State v. Marcello E. ( 2022 )

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STATE OF CONNECTICUT v. MARCELLO E.*
(AC 44211)
Alvord, Suarez and Bishop, Js.
Syllabus
Convicted of the crime of assault in the first degree in connection with the
stabbing of the victim, his former partner and the mother of their two
children, the defendant appealed to this court. He claimed that the trial
court improperly admitted certain evidence of his alleged uncharged
misconduct that pertained to two altercations he had with the victim
prior to the date of the charged crime. Prior to trial, the state, pursuant to
the applicable provision (§ 4-5 (c)) of the Connecticut Code of Evidence,
sought to admit evidence of four prior altercations between the defen-
dant and the victim for the purpose of establishing the defendant’s intent
to commit the charged crime. The trial court admitted evidence of two
of the altercations, which occurred two and three years before the
stabbing. In one incident, the victim sustained a concussion after the
defendant punched her in the face; in another incident, he punched her
in the mouth in the presence of their minor daughter. On appeal, the
defendant claimed that the uncharged misconduct was not relevant to
intent or similar in nature to the charged crime, and that the uncharged
misconduct was more prejudicial than probative and, thus, harmful. Held
that the trial court did not abuse its discretion in admitting uncharged
misconduct evidence involving two prior altercations between the defen-
dant and the victim, as that evidence was relevant and probative and,
thus, admissible to prove his intent to assault the victim by stabbing
her: the court reasonably could have found that the prior misconduct
was sufficiently probative of intent because it involved the same victim
and was of a similar nature as the charged conduct, which involved
repeated stabs to the victim’s head and body, evidence that the defendant
previously struck the victim made it more likely that he intended to
cause her serious physical injury by stabbing her, as the prior miscon-
duct, which was not too remote, was probative of his attitude toward
her well-being, and, contrary to defendant’s assertion, the admission of
the prior misconduct did not run afoul of the Supreme Court’s determina-
tion in State v. Juan J. (344 Conn. 1) that uncharged misconduct is
inadmissible to prove intent in general intent crimes; moreover, this
court could not conclude that the trial court abused its discretion in
determining that the probative value of the misconduct evidence out-
weighed its prejudicial effect, as the conduct and injuries underlying
the misconduct, which did not involve the use of a weapon, were substan-
tially less severe than that involved in the charged crime and were not
likely to arouse the jurors’ emotions so as to create undue prejudice,
the misconduct evidence was litigated out of the jury’s presence and
did not consume an undue amount of trial time or create side issues,
the state’s questioning of the victim about it was limited and not inflam-
matory, and the defendant was not unfairly surprised by the misconduct
evidence; furthermore, the court instructed the jury on three occasions
that it could consider the misconduct evidence solely on the issue of
intent, thereby restricting the state’s use of the misconduct and limiting
its prejudicial effect, the defendant’s alibi that he was asleep at home
when the stabbing occurred rested on his testimony and that of his
mother and sister, which was contradicted by the testimony of investigat-
ing police officers that his mother and sister were not cooperative and
would not provide them with any information, and, even if the court
improperly admitted the misconduct evidence, in light of the strength
of the state’s case and the tailored introduction of the uncharged miscon-
duct evidence, this court was left with a fair assurance that the evidence
did not substantially affect the verdict.
(One judge dissenting)
Argued March 8—officially released October 18, 2022
Procedural History
Substitute information charging the defendant with
the crime of assault in the first degree, brought to the
Superior Court in the judicial district of Hartford and
tried to the jury before Gold, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court. Affirmed.
John R. Weikart, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Anthony Bochicchio, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Marcello E., appeals from
the judgment of conviction, rendered after a jury trial,1
of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1). On appeal, the defendant
claims that the trial court improperly admitted
uncharged misconduct evidence. We affirm the judg-
ment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. The defendant and the victim met and began
dating around 1995 when the victim was fifteen years
old. The defendant and the victim had two children
together, J, who was born in 1998, and S, who was born
in 2003. At the time of S’s birth, the defendant and
the victim lived together in Hartford; they later moved,
briefly, to South Windsor. In 2008, the defendant and
the victim began to have problems in their relationship.
The couple had several arguments that evolved from
verbal disagreements to physical incidents. Following
one such incident in October, 2009, the defendant
stopped living with the victim and their children.
In November, 2011, the defendant resided at his moth-
er’s home with his mother, sister, nephews, and brother
on B Street in Hartford. He and the victim had an
arrangement wherein the defendant would pick up S
from school, after 3 p.m., and bring her to his mother’s
house until the victim left her workplace. After the
victim left work at about 5 p.m., she would pick up S
at the home of the defendant’s mother and then return
to their home on M Street in Hartford. When the victim
arrived at the home of the defendant’s mother to pick
up S, the victim typically would not go inside but instead
would call S to come out because the victim ‘‘did not
want to have any contact with [the defendant] at all.’’
On November 16, 2011, the defendant picked up S
at school at about 3:45 p.m., took her to a fast-food
restaurant, and brought her to his mother’s home. After
they arrived, the defendant went upstairs to his room.
Thirty minutes before the victim picked up S, the defen-
dant left the house with a backpack and got into a car.
He did not return prior to S’s leaving the house.
At about 5:30 p.m., the victim picked up S at the home
of the defendant’s mother. The victim and S then went
to a grocery store to pick up food for dinner, which took,
at most, twenty minutes. Then, they returned home to
M Street, where the victim parked her car in the drive-
way. S got out of the car, walked to the back door,
and entered the home first. The victim followed after
grabbing her bag and the groceries.
The victim entered her home and turned to lock the
back door when the defendant ran up to her and began
stabbing her. Because the defendant was not wearing
a face covering, the victim got a good look at him. The
defendant repeatedly stabbed the victim in the head,
leg, arm, and back, and pulled her outside. The victim
yelled for J, who was already inside the home, to come
help her. J ran outside, picked up the victim, brought
her into their home, and locked the door. The victim
originally thought she had been beaten, but upon hear-
ing a gushing sound and feeling her leg, she told J,
‘‘your father stabbed me.’’ The defendant ran toward a
neighbor’s fence on the side of the victim’s home.
Shortly thereafter, S called the defendant, told him
about the attack on the victim, and the phone line
promptly went dead.
At 5:58 p.m., two minutes after receiving a call that
someone had been stabbed on M Street, a Hartford
police officer arrived at the victim’s home. As part of
their investigation, officers spoke with J on November
16, 2011.2 J told the officers that the victim had identified
the defendant as her assailant.
Later that evening, two police officers went to the
home of the defendant’s mother to speak with the defen-
dant. Officer Valentine Olabisi first spoke with the
defendant regarding his whereabouts at the time the
victim was attacked. Officer Olabisi testified that the
defendant had told him that ‘‘he was with his mother
all day and he hadn’t left the house’’ but ‘‘refused to
speak to [Officer Olabisi] any further.’’ Thereafter,
Detective Luis Poma attempted to make contact with
the defendant, but the defendant’s brother told him that
the defendant ‘‘was agitated.’’ When Detective Poma
then asked him for the defendant’s contact information,
he told Detective Poma that the defendant’s phone was
broken.
As a result of the defendant’s attack, the victim sus-
tained multiple stab wounds, suffered a collapsed lung,
received staples extending from the top of her head
down to her ear, underwent three surgeries, and was
hospitalized for five days.3 After she was transported
to a hospital, stabilized by medical personnel, and
administered a large amount of pain medication, the
victim told the police that ‘‘she did not see the suspect’’
and that she had been attacked by an ‘‘unknown per-
son.’’4 Five days after the attack, the victim identified
the defendant as her assailant from a photographic
array that the police had prepared.
Prior to trial, the defendant filed a motion for the
disclosure of any evidence of uncharged misconduct
that the state would seek to present at trial. On October
31, 2019, the court held a hearing on the admissibility
of evidence of four incidents in which the defendant
either had threatened or used violence against the vic-
tim. At the hearing, the state presented the testimony
of the victim as to the four incidents.
The victim testified that the first incident occurred
on January 30, 2007, at her workplace. The defendant
showed up there and wanted the victim to ‘‘come speak
to him about something that was going on’’ outside.
