State v. Vickers ( 2024 )

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STATE OF CONNECTICUT v. KENYAL VICKERS
(AC 46030)
Moll, Suarez and Prescott, Js.
Syllabus
The defendant appealed from the trial court’s judgment convicting him of,
inter alia, sexually assaulting two women within ten minutes of each other
in a Walmart store. He claimed, inter alia, that the court’s denial of his
motion to sever the charges against him was improper because the incidents
as to each victim were separate and distinct and should have been tried
separately.
The trial court did not abuse its discretion in denying the defendant’s motion
to sever the charges and concluding that he would not be substantially
prejudiced by trying the charges as to both victims together, as the evidence
of each incident was cross admissible to establish the defendant’s intent as
to each victim, whose testimony was relevant to prove that he was the
individual who committed both assaults in close temporal proximity in the
same store.
This court declined to review the defendant’s claim that the trial court
committed plain error by failing, sua sponte, to instruct the jury regarding
the proper use of the evidence following the denial of his motion to sever the
charges, as the defendant’s claim was explicitly conditioned on a threshold
determination by this court, which did not occur, that his failure to request
or to challenge the absence of a limiting instruction constituted a waiver
of his right to challenge the denial of the motion to sever, and the state
acknowledged that he had not waived that right.
Argued May 20—officially released October 29, 2024
Procedural History
Substitute information charging the defendant with
four counts of the crime of breach of the peace in the
second degree, two counts of the crime of sexual assault
in the fourth degree and one count each of the crimes
of attempt to commit robbery in the third degree,
attempt to commit larceny in the second degree and
failure to appear in the first degree, brought to the
Superior Court in the judicial district of Danbury, where
the court, Hon. Robert A. D’Andrea, judge trial referee,
denied the defendant’s motion for severance; thereafter,
the case was tried to the jury before Hon. Robert A.
D’Andrea, judge trial referee; subsequently, the court
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State v. Vickers
denied the defendant’s motion for reconsideration; ver-
dict and judgment of guilty of two counts each of sexual
assault in the fourth degree and breach of the peace in
the second degree, and one count of failure to appear
in the first degree, from which the defendant appealed
to this court. Affirmed.
Gary A. Mastronardi, for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky III,
former state’s attorney, and Matthew Knopf, assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Kenyal Vickers, appeals
from the judgment of conviction, rendered after a jury
trial, of two counts of sexual assault in the fourth degree
in violation of General Statutes § 53a-73a (a) (2), two
counts of breach of the peace in the second degree in
violation of General Statutes § 53a-181 (a) (2), and fail-
ure to appear in the first degree in violation of General
Statutes § 53a-172 (a) (1). On appeal, the defendant
claims that the trial court (1) improperly denied his
motion for severance of the charges as to two separate
victims, and (2) committed plain error in failing to
instruct the jury, sua sponte, on the proper use of the
evidence following the denial of his motion for sever-
ance. We are not persuaded and, accordingly, affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. On May 3, 2018, at approximately 9:40 p.m., the
first victim, D, and her wife, J, were shopping at the
Walmart store in Danbury.1 D was browsing in the shoe
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
Furthermore, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to
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department when the defendant approached her. The
defendant bumped into D, apologized to her, and contin-
ued down the aisle. Shortly thereafter, he again
approached D and asked her where the children’s shoes
were located. After D answered, the defendant left again
but returned a third time. He then pinned her against
a shoe rack with one hand while using his other hand
to attempt to take her purse. After D dropped her purse,
the defendant lifted her dress, pulled down the shorts
she was wearing underneath, and touched her buttocks,
vaginal area, and breast.
D struggled with the defendant and yelled to J, who
was shopping in a different aisle, for assistance. When
J approached the defendant and D, he briskly walked
toward another area of the store. J attempted to pursue
the defendant, and D reported the incident to store
employees. While calling 911 to report the assault, D
also simultaneously attempted to track the defendant’s
location within the store.
At this time, the second victim, M, was shopping
in the aisle containing cleaning supplies. A Walmart
employee was working in the same aisle restocking
merchandise on shelves. While reaching for a bottle on
the top shelf, M observed a police officer pursuing the
defendant, who was moving toward her. As the defen-
dant passed behind M, he reached out and grabbed her
buttocks. She quickly grabbed her cell phone and took
a photograph of the defendant as he ran away. The
store employee immediately confirmed to M that he
had seen the defendant grab her buttocks. The police
apprehended and arrested the defendant in an adjoin-
ing aisle.
The following procedural history is relevant to the
defendant’s claims on appeal. After his on-site arrest,
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
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State v. Vickers
the defendant was charged under one docket number
with robbery in the third degree in violation of General
Statutes § 53-136, two counts of breach of the peace in
the second degree in violation of § 53a-181, and three
counts of sexual assault in the fourth degree in violation
of § 53a-73a. The initial charges related to both victims.
The defendant subsequently was released on a profes-
sional surety bond but failed to appear in court on July
18, 2018. He was rearrested on April 20, 2019, on a
failure to appear warrant and was charged with failure
to appear in the first degree in violation of § 53a-172
(a) (1).
