State v. Soto , 175 Conn. App. 739 ( 2017 )

 STATE OF CONNECTICUT v. LUIS XAVIER SOTO
(AC 38612)
Alvord, Prescott and Mullins, Js.
Syllabus
The defendant, who was convicted after a jury trial of criminal possession
of a pistol and risk of injury to a child on the basis of evidence that
was discovered in the execution of a search warrant at his cousin’s
apartment, appealed to this court. The jury heard conflicting testimony
regarding whether the defendant owned the pistol that was seized from
the closet of the bedroom in which he had been staying. Police officers
who executed the search warrant testified that the defendant made
certain inculpatory statements. The defendant also testified, denying
that he owned the pistol and that he made any such inculpatory state-
ments. The defendant filed a motion for a judgment of acquittal at the
close of the state’s case-in-chief, but did not file any postverdict motions.
On appeal, the defendant claimed that the jury’s verdict was against the
weight of evidence presented at trial. Held that this court declined to
review the defendant’s claim, raised for the first time on appeal, that
the evidence against him was so weak as to raise a substantial question
regarding the reliability of the verdict and that he was entitled to a new
trial, as the defendant failed to file a motion to set aside the verdict
and for a new trial after the jury returned its verdict and the defendant
failed to provide an adequate record to review his claim under State v.
Golding (213 Conn. 233); contrary to the defendant’s claim, filing a
motion for a judgment of acquittal at the close of the state’s case-in-
chief did not preserve for appellate review his challenge to the verdict
as against the weight of the evidence, and moreover, only the judge
who presided over the trial where the verdict was returned was legally
competent to decide whether that verdict was against the weight of the
evidence, and because the defendant here failed to file a postverdict
motion for a new trial, the trial court was not asked to reweigh the
jury’s credibility determinations or to make findings regarding the evi-
dence and, consequently, this court could not determine from the record
whether the trial court abused its discretion because that court was
never called upon to exercise its discretion.
Argued April 19—officially released August 22, 2017
Procedural History
Substitute information charging the defendant with
the crimes of stealing a firearm, criminal possession of
a pistol, possession of narcotics within 1500 feet of a
school and risk of injury to a child, brought to the
Superior Court in the judicial district of Fairfield and
tried to the jury before Dennis, J.; verdict and judgment
of guilty of criminal possession of a pistol and risk of
injury to a child, from which the defendant appealed
to this court. Affirmed.
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were Jonathan M. Sousa,
former special deputy assistant state’s attorney, John
C. Smriga, state’s attorney, and Nicholas J. Bove, Jr.,
senior assistant state’s attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Luis Xavier Soto, appeals
from the judgment of conviction rendered after a jury
trial of one count of criminal possession of a pistol in
violation of General Statutes § 53a-217c (a) (1) and one
count of risk of injury to a child in violation of General
Statutes § 53-21 (a) (1). The defendant’s sole claim on
appeal is that this court should remand the case for a
new trial because the jury’s verdict was against the
weight of the evidence. We decline to review the defen-
dant’s claim because it is unpreserved and not entitled
to review under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989). Accordingly, we affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. On June 11, 2014, at approximately 5 a.m., police
officers with the Statewide Urban Violence Cooperative
Crime Control Task Force (task force) executed a
search warrant on the second floor apartment at 217
Hough Avenue in Bridgeport. The task force had
obtained the warrant on the basis of a confidential
informant’s tip that Francisco Pineiro, the defendant’s
cousin, was in possession of a black semiautomatic
handgun. When the task force officers applied for the
warrant, they believed that, in addition to Pineiro, Chris-
tina Jimenez and her two children resided at the
apartment.
Upon entering the apartment, task force officers
encountered Pineiro, Jimenez, two children aged ten
and five, and the defendant. Some of the task force
officers detained the apartment’s occupants in the
kitchen while other officers searched the apartment.