When the victim refused to speak with him, the defen-
dant entered her workplace and attempted to pull her
outside. The victim ran from the defendant into a
coworker’s office. The defendant left the victim’s place
of work but continued to make threats to her over the
phone. The victim did not recall the specific words he
used to threaten her but recalled that they were ‘‘arguing
back and forth.’’
The victim testified as to a second incident that
occurred in March, 2008, at the home of the victim
and the defendant in South Windsor. The victim was
vacuuming, which ‘‘irritated [the defendant] because
the vacuum was too loud.’’ The victim asked the defen-
dant to leave and ‘‘thought [the defendant] was leaving,
and . . . he proceeded to punch [her] in . . . [the]
head.’’ The victim attempted to leave the room multiple
times, but the defendant would not let her leave.
According to the victim, the defendant eventually ‘‘had
[her] on the ground. He punched [her] in [the] face.
[She] got a concussion from that. And he just would
not get out of [her] face.’’ The victim attempted to leave
the house, but the defendant pulled her back inside.
She pleaded with the defendant to let her leave. The
victim was eventually able to leave by saying that she
needed to get their dog, who had run outside, and then
ran to her neighbor’s home to call the police.
The victim testified as to a third incident that
occurred on October 13, 2009, at the home of the victim
and the defendant when they lived in Hartford. Because
the victim’s car was overheating, she asked the defen-
dant for a ride, but he did not give her one. She took
her car to work, and it overheated on the highway.
According to the victim, when she arrived home, the
defendant acted ‘‘like nothing happened’’ and as though
her ‘‘safety was not a concern of his . . . .’’ The victim
and the defendant proceeded to get ‘‘into an altercation
where . . . something happened, and he punched [her]
in [the] face, in [her] mouth in front of [their] daughter
at the time and, like, blood was like squirting every-
where.’’ A friend arrived and brought the victim and S
to the police department to file a report.
The victim testified as to a fourth incident that
occurred on December 16, 2009, after the defendant no
longer lived with her. The defendant called the victim
to try to get her to take him back. The defendant made
threats to the victim and stated, ‘‘if I go down you go
down with me . . . .’’
The prosecutor argued that the four prior incidents
were relevant to the defendant’s motive and intent to
commit the charged crime and stated that there was not
‘‘enough to offer them under identity.’’ Defense counsel
objected, arguing, principally, that the incidents were
not relevant to either motive or intent and that they
would be unduly prejudicial. Defense counsel argued
that the incidents were not similar in nature to the
charged crime because, in contrast to the prior inci-
dents, during the charged crime, ‘‘there was no words,
there was no threats. There was just an attack.’’ Addi-
tionally, defense counsel argued, inter alia, that the
prejudicial effect of the prior incidents was ‘‘[over-
whelming, especially] in view of the nature of the actual
allegations of the serious assault.’’5
The prosecutor argued that the incidents revealed a
pattern of ‘‘escalating violence towards one particular
individual which goes directly to . . . motive, which
is essential, and intent, which needs to be proved.’’
Additionally, the prosecutor argued that ‘‘the fact that
[the prior incidents of misconduct] are less egregious
than the incident offense, makes [them] more admissi-
ble.’’ In responding to the defendant’s argument that
the misconduct evidence was not similar to the charged
offense, the prosecutor argued that ‘‘similarity is
important if you’re looking to admit the evidence [for]
identity, which we are not.’’ Additionally, the prosecutor
maintained that, were the court to admit the prior mis-
conduct evidence at trial, he would not seek to offer
any evidence of convictions or arrests resulting from
the incidents or seek to elicit testimony from the victim
that she had called the police.
After hearing the victim’s testimony regarding the
uncharged misconduct evidence and during counsel’s
arguments, the court requested that the prosecutor
summarize the nature of the conduct that was charged
in the case and the nature of the victim’s testimony.
The prosecutor responded: ‘‘In this case, basically, [the
victim] will testify that she had come home from picking
up her daughter. Her daughter went to the house first.
She was going into the house. . . . [A]s she was walk-
ing in she was attacked from behind, and . . . thought
at the time she was being assaulted. She didn’t realize
she was stabbed until the attack was over. She was
stabbed several times causing serious physical injury.
And she’s going to testify that [the defendant] is the
individual who stabbed [her].’’ The court further
inquired whether the victim was stabbed multiple times
and the location of her wounds. The prosecutor stated
that she was stabbed multiple times on her head and
body and that ‘‘[t]here was significant injury to her legs
and to her head. She will testify, I believe, that there
was no warning and no lead up . . . to it.’’
On the first day of trial, the court orally ruled on the
admissibility of the uncharged misconduct evidence.
The court stated that, ‘‘[p]ursuant to § 4-5 of the [Con-
necticut] Code of Evidence these prior incidents are
admissible only if they satisfy the relevancy standard
set forth in [§] 4-1 of the [Connecticut Code of Evidence]
and [the] balancing test set forth in [§] 4-3 [of the Con-
necticut Code of Evidence]. Consistent with those . . .
code provisions, the court has considered the extent
to which these prior incidents are relevant to the issues
of intent and motive, and then undertaken to balance
the probative value of each incident against that inci-
dent’s prejudicial effect.
‘‘In considering the prejudicial effect of the other
crimes evidence, the court has considered such preju-
dice that could arise, for example, from the creation of
side issues, the possible risk of jury confusion, or a risk
that the jury’s emotion would be so aroused by learning
of these prior incidents so as to create undue prejudice.
At the outset the court has recognized that as our Appel-
late Court has stated most recently in State v. Anthony
L., 179 Conn. App. 512 [179 A.3d 1278, cert. denied, 328
Conn. 918, 181 A.3d 91 (2018)], and State v. Morales,
164 Conn. App. 143 [136 A.3d 278, cert. denied, 321
Conn. 916, 136 A.3d 1275 (2016)], and I quote, when
instances of a defendant’s prior misconduct involved
the same victim as the crimes for which the defendant
is presently being tried, those acts are especially illumi-
native of the defendant’s motivation and attitude toward
that victim and thus of his intent as to the incident in
question, closed quote.
‘‘I have also taken into account that our law makes
clear that where, as here, a defendant has pleaded not
guilty the defendant places in issue all elements of the
charges against him including the element relating to
intent. Moreover, all elements remain challenged by the
defendant in the eyes of the law even if the defendant
plans to pursue a defense that centers not on his mental
state but on whether or not he was the perpetrator of
the crime.’’
The court then addressed each of the four incidents of
uncharged misconduct separately. The court excluded
evidence of the first incident, which allegedly occurred
at the victim’s workplace, because ‘‘neither the nature
of the physical contact [the victim] described nor the
threat bears sufficiently on the defendant’s intent in the
present case.’’ The court also excluded evidence of the
fourth incident, the phone call on December 16, 2009,
when the defendant allegedly threatened the victim by
saying, ‘‘if I go down you go down . . . .’’ The court
concluded that admitting evidence of the phone call
would require the victim to contextualize and explain
events that occurred two years prior to the crime at
issue and would ‘‘create a risk that the jury would
become confused and would certainly create side
issues.’’
The court ruled that it would permit the state to
introduce evidence of two of the four incidents, specifi-
cally, the second and third incidents. As to the second
incident, in which the defendant allegedly punched the
victim in the head during an argument and restrained
her from leaving their home, the court found those facts
‘‘to be probative of the defendant’s intent in the present
case and sufficiently probative so as to outweigh any
prejudicial effect.’’ Balancing the probative value of the
evidence against its prejudicial effect, the court con-
cluded that the incident was ‘‘not so remote in time to
the charged offense to eliminate its probative value and
when compared to the facts claimed in the charged
case, is not such as is likely to arouse the jury’s emo-
tions.’’ Additionally, the court concluded that, because
the second incident did not involve a weapon, the jurors’
emotions would not be so aroused by the behavior
during that incident and that they would be able to
‘‘separate that incident from the present one.’’ Finally,
the court addressed the ‘‘dissimilarity’’ between the
charged stabbing incident and the prior assault, and
noted that courts have held ‘‘that prejudice is lessened
by virtue of that dissimilarity.’’
