State v. McCarthy

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STATE OF CONNECTICUT v. LAMAR MCCARTHY
(AC 43785)
Bright, C. J., and Prescott and Vertefeuille, Js.
Syllabus
Convicted of three counts of kidnapping in the second degree and one count
each of conspiracy to commit robbery in the second degree and larceny
in the second degree, the defendant appealed to this court. The defendant
drove R, an individual who sought to purchase heroin from him and
who owed him money, to a bank. Unbeknownst to the defendant, who
had remained in his vehicle during the incident, R robbed the bank.
Although the defendant was unaware of R’s wrongdoing, as he drove
away from the scene, he noticed a police cruiser following him and
began to drive very erratically and at high speeds. After his motor vehicle
became disabled, the defendant stopped in front of a gas station. The
defendant and R exited the vehicle, ran toward a Jeep that was parked
at a gas pump, and demanded that W, the driver of the Jeep, get out of
the vehicle. When W responded that his family was inside, the defendant
ran to the passenger side of the vehicle, climbed over M, W’s wife, and
got into the driver’s seat. R attempted to enter the backseat of the Jeep
but was unsuccessful, as M and W’s grandchildren were strapped into
booster seats in the backseat. The defendant promptly exited the gas
station at a high rate of speed with M and her grandchildren still inside
the vehicle. The defendant took M’s cell phone from her and entered
the highway, continuing to drive erratically and at a high rate of speed.
Approximately ten minutes after gaining control of the Jeep, the defen-
dant pulled over to the side of the highway to let M and her grandchildren
exit the vehicle. The defendant then immediately drove away, without
returning M’s cell phone, and M had to flag down a passerby for assis-
tance. The defendant was not charged with any crimes relating to the
robbery of the bank, rather, the charges against him stemmed solely
from his taking of the Jeep. Held:
1. The defendant could not prevail on his claim that he was entitled to a
new trial on the kidnapping charges because the trial court improperly
failed to provide an incidental restraint instruction to the jury in accor-
dance with State v. Salamon (287 Conn. 509), the state having persuaded
this court beyond a reasonable doubt that the error was harmless: the
trial court’s failure to instruct the jury on an essential element of the
offense was a constitutional error, requiring the state to prove that
the failure was harmless beyond a reasonable doubt; moreover, when
evaluated in accordance with the relevant factors set forth in Salamon,
there was no reasonable possibility that a properly instructed jury would
have reached a different result concerning whether the defendant’s
restraint of M and her grandchildren was incidental to or necessary
for him to complete the larceny, as, even though the defendant took
possession of the Jeep at approximately the same time that he first
restrained the victims and he restrained them only for approximately
ten minutes, the defendant could have completed the larceny and
released the victims earlier, he transported the victims to multiple loca-
tions while they were confined to the Jeep, the fact that the defendant
was more likely to be apprehended by the police at the gas station if
he permitted the victims to immediately exit the Jeep did not compel
a conclusion that the victims’ restraint was incidental to or necessary
for the commission of the larceny, the defendant’s restraint of the victims
in a fast-moving vehicle while withholding M’s cell phone from her,
prevented the victims from summoning assistance or alerting the police
to his location, the defendant’s risk of detection was reduced and he
was able to flee the gas station unhindered because he did not stop to
free the victims at or near the scene of the larceny, and the restraint
increased the victims’ risk of harm independent of that posed by the
larceny because the defendant confined them to a moving car that he
was operating in an erratic manner and at high speeds and then left
them on the side of the highway, he refused to return M’s cell phone
before he drove away, and he inspired fear in his victims.
2. Contrary to the defendant’s claim, there was sufficient evidence from
which the jury reasonably could have found the defendant guilty beyond
a reasonable doubt of each of the three counts of kidnapping in the
second degree: because, with respect to the defendant’s first claim, this
court concluded that there was no reasonable possibility that a properly
instructed jury would find that the defendant’s restraint was incidental
to or necessary for his completion of the larceny, it necessarily followed
that a reasonable view of the evidence supported the jury’s finding that
the defendant intended to prevent the victims’ liberation beyond that
which was incidental to or necessary to complete the larceny and,
consequently, supported the jury’s verdict; moreover, the evidence
admitted at trial, including testimony regarding the defendant’s erratic
driving at high speeds and M’s concern for her safety and for that
of her grandchildren, and the reasonable inferences that the jury was
permitted to draw therefrom, were more than sufficient to establish
that the defendant used or threatened to use force or intimidation to
restrain the victims from exiting the vehicle before he began driving
and while the vehicle was in motion.
3. The defendant could not prevail on his claim that the trial court abused
its discretion and violated his constitutional right to due process when
it denied his requests to have his leg shackles removed during trial:
although the defendant expressed concern at trial that one of the jurors
may have seen his leg shackles, the trial court had instructed a judicial
marshal to sit in various chairs in the jury box to confirm that the
defendant’s leg shackles were not visible to the jury and the record
revealed no evidence to suggest that the jurors actually saw or otherwise
knew of the defendant’s leg shackles; accordingly, the defendant failed
to satisfy his burden of demonstrating that the jurors actually saw or
otherwise was aware of his restraints and, therefore, failed to establish
that the trial court’s denial of his requests to remove his restraints
deprived him of his right to a fair trial.
Argued September 15, 2021—officially released January 18, 2022
Procedural History
Substitute information charging the defendant with
three counts of the crime of kidnapping in the second
degree and with one count each of the crimes of robbery
in the second degree, conspiracy to commit robbery in
the second degree, and larceny in the second degree,
brought to the Superior Court in the judicial district of
New Britain, geographical area number seventeen, and
tried to the jury before D’Addabbo, J.; verdict and judg-
ment of guilty of three counts of kidnapping in the
second degree and one count each of conspiracy to
commit robbery in the second degree and larceny in
the second degree, from which the defendant appealed
to this court. Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Brian W. Preleski, state’s
attorney, and Christian Watson, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Lamar McCarthy,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of one count of conspiracy to commit
robbery in the second degree in violation of General
Statutes §§ 53a-48 and 53a-135 (a) (1) (A), one count
of larceny in the second degree in violation of General
Statutes § 53a-123 (a) (1), and three counts of kidnap-
ping in the second degree in violation of General Stat-
utes § 53a-94. The defendant claims that (1) the trial
court improperly failed to instruct the jury in accor-
dance with State v. Salamon, 287 Conn. 509, 550, 949
A.2d 1092 (2008); (2) there was insufficient evidence
to prove beyond a reasonable doubt that he intended
to prevent the liberation of the victims beyond that
which was incidental and necessary to commit the lar-
ceny and that he used or threatened to use physical
force or intimidation to restrain the victims; and (3)
the court violated his constitutional right to due process
by denying his requests to remove his leg shackles. We
affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On June 18, 2017, the defendant received a
phone call from Norman Renaldi, who sought to pur-
chase heroin from the defendant and asked him for a
ride from Newington to Hartford. Renaldi previously
had purchased heroin from the defendant on several
occasions. The defendant picked up Renaldi in a red
Honda minivan and told Renaldi that he owed the defen-
dant money. Renaldi instructed the defendant to drive
to the Stop & Shop at 505 North Main Street in South-
ington, inside of which was a People’s United Bank
branch (bank). During the drive and unbeknownst to
the defendant, Renaldi wrote a note on the back of a
coupon, which stated, ‘‘EMPTY BOTH CASH DRAW-
ERS QUICKLY + QUI[E]TLY AND NO-ONE GETS
HURT!!’’
After the defendant and Renaldi arrived at Stop &
Shop, the defendant remained in the minivan while
Renaldi went inside. Renaldi approached the bank and
handed the note to one of the bank tellers. He kept one
of his hands in the pocket of his sweatshirt, suggesting
to the teller that he had a weapon. The teller retrieved
and handed to Renaldi a large quantity of cash, which
Renaldi placed, along with the note, into a slit that he
had cut into the lining of his sweatshirt. Renaldi then
exited the Stop & Shop, got back into the minivan, and
told the defendant that they could leave. He did not tell
the defendant that he had robbed the bank. Meanwhile,
one of the bank tellers activated an alarm, which alerted
the police that a robbery had occurred at the bank.
At approximately 1:15 p.m., on duty police officers
received a dispatch that a white male had entered the
bank, demanded cash, implied that he possessed a
weapon, and then fled the scene in a red minivan. When
the dispatch was received, the defendant was driving
the minivan northbound on Route 10 in Southington.
Southington Police Officer Jeremey Busa, who was on
patrol, observed a red minivan that matched the
description from the dispatch driving on Route 10.
When the minivan stopped at a red traffic light, Busa
pulled behind it in his police cruiser. The defendant
noticed Busa’s cruiser and became nervous. The defen-
dant attempted to maneuver the minivan around a vehi-
cle that was stopped in front of it at the stoplight but
proceeded to hit the vehicle. The defendant then exe-
cuted a U-turn and accelerated southbound down Route
10, at which point Busa activated the lights and siren
of his cruiser. The defendant drove at a high rate of
speed, striking the curb on the side of the road, weaving
in and out of traffic, crossing into incoming traffic,
failing to stop at red lights, and driving across the drive-
ways and lawns that abutted Route 10. Southington
Police Officer Neal Ayotte, who was also on patrol,
responded to the bank robbery dispatch, activated his
body camera, and joined in the pursuit of the minivan
in his police cruiser. As he approached the minivan
on Route 10, Ayotte observed the driver operating the
minivan erratically, and, at some point, Ayotte had to
pull his cruiser into the front yard of a nearby residence
to avoid being hit by the minivan.
