State v. Chyung

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. CHIHAN ERIC CHYUNG
(SC 19375)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued January 18—officially released April 18, 2017
Conrad Ost Seifert, assigned counsel, for the appel-
lant (defendant).
David J. Smith, senior assistant state’s attorney, with
whom, on the brief, was Michael Regan, state’s attor-
ney, for the appellee (state).
Opinion
ROGERS, C. J. The primary issue that we must decide
in this appeal is whether the trial court properly denied
the defendant’s motion for a judgment of acquittal and
for a new trial after the jury rendered legally inconsis-
tent guilty verdicts on charges of murder and of man-
slaughter in the first degree with a firearm. The state
charged the defendant, Chihan Eric Chyung, with mur-
der in violation of General Statutes § 53a-54a and man-
slaughter in the first degree with a firearm in violation
of General Statutes § 53a-55a (a)1 in connection with
the shooting death of his wife, Paige Chyung (victim).
After a trial, the jury rendered verdicts of guilty on both
charges. Thereafter, the defendant filed a motion for
judgment of acquittal and for a new trial contending
that the verdicts were legally inconsistent because, to
convict the defendant of murder, the jury had to find
that he had a specific intent to kill the victim, whereas,
to convict him of manslaughter in the first degree, the
jury was required to find that he acted recklessly. The
trial court denied the motion on the ground that the
defendant had waived the claim by failing to request a
jury instruction that he could not be convicted of both
charges. The trial court also concluded, however, that
the verdict of guilty on the manslaughter charge must
be vacated pursuant to case law holding that, when a
defendant is convicted of both a greater offense and a
lesser included offense, thereby violating constitutional
double jeopardy principles, the proper remedy is to
vacate the conviction on the lesser included offense.
After vacating the guilty verdict of manslaughter in the
first degree with a firearm, the trial court sentenced the
defendant to forty years imprisonment on the murder
charge. This appeal followed.2 We conclude that the
trial court improperly determined that the defendant
had waived the claim that the guilty verdicts on the
charges of murder and manslaughter in the first degree
with a firearm were legally inconsistent by failing to
request a jury instruction on the issue. Rather, we con-
clude that legally inconsistent verdicts involve jury
error that may be raised for the first time after the
verdicts have been returned or on appeal. Because we
conclude that the verdicts were legally inconsistent,
and because there is no way for the trial court or this
court to know which charge the jury found to be sup-
ported by the evidence, neither verdict can stand.
Accordingly, we conclude that both guilty verdicts must
be vacated and the case must be remanded to the trial
court for a new trial.
The jury reasonably could have found the following
facts, which support either the guilty verdict on the
charge of manslaughter in the first degree with a firearm
or the guilty verdict on the charge of murder. The defen-
dant testified that he and the victim, who were married
in May, 2009, lived at 257 Norwich Avenue in Norwich.
According to the defendant, on the evening of June 2,
2009, they had an argument about the victim’s purchase
of new tires for her truck. The victim was upset because
the defendant told her that she had paid too much for
the tires. She left the residence, telling the defendant,
‘‘I can’t care if you’re here when I get back.’’ The defen-
dant and the victim then had several telephone conver-
sations, during which they continued to argue. The
defendant ultimately decided that he should leave the
residence and he packed a bag with his belongings. He
then placed the bag by the kitchen door and waited for
the victim to return.
The defendant testified that the victim returned to
the residence at about 7:30 p.m. The defendant and the
victim continued to argue, and the defendant decided
that he would leave and go to a friend’s house in New
Haven. He then retrieved his pistol from a nightstand
in the second floor bedroom and brought it downstairs
to the kitchen, intending to pack it in his bag. He put
the bag on the kitchen table and, as he attempted to
open the bag by pulling on the zippers, the gun dis-
charged. The defendant testified that he had not known
that the gun was loaded. After the gun fired, the defen-
dant looked up and saw the victim, who looked scared.
She then fell to the floor. Believing that the victim was
dead, the defendant grabbed his bag, went to his truck
and drove away from the residence.
As he was driving, the defendant called a friend and
told him that the victim had been shot. The friend told
the defendant that he should return to the residence
and call 911. The defendant then drove back to the
residence, called 911 while still in his truck and reported
that he had shot the victim.
Thomas Lazzaro, a patrol officer with the Norwich
Police Department (department), testified that he and
other members of the department responded to the
defendant’s 911 call. Upon arriving at the defendant’s
residence, the police arrested him. They kicked in the
door to the residence and found the victim’s body on
the kitchen floor. Lazzaro observed that the house was
in disarray and that items were ‘‘thrown all over the
place . . . .’’ In the living room, the victim’s purse was
on the floor and its contents were strewn ‘‘all over the
area.’’ Pieces of a broken ice cube tray were found
scattered around the first floor and, in the second floor
bedroom, Lazzaro observed a broken ashtray.
Damien Martin, a patrol officer with the department,
testified that, after the defendant was given a Miranda
warning3 at the scene of the shooting, he was asked
what had happened. The defendant stated that he and
the victim had an argument about a fishing pole that
he had purchased because the victim was upset about
the expense. He also stated that he had been drinking.
After deciding to leave the residence, he packed a suit-
case and put it on the kitchen table. He then decided
to pack his handgun. As he attempted to put the gun into
the suitcase, it accidentally fired and struck the victim.
Amber Levesque testified that she and her boyfriend,
Richard Hernandez, lived in an apartment in a building
next door to the defendant’s residence on the date of
the shooting. At approximately 9:30 p.m., she heard
a man and a woman arguing in the residence. After
approximately twenty minutes, the argument stopped.
Levesque then heard the woman scream and, approxi-
mately fifteen seconds later, a loud bang. Approxi-
mately two minutes after that, she heard a door slam.
She then went to bed. Between approximately 11 and
11:30 p.m., Hernandez’ mother, who lived in the same
apartment, came into the bedroom and said that there
were police in front of the defendant’s residence. Her-
nandez testified that, starting at approximately 9:30
p.m., he heard arguing from the defendant’s residence
that lasted for approximately one-half hour. He then
heard a woman scream, followed by a gunshot.
Frank Evangelista, a physician employed by the
Office of the Chief Medical Examiner, testified that he
performed an autopsy on the victim. During the autopsy,
Evangelista observed a gunshot wound to the victim’s
forehead and multiple areas of blunt trauma, including
two bruises on her left chest, an abrasion on her back,
and a bruise on each thigh. There was gunpowder stip-
pling around the head wound, indicating that the gun
had been one to three feet away from the victim’s head
when it was fired. An X-ray showed that the bullet had
entered the victim’s forehead and traveled to the back
of her skull, causing her death.