The court found that the third incident, in which the
defendant allegedly punched the victim in the mouth
after her car overheated, was ‘‘relevant to the issue of
intent in the present case.’’ Balancing the probative
value of the evidence against its prejudicial effect and
relying on precedential case law, the court determined
that the third incident was ‘‘not too remote, nor is it
too similar to the present case, nor is it so serious as
to be such as to arouse the jury’s emotion.’’ Therefore,
the court concluded that evidence of the third incident
was ‘‘probative of [the defendant’s] intent in the present
case and sufficiently probative so as to outweigh its
prejudicial effects.’’
The court stated that it was ‘‘permitting those inci-
dents to be considered by the jury only as to intent,
not as to motive.’’ The court further instructed the pros-
ecutor to ensure that he did not question the victim in
a manner so as to elicit information ‘‘regarding police
involvement or court proceedings that may have fol-
lowed the incident[s] . . . .’’ Additionally, the court
directed that ‘‘[t]he state also shall elicit testimony
regarding these two prior incidents in a non-inflamma-
tory manner.’’ Finally, the court stated that it was ‘‘pre-
pared to give an instruction regarding the use to which
these prior incidents may be put’’ and that it would do
so in its final charge to the jury and immediately before
or after the victim testified to these incidents, which-
ever defense counsel preferred. Defense counsel
responded that he would prefer that the court give the
limiting instruction after the victim testified.
Prior to the start of evidence, the court instructed
the jury that ‘‘[s]ome evidence in this case may be admit-
ted for a limited purpose only. If I instruct you that
particular evidence has been admitted for a limited
purpose, then you may consider that evidence only for
the limited purpose that I explain to you and not for
any other purpose.’’ At trial, the victim testified, in less
detail than during the hearing,6 as to the second and
third incidents discussed previously. With respect to
the March, 2008 incident, the victim testified that she
had ‘‘asked [the defendant] to leave and it became ver-
bal and then it became physical,’’ and he hit her. With
respect to the incident on October 13, 2009, the victim
testified that she and the defendant got into an argument
and that he punched her in the face.
After the victim testified, and, as requested by defense
counsel, the court instructed the jury regarding the lim-
ited purpose of the uncharged misconduct evidence.7
The court instructed the jury that it could consider the
victim’s testimony regarding the prior acts ‘‘solely to
show or to establish what the defendant’s intent may
have been at the time he’s alleged to have committed
the specific crime charged here.’’ Further, the court
warned the jury that it ‘‘may not consider the evidence
of these prior acts as establishing a predisposition on
the part of the defendant to commit the crime charged
or to demonstrate that he has a criminal propensity
to engage in criminal conduct. You may consider this
evidence of these prior incidents only if you believe it
occurred, and further, only if you find that it logically,
rationally and conclusively bears on the issue of
whether or not the defendant had the intent to commit
the crime that is charged in this case.’’ Defense counsel
did not object to the substance or timing of these
instructions.
The defendant presented an alibi defense at trial. The
defendant’s mother and sister both testified that, on
the evening the victim was attacked, the defendant was
at his mother’s home. They both testified that the defen-
dant’s mother called out to the defendant from the
living room at about 6 p.m. but that he did not come
downstairs from his room. The defendant’s mother then
walked upstairs and shook the defendant to wake him.
The defendant’s mother and sister testified that at least
one police officer8 came to their home on November
16, 2011, to speak with the defendant regarding the
attack on the victim. Although the defendant’s mother
and sister both testified that they would have provided
information to the officers on the night of the attack
or at any time thereafter, had they been contacted,
Officer Olabisi testified, to the contrary, that ‘‘[the
defendant’s mother and sister] were not cooperative,
and they wouldn’t provide any information.’’
The defendant testified in his own defense and main-
tained that he was not responsible for the attack on
the victim. He testified that, after he brought S from
school to his mother’s house, he helped her with her
homework, and then went upstairs to bed. He stated
that the next thing he remembered was his mother
waking him up. According to the defendant, S called
him shortly after that, at 6:01 p.m. but the phone discon-
nected on her end. He testified that he was cooperative
with Officer Olabisi, the first officer to arrive at the
home of the defendant’s mother, and that Detective
Poma called him twice that night and hung up on him.
During direct examination by his counsel, the defen-
dant acknowledged that he and the victim had troubles
in the past ‘‘like any other couples . . . .’’ On cross-
examination, the defendant stated that he had physical
altercations with the victim in the past and that, after
the last incident in 2009, they stopped living together.
The following colloquy between defense counsel and
the defendant took place during redirect examination:
‘‘Q. [The prosecutor] indicated that you had a physical
altercation with her in the past?
‘‘A. In the past.
‘‘Q. With [the victim] in the past. Correct?
‘‘A. Yes, sir.
‘‘Q. And you accepted responsibility for it?
‘‘A. Yes, sir.
‘‘Q. You pled guilty to it?
‘‘A. Yes, sir.’’
During closing argument, the prosecutor reminded
the jury that it could consider evidence of the defen-
dant’s prior conduct: ‘‘Now, you also heard about some
prior conduct by the defendant towards [the victim].
When I asked the defendant the relationship went bad,
yeah, like everybody’s. But you got physical. Simple
response was yes. That can be considered by you.’’
Additionally, in setting forth the elements of the charge
of assault in the first degree, the prosecutor argued
that, ‘‘if you have a serious physical injury and intent
to cause a serious physical [injury] . . . the question
then becomes who committed the act. I’d argue that
there is only evidence of one particular party that would
be the defendant.’’ During rebuttal argument, the prose-
cutor stated: ‘‘I can agree with [defense] counsel that
the issue in this case is identification.’’
During closing argument, defense counsel argued:
‘‘[The defendant] said that he had a physical altercation
with his wife three years before the incident. But cer-
tainly nothing even close to the level of violence we
see in this case and certainly with no weapon of any
type. And to his credit he took responsibility for his
actions and pled guilty. If he’s guilty, he pleads guilty.’’
After the close of evidence and closing arguments,
the court, again, instructed the jury that it could con-
sider the victim’s testimony regarding the uncharged
misconduct evidence only for the limited purpose of
proving that the defendant had the intent to commit
the crime with which he was charged.9 The jury found
the defendant guilty of assault in the first degree. The
court imposed a sentence of twenty years of incarcera-
tion.10
By way of a motion for a new trial, the defendant
renewed his challenge to the admission of the two inci-
dents of prior uncharged misconduct evidence. He
argued that ‘‘[a]llowing the jury to hear about them
even for a limited purpose was much more prejudicial
than probative.’’ Additionally, he emphasized the differ-
ence between the misconduct and the crime at issue,
arguing that the prior incidents were ‘‘domestic mat-
ters’’ that ‘‘happened about two or three years prior to
the incident’’ at issue and ‘‘came nowhere [near] the
level of violence in this case.’’ The court orally denied
the motion. Thereafter, this appeal from the judgment
of conviction followed.
The defendant’s sole claim on appeal is that the trial
court abused its discretion in admitting evidence of his
prior misconduct. He argues that the evidence was not
relevant or material, and, even if deemed to have proba-
tive value, its prejudicial effect outweighed any such
probative value and was harmful. In response, the state
maintains that the trial court acted well within its discre-
tion in admitting the prior misconduct evidence after
finding it relevant and not unduly prejudicial. The state
additionally maintains that, even if the admission of the
prior misconduct was improper, the defendant has not
satisfied his burden of demonstrating harm resulting
from its admission. We agree with the state.
‘‘Although [e]vidence of a defendant’s uncharged mis-
conduct is inadmissible to prove that the defendant
committed the charged crime or to show the predisposi-
tion of the defendant to commit the charged crime,
such evidence is admissible if it is offered to prove
intent, identity, malice, motive, a system of criminal
activity or the elements of a crime. . . . To determine
whether evidence of prior uncharged misconduct is
admissible for a proper purpose, we have adopted a
two-pronged test: First, the evidence must be relevant
and material to at least one of the circumstances encom-
passed by the exceptions. Second, the probative value
of such evidence must outweigh the prejudicial effect
of the other crime evidence.’’ (Citation omitted; internal
quotation marks omitted.) State v. Patrick M., 344 Conn.