On March 2, 2020, the defendant filed a motion to
sever the charges, asserting that the charges relating
to each victim should be tried separately because they
involved separate and distinct incidents. The court
heard argument on the motion on January 18, 2022.
During that argument, defense counsel contended that
severance was required because the charges related to
two discrete incidents at the Walmart store, occurring
approximately ten minutes apart, and involving differ-
ent complaining witnesses, who differed in age by
twenty years. The prosecutor responded, asserting that
the charges pertaining to the two victims involved a
continuous course of conduct at the Walmart store with
similar victims, both of whom described the perpetrator
in the same manner. The prosecutor argued that,
because the evidence with respect to one victim would
be cross admissible with respect to the charges involv-
ing the other victim, severance was not warranted. The
court took the matter under advisement.
That same day, defense counsel also filed a motion
to withdraw as the defendant’s attorney on the basis
of a breakdown of the attorney-client relationship. The
court granted that motion on January 19, 2022, and
new counsel was appointed the next day. The court
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continued to defer ruling on the motion for severance
until the defendant’s newly appointed counsel had an
opportunity to review it On March 15, 2022, new defense
counsel adopted the motion to sever that had been
filed by previous counsel and was permitted to make
additional argument.
On March 15, 2022, immediately prior to jury selec-
tion, the court issued an oral decision denying the defen-
dant’s motion to sever the charges. Although the ruling
is not a model of clarity,2 the court appears to have
concluded that the motion should be denied, as the
charged offenses were ‘‘legally related’’ because the
incidents ‘‘did, in fact, occur at the same location a
short proximity from each other.’’ The court also dis-
cussed and applied the Boscarino factors,3 concluding
that the defendant would not be substantially preju-
diced by the joinder of all of the charged offenses for
trial.
Jury selection then commenced. Thereafter, on the
first day of evidence, the court heard argument on a
motion for reconsideration of the court’s prior ruling on
the defendant’s motion for severance. The prosecutor
contended that the motion should be denied, in part
because the evidence pertaining to the charges with
2
The defendant did not seek an articulation of the court’s ruling on his
motion to sever. See Practice Book § 66-5.
3
‘‘[Our Supreme Court, in State v. Boscarino, 204 Conn. 714, 722–24, 529
A.2d 1260 (1987)] identified several factors that a trial court should consider
in deciding whether a severance [or denial of joinder] may be necessary to
avoid undue prejudice resulting from consolidation of multiple charges for
trial. These factors include: (1) whether the charges involve discrete, easily
distinguishable factual scenarios; (2) whether the crimes were of a violent
nature or concerned brutal or shocking conduct on the defendant’s part;
and (3) the duration and complexity of the trial. . . . If any or all of these
factors are present, a reviewing court must decide whether the trial court’s
jury instructions cured any prejudice that might have occurred.’’ (Internal
quotation marks omitted.) State v. Brown, 195 Conn. App. 244, 250, 224
A.3d 905, cert. denied, 335 Conn. 902, 225 A.3d 685 (2020); see also State
v. Payne, 303 Conn. 538, 543 n.2, 34 A.3d 370 (2012).
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State v. Vickers
respect to one victim was cross admissible with respect
to the other victim. Defense counsel addressed the
state’s cross admissibility argument by contending that
a particular video taken from security camera footage
inside the store only would be admissible, if at all, with
respect to the charges relating to D but would not be
admissible with respect to the charges involving M.
Defense counsel also asserted briefly that the charges
should be severed because the defendant might want
to exercise his right to remain silent with respect to
the charges involving one victim but may want to testify
as to the charges involving the other victim.
Immediately following argument, the court orally
denied the defendant’s motion for reconsideration. The
court did not specifically reference the issue of cross
admissibility but repeated some of the reasons it had
given when it denied the motion for severance. It also
stated that the defendant had failed to make a sufficient
showing that his desire to testify regarding some of
the charges, but to remain silent as to other charges,
justified separate trials.
The state then presented evidence in support of the
charges. D and J testified with respect to the incident
in the shoe aisle, provided a physical description of
the perpetrator, and described how he walked quickly
through the Walmart store after grabbing D. M then
testified regarding the assault that occurred in the clean-
ing products aisle. The state also presented testimony,
inter alia, from two Walmart employees who were pres-
ent in the store on the night of May 3, 2018, and from
the responding police officers. At no point did the defen-
dant object or claim that the evidence was not cross
admissible, nor was any testimony or exhibit admitted
into evidence for a limited purpose.
During trial, on March 29, 2022, the state again
amended its long form information and charged the
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defendant with attempt to commit robbery in the third
degree, attempt to commit larceny in the second degree,
two counts of sexual assault in the fourth degree, four
counts of breach of the peace in the second degree,
and failure to appear in the first degree. Two of the
breach of the peace counts were charged in the alterna-
tive to the other two counts.