The apartment had three bedrooms, one of which even-
tually was determined to be the defendant’s. In the
closet of that bedroom, Detective David Edwards found
a leather backpack containing a bag of cocaine, three
loose .40 caliber rounds, and a semiautomatic pistol
that was fully loaded with twelve rounds. The task force
officers eventually determined that the pistol had been
stolen several years earlier. Edwards also found the
defendant’s state identification card on a television
stand in that bedroom and some clothes hanging in the
bedroom closet.
While being detained in the kitchen, the defendant
became aware that task force officers found a pistol in
the bedroom. At that point, Officer Ilidio Pereira, who
was detaining the apartment’s occupants in the kitchen,
overheard the defendant ask Pineiro in Spanish, ‘‘quie´n
va a tomar,’’ which means ‘‘who’s going to take it.’’
After recovering the pistol, Edwards questioned
Pineiro, Jimenez, and the defendant about the pistol.
Both Pineiro and Jimenez denied possession and knowl-
edge of the pistol. Additionally, Jimenez was ‘‘genuinely
concerned and shocked’’ about the pistol’s presence in
the apartment and ‘‘placed the blame’’ on the defendant
for the pistol. The defendant, who was a convicted
felon, stated that the pistol was not his, that he had
never seen it before, and that he did not know to whom
it belonged. The defendant did indicate, however, that
he was staying in that bedroom, that the clothes hanging
in the closet belonged to him, and that he had been ‘‘in
and out of the closet multiple times.’’
As a result of the search and questioning of the apart-
ment’s occupants, task force officers arrested the defen-
dant on several gun and drug offenses. The state
charged the defendant with stealing a firearm in viola-
tion of General Statutes § 53a-212 (a), criminal posses-
sion of a pistol in violation of § 53a-217c (a) (1),
possession of a controlled substance within 1500 feet
of a school in violation of General Statutes § 21a-279
(b), and risk of injury to a child in violation of § 53-21
(a) (1). The defendant elected a jury trial.
At trial, the state sought to establish that the defen-
dant constructively possessed the pistol, ammunition,
and cocaine seized from Pineiro’s apartment. Specifi-
cally, it sought to link the defendant to those items with
statements he had made to Pineiro and to task force
officers at Pineiro’s apartment. The defendant’s state-
ments were introduced through the testimony of several
task force officers who had participated in executing
the warrant at Pineiro’s apartment. In particular, those
officers testified that the defendant asked Pineiro
‘‘who’s going to take it’’ in reference to the pistol, that
he indicated that he was staying in the bedroom in
which the items were found, that he stated that the
clothes hanging in the closet belonged to him, and that
he admitted that he had been ‘‘in and out of the closet
multiple times.’’
In an effort to refute the officers’ testimony with his
own version of the events as to what had transpired at
Pineiro’s apartment, the defendant testified on his own
behalf. The defendant’s decision to do so rendered this
case, in large part, a credibility contest between the
defendant and the task force officers. The thrust of
the defendant’s testimony was a blanket denial of the
inculpatory statements the task force officers alleged
he had made, including his asking Pineiro ‘‘who’s going
to take it’’ with respect to the pistol that the officers
had discovered.
Furthermore, the defendant denied that the officers
asked him whether he had been staying in the bedroom
in which the pistol was found, whether the backpack
in which the pistol was stored belonged to him, whether
the cocaine stored in the backpack belonged to him,
and whether the clothes in the bedroom belonged to
him. According to the defendant, the only question the
officers asked him was if the gun belonged to him. The
defendant testified that, in response to that question,
he stated ‘‘that’s not my gun, I never saw it.’’
The jury found the defendant guilty of criminal pos-
session of a pistol and risk of injury to a child, but
not guilty of stealing a firearm and possession of a
controlled substance within 1500 feet of a school. After
the jury returned its verdict, the defendant did not file
any postverdict motions challenging the verdict, such
as a motion for a judgment of acquittal,1 a motion to
set aside the verdict, or a motion for a new trial. The
court sentenced the defendant to twelve years incarcer-
ation, two years of which were mandatory. This
appeal followed.
The defendant’s sole claim on appeal is that this court
should order a new trial because the jury’s verdict was
against the weight of the evidence presented at trial.