565, 597, 280 A.3d 461 (2022); see Conn. Code Evid. § 4-
5 (‘‘(a) [e]vidence of other crimes, wrongs or acts of
a person is inadmissible to prove the bad character,
propensity, or criminal tendencies of that person’’ but
is admissible for other purposes, ‘‘(c) . . . 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’’).
‘‘Our standard of review on such matters is well estab-
lished. The admission of evidence of prior uncharged
misconduct is a decision properly within the discretion
of the trial court. . . . [E]very reasonable presumption
should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only [when]
abuse of discretion is manifest or [when] an injustice
appears to have been done.’’ (Internal quotation marks
omitted.) State v. Patrick M., supra, 344 Conn. 598.
‘‘In determining whether there has been an abuse of
discretion, the ultimate issue is whether the court could
reasonably conclude as it did.’’ (Internal quotation
marks omitted.) State v. Franko, 142 Conn. App. 451,
460, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d
30 (2013).
The defendant argues on appeal that ‘‘this court
should conclude that in the present case, where the
defendant was charged with using a deadly weapon
to carry out an out-of-the-blue ambush style stabbing
attack on his ex, more than two years after the end of
their relationship, the trial court abused its discretion
by admitting evidence that he twice, during their rela-
tionship, inflicted a lesser degree of violence on her
without a weapon in the context of escalating domestic
arguments that resulted in much less severe injuries.
. . . Moreover, where the nature of the attack, as
shown by the state’s uncontested evidence, left little
doubt that the perpetrator of the attack on [the victim]
acted with the specific intent to cause serious physical
injury, and where identity of the perpetrator was the
central issue for the jury, the prejudicial effect of the
uncharged misconduct evidence far outweighed any
marginal probative value, because the jury, in
attempting to resolve the identity issue, was likely to
employ an impermissible inference that the defendant
had a propensity to violence against [the victim].’’
We first consider the probative value of the prior
misconduct evidence. The trial court found that the
prior misconduct evidence from (1) the vacuuming inci-
dent in March, 2008, and (2) the car overheating incident
on October 13, 2009, was ‘‘probative of the defendant’s
intent in the present case . . . .’’ We agree with the
court that the evidence of uncharged misconduct was
relevant to the issue of intent.
The defendant was charged with assault in the first
degree in violation of § 53a-59 (a) (1),11 which is a spe-
cific intent crime. State v. Sivak, 84 Conn. App. 105,
110, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d
573 (2004). Therefore, ‘‘the state bore the burden of
proving the following elements beyond a reasonable
doubt: (1) the defendant possessed the intent to cause
serious physical injury to another person; (2) the defen-
dant caused serious physical injury to such person . . .
and (3) the defendant caused such injury by means of
a deadly weapon or a dangerous instrument.’’12 State v.
Holmes, 75 Conn. App. 721, 740, 817 A.2d 689, cert.
denied, 264 Conn. 903, 823 A.2d 1222 (2003).
At the outset, we address the defendant’s contention
that, because intent was not at issue during the trial
and he pursued an alibi defense, the court abused its
discretion in admitting the uncharged misconduct evi-
dence under the intent exception to the hearsay rule
as set forth in § 4-5 (c) of the Connecticut Code of
Evidence. We disagree.
‘‘[I]ntent, or any other essential element of a crime, is
always at issue unless directly and explicitly admitted
before the trier of fact.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Irizarry, 95 Conn.
App. 224, 233–34, 896 A.2d 828, cert. denied, 279 Conn.
902, 901 A.2d 1224 (2006); see also Estelle v. McGuire,
502 U.S. 62, 69–70, 112 S. Ct. 475, 116 L. Ed. 2d 385(1991) (noting that ‘‘prosecution’s burden to prove
every element of [a] crime is not relieved by a defen-
dant’s tactical decision not to contest an essential ele-
ment of the offense’’ and holding that extrinsic act evi-
dence is not constitutionally inadmissible merely
because it relates to issue that defendant does not
actively contest). ‘‘Because intent is almost always
proved, if at all, by circumstantial evidence, prior mis-
conduct evidence, where available, is often relied
upon.’’ (Internal quotation marks omitted.) State v. Chy-
ung, 325 Conn. 236, 263, 157 A.3d 628 (2017).
In its oral ruling on the admissibility of the uncharged
misconduct evidence, the court stated that the defen-
dant had pleaded not guilty to the charge of assault in
the first degree and that ‘‘all elements remain challenged
by the defendant in the eyes of the law even if the
defendant plans to pursue a defense that centers not
on his mental state but on whether or not he was the
perpetrator of the crime.’’ The defendant did not
directly and explicitly admit before the trier of fact
that he had the intent to cause serious physical injury.
Therefore, the state bore the burden of proving that
the defendant had the intent to cause serious physical
injury to the victim. See State v. Erhardt, 90 Conn. App.
853, 860 n.2, 879 A.2d 561 (‘‘The defendant argues that
intent was not an issue in this case because he testified
that the victim injured herself and that intent was not
a focus of the state’s case. That argument is meritless.
The defendant did not admit that he had an intent to
cause physical injury; therefore, this was a contested
issue that the state had to prove, and evidence regarding
that issue was relevant and material.’’), cert. denied,
276 Conn. 906, 884 A.2d 1028 (2005). The trial court
reasonably could have determined that the uncharged
misconduct evidence was relevant to prove intent.
The defendant further argues that the uncharged mis-
conduct evidence was irrelevant to whether he intended
to cause serious physical injury to the victim on the
night of the charged conduct because ‘‘there must be
some particular, articulable connection between the
uncharged misconduct and the specific intent element
the state is required to prove.’’ Specifically, the defen-
dant claims that ‘‘[t]he absence of similarity between
the charged and uncharged misconduct severely limited
its probative value . . . .’’ Additionally, he contends
that, ‘‘even if the defendant acted intentionally in 2008
and 2009 [the years in which the uncharged misconduct
incidents occurred], it is not at all clear that he acted
with an intent to cause serious physical injury.’’ The
state responds that the uncharged misconduct evidence
‘‘placed their relationship in context and demonstrated
[the defendant’s] attitude and motivation against [the
victim], and, thus, his intent to engage in an assault
that caused [the victim] serious physical injury.’’ We
agree with the state.
In admitting the prior misconduct evidence for the
purpose of showing the defendant’s intent to commit
assault in the first degree, the court relied on State v.
Anthony L., supra, 179 Conn. App. 525, and State v.
Morales, supra, 164 Conn. App. 180, for the principle
that, ‘‘when instances of a defendant’s prior misconduct
involved the same victim as the crimes for which the
defendant is presently being tried, those acts are espe-
cially illuminative of the defendant’s motivation and
attitude toward that victim and thus of his intent as to
the incident in question . . . .’’
In Anthony L., the defendant appealed from his con-
viction of sexual assault in the first degree, risk of
injury to a child, and sexual assault in the third degree,
claiming in relevant part ‘‘that the trial court abused its
discretion by admitting evidence of uncharged miscon-
duct because the evidence was more prejudicial than
probative.’’ State v. Anthony L., supra, 179 Conn. App.
523. On appeal, this court determined that prior miscon-
duct evidence of the defendant’s ‘‘sexual interest in
the complainant, upon which the defendant acted by
sexually abusing the complainant before and during the
charged period,’’ was relevant to the defendant’s motive
and intent. Id., 525. Specifically, this court determined
that, ‘‘[w]hen instances of a criminal defendant’s prior
misconduct involve the same [complainant] as the
crimes for which the defendant is presently being tried,
those acts are especially illuminative of the defendant’s
motivation and attitude toward the [complainant], and,
thus, of his intent as to the incident in question. . . .
[Therefore] because the [prior] misconduct . . .
involved the same complainant and was of the same
nature as the misconduct charged, it was material to
prove the defendant’s lustful inclinations toward the
complainant.’’ (Citations omitted; internal quotation
marks omitted.) Id., 525–26. Similarly, the court in the
present case reasonably could have found that the prior
misconduct evidence, specifically, the defendant’s
punching and hitting the victim in the head and mouth,
was sufficiently probative of the defendant’s intent in
the present case because it involved the same victim
and was of a similar nature as the charged conduct—
repeated stabs to the victim’s head and body. See id.,
526; see also State v. Erhardt, supra, 90 Conn. App. 860(‘‘prior incidents of physical violence by the defendant
toward the same victim are relevant and material to
indicate that he intended to cause the victim physical
injury in the stabbing incident’’).