Eventually, the tires on the passenger side of the
minivan became flat, began to squeal, and emanated
sparks and smoke. The defendant told Renaldi that the
minivan belonged to his wife and that they needed to
obtain another vehicle. Accordingly, the defendant
stopped in front of a Shell gas station located at 212
Main Street in Southington (gas station) and parked the
minivan so that it straddled the curb and the sidewalk in
front of the gas station. Several police officers, including
Busa and Ayotte, simultaneously arrived at the gas sta-
tion. The defendant and Renaldi exited the minivan and
ran toward a white Jeep Cherokee that was parked at
a gas pump in front of the gas station.
The driver of the Jeep, W, had just finished pumping
gas and had begun to get back into his Jeep when the
defendant and Renaldi approached him. W’s wife, M,
was sitting in the front passenger seat of the vehicle,
and their grandchildren, L and O, were sitting in booster
seats in the backseat. Renaldi grabbed W and instructed
him to get out of the Jeep, to which W responded that
his family was inside of the vehicle. The defendant ran
to the passenger side of the vehicle, climbed over M,
and got into the driver’s seat. Renaldi unsuccessfully
attempted to enter the backseat of the Jeep through
the passenger side door. Once the defendant was in the
driver’s seat, he promptly exited the gas station in the
Jeep at a high rate of speed with M, L, and O still inside.
Police officers chased Renaldi, who had exited the
parking lot of the gas station on foot and had run onto
Route 10. The officers ordered Renaldi to stop running
and to get on the ground. Eventually, the officers appre-
hended Renaldi and recovered his sweatshirt, the stolen
cash, which totaled more than $12,000, and the note.
Later, Renaldi identified the driver of the Jeep as the
defendant.1
While at the gas station, Busa observed that the mini-
van, which was still running, had sustained damage to
its front bumper and quarter panel, its rear rim, and its
passenger side tires. Busa recovered a wallet on the
driver’s seat of the minivan. The defendant’s license
and several other cards with his name on them were
located inside of the wallet. Various documents
addressed to the defendant, including a letter, a receipt,
and an invoice, were also recovered from the minivan.
After exiting the gas station, the defendant drove the
Jeep southbound on Route 10 at a high rate of speed.
M had to hold onto the dashboard, the handle above
the passenger side door, and the inside of the door
while he was driving. The defendant asked M about the
location of the nearest highway and whether she had
a cell phone. M directed the defendant to the entrance
of Interstate 84 and, although she initially lied and
responded that she did not have a cell phone, eventually
gave her cell phone to the defendant for fear that the
phone may ring. Throughout the course of the drive,
M tried to calm her grandchildren, one of whom was
crying, while acknowledging that she ‘‘couldn’t believe’’
what was happening. She also told the defendant that
she ‘‘didn’t know’’ or ‘‘care’’ what he had done, but she
‘‘just wanted [her grandchildren] to be safe . . . .’’ The
defendant told M that he ‘‘wasn’t going to hurt’’ her and
the grandchildren.
The defendant entered Interstate 84 westbound and
drove on the highway. Eventually, the defendant pulled
the Jeep to the side of the highway and instructed M to
quickly exit the vehicle. Although the defendant pulled
over on the side of the highway near an exit, he did
not exit the highway to release M, L, or O. M exited
the Jeep, removed her grandchildren from their booster
seats, and shut the door. The defendant immediately
drove away without returning M’s cell phone to her.
M attempted to calm her grandchildren and, shortly
thereafter, flagged down a passerby and borrowed his
cell phone to call her son. The police subsequently
arrived to where the defendant had left them. In total,
approximately ten minutes passed between when the
defendant gained control of the Jeep at the gas station
and when the defendant allowed the victims to exit the
vehicle.
On September 25, 2017, the defendant was arrested
pursuant to a warrant. Prior to trial, the state filed a
corrected substitute information dated September 12,
2019, charging the defendant with one count of robbery
in the second degree in violation of § 53a-135 (a) (1)
(A), one count of conspiracy to commit robbery in the
second degree in violation of §§ 53a-48 and 53a-135 (a)
(1) (A), one count of larceny in the second degree in
violation of § 53a-123 (a) (1), and three counts of kid-
napping in the second degree in violation of § 53a-94.
Following a jury trial, the defendant was found not
guilty of robbery in the second degree but was found
guilty of all other counts.2 The defendant was sentenced
to a total effective term of twenty-five years of imprison-
ment. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The defendant first claims that he is entitled to a
new trial on the kidnapping charges because the court
improperly failed to provide to the jury an incidental
restraint instruction in accordance with State v. Sala-
mon, supra, 287 Conn. 550, which would have ensured
that the defendant could be convicted of kidnapping
only if the restraint that formed the basis of the kidnap-
ping charges held criminal significance separate and
apart from that incidental to or necessary for the com-
pletion of the larceny. See White v. Commissioner of
Correction, 170 Conn. App. 415, 423–24, 154 A.3d 1054(2017). The state concedes that the court improperly
declined to provide a Salamon instruction in the present
case. The state contends, however, that the court’s fail-
ure to give a Salamon instruction was harmless beyond
a reasonable doubt because no reasonable juror could
have concluded that the defendant did not intend to
prevent the victims’ liberation for a longer period of
time or to a greater degree than that which was inciden-
tal to or necessary to commit the underlying larceny.
Stated differently, the state argues that the court’s fail-
ure to provide to the jury an incidental restraint instruc-
tion did not affect the verdict. Because we conclude
that the state has persuaded us beyond a reasonable
doubt that the court’s failure to provide a Salamon
instruction was harmless, we reject the defendant’s
claim.
The following additional procedural history is rele-
vant to our resolution of this claim. Throughout the
duration of the trial, the court and the parties discussed
in chambers whether the court should provide to the
jury an incidental restraint instruction in accordance
with Salamon. The court held a charge conference on
September 26, 2019, following the close of evidence
and outside of the presence of the jury, in accordance
with Practice Book § 42-19. During the charge confer-
ence, the defendant requested an incidental restraint
instruction. The court informed the parties that,
although it preliminarily was inclined not to include
such an instruction, it would rule on the defendant’s
request the following day.
On September 27, 2019, the court denied the defen-
dant’s request, stating in its oral ruling that the defen-
dant’s restraint of the victims was not incidental to
the larceny or the robbery and that it believed that a
defendant is entitled to a Salamon instruction only if
a defendant was charged with kidnapping and another
substantive crime arising out of an assault, such as a
sexual assault. The court charged the jury later that day
and did not provide to the jury a Salamon instruction.
Following the jury charge and outside of the presence
of the jury, the defendant noted on the record his objec-
tion to the court’s failure to provide a Salamon instruc-
tion.
We begin by setting forth the applicable standard of
review and the relevant principles of law. ‘‘The applica-
bility of Salamon and whether the trial court’s failure
to give a Salamon instruction was harmless error are
issues of law over which our review is plenary.’’ Farmer
v. Commissioner of Correction, 165 Conn. App. 455,
459, 139 A.3d 767, cert. denied, 323 Conn. 905, 150 A.3d
685 (2016). Further, ‘‘the question of whether conduct
bears . . . criminal significance as kidnapping [inde-
pendent from the completion of another substantive
offense] is one of law. It is, of course, the function of
the jury to find the relevant facts, including, ultimately,
whether a crime was committed with the intent neces-
sary to qualify as kidnapping, namely, the specific intent
to prevent the victim’s liberation and not simply to
perpetrate the underlying crime. . . . At the same time,
it is beyond cavil that it is the role of the judiciary to
interpret the relevant statutes and to define, as a matter
of law, what type of conduct constitutes kidnapping
according to those statutes. . . . As [our Supreme
Court] explained in Salamon, a necessary corollary is
that it falls to the courts to define the intent element
of the crime of kidnapping . . . to delineate the ways
in which kidnapping differs from coterminous crimes
such as robbery and sexual assault . . . and to specify
the factors that are relevant to that analysis . . . in
light of our understanding of the legislative history of
the kidnapping statutes and the policy objectives that
animated their modern revision.’’ (Citations omitted.)
Banks v. Commissioner of Correction, 339 Conn. 1, 34,
259 A.3d 1082 (2021).
In Salamon, our Supreme Court ‘‘reconsidered [its]
long-standing interpretation of our kidnapping statutes,
General Statutes §§ 53a-91 through 53a-94a. . . . [T]he
defendant [in Salamon] had assaulted the victim at a
train station late at night . . . and ultimately was
charged with kidnapping in the second degree in viola-
tion of . . . § 53a-94, unlawful restraint in the first
degree, and risk of injury to a child. . . . At trial, [the
defendant] requested a jury instruction that, if the jury
found that the restraint had been incidental to the
assault, then the jury must [find him not guilty] of the
charge of kidnapping. . . . [Consistent with estab-
lished precedent of our Supreme Court] [t]he trial court
declined to give that instruction [and the defendant
was convicted of kidnapping in the second degree in
addition to the two other crimes]. . . .
‘‘[The Supreme Court] . . . ultimately concluded
that [o]ur legislature . . . intended to exclude from the
scope of the more serious crime of kidnapping and its
accompanying severe penalties those confinements or
movements of a victim that are merely incidental to
[or] necessary for the commission of another crime
against that victim.3 Stated otherwise, to commit a kid-
napping in conjunction with another crime, a defendant
must intend to prevent the victim’s liberation for a
longer period of time or to a greater degree than that
which is necessary to commit the other crime’’; (foot-
note added; internal quotation marks omitted) id.,
11–12; or than that which was ‘‘merely incidental to
that underlying crime.’’ Id., 4.
Our Supreme Court thus explained in Salamon that
‘‘a defendant may be convicted of both kidnapping and
another substantive crime if, at any time prior to, during,
or after the commission of that other crime, the victim
is moved or confined in a way that had independent
criminal significance, that is, the victim was restrained
to an extent exceeding that which was [incidental to or]
necessary to accomplish or complete the other crime.
