State v. Tony O. ( 2022 )

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STATE OF CONNECTICUT v. TONY O.*
(AC 43250)
Moll, Suarez and Sheldon, Js.
Syllabus
Convicted, after a jury trial, of various crimes in connection with an alterca-
tion with his wife, W, the defendant appealed to this court. The defendant
had gone to the gas station where W was employed to obtain from her
the keys to his truck so that he could get tools he needed for work that
were stored in the truck. When he walked around the front counter
toward W and reached toward her handbag that was on a counter behind
her, she pushed him away, and a physical encounter ensued between
them during which she sustained injuries and thereafter was treated at
a hospital. S, a customer at the store, witnessed part of the altercation
and attempted to break it up. W told a police officer, who arrived minutes
after the defendant left the gas station, that the defendant had attacked
her. At trial, the police officer testified to that statement, and the defen-
dant objected. The trial court overruled the objection and admitted the
statement into evidence as a spontaneous utterance under the applicable
provision (§ 8-3 (2)) of the Connecticut Code of Evidence. On appeal,
the defendant claimed, inter alia, that the evidence was insufficient to
support his conviction of the charges of robbery and unlawful restraint,
and that the trial court improperly admitted W’s statement to the police
officer. Held:
1. Although the evidence was sufficient to support the defendant’s conviction
of unlawful restraint in the first degree, there was insufficient evidence
to support the jury’s necessary finding that he seized W’s handbag in
the course of committing a larceny, as required to convict him of robbery
in the third degree:
a. The jury had no reasonable basis for finding that the defendant’s brief
taking of the handbag was accompanied by a felonious intent to steal
and deprive W of it permanently: although the jury was entitled to reject
the defendant’s testimony that his only purpose in seizing the handbag
was to search it for the keys to the truck, the jury was not entitled to
draw the contrary inference that his intent was to steal the handbag, as
the record provided no nonspeculative basis for that inference; moreover,
the jury could not infer the defendant’s intent because W began to struggle
with him as soon as he reached for the handbag, as her strong resistance
delayed his seizure of the handbag, which he held on to for only eight
seconds before dropping it to the floor, and, although whatever the
defendant intended when he first picked up the handbag appeared to
change once S struck him in the back and told him that the police were
on their way to the station, that inference shed no light on the intent
with which he initially took possession of the handbag, as his interest
in leaving the scene before the police arrived did not support an inference
that he initially took the handbag with the intent to steal it from W;
furthermore, the only positive evidence from which the jury might have
drawn an inference as to the defendant’s intent when he seized the
handbag was the video footage of the incident from the station’s surveil-
lance cameras, which showed that his actions during the incident were
consistent with his testimony that his only purpose in coming to the gas
station was to get his truck keys from W.
b. There was more than enough evidence to support the jury’s findings
beyond a reasonable doubt that the defendant restrained W during their
physical altercation and exposed her to a substantial risk of physical
injury: W stated to the police officer that the defendant had attacked or
assaulted her, she told the staff at the hospital that he had punched her
and caused her to fall into a chair, where he kneed her and kicked her
in the head, and the video footage from the station’s surveillance cameras
corroborated S’s testimony that, after W was seated in the chair, he
continued to lean over her and strike her, which caused her to remain
in the chair when she attempted to get up, and it would have been
reasonable for the jury to conclude that the defendant engaged in such
conduct with the specific intent to interfere substantially with W’s liberty;
moreover, notwithstanding the defendant’s suggestion that W restrained
him as much as he restrained her, the jury reasonably could have con-
cluded that she was restricted in her movements in a manner that inter-
fered with her liberty, and the defendant’s admission that he assaulted
her during the incident overrode his suggestion that any restraint he
might have applied was not applied so as to expose her to a substantial
risk of physical injury, as the state presented evidence that included the
hospital record documenting her injuries, the video footage showing the
defendant’s physical struggle, and S’s account of the several times he
kneed W while she was forced to remain sitting in the chair.
2. The defendant could not prevail on his claim that the trial court improperly
admitted the police officer’s testimony about the initial oral statement
made to him by W:
a. The record clearly supported the trial court’s finding that the statement
by W to the police officer was admissible as a spontaneous utterance:
W was in distress and very emotional when she first spoke with the
officer, as she appeared to be crying, her breathing was heavy, and she
had red marks on her neck and face, she made her initial statement to
the officer roughly three minutes after the defendant released her from
his grasp and drove away, and the fact that she gave a fuller, more
detailed statement at the hospital showed that her initial statement to
the officer was spontaneous, unreflective and made under such circum-
stances as to indicate the absence of an opportunity for contrivance and
misrepresentation; moreover, on the basis of the defendant’s unqualified
admission of the assault and the overwhelming evidence that confirmed
that admission, any error by the trial court in admitting W’s statement
as a spontaneous utterance was clearly harmless, the defendant having
failed to demonstrate that its admission substantially affected the verdict.
b. The defendant’s unpreserved claim that his right to confrontation was
violated because he never was afforded the opportunity to cross-examine
W about her statement to the police officer was unavailing: evidence of
the video footage of the altercation, the hospital records that documented
W’s physical injuries, S’s description of the assault and identification of
the defendant as the perpetrator, and the defendant’s admission of the
assault overwhelmingly supported the state’s claim that he assaulted W
during their physical altercation; moreover, W’s statement was cumula-
tive of and corroborated by that evidence, and it was not an integral
portion of the state’s case, as it was never mentioned during the state’s
closing argument to the jury.
Argued September 8, 2021—officially released March 29, 2022
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of attempt to
commit larceny in the second degree, robbery in the
third degree, unlawful restraint in the first degree,
assault in the third degree and attempt to commit lar-
ceny in the sixth degree, and, in the second part, with
being a persistent serious felony offender and a persis-
tent offender, brought to the Superior Court in the judi-
cial district of Windham, geographical area number
eleven, and tried to the jury before Chaplin, J.; verdict
and judgment of guilty of robbery in the third degree,
unlawful restraint in the first degree and assault in the
third degree, and sentence enhanced for being a persis-
tent serious felony offender and a persistent offender,
from which the defendant appealed to this court.
Reversed in part; judgment directed.
James B. Streeto, senior assistant public defender,
with whom, on the brief, was Jane L. Stream, certified
legal intern, for the appellant (defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Maureen T. Platt, state’s
attorney, and Mark Stabile, former supervisory assis-
tant state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Tony O., appeals from
the judgment of conviction, rendered against him after
a bifurcated jury trial on charges arising from a physical
altercation between himself and his wife (complainant)
at her place of work in Willimantic, on April 6, 2017.