Our law does not require that the uncharged miscon-
duct evidence be identical to the charged crime to be
probative of the defendant’s intent. See State v. Erhardt,
supra, 90 Conn. App. 860 (‘‘[t]he high degree of similar-
ity required for admissibility on the issue of identity is
not required for misconduct evidence to be admissible
on the issue of intent’’ (internal quotation marks omit-
ted)). In the present case, the two incidents, involving
the defendant’s assault of the victim by hitting and
punching her, were sufficiently similar to the charged
assault on the victim, which involved the defendant
stabbing her. See State v. Epps, 105 Conn. App. 84, 94,
936 A.2d 701 (2007) (upholding admission of evidence
of prior misconduct, as relevant to intent, involving
defendant’s punching and hitting victim where charged
incident involved defendant’s pouring gasoline on vic-
tim and igniting it, resulting in extensive burns), cert.
denied, 286 Conn. 903, 943 A.2d 1102 (2008); State v.
Erhardt, supra, 858–60 (upholding admission of evi-
dence of prior misconduct, as relevant to intent, involv-
ing defendant’s head-butting victim where charged inci-
dent involved defendant’s cutting of victim’s face with
knife and holding knife to her throat).
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable.’’ (Internal quotation
marks omitted.) State v. Kantorowski, 144 Conn. App.
477, 487, 72 A.3d 1228, cert. denied, 310 Conn. 924, 77
A.3d 141 (2013). Evidence that the defendant previously
had struck the victim made it more likely that he
intended to cause her serious physical injury by stab-
bing her because it was probative of ‘‘the defendant’s
attitude toward the well-being of the victim in the pres-
ent case.’’ State v. Urbanowski, 163 Conn. App. 377,
405–406, 136 A.3d 236 (2016), aff’d, 327 Conn. 169, 172
A.3d 201 (2017). We therefore conclude that the prior
misconduct evidence was relevant and probative and,
thus, admissible for the purpose of establishing the
defendant’s intent to commit assault in the first degree.
Our determination that the evidence was relevant to
intent does not contravene the guidance of our Supreme
Court’s recent decision in State v. Juan J., 344 Conn.
1, 276 A.3d 935 (2022).13 In that case, the defendant was
convicted of the following general intent crimes: one
count of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2), one count of attempt
to commit sexual assault in the first degree in violation
of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1),
and two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2), arising out of two
charged incidents of sexual abuse involving inappropri-
ate touching. Id., 5. At trial, the court admitted
uncharged misconduct evidence of prior incidents of
sexual abuse by the defendant against the complainant
for the purpose of showing the defendant’s intent. Id.,
8–9. Specifically, in addition to testifying regarding the
two charged incidents of inappropriate touching, the
complainant testified that ‘‘the defendant touched her
inappropriately ‘[o]ver ten times,’ that the inappropriate
touching took place ‘[f]requently’; she agreed with the
prosecutor that the touching took place ‘about ten times
and [that] it was essentially the same conduct each of
those times,’ and she testified that the touching contin-
ued after December 24, 2015, until she began living with
[her older cousin] in June, 2016.’’ Id., 9. The court also
admitted into evidence as full exhibits video recordings
of two forensic interviews of the complainant, in which
she stated, among other things, that the touching
occurred ‘‘all the time’’ and ‘‘every other day.’’14 (Internal
quotation marks omitted.) Id., 10. She also stated in
one of the forensic interviews that ‘‘the defendant had
performed oral sex on her, put his mouth on her breasts,
and digitally penetrated her anus.’’ Id.
On appeal, the defendant in Juan J. argued that the
trial court had abused its discretion in admitting the
uncharged misconduct evidence, as ‘‘intent was not pre-
sumptively at issue because he was charged only with
general intent crimes, not specific intent crimes,’’ and
‘‘intent was not affirmatively at issue because his theory
of defense was that the conduct never happened at all,
not that the conduct occurred as a result of uninten-
tional actions.’’ Id., 17.
Our Supreme Court in Juan J. first recognized ‘‘the
fine line between using uncharged misconduct to prove
intent and using it to show the defendant’s bad charac-
ter or propensity to commit the crime charged.’’ Id., 20.
After discussing the risk that the evidence will be used
improperly, the court stated: ‘‘In light of these concerns,
the state’s introduction of uncharged misconduct is
properly limited to cases in which the evidence is
needed to prove a fact that the defendant has placed,
or conceivably will place, in issue, or a fact that the
statutory elements obligate the government to prove.’’
(Internal quotation marks omitted.) Id. The court then
set forth the elements the state was required to prove
and noted that all the crimes charged were crimes of
general intent. See id. The court turned to a discussion
of how the burden of proof differs when prosecuting
general intent crimes as opposed to specific intent
crimes, ‘‘in which intent is a legislatively prescribed
element that the state must prove beyond a reasonable
doubt unless explicitly admitted by the defendant.’’ Id.,
22.15 Ultimately, our Supreme Court held that, ‘‘in a
general intent crime case, in which the theory of defense
is that the conduct did not occur at all, rather than
a theory of defense in which the conduct occurred
unintentionally, uncharged misconduct is irrelevant and
inadmissible to prove intent.’’ Id., 4–5. Thus, the court’s
holding is not controlling of the present case, in which,
as we already have explicated, the defendant was
charged with a specific intent offense, and the state, at
trial, bore the burden of proving beyond a reasonable
doubt that he acted with the specific intent required
for the commission of the charged offense. Rather, the
purpose for admitting the uncharged misconduct evi-
dence in the present case—to prove that the defendant
had the specific intent to cause serious physical harm—
falls squarely within the limited parameters of Juan J.,
which permit the introduction of uncharged misconduct
in cases ‘‘in which the evidence is needed to prove a
fact that the defendant has placed, or conceivably will
place, in issue, or a fact that the statutory elements
obligate the government to prove.’’ (Emphasis added;
internal quotation marks omitted.) Id., 20.
Next, we address whether the evidence was unduly
prejudicial. ‘‘To determine whether the prejudicial
effect of evidence outweighs its probative value, a trial
court is required to consider whether the evidence may
(1) unduly arouse the jury’s emotions, hostility or sym-
pathy, (2) create a side issue that will unduly distract
the jury from the main issues, (3) consume an undue
amount of time, or (4) unfairly surprise the defendant,
who, having no reasonable ground to anticipate the
evidence, is . . . unprepared to meet it. . . . We defer
to the ruling of the trial court because of its unique
position to [observe] the context in which particular
evidentiary issues arise and its preeminent position to
weigh the potential benefits and harms accompanying
the admission of particular evidence.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Patrick
M., supra, 344 Conn. 600.
‘‘We are mindful that [w]hen the trial court has heard
a lengthy offer of proof and arguments of counsel before
performing the required balancing test, has specifically
found that the evidence was highly probative and mate-
rial, and that its probative value significantly out-
weighed the prejudicial effect, and has instructed the
jury on the limited use of the evidence in order to
safeguard against misuse and to minimize the prejudi-
cial impact . . . we have found no abuse of discretion.
. . . Proper limiting instructions often mitigate the
prejudicial impact of evidence of prior misconduct.
. . . Furthermore, a jury is presumed to have followed
a court’s limiting instructions, which serves to lessen
any prejudice resulting from the admission of such evi-
dence.’’ (Internal quotation marks omitted.) State v.
Wilson, 209 Conn. App. 779, 821, 267 A.3d 958 (2022).
The defendant argues that ‘‘admissibility for the pur-
pose of proving intent in the present case could only
have been based on reasoning that the past incidents
of violence by the defendant against [the victim] made
it more likely that the defendant wanted to hurt [the
victim] on November 16, 2011, and that he therefore
committed the charged offense.’’ He argues that, in this
context, the evidence was equivalent to prohibited pro-
pensity evidence.16 The state responds that ‘‘the trial
court properly analyzed the prejudicial effect of admit-
ting the prior misconduct vis-à-vis its probative value
and concluded that the prior misconduct did not create
undue prejudice.’’ We agree with the state.