He argues that the ‘‘[s]tate’s case against [him] was
inherently weak.’’ Specifically, the defendant contends
that the evidentiary basis supporting the state’s theory
of constructive possession was a ‘‘paltry foundation’’
because it essentially consisted of a single piece of
evidence—proof that the defendant had asked Pineiro
‘‘who’s going to take it’’ in reference to the pistol found
by police. At trial, the state had asked the jury to infer
from the defendant’s asking of that question that he
knew about the pistol’s presence and incriminating
nature.
The defendant argues that he undermined this ‘‘paltry
[evidentiary] foundation’’ by denying, during his testi-
mony at trial, that he asked Pineiro ‘‘who’s going to
take it.’’ Furthermore, even if the jury believed that the
defendant asked Pineiro that question, the defendant
contends that the question is not necessarily inculpa-
tory in nature. Thus, according to the defendant, ‘‘to
have a conviction rest on the foundation of four words
. . . [testified to] by a police officer and denied by a
defendant creates too great a risk of wrongful con-
viction.’’
The defendant also acknowledges that his failure to
move to set aside the verdict and for a new trial raises
an issue as to whether his claim is preserved and review-
able. The defendant argues, nevertheless, that his claim
is preserved because he filed a motion for a judgment
of acquittal at the close of the state’s case-in-chief. He
further argues in the alternative that even if his claim
is unpreserved, Golding review is appropriate.
The state’s principal response is that the defendant’s
claim is unpreserved and unreviewable because ‘‘the
defendant never moved to set aside the jury’s verdict.’’
In particular, it argues that a reviewing court cannot
consider an unpreserved weight of the evidence claim
because it has not had, like the trial court, ‘‘the same
opportunity as the jury to view the witnesses, to assess
their credibility and to determine the weight that should
be given to their evidence.’’ (Internal quotation marks
omitted.) Furthermore, the state contends that the
defendant is not entitled to Golding review because the
record is inadequate to review his claim in the absence
of any findings by the trial court.2 Because we agree
with the state that the defendant’s claim is unpreserved
and not entitled to Golding review, we decline to
review it.
We begin our analysis of the defendant’s claim with
a review of the legal principles governing claims chal-
lenging a verdict as against the weight of the evidence.
At the outset, we note that a challenge to the weight
of the evidence is not the same as a challenge to the
sufficiency of the evidence. A sufficiency claim ‘‘dis-
pute[s] that the state presented sufficient evidence, if
found credible by the jury, to sustain [the defendant’s]
conviction.’’ State v. Hammond, 221 Conn. 264, 267,
604 A.2d 793 (1992), overruled on other grounds by
State v. Ortiz, 280 Conn. 686, 720 n.19 and 722 n.22,
911 A.2d 1055 (2006). In contrast, a weight claim ‘‘does
not contend that the state’s evidence . . . was insuffi-
cient, as a matter of law, to establish the defendant’s
guilt beyond a reasonable doubt. . . . Rather, [it]
asserts that the state’s case . . . was so flimsy as to
raise a substantial question regarding the reliability of
the verdict [and that there was a] serious danger that
[the defendant] was wrongly convicted.’’ (Footnotes
omitted.) State v. Griffin, 253 Conn. 195, 200, 749 A.2d
1192 (2000).
Sufficiency claims and weight claims also differ with
respect to the remedy they afford. ‘‘A reversal based
on the insufficiency of the evidence . . . means that
no rational factfinder could have voted to convict the
defendant.’’ Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct.
2211, 72 L. Ed. 2d 652 (1982). Thus, a defendant con-
victed on the basis of insufficient evidence is entitled
to a judgment of acquittal. State v. Calabrese, 279 Conn.
393, 401, 902 A.2d 1044 (2006). On the other hand, a
reversal based on the weight of the evidence ‘‘does not
mean that acquittal was the only proper verdict. . . .
[Such a] reversal . . . can occur only after the State
both has presented sufficient evidence to support [a]
conviction and has persuaded the jury to convict. [This
type of] reversal simply affords the defendant a second
opportunity to seek a favorable judgment.’’ Tibbs v.
