State v. Opio-Oguta ( 2014 )

******************************************************
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. EDGAR OPIO-OGUTA
(AC 34684)
Alvord, Sheldon and Harper, Js.
Argued February 4—officially released September 23, 2014
(Appeal from Superior Court, judicial district of
Hartford, geographical area number fourteen,
Randolph, J.)
Katherine C. Essington, assigned counsel, for the
appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Robert Mullins, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
HARPER, J. The defendant, Edgar Opio-Oguta,
appeals from the judgment of conviction, rendered after
a jury trial, of criminal violation of a protective order
in violation of General Statutes § 53a-223 and disorderly
conduct in violation of General Statutes § 53a-182 (a)
(1). On appeal, the defendant argues that the court (1)
improperly enlarged the offense of criminal violation
of a protective order by including uncharged miscon-
duct in its jury charge; (2) improperly failed to charge
the jury that criminal violation of a protective order is
a general intent crime; and (3) abused its discretion in
admitting into evidence a recording of the victim’s 911
telephone call. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The victim met the defendant in May, 2010. The
victim moved in with the defendant and became the
defendant’s girlfriend for two or three months. After
the victim and the defendant separated, the defendant
continued to call the victim and send her text messages.
In June, 2010, prior to the end of their relationship,
the victim obtained a protective order requiring the
defendant to stay away from the victim’s residence and
not to contact her.1 After the protective order was
issued, the defendant continued to call the victim and
her children. The victim did not report these instances
to the police, however, because she did not feel physi-
cally threatened by them. In November, 2010, the victim
moved to a residence in Hartford with her boyfriend,
Chol Mangor, and his cousin, Ring Yak.
On the afternoon of January 8, 2011, the victim and
Mangor were napping in the bedroom of their residence,
and Yak and a few of his friends were in the living
room, when the defendant came into the bedroom with
a beer bottle in his hand and asked to speak to Mangor.
When Mangor told the defendant to leave, the defendant
threw the beer bottle, missing Mangor’s head and hitting
the wall. The victim called the police, who arrived and
arrested the defendant.
The defendant was charged with criminal violation
of a protective order in violation of § 53a-223 and disor-
derly conduct in violation of § 53a-182 (a) (1). The jury
found the defendant guilty of both charges, upon which
the court imposed a total effective sentence of three
years incarceration, execution suspended after sixteen
months, with three years of probation.2 Additional facts
will be set forth as they pertain to each claim.
I
The defendant first argues that the court improperly
enlarged the offense of criminal violation of a protective
order in its charge to the jury.
The following facts are relevant to this claim. Count
one of the second amended long form information
alleged, in pertinent part, that ‘‘on or about January 8,
2011, at approximately 3:15 p.m., [the] defendant . . .
did go to the residence of the protected party . . . and
did harass her and did cause contact that did cause her
annoyance and alarm, said conduct in violation of [§]
53a-223.’’
At the conclusion of the evidence, a charge confer-
ence took place on the record. During this conference,
the court reviewed its proposed charge with counsel.
The court also considered requests to charge submitted
by the defendant. The court’s proposed charge regard-
ing criminal violation of a protective order did not indi-
cate that the state had alleged that the defendant called
or texted the victim in violation of the protective order,
and this was not discussed during the charge confer-
ence. In the court’s final charge, however, the court
stated: ‘‘The state alleges that the defendant harassed
the complaining witness. The state also alleges that the
defendant did not stay away from the residence of the
protected person, and the state also alleges that the
defendant called or texted the protected person in viola-
tion of the protective order.’’ (emphasis added.)3 The
defendant argues that by including the language regard-
ing phone calls and text messages, the court improperly
enlarged the offense of criminal violation of a protective
order. The state contends that although this added lan-
guage potentially enlarged the offense, the evidence
and instructions as a whole guided the jury to a
proper verdict.
We initially note that the defendant did not object to
the court’s charge on criminal violation of a protective
order and seeks review of this unpreserved claim pursu-
ant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), or the plain error doctrine.4 Pursuant to
Golding, ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the follow-
ing conditions are met: (1) the record is adequate to
review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fun-
damental right; (3) the alleged constitutional violation
clearly exists and clearly 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.’’ Id. 239–40. Because the record in this case is
adequate for review and the defendant’s claim impli-
cates his right to be sufficiently informed of the nature
of the charges against him, pursuant to the federal and
state constitutions; see State v. Dunstan, 145 Conn.