In the first part of the trial, the jury found the defendant
guilty on three counts of a long form information charg-
ing him, respectively, with robbery in the third degree
in violation of General Statutes § 53a-136, unlawful
restraint in the first degree in violation of General Stat-
utes § 53a-95, and assault in the third degree in violation
of General Statutes § 53a-61. The jury found the defen-
dant not guilty, however, on two other counts of the
information charging him, respectively, with attempt to
commit larceny in the second degree in violation of
General Statutes §§ 53a-49 and 53a-123 (a) (2), and
attempt to commit larceny in the sixth degree in viola-
tion of General Statutes §§ 53a-49 and 53a-125b. In the
second part of the trial, the same jury found the defen-
dant guilty on both counts of a part B information charg-
ing him, respectively, with being a serious persistent
felony offender in violation of General Statutes § 53a-
40 (c), as a basis for enhancing his impending sentence
on the charge of unlawful restraint in the first degree,
and being a persistent offender of crimes involving
assault, stalking, threatening, harassment, and criminal
violation of a protective order in violation of General
Statutes § 53a-40d, as a basis for enhancing his
impending sentence on the charge of assault in the
third degree. The trial court, Chaplin, J., ultimately
sentenced the defendant to a total effective term of six
years of imprisonment followed by four years of special
parole.1 This appeal followed.
On appeal, the defendant claims that the trial court
erred in (1) failing to enter a judgment of acquittal on
the charge of robbery in the third degree because, inter
alia, there was insufficient evidence to support the
jury’s necessary finding beyond a reasonable doubt that
he seized the complainant’s handbag in the course of
their altercation with the intent to deprive her of it
permanently, as the state sought to prove in order to
establish that he committed robbery by using physical
force on her in the course of committing a larceny with
respect to the handbag, (2) failing to enter a judgment
of acquittal on the charge of unlawful restraint in the
first degree because there was insufficient evidence to
support the jury’s necessary findings beyond a reason-
able doubt that he restrained the complainant in the
course of the altercation and did so under circum-
stances that exposed her to a substantial risk of physical
injury, (3) admitting as a spontaneous utterance, over
his timely hearsay objection, evidence of the nontesti-
fying complainant’s initial oral statement to the police
accusing him of attacking her, and (4) admitting that
same initial oral statement by the complainant to the
police through the testimony of the police officer to
whom she made the statement, without affording him
the opportunity to cross-examine the complainant, in
violation of his sixth and fourteenth amendment rights
to confront the witnesses against him. We agree with
the defendant that the evidence was insufficient to sup-
port his conviction of robbery in the third degree, and
thus we reverse the judgment of conviction on that
charge and remand this case to the trial court with
direction to enter a judgment of acquittal thereon. We
disagree with the defendant, however, as to his other
claims of error, and thus affirm the judgment in all
other respects.
The jury was presented with the following evidence
on which to base its verdict in the first part of the
defendant’s trial. On the afternoon of April 6, 2017,
Officer Nicholas Sullivan of the Willimantic Police
Department was dispatched to the Valero gas station
on West Main Street in Willimantic to investigate the
report of an armed robbery at that location. Sullivan
testified that, upon arriving at the gas station at or about
3:36 p.m., he saw no evidence of an ongoing robbery but
found three women waiting for him in the convenience
store section of the station. One of the women, the
complainant, an employee of the gas station, initially
told Sullivan, who testified about her statement over
the defendant’s hearsay objection, that while she was
working at the station that afternoon, ‘‘her husband,
[the defendant], came into the store and attacked her.’’2
Sullivan testified that, when the complainant made that
initial statement to him, she was emotional and
appeared to be in distress. He recalled, more particu-
larly, that, when they first spoke, she appeared to be
crying, her breathing was heavy, her hair was a mess,
and she had red marks on her neck and face. The second
woman was identified only as the complainant’s daugh-
ter, whom other evidence would show was in the store
when a physical altercation began between her mother
and the defendant and remained in the store for a short
time thereafter before walking outside to call the
police.3 The third woman was identified as Chrimson
Strede, a regular customer of the store, who told Sulli-
van and later testified that she had witnessed part of the
altercation between the complainant and the defendant
and ultimately attempted to break it up. Strede was the
only person with whom Sullivan spoke at the gas station
on the day of the incident who later testified at trial.
Sullivan testified that, in light of the complainant’s
injuries, she was initially transported to Windham Hos-
pital, where he photographed the injuries, and she
received treatment by hospital staff. The state further
documented the complainant’s injuries by introducing
the hospital records of her treatment on the afternoon
of the incident, in which the hospital staff described
the injuries, much as Sullivan had observed them, as a
small bruise and swelling to the left side of her eye and
a subtle abrasion on the left side of her neck. The
hospital records identified the cause of the injuries, as
the complainant had reported it to hospital staff, as an
‘‘assault’’ on her by the defendant, who allegedly ‘‘came
to her job and got physical [with her].’’ The complainant
told the hospital staff, more specifically, that the defen-
dant had ‘‘punched [her] in the face,’’ causing her to
‘‘[fall] back into a chair,’’ and then ‘‘kick[ed] and knee[d]
[her] in the head.’’
Sullivan next testified about the video surveillance
system at the gas station, which continuously recorded
video footage of activity at the station from multiple
angles both inside and outside of the convenience store.
Upon returning to the gas station to conduct further
investigation after the complainant had been treated at
the hospital, Sullivan reviewed video footage of the
incident, as recorded by the video surveillance system,
and copied it onto a zip drive, from which he later made
a second copy on a hard disk that he attached to his
report. The video footage so recorded, which had no
audio component but was marked on each frame with
the time and date on which it was recorded, was initially
played for the jury in its entirety, without interruptions
by counsel or commentary by Sullivan.
The video footage, which the prosecutor would later
describe in closing argument to the jury as ‘‘98 percent
of this case,’’ depicted the following sequence of events.
At 3:31:24 p.m. on April 6, 2017, a man identified as the
defendant walked through the front door of the store,
carrying nothing. At 3:31:33 p.m., the defendant
approached the front counter of the store, which had
a cash register on it, behind which two women, identi-
fied as the complainant and her daughter, were working.
The defendant reached over to a rear counter behind
the complainant’s daughter and picked up a pink wallet
that was lying there. At 3:31:36 p.m., the defendant
turned away from the counter while opening the wallet
and looked inside it. Shortly thereafter, however, at
3:31:39 p.m., the defendant quickly closed the wallet,
turned back toward the counter, and set the wallet back
down where he had picked it up without removing
anything from it. He then walked around the front
counter toward the complainant and reached behind
her toward a brown and white handbag lying farther
down the rear counter behind her. When he did so, at
3:31:42 p.m., the complainant stood up and forcefully
pushed him away, initiating a physical altercation
between them that would last for just over one minute
before coming to an end.