Whether the movement or confinement of the victim
is merely incidental to [or] necessary for another crime
will depend on the particular facts and circumstances of
each case. Consequently, when the evidence reasonably
supports a finding that the restraint was not merely
incidental to the commission of some other, separate
crime, the ultimate factual determination must be made
by the jury. For purposes of making that determination,
the jury should be instructed to consider . . . various
relevant factors . . . .’’ (Internal quotation marks omit-
ted.) State v. Hampton, 293 Conn. 435, 460, 988 A.2d 167(2009); see also State v. Salamon, supra, 287 Conn. 542.
Since its decision in Salamon, our Supreme Court
has reiterated that, ‘‘when a criminal defendant is
charged with kidnapping in conjunction with another
underlying crime . . . the jury must be’’ provided a
Salamon instruction. Banks v. Commissioner of Cor-
rection, supra, 339 Conn. 4; see also State v. Fields, 302
Conn. 236, 247–48, 24 A.3d 1243 (2011). ‘‘The failure to
charge in accordance with Salamon is viewed as an
omission of an essential element . . . and thus gives
rise to constitutional error’’; (internal quotation marks
omitted) White v. Commissioner of Correction, supra,
170 Conn. App. 428; that is subject to harmless error
analysis. Banks v. Commissioner of Correction,
supra, 29–30.
In the present case, the defendant was charged with
kidnapping in conjunction with larceny arising from his
taking the Jeep with M, L, and O inside. Accordingly,
the court was required, as the state concedes, to instruct
the jury in accordance with Salamon and its progeny.
See id., 4; State v. Fields, supra, 302 Conn. 247. No such
instruction, however, was given. Because the court’s
failure to instruct the jury on an essential element of
the offense is constitutional error, the burden shifts
to the state to demonstrate that the court’s failure to
instruct the jury was harmless beyond a reasonable
doubt. See Banks v. Commissioner of Correction,
supra, 339 Conn. 15; see also Hinds v. Commissioner
of Correction, 321 Conn. 56, 78, 136 A.3d 596 (2016)
(‘‘this standard imposes the burden of persuasion exclu-
sively on the state’’).
‘‘Under Neder [v. United States, 527 U.S. 1, 15, 119
S. Ct. 1827, 144 L. Ed. 2d 35 (1999)]4 . . . the state
must demonstrate that a trial error [of constitutional
magnitude] was harmless beyond a reasonable doubt.’’
(Citation omitted; footnote added.) Banks v. Commis-
sioner of Correction, supra, 339 Conn. 15; see also
Neder v. United States, supra, 15 (articulating test ‘‘for
determining whether a constitutional error is harm-
less’’ (emphasis added)). ‘‘[T]he test for determining
whether a constitutional [error] is harmless . . . is
whether it appears beyond a reasonable doubt that the
[error] complained of did not contribute to the verdict
obtained.’’ (Internal quotation marks omitted.) State v.
Hampton, supra, 293 Conn. 463. Put differently, we
evaluate ‘‘whether there is a reasonable possibility that
a properly instructed jury would reach a different
result.’’ State v. Flores, 301 Conn. 77, 87, 17 A.3d
1025 (2011).
In the present case, the jury, properly instructed,
would have been tasked with determining whether the
defendant’s restraint of the victims was incidental to
or necessary for his completion of the larceny. See
State v. Hampton, supra, 293 Conn. 460. To make this
determination, the jury should have been instructed to
consider a series of factors laid out by our Supreme
Court in Salamon, namely, ‘‘(1) the nature and duration
of the victim’s movement or confinement, (2) whether
that movement or confinement occurred during the
commission of the separate offense, (3) whether the
restraint was inherent in the nature of the separate
offense, (4) whether the restraint prevented the victim
from summoning assistance, (5) whether the restraint
reduced the perpetrator’s risk of detection, and (6)
whether the restraint created a significant danger or
increased the victim’s risk of harm independent of that
posed by the separate offense.’’ Banks v. Commissioner
of Correction, supra, 339 Conn. 42; see also State v.
Salamon, supra, 287 Conn. 548.
On the basis of our review of the record, we conclude
that the court’s failure to provide an incidental restraint
instruction was harmless because the state has per-
suaded us that there is no reasonable possibility that
the jury, properly instructed, would have reached a
different result concerning whether the defendant’s
restraint of the victims was incidental to or necessary
to complete the larceny. In so concluding, we consider
the various relevant factors set forth in Salamon;5 see
White v. Commissioner of Correction, supra, 170 Conn.
App. 429; and acknowledge that, ‘‘[a]lthough the relative
importance of the various factors will vary depending
on the context, [our Supreme Court] ha[s] made clear
that the touchstone in any Salamon case, in assessing
whether conduct associated with [another substantive
offense] has independent criminal significance as a kid-
napping, is the intent of the offender.’’ Banks v. Com-
missioner of Correction, supra, 339 Conn. 43.
With regard to the first relevant factor, the nature
and duration of the victims’ movement or confinement,
the state argues that the nature of the defendant’s con-
finement of the victims in a moving vehicle and the
distance the defendant moved the victims indicates that
the restraint was neither incidental to nor necessary for
his completion of the larceny. The defendant disagrees,
arguing that this factor weighs in his favor because the
larceny and the alleged kidnappings commenced at the
same time, the defendant did not harm or threaten to
harm the victims while he drove them, and the victims
were in the vehicle for no more than ten minutes.
‘‘[T]here are no minimum time or distance require-
ments to establish a restraint’’ within the context of
kidnapping. State v. Winot, 294 Conn. 753, 767, 988 A.2d
188 (2010). Nonetheless, our Supreme Court, in Hinds,
‘‘attempted to categorize various Salamon incidental
restraint cases with differing degrees of confinement
or movement’’; White v. Commissioner of Correction,
supra, 170 Conn. App. 430; and noted that ‘‘an important
facet of cases where the trial court has failed to give
a Salamon instruction and that impropriety on appellate
review has been deemed harmless error is that longer
periods of restraint or greater degrees of movement
demarcate separate offenses. . . . [M]ultiple offenses
[like kidnapping and another substantive crime] are
more readily distinguishable—and, consequently, more
likely to render the absence of a Salamon instruction
harmless—when the offenses are separated by greater
time spans, or by more movement or restriction of
movement.
‘‘Conversely, multiple offenses occurring in a much
shorter or more compressed time span make the same
determination more difficult and, therefore, more likely
to necessitate submission to a jury for it to make its
factual determinations regarding whether the restraint
is merely incidental to another, separate crime.’’ (Cita-
tions omitted; internal quotation marks omitted.) Hinds
v. Commissioner of Correction, supra, 321 Conn. 92–93.
For the purpose of evaluating harm in light of this factor,
our Supreme Court in Hinds distinguished cases in
which a defendant restrained the victims for a longer
period of time and confined or moved the victims to a
greater degree; State v. Hampton, supra, 293 Conn. 456,
463–64 (defendant confined victim for approximately
three hours before committing substantive crime); State
v. Jordan, 129 Conn. App. 215, 222–23, 19 A.3d 241(defendant committed substantive crime during forty-
five minute period and employed restraint significantly
greater than necessary to commit substantive crime),
cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011); State
v. Strong, 122 Conn. App. 131, 143, 999 A.2d 765 (defen-
dant restrained victim for more than one hour in multi-
ple locations after making threats), cert. denied, 298
Conn. 907, 3 A.3d 73 (2010); State v. Nelson, 118 Conn.
App. 831, 860–62, 986 A.2d 311 (defendant assaulted
victim, then confined victim for several hours in several
locations), cert. denied, 295 Conn. 911, 989 A.2d 1074(2010); from cases in which a defendant restrained the
victims for a shorter period of time and subjected the
victims to limited confinement or movement, as in State
v. Flores, supra, 301 Conn. 81–82, 89 (defendant’s rob-
bery and confinement of victim lasted between five
and twenty minutes and remained limited to singular
location), and State v. Thompson, 118 Conn. App. 140,
144, 162, 983 A.2d 20 (2009) (defendant confined victim
and committed other substantive crime within fifteen
to twenty minute span and subjected victim to limited
movement), cert. denied, 294 Conn. 932, 986 A.2d 1057(2010). See Hinds v. Commissioner of Correction,
supra, 92–93. The Supreme Court concluded that,
‘‘where kidnapping and multiple offenses occur closer
in time to one another, it becomes more difficult to
distinguish the confinement or restraint associated with
the kidnapping from another substantive crime.’’ (Inter-
nal quotation marks omitted.) Id., 93.
As we have noted, approximately ten minutes passed
between when the defendant gained control of the Jeep
at the gas station and when the defendant allowed the
victims to exit the vehicle, indicating that the victims
were restrained for ten minutes. Although, on its face,
a ten minute period of confinement appears to fall
within the latter line of cases recognized by our
Supreme Court, rather than the former; see id., 91–93;
we note that, for the commission of the larceny, the
defendant only needed to, ‘‘with intent to deprive
another of property . . . wrongfully [take], [obtain] or
[withhold] [the Jeep] from [its] owner. . . .’’ General
Statutes § 53a-119; see also General Statutes § 53a-123
(a) (1). The larceny statute under which the defendant
was convicted did not require that he continuously oper-
ate the vehicle for some specified amount of time after
taking it; the defendant could have stopped the vehicle
one block or two blocks away from the gas station to
release the victims without frustrating his commission
of the larceny.6 The degree to which the defendant
moved the restrained victims; see Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 92; further sup-
ports the state’s position. Although, as the defendant
contends, the kidnappings and the larceny commenced
at the same time, and, by implication, at the same loca-
tion, he transported the victims on Route 10 in South-
ington, onto an interstate highway, and on the highway
some distance. Put differently, the defendant moved
the victims to multiple locations while they were con-
fined to the vehicle. Thus, we conclude that the first
factor weighs in favor of the state.