App. 384, 395 and n.8, 74 A.3d 559, cert. denied, 310
Conn. 958, 82 A.3d 626 (2013); we will proceed to review
the merits of the defendant’s claim pursuant to Golding.
‘‘[E]nlargement cases involve claims that the trial
court expanded the state’s information by instructing
the jury on statutory or factual alternatives not charged
in the information. . . . It is incumbent upon the defen-
dant in an enlargement case to demonstrate that the trial
court’s charge caused him unfair surprise or prejudiced
him in the preparation of his defense. . . . In other
words, the defendant must show that: (1) the challenged
jury instructions improperly enlarged the charges
brought against him; and (2) such enlargement was
prejudicially harmful. The defendant’s enlargement
claims, like other claims that jury instructions violated
a constitutional right, require us to exercise plenary
review as we examine the charge as a whole to deter-
mine whether it misled the jury.’’ (Citation omitted;
internal quotation marks omitted.) State v. David N.J.,
301 Conn. 122, 158, 19 A.3d 646 (2011). ‘‘Any error in
an instruction, even one of constitutional dimension, is
harmless if, viewed in the context of the charge as a
whole, there is no reasonable possibility that the jury
[was] misled.’’ (Internal quotation marks omitted.) State
v. Rabindranauth, 140 Conn. App. 122, 129, 58 A.3d
361, cert. denied, 308 Conn. 921, 62 A.3d 1134 (2013).
The defendant contends that he was prejudiced by
the inclusion of the erroneous language in the court’s
charge because his defense was based on mistake or
accident in that he did not know the victim was living
at the address at issue, and went there to visit friends,
not to see the victim. According to the defendant, evi-
dence that he previously had tried to contact the victim
in violation of the protective order was inconsistent
with, and, thereby undermined, this defense. See State
v. Belton, 190 Conn. 496, 503–504, 461 A.2d 973 (1983).
The defendant further argues that because the court
failed to grant his pretrial motion for notice of
uncharged misconduct, he was unfairly surprised and
prejudiced in the preparation of his defense by the
inclusion of the challenged language in the court’s
charge.5
We agree with the defendant that the court improp-
erly included the language regarding phone calls and
text messages in its jury charge. We conclude, however,
that this error was harmless in light of the defendant’s
conviction of disorderly conduct, as alleged in count
two of the information. Count two alleged that ‘‘on or
about the 8th day of January 2011, at approximately
3:15 p.m., in the vicinity of [the victim’s residence, the
defendant] did intend to cause inconvenience, annoy-
ance and recklessly caused a risk thereof to [the victim],
and engaged in violent, tumultuous, and threatening
conduct toward [the victim] and Chol Mangor . . . in
violation of [§] 53a-182 (a) (1).’’ By this conviction,
the jury necessarily found that on January 8, 2011, at
approximately 3:15 p.m., the defendant engaged in vio-
lent, tumultuous, and threatening conduct toward the
victim and Mangor.6 The evidence before the jury
regarding the incident on January 8, 2011, was that the
defendant appeared at the bedroom door of the victim’s
residence while she and Mangor were napping, and
threw a beer bottle, missing Mangor’s head and hitting
the wall. Having found that the defendant engaged in
such conduct, it necessarily found that the defendant
violated the protective order at the same time, place
and date. See State v. Padua, 273 Conn. 138, 167–171,
869 A.2d 192 (2005) (although jury instruction improp-
erly omitted essential element of crime, error harmless
where omitted element uncontested and supported by
overwhelming evidence); State v. Haywood, 109 Conn.
App. 460, 471–72, 952 A.2d 84, cert. denied, 289 Conn.
928, 958 A.2d 161 (2008). When viewed in this light, we
conclude that although the court improperly included
the language regarding phone calls and text messages
in its charge to the jury, any such error was harmless
beyond a reasonable doubt. The defendant, therefore,
cannot satisfy the fourth prong of State v. Golding,
supra, 213 Conn. 239–40.7
II
The defendant next argues that the court’s charge
did not sufficiently instruct the jury regarding the intent
required for a conviction of criminal violation of a pro-
tective order. Specifically, he argues that the court’s
charge did not adequately inform the jury that criminal
violation of a protective order is a general intent crime.
We disagree.