Thirteen seconds into the altercation, at 3:31:55 p.m.,
the defendant finally seized the handbag for which he
had been reaching behind the complainant with his
right hand. Eight seconds later, however, at 3:32:03 p.m.,
he dropped the handbag to the floor as he and the
complainant, still struggling with each other, moved
out from behind the front counter. At that point, the
complainant’s daughter picked up a cell phone from
the rear counter and walked out of the store. Nine
seconds later, at 3:32:12 p.m., the complainant placed
the defendant in a headlock, from which he broke free
by forcing her to sit down in a nearby chair. After
the complainant was seated in the chair, the struggle
continued, with the defendant leaning over the com-
plainant while she held him with her arms and
attempted to restrain him with her legs.
The video footage also depicts that, a third woman,
later identified as Strede, drove into the gas station and
got out of her vehicle, spoke briefly with the complain-
ant’s daughter, and then entered the store at 3:32:18
p.m. After the complainant, still seated, and the defen-
dant, still leaning over her, exchanged multiple physical
blows in Strede’s presence, Strede approached them.
As she did so, at 3:32:33 p.m., the complainant pointed
down toward the handbag on the floor, and Strede
picked it up and tossed it onto the front counter by
the cash register. Immediately thereafter, Strede briefly
exited the store and spoke again to the complainant’s
daughter, who was still standing outside the front door,
while the defendant, who was still struggling with the
complainant, continued to strike her with his right knee.
Strede then reentered the store at 3:32:41 p.m., walked
directly to the defendant and shoved him as he was
kneeing the complainant at 3:32:45 p.m., then struck him
in the back at 3:32:47 p.m. At that point, the defendant
released his grasp of the complainant, stood up, and
walked out of the store without reaching again for the
handbag or taking anything else from the complainant
or the store.
On cross-examination, Sullivan testified that,
although he had been dispatched to the gas station on
the report of an armed robbery, he never found any
weapons at the gas station and was never told by anyone
that the defendant had wielded a weapon in the course
of the incident. He further testified that, to the best of
his knowledge, the defendant never took anything from
the complainant or the store in the course of the inci-
dent.
After Sullivan testified, the state called three more
witnesses in the first part of the trial. Lieutenant Paul
M. Hussey of the Willimantic Police Department testi-
fied that, as he and Officer James Salvatore were
returning from a firearms range on the day of the inci-
dent, they heard a bulletin advising them to be on the
lookout for the defendant. Because Hussey was familiar
with the defendant and knew where he lived, he and
Salvatore drove directly to the defendant’s residence.
Shortly after their arrival, a fellow officer, Corporal
Matthew Nixon, arrived there as well. When the officers
rang the defendant’s doorbell, the defendant answered
the door personally and correctly identified himself by
name. The officers then asked the defendant if he had
been at the gas station earlier that afternoon, and he
admitted that he had. According to Nixon, who also
later testified about his role in taking the defendant
into custody, the defendant was cooperative and fully
compliant with the officers throughout their interaction
with him that afternoon.
Finally, the jury heard testimony from Strede, who
confirmed that she had witnessed the latter portion of
the incident at the gas station, as shown on the video
recording. Strede further testified that she was familiar
with the complainant, who worked as a cashier in the
convenience store at the station, because she went
there almost every day to buy provisions for work
before the start of her evening shift at a local restaurant.
Strede recalled that, on the day of the incident, when she
pulled up to the gas station, she saw the complainant’s
daughter outside, ‘‘kinda panicking . . . .’’ Upon enter-
ing the store, Strede saw the complainant seated in a
chair, with a handbag on the floor near her and a man
Strede recognized as the defendant leaning over the
complainant and hitting her. Strede knew the defendant
because they had previously attended the same ‘‘AA
meetings’’ in town.
Strede was then questioned about what she observed
during the incident while the video footage of the inci-
dent was replayed for the jury. Strede first viewed video
footage showing her approaching the complainant as
she sat in a chair, struggling with the defendant, who
was leaning over her. When the video showed the com-
plainant pointing to the handbag on the floor and Strede
picking it up and tossing it onto the counter by the cash
register, Strede recounted that that had happened as
‘‘[the defendant] was mentioning something about keys,
and [the complainant] was telling me to grab her purse.
And I seen her purse on the floor.’’ Strede was then
shown video footage of her exiting the store and talking
briefly with the complainant’s daughter before reenter-
ing the store, approaching the parties, and striking the
defendant in the back. Strede explained that she left
the store at that time to ask the complainant’s daughter
to call the police. When the complainant’s daughter told
her that she had already done so, Strede decided to
reenter the store to try to stop the altercation herself
before the police arrived by telling the defendant that
the police had been called and were on their way to
the gas station. She recalled that seconds after she so
informed the defendant and struck him in the back, he
released the complainant from his grasp, stood up, and
walked out of the store, empty-handed. On cross-exami-
nation, Strede testified that she knew the defendant
had come to the store that day to get some keys, but
she did not know which particular keys he was there for.
At the conclusion of Strede’s testimony, the state
rested without calling either the complainant or her
daughter to testify, whereupon the defendant moved
for a judgment of acquittal on all charges except assault
in the third degree. The court denied the motion.
The next day, the jury heard testimony from the
defendant, who was the only witness called by the
defense. He began his testimony by stating that, in 2010,
he had been convicted of three felonies. Thereafter,
concerning the present incident, the defendant testified
that in April, 2017, he was working at a homeless shelter
in Willimantic, where his duties included attending to
the needs of the guests and making repairs, as needed,
around the shelter. Prior to the incident, the defendant
said, he had lent one of his vehicles, a truck, to the
complainant because her car had recently broken down.
The defendant kept the tools he used for making repairs
at the shelter in the truck that he had lent to the com-
plainant. On April 3, 2017, however, before the com-
plainant returned the borrowed truck to the defendant,
she called him to tell him that ‘‘she wasn’t coming
home.’’ In response to this declaration, the defendant
testified that, ‘‘I didn’t question the reason why. I kinda
like just said okay, when you figure out what you’re
going to do, then you can let me know.’’ Three days
later, however, upon returning home from work on
April 6, 2017, seeing that the truck he had let the com-
plainant use was still gone and realizing that he needed
the tools stored in the truck for work, he called the
complainant in an effort to get them back. Because, he
explained, the complainant did not return his calls, he
‘‘just went to the gas station to retrieve [his] keys.’’