Florida, supra, 42–43. Accordingly, ‘‘the proper remedy
for a successful challenge to a jury’s verdict on weight
of the evidence grounds is a new trial rather than a
judgment of acquittal . . . .’’ Sinchak v. Commis-
sioner of Correction, 173 Conn. App. 352, 362,
A.3d (2017).
Given that these two types of claims raise fundamen-
tally different issues, the inquiry appropriately under-
taken by a court ruling on a sufficiency of the evidence
claim differs substantially from that of a court ruling
on a weight of the evidence claim. In reviewing the
sufficiency of the evidence, a court considers whether
there is a reasonable view of the evidence that would
support a guilty verdict. E.g., State v. Calabrese, supra,
279 Conn. 402 (‘‘[court] construe[s] the evidence in the
light most favorable to sustaining the verdict’’ [internal
quotation marks omitted]); see also State v. Gemmell,
151 Conn. App. 590, 612, 94 A.3d 1253 (trial court ruling
on motion for judgment of acquittal made pursuant
to Practice Book § 42-40 applies sufficiency standard),
cert. denied, 314 Conn. 915, 100 A.3d 405 (2014). In
doing so, the court does ‘‘not sit as a thirteenth juror
who may cast a vote against the verdict based upon
our feeling that some doubt of guilt is shown by the
cold printed record. . . . [It] cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict.’’ (Internal quotation
marks omitted.) State v. Morgan, 274 Conn. 790, 800,
877 A.2d 739 (2005). Thus, a court ‘‘will not reweigh
the evidence or resolve questions of credibility in
determining whether the evidence was sufficient.’’ State
v. Lekosky, 41 Conn. App. 746, 747, 677 A.2d 489 (1996).
In contrast, a court determining if the verdict is
against the weight of the evidence does precisely what
a court ruling on a sufficiency claim ought not to do.
That is, the court ‘‘must do just what every juror ought
to do in arriving at a verdict. The juror must use all
his experience, his knowledge of human nature, his
knowledge of human events, past and present, his
knowledge of the motives which influence and control
human action, and test the evidence in the case
according to such knowledge and render his verdict
accordingly. . . . The trial judge in considering the ver-
dict must do the same . . . and if, in the exercise of
all his knowledge from this source, he finds the verdict
to be so clearly against the weight of the evidence in
the case as to indicate that the jury did not correctly
apply the law to the facts in evidence in the case, or
were governed by ignorance, prejudice, corruption or
partiality, then it is his duty to set aside that verdict
and to grant a new trial.’’ (Emphasis added; internal
quotation marks omitted.) Sinchak v. Commissioner
of Correction, supra, 173 Conn. App. 368–69. In other
words, the court specifically is required to act as a
‘‘thirteenth juror’’ because it must independently
‘‘assess [the] credibility [of witnesses]’’ and ‘‘determine
the weight that should be given to . . . evidence.’’
(Internal quotation marks omitted.) State v. Griffin,
supra, 253 Conn. 201–202.
Thus, because a court is required to independently
assess credibility and assign weight to evidence, a
weight of the evidence claim necessarily raises the issue
of which courts are competent to perform those tasks.
It is well settled that ‘‘only the judge who presided over
the trial where a challenged verdict was returned is
legally competent to decide if that verdict was against
the weight of the evidence . . . .’’ (Emphasis added.)
Sinchak v. Commissioner of Correction, supra, 173
Conn. App. 362. Consequently, ‘‘a judge in a later pro-
ceeding, such as a direct appeal or a habeas corpus
proceeding, is not legally competent to decide such a
claim on the basis of the cold printed record before it.’’