The jury returned a verdict of not guilty with respect
to the charges of attempt to commit robbery, attempt
to commit larceny and two of the counts of breach of
the peace. The jury found the defendant guilty of two
counts of sexual assault in the fourth degree, two counts
of breach of the peace in the second degree, and failure
to appear in the first degree. The court subsequently
imposed a total effective sentence of six years and 728
days of incarceration, execution suspended after three
years, and five years of probation, subject to special
conditions.4 This appeal followed. Additional facts and
procedural history will be set forth as necessary to
address the specific claims of the defendant.
I
The defendant first claims that the court improperly
denied his motion for severance of the charges relating
to the two separate victims. Specifically, the defendant
contends that the court abused its discretion by con-
cluding, after applying the factors set forth in State v.
Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987),
that he would not be substantially prejudiced if the
charges relating to D and M were tried together. In
response, the state contends that the defendant was
not deprived of a fair trial by joinder of the offenses
because the evidence pertaining to each victim was
cross admissible, and that, even if the evidence was
4
It is unclear why the court imposed a sentence with respect to some of
the counts in days, while imposing a sentence on some of the counts in years.
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State v. Vickers
not cross admissible, the court did not abuse its discre-
tion by concluding, pursuant to the Boscarino factors,
that the defendant would not be substantially preju-
diced if all of the charges were tried together. We agree
with the state.
We begin with the applicable standard of review and
relevant legal principles regarding the denial of a motion
for severance. General Statutes § 54-57 provides:
‘‘Whenever two or more cases are pending at the same
time against the same party in the same court for offenses
of the same character, counts for such offenses may
be joined in one information unless the court orders
otherwise.’’ Our Supreme Court has explained that this
statute ‘‘is directed at prosecutors, and governs the
circumstances under which they may join multiple
charges in a single information.’’ State v. Payne, 303
Conn. 538, 547, 34 A.3d 370 (2012). Practice Book § 41-
18 provides: ‘‘If it appears that a defendant is prejudiced
by a joinder of offenses, the judicial authority may,
upon its own motion or the motion of the defendant,
order separate trials of the counts or provide whatever
other relief justice may require.’’5 In the present case,
the state charged the defendant in a single information,
and the defendant subsequently filed a motion to sever
the charges with respect to D and M.
‘‘A joint trial expedites the administration of justice,
reduces the congestion of trial dockets, conserves judi-
cial time, lessens the burden upon citizens who must
sacrifice both time and money to serve upon juries, and
avoids the necessity of recalling witnesses who would
otherwise be called to testify only once.’’ (Internal quo-
tation marks omitted.) State v. Wilson, 142 Conn. App.
5See, e.g., State v. LaFleur, 307 Conn. 115, 157, 51 A.3d 1048 (2012)
(reasoning argument for joinder is most persuasive if offenses are based
on same act or criminal transaction because it is unduly inefficient to require
state to resolve same issues at numerous trials); State v. Vaught, 157 Conn.
App. 101, 112, 115 A.3d 64 (2015) (same).
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793, 799–800, 64 A.3d 846, cert. denied, 309 Conn. 917,
70 A.3d 40 (2013).6 Our Supreme Court has noted that
‘‘severance is not necessarily to be had for the asking.’’
(Internal quotation marks omitted.) State v. King, 187
Conn. 292, 302, 445 A.2d 901 (1982), overruled in part
on other grounds by State v. Payne, 303 Conn. 538, 34
A.3d 370 (2012).7 Specifically, ‘‘[i]n the trial court, when
multiple charges have already been joined in a single
information by the state pursuant to § 54-57, and the
defendant has filed a motion to sever the charges for
trial pursuant to Practice Book § 41-18, the defendant
bears the burden of proving that the offenses are not
of the same character . . . and therefore that the
charges should be tried separately.’’ (Citation omitted;
internal quotation marks omitted.) State v. Payne,
supra, 303 Conn. 549. Additionally, we have explained
that ‘‘[t]he decision to sever cases for trial is within the
sound discretion of the trial court and that discretion
must not be disturbed unless it has been manifestly
6
‘‘[Our Supreme Court] has recognized, however, that improper joinder
may expose a defendant to potential prejudice for three reasons: First, when
several charges have been made against the defendant, the jury may consider
that a person charged with doing so many things is a bad [person] who
must have done something, and may cumulate evidence against him . . . .
Second, the jury may have used the evidence of one case to convict the
defendant in another case even though that evidence would have been
inadmissible at a separate trial. . . . [Third] joinder of cases that are factu-
ally similar but legally unconnected . . . present[s] the . . . danger that a
defendant will be subjected to the omnipresent risk . . . that although so
much [of the evidence] as would be admissible upon any one of the charges
might not [persuade the jury] of the accused’s guilt, the sum of it will
convince them as to all.’’ (Internal quotation marks omitted.) Cancel v.
Commissioner of Correction, 189 Conn. App. 667, 679–80, 208 A.3d 1256,
cert. denied, 332 Conn. 908, 209 A.3d 644 (2019); accord State v. Ellis, 270
Conn. 337, 374–75, 852 A.2d 676 (2004).