The defendant testified that, as he walked into the
store that afternoon, he asked the complainant about
the keys, but she told him that she was not going to
give them back to him. This response, he admitted,
led to an argument between him and the complainant,
during which he physically assaulted her. The defendant
denied, however, that he went to the gas station that
day intending to assault the complainant or to rob her
or steal anything from her. Instead, denying repeated
suggestions by the prosecutor to the contrary, the
defendant insisted that his only purpose in going to the
gas station that day was to get his truck keys from
the complainant so that he could retrieve the tools he
needed for work from the truck she had borrowed but
not yet returned. Additional facts will be set forth as
necessary.
I
THE DEFENDANT’S EVIDENTIARY
INSUFFICIENCY CLAIMS
The defendant claims on appeal that the trial court
erred in failing to enter judgments of acquittal on the
charges of robbery in the third degree and unlawful
restraint in the first degree because the evidence at
trial was insufficient to prove each essential element
of either charge beyond a reasonable doubt. Because
both claims are governed by the same standard of
review, we will first set forth that standard.
‘‘In [a defendant’s] challenge to the sufficiency of the
evidence . . . [w]hether we review the findings of a
trial court or the verdict of a jury, our underlying task
is the same. . . . We first review the evidence pre-
sented at trial, construing it in the light most favorable
to sustaining the facts expressly found by the trial court
or impliedly found by the jury. We then decide whether,
upon the facts thus established and the inferences rea-
sonably drawn therefrom, the trial court or the jury
could reasonably have concluded that the cumulative
effect of the evidence established the defendant’s guilt
beyond a reasonable doubt. . . . [W]e give great defer-
ence to the findings of the trial court because of its
function to weigh and interpret the evidence before it
and to pass upon the credibility of witnesses.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Adams, 327 Conn. 297, 304–305, 173 A.3d 943 (2017).
‘‘[T]he jury must find every element proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not
be proved beyond a reasonable doubt. . . . An appel-
late court defers to the jury’s assessment of the credibil-
ity of witnesses on the basis of their firsthand observa-
tion of their conduct.’’ (Citation omitted; internal
quotation marks omitted.) State v. Thorne, 204 Conn.
App. 249, 256–57, 253 A.3d 1021, cert. denied, 336 Conn.
953, 251 A.3d 993 (2021).
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [trier’s] verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Adams, supra, 327 Conn. 305. If we
determine that the evidence is insufficient to support
the guilty verdict and ultimate conviction, then the
defendant is entitled to a judgment of acquittal. See
State v. Quintiliano, 206 Conn. App. 712, 720, 261 A.3d
31, cert. denied, 339 Conn. 918, 262 A.3d 136 (2021).
A
Robbery in the Third Degree
The defendant first argues that the evidence was
insufficient to convict him of robbery in the third degree
in violation of § 53a-136. Section 53a-136 provides that
‘‘[a] person is guilty of robbery in the third degree when
he commits robbery as defined in [General Statutes §]
53a-133.’’ Section 53a-133, in turn, provides in relevant
part: ‘‘A person commits robbery when, in the course
of committing a larceny, he uses . . . physical force
upon another person for the purpose of: (1) . . . over-
coming resistance to the taking of the [person’s] prop-
erty. . . .’’ (Emphasis added.) Under these statutes,
which the state specified in the long form information
as its basis for charging the defendant with robbery in
the third degree, the defendant could not be convicted
of that offense without proof beyond a reasonable
doubt, inter alia, that he used physical force on another
person while engaged in the commission of a larceny.
General Statutes § 53a-119 provides in relevant part:
‘‘A person commits larceny when, with intent to
deprive another of property or to appropriate the same
to himself or a third person, he wrongfully takes, obtains
or withholds such property from an owner. . . .’’
(Emphasis added.) In light of this definition, the essen-
tial elements of larceny have been held to be ‘‘(1) the
wrongful taking or carrying away of the personal prop-
erty of another; (2) the existence of a felonious intent
in the taker to deprive the owner of [the property]
permanently; and (3) the lack of consent of the owner.’’
(Emphasis added; internal quotation marks omitted.)
State v. Adams, supra, 327 Conn. 305–306. In the present
case, where the state based its prosecution of the defen-
dant for robbery in the third degree on his brief seizure
of the complainant’s handbag in the course of their
physical altercation on April 6, 2017, the defendant chal-
lenges the sufficiency of the state’s evidence to prove
that he engaged in such conduct with the intent to
deprive the complainant permanently of the handbag.
The defendant testified that he had no such intent,
insisting that his only purpose in seizing the handbag
during his physical altercation with the complainant
was to search it for the keys to the truck he had loaned
her so that he could retrieve his work tools from inside
the truck. The state responds that the jury reasonably
could have discredited the defendant’s explanation of
his conduct, concluding to the contrary that he took
the handbag with the intent to steal it from the com-
plainant, and thus to deprive her of it permanently,
because he engaged in a prolonged physical struggle
with her to overcome her resistance to its taking and
only changed his plan once Strede informed him that
the police had been called to the scene and were on
their way.
Although it is true that the jury was entitled to reject
the defendant’s testimony as to his nonlarcenous pur-
pose in taking brief possession of the complainant’s
handbag in the course of their altercation, it is equally
true that the jury was not entitled, on that basis, to
draw the contrary inference that his intent at that time
was to steal the handbag, and thereby deprive the com-
plainant of it permanently. In State v. Alfonso, 195 Conn.
624, 490 A.2d 75 (1985), our Supreme Court stated:
‘‘While it is true that it is within the province of the
jury to accept or reject a defendant’s testimony, a jury
in rejecting such testimony cannot conclude that the
opposite is true.’’ (Internal quotation marks omitted.)
Id., 634. Instead, the court ruled that no such contrary
inference could be drawn by the jury ‘‘without positive
evidence supporting such a conclusion.’’ Id.
In Alfonso, where the defendant challenged the suffi-
ciency of the state’s evidence to prove that he knowingly
possessed marijuana found on premises where he and
several others were present at the time of its discovery
by the police, our Supreme Court examined the trial
court record for any positive evidence, based on the
defendant’s acts or statements in the surrounding cir-
cumstances, that might have supported a reasonable
inference that he had such guilty knowledge, despite
his denial, at the time of his alleged possession. See id.
Upon finding that there was no positive evidence from
which the jury reasonably could have drawn a nonspec-
ulative inference that he had such guilty knowledge at
the time of his alleged possession of the marijuana, for
the marijuana was discovered in a common area, it was
not among the defendant’s possessions, and there was
no evidence that he had smoked marijuana in the past,
and another self-incriminating statement he had made
about possessing some cocaine found elsewhere on the
premises was irrelevant to his alleged possession of
marijuana, the court reversed his conviction on that
charge. See id., 634–35.