(Emphasis added.) Id. The rationale behind this rule is
sound: ‘‘[T]he trial court is uniquely situated to entertain
a motion to set aside a verdict as against the weight of
the evidence because, unlike an appellate court, the
trial [court] has had the same opportunity as the jury
to view the witnesses, to assess their credibility and
to determine the weight that should be given to their
evidence. . . . [T]he trial judge can gauge the tenor of
the trial, as [an appellate court], on the written record,
cannot, and can detect those factors, if any, that could
improperly have influenced the jury.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Griffin,
supra, 253 Conn. 201–202; see also id., 202 (‘‘[o]nly the
trial judge [i]s in a position to evaluate . . . testimony,
along with the other relevant evidence, to make . . .
a determination [of whether the verdict is against the
weight of the evidence]’’).
The rule that the trial judge is the only authority
competent to rule upon weight claims has obvious
implications for appellate review of such claims. Our
Supreme Court previously has refused to review a claim
challenging the jury’s verdict as against the weight of
the evidence because it was made for the first time on
appeal. State v. Griffin, supra, 253 Conn. 202.
In reviewing the facts underlying Griffin, we note
that they are analogous to the present case in two
important ways. First, like the defendant in the present
case, the defendant in Griffin moved for a judgment
of acquittal after the state rested but did not file a
postverdict motion to set aside or motion for a new
trial. Id., 200 n.8. Second, the specific claim in Griffin
was that ‘‘the testimony of the state’s key witness . . .
was not believable’’; id., 202; and, therefore, like the
defendant’s claim in the present case, principally chal-
lenged the jury’s credibility determinations.
In declining to review the unpreserved weight claim
in Griffin, our Supreme Court stated that it could not
‘‘[o]n a cold record . . . meaningfully assess . . .
[the] credibility [of the state’s key witness] to determine
whether his testimony . . . was so unworthy of belief
as to warrant a conclusion that allowing the verdict to
stand would constitute a manifest injustice. . . . Only
the trial judge was in a position to evaluate [that] testi-
mony, along with the other relevant evidence, to make
such a determination.’’3 (Citations omitted; emphasis
added.) Id.; see also Sinchak v. Commissioner of Cor-
rection, supra, 173 Conn. App. 364–72 (affirming habeas
court’s refusal to review procedurally defaulted claim
challenging weight of evidence because only trial court
is in position to determine if verdict was against weight
of evidence).
Because an appellate court cannot make an initial
ruling on a weight of the evidence claim, appellate
review of such a claim is greatly circumscribed. ‘‘Appel-
late review of a trial court’s decision granting or denying
a motion for a new trial must take into account the trial
judge’s superior opportunity to assess the proceedings
over which he or she has personally presided.’’ State
v. Hammond, supra, 221 Conn. 269. Therefore, ‘‘[t]he
proper appellate standard of review when considering
the action of a trial court granting or denying a motion
to set aside a verdict and a motion for a new trial is
the abuse of discretion standard. . . . In determining
whether there has been an abuse of discretion, every
reasonable presumption should be given in favor of the
correctness of the court’s ruling. . . . Reversal is
required only where an abuse of discretion is manifest
or where injustice appears to have been done. . . . We
do not . . . determine whether a conclusion different
from the one reached could have been reached. . . .
A verdict must stand if it is one that a jury reasonably
could have returned and the trial court has accepted.’’
(Citation omitted; internal quotation marks omitted.)
State v. Fred C., 167 Conn. App. 600, 606, 142 A.3d 1258,
cert. denied, 323 Conn. 921, 150 A.3d 1150 (2016).
Thus, if asked to review the trial court’s ruling on a
weight of the evidence claim presented to it, an appel-
late court is not to independently make credibility deter-
minations or assign weight to evidence. Furthermore,
our task is not to assess the jury’s credibility determina-
tions and assignment of weight to evidence. Rather, our
task is to review, for an abuse of discretion, the trial
court’s assessment of the jury’s credibility determina-
tions and assignment of weight to evidence. See, e.g.,
State v. Scott C., 120 Conn. App. 26, 40, 990 A.2d 1252(‘‘[When reviewing a weight claim predicated on credi-
bility determinations, the] issue presented to us . . .
is whether we should reverse the [trial] court’s finding
that the jury reasonably could have credited [the chal-
lenged] testimony. . . . [We must decide whether to]
reverse the trial court’s assessment [of the jury’s credi-
bility determinations].’’ [Emphasis added.]), cert.
denied, 297 Conn. 913, 995 A.2d 956 (2010).