Gregory Danas testified for the defendant as an
expert in the handling of firearms. Danas testified that
the gun that the defendant had fired was a ‘‘model Glock
19 . . . .’’ He further testified that, on the basis of his
discussions with the defendant about the events leading
up to the shooting, ‘‘any time [a] firearm is handled in
that fashion, [there] is a high degree of probability,
regardless of who’s touching the gun, that that gun is
going to go off,’’ and that it was possible that the dis-
charge was accidental.
The defendant was charged in a two count substitute
information with murder in violation of § 53a-54a and
manslaughter in the first degree with a firearm in viola-
tion of § 53a-55a (a). During closing arguments, the state
argued that the evidence established that the defendant
was guilty of murder because he pointed the gun at the
victim and pulled the trigger with the intent to cause
her death.4 The defendant argued that, to the contrary,
the evidence showed that the gun discharged because
he had handled it carelessly and negligently.
The jury returned verdicts of guilty on both the charge
of murder and the charge of manslaughter in the first
degree with a firearm. Thereafter, the defendant filed
a motion for judgment of acquittal and for a new trial
in which he contended, among other things, that the
verdicts were legally inconsistent because the murder
conviction required the jury to find that he had acted
with the specific intent to cause the victim’s death and
the conviction on manslaughter in the first degree with
a firearm required the jury to find that he had acted
recklessly. The trial court denied the motion for a new
trial on the ground that the defendant had failed to
request a jury instruction that he could not be convicted
on both charges. Cf. State v. Kitchens, 299 Conn. 447,
466, 10 A.3d 942 (2011) (defendant waives claim based
on improper jury instruction when ‘‘defense counsel
acquiesces in the instructions following a meaningful
opportunity to review them outside the rush of trial,
participates in an on-the-record charge conference
designed to allow counsel to identify errors while they
still can be remedied and takes no exception after the
charge has been delivered’’). The court also concluded,
however, that, under the circumstances of this case,
the charge of manslaughter in the first degree with a
firearm was a lesser included offense of the murder
charge. Accordingly, the court concluded that, to pro-
tect the defendant’s constitutional right not to be sub-
ject to multiple punishments for the same offense under
the double jeopardy clause of the fifth amendment to
the United States constitution, the defendant’s man-
slaughter conviction must be vacated. See State v.
Polanco, 308 Conn. 242, 260, 61 A.3d 1084 (2013) (‘‘when
a defendant is convicted of greater and lesser included
offenses, the trial court shall vacate the conviction for
the lesser offense’’). Thereafter, the trial court rendered
judgment in accordance with the guilty verdict on the
murder charge.
This appeal followed. The defendant contends that
the trial court improperly denied his motion for a judg-
ment of acquittal and for a new trial on the ground that
he had failed to request a jury instruction that he could
not be convicted of both the charge of murder and
the charge of manslaughter in the first degree with a
firearm. The defendant further contends that the guilty
verdicts should be vacated because they were legally
inconsistent. In addition, the defendant contends that
the trial court improperly allowed the state to present
certain evidence of uncharged misconduct. We agree
with the defendant’s position that the trial court improp-
erly declined to review his claim that the verdicts were
legally inconsistent and that the verdicts must be
vacated. We reject, however, his evidentiary claim.
I
We first address the defendant’s claim that his convic-
tions for manslaughter in the first degree with a firearm
and murder must be vacated because: (1) they were
legally inconsistent; and (2) contrary to the trial court’s
determination, he was not required to request a jury
instruction that he could not be convicted of both
offenses to preserve the issue for postverdict consider-
ation. The following legal principles guide our analysis
of this claim. ‘‘A claim of legally inconsistent convic-
tions, also referred to as mutually exclusive convictions,
arises when a conviction of one offense requires a find-
ing that negates an essential element of another offense
of which the defendant also has been convicted. . . .
In response to such a claim, we look carefully to deter-
mine whether the existence of the essential elements
for one offense negates the existence of [one or more]
essential elements for another offense of which the
defendant also stands convicted. If that is the case,
the [convictions] are legally inconsistent and cannot
withstand challenge. . . . Whether two convictions are
mutually exclusive presents a question of law, over
which our review is plenary.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Nash, 316 Conn.
651, 659, 114 A.3d 128 (2015).
This court previously has recognized that ‘‘the statu-
tory definitions of ‘intentionally’5 and ‘recklessly’6 are
mutually exclusive and inconsistent. Reckless conduct
is not intentional conduct because one who acts reck-
lessly does not have a conscious object to cause a
particular result.’’ (Footnotes added; internal quotation
marks omitted.) State v. King, 216 Conn. 585, 593–94,
583 A.2d 896 (1990), on appeal after remand, 218 Conn.
747, 591 A.2d 813 (1991). Rather, one acts recklessly
when one ‘‘is aware of and consciously disregards a
substantial and unjustifiable risk that [a particular]
result will occur . . . .’’ General Statutes § 53a-3 (13).
Thus, a defendant cannot ‘‘simultaneously [act] inten-
tionally and recklessly with regard to the same act and
the same result, i.e., the injury to the victim.’’ State v.
King, supra, 593. Accordingly, jury verdicts convicting
the defendant both on a charge requiring proof of spe-
cific intent and on a charge requiring proof of reckless-
ness, with respect to the same act and the same result,
are legally inconsistent and cannot stand. Id., 594.
When a jury has rendered legally inconsistent ver-
dicts, there is no way for the reviewing court to know
which charge the jury found to be supported by the
evidence. Id.7 Accordingly, the court must vacate both
convictions and remand the case to the trial court for
a new trial. Id., 595.
In the present case, the jury’s verdict of guilty on the
charge of murder required the jury to find that the
defendant acted with the specific intent to cause the
death of the victim. See General Statutes § 53a-54a. On
the other hand, the jury’s verdict of guilty on the count
of manslaughter in the first degree required the jury to
find that the defendant acted recklessly. See General
Statutes § 53a-55a (a). Because a defendant cannot
simultaneously act intentionally and recklessly with
respect to the same act and the same result, we con-
clude that the jury verdicts were legally inconsistent.
We further conclude that the trial court improperly
determined that the defendant’s claim that the verdicts
were legally inconsistent could not be raised for the
first time in a motion for a new trial, but should have
been raised by way of a request for a jury instruction
that the defendant could not be convicted of both
offenses. The defendant contends that no such instruc-
tion was required because the inconsistent jury verdicts
were the result of an unforeseeable misapplication by
the jury of proper jury instructions.8 The state contends
that, to the contrary, the trial court’s determination was
correct under State v. Kitchens, supra, 299 Conn. 466.
We conclude that the trial court should have instructed
the jury that it could not find the defendant guilty of
both offenses and the defendant’s failure to request
such an instruction did not bar him from subsequently
challenging the legally inconsistent verdicts in a motion
for a new trial.