After a hearing on the admissibility of the uncharged
misconduct evidence, the trial court carefully consid-
ered the state’s offer of four incidents of misconduct
and the defendant’s arguments in opposition and deter-
mined that evidence of only two of the incidents was
admissible. In explicating its determination as to each
incident, the court expressly considered the ‘‘creation
of side issues, the possible risk of jury confusion, or a
risk that the jury’s emotions would be so aroused by
learning of these prior incidents so as to create undue
prejudice.’’ Finally, the court limited the purpose for
and manner by which the state could introduce the
evidence. Specifically, the court limited the state to
introduction of the evidence for the purpose of intent,
prohibited the state from questioning the victim
‘‘regarding police involvement or court proceedings that
may have followed the incident[s]’’ and required the
state to ‘‘elicit testimony regarding these two prior inci-
dents in a non-inflammatory manner.’’ See State v. Pat-
terson, 344 Conn. 281, 296, 278 A.3d 1044 (2022) (finding
significant ‘‘the degree to which the trial court exercised
its discretion to limit the extent of the evidence of the
prior shootings it admitted’’).
Moreover, in ruling on the admissibility of the two
incidents of uncharged misconduct, the trial court
stated that, ‘‘when compared to the facts claimed in
the charged case, [the uncharged misconduct evidence
was] not such as is likely to arouse the jury’s emotions.’’
Specifically, the court noted that the misconduct evi-
dence ‘‘does not involve the use of a knife’’ and that it
is not ‘‘so serious . . . .’’ In his principal brief, the
defendant acknowledges that the uncharged miscon-
duct evidence did not involve a weapon and was not
as serious as the charged crime.
The trial court carefully reasoned that the conduct
and injuries underlying the uncharged misconduct were
substantially less severe than that involved in the
charged crime. See State v. Patrick M., supra, 344 Conn.
601 (‘‘[t]his court has repeatedly held that [t]he prejudi-
cial impact of uncharged misconduct evidence is
assessed in light of its relative viciousness in compari-
son with the charged conduct’’ (internal quotation
marks omitted)); State v. Patterson, supra, 344 Conn.
298 (same). As a result of the charged conduct, the
victim suffered multiple stab wounds to her head, back,
arm, and leg, which required three surgeries and contin-
ues to cause her discomfort. Evidence that the defen-
dant previously hit and punched the victim was far less
severe than the conduct and injuries involved in the
charged offense and, therefore, was unlikely to unduly
arouse the emotions of the jurors. See State v. Patrick
M., supra, 601; State v. Patterson, supra, 298.
Additionally, the introduction of the uncharged mis-
conduct evidence did not consume an undue amount
of trial time or create side issues, given that only two
of twenty-six pages of the victim’s testimony referenced
the misconduct, and the prosecutor did not belabor his
examination of her. See State v. James G., 268 Conn.
382, 401, 844 A.2d 810 (2004) (admission of prior mis-
conduct evidence did not result in ‘‘trial within a trial’’
when it consisted of only twenty-five of approximately
500 pages of trial transcript and ‘‘state’s attorney did
not belabor his examination of [the witness]’’ (internal
quotation marks omitted)). Consistent with the court’s
ruling, the prosecutor’s questioning of the victim was
limited and not inflammatory. See footnote 6 of this
opinion. The victim testified that she and the defendant
got into an argument in March, 2008, ‘‘[she] asked him to
leave and it became verbal and then it became physical,’’
and the defendant hit her. Additionally, the victim testi-
fied that, on October 13, 2009, she and the defendant
got into an argument concerning her car overheating,
and he punched her in the face.
Moreover, the admissibility of the prior misconduct
evidence was litigated outside the presence of the jury,
and the defendant does not claim that he was unfairly
surprised by the evidence. The court carefully consid-
ered the state’s proffer, of both the misconduct evi-
dence and the conduct underlying the charged offense,
and the defendant’s objections, and ultimately permit-
ted the state to introduce into evidence only two of
four incidents in a ‘‘non-inflammatory manner.’’ See
State v. Beavers, 290 Conn. 386, 406, 963 A.2d 956 (2009)
(‘‘the care with which the [trial] court weighed the evi-
dence and devised measures for reducing its prejudicial
effect mitigates against a finding of abuse of discretion’’
(internal quotation marks omitted)).
Last, it is significant that the court gave a limiting
instruction to the jury on three separate occasions: dur-
ing its preliminary instructions, after the victim testified
to the uncharged misconduct evidence, and in its final
charge to the jury. By instructing the jury to consider
the evidence solely on the issue of intent, the court
restricted the parameters of the state’s use of the prior
misconduct evidence, thereby limiting its prejudicial
effect. See footnote 7 of this opinion; see also State v.
Kantorowski, supra, 144 Conn. App. 492 (court did not
abuse its discretion in admitting uncharged misconduct
evidence where ‘‘the court heard a detailed offer of
proof and arguments of counsel before it performed
the required balancing test’’ and confined state’s use
of uncharged misconduct evidence to limit prejudice).
‘‘Absent evidence to the contrary, we presume that the
jury followed the court’s limiting instruction.’’ (Internal
quotation marks omitted.) State v. Wilson, supra, 209
Conn. App. 827.
Considering the record as a whole, we cannot con-
clude that the trial court abused its discretion in
determining that the probative value of the prior mis-
conduct evidence outweighed its prejudicial effect.17
Having determined that the prior uncharged miscon-
duct evidence was properly admitted, we need not
address the defendant’s argument that the admission
of that evidence was harmful. Nevertheless, even if we
were to assume, arguendo, that the court improperly
admitted the evidence, we agree with the state that the
defendant has not satisfied his burden of proving that
the admission was harmful.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful.’’ (Internal quota-
tion marks omitted.) State v. Urbanowski, supra, 163
Conn. App. 407. ‘‘[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 cumula-
tive, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial 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] evi-
dence 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 substantially affect the verdict.’’
(Internal quotation marks omitted.) Id.The defendant argues that the admission of the prior
misconduct evidence was harmful because ‘‘the state’s
case was not a particularly strong one.’’ Specifically,
the defendant points to the ‘‘substantial alibi evidence’’
that he presented at trial in comparison to the victim’s
‘‘inconsistent’’ testimony and J’s testimony that ‘‘his
memory of the events . . . was poor.’’ Additionally, the
defendant contends that ‘‘it is highly likely that the
evidence that the defendant had a history of violence
toward [the victim] influenced the verdict’’ because it
was ‘‘precisely the type of evidence that has the ten-
dency to excite jurors’ passions and influence their
judgment.’’ The state responds that its evidence was
strong in comparison to the defendant’s alibi defense
and that the trial court’s ‘‘careful limitations on the
introduction of the evidence reduced any harm.’’ We
agree with the state.
The state’s case was strong. The victim provided a
detailed account of the incident and a description of
her injuries, which were corroborated by photographs
and additional testimony presented by the state. Addi-
tionally, the victim responded affirmatively when the
prosecutor asked her whether, on the night of the
attack, she ‘‘got a good look’’ at her assailant. She fur-
ther testified that, within minutes after the attack, she
told J, ‘‘your father stabbed me.’’ J corroborated the
victim’s identification and testified that he told the
police, on the night of the attack, that the victim’s assail-
ant was his father. Moreover, S’s testimony established
that the defendant had left his mother’s home thirty
minutes prior to the victim’s arrival and that he knew
that the victim and S were heading home. Finally, when
S called the defendant and told him about the attack
on the victim, the defendant’s phone line immediately
went dead.
In contrast, the defendant’s alibi defense was not
corroborated by the testimony of uninterested third
parties but rested on his testimony and that of his
mother and sister. The alibi defense also was not based
on uncontroverted evidence, for it was explicitly contra-
dicted by the testimony of the investigating police offi-
cers. Although the defendant’s mother and sister testi-
fied that the defendant was asleep in his bed at 6 p.m.,
a few minutes after the attack, they never mentioned
that to the officers who came to their home, despite
knowing that the defendant was being questioned about
his whereabouts that evening. Moreover, despite the
contention of the defendant’s mother and sister that
they would have provided information to the officers
had they been contacted, Officer Olabisi testified that
‘‘they were not cooperative, and they wouldn’t provide
any information.’’ Additionally, the defendant testified
that he was cooperative with Officer Olabisi’s requests
on the night of the attack and that Detective Poma
had been ‘‘harassing’’ him over the phone that night. In
comparison, the officers testified that the defendant
would not provide any form of identification upon
request, that he refused to speak with them a second
time because he was ‘‘agitated,’’ and ‘‘that his phone
was broken.’’