The following facts are relevant to this claim. At the
conclusion of the evidence, defense counsel submitted
a request to charge regarding the offense of criminal
violation of a protective order. The requested charge
did not include language specifying that criminal viola-
tion of a protective order is a general intent crime. It
did, however, indicate that ‘‘a person acts ‘intentionally’
with respect to conduct when his conscious objective
is to engage in such conduct.’’8 At the charge confer-
ence, the court reviewed its proposed charge with coun-
sel. Defense counsel did not indicate that the court’s
proposed charge, which mirrored the defendant’s
requested charge with regard to intent, was unclear.
Further, defense counsel did not object to the court’s
charge after it was given. In view of the foregoing, the
defendant concedes that he implicitly waived his right
to challenge the instruction on appeal, and, therefore,
that Golding review is unavailable for this claim. See
State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942(2011). He requests, however, that this court review this
claim under the plain error doctrine or, alternatively,
pursuant to the exercise of our supervisory authority
over the administration of justice. The state counters
that the defendant’s claim is not reviewable because
the defendant induced the court to give the charge
challenged on appeal.9 If reviewed, the state argues that
the defendant cannot prevail pursuant to the plain error
doctrine or our supervisory authority.
‘‘It is well established in Connecticut that unpre-
served claims of improper jury instructions are review-
able under Golding unless they have been induced or
implicitly waived. . . . This court has found induced
error undeserving of appellate review in the context of
a jury instruction claim when the defense has affirma-
tively requested the challenged jury instruction . . . .’’
(Citations omitted; internal quotation marks omitted.)
State v. Kitchens, supra, 299 Conn. 468–69. In State v.
Darryl W., 303 Conn. 353, 371 n.17, 33 A.3d 239 (2012),
however, our Supreme Court noted the tension in our
appellate case law regarding whether reversal on the
basis of plain error could be available in cases where
the alleged error is causally connected to the defen-
dant’s own behavior. To the extent that we consider
the defendant’s claim under the plain error doctrine,
we are not persuaded that an error exists that is so
obvious that it affects the fairness and integrity of and
the public confidence in the judicial proceedings or that
the court’s jury charge caused the defendant to suffer
manifest injustice. See State v. Maskiell, 100 Conn. App.
507, 520–21, 918 A.2d 293, cert. denied, 282 Conn. 922,
925 A.2d 1104 (2007); State v. Santiago, 100 Conn. App.
236, 254, n.10, 917 A.2d 1051, cert. denied, 284 Conn.
933, 935 A.2d 152, 153 (2007); but see State v. Charles,
134 Conn. App. 242, 250 n.5, 39 A.3d 750, cert. denied,
304 Conn. 930, 42 A.3d 390 (2012).
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5, is an extraordinary remedy used by the appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for
reasons of policy. . . . In addition, the plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review.’’ (Internal quotation marks
omitted.) State v. Sanchez, 308 Conn. 64, 77, 60 A.3d
271 (2013).
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernible on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record.’’ (Internal quota-
tion marks omitted.) Id. In addition, ‘‘[a] party cannot
prevail under plain error unless it has demonstrated
that the failure to grant relief will result in manifest
injustice.’’ (Internal quotation marks omitted.) Id.Turning to the present case, § 53a-223 (a) provides
in relevant part that ‘‘[a] person is guilty of criminal
violation of a protective order when an order . . . has
been issued against such person, and such person vio-
lates such order.’’ ‘‘To prove a charge of criminal viola-
tion of a protective order under § 53a-223, the state
must demonstrate that a protective order was issued
against the defendant . . . and it must demonstrate the
terms of the order and the manner in which it was
violated. . . . Regarding the mental element of the
crime, the violation of a protective order statute is not
a specific intent crime. All that is necessary is a general
intent that the defendant intended to perform the activi-
ties that constituted the violation.’’ (Footnote omitted.)