Having set forth the relevant law, we now turn to the
defendant’s claim that the verdict is against the weight
of the evidence. In addition to arguing the claim’s mer-
its, the defendant also contends that the claim is pre-
served and reviewable. We disagree in light of our
Supreme Court’s decision in Griffin, which we con-
clude controls the present case. See State v. Griffin,
supra, 253 Conn. 201–202. Griffin teaches that a defen-
dant cannot obtain appellate review of his weight of the
evidence claim unless it was preserved at trial. Under
Griffin, moving for a judgment of acquittal at the close
of the state’s case-in-chief does not preserve a weight
claim. Accordingly, we conclude that the defendant’s
filing of a motion for a judgment of acquittal4 did not
preserve his claim.
Notwithstanding our Supreme Court’s holding in
Griffin that unpreserved weight of the evidence claims
are unreviewable, the defendant cites three cases that
purportedly permit our review of such claims. We are
unpersuaded by the defendant’s reliance on these cases.
The defendant first contends that State v. Avcollie,
178 Conn. 450, 423 A.2d 118 (1979), cert. denied, 444
U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), stands
for the proposition that we can review, for error, the
trial court’s failure to sua sponte set aside the verdict.
In particular, he relies on certain language from Avcollie
in isolation, namely, the court’s remark that the ‘‘trial
court has inherent power to set aside the verdict, even
though no motion has been made.’’ (Internal quotation
marks omitted.) Id., 455. When read as a whole, how-
ever, Avcollie does not support the defendant’s position
because it did not involve an unpreserved weight of
the evidence claim. Id., 454–55. Rather, it involved a
sufficiency claim that was raised at trial in a motion
to set aside the verdict. Id., 454–55, 459; see also id.,
471 n.5 (‘‘the sole issue in this appeal was whether the
evidence before the jury was sufficient to support [its]
verdict’’ [emphasis added]).
The second case on which the defendant relies is
State v. Franklin, 162 Conn. App. 78, 129 A.3d 770(2015), cert. denied, 321 Conn. 905, 138 A.3d 281 (2016).
On appeal to this court, the defendant in Franklin pre-
sented separate sufficiency and weight claims that were
‘‘substantively identical’’ because they both revolved
around whether the jury should have believed a particu-
lar witness. Id., 81, 93–94. We first rejected the suffi-
ciency claim on its merits, concluding that we could
not second-guess the jury’s credibility determinations.
Id., 85–87. Turning to the weight of the evidence claim,
we noted that, although ‘‘the defendant did not preserve
this [claim] by moving for a new trial’’; id., 93; he
requested Golding review. Id. We apparently assumed,
without deciding, that the defendant’s weight claim sat-
isfied Golding’s reviewability prongs. Id. Then, we
noted that ‘‘we [were] aware of no reason that prohib-
ited the jury from crediting [the witness’s] testimony.’’
Id., 94. Therefore, we simply rejected the weight claim
on the same grounds that we rejected the sufficiency
claim, namely, that we on appeal declined to second
guess the credibility determination made by the jury.
Id., 93–94.
We do not read Franklin as requiring us to review
an unpreserved claim challenging a verdict as against
the weight of the evidence, nor does it foreclose our
consideration of whether the reviewability prongs of
Golding can be satisfied when such a claim is made.
Rather, Franklin presented a unique situation where
‘‘substantively identical’’ weight and sufficiency claims
were made. In avoiding adjudicating the issue of
whether Golding review was appropriate, we simply
resolved the defendant’s claim by relying on our analy-
sis of the defendant’s sufficiency claim. The sufficiency
claim, like the weight claim, essentially amounted to
no more than an attack on the jury’s credibility determi-
nations, and we cannot second-guess such credibility
determinations when reviewing either type of claim.
State v. Carlos C., 165 Conn. App. 195, 200, 138 A.3d
1090, cert. denied, 322 Conn. 906, 140 A.3d 977 (2016);
State v. Scott C., supra, 120 Conn. App. 40.