The proper procedure for raising a claim that guilty
verdicts are legally inconsistent has never been squarely
addressed by this court. Our research has revealed no
Connecticut cases, however, that support the proposi-
tion that, when the state has charged the defendant
with two offenses relating to the same act and the same
result, and requiring mutually exclusive states of mind,
the defendant is required to request a jury instruction
that he cannot be found guilty of both offenses in order
to preserve the issue of legally inconsistent verdicts for
postverdict consideration by the trial court and review
on appeal.9 For the following reasons, we now conclude
that the defendant is not required to do so.
This court previously has recognized that ‘‘[m]utually
exclusive [convictions] are the result of two positive
findings of fact that cannot logically coexist.’’ (Internal
quotation marks omitted.) State v. Arroyo, 292 Conn.
558, 584 n.21, 973 A.2d 1254 (2009). Thus, the state and
the trial court must be presumed to know both on the
basis of logic and on the basis of their legal training
that, when the state has tried a case on the theory
that the mutually exclusive offenses with which the
defendant has been charged relate to the same act and
the same result, the jury cannot properly render guilty
verdicts on both charges. See People v. Delgado, Docket
No. 13-CA-2024, 2016 WL 7009119, *3 (Colo. App. 2016)
(because it is manifestly obvious that defendant may
not be convicted on charges that are legally inconsis-
tent, trial court’s acceptance of legally inconsistent ver-
dicts is plain error).10 Accordingly, this situation is
distinguishable from the ordinary situation in which a
defendant raises an unpreserved claim of instructional
error. Ordinarily, such a claim involves a logical and
consistent verdict that was based on an improper
charge. When a jury returns legally inconsistent guilty
verdicts, however, it has returned illogical and inconsis-
tent verdicts that were based on a proper charge. There-
fore, the claim is more properly characterized as
involving jury error than instructional error. Cf. People
v. Ousley, 297 Ill. App. 3d 758, 763–64, 697 N.E.2d 926
(defendant’s claim that verdicts were legally inconsis-
tent did not constitute claim of instructional error),
cert. denied, 181 Ill. 2d 583, 706 N.E.2d 501 (1998).
Accordingly, a defendant’s first time, postverdict claim
of legally inconsistent verdicts cannot unfairly surprise
either the state or the trial court. Cf. Remillard v. Remil-
lard, 297 Conn. 345, 351–52, 999 A.2d 713 (2010) (ratio-
nale for rule requiring preservation of claim at trial
before claim will be reviewed on appeal is to prevent
‘‘trial by ambuscade, which is unfair to both the trial
court and the opposing party’’).
In this regard, it is significant that, when the charging
document and the state’s presentation of evidence are
sufficient to put the defendant on notice that he may
be convicted of multiple offenses involving mutually
exclusive states of mind on the theory that the offenses
relate to different acts or results, we have never required
the state to request a jury instruction that the defendant
may be convicted of multiple charges in order to avoid
unfairly surprising the defendant with multiple guilty
verdicts. See State v. King, 321 Conn. 135, 154, 136
A.3d 1210 (2016) (when charging document and state’s
presentation of evidence were sufficient to put defen-
dant on notice of state’s theory that two charges requir-
ing mutually inconsistent mental states related to
different acts and different results, defendant could be
convicted of both charges even though ‘‘the trial court
never explicitly informed the jury that it could deliver
a guilty verdict on both charges’’); cf. State v. Spikes,
111 Conn. App. 543, 553, 961 A.2d 426 (2008) (‘‘[w]hen
the nature of the crime as charged in the information
and the content of the instruction to the jury differ only
to the extent that they describe two different methods
of committing the same offense, the defendant is able
to establish an infringement of constitutional rights only
if he can demonstrate unfair surprise or prejudice’’),
cert. denied, 291 Conn. 901, 967 A.2d 114, cert. denied,
558 U.S. 898, 130 S. Ct. 249, 175 L. Ed. 2d 170 (2009).
Under the well established principle that ‘‘[w]hat’s
sauce for the goose is sauce for the gander’’; State v.
Fernandez, 5 Conn. App. 40, 52, 496 A.2d 533 (1985);11
this bolsters our conclusion that, when the defendant
has been charged with two offenses requiring mutually
exclusive states of mind, the manner in which the state
has presented the evidence is sufficient to put all parties
on notice as to whether the offenses relate to the same
act and result. Thus, when the state has tried the case on
the theory that multiple mutually inconsistent offenses
relate to the same act and the same result, the defen-
dant’s first time, postverdict challenge to legally incon-
sistent verdicts cannot result in unfair surprise to the
state or to the trial court. Rather, it is the legally incon-
sistent verdicts themselves that cause surprise. We con-
clude, therefore, that a claim of legally inconsistent
verdicts is not a claim of instructional error subject to
the constraints of Kitchens.
Nevertheless, although we conclude that a defen-
dant’s first time, postverdict challenge to legally incon-
sistent verdicts is permissible because it does not result
in unfair surprise to the prosecutor and the trial court
and because the verdicts are the result of jury error,
we also conclude that, to avoid the risk of a jury mistake,
the better practice is for the trial court to instruct the
jury on the issue in the initial charge.12 We further con-
clude that, regardless of whether such an instruction
has been given, if the jury renders legally inconsistent
guilty verdicts, either the defendant or the state should
object to the verdicts before the jury has been dis-
charged, so that the jury may be properly instructed
and continue its deliberations.13 See General Statutes
§ 52-223.14
Because of the important constitutional due process
implications of legally inconsistent guilty verdicts, how-
ever, we conclude that, even if the defendant and the
state have failed to object to the verdicts before the
jury is discharged, that failure does not bar the defen-
dant from raising the claim in a motion for a new trial.15
See State v. King, supra, 321 Conn. 139 (defendant
raised claim of legally inconsistent verdicts by filing
motion for new trial); cf. Ginsberg v. Fusaro, 225 Conn.
420, 426, 623 A.2d 1014 (1993) (‘‘we have never held
that a party is obliged to request reconsideration [of
the verdict by the jury pursuant to § 52-223] as a prereq-
uisite to challenging the validity of the verdict on a
motion to set aside the verdict’’ in civil case). We con-
clude, therefore, that the defendant’s failure to request
a jury instruction that the jury could not find him guilty
of both the charge of manslaughter in the first degree
and the charge of murder did not bar him from raising
the claim in his motion for a new trial.16 Accordingly,
because we have concluded that the guilty verdicts were
legally inconsistent, the verdicts must be vacated and
the case remanded to the trial court for a new trial. See
State v. King, supra, 216 Conn. 595.
The state makes two arguments in support of its claim
to the contrary. First, it contends that the court’s ruling
may be supported on the alternative ground that the
jury reasonably could have found that the defendant did
not act both recklessly and intentionally ‘‘with regard to
the same act and the same result’’; id., 593; but that he
engaged in two separate acts, one reckless and one
intentional, with two separate results. Second, the state
contends that, even if both guilty verdicts related to
the same act and the same result, the judgment may
be affirmed on the alternative ground that the verdicts
were not inconsistent because manslaughter in the first
degree with a firearm is a lesser included offense of
murder.