Moreover, the court took significant precautions to
ensure that the circumstances surrounding admission
of the prior misconduct evidence were fair. As pre-
viously discussed, the trial court ordered the prosecutor
not to elicit evidence of what, if any, law enforcement
involvement there was or criminal charges that arose
out of the incidents. Defense counsel, however, elicited
additional testimony concerning past physical alterca-
tions and incorporated that testimony into his closing
argument. As noted previously in this opinion, on direct
examination, the defendant acknowledged in his testi-
mony that he and the victim had troubles in the past
‘‘like any other couples . . . .’’ On cross-examination,
he stated that he had physical altercations with the
victim in the past and that, after the last incident in 2009,
they stopped living together. On redirect examination,
defense counsel elicited testimony from the defendant
that he had pleaded guilty following a past physical
altercation with the victim. During closing argument,
defense counsel argued: ‘‘[The defendant] said that he
had a physical altercation with his wife three years
before the incident. But certainly nothing even close
to the level of violence we see in this case and certainly
with no weapon of any type. And to his credit he took
responsibility for his actions and pled guilty. If he’s
guilty, he pleads guilty.’’ Thus, defense counsel himself
emphasized the challenged evidence in his closing argu-
ment.
The trial court also restricted the victim’s testimony
about the prior misconduct to exclude potentially
inflammatory details and instructed the jury, on multi-
ple occasions, not to consider the prior misconduct as
evidence of the defendant’s propensity to commit the
charged crime. See footnote 7 of this opinion; see also
State v. Raynor, supra, 337 Conn. 565 n.23 (noting that
‘‘limiting instructions may feature more prominently in
a harmless error analysis’’). The prosecutor followed
the trial court’s orders when eliciting testimony from
the victim regarding the uncharged misconduct evi-
dence, which was not a prominent part of the state’s
case. These careful limitations on the introduction of
the prior misconduct evidence reduced any harm to the
defendant. See State v. Urbanowski, supra, 163 Conn.
App. 408–10 (lack of prominence of uncharged miscon-
duct evidence in addition to detailed limiting instruc-
tions are factors that mitigate against finding of harm).
Last, we note that the uncharged misconduct was
less severe than the charged conduct and that the prose-
cutor’s reference to the uncharged misconduct in his
closing argument was brief. Cf. State v. Juan J., supra,344 Conn. 33 (admission of uncharged misconduct evi-
dence was harmful, and trial court’s limiting instruc-
tions could not ‘‘cure the potential prejudice to defen-
dant’’ where uncharged misconduct was ‘‘far more
severe and frequent’’ than charged conduct and prose-
cutor relied on it in closing argument (internal quotation
marks omitted)).
In light of the strength of the state’s case in compari-
son to the defendant’s alibi defense, and the tailored
introduction of the uncharged misconduct evidence, we
are left with a fair assurance that the evidence did not
substantially affect the verdict. Therefore, even if the
court’s evidentiary ruling was improper, the defendant
has failed to demonstrate that the admission of the
uncharged misconduct evidence was harmful.
The judgment is affirmed.
In this opinion SUAREZ, J., concurred.
* In accordance with our policy of protecting the privacy interests of
victims in cases involving family violence, we decline to use the defendant’s
full name or to identify the victim or others through whom the victim’s
identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify
any person protected or sought to be protected under a protection order,
protective order, or a restraining order that was issued or applied for, or
others through whom that person’s identity may be ascertained.
1
This was the defendant’s second trial on the charge of assault in the
first degree. This court affirmed the defendant’s conviction from his first
trial on direct appeal. Subsequently, the defendant brought a petition for a
writ of habeas corpus, alleging ineffective assistance of trial counsel, which
was denied. On appeal, this court reversed the judgment of the habeas court
and remanded the case with direction to grant the petition for a writ of
habeas corpus and to vacate the defendant’s conviction. This court ordered
a new trial, the outcome of which is the subject of the present appeal.
Hereinafter, all references to the trial refer to the second trial, which took
place in November, 2019.
2
We note that the record contains conflicting information regarding J’s
age on the date of the attack on the victim at their home on November 16,
2011. The victim testified that her son, J, was born in April, 1998, which
would support a finding that he was thirteen years old on the date of the
attack. J testified that, at the time of the trial, in November, 2019, he was
twenty-one years old. To the contrary, however, J also testified that, at the
time he gave a statement to the police, on December 7, 2011, three weeks
after the attack, he was eleven years old.
3
At the time of the trial in November, 2019, eight years after the attack,
the victim testified that she continued to have difficulty walking and was
expected to undergo additional surgeries due to the severity of her injuries
from the attack.
4
Officer Chris Hunyadi was the first officer at the crime scene on the
night of the attack, and followed the victim to the hospital where he spoke
with her after medical personnel administered care to her for her significant
injuries. Officer Hunyadi testified that he remained at the hospital until he
was relieved by the lead detective later that evening. Detective Poma, the
lead detective investigating the assault, testified that he was not able to take
the victim’s statement on the night of the attack due to her medical condition.
5
During the pretrial hearing, defense counsel argued that the incidents
were too remote in time, given that they had occurred ten or more years
before trial, and that the court should consider the passage of time from
the dates of the incidents to the date of the second trial, rather than the
passage of time from the dates of the incidents to the date of the crime.
See footnote 1 of this opinion. The defendant does not renew this argument
on appeal. We note, however, that ‘‘[t]he relevant time interval for measuring
remoteness is the time elapsed between the charged and uncharged miscon-
duct.’’ State v. Acosta, 326 Conn. 405, 407 n.2, 164 A.3d 672 (2017).
6
The entire colloquy between the prosecutor and the victim regarding
the uncharged misconduct evidence before the jury was as follows:
‘‘Q. Now I’m going to fast-forward a bit to 2008. . . . [W]ere you now
living in South Windsor?
‘‘A. Yes.
‘‘Q. And it was still you and the defendant and your two children that we
mentioned.
‘‘A. Right.
‘‘Q. Now, at this point did you begin to start to begin to have some
problems in the relationship?
‘‘A. Yes.
‘‘Q. I draw your attention to March of 2008. Do you recall getting in an
argument with the defendant on that date?
‘‘A. Yes.
‘‘Q. And do you recall what started the argument?
‘‘A. Yes.
‘‘Q. Okay. What gave rise to the argument?
‘‘Q. And that was an argument where he eventually hit you in that inci-
dent. Correct?
‘‘A. Yes.
‘‘Q. Now, I’m going to move up to October 13th of ‘09, you’re now living
in Hartford at that point?
‘‘A. Yes.
‘‘Q. And where were you in Hartford at that point?
‘‘A. What, my address?
‘‘Q. Yeah.
‘‘A. [M] Street.
‘‘Q. And still with the same two children?
‘‘A. Yes.
‘‘Q. And the defendant is living with you also. Correct?
‘‘A. Right.
‘‘Q. And did you get—I’m going to draw your attention to October 13, I
believe, of 2009, did you get in an argument again on that date?
‘‘A. Yes.
‘‘Q. And what caused the argument on that date?
‘‘A. My car had overheated and he went and helped me get to work that
day, so that’s how it all transpired.
‘‘Q. And then there was an argument?
‘‘A. Yes.
‘‘Q. And at that point he eventually—he punched you in the face on that
day. Correct?
‘‘A. Yes.
‘‘Q. Now, about that time did the defendant stop living with you and
the children?
‘‘A. Yes.’’
7
The court instructed the jury: ‘‘Ladies and gentlemen, I just want to give
you an instruction at this point. You recall in the preliminary instructions
I gave you a short time ago, I mentioned evidence that may be admitted for
a limited purpose. Just now you’ve heard [the victim] describe incidents
that she stated occurred in 2008, and another incident that occurred in 2009,
during the course of a relationship with the defendant, and that in each of
those incidents that she described there was a physical assault by the
defendant against her person.
