
is that the defendant specifically intended to do what he is charged of doing.
‘‘More particularly, in count 3 of the information, which charges strangula-
tion in the second degree, the state must prove beyond a reasonable doubt
that the defendant specifically intended to impede [the victim’s] ability to
breathe and to restrict her blood flow.
‘‘The testimony of the witness you are about to hear from is being offered
by the state [as] evidence that, when committing whatever actions you find
the state has proven beyond a reasonable doubt, if any, the defendant had
the specific intent required for count 3.
‘‘In addition, the state is offering the testimony as evidence of the defen-
dant’s motive for committing the acts alleged by the state with regard to
[the victim].
‘‘You may consider this evidence for these two purposes and these two
purposes only. And you may consider the evidence for these limited purposes
if you believe it and further find that it logically and rationally supports the
issues for which it has been admitted, but only as it may bear on those issues.
‘‘Even if you so conclude, evidence of a prior offense or other conduct
on its own is not sufficient to prove the defendant guilty of the crimes
charged in the information.
‘‘Bear in mind as you consider this evidence that at all times the state
has the burden of proving the defendant committed each of the elements
of the offense charged in the information beyond a reasonable doubt.
‘‘I remind you that the defendant is not on trial for any act, conduct, or
offense not charged in the information. You may not find him guilty of the
crimes charged merely because you believe that he committed or may have
committed other conduct for which he has not been charged here.
‘‘In addition, you . . . may not consider the evidence as establishing that
the defendant has a predisposition or propensity to commit any of the
crimes charged.
‘‘In summary, you may not consider evidence of other misconduct of the
defendant for any purpose other than the ones I have just told you because
it may predispose your mind uncritically to believe that the defendant may
be guilty of the offense here charged merely because of the other alleged mis-
conduct.
‘‘For this reason, you may consider this evidence only on the issue of the
defendant’s intent and motive with respect to the charge of strangulation
in the second degree and for no other purpose.’’
11
The court stated: ‘‘Ladies and gentlemen, in light of Ms. Schulman’s
testimony, I’m going to revise my instruction to you in one way.
‘‘You may only consider her testimony as to the issue of intent, not as to
the issue of motive. She testified that she couldn’t recall what led to the
event so, consequently, her . . . testimony, even if you believe it, would
be completely irrelevant to the issue of motive, and you are not to consider
it for that.
‘‘You may only consider it as to the issue of intent if you find it believable
and you further find that it . . . naturally . . . logically and rationally sup-
ports the issue for which it has been admitted and for no other purpose as
. . . you’ll follow this instruction.
‘‘I will give you this instruction again at the end of the case because it’s
an important issue that you only consider it for that limited purpose.’’ The
court delivered a similar instruction during its jury charge.
12
It appears that the defendant’s attorney in referring to the passage of
more than ten years was calculating the length of time between the incident
in October, 2002, and the date that Schulman had testified in the defendant’s
trial, December 13, 2013.
13
Following the jury’s verdict, the defendant brought a motion for a new
trial that was based on the court’s admission of the prior uncharged miscon-
duct evidence. At a posttrial hearing on the motion, the court denied the
motion and explained: ‘‘I instructed the jury before she testified. She testified
somewhat differently than I think the state expected her [to] testify, and as
a result of that, I further limited what the jury could consider her testimony
for and told them that something I thought they could consider it for, they
no longer could. I . . . reinforced that limiting instruction in my final charge
to the jury, and I remain convinced that that ruling was the proper ruling.’’
14
Evidence of prior uncharged misconduct that is related to the victim
of the crime charged may be used to help explain the defendant’s intent in
connection with the crime charged. See, e.g., State v. Millan, 290 Conn.
816, 830–31, 966 A.2d 699 (2009) (uncharged misconduct involving victim
admitted to demonstrate defendant’s intent to harm victim); State v. Donald
H. G., 148 Conn. App. 398, 409, 84 A.3d 1216 (uncharged misconduct involving
victim admitted to demonstrate defendant’s ‘‘lustful inclinations’’ toward
victim), cert. denied, 311 Conn. 951, 111 A.3d 881 (2014). When, however,
evidence of uncharged misconduct is separate and distinct from the crime
charged, ‘‘the use of uncharged misconduct to prove intent is problematic
because it is practically indistinguishable from prohibited propensity evi-
dence. Uncharged misconduct may logically be used to rebut a claim of
mistake or no knowledge . . . but to use misconduct at one time to prove
an intent to do the same thing at another time borders on the forbidden
theme of ‘once a thief always a thief.’ ’’ (Citation omitted.) C. Tait & E.
Prescott, supra, § 4.19.6, pp. 186–87.
15
In light of our assessment of the evidence, it follows that the court
erroneously concluded that its prejudicial nature did not outweigh its proba-
tive value. The evidence was prejudicial in that it suggested that the defen-
dant had a history of domestic abuse involving another female and, for that
reason, tended to suggest that the defendant acted in a consistent manner
in the present case.
16
The state’s examination of Schulman comprises approximately six pages
of the trial transcript. The defendant’s cross-examination of Schulman com-
prises less than one page of the trial transcript. The evidentiary portion of
the trial comprises more than five hundred pages of the trial transcript.
17
In discussing the elements of strangulation in the second degree, the
prosecutor argued: ‘‘You can infer what [the defendant’s] intent was . . .
because of what he had done in the past. Suzanne Schulman testified that
the defendant choked her until she turned blue. It was the color of her skin
turning blue that made him stop.’’
18
Thus, the defendant’s attorney argued that the evidence demonstrated
that the defendant was guilty of assault in the third degree, strangulation
in the third degree, breach of the peace, and threatening.