We next address the second relevant Salamon factor,
that is, whether the movement or confinement occurred
during the commission of the separate offense. The
state argues that this factor weighs in its favor because
the defendant completed the larceny before he confined
and moved the victims, which the state asserts substan-
tiated the kidnapping charges. The state specifically
argues that, once the defendant took possession of the
Jeep with the intent to deprive the true owner of it
permanently, he successfully satisfied each element of
larceny. See State v. Hayward, 169 Conn. App. 764,
772–73, 153 A.3d 1 (2016), cert. denied, 324 Conn. 916,
154 A.3d 527 (2017). Accordingly, it is the state’s posi-
tion that any additional action the defendant took, spe-
cifically, confining and moving the victims for the ten
minutes that followed his gaining control of the Jeep
at the gas station, was not necessary to accomplish the
already completed offense of larceny. The defendant
contends that he restrained the victims while commit-
ting the larceny because he took control of the Jeep
while the victims were already inside and fled the scene
with the victims in the vehicle.
Our Supreme Court’s analyses in Banks and Bell v.
Commissioner of Correction, 339 Conn. 79, 259 A.3d
1073 (2021), guide our analysis in the present case. In
Banks, the petitioner was convicted of multiple counts
of kidnapping in connection with the robberies of two
retail stores. Banks v. Commissioner of Correction,
supra, 339 Conn. 5, 10. During both robberies, the peti-
tioner took money from the stores’ cash registers while
brandishing a gun, then subsequently moved and con-
fined the store employees in the stores’ bathrooms
before he fled the scenes. Id., 5–9. At the defendant’s
criminal trial, the court failed to provide a Salamon
instruction to the jury, and, on review,7 the habeas court
concluded that the instructional error was harmless
because the conduct that gave rise to the kidnapping
convictions occurred after the petitioner had completed
the robberies. Id., 13.
Our Supreme Court, evaluating whether the trial
court’s failure to provide an incidental restraint instruc-
tion constituted harmless error under Brecht v. Abra-
hamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L. Ed.
2d 353 (1993), analyzed whether the restraint occurred
during the commission of the robberies. Banks v. Com-
missioner of Correction, supra, 339 Conn. 34, 39–40,
42–43. Our Supreme Court noted that the case before
it presented ‘‘a distinct and novel scenario—asportation
and confinement to facilitate a perpetrator’s escape
following the completion of a robbery’’; id., 35; and
characterized the case as ‘‘categorically distinct from
. . . [its] prior Salamon cases insofar as the petitioner
indisputably had accomplished the criminal objective
of his underlying crimes prior to the commencement
of the alleged kidnapping.’’ Id., 39. Accordingly, our
Supreme Court concluded, the robbery had been com-
pleted once the petitioner took the cash, not after he
fled the scene. See id.
Our Supreme Court further determined: ‘‘Under such
circumstances, there simply is no concern that the
intent of the legislature will be frustrated by prosecuting
a defendant for kidnapping solely on the basis of the
restraint inherent in or necessary to accomplish the
underlying crime. Many if not most robbers choose to
leave the scene immediately upon obtaining the fruits
of their crime. . . . [A] perpetrator’s choice to remain
at the crime scene and further restrict a victim’s liberty
after having robbed him or her manifests independent,
criminal significance.’’ Id. Because the petitioner con-
fined the victims after he had taken the cash, his
restraint of the victims did not occur during the commis-
sion of the separate offense. See id., 43 (‘‘[t]he [kidnap-
ping] conduct at issue occurred after the objective of
the robbery had been completed’’). In Bell, our Supreme
Court summarized its holding in Banks, stating: ‘‘[W]hen
it is clear that a perpetrator forcibly moved and
restrained his victims after having taken their property,
for the apparent purpose of escaping undetected and
unhindered from the scene of the robbery, a reviewing
court typically may conclude as a matter of law that
such conduct bears independent criminal significance
and is not merely incidental to the underlying robbery.’’
(Emphasis altered.) Bell v. Commissioner of Correc-
tion, supra, 339 Conn. 92.
In Bell, the petitioner was convicted of two counts
of kidnapping in connection with the robberies of two
restaurants. Id., 83, 85. During the first robbery, the
petitioner, after stating that he had a gun, instructed a
restaurant employee to open the restaurant’s safe. Id.,
83. While he looted the safe, he confined the employee
in the walk-in refrigerator of the restaurant.8 Id., 83, 93.
After looting the safe, he required that the employee
remain confined in the refrigerator for a period of time.
Id., 83–84. During the second robbery, the petitioner,
while appearing to brandish a gun, instructed a restau-
rant employee to open the restaurant’s safe and, before
extracting money from the safe, instructed her to get
into the restaurant’s walk-in cooler. Id., 84. The peti-
tioner told the employee that he would ‘‘let [her] know
when he was finished and when it was safe to come
out’’ and, after waiting several minutes, the employee
exited the refrigerator. (Internal quotation marks omit-
ted.) Id. At the petitioner’s criminal trial, which was
held six years prior to the decision in Salamon, the
court failed to provide a Salamon instruction to the
jury. Id., 83, 86. On review, after our Supreme Court
determined that Salamon applied retroactively, the
habeas court concluded that the instructional error was
harmless because the petitioner’s confinement of the
victims was not inherent in the robberies themselves
and, by contrast, the petitioner confined the victims to
reduce the risk that he would be detected. Id., 87–88.
Like in Banks, our Supreme Court in Bell evaluated
whether the court’s failure to provide an incidental
restraint instruction constituted harmless error and spe-
cifically considered whether the restraint occurred dur-
ing the commission of the robberies. Id., 92–93. Our
Supreme Court stated that, ‘‘[u]nlike in Banks, the jury
in the present case reasonably could have found that
the petitioner [confined each employee] . . . not to
facilitate his postrobbery escape but, rather, to incapac-
itate them while he completed the robberies. The peti-
tioner informed the police that he took the money from
each safe while the victims were restrained . . . . [The
employee of the second restaurant that the petitioner
robbed] seemed to confirm that account of events, indi-
cating that the petitioner ordered her into the [cooler]
immediately after she had opened the safe, and that he
stated that he would release her when he was finished,
presumably meaning after he was finished emptying
the safe. Although [the employee of the first restaurant
that the petitioner robbed] testified that the petitioner
had ordered her into the refrigerator after he finished
looting the . . . safe, she did not directly witness him
taking the contents of the safe, and the jury might well
have credited his statement that, consistent with his
modus operandi in the [second] robbery, he waited to
empty the safe until [the employee] was incapacitated
so he could do so unobstructed. At the very least,
defense counsel should have had the opportunity to
make such an argument.’’ (Internal quotation marks
omitted.) Id., 92–93. Thus, the Supreme Court con-
cluded, ‘‘[i]f a victim is restrained in the midst of a
robbery, rather than after the victim’s property has
been taken, then it rarely will be possible to say, as a
matter of law, that the restraint bore independent crimi-
nal significance and was not merely incidental to the
completion of the underlying crime.’’ (Emphasis
added.) Id., 93.
The present case presents a situation that does not
fall squarely into either of the categories described in
Banks or Bell. In this case, the defendant did not restrain
the victims in the middle of the larceny or after having
taken the Jeep; see id.; but, instead, he took possession
of the Jeep at approximately the same time he first
restrained the victims—when he got into the Jeep and
drove it out of the parking lot of the gas station. Thus,
unlike in Banks or Bell, the larceny and the initial
restraint of the victims appear to have taken place at
approximately the same time. We conclude, however,
that, because the defendant took the Jeep and initially
restrained the victims almost simultaneously, the sec-
ond factor weighs in favor of the defendant.
We next address the third relevant Salamon factor,
namely, whether the restraint was inherent in the nature
of the other substantive offense. The state argues that
the restraint of the victims was not inherent in the
larceny of the Jeep and, accordingly, the restraint was
neither incidental to nor necessary for the commission
of the larceny. The state contends that the defendant
was consciously aware of the victims’ presence in the
car, and he nonetheless confined and moved the victims
for ten minutes to facilitate his escape from the scene
without being apprehended by the police. The defen-
dant argues that the restraint was inherent in the nature
of the larceny because the defendant could not have
taken the Jeep and escaped the scene without
restraining the victims.
As this court explained in White, ‘‘our Supreme Court
[in Fields] expressly rejected the notion that the ratio-
nale of Salamon is not implicated merely because
restraint of the victim is not an essential element of the
other substantive offense charged along with kidnap-
ping.’’ White v. Commissioner of Correction, supra, 170
Conn. App. 436. ‘‘On the contrary, restraint may be used
in the commission of the underlying offense . . . even
though it is not an element of that offense. Thus,
depending on the facts of the underlying crime, the fact
finder reasonably might conclude that the kidnapping
was merely incidental to the underlying crime irrespec-
tive of whether that crime requires the use of restraint.’’
State v. Fields, supra, 302 Conn. 248. Because restraint
is not an essential element of larceny in the second
degree; see General Statutes §§ 53a-119 and 53a-123 (a)
(1); we consider ‘‘whether restraint was inherent in the
nature of the [larceny] in this particular case.’’ White
v. Commissioner of Correction, supra, 436.
In light of our review of the record, we conclude that
the defendant’s restraint of the victims was not inherent
in the nature of the larceny of the Jeep. After exiting
the parking lot of the gas station at a high rate of speed,
the defendant drove away from the scene erratically
for ten minutes. The defendant continued driving errati-
cally throughout the duration of the drive, despite M’s
pleas that the defendant not hurt her grandchildren,
and confiscated M’s cell phone, preventing her from
calling for assistance. He did not stop at any point to
let the victims free, despite acknowledging their pres-
ence in the vehicle by stating that he would not hurt
them, until he had merged onto and driven some dis-
tance on the highway.