We first address the state’s contention that the jury
reasonably could have found that the defendant
engaged in two separate acts with two separate results.
Specifically, the state contends that the jury reasonably
could have found that: (1) the defendant acted reck-
lessly when handling the gun with the result that the
gun discharged and the bullet struck the victim; and
(2) the defendant then acted with the specific intent to
cause the victim’s death when he left the scene without
making any attempt to determine whether the victim
was still alive or to summon help, resulting in the vic-
tim’s death. Because, the state contends, the two differ-
ent mental states did not relate to the same act and the
same result, the convictions were not legally inconsis-
tent. See State v. King, supra, 321 Conn. 142 (‘‘convic-
tions are legally consistent if there is any plausible
theory under which the jury reasonably could have
found the defendant guilty of both of the offenses that
the defendant claims are legally inconsistent’’ [internal
quotation marks omitted]); State v. Nash, supra, 316
Conn. 666 n.14 (‘‘there is no reason why a defendant
may not simultaneously possess two different mental
states with respect to a single victim, as long as each
mental state relates to a different result’’).
As the state conceded at oral argument before this
court, however, it never presented this theory to the
jury during trial.17 Rather, during the presentation of
their respective cases and during closing argument,
both the defendant and the state focused exclusively
on the defendant’s mental state with respect to one act,
namely, the firing of the gun, and one result, namely,
the bullet striking the victim thereby causing her death.
Indeed, when arguing in opposition to the defendant’s
motion for a new trial, the state expressly conceded to
the trial court that ‘‘there are not two different acts
here. There’s one act.’’ Constitutional ‘‘[p]rinciples of
due process do not allow the state, on appeal, to rely
on a theory of the case that was never presented at
trial.’’ State v. King, supra, 321 Conn. 149; see also id.
(‘‘the state may not construe evidence adduced at trial
to support an entirely different theory of guilt than the
one that the state argued at trial’’). Accordingly, we
reject this claim.
We next address the state’s contention that the guilty
verdict on the charge of manslaughter in the first degree
with a firearm was not inconsistent with the guilty ver-
dict on the murder charge because manslaughter in the
first degree with a firearm is a lesser included offense
of murder.18 See Carpenter v. Commissioner of Correc-
tion, 290 Conn. 107, 124, 961 A.2d 403 (2009) (‘‘[m]an-
slaughter in the first degree . . . is a lesser included
offense in a murder indictment’’ [internal quotation
marks omitted]); State v. Rodriguez, 180 Conn. 382,
405, 429 A.2d 919 (1980) (by being charged with murder,
defendant is on notice that he may be convicted of
‘‘lesser included homicides that require a less serious
degree of culpable intent,’’ including manslaughter).
Accordingly, the state contends, it would not have been
possible for the defendant to commit the murder with-
out first committing manslaughter in the first degree.
See State v. Tomlin, 266 Conn. 608, 617, 835 A.2d 12
(2003) (offense is lesser included offense of another
offense only when ‘‘it is not possible to commit the
greater offense . . . without having first committed
the lesser’’ [internal quotation marks omitted]).
We are not persuaded. The issue of whether man-
slaughter in the first degree is a lesser included offense
was first addressed by this court in Rodriguez. The
issue in that case was whether a defendant who has
been charged only with murder is on notice that the
trial court may instruct the jury on the charge of man-
slaughter in the first degree. State v. Rodriguez, supra,
180 Conn. 399. This court answered this question in the
affirmative, because manslaughter is a lesser included
offense of murder. Id., 407; see also State v. Tomlin,
supra, 266 Conn. 616–17 (‘‘[t]he constitutionality of
instructing on lesser included offenses is grounded on
the premise that whe[n] one or more offenses are lesser
than and included within the crime charged, notice of
the crime charged includes notice of all lesser included
offenses’’ [internal quotation marks omitted]). This
court previously has recognized, however, that,
although Rodriguez properly held that manslaughter in
the first degree is a lesser included offense of murder,
that ruling provides an exception to the ordinary rule
that ‘‘the greater offense require[s] all of the same ele-
ments that the lesser included offense required, plus
some additional element or elements’’; Carpenter v.
Commissioner of Correction, supra, 290 Conn. 125;
because ‘‘[m]anslaughter in the first degree based on
reckless conduct . . . does not include the same ele-
ments as murder.’’ Id.; see also id., 124–25 (‘‘Rodriguez
. . . did not conform to the previously established
[building block] test for determining whether a crime
is a lesser included offense’’). Indeed, the court in
Rodriguez expressly recognized that manslaughter in
the first degree ‘‘requires a different state of mind of the
actor than that required for murder’’; State v. Rodriguez,
supra, 403; and it ‘‘expressly overruled or distinguished
case law that would have required the court to treat
homicide in accordance with the more limited parame-
ters of building block lesser offenses.’’ Carpenter v.
Commissioner of Correction, supra, 125. In other
words, this court in Rodriguez held that manslaughter
in the first degree is a lesser included offense of murder
despite the fact that the elements of manslaughter are
not included in the elements of murder. State v. Rodri-
guez, supra, 405. Thus, as we recognized in Carpenter,
Rodriguez did not abrogate the black letter law that
recklessness and intentionality are ‘‘mutually exclusive
and inconsistent state[s] of mind.’’19 (Internal quotation
marks omitted.) Carpenter v. Commissioner of Correc-
tion, supra, 126.
Accordingly, unlike the situation where a jury returns
guilty verdicts on both a greater offense and a lesser
included offense that conform to the ordinary ‘‘building
block’’ test, when a jury returns guilty verdicts on man-
slaughter in the first degree and murder, the jury has not
necessarily found all of the elements of manslaughter in
the first degree. Rather, as we have explained, the jury
has acted illogically by finding mutually inconsistent
states of mind, and there simply is no way for a
reviewing court to know which verdict the jury found
to be supported. See State v. King, supra, 216 Conn.
594. Accordingly, although manslaughter in the first
degree is a lesser included offense of murder under
Rodriguez, because the states of mind required by the
two offenses are mutually exclusive, the rule of King—
that when a jury returns inconsistent verdicts both ver-
dicts must be vacated—applies.20 See id., 594–95. We
therefore reject this claim.
II
We next address the defendant’s claim that the trial
court improperly permitted the state to present evi-
dence of prior uncharged misconduct.21 We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. On Septem-
ber 6, 2012, after reading a newspaper article about the
shooting death of the victim in the present case, Pamela
Febles provided a statement to the Norwich Police
Department. Febles stated that, starting some time in
1995, she and the defendant lived together for one year.
During that time, the defendant was jealous and control-
ling and subjected Febles to mental and physical abuse.