In this case, as in Alfonso, the element of robbery in
the third degree as to which the defendant claims that
the evidence was insufficient to convict him concerns
the mental state with which he was acting at the time he
allegedly committed that offense. A defendant’s mental
state is an element that must typically be proved by
inference from the defendant’s proven words or con-
duct. See, e.g., State v. Fredrik H., 197 Conn. App. 213,
219, 231 A.3d 371 (2020) (‘‘[b]ecause direct evidence of
an accused’s state of mind typically is not available, his
intent often must be inferred from his conduct, other
circumstantial evidence and rational inferences that
may be drawn therefrom’’ (internal quotation marks
omitted)), cert. denied, 338 Conn. 906, 258 A.3d 1279(2021). Thus, the state’s ‘‘positive evidence supporting
[the] conclusion’’ that he acted with that mental state—
the intent to deprive the complainant permanently of
her handbag—must have consisted of inferences arising
either from other statements he was shown to have
made at or before the trial or from other conduct he
was shown to have engaged in before, during, or after
the incident. State v. Alfonso, supra, 195 Conn. 634.
Here, however, the jury heard no evidence of any
statements made by the defendant suggesting that he
had a different motive for taking the complainant’s
handbag during their altercation than that to which he
testified, and frequently reiterated on cross-examina-
tion, at trial. Apart from such testimony, in which he
insisted that his only purpose in coming to the gas
station that day was to get the keys to the borrowed
truck and use them to retrieve the work tools he stored
in the truck, the only other evidence of statements he
made from which any inference of intent might have
been drawn were his words, to or in the presence of
Strede as he struggled with the complainant, confirming
that he had come to the gas station that day to get his
keys. Such statements undermined the state’s claim
that he was then acting with felonious intent. No other
evidence was introduced as to any statement he had
ever made to anyone, including the complainant or her
daughter, expressing any interest on his part in the
handbag or its contents, or otherwise giving him a possi-
ble motive for stealing it from the complainant. Finally,
and tellingly, the complainant’s only descriptions of the
incident that were ever brought to the attention of the
jury were her hearsay statements to the police and
to hospital staff that the defendant had attacked or
assaulted her inside the store. These descriptions of
the defendant’s conduct during the incident, however
damning on the charges of assault and unlawful
restraint, undermined the state’s claim against him on
the charge of robbery because they made no mention
of any alleged effort or purpose on his part to steal the
handbag from the complainant in the course of the
incident.
Under these circumstances, the only positive evi-
dence from which the jury might have drawn an infer-
ence as to the defendant’s intent when he seized the
complainant’s handbag was the video footage of the
incident. What the video footage showed, however, was
at best unhelpful to the state on that issue. To begin
with, it showed that upon entering the store on the day
of the incident, the defendant did not go initially to the
complainant’s handbag, which lay on the rear counter
behind her, but to the pink wallet lying at the far end
of that counter at that time. When the defendant picked
up the wallet and began to look inside it, he was turning
away from the counter as if to head back toward the
door of the store. Almost immediately, however, he
closed the wallet without taking anything from it and
returned it to the counter where he had picked it up
before reaching behind the complainant toward her
handbag. These actions, which are consistent with the
defendant’s testimony that his only purpose in coming
to the gas station that day was to get his truck keys
from the complainant so he could retrieve his work
tools from the borrowed truck, suggested that if he had
found what he was looking for inside the wallet, he
would simply have taken it and left the store, for he
showed no apparent interest in the wallet itself or in
any of its other contents. Only after the defendant had
looked inside the wallet and returned it to the counter
without removing anything from it did he reach behind
the complainant toward the handbag. By reasonable
inference, the defendant’s search of the handbag, had
he managed to conduct it, would have proceeded in
similar fashion to his search of the wallet, with him
looking briefly inside it until he found what he was
looking for or determined that it was not there, but
no longer.
The jury could not infer the defendant’s intent from
his reach for the handbag because the complainant rose
and began to struggle with the defendant as soon as
he reached for the handbag, impeding his course. The
complainant’s strong resistance to his efforts delayed
his seizure of the handbag and ultimately prevented
him from searching it, for it took him more than twenty
seconds to seize the handbag once his struggle with
the complainant began, and he held on to it for only
eight seconds thereafter before dropping it to the floor.
Here again, with no basis in the evidence for inferring
that the defendant had any other interest in the handbag
or its contents than that to which he testified, the record
provided no nonspeculative basis for inferring that his
true purpose in seizing it was to steal it, and thus to
deprive the complainant of it permanently.
The state further argues, not without reason, that,
whatever the defendant intended when he first picked
up the handbag appeared to change once Strede struck
him in the back and told him that the police had been
called to the scene and were on their way. Although
that inference is reasonable, it sheds no light on the
intent with which the defendant initially took posses-
sion of the handbag. Even if he abandoned his struggle
with the complainant because he feared that he might
be arrested if they came to the gas station, that would
reveal nothing about the intent with which he seized
the handbag, for regardless of that intent, he had ample
reason to believe he might be arrested if the police
came to the station because he had just physically
assaulted his wife in the presence of multiple witnesses
who knew and could readily identify him. Thus, his
interest in leaving the scene before the police arrived
did not support an inference that he initially took the
handbag with the intent to steal it from the complainant
and deprive her of it permanently.
In sum, the jury had no reasonable basis in this case
for finding that the defendant’s brief taking of the com-
plainant’s handbag in the course of their physical alter-
cation was accompanied by a felonious intent to steal
it from her, and thus to deprive her of it permanently.
In the absence of positive proof that he acted with that
intent, there was insufficient evidence to support the
jury’s necessary finding that he seized the handbag in
the course of committing a larceny, as required to con-
vict him of robbery in the third degree.
B
Unlawful Restraint in the First Degree
The defendant next argues that the evidence was
insufficient to convict him of unlawful restraint in the
first degree in violation of § 53a-95. Section 53a-95 (a)
provides: ‘‘A person is guilty of unlawful restraint in
the first degree when he restrains another person under
circumstances which expose such other person to a
substantial risk of physical injury.’’ So written, § 53a-
95 requires proof beyond a reasonable doubt of two
essential elements before a defendant can be convicted
of unlawful restraint in the first degree: first, that the
defendant restrained another person; and second, that
he did so under circumstances exposing the other per-
son to a substantial risk of physical harm. The defendant
claims that the state failed to establish either such
essential element beyond a reasonable doubt.