To the extent the defendant contends that, had he
allowed the victims to exit the vehicle at the scene or
shortly thereafter, he could not have successfully taken
the Jeep because he would have been apprehended by
the police, we note that the mere fact that the restraint
facilitated his commission of the larceny does not mean
that the restraint was incidental to or necessary for
the completion of the larceny. Although the defendant
escaped from the scene without delay because he did
not stop to let the victims out of the Jeep at the gas
station or shortly thereafter, his taking of the Jeep
would not have been frustrated had he released the
victims at any point immediately after taking the Jeep.
See Banks v. Commissioner of Correction, supra, 339
Conn. 40–41 (‘‘There is nothing specific to—let alone
inherent in—the crime of robbery about forcing some-
one at gunpoint to the back of a store and restraining
them in a bathroom or cooler. That conduct could just
as well follow, and facilitate the offender’s escape from,
a physical or sexual assault, or other crime. The purpose
is to escape unhindered from a crime scene—which,
presumably, is a goal of most criminals . . . .’’). In
other words, the defendant could have stolen the vehi-
cle without restraining the victims for approximately
ten minutes. The fact that he was more likely to be
apprehended by the police at the gas station if he had
permitted the victims to get out of the car immediately,
or at any point shortly thereafter, does not compel a
conclusion that the victims’ restraint was incidental to
or necessary for the commission of the larceny. Thus,
we conclude that the third factor weighs in favor of
the state.
With regard to the fourth relevant factor, whether
the restraint prevented the victim from summoning
assistance, the state argues that the defendant’s
restraint of the victims in a moving vehicle prevented
them from exiting the vehicle to summon assistance.
The state relies on the fact that the defendant withheld
M’s cell phone from her, further preventing her from
contacting assistance while inside of the vehicle. The
defendant argues that, because he released the victims
in a place where they easily could summon help—on
the side of a highway—his restraint of the victims did
not prevent them from summoning assistance.
As we have explained, the defendant restrained the
victims in a moving vehicle, which he operated in an
erratic manner and at a high rate of speed, in South-
ington and on the interstate highway. The two minor
victims were strapped into their booster seats, such
that they could not escape without being unstrapped,
and M could not exit the vehicle to summon assistance
without opening the door of a moving car. Only after
the defendant released the victims could M flag down a
passerby to summon assistance. Further, the defendant
confiscated M’s cell phone and did not return it to her,
even after he let her exit the vehicle. Accordingly, we
conclude that the fourth factor weighs in favor of the
state.
With respect to the fifth relevant factor, whether the
restraint reduced the defendant’s risk of detection, the
state argues that the defendant’s restraint of the victims
reduced his risk of detection because the defendant
confined the victims inside of a moving vehicle, pre-
vented M from calling the police to report the defen-
dant’s location, and left the victims on the side of a
highway, rather than in a place of safety, so he could
drive away without being detected. The defendant
insists that he did not hide the victims. His eventual
release of the victims, the defendant contends, in fact
increased his risk of detection because the victims were
able to contact the police once he released them.
As we explained in our analysis of the fourth relevant
Salamon factor, the defendant transported the victims
in a fast-moving vehicle and withheld M’s cell phone,
which prevented the victims from summoning assis-
tance. Likewise, the defendant’s transportation of the
victims in a fast-moving vehicle and the withholding of
M’s cell phone prevented the victims from alerting the
police to the defendant’s location by exiting the vehicle
or by calling for help. Moreover, as the defendant argued
in his brief and as we noted in our analysis of the third
relevant Salamon factor, because the defendant did
not stop to free the victims at or near the scene, the
defendant fled the scene unhindered. Although the
defendant freed the victims in public—on a highway—
he did not release the victims until he had driven away
from the gas station for ten minutes, and he released
the victims on the side of the highway, instructing them
to exit quickly before he continued driving on the high-
way. The fifth factor, thus, weighs in the state’s favor.
Finally, we address the sixth relevant Salamon factor,
namely, whether the restraint created a significant dan-
ger or increased the victims’ risk of harm independent
of that posed by the separate offense. The state argues
that the defendant’s erratic driving and decision to leave
the victims on the side of a highway exposed them to
significant danger and increased their risk of harm,
independent of that posed by the defendant simply tak-
ing the Jeep. The state also relies on the fear experi-
enced by M, who fearfully handed her cell phone over
to the defendant, and the grandchildren, one of whom
was crying during the incident. The defendant contends
that his restraint of the victims did not create a signifi-
cant danger because the victims remained secured in
their seats throughout the drive and that the defendant
neither harmed nor threatened to harm them at any
point during the period of confinement.
To start, we note that the defendant’s restraint of the
victims was indeed ‘‘especially dangerous’’; White v.
Commissioner of Correction, 170 Conn. App. 438; even
though there was no evidence presented to suggest that
the defendant physically assaulted the victims. None-
theless, the defendant confined the victims within a
moving vehicle, which he operated in an erratic manner
and at a high rate of speed, for ten minutes in order to
evade arrest by the police. The defendant’s attempt to
elude the police by driving erratically and at high speeds
posed a risk of danger to the victims. Had the victims
been outside of the Jeep, as was W, when the defendant
took it at the gas station, they would not have been
subjected to any risk of harm presented by the defen-
dant’s erratic driving. Further, as we have explained,
the defendant eventually released the victims from the
vehicle onto the side of the highway, without exiting
the highway, and refused to return M’s cell phone to
her before driving away. The defendant’s decision to
leave the victims on the side of an interstate highway,
in and of itself, posed a risk of danger to which they
otherwise would not have been exposed, namely, the
risk that they could have been injured by a passing car.
Further, as our Supreme Court has explained, ‘‘the
distinct danger that is relevant to the question of
whether criminal conduct bears independent signifi-
cance as kidnapping need not be physical danger. . . .
Criminal conduct that inspires distinct fears or has a
uniquely harmful psychological impact on the victim
also qualifies.’’ (Citation omitted.) Banks v. Commis-
sioner of Correction, supra, 339 Conn. 46. In the present
case, it is clear that the defendant’s confinement and
movement of the victims inspired distinct fear in them.
While the defendant erratically operated the Jeep, M
had to hold onto various parts of its interior, exhibiting
the fear she experienced while confined within the car.
When the defendant asked M whether she had a cell
phone, M initially lied to him and stated that she did
not have one, but she eventually surrendered her cell
phone to him out of fear that the phone may ring. She
additionally pleaded with the defendant not to harm
her grandchildren and expressed that she was worried
about them, reflecting her fear that he may harm them.
Likewise, one of M’s grandchildren was crying while in
the Jeep. During the ride and once the victims were
released, M attempted to calm both of her grandchil-
dren, reflecting the distinct fear they experienced as a
result of their restraint. In sum, therefore, we conclude
that the sixth factor weighs in the state’s favor.
Balancing the foregoing considerations,9 we conclude
that the state has persuaded us beyond a reasonable
doubt that there is no reasonable possibility that the
jury, properly instructed, would have reached a differ-
ent result with respect to whether the defendant
restrained the victims ‘‘with the intent necessary to
qualify as kidnapping . . . and not simply to perpetrate
the underlying’’ larceny. Id., 34. We therefore conclude
that the defendant cannot prevail on this claim.
II
The defendant next claims that there was insufficient
evidence to support his conviction of three counts of
kidnapping in the second degree.10 With respect to this
claim, the defendant makes two related arguments.
First, the defendant asserts that, on the basis of the
evidence presented at trial, no reasonable jury could
determine that the state had proven beyond a reason-
able doubt that he intended to abduct, or prevent the
liberation of, the victims beyond that which was inci-
dental or necessary to commit the larceny of the Jeep.
Second, the defendant argues that no reasonable jury
could determine that the state had proven beyond a
reasonable doubt that he used or threatened to use
physical force or intimidation to restrain the victims.
We are not persuaded.
We begin our analysis by setting forth the well estab-
lished legal principles for assessing an insufficiency of
the evidence claim. ‘‘In reviewing the sufficiency of the
evidence to support a criminal conviction we apply a
[two part] test.’’ (Internal quotation marks omitted.)
State v. Shin, 193 Conn. App. 348, 357, 219 A.3d 432,
cert. denied, 333 Conn. 943, 219 A.3d 374 (2019). ‘‘[W]e
first must construe the evidence in the light most favor-
able to sustaining the verdict . . . .’’ State v. Rhodes,
335 Conn. 226, 229, 249 A.3d 683 (2020). ‘‘[E]stablished
case law commands us to review claims of evidentiary
insufficiency in light of all of the evidence [adduced at
trial]. . . . In other words, we review the sufficiency
of the evidence as the case was tried . . . . Accord-
ingly, we have traditionally tested claims of evidentiary
insufficiency by reviewing no less than, and no more
than, the evidence introduced at trial.’’ (Citation omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) State v. Petersen, 196 Conn. App. 646, 656, 230 A.3d
696, cert. denied, 335 Conn. 921, 232 A.3d 1104 (2020).
Second, we must ‘‘determine whether, on the basis
of those facts and the inferences reasonably drawn from
them, the jury reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . On appeal, we do not
ask whether there is a reasonable view of the evidence
that would support a reasonable hypothesis of inno-
cence. We ask, instead, whether there is a reasonable
view of the evidence that supports the [jury’s] verdict
of guilty.’’ (Citation omitted; internal quotation marks
omitted.) State v. Rhodes, supra, 335 Conn. 229. Put
differently, ‘‘before this court may overturn a jury ver-
dict for insufficient evidence, it must conclude that no
reasonable jury could arrive at the conclusion the jury
did.’’ (Internal quotation marks omitted.) Id., 233.
Accordingly, ‘‘[a] party challenging the validity of the
jury’s verdict on grounds that there was insufficient
evidence to support such a result carries a difficult
burden.’’ (Internal quotation marks omitted.) Id.