Approximately one month before she moved out of
their shared residence, Febles arrived home late after an
office Christmas party. When she entered the residence,
the defendant rushed toward her, pinned her against a
wall and held a Glock handgun to her head.
During the trial, the defendant filed a motion in limine
to preclude the state from making any reference to
the incident involving Febles. The defendant contended
that the evidence constituted inadmissible propensity
evidence under § 4-5 (a) of the 2012 edition of the Con-
necticut Code of Evidence.22 The state contended that,
to the contrary, the evidence was admissible under § 4-
5 (c)23 because the state intended to use it to establish
the defendant’s intent and to rebut his claim that the
victim’s death was the result of a mistake or an accident.
The trial court concluded that the evidence was
admissible because it was relevant to prove intent and
the absence of a mistake or an accident. The court
noted that there were ‘‘substantial similarities between
the prior conduct and the conduct at issue here. Specifi-
cally, the conduct occurred in the context of a domestic
dispute, the conduct involved a firearm . . . and . . .
there were allegations of bruising in both situations.’’
The court also found that, ‘‘even though the Febles
incident occurred approximately [fourteen] years prior
to the events in question here, that time frame does not
preclude the state’s inquiry . . . .’’
Thereafter, during cross-examination of the defen-
dant, the prosecutor described the incident involving
Febles and asked the defendant if he recalled it. The
defendant testified that he did not. He admitted, how-
ever, that he had had a relationship with Febles and
that they eventually had broken up. On redirect exami-
nation, the defendant testified that he purchased the
Glock handgun with which the victim was killed in 2000
and he did not own a Glock handgun in 1995. The
trial court instructed the jury that it could consider the
evidence concerning the incident with Febles only to
the extent that it bore on the absence of mistake or
accident.
With this background in mind, we turn to the legal
principles governing the defendant’s claim that the evi-
dence concerning the incident involving Febles was
inadmissible propensity evidence.24 ‘‘In order to deter-
mine whether [evidence of prior misconduct] is admissi-
ble, we use a two part test. First, the evidence must be
relevant and material to at least one of the circum-
stances encompassed by the exceptions. Second, the
probative value of [the prior misconduct] evidence must
outweigh [its] prejudicial effect . . . . Because of the
difficulties inherent in this balancing process, the trial
court’s decision will be reversed only whe[n] abuse of
discretion is manifest or whe[n] an injustice appears
to have been done. . . . On review by this court, there-
fore, every reasonable presumption should be given in
favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) State v. Merriam, 264 Conn. 617, 661,
835 A.2d 895 (2003).
‘‘Because intent is almost always proved, if at all,
by circumstantial evidence, prior misconduct evidence,
where available, is often relied upon.’’ State v. Baldwin,
224 Conn. 347, 355, 618 A.2d 513 (1993). Evidence of
uncharged misconduct is particularly probative on the
issue of intent when the uncharged misconduct is simi-
lar to the charged conduct. Id.; see also State v. Tucker,
181 Conn. 406, 415, 435 A.2d 986 (1980) (evidence of
uncharged misconduct may be used to establish ‘‘a pat-
tern of behavior and an attitude . . . that is indicative
of the defendant’s state of mind’’).
In the present case, the defendant claims that the
probative value of the purported evidence25 concerning
the incident involving Febles was outweighed by its
prejudicial effect. Specifically, he contends that Febles’
statement to the police was unreliable because it was
given seventeen years after the incident and she had
never reported the incident before that time. The defen-
dant further contends that, even if the incident
occurred, it was too remote in time to be relevant.
Finally, he claims that the evidence was unreliable and
prejudicial because there was no evidence that he
owned a Glock handgun in 1995.
We conclude that the trial court did not abuse its
discretion when it allowed the state to question the
defendant about the incident involving Febles. The evi-
dence was relevant to prove intent and the absence of
mistake or accident because of the substantial similari-
ties between the incidents. Specifically, in both inci-
dents, a woman with whom the defendant was romanti-
cally involved had been absent from the residence that
they shared under circumstances that caused the defen-
dant to become upset and then, after the woman
returned to the residence, the defendant produced a
Glock handgun. Given these similarities, if the jury
believed Febles’ account that the defendant intention-
ally pinned her to the wall and held the gun to her head,
it reasonably could have inferred that he followed the
same pattern of behavior during the argument with the
victim. Thus, the jury reasonably could have concluded
that the evidence rebutted the defendant’s testimony
that the gun accidentally discharged while he was trying
to put it in his bag.
We further conclude that, given the strong similarities
between the two incidents and the strongly aberrational
nature of the defendant’s conduct—producing a gun
during an argument with a domestic partner—the four-
teen year gap between the incidents of misconduct did
not render the evidence of the incident involving Febles
irrelevant. With respect to the defendant’s claim that the
evidence was unreliable because Febles never reported
the incident to the police before she gave the statement
in 2012, the defendant does not provide the evidentiary
basis for this representation. In any event, even if that
is the case, Febles’ failure to report the incident to
the police immediately would not render the evidence
inadmissible, but would be grist for the jury mill.
Finally, with respect to the defendant’s claim that
there was no evidence that he owned a Glock handgun
in 1995, Febles’ statement that he threatened her with
a Glock handgun was, in and of itself, evidence that
the jury was free to credit or discredit in light of the
defendant’s denial that he owned such a gun at the time
that he was involved with Febles.26 Moreover, even if
the jury did not believe Febles’ statement on that point,
that would not render her statement irrelevant or
unduly prejudicial because the brand of the gun that
the defendant held to Febles’ head was tangential to
the evidence of the assault. Accordingly, we reject
this claim.27
The judgment is reversed and the case is remanded
to the trial court with direction to vacate the legally
inconsistent guilty verdicts of murder and manslaughter
in the first degree with a firearm and to grant the defen-
dant’s motion for a new trial.
In this opinion PALMER, EVELEIGH, ESPINOSA,
ROBINSON and VERTEFEUILLE, Js., concurred.
1
General Statutes § 53a-55a (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses, or is armed with and threatens the
use of or displays or represents by his words or conduct that he possesses
a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .’’
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is guilty
of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person.’’
2
The defendant appealed to this court pursuant to General Statutes § 51-
199 (b) (3).
3
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4
At oral argument before this court, the state conceded that its sole theory
in support of the murder charge was that the defendant intended to kill the
victim when he shot her.
5
General Statutes § 53a-3 (11) provides: ‘‘A person acts ‘intentionally’ with
respect to a result or to conduct described by a statute defining an offense
when his conscious objective is to cause such result or to engage in such
conduct . . . .’’
6
General Statutes § 53a-3 (13) provides: ‘‘A person acts ‘recklessly’ with
respect to a result or to a circumstance described by a statute defining an
offense when he is aware of and consciously disregards a substantial and
unjustifiable risk that such result will occur or that such circumstance exists.