State v. Larsen, 117 Conn. App. 202, 208, 978 A.2d 544,
citing State v. Fagan, 280 Conn. 69, 77–78, 905 A.2d
1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491,
167 L. Ed. 2d 236 (2007), cert. denied, 294 Conn. 919,
984 A.2d 68 (2009).
The defendant argues that the charge was defective
because it did not specify that criminal violation of a
protective order is a general intent crime, potentially
leading the jury to believe that there is no mental ele-
ment required in order to find the defendant guilty of
criminal violation of a protective order. The court prop-
erly instructed the jury, however, that the state was
required to prove beyond a reasonable doubt that the
court issued a protective order against the defendant
and that the defendant violated a condition of the pro-
tective order. The court also properly charged, with
regard to violation of a protective order, that ‘‘a person
acts intentionally with respect to conduct when his
conscious objective is to engage in such conduct.’’ The
charge given was consistent with the charge requested
by the defendant and the model charge found on the
Connecticut Judicial Branch website.10 Prior to the
court’s charge regarding the elements of criminal viola-
tion of a protective order, the court explained the differ-
ences between general intent and specific intent.11
During its charge regarding disorderly conduct, the
court noted that it previously had explained the differ-
ence between general intent and specific intent, and
clarified that disorderly conduct was a specific intent
crime. On the basis of the foregoing, we are not per-
suaded that an error exists that is so obvious that it
affects the fairness and integrity of and the public confi-
dence in the judicial proceedings or that the court’s
instructions caused the defendant to suffer manifest
injustice. See State v. Sanchez, supra, 308 Conn. App.
77.12
III
The defendant’s final claim is that the court improp-
erly admitted the recording of the victim’s 911 phone
call into evidence. According to the defendant, admis-
sion of the 911 recording was error because it was
minimally probative and highly prejudicial. We disagree.
The following facts are relevant to this claim. At trial,
over the defendant’s objection, the victim testified that
on a date prior to trial, she met with an investigator
for the state and listened to a recording of her 911
phone call to the Hartford Police Department. She testi-
fied that it was her voice on the phone call, and that no
additions or deletions had been made to the recording.
When the prosecutor moved to offer the recording as
a full exhibit, defense counsel objected on the ground
that the recording had not been authenticated. Defense
counsel then stated: ‘‘And also I object as to it’s very
prejudicial versus probative. She’s already testifying to
events, and it’s cumulative and superfluous to her testi-
mony, your Honor.’’ The court then indicated that ‘‘[o]n
those grounds, it’s cumulative, superfluous, she’s
already testified, the objection is overruled.’’ The
recording was then played for the jury.
On appeal, the defendant argues that although the
victim’s voice was calm when the recording began, she
was screaming hysterically by the end of the call. The
defendant contends that the screaming was out of pro-
portion to what was occurring in the background, and
made it sound as if the victim was being assaulted
or harmed in some way. According to the defendant,
because of the victim’s prolonged screaming, the
recording was highly inflammatory and likely to arouse
the emotions of the jury.13 The state counters that this
issue was not properly preserved at trial because,
although the defendant did argue that the evidence was
more prejudicial than probative, he failed to inform the
court of the specific objection raised on appeal. The
state further argues that, if this claim is reviewed, we
should conclude that the court did not abuse its discre-
tion in admitting the recording. We conclude that the
defendant properly preserved this issue at trial, but
further conclude that the court did not abuse its discre-
tion in admitting the recording of the victim’s 911
phone call.
‘‘We will make every reasonable presumption in favor
of upholding the trial court’s [evidentiary] ruling, and
only upset it for manifest abuse of discretion. . . .
[Thus, our] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and reasonably could have reached the conclu-
sion that it did. . . . The question, moreover, is not
whether the evidence is highly probative, but simply
whether its probative value outweighs undue preju-
dice.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Hill, 307 Conn. 689, 700–701, 59 A.3d 196(2013). Our Supreme Court ‘‘has identified four factors
relevant to determining whether the admission of other-
wise 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
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.’’ (Internal quotation marks
omitted.) Id., 698.
In State v. Rodriguez, 91 Conn. App. 112, 121, 881
A.2d 371, cert. denied, 276 Conn. 909, 886 A.2d 423(2005), the defendant, who was convicted of burglariz-
ing an occupied home, argued that the court improperly
admitted into evidence a tape recording of the 911 call
in the case. The woman on the recording indicated that
someone was breaking into her home and expressed
fear for the safety of her children. Id. We concluded in
Rodriguez that the court did not abuse its discretion
in admitting the recording into evidence, stating that
‘‘the court reasonably determined that the recording
was relevant because it tended to support the fact that
a burglary had occurred. Although the jury may have
detected fear in the woman’s voice on the recording,
we cannot conclude that the recording unduly aroused
the jury’s emotions. A reasonable person would assume
fear in the mind of a burglary victim. The recording
was therefore not particularly prejudicial. Finally, the
recording was not merely cumulative because the
woman who made the 911 call did not testify about
the contents of the call on direct examination. The
prosecutor questioned her about the events leading to
the call, then played the recording and questioned her
about the events following the call.’’ Id., 122–23.