7
In State v. Payne, supra, 303 Conn. 549–50, our Supreme Court rejected
the blanket presumption in favor of joinder and held that, if charges are set
forth in separate informations and the state moves to join the multiple
informations for trial, it bears the burden of proving that the defendant will
not be substantially prejudiced by joinder pursuant to Practice Book § 41-
19. See also State v. James A., 345 Conn. 599, 614, 286 A.3d 855 (2022), cert.
denied, U.S. , 143 S. Ct. 2473, 216 L. Ed. 2d 439 (2023).
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State v. Vickers
abused. . . . The discretion of a court to order sepa-
rate trials should be exercised only when a joint trial
will be substantially prejudicial to the rights of the
defendant, and this means something more than that a
joint trial will be less than advantageous to the defen-
dant. . . . On appeal, it is always the defendant’s bur-
den to show that the denial of severance resulted in
substantial injustice, and that any resulting prejudice
was beyond the curative power of the court’s instruc-
tions.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Labarge, 164 Conn. App. 296, 304, 134
A.3d 259, cert. denied, 321 Conn. 915, 136 A.3d 646(2016); see also State v. Payne, supra, 549.
To meet his burden of demonstrating that the charges
should be tried separately, ‘‘the defendant must prove
that the evidence of the separate charges would not be
cross admissible if the cases were tried separately. . . .
This is because [when] evidence of one incident would
be admissible at the trial of the other incident, separate
trials would provide the defendant no significant bene-
fit. . . . Under such circumstances, the defendant
would not ordinarily be substantially prejudiced by join-
der of the offenses for a single trial. . . . Accordingly,
we have found joinder to be proper [when] the evidence
of other crimes or uncharged misconduct [was] cross
admissible at separate trials.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Labarge, supra,
164 Conn. App. 305–306; accord State v. Anderson, 318
Conn. 680, 692, 122 A.3d 254 (2015); see also State v.
Crenshaw, 313 Conn. 69, 83–84, 95 A.3d 1113 (2014). If
the evidence is not cross admissible, then the trial court
is required to consider the Boscarino factors to assess
whether the defendant will suffer undue prejudice from
the joinder of offenses. See State v. Labarge, supra,
306; see also State v. James A., 345 Conn. 599, 620–21,
286 A.3d 855 (2022), cert. denied, U.S. , 143 S.
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Ct. 2473, 216 L. Ed. 2d 439 (2023); State v. Crenshaw,
supra, 83 n.8.
In the present case, the defendant filed a motion to
sever the offenses on March 2, 2020. The court heard
argument on the motion on January 18, 2022. Defense
counsel claimed that, if the defendant had been charged
in two separate informations, then the state would not
be permitted to join them for trial. At that time, defense
counsel did not address the matter of cross admissibility
of the evidence. The prosecutor began his response by
pointing out that the two incidents occurred within
minutes of each other, which indicated a clear course
of conduct by the defendant at the Walmart store. He
then specifically argued that, if the matters were tried
separately, the evidence would be cross admissible.
Defense counsel did not respond to the prosecutor’s
cross admissibility argument. The court did not rule on
the defendant’s motion.
After new defense counsel adopted the motion to
sever filed by prior counsel, the court heard additional
argument. Again, the issue of the cross admissibility of
the evidence was not addressed by defense counsel in
her initial or rebuttal arguments with respect to the
motion for severance. The prosecutor reasserted that
the evidence regarding the two incidents was cross
admissible.
The court began its oral ruling by contrasting the
facts of the present case with those in State v. Boscar-
ino, supra, 204 Conn. 714.8 Additionally, the court noted
8
Specifically, the court concluded: ‘‘Consequently, [our Supreme Court
has] identified several factors that the trial court should consider in deciding
whether severance may be necessary to avoid undue prejudice resulting in
consolidation of multiple charges for a trial. Those factors include, one,
whether the charges involve discrete, easily distinguishable facts, scenarios.
Clearly, these are discrete and easily distinguishable facts, scenarios that
occurred over seconds and not a long period of time as the other case that
I had—Boscarino that I had previously cited to.
‘‘Two, whether the crimes were of a violent nature or concerned brutal
or shocking conduct on the defendant’s part. Clearly, that is not present—
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State v. Vickers
that the two incidents in the present case were ‘‘legally
related here because they did, in fact, occur at the same
location a short proximity from each other.’’ (Emphasis
added.) Ultimately, the court denied the defendant’s
motion to sever.
On March 24, 2022, prior to the start of evidence,
defense counsel moved for reconsideration of the denial
of the motion to sever. She argued that it was ‘‘clear’’
that the defendant would suffer prejudice as a result
of the joinder of the two separate incidents alleged
in the operative information in a single trial. Defense
counsel further pointed out that it would be difficult
for the jury to consider the relative strengths of the
victims’ testimony regarding their individual identifica-
tions of the defendant as the perpetrator. The prosecu-
tor disagreed, pointing out that the two incidents
occurred within minutes, in the same building by the
same person. Furthermore, he again asserted that ‘‘[a]ll
the evidence is cross admissible.’’ In response, defense
counsel countered that the evidence was not cross
admissible.9 The court orally denied the motion for
reconsideration.
present here and will not create the . . . prejudice that was apparent in
the Boscarino matter. And finally, three, the duration and complexity of
the trial could make it difficult for the jury to deal with this. This is not
going to be a ten week trial with dozens of witnesses. This should be several
days long with possibly half a dozen to ten short—relatively short witnesses.