The risk must be of such nature and degree that disregarding it constitutes
a gross deviation from the standard of conduct that a reasonable person
would observe in the situation . . . .’’
7
In State v. King, supra, 216 Conn. 592, the jury rendered legally inconsis-
tent verdicts of attempted murder and assault in the first degree after the
trial court instructed the jury that the defendant could be convicted of both
charges. This court concluded that both convictions must be vacated because
it had ‘‘no way of knowing whether a properly instructed jury would have
found the defendant guilty of attempted murder or assault in the first degree.’’
Id., 594. Although there was no such improper jury instruction in the present
case, the same problem arises. We simply have no way of knowing whether
the jury believed that the defendant acted recklessly and, therefore, improp-
erly convicted him of murder or, conversely, the jury believed that he had
acted with the specific intent to kill the victim and improperly convicted
him of manslaughter in the first degree. Accordingly, King applies equally
here. See People v. Spears, 112 Ill. 2d 396, 410, 493 N.E.2d 1030 (1986) (when
trial court failed to give any instruction regarding potentially inconsistent
verdicts, trial court could ‘‘not properly enter judgment on one or more of
the verdicts and vacate the others’’ because trial court ‘‘may not usurp the
function of a jury by second-guessing which of the two verdicts was intended
by the jury and which was a result of some misconception’’ [internal quota-
tion marks omitted]); People v. Gallagher, 69 N.Y.2d 525, 530, 508 N.E.2d
909, 516 N.Y.S.2d 174 (1987) (when trial court failed to give any instruction
regarding potentially inconsistent verdicts, new trial was required because
‘‘it is impossible to determine what if anything the jury decided on the issue
of [the] defendant’s mental state at the time of the offense’’).
8
Because Kitchens bars appellate review of a claim of instructional error
only if the party raising the claim was required to request a jury instruction
and failed to do so; see State v. Kitchens, supra, 299 Conn. 466; the defen-
dant’s claim that he was not required to request a jury instruction in the
present case is reviewable.
9
See, e.g., State v. King, 321 Conn. 135, 139, 136 A.3d 1210 (2016) (defen-
dant raised claim of legally inconsistent verdicts by filing motion for new
trial); State v. Williams, 237 Conn. 748, 752–53, 679 A.2d 920 (1996)
(addressing defendant’s claim of legally inconstant verdicts without speci-
fying whether claim was raised in trial court or preserved for review);
State v. Nash, supra, 316 Conn. 658 and n.8 (unpreserved claim of legally
inconsistent convictions reviewed pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 [1989]); State v. Hinton, 227 Conn. 301, 313, 630
A.2d 593 (1983) (when defendant neither objected to jury instructions on
offenses with mutually exclusive states of mind nor objected to trial court’s
acceptance of verdicts, court reviewed unpreserved claim pursuant to Gold-
ing); State v. King, supra, 216 Conn. 592 n.9 (defendant claimed on appeal
that trial court improperly denied his motion to dismiss or elect counts and
his motion for new trial and improperly instructed jury, and this court held
that ‘‘[t]his claim [of legally inconsistent verdicts] was raised sufficiently at
trial to alert the [trial] court to the problem of inconsistent verdicts and
was consequently preserved for appeal’’); State v. Lokting, 128 Conn. App.
234, 237, 16 A.3d 793 (defendant raised claim of legally inconsistent verdicts
by filing postverdict motion for judgment of acquittal), cert. denied, 301
Conn. 926, 22 A.3d 1277 (2011); State v. Hazel, 106 Conn. App. 213, 222,
941 A.2d 378 (reviewing unpreserved claim of legally inconsistent verdict
pursuant to Golding), cert. denied, 287 Conn. 903, 947 A.2d 343 (2008); State
v. Green, 81 Conn. App. 152, 155, 838 A.2d 1030 (defendant raised claim of
legally inconsistent verdicts by filing preverdict motion for judgment of
acquittal), cert. denied, 268 Conn. 909, 845 A.2d 413 (2004); State v. Bjor-
klund, 79 Conn. App. 535, 564, 830 A.2d 1141 (2003) (defendant raised claim
of legally inconsistent verdicts by filing motion in arrest of judgment), cert.
denied, 268 Conn. 920, 846 A.2d 882 (2004); State v. Kuranko, 71 Conn. App.
703, 713, 803 A.2d 383 (2002) (addressing defendant’s claim that verdicts
were legally inconsistent without specifying whether claim was raised in
trial court or preserved for review); State v. Jones, 68 Conn. App. 562, 566,
792 A.2d 148 (defendant raised claim of legally inconsistent verdicts by filing
motion for new trial), cert. denied, 260 Conn. 917, 797 A.2d 515 (2002); State
v. Morascini, 62 Conn. App. 758, 761, 772 A.2d 703 (defendant raised claim
of legally inconsistent verdicts by objecting at close of evidence to state’s
request to submit both charges to jury), cert. denied, 256 Conn. 921, 774
A.2d 141 (2001); State v. Mooney, 61 Conn. App. 713, 719, 767 A.2d 770
(reviewing unpreserved claim of legally inconsistent verdicts pursuant to
Golding), cert. denied, 256 Conn. 905, 772 A.2d 598 (2001); State v. Haw-
thorne, 61 Conn. App. 551, 554, 764 A.2d 1278 (2001) (addressing defendant’s
claim that verdicts were legally inconsistent without specifying whether
claim was raised in trial court or preserved for review); State v. Harris, 54
Conn. App. 18, 22, 734 A.2d 1027 (defendant raised claim of legally inconsis-
tent verdicts by filing motion for new trial), cert. denied, 250 Conn. 925,
738 A.2d 660 (1999).
We recognize that, in State v. King, supra, 216 Conn. 595, after finding
that the verdicts were legally inconsistent, this court directed that, in the
new trial on remand, ‘‘the trial court must instruct the jury that, depending
on its findings of fact, it may convict the defendant of one count or the
other, but not of both.’’ (Emphasis in original.) The court in King did not
suggest, however, that requesting such an instruction is the only proper
procedure for raising such a claim and, in the twenty-seven years since
King was decided, the decision has never been interpreted in that manner.
10
We emphasize that the court in Delgado held that the trial court’s accep-
tance of legally inconsistent verdicts constituted plain error, not the court’s
failure to instruct the jury on the issue. People v. Delgado, supra, 2016 WL
7009119, *3. This supports the defendant’s position that legally inconsistent
verdicts simply cannot be anticipated because they are inherently illogical.
Indeed, this court has held that legally inconsistent verdicts violate the
defendant’s constitutional due process right to notice of the nature of the
charges against him. See State v. King, 321 Conn. 135, 147–49, 136 A.3d
1210 (2016) (when state tries case on theory that multiple offenses requiring
mutually inconsistent states of mind relate to same act and same result,
convictions on both charges would constitute violation of due process
requirement that defendant be notified of charges against him). If the defen-
dant is not on notice that he may be convicted of multiple charges requiring
mutually inconsistent mental states, the state and the trial court necessarily
are on notice that the defendant may not be convicted of the offenses.