‘‘Although the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense . . . each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt.’’ (Inter-
nal quotation marks omitted.) Id. The jury, ‘‘[i]n evaluat-
ing evidence . . . is not required to accept as disposi-
tive those inferences that are consistent with the
defendant’s innocence. . . . The [jury] may draw what-
ever inferences from the evidence or facts established
by the evidence it deems to be reasonable and logical.’’
(Internal quotation marks omitted.) State v. Shin, supra,
193 Conn. App. 358. ‘‘Because [t]he only kind of an
inference recognized by the law is a reasonable one
[however] . . . any such inference cannot be based on
possibilities, surmise or conjecture. . . . It is axio-
matic, therefore, that [a]ny [inference] drawn must be
rational and founded upon the evidence.’’ (Internal quo-
tation marks omitted.) State v. Ervin B., 202 Conn. App.
1, 6, 243 A.3d 799 (2020).
In light of the foregoing legal principles, we turn to
the sufficiency of the evidence as a whole, beginning
with the elements of the offense for which the defendant
was charged. Section 53a-94 provides in relevant part:
‘‘(a) A person is guilty of kidnapping in the second
degree when he abducts another person. . . .’’ Section
53a-91 (2) defines ‘‘ ‘[a]bduct’ ’’ to mean, in relevant
part, ‘‘to restrain a person with intent to prevent his
liberation by . . . (B) using or threatening to use physi-
cal force or intimidation.’’ Section 53a-91 (1) defines
‘‘ ‘[r]estrain’ ’’ to mean ‘‘to restrict a person’s move-
ments intentionally and unlawfully in such a manner
as to interfere substantially with his liberty by moving
him from one place to another, or by confining him
either in the place where the restriction commences
or in a place to which he has been moved, without
consent. . . .’’
The defendant first argues that the evidence in the
record is insufficient to prove beyond a reasonable
doubt that he intended to prevent the victims’ liberation
beyond that which was incidental to or necessary for
the commission of the larceny of the Jeep. Specifically,
he argues that the evidence, namely, the testimony that
established that the victims were already in the vehicle
when the defendant arrived at the gas station, that the
defendant did not further restrain the victims, and that
the defendant told the victims that he would not harm
them, indicated that his restraint of the victims was
incidental to the larceny. The defendant also asserts
that he did not restrain, harm, or threaten the occupants
in any way beyond what was necessary to commit the
larceny. Because, in connection with our resolution of
the defendant’s first claim, we concluded that the
court’s failure to provide a Salamon instruction to the
jury was harmless error because there was no reason-
able possibility that a properly instructed jury would
find that the defendant’s restraint was incidental to or
necessary for his completion of the larceny, it necessar-
ily follows that a reasonable view of the evidence sup-
ports the jury’s finding that the defendant intended to
prevent the victims’ liberation beyond that which was
incidental to or necessary to complete the larceny and,
consequently, the jury’s verdict of guilty.
The defendant also contends that no reasonable fact
finder could conclude that he used or threatened to use
force or intimidation to restrain the victims. Specifi-
cally, the defendant argues that there is no evidence
that he physically harmed or threatened to physically
harm the victims. The defendant asserts that he never
physically blocked M from exiting the Jeep before he
drove out of the parking lot of the gas station, nor did
he brandish a weapon or threaten M to prevent her
from exiting the vehicle. Further, the defendant asserts
that he did not use physical force to restrain L and O
because they were already strapped into their booster
seats when he entered the Jeep. In response, the state
argues that the defendant used physical force to restrain
the victims when he confined them in a moving vehicle
for ten minutes and failed to permit them to get out
of the car. The state notes that, during that time, M
surrendered her cell phone to the defendant out of fear.
Accordingly, the state contends, the jury reasonably
concluded that the defendant intimidated the victims
or, through his actions, implicitly threatened the use of
force against them.
A defendant who uses force or threatens to use force
‘‘coerc[es] or comp[els] [the victim] by an actual or
threatened act,’’ to acquiesce to the defendant’s
demand. (Internal quotation marks omitted.) State v.
Tucker, 226 Conn. 618, 650 n.37, 629 A.2d 1067 (1993).
This court has held that the jury, in evaluating whether
a defendant intended to restrain a victim by using
threats of force or intimidation, may consider the vic-
tim’s reasonable belief that, had she tried to escape
his confinement, the defendant may have used force
against her. See State v. Morlo M., 206 Conn. App. 660,
688–90, 261 A.3d 68, cert. denied, 339 Conn. 910, 261
A.3d 745 (2021); State v. Franko, 142 Conn. App. 451,
461, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d
30 (2013); see also State v. Wideman, 36 Conn. App.
190, 196, 650 A.2d 571 (1994) (‘‘[t]he state of mind of the
victim is a relevant consideration in’’ jury’s evaluation
of whether defendant restrained victim ‘‘by the threat of
force’’ (internal quotation marks omitted)), cert. denied,
232 Conn. 903, 653 A.2d 192 (1995). In State v. Myers,
129 Conn. App. 499, 513–14, 21 A.3d 499, cert. denied,
302 Conn. 918, 27 A.3d 370 (2011), for example, this
court, in affirming the jury’s determination that the
defendant had used the threat of force to restrain the
victim, relied on a victim’s testimony that she felt as if
she had ‘‘ ‘no choice’ ’’ other than to comply with the
defendant’s demand to get into a car.
The evidence admitted at trial in the present case,
and the reasonable inferences from that evidence that
the jury was permitted to draw, were more than suffi-
cient to establish that the defendant used or threatened
to use force or intimidation to restrain the victims.
Contrary to the defendant’s contention that he did not
prevent M from exiting the Jeep, M testified that, to
enter the Jeep, the defendant opened the passenger
side door, next to where M was sitting, and climbed over
M to get into the driver’s seat. M and Ayotte testified
that the defendant drove out of the parking lot of the
gas station at a high rate of speed, and Ayotte’s body
camera footage documented that far less than one
minute passed between the defendant arriving at the
gas station in the minivan and exiting the gas station
in the Jeep. M’s grandchildren, L and O, were strapped
into their booster seats in the backseat. M additionally
testified that the defendant drove erratically and at a
high rate of speed, such that she had to hold onto the
Jeep’s interior, and that the defendant drove the Jeep
on the highway. From this evidence, the jury reasonably
could have inferred that the defendant used force to
prevent the victims from exiting the vehicle before he
began driving and while the vehicle was in motion.
Further, M testified, she expressed to the defendant
that she ‘‘just wanted [her grandchildren] to be safe,’’
regardless of what the defendant had done. Having
heard M’s pleas, the defendant nonetheless did not
allow the victims to exit the vehicle until after he had
driven for ten minutes in total, at which point he pulled
over on the side of the highway and instructed M to
quickly exit the vehicle. M testified that she was worried
about her grandchildren, one of whom was crying. M
also testified that the defendant had asked her whether
she had a cell phone and that she initially had lied to
the defendant by stating that she did not have one. M,
however, eventually surrendered her cell phone to the
defendant, out of fear that the phone may ring. The jury
reasonably could have inferred that M surrendered her
only channel of communication because she feared that
the defendant may have reacted by using force against
her or her grandchildren, had the phone rang. Viewing
the evidence in the light most favorable to sustaining
the verdict, the jury reasonably could have inferred that
the defendant intimidated or threatened to use force
to restrain the victims and that M reasonably believed
that, if she tried to escape her confinement, the defen-
dant would use force against her or her grandchildren.
In sum, we are not persuaded that the evidence in
the present case was insufficient to prove that the defen-
dant intended to prevent the victims’ liberation beyond
what was incidental to or necessary for the successful
completion of the larceny and that he used or threat-
ened to use force or intimidation to restrain the victims.
We therefore conclude that there was sufficient evi-
dence from which the jury reasonably could have found
the defendant guilty beyond a reasonable doubt of each
of the three counts of kidnapping in the second degree.
III
The defendant’s final claim on appeal is that the court
abused its discretion when it denied his requests to
have his leg shackles removed during the trial11 and
violated his constitutional right to due process by
requiring him to be shackled during the trial. Specifi-
cally, the defendant argues that the court’s denial of his
requests to remove his leg shackles without adequately
explaining why it denied the requests resulted in the
defendant being unfairly restrained, deprived him of
his right to a fair trial and undermined his presumption
of innocence.12 The state argues that the court provided
sufficient reasons to support its denial of the defen-
dant’s requests and, more importantly, the defendant
failed to present evidence establishing that the shackles
were visible to the jury. Because we find that the defen-
dant has failed to meet his burden of proving that his
leg shackles were visible to the jury, the defendant’s
claim necessarily fails.
The following additional procedural history is rele-
vant to our resolution of this claim. On the first three
days of jury selection on September 11, 13 and 16, 2019,
the defendant requested that his handcuffs be removed,
and, on confirming with the judicial marshals that there
existed no security concern, the court granted each
request. The court noted on September 11 and 13, 2019,
that the defendant’s legs remained shackled and that
his leg shackles were not visible to the venirepeople.
On September 16, 2019, a judicial marshal characterized
the defendant’s behavior as ‘‘[g]reat.’’ On September 19,
2019, the court granted the defendant’s request that his
shackles be removed.13
The trial began on September 23, 2019. During a mid-
trial recess on the first day of trial, counsel for the
defendant requested in chambers that the defendant’s
leg shackles be removed. On the record, the court asked
the judicial marshals whether they had any safety or
behavioral concerns, and the judicial marshals
answered that the defendant had not presented any
issues. Accordingly, although the court noted that it
believed that his leg shackles were not visible to the
jury, the court granted the defendant’s request and
ordered that the leg shackles be removed. A judicial
marshal asked the court whether the defendant’s legs
should remain unshackled for the duration of the trial,
and the court clarified that it would reevaluate whether
to remove the defendant’s leg shackles on each day of
the proceedings, at the request of the defendant.