The third case on which the defendant relies is Tibbs
v. Florida, supra, 457 U.S. 31. In Tibbs, a state appellate
court set aside a verdict after performing its own
reweighing of the evidence and reassessment of credi-
bility. Id., 35–39, 42–43, 46–47. Tibbs is inapposite
because a state rule of practice required the appellate
court to perform its own reweighing of the evidence in
any appeal in which the defendant had been sentenced
to death. Id., 36 n.8 (rule provided that ‘‘[u]pon an appeal
from the judgment by a defendant who has been sen-
tenced to death the appellate court shall review the
evidence to determine if the interests of justice require
a new trial’’ [emphasis added]). The parties have not
identified any comparable rule of practice that requires
or permits this state’s appellate courts to perform such
a review.
Our analysis does not end with concluding that the
defendant’s claim is unpreserved because the defendant
also requests Golding review. As previously explained,
although Griffin stands for the proposition that unpre-
served weight of the evidence claims are unreviewable,
Griffin did not address Golding’s applicability to such
claims. The defendant argues that his claim satisfies all
four Golding prongs, and the state counters that his
claim fails Golding’s first two prongs, which concern
reviewability. See, e.g., State v. Gordon, 69 Conn. App.
691, 695, 796 A.2d 1238 (2002). We agree with the state
that the defendant’s claim is not entitled to Golding
review because it fails Golding’s first prong.
‘‘Under Golding, as modified in In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015), a defendant can
prevail on a claim of constitutional error not preserved
at trial only if all of the 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 fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Mitchell, 170 Conn. App. 317, 322, 154 A.3d 528,
cert. denied, 325 Conn. 902, 157 A.3d 1146 (2017). ‘‘The
first two prongs of Golding address the reviewability
of the claim, and the last two involve the merits of the
claim.’’ State v. Gordon, supra, 69 Conn. App. 695.
‘‘[T]he inability to meet any one prong requires a
determination that the defendant’s claim must fail.’’
State v. Ricketts, 37 Conn. App. 749, 761, 659 A.2d 188,
cert. denied, 234 Conn. 913, 660 A.2d 355, cert. denied,
516 U.S. 977, 116 S. Ct. 481, 133 L. Ed. 2d. 409 (1995).
‘‘The appellate tribunal is free, therefore, to respond to
the defendant’s claim by focusing on whichever condi-
tion is most relevant in the particular circumstances.’’
(Internal quotation marks omitted.) State v. Gordon,
supra, 69 Conn. App. 695.
Turning to the application of Golding’s first prong to
the present case, we conclude that the defendant has
not provided a record that is adequate to review his
claim challenging the verdict as against the weight of
the evidence.
We have explained throughout this opinion that the
defining characteristic of a weight claim is that ‘‘only
the judge who presided over the trial where a challenged
verdict was returned is legally competent to decide if
that verdict was against the weight of the evidence
. . . . [A court] in a later proceeding, such as a direct
appeal or a habeas corpus proceeding, is not legally
competent to decide such a claim on the basis of the
cold printed record before it.’’ Sinchak v. Commis-
sioner of Correction, supra, 173 Conn. App. 362.
A weight claim predicated on a challenge to the jury’s
credibility determinations, which is the type of claim
the defendant presents in this appeal, requires the trial
court to make its own assessment of the jury’s credibil-
ity determinations. See State v. Griffin, supra, 253
Conn. 201–202. In other words, it is called upon to act
as a ‘‘thirteenth juror’’ and ‘‘do just what every juror
ought to do in arriving at a verdict.’’ (Emphasis added;
internal quotation marks omitted.) Sinchak v. Commis-
sioner of Correction, supra, 173 Conn. App. 368.