Similarly, in State v. Nelson, 105 Conn. App. 393, 408,
937 A.2d 1249, cert. denied, 286 Conn. 913, 944 A.2d
983 (2008), the defendant, who was convicted of con-
spiracy to commit robbery in the first degree, argued
that the court should not have permitted the jury to
hear the 911 recording. We disagreed, stating that ‘‘[t]he
911 recording was not unfairly prejudicial; although
the jury may have detected suffering and fear in [the
victim’s] voice, we cannot conclude that the recording
unduly aroused the jury’s emotions. . . . With or with-
out the aid of a tape, a reasonable person would assume
a person in [the victim’s] position to be distressed.’’ Id.,
412. We further concluded that the recording was not
cumulative because it presented matters not covered
by the victim’s testimony. Id.
As we did in Rodriguez and Nelson, we conclude that
the 911 recording here was not unfairly prejudicial.
Further, we disagree with the defendant’s attempt to
distinguish Rodriguez on the ground that the victim
in the present case testified in detail regarding what
occurred during her 911 call, thus rendering the 911
recording superfluous or cumulative. At trial, the victim
testified on direct examination regarding her motivation
to call 911, and her attempt to keep people separated
while she made the call.14 She did not testify regarding
the contents of the 911 call. We conclude, on the basis
of the foregoing, that the court did not abuse its discre-
tion in admitting the recording into evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The protective order required, inter alia, that the defendant ‘‘[s]tay away
from the home of the protected person and wherever the protected person
shall reside’’ and to ‘‘[s]tay 100 yards away from the protected person.’’
2
On count one, the court sentenced the defendant to three years incarcera-
tion, execution suspended after sixteen months, and three years of probation.
On count two, the court sentenced the defendant to three months incarcera-
tion, concurrent with count one.
3
The complete charge pertaining to criminal violation of a protective
order provides: ‘‘The defendant is charged in count one with violation of a
protective order. Now the statute defining this offense reads in pertinent
part as follows: a person is guilty of criminal violation of a protective order
when an order has been issued against such person, and such person violates
such order. For you to find the defendant [guilty] of this charge, the state
must prove the following elements beyond a reasonable doubt.
‘‘The first element is that a court issued a protective order against the
defendant. State’s exhibit 2 is the state’s offer of the protective order, and
the protective order required the defendant to do the following: surrender
or transfer all firearms; do not assault, threaten, abuse, harass, follow,
interfere with or stalk the protected person; stay away from the home of
the protected person and wherever the protected person shall reside; do
not contact the protected person in any manner, including by written or
electronic or telephone contact; and do not contact the protected person’s
home or workplace or others with whom that contact would be likely to
cause annoyance or alarm to the protected person; and stay 100 yards away
from the protected person.
‘‘The second element is that the defendant violated a condition of the
protective order. To violate the condition means to act in disregard of or
to go against the condition. The state alleges that the defendant harassed
the complaining witness. The state also alleges that the defendant did not
stay away from the residence of the protected person, and the state also
alleges that the defendant called or texted the protected person in violation
of the protective order.
‘‘A person acts intentionally with respect to conduct when his conscious
objective is to engage in such conduct. In summary, the state must prove
beyond a reasonable doubt that, one, a court issued a protective order against
the defendant; and two, he violated a condition of that protective order.
‘‘If you unanimously find that the state has proved beyond a reasonable
doubt each of the elements of the crime of criminal violation of a protective
order, then you shall find the defendant guilty. On the other hand, if you
unanimously find that the state has failed to prove beyond a reasonable
doubt one or more of the elements of the crime you shall find the defendant
not guilty.’’
4
The state concedes, and we agree, that because the challenged language
was not included in the court’s proposed charge, and was not discussed
during the charge conference, the defendant has not implicitly waived this
claim pursuant to State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942(2011) (‘‘when the trial court provides counsel with a copy of the proposed
jury instructions, allows a meaningful opportunity for their review, solicits
comments from counsel regarding changes or modifications and counsel
affirmatively accepts the instructions proposed or given, the defendant may
be deemed to have knowledge of any potential flaws therein and to have
waived implicitly the constitutional right to challenge the instructions on
direct appeal’’)
5
Prior to the start of evidence, the defendant filed a motion to require
notice of uncharged misconduct evidence. After first noting that the motion
was untimely filed, the court declined to act on the motion, stating that it
was going to wait for the defendant’s objections concerning the evidence pre-
sented.