On September 24, 2019, and outside of the presence
of the jury, the defendant requested that his leg shackles
be removed. The court stated that, on the basis of its
conversations with the parties that morning, it antici-
pated that certain testimony the state planned to elicit
from one of its witnesses could produce an emotional
reaction from the defendant.14 The court noted that,
although it did not ‘‘have a crystal ball,’’ it would be
easier to prevent an emotional reaction than to remedi-
ate any consequences of one. Consequently, the court
denied the defendant’s request.
Counsel for the defendant expressed to the court that
the defendant was ‘‘concerned’’ that, on the previous
day, one of the jurors had seen the shackles. The court,
however, explained that, earlier that day, it had
instructed one of the judicial marshals to sit in various
chairs in the jury box, including in two chairs near the
counsel’s tables, to determine whether the leg shackles
were visible to any juror. The judicial marshal con-
firmed that the leg shackles were not visible from the
various seats in the jury box.
The trial resumed, and, on September 26, 2019, the
defense rested. The following day, before the com-
mencement of closing arguments and jury instructions,
the defendant once again requested that his leg shackles
be removed. The court denied the defendant’s request,
providing as reasons for its decision that the defendant
would not ‘‘be moving around the courtroom’’ during
closing arguments and jury instructions, that his leg
shackles were not visible to the jury, and that he was
not wearing hand shackles.15
We begin by setting forth the legal principles that
govern our analysis of this claim, including the applica-
ble standard of review. ‘‘[I]n reviewing a shackling
claim, our task is to determine whether the court’s
decision to employ restraints constituted a clear abuse
of discretion.’’ (Internal quotation marks omitted.) State
v. Brawley, 321 Conn. 583, 589, 137 A.3d 757 (2016).
‘‘Central to the right to a fair trial, guaranteed by the
[s]ixth and [f]ourteenth [a]mendments [to the United
States constitution], is the principle that one accused
of a crime is entitled to have his guilt or innocence
determined solely on the basis of the evidence intro-
duced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances
not adduced as proof at trial.’’ (Internal quotation marks
omitted.) State v. Marcus H., 190 Conn. App. 332, 345,
210 A.3d 607, cert. denied, 332 Conn. 910, 211 A.3d 71,
cert. denied, U.S. , 140 S. Ct. 540, 205 L. Ed. 2d
343 (2019). ‘‘[C]ourts must be alert to factors that may
undermine the fairness of the fact-finding process. In
the administration of criminal justice, courts must care-
fully guard against dilution of the principle that guilt is
to be established by probative evidence and beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Woolcock, 201 Conn. 605, 613, 518 A.2d 1377(1986). Thus, ‘‘[i]n order for a criminal defendant to
enjoy the maximum benefit of the presumption of inno-
cence, our courts should make every reasonable effort
to present the defendant before the jury in a manner
that does not suggest, expressly or impliedly, that he
or she is a dangerous character whose guilt is a foregone
conclusion.’’ (Internal quotation marks omitted.) State
v. Webb, 238 Conn. 389, 455, 680 A.2d 147 (1996).
Accordingly, ‘‘[i]t is well established that, [a]s a gen-
eral proposition, a criminal defendant has the right to
appear in court free from physical restraints. . . .
Grounded in the common law, this right evolved in
order to preserve the presumption favoring a criminal
defendant’s innocence, while eliminating any detrimen-
tal effects to the defendant that could result if he were
physically restrained in the courtroom. . . . The pre-
sumption of innocence, although not articulated in the
[c]onstitution, is a basic component of a fair trial under
our system of criminal justice.’’ (Internal quotation
marks omitted.) State v. Brawley, supra, 321 Conn. 587.
As this court explained in Marcus H., ‘‘the United States
Supreme Court [in Deck v. Missouri, 544 U.S. 622, 628,
125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005)] stated that
. . . [c]ourts and commentators share close to a con-
sensus that, during the guilt phase of a trial, a criminal
defendant has a right to remain free of physical
restraints that are visible to the jury; [and] that the
right has a constitutional dimension . . . .’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Marcus H., supra, 190 Conn. App. 347.
‘‘Nonetheless, a defendant’s right to appear before
the jury unfettered is not absolute. . . . A trial court
may employ a reasonable means of restraint [on] a
defendant if, exercising its broad discretion in such
matters, the court finds that restraints are reasonably
necessary under the circumstances.’’ (Internal quota-
tion marks omitted.) State v. Brawley, supra, 321 Conn.
587. For example, a defendant’s ‘‘right to remain free
of physical restraints that are visible to the jury . . .
may be overcome in a particular instance by essential
state interests such as physical security, escape preven-
tion, or courtroom decorum.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) State v. Marcus H., supra,
190 Conn. App. 347, quoting Deck v. Missouri, supra,544 U.S. 628. Because ‘‘[a] trial judge has a duty to do
what may be necessary to prevent escape, to minimize
danger of harm to those attending trial as well as to
the general public, and to maintain decent order in the
courtroom . . . [s]hackles may properly be employed
in order to ensure the safe, reasonable and orderly
progress of trial.’’ (Citations omitted; internal quotation
marks omitted.) State v. Woolcock, supra, 201 Conn. 614.
‘‘Despite the breadth of [the court’s] discretion, how-
ever, [t]he law has long forbidden routine use of visible
shackles during the guilt phase . . . .’’ (Emphasis
added; internal quotation marks omitted.) State v.
Brawley, supra, 321 Conn. 587. ‘‘[T]he [United States
Supreme] [C]ourt held [in Deck v. Missouri, supra, 544
U.S. 629] that the [f]ifth and [f]ourteenth [a]mendments
prohibit the use of physical restraints visible to the jury
absent a trial court determination, in the exercise of
its discretion, that they are justified by a state interest
specific to a particular trial.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Marcus H.,
supra, 190 Conn. App. 347.
Practice Book § 42-46 mandates in relevant part: ‘‘In
ordering the use of restraints or denying a request to
remove them, the judicial authority shall detail its rea-
sons on the record outside the presence of the jury.
The nature and duration of the restraints employed
shall be those reasonably necessary under the circum-
stances. . . .’’ See also State v. Brawley, supra, 321
Conn. 589 (‘‘a trial court must ensure that its reasons
for ordering the use of restraints are detailed in the
record’’ (internal quotation marks omitted)). Although
a trial court is not mandated to conduct ‘‘an evidentiary
hearing concerning the necessity for restraints,’’ our
‘‘appellate review is greatly aided when a court develops
the record by conducting [such] an evidentiary hearing
. . . .’’ (Internal quotation marks omitted.) Id.If ‘‘a court, without adequate justification, orders [a]
defendant to wear shackles that will be seen by the jury,
the defendant need not demonstrate actual prejudice
to make out a due process violation. The [s]tate must
prove beyond a reasonable doubt that the [shackling]
error complained of did not contribute to the verdict
obtained.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 588–89. ‘‘The negative connotations
of restraints, nevertheless, are without significance
unless the fact of the restraints comes to the attention
of the jury.’’ (Internal quotation marks omitted.) State
v. Webb, supra, 238 Conn. 455. ‘‘[T]o establish that he
was deprived of his right to a fair trial, the defendant
. . . must provide evidence demonstrating that the jury
actually saw or otherwise was aware of his restraints.’’
State v. Brawley, supra, 321 Conn. 590–91. ‘‘The defen-
dant bears the burden of showing that he has suffered
prejudice by establishing a factual record demonstra-
ting that the members of the jury knew of the restraints.’’
(Internal quotation marks omitted.) Id., 588.
In light of the foregoing legal principles, we remind
courts to follow the prescriptions of Practice Book § 42-
46 and to articulate the reasons that support a court’s
decision to order the use of, or to deny a defendant’s
request to remove his, leg shackles, regardless of
whether the shackles are visible to the jury. See Practice
Book § 42-46. We also emphasize the constitutional
dimension inherent in a defendant’s right to remain free
of physical restraints that are visible to the jury during
the guilt phase of his trial. See State v. Marcus H.,
supra, 190 Conn. App. 347.
Turning to the present case, our review of the record
reveals no evidence to suggest that the jurors actually
saw or otherwise knew of the defendant’s leg shackles.
See State v. Brawley, supra, 321 Conn. 592. Although
defense counsel expressed to the trial court on one
occasion that the defendant was ‘‘concerned’’ that one
of the jurors had seen his leg shackles, the defendant
pointed to no evidence, neither to the court nor in his
brief to this court, to support that any juror could see the
shackles.16 By contrast, the court instructed a judicial
marshal to sit in various chairs in the jury box to assure
that the defendant’s leg shackles were not visible to
the jury. Because the defendant has failed to satisfy
his burden of demonstrating that members of the jury
actually saw or otherwise were aware of his restraints,
he has failed to establish that the court’s denial of his
requests deprived him of his right to a fair trial, and,
accordingly, his claim fails.17
The judgment is affirmed.
In this opinion the other judges concurred.
1
At some point prior to trial, Renaldi and the defendant were incarcerated
in the same correctional facility. Renaldi testified at trial that, during this
period of incarceration, the defendant asked him to recant his statement
identifying the defendant as the driver of the Jeep. Initially, Renaldi recanted
his statement, but he later executed a cooperation agreement under which
he agreed to testify at trial against the defendant.
2
The robbery charge of which the defendant was acquitted related to his
taking of the Jeep. During oral argument before this court, the state clarified
that it did not charge the defendant with any crimes related to the robbery
of the bank.
3
In previous Salamon cases, our Supreme Court and this court have used
a phrase that our Supreme Court refers to as Salamon’s ‘‘ ‘incidental and
necessary test’ ’’; Banks v. Commissioner of Correction, supra, 339 Conn.