‘‘This evidence of alleged conduct of the defendant prior to the date of
the charged offense, which as you know occurred in 2011, these prior acts
are not being admitted to prove the bad character propensity or criminal
tendencies of the defendant, but solely to show or to establish what the
defendant’s intent may have been at the time he’s alleged to have committed
the specific crime charged here. You may not consider the evidence of these
prior acts as establishing a predisposition on the part of the defendant to
commit the crime charged or to demonstrate that he has a criminal propen-
sity to engage in criminal conduct. You may consider this evidence of these
prior incidents only if you believe it occurred, and further, only if you find
that it logically, rationally and conclusively bears on the issue of whether
or not the defendant had the intent to commit the crime that is charged in
this case.
‘‘On the other hand, if you do not believe the evidence of these prior
incidents or even if you do, if you do not find that it logically, rationally,
and conclusively bears on the issue of the defendant’s intent at the time of
the crime charged in this case, then you may not consider this testimony
relating to the incidents in the past for any purpose whatsoever. In other
words, you may not allow your mind uncritically to believe that the defendant
must be or is more likely to be the person who committed the crime charged
in this case merely because of the misconduct he may have directed toward
[the victim] previously, nor may you believe that the defendant is or is more
likely to be guilty of the offense here charged merely because of the alleged
prior misconduct.
‘‘Rather, as I have explained, you are permitted to consider this evidence
of prior incidents between the defendant and [the victim] as she has just
described only if you believe that they occurred, and then only to the extent
that you find their occurrence may bear on the issue of whether the defendant
possessed the requisite intent to commit the crime alleged in this case. These
alleged prior incidents may not be considered by you for any other purpose.’’
8
The defendant’s sister testified that she recalled two officers coming to
her mother’s home. The defendant’s mother testified that she recalled one
officer coming to her home.
9
The language used by the court paralleled the limiting instruction it
gave the jury after the victim testified regarding the uncharged misconduct
evidence. See footnote 7 of this opinion.
10
Following his conviction of assault in the first degree, the defendant
admitted that, as a result of his criminal conduct, he had violated the terms
of his probation as set forth under a separate docket number. The court,
Gold, J., imposed an additional sentence of three years of incarceration on
the violation of probation charge to be served concurrently with the sentence
on the assault conviction.
11
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first 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 by means of a deadly weapon or a dangerous instru-
ment . . . .’’
12
In his brief, the defendant argues that this court must examine both
general intent and specific intent to cause serious physical injury. As part
of his argument, the defendant cites State v. Gilligan, 92 Conn. 526, 536–37,
103 A. 649 (1918), and urges this court to limit the use of prior misconduct
to instances in which the state’s case is ‘‘reasonably consistent with a theory
that the charged offense was committed innocently, i.e., by accident or
mistake.’’ The defendant contends that, because ‘‘[t]here is no imaginable
interpretation of [the state’s] evidence that would be consistent with accident
or mistake,’’ the uncharged misconduct evidence was not relevant to prove
general intent, i.e., voluntariness of action.
The state contends, inter alia, that the defendant’s argument, premised
on Gilligan, presents a new legal ground that was not raised before the
trial court and refers this court to our recent decision in State v. McKinney,
209 Conn. App. 363, 385–88, 268 A.3d 134 (2021), cert. denied, 341 Conn.
903, 268 A.3d 77 (2022). We address the defendant’s argument because it
relates to his claim before the trial court that the uncharged misconduct
evidence was not relevant to intent.
We find the defendant’s reliance on Gilligan to be misplaced. In so decid-
ing, we are persuaded by our Supreme Court’s rationale in State v. Beavers,
290 Conn. 386, 963 A.2d 956 (2009), in which the court stated: ‘‘We disagree
. . . with the defendant’s reliance on State v. Gilligan, [supra, 92 Conn.
526], wherein a convalescent home owner was convicted of murdering one
of her patients by arsenic poisoning. On appeal, this court concluded that
the trial court had abused its discretion when, for purposes of proving
malice and intent, as well as absence of accident or mistake, it admitted
into evidence the fact that three of the home’s other patients also had
recently died of arsenic poisoning. . . . We view the venerable Gilligan
decision as confined to its facts, because it focuses largely on the unduly
prejudicial impact of that uncharged misconduct evidence in light of the
fact that the state already had introduced ample evidence of absence of
mistake or accident, including that the victim had received multiple large
doses of arsenic, the defendant’s delay in seeking medical attention and
‘unseemly haste’ in getting rid of the body, the defendant’s failure to notify
the victim’s relatives of his death, a loan of money from the victim to the
defendant, and the defendant’s impending need for the victim’s room for
another paying patient.’’ (Citation omitted.) State v. Beavers, supra, 405–406
n.20; see also State v. Gilligan, supra, 533 (‘‘[t]he authorities on the subject
are so numerous, and the relation between the commission of one offense
and of another similar offense depends so much upon the nature of the
offense and on the circumstances of each case, that we confine our discus-
sion to the crime of murder by poisoning’’).
13
State v. Juan J., supra, 344 Conn. 1, was decided after oral argument
in this appeal. This court ordered both parties to file supplemental briefs
addressing the impact, if any, of that decision on the present appeal, and
the defendant and the state filed their briefs on July 21 and 22, 2022, respec-
tively. In his supplemental brief, the defendant argues that Juan J. is control-
ling authority ‘‘establishing the inadmissibility of uncharged misconduct
evidence to prove general intent in this case.’’ He further argues that Juan
J. also supports a conclusion that the uncharged misconduct evidence in the
present case was inadmissible to prove specific intent because its prejudicial
impact outweighed its probative value. The state argues that ‘‘[t]he rule
created in Juan J. precluding the admission of prior misconduct evidence
on the issue of intent in the prosecution of a general intent crime, where
the theory of defense is that the conduct did not occur at all, does not apply
factually or legally to the present case. Indeed, to conclude that admission
of the prior misconduct evidence in the present case was improper under
Juan J. would require this court to extend Juan J.’s holding, a result that
finds no support in our law and runs contrary to the very rationale under-
girding the Supreme Court’s analysis and outcome in Juan J.’’
14
The video recordings were admitted into evidence under the hearsay
exception for medical diagnosis and treatment set forth in § 8-3 (5) of the
Connecticut Code of Evidence. See State v. Juan J., supra, 344 Conn. 10.
15
The court in Juan J. rejected the state’s reliance on cases involving
specific intent crimes ‘‘to support the proposition that the defendant’s intent
in a general intent case is always in issue unless directly and explicitly
admitted before the trier of fact.’’ (Internal quotation marks omitted.) State
v. Juan J., supra, 344 Conn. 22 n.9. The court reiterated that ‘‘the state’s
burden of proving intent in a specific intent crime case differs significantly
from its burden in a general intent crime case and unfairly borders on
propensity evidence when used in such a way. The state cannot use the logic
of specific intent cases to overwhelm a general intent case with uncharged
misconduct.’’ Id.16
In support of his argument, the defendant relies on precedent from
various federal circuit courts of appeals that ‘‘employ an analysis to assist
in determining whether uncharged misconduct evidence ostensibly admitted
to prove one of the permissible purposes, such as intent, actually runs afoul
of the impermissible purpose of showing propensity.’’ Given the availability
of appellate authority in our state, we do not find the federal cases persua-
sive.
17
‘‘The trial court has some degree of choice in balancing the probative
value of uncharged misconduct evidence against its prejudicial effect . . .
and . . . a different trial court might arrive at a different conclusion. We
hold only that, on the present record, the trial court’s decision to admit the
challenged evidence was not arbitrary or unreasonable. See, e.g., State v.
Smith, [313 Conn. 325, 336, 96 A.3d 1238 (2014)] ([T]he question is not
whether any one of us, had we been sitting as the trial judge, would have
exercised our discretion differently. . . . Rather, our inquiry is limited to
whether the trial court’s ruling was arbitrary or unreasonable.).’’ (Internal
quotation marks omitted.) State v. Patrick M., supra, 344 Conn. 602 n.13.