Based on the three criteria here, there is no basis for the motion to sever
to be granted.’’
9
In response to the prosecutor’s cross admissibility argument, defense
counsel stated the following in arguing for reconsideration of the denial of
the motion to sever: ‘‘[The prosecutor] made reference to [§] 54-57 that
talks about cross admissibility as a factor that the court should consider in
determining whether severance is appropriate. And essentially, if evidence
would be cross admissible, there would be no reason to consider a severance
because two trials wouldn’t be necessary. I would submit . . . that, in this
case, we do have issues of evidence that would not be cross admissible
between these two matters . . . .’’ During the trial, defense counsel did
not, however, object to any evidence on the ground that it was not cross
admissible or seek to have any evidence admitted for a limited purpose only.
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Our decision in State v. Carty, 100 Conn. App. 40,
916 A.2d 852, cert. denied, 282 Conn. 917, 925 A.2d 1100(2007), is informative with respect to the present appeal.
In that case, the first victim left her house at about 2
a.m. to purchase drugs and cigarettes on March 27,
2001. Id., 42. The defendant drove next to her as she
walked along the street, and, after a brief conversation,
she got into his car. Id. The defendant drove to a parking
lot, pulled out a knife, placed it against her neck, and
demanded that the first victim give him all of her money.
Id., 42–43. A similar incident occurred a few days later.
Id., 43. In the early morning of April 1, 2001, the second
victim walked to a gasoline station to purchase ciga-
rettes. Id. The defendant, who was at the gasoline sta-
tion, ultimately agreed to drive the second victim back
to her residence. Id. The defendant drove into a parking
lot, jumped over the middle of the seat, placed a knife
against the throat of the second victim, and took her
money. Id.The defendant was charged with two counts of rob-
bery in the first degree and one count of possession of
a weapon in a motor vehicle. Id., 44. The state moved
to consolidate the two matters and, following the grant-
ing of that motion, the defendant was convicted of all
charges. Id. On appeal, the defendant claimed, inter alia,
that the court improperly granted the state’s motion to
consolidate the robbery charges. Id. The state coun-
tered that (1) the defendant was not prejudiced by join-
der because the evidence of both robberies would have
been cross admissible as acts of misconduct to prove
identity, and (2) even if it were not cross admissible,
the court did not abuse its discretion in granting the
joinder motion because the jury could distinguish the
underlying facts of each crime. Id.In resolving the issues on appeal, this court noted
that, at trial, ‘‘the state presented arguments for joinder
both under the factors enunciated in State v. Boscarino,
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State v. Vickers
supra, 204 Conn. 722–24, and under the theory that the
evidence from each case would be cross admissible.
Although the [trial] court granted the state’s motion to
consolidate the charges without explaining the theory
on which it relied, we conclude that the court could
have properly joined the charges under either theory.’’
State v. Carty, supra, 100 Conn. App. 45 n.5. This court
then set forth the relevant legal principles regarding
cross admissibility of evidence when multiple charges
are tried together. We began with the general rule that
evidence of guilt of one crime is inadmissible to prove
that a defendant is guilty of a different crime. See id.,
46; see also Conn. Code Evid. § 4-5. ‘‘The rationale of
this rule is to guard against its use merely to show
an evil disposition of an accused, and especially the
predisposition to commit the crime with which he is
now charged. . . . The fact that such evidence tends
to prove the commission of other crimes by an accused
does not render it inadmissible if it is otherwise relevant
and material. . . . Such evidence is admissible for
other purposes, such as to show intent, an element in
the crime, identity, malice, motive or a system of other
criminal activity. . . . The analysis on the issue of
other crimes evidence is two-pronged. First, the evi-
dence must be relevant and material to at least one
of the circumstances encompassed by the exceptions.
Second, the probative value of such evidence must out-
weigh the prejudicial effect of the other crimes evi-
dence.’’ (Citation omitted; internal quotation marks
omitted.) State v. Carty, supra, 46; see also State v.
Michael R., 346 Conn. 432, 447, 291 A.3d 567 (to be
cross admissible, evidence must be relevant and more
probative than prejudicial), cert. denied, U.S. ,
144 S. Ct. 211, 217 L. Ed. 2d 89 (2023); Conn. Code Evid.
§ 4-3.
In the present case, the trial court did not explicitly
state that the evidence of the two assaults was cross
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16 ,0 0 Conn. App. 1State v. Vickers
admissible. After reviewing the record, we conclude
that the court implicitly determined that it was cross
admissible. Initially, we note that the prosecutor consis-
tently argued to the court that the evidence from the
two incidents was cross admissible. Additionally, the
court observed that the two incidents were legally
related. Other courts have considered or used the
phrase ‘‘legally unrelated’’ or ‘‘legally connected’’ as
shorthand in discussing the cross admissibility of evi-
dence. See, e.g., State v. Fana, 109 Conn. App. 797, 803,
953 A.2d 898, cert. denied, 289 Conn. 936, 958 A.2d 1246(2008); State v. Quinones, 21 Conn. App. 506, 512, 574
A.2d 1308, cert. denied, 215 Conn. 816, 576 A.2d 546(1990).