11
See also Robbins v. Van Gilder, 225 Conn. 238, 252, 622 A.2d 555 (1993)
(‘‘the same sauce [that the plaintiff] attempted to spread on the defendants’
goose also necessarily graced his own gander’’).
12
We again emphasize, however, that the burden is not on the defendant
to request an instruction that he may not be convicted of multiple offenses
requiring mutually exclusive states of mind and the defendant’s failure to do
so does not render a postverdict claim of inconsistent verdicts unreviewable.
Similarly, although the state is not required to request a jury instruction
that the defendant may be convicted of multiple offenses requiring mutually
exclusive mental states when the charging document and the state’s presen-
tation of evidence are sufficient to put the defendant on notice that the
charges relate to different acts and results, the better practice is to give
such an instruction in the court’s initial charge.
13
Several other states follow this procedure when a jury has rendered
legally inconsistent verdicts. See Coba v. Tricam Industries, Inc., 164 So.
3d 637, 644 (Fla. 2015) (party claiming inconsistency must raise issue before
jury is discharged and ask trial court to reinstruct jury and send it back for
further deliberations); Givens v. State, 449 Md. 433, 466–67, 144 A.3d 717
(2016) (same; citing cases).
14
General Statutes § 52-223 provides: ‘‘The court may, if it judges the jury
has mistaken the evidence in the action and has brought in a verdict contrary
to the evidence, or has brought in a verdict contrary to the direction of the
court in a matter of law, return them to a second consideration, and for
the same reason may return them to a third consideration. The jury shall
not be returned for further consideration after a third consideration.’’ Section
52-223 and that statute’s predecessors have been applied in both civil and
criminal cases. See State v. DiPietro, 120 Conn. 537, 539, 181 A. 716 (1935)
(under predecessor to § 52-223, ‘‘the court may refuse to accept [a verdict
in a criminal case] if it is not in proper form or otherwise imperfect, or it
may refuse to accept it for the time being and return the jury to a second
or even a third consideration of the case’’); State v. Dougherty, 38 Conn.
Supp. 400, 404, 450 A.2d 870 (App. Sess. 1982) (trial court properly applied
§ 52-223 in criminal case).
15
In addition to implicating the constitutional due process right to notice
of the nature of the charges against a defendant; see footnote 10 of this
opinion; legally inconsistent guilty verdicts implicate the constitutional due
process right to proof beyond a reasonable doubt of every element of the
charged offense. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L.
Ed. 2d 368 (1970) (‘‘the [d]ue [p]rocess [c]lause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged’’). This is because,
when a jury renders legally inconsistent guilty verdicts, each verdict negates
an element of the other verdict and it is impossible to know which verdict
the jury found to be supported by the evidence. State v. King, supra, 216
Conn. 594.
16
As we have indicated, to avoid the risk that the trial court may vacate
both guilty verdicts upon the defendant’s filing of a motion for a new trial,
the state is free to object to the legally inconsistent verdicts before the jury
is discharged and to request further consideration by the jury pursuant to
§ 52-223. In addition, the state is free to request a jury instruction on the issue.
17
The state contends that, although it did not present its case on the
theory that the charges related to two separate acts and two separate results,
the defendant introduced this theory when he contended that the shooting
was accidental or the result of his carelessness and negligence. The defen-
dant merely argued, however, that the firing of the gun was not intentional.
Neither he nor the state ever suggested that, if the jury agreed with the
defendant on that point, there was other intentional conduct that could
provide the basis for a murder conviction.
18
The defendant contends that manslaughter in the first degree with a
firearm is not a lesser included offense of murder because the use of a
firearm is not an element of murder. This court has followed the cognate
pleadings approach to lesser included offenses, however, which ‘‘does not
insist that the elements of the lesser offense be a subset of the higher
offense. It is sufficient that the lesser offense have certain elements in
common with the higher offense, which thereby makes it a cognate or allied
offense even though it also has other elements not essential to the greater
crime.’’ (Internal quotation marks omitted.) State v. Tomlin, 266 Conn. 608,
618, 835 A.2d 12 (2003). As we have indicated, in the present case, it is clear
that the parties tried the case on the understanding that the defendant was
being charged with murder in connection with the act of discharging the
gun. Accordingly, we conclude that, under these circumstances, the charge
of manslaughter in the first degree with a firearm was a lesser included
offense of the murder charge. As we discuss in the body of this opinion,
however, that does not mean that the guilty verdicts were consistent.
19
The court in Carpenter stated that ‘‘there is some tension between [the
holding of Rodriguez that manslaughter in the first degree is a lesser included
offense of murder] and case law in which we have reversed convictions,
arising out of the same act, of both a crime requiring recklessness and a
crime requiring intentional conduct because of their mutually exclusive and
inconsistent state[s] of mind.’’ (Internal quotation marks omitted.) Carpenter
v. Commissioner of Correction, supra, 290 Conn. 126. The court then
resolved this apparent tension by observing that, although a defendant can-
not simultaneously possess both intents with respect to the same act, the
inconsistency of the mental states does not create a constitutional notice
problem when a defendant has been charged only with an intentional crime
because the defendant is presumed to know that the ‘‘same factual circum-
stances [may] support a jury finding of either intentionality or recklessness.’’
(Emphasis added; internal quotation marks omitted.) Id., 126–27. We now
recognize that it would have been more accurate to state that the same
evidence may support either state of mind instead of referring to the ‘‘same
factual circumstances,’’ because the defendant’s state of mind is a factual
circumstance to be determined by the jury on the basis of the evidence.
20
The state also relies on this court’s statement in State v. Giguere, 184
Conn. 400, 404 n.2, 439 A.2d 1040 (1981), that, ‘‘[w]hen recklessness suffices
to establish an element [of an offense], such element also is established if
a person acts purposely or knowingly.’’ (Internal quotation marks omitted.)
Again, we are not persuaded. The defendant in Giguere claimed that he had
been improperly convicted of assault in the first degree because the evidence
showed only that he acted intentionally, not recklessly. Id., 403. This court
ultimately concluded, however, that the evidence was sufficient to support
a finding that the defendant had acted recklessly, as that term is statutorily
defined. Id., 404. Accordingly, the statement that the defendant relies on
was dictum. Moreover, our research has revealed no other Connecticut
cases that have relied on this dictum to support the proposition that proof
of intentionality establishes recklessness. We therefore conclude that, to
the extent that the statement in Giguere supports the proposition that a
defendant logically and consistently may be convicted of both a reckless
offense and an intentional offense related to the same act and the same
result, it is inconsistent with State v. King, supra, 216 Conn. 595, and we
now disavow it. See id., 593–95 (because recklessness and intentionality
are mutually exclusive states of mind, defendant may be convicted either
of reckless offense or of intentional offense, but not both, when offenses
relate to same act and same result).