6
With regard to disorderly conduct, the court charged the jury as follows:
‘‘Now concerning disorderly conduct, the defendant is charged in court two
with disorderly conduct. The statute defining this offense reads in pertinent
part as follows: a person is guilty of disorderly conduct when, with the
intent to cause inconvenience, annoyance or alarm, engages in fighting or
in [violent], tumultuous or threatening behavior.
‘‘For you to find the defendant guilty of this count the state must prove
the following elements beyond a reasonable doubt. First the defendant
acted with the intent to cause inconvenience, annoyance or alarm. The
predominant intent must be to cause what a reasonable person operating
under contemporary community standard[s] would consider a disturbance
to or an impediment of a lawful activity, a feeling of vexation or provocation,
or a feeling of anxiety prompted by threatened danger or harm.
‘‘The words inconvenience, annoyance or alarm refer to what a person
operating under contemporary community standards would consider a dis-
turbance to or impediment of a lawful activity, a deep feeling of vexation
or provocation, or feeling of anxiety prompted by threatened danger or harm.
‘‘The second element is that the defendant engaged in fighting or in violent,
tumultuous or threatening behavior of a physical nature.
‘‘In summary, the state must prove beyond a reasonable doubt that the
defendant intended to cause inconvenience, annoyance or alarm, and . . .
the defendant engaged in violent, tumultuous or threatening behavior of a
physical nature.
‘‘The court previously explained the difference between having a general
intent and having specific intent. Disorderly conduct is a specific intent
crime.
‘‘In summary, if you find the state has proved beyond a reasonable doubt
all the elements of the crime of disorderly conduct, you shall find the
defendant guilty. However, if you find the state has failed to prove one or
more of the elements beyond a reasonable doubt, you shall find the defendant
not guilty.’’
7
We are likewise not persuaded that an error exists that is so obvious
that it affects the fairness and integrity of and the public confidence in the
judicial proceedings or that the failure to grant relief will result in manifest
injustice. We, therefore, decline the defendant’s invitation to reverse his
conviction for plain error. See State v. Sanchez, 308 Conn. 64, 77, 60 A.3d
271 (2013).
8
The defendant also requested the court to charge the jury, as an element
of the offense, that the defendant had reasonable notice of the protective
order. The court declined to include the notice language in its charge. This
is not at issue on appeal.
9
In his reply brief, the defendant concedes that the error may have been
induced as a result of his request to charge.
10
See www.jud.ct.gov/JI/criminal/part6/6.8-1.htm (last visited September
11, 2014).
11
The court charged as follows: ‘‘General intent is the intent to engage
in conduct. Thus, in this case it is not necessary for the state to prove
that the defendant intended the precise harm or the precise result which
occurred, rather the state is required to prove that the defendant intentionally
and not inadvertently or accidentally engage in his actions. In other words,
the state must prove that the defendant’s actions were intentional, voluntary
and knowing rather than unintentional, involuntary and unknowing. Specific
intent is the intent to achieve a specific result. A person acts intentionally
with respect to a result when his conscious objective is to cause such result.’’
12
We further decline to review this claim pursuant to our supervisory
authority, because the defendant has not demonstrated a compelling reason
why the jury instruction under review implicates either the integrity of this
particular trial or the perceived fairness of the judicial system as a whole.
See State v. Elson, 311 Conn. 726, 764–65, 91 A.3d 862 (2014).
13
The defendant also argues that because the court indicated that the
objection was overruled on the grounds that ‘‘its cumulative, superfluous,
she’s already testified,’’ the court did not perform the required balancing
test. We note, however, that a trial court is not required ‘‘to use some
talismanic phraseology in order to satisfy this balancing process. Rather
. . . in order for this test to be satisfied, a reviewing court must be able to
infer from the entire record that the trial court considered the prejudicial
effect of the evidence against its probative nature before making a ruling.’’
State v. Nunes, 260 Conn. 649, 689–90, 800 A.2d 1160 (2002).
14
The victim testified as follows:
‘‘[The Prosecutor]: And after he threw the bottle, what did you do, ma’am?
‘‘[The Victim]: I had to get up off the bed because it was gonna go crazy.
Mr. Chol Mangor’s a big guy, and he was gonna go right after him. So, I had
to get up, call 911 right away; my first instinct was to call 911. I grabbed
my phone; it was charging; I call—you know, grab my phone call 911. And
between calling 911, I had to keep one person this way and the other person
this way because it was just too much.’’