As used in § 53a-95, the term ‘‘restrain’’ is defined
by statute to mean ‘‘to restrict a person’s movements
intentionally and unlawfully in such a manner as to
interfere substantially with his liberty by moving him
from one place to another, or by confining him either
in the place where the restriction commences or in a
place to which he has been moved, without consent.’’
General Statutes § 53a-91 (1). This element requires
proof not only that the defendant actually restricted
the complainant’s movements in such a manner as to
interfere substantially with her liberty, without her con-
sent, but that he did so intentionally, that is, with the
‘‘conscious objective’’ of causing that result. General
Statutes § 53a-3 (11). Here again, we note that,
‘‘[b]ecause direct evidence of an accused’s state of mind
typically is not available, his intent often must be
inferred from his conduct, other circumstantial evi-
dence and rational inferences that may be drawn there-
from. . . . For example, intent may be inferred from
the events leading up to, and immediately following,
the conduct in question . . . the accused’s physical
acts and the general surrounding circumstances.’’
(Internal quotation marks omitted.) State v. Fredrik H.,
supra, 197 Conn. App. 219.
A person restrains another under circumstances
exposing her to a substantial risk of physical injury
when his intentional and unlawful restriction of her
movements in the manner specified in § 53a-95 exposes
her to a substantial risk of suffering ‘‘impairment of
physical condition or pain,’’ as physical injury is defined
in § 53a-3 (3). Although a person shown to have been
restrained within the meaning of § 53a-91 (1) need not
be shown to have suffered actual physical injury as a
result of such restraint to establish this second element
of unlawful restraint in the first degree, proof that the
restraint did in fact cause her to suffer physical injury
is sufficient to establish that she was restrained under
circumstances exposing her to a substantial risk of such
injury. See State v. Jordan, 64 Conn. App. 143, 148, 781
A.2d 310 (2001) (‘‘jury finding of actual physical injury
encompasses the statutory requirement of mere expo-
sure to physical injury necessary to obtain a conviction
of unlawful restraint in the first degree’’).
In this case, the state sought to prove that the defen-
dant restricted the complainant’s movements in such
a way as to interfere substantially with her liberty during
their physical altercation on April 6, 2017, and thereby
restrained her, by forcing her down into a chair, leaning
over her, striking her repeatedly, and forcing her to
remain in the chair as their struggle continued. The
defendant disagrees, contending that the evidence fails
to show that he restrained the complainant, intention-
ally or otherwise, at any time. To the contrary, he claims,
she is the one who restrained him, for video footage
of the altercation assertedly shows that she initiated
the physical struggle between them when he first
reached for her handbag, she put him in a headlock
and held him up against a wall as they stood next to
one another and continued to struggle, and once she
was sitting in the chair, she grabbed him and held him
down with her arms and legs until the incident ended.
Claiming that the complainant both had and made use
of the opportunity to strike and to hold onto him during
the incident, the defendant argues that her movements
were essentially unrestricted by his proven conduct.
Considering the evidence in the light most favorable
to sustaining the jury’s guilty verdict, we agree with the
state that there was more than enough evidence to
support the jury’s findings beyond a reasonable doubt
that the defendant restrained the complainant during
their physical altercation on April 6, 2017, and that he
thereby exposed her to a substantial risk of physical
injury. To begin with, the complainant’s statements to
Sullivan and the hospital staff were that the defendant
had attacked or assaulted her. She further told the staff
at the hospital that the defendant had punched her and
caused her to fall into a chair, where he kneed her and
kicked her in the head. Although no witness other than
the defendant testified to what happened in the first
part of the parties’ altercation, Strede testified, and the
video corroborated her testimony, that, after the com-
plainant was seated in the chair, the defendant contin-
ued to lean over her and to strike her, causing her to
remain in the chair when she attempted to get up. This
testimony reasonably could have supported a finding
by the jury that, at least by the time the complainant
was sitting in the chair, the defendant was intentionally
preventing her from standing up and getting away from
him, thereby restricting her movements in a way that
interfered substantially with her liberty. Although the
defendant may also have had other purposes in mind
when he was restricting the complainant’s physical
movements at that time, it would have been reasonable
for the jury to conclude that he engaged in such conduct
with the specific intent to interfere substantially with
her liberty. See State v. Fredrik H., supra, 197 Conn.
App. 219 (holding that defendant’s actions designed
to accomplish purposes other than restraining another
person may be sufficient to establish intent element of
unlawful restraint if he is shown to have engaged in
such actions with specific intent to interfere substan-
tially with other person’s liberty).
With respect to the defendant’s suggestion that his
altercation with the complainant involved only mutual
combat, where she restrained him as much as he
restrained her, the video footage reasonably could have
been found to show, as Strede testified, that the defen-
dant assaulted the complainant and leaned over her to
keep her down once she was seated in the chair. Here,
then, as in State v. Luster, 48 Conn. App. 872, 713 A.2d
277, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998),
in which a similar claim of innocence was made by a
defendant whose alleged victim was able to struggle
with and resist him despite his efforts to force her
down on a bed, ‘‘[t]he jury . . . reasonably could have
concluded that the victim was restricted in her move-
ments in a manner that interfered with her liberty.’’
Id., 881.
Finally, as to the defendant’s suggestion that any
restraint he might have applied to the complainant was
not applied in such circumstances as to expose her to
a substantial risk of physical injury, that suggestion
must be rejected for several reasons, not the least of
which is the defendant’s own admission that he
assaulted the complainant in the course of the incident.4
See State v. Cotton, 77 Conn. App. 749, 776, 825 A.2d
189 (‘‘evidence of the defendant’s assault on the victim
in the parking lot was ample to support a factual deter-
mination that by his behavior, the defendant exposed
the victim to a substantial risk of physical injury’’), cert.
denied, 265 Conn. 911, 831 A.2d 251 (2003). In addition
to the defendant’s own admission, the state presented
evidence that included the hospital record documenting
the complainant’s injuries, the video footage showing
that he physically struggled with the complainant for
more than one minute, and Strede’s account of the
several times he kneed the complainant while she was
forced to remain sitting in the chair. The jury reasonably
could have concluded from this evidence that the defen-
dant restrained the complainant under circumstances
that exposed her to a substantial risk of physical injury.
On the basis of the foregoing, the evidence was suffi-
cient to support the defendant’s conviction of unlawful
restraint in the first degree.
II
THE DEFENDANT’S EVIDENTIARY AND
CONFRONTATION CLAUSE CLAIMS
The defendant’s additional claims of error concern
the court’s admission of hearsay testimony from Sulli-
van concerning the nontestifying complainant’s initial
oral statement to him, in which she accused the defen-
dant of attacking her.