Accordingly, when an appellate court reviews this type
of claim, ‘‘[t]he issue presented to [it] . . . is whether
[it] should reverse the [trial] court’s finding that the
jury reasonably could have credited [the challenged]
testimony. . . . [It must decide whether to] reverse the
trial court’s assessment [of the jury’s credibility deter-
minations].’’ (Emphasis added.) State v. Scott C., supra,
120 Conn. App. 39–40.
In the present case, the defendant never asked the
trial court to set aside the verdict on the ground that it
was against the weight of the evidence. The defendant’s
appellate claim challenging the jury’s credibility deter-
minations was never ruled upon by the trial court and,
therefore, is presented to this court for the first time
on appeal. Given that the trial court is the only authority
competent to assess the jury’s credibility determina-
tions, we cannot, on appeal, stand in its stead and make
such an intricate assessment ourselves on the cold
printed record alone.
Indeed, the scope of our review is limited to evaluat-
ing, for an abuse of discretion, the trial court’s findings
regarding its assessment of the jury’s credibility deter-
minations. Since those findings were not made in the
present case, there is nothing for us to review, and we
are without a basis for determining whether the trial
court abused a discretion that it was never called upon
to exercise. See, e.g., State v. Padua, 73 Conn. App.
386, 413, 808 A.2d 361 (2002) (‘‘Had the issue been raised
properly by motion, the trial court could have been
alerted to what this defendant has raised for the first
time on appeal. . . . If in fact the trial court acted upon
a motion presented to it, it could have articulated the
reasons why it so denied the relief sought. . . . [Thus]
there is no adequate record for review nor is there a
basis for determining that there was an abuse of a
discretion which the court was never called upon to
exercise.’’), rev’d in part on other grounds, 273 Conn.
138, 869 A.2d 192 (2005); see also State v. Brunetti, 279
Conn. 39, 63, 901 A.2d 1 (2006) (‘‘[This court’s] role is
not to guess at possibilities . . . but to review claims
based on a complete factual record developed by a
trial court. . . . Without the necessary factual and legal
conclusions furnished by the trial court . . . any deci-
sion made by us respecting [the defendant’s claims]
would be entirely speculative.’’ [Internal quotation
marks omitted.]), cert. denied, 549 U.S. 1212, 127 S. Ct.
1328, 167 L. Ed. 2d 85 (2007).
Accordingly, we conclude that the defendant’s unpre-
served claim is not entitled to Golding review because
the record is inadequate for review.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant did move for a judgment of acquittal after the state had
rested. He did not, however, renew that motion after the jury returned
its verdict.
2
The state also argues that the defendant’s claim challenging the verdict
as against the weight of the evidence also fails under Golding’s second
prong because it is not of constitutional magnitude. Because we conclude
that the record is inadequate, we need not reach this issue.
3
The parties in Griffin did not brief the issue of whether an unpreserved
claim challenging a verdict as against the weight of evidence is reviewable
under Golding. Thus, the court in Griffin had no occasion to address the
applicability of Golding to such a claim.
4
Our Supreme Court has noted that a defendant properly preserves a
claim challenging the verdict as against the weight of the evidence by raising
it in ‘‘a motion to set aside the verdict as against the weight of the evidence.’’
State v. Griffin, supra, 253 Conn. 201–202. This court has noted that such
a claim is preserved by raising it in a motion for a new trial made pursuant
to Practice Book § 42-53. State v. Franklin, 162 Conn. App. 78, 93, 129 A.3d
770 (2015), cert. denied, 321 Conn. 905, 138 A.3d 281 (2016). We do not
believe this difference in nomenclature is consequential for purposes of
preservation. See, e.g., State v. Taylor, 196 Conn. 225, 228 n.3, 492 A.2d 155(1985) (‘‘Practice Book § [42-53] . . . replace[d] the motion to set aside a
verdict with a motion for a new trial’’); State v. Henton, 50 Conn. App. 521,
523 n.1, 720 A.2d 517 (‘‘[a]lthough the defendant entitled [his motion] a
motion to set aside the verdict, the trial court treated it as a motion for
a new trial pursuant to Practice Book § 42-53’’ [internal quotation marks
omitted]), cert. denied, 247 Conn. 945, 723 A.2d 322 (1998). In any event,
the defendant’s claim in the present case is not preserved because it was
not raised in either a motion to set aside or a motion for a new trial.