50–51; that is, that ‘‘[o]ur legislature . . . intended to exclude from the
scope of the more serious crime of kidnapping and its accompanying severe
penalties those confinements or movements of a victim that are merely
incidental to and necessary for the commission of another crime against
that victim.’’ (Emphasis added.) State v. Salamon, supra, 287 Conn. 542. In
Banks, however, our Supreme Court acknowledged that Salamon’s ‘‘ ‘inci-
dental and necessary’ ’’ language has created ‘‘confusion among litigants
and the lower courts’’ with respect to whether ‘‘a defendant [is] entitled to
Salamon’s protections if either prong of the [incidental and necessary] test
applies (if, for example, restraint of the victim was incidental to a sexual
assault but was not necessary to accomplish the assault).’’ (Emphasis
added.) Banks v. Commissioner of Correction, supra, 50–51.
In evaluating ‘‘whether the incidental and necessary [language in Salamon]
is to be understood as conjunctive or disjunctive’’; id., 51; our Supreme
Court stated that the terms ‘‘incidental to the underlying crime, necessary
to commit the underlying crime, inherent in the nature of the underlying
crime, and having no independent criminal significance . . . are merely
different ways of expressing the same concept, namely, whether the restraint
imposed evidenced an independent criminal intent or subjected the victims
to risks distinct from those necessarily entailed by or inherent in the underly-
ing offenses.’’ (Citations omitted.) Id., 54–55. Our Supreme Court concluded
that ‘‘conduct that is wholly incidental to the commission of an underlying
crime cannot qualify as kidnapping, regardless of whether it is strictly
necessary to commit that crime.’’ (Emphasis added.) Id., 54. Accordingly,
the court confirmed that a defendant is entitled to Salamon’s protections
if his actions are either incidental to or necessary to commit the underlying
offense. See id., 51–54. Thus, throughout this opinion and in accordance
with our Supreme Court’s analysis in Banks, we use the phrase ‘‘incidental
to or necessary for,’’ as opposed to ‘‘incidental to and necessary for,’’ the
commission of another substantive crime.
4
In Banks, a habeas proceeding, our Supreme Court adopted the harm-
lessness standard laid out by the United States Supreme Court in Brecht v.
Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993),
under which ‘‘the harmlessness of constitutional errors is assessed according
to whether the error had [a] substantial and injurious effect or influence in
determining the jury’s verdict. . . . The Brecht standard reserves the rem-
edy of a new trial for errors resulting in actual prejudice, as distinguished
from errors giving rise to a mere possibility of harm.’’ (Citations omitted;
internal quotation marks omitted.) Banks v. Commissioner of Correction,
supra, 339 Conn. 15–16. The court, however, clarified that a reviewing court
assesses harm according to the Brecht standard only ‘‘on collateral review’’;
id., 18; including in state habeas proceedings. Id., 5, 19. By contrast, a court
assesses harm according to the Neder standard ‘‘on direct review,’’ including
in the direct appeal of a defendant’s conviction. Id., 17. Thus, ‘‘it is undisputed
that Neder is the proper standard’’ to assess harm on direct review of cases
involving an instructional error pursuant to Salamon. Id.
5
As this court noted in White, ‘‘[a]lthough we recognize that the factors
enumerated in Salamon are not intended to constitute an exhaustive list of
the possible factors that may be relevant in a given case, the parties have
not identified any other factors relevant to the present case, and, thus, we
limit our discussion to those factors expressly identified in Salamon.’’ White
v. Commissioner of Correction, supra, 170 Conn. App. 429 n.9.
6
As we explain in our evaluation of the third Salamon factor, the mere
fact that a defendant’s unlawful actions facilitated his commission of a
substantive crime does not necessarily mean that those actions were inciden-
tal to or necessary for the completion of that crime. In the present case,
the mere fact that the defendant’s confinement and movement of the victims
facilitated his avoidance of immediate arrest for the larceny because it
prevented him from being stopped by the police officers at the gas station
does not necessarily mean that the restraint was incidental to or necessary
for the successful completion of the larceny.
7
Although the defendant was convicted of the robberies in 1997, before
our Supreme Court decided Salamon in 2008; see Banks v. Commissioner
of Correction, supra, 339 Conn. 5, 11; ‘‘in Luurtsema v. Commissioner of
Correction, 299 Conn. 740, 12 A.3d 817 (2011), [our Supreme Court] held
that Salamon applies retroactively in habeas actions.’’ Bell v. Commissioner
of Correction, supra, 339 Conn. 87.
8
We acknowledge that, earlier in its opinion in Bell, our Supreme Court
stated that only ‘‘after the petitioner [had] finished looting the safe’’ did he
order the employee ‘‘to proceed into the refrigerator.’’ (Emphasis added;
internal quotation marks omitted.) Bell v. Commissioner of Correction,
supra, 339 Conn. 83. Later in its opinion, however, and as we note in this
opinion, the Supreme Court clarified that ‘‘[t]he petitioner informed the
police that [in each of the two robberies he committed] he took the money
from each safe while the victims were restrained in the refrigerators.’’
(Emphasis added.) Id., 93. The Supreme Court distinguished Bell from its
opinion in Banks by emphasizing that, in Bell, the jury reasonably could
have concluded that the petitioner confined the victims to incapacitate them
‘‘while he completed the robberies.’’ (Emphasis added.) Id. Because the
analysis of the Supreme Court hinges on this distinction, we rely on its
conclusion that ‘‘the jury . . . reasonably could have found that the peti-
tioner forced [the employee of the first restaurant that the petitioner robbed]
. . . into the walk-in [refrigerator] not to facilitate his postrobbery escape
but, rather, to incapacitate [her] while he completed the robber[y].’’ Id., 92–
93.
9
To the extent that the second factor cuts in favor of the defendant, we
find that it does not trump the significance of the remaining factors that
weigh in the state’s favor.
10
This court and our Supreme Court, in previous cases, have addressed
claims of insufficient evidence before addressing other claims raised on
appeal because, ‘‘if the defendant prevails on [his] sufficiency claim, [he]
is entitled to a directed judgment of acquittal rather than to a new trial.’’
(Internal quotation marks omitted.) State v. Bagnaschi, 180 Conn. App. 835,
840 n.3, 184 A.3d 1234, cert. denied, 329 Conn. 912, 186 A.3d 1170 (2018);
see also State v. Calabrese, 279 Conn. 393, 401, 902 A.2d 1044 (2006). In the
present case, however, we address the defendant’s claims in the order in
which they were raised in his principal appellate brief because our resolution
of his first claim necessarily resolves one of the two arguments related to
insufficiency of the evidence that he raised in his second claim.
11
We note that, although the defendant argues in his brief that the court
improperly required his legs to be shackled ‘‘during most of his trial,’’ that
characterization is somewhat misleading. The court instructed the defendant
to request that his shackles be removed on a day-by-day basis. The defendant
requested the removal of his leg shackles on September 23, 2019, and the
court granted his request. The defendant did not request that his leg shackles
be removed on September 25 or 26, 2019, and, thus, it is unclear whether
the court would have allowed the leg shackles to be removed on those days
if asked.
12
The defendant also argues that the court’s denial of his requests to
remove his leg shackles inhibited his ability to assist in his defense, noting
that physical restraints generally may inhibit a defendant’s ability to interact
with counsel or affect his decision to testify. The defendant, however, neither
argued nor pointed us to any evidence in the record to suggest that his leg
shackles inhibited his ability to assist in his defense in this case.
13
The record, however, is unclear whether the defendant requested that
his hand shackles or his leg shackles be removed and, thus, whether the
court granted the removal of the defendant’s hand or leg shackles.
14
On September 24, 2019, the state called four witnesses to testify: Renaldi,
Sergeant Steve Cifone, Detective Adam Tillotson, and Officer Ryan Lair.
15
Specifically, the court stated: ‘‘[The defendant is] not going to be moving
around the courtroom. We’ve noted for the record previously that the shack-
les are not visible to the jury. He is not wearing hand shackles and this is,
I think for today’s purposes, the answer is no.’’
16
The defendant also argues that the jurors may have heard the defendant’s
leg shackles. He has not pointed us to anywhere in the record to support
this contention, and our review of the record has uncovered no evidence
from which to conclude that the jurors heard the defendant’s shackles at
any point during the trial. Thus, with respect to this argument, the defendant
has not met his burden of ‘‘demonstrating that the members of the jury
knew of the restraints.’’ (Internal quotation marks omitted.) State v. Brawley,
supra, 321 Conn. 588.
17
The defendant requests that we exercise our ‘‘supervisory authority’’ to
require trial courts to conduct an evidentiary hearing to evaluate the neces-
sity for restraints and, should the court determine that restraints are neces-
sary, to create a record detailing the steps it took to assure that the jury is not
aware of the restraints. The defendant argues that the protections afforded
to him, namely, by the rules of practice and in our Supreme Court’s decision
in Brawley, are insufficient to ensure to him a fair trial and that the state
should bear the burden of proving that the defendant’s shackles were not
visible to the jury.
As we have explained, our Supreme Court in Brawley specifically stated
that courts need not conduct an evidentiary hearing to evaluate the necessity
of restraints and that the burden lies with the defendant to provide evidence
demonstrating that the jury was aware of his restraints. State v. Brawley,
supra, 321 Conn. 589–91. ‘‘As an intermediate appellate court, we . . . are
bound by the decisions of our Supreme Court.’’ Nogueira v. Commissioner
of Correction, 168 Conn. App. 803, 805 n.1, 149 A.3d 983, cert. denied, 323
Conn. 949, 169 A.3d 792 (2016). Accordingly, we decline to create such a
rule because it is not the province of this panel to disregard binding authority
of our Supreme Court.