A
Evidentiary Challenge to Admissibility of Complainant’s
Initial Oral Statement to Police
As a Spontaneous Utterance
We first address the defendant’s claim that the chal-
lenged statement was improperly admitted as a sponta-
neous utterance, over his timely hearsay objection,
under § 8-3 (2) of the Connecticut Code of Evidence.
The state disagrees, asserting that the statement was
properly admitted under the spontaneous utterance
exception to the rule against hearsay and that, even if
its admission on that basis was erroneous, that error
does not require reversal of his conviction because the
defendant has failed to establish that the statement was
harmful to his defense. We agree with the state.
We begin by setting forth the relevant standard of
review. ‘‘As a general rule, hearsay is inadmissible
unless an exception from the Code of Evidence, the
General Statutes or the rules of practice applies. . . .
To the extent a trial court’s admission of evidence is
based on an interpretation of the [Connecticut] Code
of Evidence, our standard of review is plenary. For
example, whether a challenged statement properly may
be classified as hearsay and whether a hearsay excep-
tion properly is identified are legal questions demanding
plenary review. They require determinations about
which reasonable minds may not differ; there is no
judgment call by the trial court . . . . We review the
trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Citation omitted; internal quotation marks
omitted.) State v. Vega, 181 Conn. App. 456, 463–64,
187 A.3d 424, cert. denied, 330 Conn. 928, 194 A.3d
777 (2018).
‘‘An out-of-court statement offered to prove the truth
of the matter asserted is hearsay and is generally inad-
missible unless an exception to the general rule applies.
. . . Among the recognized exceptions to the hearsay
rule is the spontaneous utterance exception, which
applies to an utterance or declaration that: (1) follows
some startling occurrence; (2) refers to the occurrence;
(3) is made by one having the opportunity to observe the
occurrence; and (4) is made in such close connection
to the occurrence and under such circumstances as to
negate the opportunity for deliberation and fabrication
by the declarant. . . . [T]he ultimate question is
whether the utterance was spontaneous and unreflec-
tive and made under such circumstances as to indicate
absence of opportunity for contrivance and misrepre-
sentation. . . . Whether an utterance is spontaneous
and made under circumstances that would preclude
contrivance and misrepresentation is a preliminary
question of fact to be decided by the trial judge. . . .
this preliminary question, and that decision will not be
reversed on appeal absent an unreasonable exercise of
discretion.’’ (Internal quotation marks omitted.) State
v. Pugh, 176 Conn. App. 518, 523–24, 170 A.3d 710, cert.
denied, 327 Conn. 985, 175 A.3d 43 (2017), quoting State
v. Wargo, 255 Conn. 113, 127–28, 763 A.2d 1 (2000); see
also Conn. Code Evid. § 8-3 (2).
Here, the defendant claims that the record was insuf-
ficient to establish that the complainant was under the
stress or excitement caused by the incident when she
gave the statement to the police. He bases this claim
on the state’s alleged failure to establish either the exact
time at which the statement was made in relation to
the end of the complainant’s physical altercation with
him or the exact circumstances in which the complain-
ant made the challenged statement, particularly,
whether the statement was made spontaneously, with-
out prompting, in the immediate aftermath of the inci-
dent, or made more self-reflectively, in response to less
immediate, nonemergency police interrogation. We
conclude that the record clearly supports the trial
court’s finding that the statement was made spontane-
ously and that the defendant has not demonstrated how
that ruling was an ‘‘unreasonable exercise of discre-
tion.’’ (Internal quotation marks omitted.) State v. Pugh,
supra, 176 Conn. App. 524. This is because, although
the record does not establish exactly how much time
elapsed between the end of the incident mentioned in
the statement and the making of the statement, the
state presented ample evidence, through the testimony
of Sullivan, to demonstrate that the complainant was
still under sufficient emotional stress resulting from the
incident at the time she made the statement as to make
it unlikely that the statement was the product of contriv-
ance or misrepresentation on her part.5 As described
by Sullivan when she first spoke to him, the complainant
‘‘appeared in distress, her hair was a mess, she appeared
to be crying, she was breathing heavy. . . . [S]he
appeared to be in a stressful situation prior and she was
just breathing heavy, a little anxious, very emotional.’’
On the basis of the evidence presented, it was reason-
able for the court to conclude that the complainant’s
statement to Sullivan was a spontaneous utterance. Not
only was the complainant ‘‘in distress’’ and ‘‘very emo-
tional’’ when she first spoke with Sullivan, but she made
her initial oral statement to him shortly after he arrived
at the gas station at 3:36 p.m., roughly three minutes
after the defendant released her from his grasp and
drove away. Additionally, the fact that the complainant
arrived at the hospital at 4:02 p.m. and later gave a
fuller, more detailed statement regarding the events at
the gas station shows that her initial statement to Sulli-
van ‘‘was spontaneous and unreflective and made under
such circumstances as to indicate absence of opportu-
nity for contrivance and misrepresentation.’’ (Internal
quotation marks omitted.) State v. Pugh, supra, 176
Conn. App. 523.
Even if we were to assume, however, that the trial
court erred in admitting the complainant’s initial oral
statement as a spontaneous utterance, the defendant
would not be entitled to a new trial on that basis, for
he has failed to demonstrate that admission of the state-
ment, allegedly a nonconstitutional evidentiary error,
substantially affected the verdict. See, e.g., State v.
Edwards, 325 Conn. 97, 133, 156 A.3d 506 (2017) (defen-
dant bears burden of demonstrating nonconstitutional
evidentiary error was harmful). ‘‘Whether the error was
harmless depends on a number of factors, such as the
importance of the evidence to the state’s case, whether
the evidence was cumulative of properly admitted evi-
dence, the presence or absence of corroborating evi-
dence, and, of course, the overall strength of the state’s
case.’’ State v. Culbreath, 340 Conn. 167, 192, 263 A.3d
350 (2021). Although the complainant’s challenged
statement identified the defendant by name and gener-
ally described his actions at the gas station as an attack,
there was overwhelming additional evidence that
proved those facts as well. The complainant’s statement
merely corroborated the defendant’s own admission
that he had assaulted the complainant at the station,
as well as the other unchallenged evidence, such as the
video footage of the entire incident that showed the
defendant’s conduct throughout the incident. On the
basis of the defendant’s unqualified admission of the
assault, and the state’s overwhelming evidence confirm-
ing that admission, any error in admitting the complain-
ant’s initial oral statement was clearly harmless.