21
Although our conclusion in part I of this opinion that the defendant is
entitled to a new trial is dispositive, we address this claim because it has
been raised and fully briefed and it is likely to arise on remand. See State
v. Leniart, 166 Conn. App. 142, 197, 140 A.3d 1026 (addressing defendant’s
claim that trial court abused its discretion in admitting evidence of uncharged
misconduct because issue was likely to arise on remand), cert. granted, 323
Conn. 918, 150 A.3d 1149 (2016).
22
Section 4-5 (a) of the 2012 edition of the Connecticut Code of Evidence
provides: ‘‘Evidence of other crimes, wrongs or acts of a person is inadmissi-
ble to prove the bad character, propensity or criminal tendencies of that
person except as provided in subsection (b).’’ Conn. Code Evid. § 4-5 (a),
available at http://jud.ct.gov/Publications/Code2000.pdf.
23
Section 4-5 (c) of the 2012 edition 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.’’ Conn. Code Evid.
§ 4-5 (c), available at http://jud.ct.gov/Publications/Code2000.pdf.
24
We note that, technically, the state did not offer any evidence that
the prior misconduct involving Febles occurred. Rather, the prosecutor
questioned the defendant about the incident, and the defendant testified
that he did not remember it. See State v. Mucha, 137 Conn. App. 173, 203,
47 A.3d 931 (‘‘statements and argument of counsel are not evidence’’), cert.
denied, 307 Conn. 912, 53 A.3d 998 (2012). If the evidence concerning the
incident involving Febles was inadmissible under § 4-5 (a) of the Connecticut
Code of Evidence; see footnote 22 of this opinion; however, it would have
been improper for the prosecutor to ask the defendant about it. See United
States v. Woods, 486 F.2d 172, 175 (8th Cir. 1973) (when prosecutor asked
witness whether he was under indictment by prosecutor’s office, prosecutor
acted improperly by ‘‘inject[ing] into the trial prejudicial matter which is
obviously not admissible’’). Moreover, the trial court and the parties treated
the exchange between the prosecutor and the defendant as if it were evi-
dence that the incident involving Febles occurred. Accordingly, it is appro-
priate for us to address the question of whether evidence of the incident
was admissible.
25
See footnote 24 of this opinion. Because the trial court’s ruling denying
the defendant’s motion in limine related to the information contained in
Febles’ statement to the police, and because we are addressing this issue
because it may arise on remand, all subsequent references to the ‘‘evidence’’
in this opinion are to Febles’ account of the 1995 incident, and not solely
to the prosecutor’s characterization of that account while questioning the
defendant at the first trial.
26
The defendant appears to suggest that his inability to cross-examine
Febles about the brand of the gun that she claims he held to her head
rendered the evidence unduly prejudicial. The defendant’s inability to cross-
examine Febles presents a different issue, however, than the issue of whether
the evidence of prior misconduct was admissible to prove intent or absence
of mistake or accident. Specifically, the defendant’s inability to cross-exam-
ine Febles implicates his rights under the confrontation clause of the sixth
amendment. Because the defendant has raised no claim under the confronta-
tion clause on appeal, we express no opinion as to whether allowing the
prosecutor to question the defendant about Febles’ statement without pro-
viding an opportunity for the defendant to cross-examine Febles violated
that constitutional provision or whether the defendant waived that right.
27
The concurring justice concludes that the trial court abused its discretion
when it ruled that the evidence concerning the incident with Febles was
admissible because: (1) the prior misconduct occurred fourteen years before
the charged conduct; and (2) the prior misconduct was not against the
victim of the charged misconduct and it did not involve a completed crime.
Indeed, the concurrence suggests that it is an abuse of discretion to admit
prior misconduct evidence to prove intent or the absence of accident or
mistake whenever the latter circumstances are present. We conclude that
there is no basis in the law of this state for such a conclusion, at least not
in cases in which the defendant has claimed that the harm to the victim
was not intentional. Rather, we conclude that when, (1) under circumstances
that are similar to those involved in the case under review, (2) a defendant
has threatened a person who is similar to the victim in the case under review
(3) with harm that is similar to the harm inflicted on that victim, a fact
finder reasonably could conclude that the defendant has displayed a particu-
lar ‘‘pattern of behavior and an attitude . . . that is indicative of the defen-
dant’s state of mind’’ during the commission of the charged offense. State
v. Tucker, supra, 181 Conn. 415; see also Johnson v. State, 204 So. 3d
763, 769 (Miss. 2016) (when defendant who was charged with committing
aggravated domestic violence on former wife claimed that he acted in self-
defense, trial court properly admitted evidence that he had threatened to
kill his former wife with gun, and later threatened to kill a former girlfriend,
to show intent, motive and plan because ‘‘the prior assaults all were against
women, where he was the aggressor . . . he had initiated the contact [and]
he had a prior relationship with all of the women’’). Indeed, the fact that a
threat is not a ‘‘completed crime’’ in the sense that the defendant has actually
inflicted physical injury on the threatened person does not mean that the
threat does not reveal a violent, and potentially criminal, state of mind.
Accordingly, we cannot conclude that evidence of a prior threat is inadmissi-
ble to prove intent or the absence of mistake or accident merely because
the threat did not rise to the same level of violence or criminality as the
defendant’s alleged conduct in the case under review, although the defendant
is certainly free to argue that his past conduct shows that he does not carry
out his threats. Cf. State v. Beavers, 290 Conn. 386, 404, 963 A.2d 956 (2009)
(admissibility of evidence of prior misconduct to prove intent of defendant
charged with arson ‘‘does not depend on whether he actually [completed
any prior acts of arson]; his comments about wanting to set [a] fire, as well
as his threats [to his former wife, while they were married, to burn down
their house] . . . are equally probative of his intent’’ to commit arson by
burning down house that he shared with his mother).
With respect to the fourteen year lapse of time, while we agree with the
concurrence that this raises the question of whether the conduct was too
remote in time to be relevant, we see no reason to adopt a bright line time
limitation and we are satisfied, for the reasons stated in the body of this
opinion, that the trial court’s conclusion that the Febles incident was not
too remote did not constitute an abuse of discretion. See Johnson v. State,
supra, 204 So. 3d 769 (evidence of threat to kill former wife thirteen years
before charged assault on most recent wife was admissible to show intent).
Accordingly, we conclude that the trial court here did not abuse its discretion
when it determined that the jury reasonably could conclude that the evidence
that the defendant had previously threatened to shoot a domestic partner
in the head with a Glock handgun during an argument tended to rebut the
defendant’s claim that the victim in the present case was shot in the head
during an argument with the defendant when the Glock handgun that he
was holding accidentally discharged as he was attempting to place it in
his bag.