We conclude that the evidence of each incident would
be relevant10 to the other to prove the state’s theory
that the defendant was the individual who assaulted
each of the victims.11 Specifically, we address the appli-
cable exceptions to § 4-5 (a) of the Connecticut Code
of Evidence.12 We begin with the exception for identity.
10
See, e.g., State v. Patrick M., 344 Conn. 565, 600, 280 A.3d 461 (2022)
(evidence is relevant if it has any tendency to make existence of any fact
that is material to determination of proceeding more or less probable than
it would be without said evidence); State v. Patterson, 344 Conn. 281, 295,
278 A.3d 1044 (2022) (noting broad definition of relevance).
11
During cross-examination, D admitted that she had told the 911 operator
that she could not see the person who had assaulted her in the Walmart
store for a brief time period as she was following him in the store, but she
had told the police she had kept him in view at all times. Additionally, D
acknowledged that the police had shown her a photographic lineup a few
days prior to trial but that she was unable to identify the man who had
assaulted her.
12
Section 4-5 (a) of the Connecticut Code of Evidence provides: ‘‘Evidence
of other crimes, wrongs or acts of a person is inadmissible to prove the
bad character, propensity, or criminal tendencies of that person except as
provided in subsection (b).’’
Section 4-5 (c) of the Connecticut Code of Evidence provides: ‘‘Evidence
of other crimes, wrongs or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.’’
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0 Conn. App. 1 ,0 17
State v. Vickers
It is axiomatic that ‘‘[i]t is the state’s burden to prove
every element of the crime, including [identity] . . . .’’
(Internal quotation marks omitted.) State v. Murrell, 7
Conn. App. 75, 80, 507 A.2d 1033 (1986); see also State
v. Faust, 161 Conn. App. 149, 183, 127 A.3d 1028 (2015)
(identity of defendant is element of proof of all crimes),
cert. denied, 320 Conn. 914, 131 A.3d 252 (2016). The
testimony of each victim was relevant to prove that the
defendant was the individual who was present in the
Walmart store and who committed both of the sexual
assaults in close temporal proximity. Here, the testi-
mony of D and M placed the defendant in the store and
identified him as the perpetrator of the sexual assaults.
The evidence, therefore, was not offered for the defen-
dant’s propensity to engage in the illegal conduct but
only for the purpose of corroborating each victim’s
testimony that it was the defendant who had assaulted
them. See, e.g., State v. Mooney, 218 Conn. 85, 126–30,
588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330,
116 L. Ed. 2d 330 (1991); State v. Gerald A., 183 Conn.
App. 82, 100, 107–108, 191 A.3d 1003, cert. denied, 330
Conn. 914, 193 A.3d 1210 (2018).
Additionally, we note that other misconduct evidence
‘‘may be used to complete the story of the crime on
trial by placing it in the context of nearby and nearly
contemporaneous happenings . . . [and] is admissible
to corroborate crucial prosecution testimony.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Michael R., supra, 346 Conn. 448–49. We emphasize
that the evidence regarding the assault of each victim
served to establish the presence of the defendant in the
Walmart store and completed the story of his move-
ments, actions, and conduct within the store on May
3, 2018, during his single, unbroken course of conduct.
See, e.g., State v. Gould, 241 Conn. 1, 23, 695 A.2d 1022(1997) (misconduct evidence often used to complete
story of charged crime by placing it in context of nearby
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. App. 1State v. Vickers
and nearly contemporaneous happenings); State v. Bar-
dales, 164 Conn. App. 582, 603, 137 A.3d 900 (2016)
(same); see also State v. Crenshaw, supra, 313 Conn.
85–86 (evidence was cross admissible to complete story
of what happened to victim over two days and therefore
‘‘essential’’ to consider two cases together).
Moreover, the cross admissible evidence was rele-
vant to establish the defendant’s intent with respect to
each sexual assault that occurred in the Walmart store
on May 3, 2018. Sexual assault in the fourth degree is
a specific intent crime. See, e.g., State v. Juan J., 344
Conn. 1, 22, 276 A.3d 935 (2022) (to obtain conviction
of sexual assault in fourth degree, state is required to
prove defendant acted with intent to make contact with
intimate parts of person for purpose of sexual gratifica-
tion of actor or for purpose of degrading or humiliating
such person, or any contact of intimate parts of actor
with person for purpose of sexual gratification of actor
or for purpose of degrading or humiliating such person);
State v. Tahir L., 227 Conn. App. 653, 660, A.3d
(2024) (conviction of sexual assault in fourth degree
requires state to prove defendant had specific intent to
obtain sexual gratification or to humiliate complainant),
petition for cert. filed (Conn. September 16, 2024) (No.