B
The Defendant’s Confrontation Clause Claim
Finally, we turn to the defendant’s constitutional
claim that admission of the nontestifying complainant’s
initial oral statement to the police accusing him of
attacking her violated his sixth and fourteenth amend-
ment rights to confront the witnesses against him
because he never was afforded the opportunity to cross-
examine her about that statement, either before or dur-
ing trial. The defendant concedes, as he must, that this
claim was not preserved at trial, and thus he requests
that we review it under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). In response,
the state asserts that the defendant’s claim should not
be reviewed under Golding because the record does
not clearly establish that the statement was testimonial
in nature and thus that its admission without affording
him the opportunity to cross-examine the complainant
constituted a constitutional violation, and, even if
admission of the statement in these circumstances con-
stituted a constitutional violation, that violation should
not result in reversal of the defendant’s conviction
because it was harmless beyond a reasonable doubt in
light of the abundance of other evidence, including the
defendant’s own admission, that he assaulted the com-
plainant at the gas station in Willimantic on April 6, 2017.
It is well established that ‘‘a defendant can prevail
on a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional 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. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances. . . . [T]he first
two [prongs of Golding] involve a determination of
whether the claim is reviewable . . . and under those
two prongs, [t]he defendant bears the responsibility for
providing a record that is adequate for review of his
claim of constitutional error. . . . [T]he second two
[prongs of Golding] . . . involve a determination of
whether the defendant may prevail.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Vega, supra, 181 Conn. App. 484–85. Consistent
with this approach to analyzing the appropriateness of
reviewing an unpreserved constitutional claim under
Golding, we will first determine if, under the fourth
prong of Golding, the state has demonstrated that any
constitutional error that may have resulted from the
admission of the nontestifying complainant’s initial oral
statement to the police was harmless beyond a reason-
able doubt.
‘‘[W]hether a defendant is entitled to any remedy for
a violation of his right to confront witnesses depends
on whether the violation is legally harmless.’’ Id., 485.
‘‘It is well established that a violation of the defendant’s
right to confront witnesses is subject to harmless error
analysis . . . .’’ (Internal quotation marks omitted.)
State v. Campbell, 328 Conn. 444, 512, 180 A.3d 882(2018); see also State v. Pugh, supra, 176 Conn. App.
528–30 (conducting harmless error analysis to resolve
confrontation clause claim).
‘‘[T]he test for determining whether a constitutional
[error] is harmless . . . is whether it appears beyond
a reasonable doubt that the [error] complained of did
not contribute to the verdict obtained. . . . [Our
Supreme Court] has held in a number of cases that
when there is independent overwhelming evidence of
guilt, a constitutional error would be rendered harmless
beyond a reasonable doubt. . . . [W]e must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . If the evidence may have had
a tendency to influence the judgment of the jury, it
cannot be considered harmless. . . . That determina-
tion must be made in light of the entire record [including
the strength of the state’s case without the evidence
admitted in error]. . . . Additional factors that we have
considered in determining whether an error is harmless
in a particular case include the importance of the chal-
lenged evidence to the prosecution’s case, whether it is
cumulative, the extent of cross-examination permitted,
and the presence or absence of corroborating or contra-
dicting evidence or testimony.’’ (Citations omitted;
internal quotation marks omitted.) State v. Edwards,
334 Conn. 688, 706–707, 224 A.3d 504 (2020).
As previously noted, it is significant to our analysis
that the complainant’s out-of-court statement accusing
the defendant of attacking her did not serve as an inte-
gral portion of the state’s case against the defendant.
Instead, the role it served was merely cumulative, for
it was corroborated not only by the video footage of
the entire incident, which clearly showed the defendant
striking the complainant, and by records from the hospi-
tal documenting her resulting physical injuries, but also
by Strede’s independent description of the assault and
identification of the defendant as the perpetrator and,
importantly, the defendant’s own admission of the
assault. See State v. Smith, 289 Conn. 598, 628–29, 960
A.2d 993 (2008) (concluding that admission of state-
ment, even though improper, was ultimately harmless
error because statement was cumulative). In light of this
evidence, which overwhelmingly supported the state’s
claim that the defendant assaulted the complainant in
the course of their physical altercation on April 6, 2017,
the state never mentioned the complainant’s challenged
statement in its closing argument to the jury. For all of
these reasons, we conclude that, even if the admission
of the complainant’s statement to Sullivan violated the
defendant’s constitutional right to confrontation, any
error in its admission was harmless beyond a reason-
able doubt. See State v. Edwards, supra, 334 Conn. 713.
Therefore, the defendant’s claim fails under Golding’s
fourth prong.
III
CONCLUSION
We agree with the defendant that the evidence was
insufficient to sustain his conviction of robbery in the
third degree. Accordingly, we reverse his conviction on
that charge and remand this case to the trial court with
direction to enter a judgment of acquittal thereon. We
disagree with the defendant, however, as to his other
claims of error, and thus affirm the challenged judgment
in all other respects.
The judgment is reversed as to the conviction of
robbery in the third degree and the case is remanded
with direction to enter a judgment of acquittal on that
charge; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the complainant or others
through whom the complainant’s identity may be ascertained. See General
Statutes § 54-86e.
1
The defendant’s separate concurrent sentences on the three underlying
charges of which the jury found him guilty, as enhanced, where appropriate,
by the jury’s guilty verdict on the part B information, were as follows: on
the charge of robbery in the third degree, a term of three years of imprison-
ment; on the charge of unlawful restraint in the first degree, a term of six
years of imprisonment followed by four years of special parole; and on the
charge of assault in the third degree, a term of three years of imprisonment.
2
The defendant objected to the admission of this statement on the grounds
that it was hearsay and lacked foundation. The state argued that the com-
plainant’s statement to Sullivan was a spontaneous utterance, and the court
overruled the defendant’s objection.
3
As the complainant and the defendant are married, the complainant’s
daughter is also the defendant’s stepdaughter.
4
When the defendant testified at trial, the following colloquy took place
on direct examination:
‘‘Q. Tell us what occurred, what happened in the—at—what we saw in
the video.
‘‘A. When I got to the gas station, me and my wife we ended up getting
into an argument and then we ended up getting into an altercation and I
ended up hitting my wife.
‘‘Q. So you did in fact assault her?
‘‘A. Yes, I did.’’
5
‘‘[T]here is no identifiable discrete time interval within which an utter-
ance becomes spontaneous; [e]ach case must be decided on its particular
circumstances.’’ (Internal quotation marks omitted.) State v. Kirby, 280
Conn. 361, 375, 908 A.2d 506 (2006); see State v. Slater, 285 Conn. 162,
179–80, 939 A.2d 1105 (despite it being unclear how much time had passed,
victim’s emotional state, appearing visibly shaken, supported court’s finding
that statement was spontaneous utterance ‘‘made under circumstances that
had negated the opportunity for deliberation or fabrication’’), cert. denied,
553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).