240159). The evidence regarding the assault of D in
the shoe aisle was relevant to demonstrate that the
defendant did not make accidental or inadvertent con-
tact with M in the cleaning supplies aisle but, rather,
touched D with the intent required for a conviction of
sexual assault in the fourth degree. See also State v.
Beavers, 290 Conn. 386, 400–401, 963 A.2d 956 (2009)
(absence of mistake or accident exception in § 4-5 (c)
of Connecticut Code of Evidence is close corollary of
intent exception, and our Supreme Court has recog-
nized that same uncharged misconduct evidence is
admissible for dual purposes of proving defendant’s
intent and that occurrence was result of intentional act
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State v. Vickers
rather than accident); State v. Kalil, 136 Conn. App.
454, 465–67, 46 A.3d 272 (2012) (police chief’s testimony
about defendant’s misconduct at one location was
admissible to demonstrate defendant’s intent to commit
crime at another location hours later), aff’d, 314 Conn.
529, 107 A.3d 343 (2014). Similarly, evidence of the
assault of M further demonstrated that the defendant
possessed the necessary intent with respect to D.13 In
other words, the cross admissible evidence had the
tendency to make it more probable that the defendant
committed the crimes against each victim. See, e.g.,
State v. Michael R., supra, 346 Conn. 448–49.
For these reasons, we conclude that the court prop-
erly determined, albeit implicitly, that the evidence from
the two assaults was cross admissible.14 As a result of
13
Although the state did not argue in its appellate brief that the evidence
of the two assaults was cross admissible pursuant to the propensity excep-
tion for sexual crimes; see Conn. Code Evid. § 4-5 (b); we note that the trial
court also could have determined that the evidence of each assault was
probative of the defendant’s propensity to engage in aberrant and compulsive
sexual behavior. See State v. Eddie N. C., 178 Conn. App. 147, 158 n.9, 174
A.3d 803 (2017), cert. denied, 327 Conn. 1000, 176 A.3d 558 (2018). ‘‘In State
v. DeJesus, [288 Conn. 418, 466, 953 A.2d 45 (2008), our Supreme Court]
held that, in cases involving sexual misconduct, [e]vidence of [other sexual]
misconduct is admissible [for propensity purposes] if the offense is proxi-
mate in time, similar to the offense charged, and committed with persons
similar to the prosecuting witness. . . . Citing strong public policy reasons,
[the] court in DeJesus explained that sexual misconduct is often a behavioral
pattern, making past misconduct highly probative of other conduct. . . .
These factors long have served as the predominant framework for consider-
ing the admission of other sexual misconduct evidence to establish a com-
mon plan or scheme; see, e.g., State v. Esposito, 192 Conn. 166, 169–70, 471
A.2d 949 (1984); and have since been codified. Conn. Code Evid. § 4-5 (b)
. . . .’’ (Citations omitted; internal quotation marks omitted.) State v. Samuel
U., 348 Conn. 304, 322, 303 A.3d 1175 (2023).
14
It is well established that appellate courts have ‘‘never required the
talismanic recital of specific words or phrases if a review of the entire
record supports the conclusion that the trial court properly applied the law.
. . . Rather, [our Supreme Court and] this court [presume] that the trial
court properly applied the law in the absence of evidence to the contrary.’’
(Citations omitted; internal quotation marks omitted.) State v. Henderson,
312 Conn. 585, 597–98, 94 A.3d 614 (2014); see also State v. James K., 209
Conn. App. 441, 465, 267 A.3d 858 (2021), aff’d, 347 Conn. 648, 299 A.3d 243Page 18 CONNECTICUT LAW JOURNAL 0, 0
20 ,0 0 Conn. App. 1State v. Vickers
this determination, the defendant was not prejudiced
by the denial of his motion to sever. Furthermore, we
need not consider the defendant’s arguments that the
court improperly applied the Boscarino factors in this
case. Our Supreme Court has explicitly stated that if
‘‘evidence is cross admissible . . . our inquiry [as to
whether joinder would be prejudicial to the defendant]
ends.’’ (Internal quotation marks omitted.) State v.
James A., supra, 345 Conn. 615; see id., 620–21; see
also State v. Michael R., supra, 346 Conn. 444; State v.
Crenshaw, supra, 313 Conn. 82 n.6; State v. LaFleur,
307 Conn. 115, 155, 51 A.3d 1048 (2012); Leconte v.
Commissioner of Correction, 207 Conn. App. 306, 327–
28, 262 A.3d 140, cert. denied, 340 Conn. 902, 263 A.3d
387 (2021); State v. Labarge, supra, 164 Conn. App. 306.
Accordingly, we conclude that the court did not abuse
its discretion in denying the motion to sever.
II
The defendant also claims that the trial court commit-
ted plain error by failing to instruct the jury, sua sponte,
on the proper use of the evidence following the denial
of his motion to sever. Specifically, he argues that, if
this court were to conclude that his failure to request
a jury instruction regarding the joinder of the offenses
constituted a waiver of his right to challenge the denial
of his motion to sever, then we should reverse his con-
viction pursuant to the plain error doctrine. We decline
to review the merits of this claim.
In his principal appellate brief, the defendant states:
‘‘However, even if the state, on appeal, should argue,
and even if this court were to find, that, by failing to
submit a proposed cautionary instruction, or to timely
object to the court’s failure to give one, the defense
had now somehow waived its right to raise, on appeal,
(2023); State v. Papineau, 182 Conn. App. 756, 771–72, 190 A.3d 913, cert.
denied, 330 Conn. 916, 193 A.3d 1212 (2018).
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0 Conn. App. 1 ,0 21
State v. Vickers
the claim that the court’s denial of severance was an
abuse of discretion which had resulted in ‘substantial
injustice’ in this case, for the following reasons, reversal
of the defendant’s convictions, and an order requiring
a new trial, would still be required since such reversal is
warranted under the ‘plain error doctrine.’ ’’ (Emphasis
added.) See Practice Book § 60-5. The defendant’s fur-
ther argues in his brief: ‘‘Accordingly, in this case, even
if this court were to somehow conclude that (a) joinder
was proper; and (b) that, by failing to request a proper
jury instruction, or register a timely objection to the
court’s failure to give one, defense counsel had waived
or forfeited the right to contest the trial court’s joinder/
severance decision on appeal, this court, nonetheless,
under the plain error doctrine, must order reversal of
the defendant’s convictions and remand for a new trial.’’
(Emphasis added.)
In its appellate brief, the state counters that it ‘‘con-
cedes that the defendant did not waive his right to
challenge the trial court’s denial of his motion to sever
by failing to request a limiting instruction or [by] not
objecting to its absence. The state’s concession renders
the defendant’s claim of plain error superfluous
because the defendant tethers it to the state[’s] making
a waiver argument. . . . Consequently, the court does
not need to review it.’’ (Citation omitted; emphasis
added.) The state further argues that the defendant
failed to demonstrate that the trial court committed
plain error in failing to give a cautionary or limiting
instruction regarding the joining of the charges of both
incidents.
The defendant’s claim of plain error was conditioned
explicitly on the threshold determination of this court
that his failure to request a jury instruction, or object
to the absence of such an instruction, constituted a
waiver of his claim that the trial court improperly denied
his motion to sever. That condition precedent did not
Page 20 CONNECTICUT LAW JOURNAL 0, 0
22 ,0 0 Conn. App. 1State v. Vickers
occur because we have reviewed the merits of the
defendant’s claim regarding the motion to sever in part
I of this opinion. Our reading of the defendant’s brief
is supported by the state’s acknowledgment in its brief
that he did not waive his claim regarding the denial of
the motion to sever. Accordingly, we need not consider
the defendant’s claim of plain error.
Even if we were to consider this claim, we would
conclude that the defendant failed to demonstrate plain
error. Our Supreme Court has explained that, ‘‘[t]o pre-
vail, the defendant must satisfy the two-pronged plain
error test. First, the defendant must establish that there
was an obvious and readily discernable error . . . .
Second, the defendant must establish that the obvious
and readily discernable error was so harmful or prejudi-
cial that it resulted in manifest injustice. . . . The plain
error doctrine is a rule of reversibility, not reviewability,
and the defendant is not entitled to relief unless the
alleged error is both so clear and so harmful that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . Put another
way, plain error is reserved for only the most egregious
errors. When an error of such magnitude exists, it neces-
sitates reversal.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v. Mebane,
Conn. , , A.3d (2024).
The defendant failed to identify the specific jury
instruction that the court should have provided in the
present case. In light of our conclusion that the evidence
regarding the two separate victims was cross admissi-
ble, it is entirely unclear what instruction the defendant
believes was required in order to avoid a manifest injus-
tice. Properly constructed jury instructions may well
differ depending on whether the evidence is cross
admissible, as opposed to instructions in cases in which
the evidence is not cross admissible, but the charges
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State v. Vickers
nonetheless were still properly joined for trial in accor-
dance with the Boscarino factors.15
More importantly, the defendant has not demon-
strated that the trial court’s failure to provide such
an instruction to the jury was an obvious and readily
discernable error that resulted in manifest injustice.
Simply stated, the defendant has not met his burden of
establishing a ‘‘most egregious’’ error warranting rever-
sal of his conviction. Accordingly, we conclude that,
even if we were to consider this claim under the plain
error doctrine, the defendant would not be entitled to
a reversal of his conviction.
The judgment is affirmed.
In this opinion the other judges concurred.
15
Compare State v. Michael R., supra, 346 Conn. 451–52, 452 n.18 (jury
was instructed that evidence may apply to more than one count, but defen-
dant was entitled to separate and independent determination of guilt for
each count), with State v. Norris, 213 Conn. App. 253, 287, 277 A.3d 839(preferrable for trial court to instruct jury that evidence in domestic violence
case was not admissible in hospital assault case and that cases were consoli-
dated solely for judicial economy, and to emphasize requirement that jury
consider evidence in each case separately), cert. denied, 345 Conn. 910, 283
A.3d 980 (2022). See generally Connecticut Criminal Jury Instructions 2.2-
6, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited
October 23, 2024).