State v. Smith

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STATE OF CONNECTICUT v. BRIAN J. SMITH
(AC 38103)
(AC 38104)
(AC 38105)
DiPentima, C. J., and Keller and Prescott, Js.
Syllabus
Convicted of the crimes of, inter alia, operating a motor vehicle while
under the influence of intoxicating liquor or drugs and tampering with
a witness, the defendant, who also was convicted of being a third time
offender, appealed to this court. A state police trooper had observed
the defendant’s stationary vehicle in the travel lane of a road with its
brake lights illuminated. When the trooper positioned his vehicle behind
the defendant’s vehicle, the trooper saw the defendant’s brake lights go
off and his parking lights go on. The trooper smelled burnt marijuana
in the defendant’s vehicle and, when he asked the defendant for his
driver’s license and the vehicle’s registration, observed that the defen-
dant’s speech was slurred and that his eyes were bloodshot and glazed
over. The trooper thereafter administered field sobriety tests, which the
defendant failed. After the defendant was released from police custody,
he engaged his girlfriend, K, and P and A, who were friends of K and
who testified at trial, in a plan to create a false narrative of the events
that led to his arrest so that he could claim that he had pulled over for
safety and had not driven his automobile because it was inoperative
when he encountered the trooper. After P changed her mind about
participating in the defendant’s plan, he sent her messages on Facebook
in which he attempted to calm her and made various threats against
her if she did not testify on his behalf. On appeal, the defendant claimed,
inter alia, that the evidence was insufficient to support his conviction
of operating a motor vehicle while under the influence of intoxicating
liquor or drugs because it failed to show that he had operated his vehicle
just prior to his encounter with the trooper. Held:
1. The evidence was sufficient to support the defendant’s conviction of
operating a motor vehicle while under the influence of intoxicating
liquor or drugs, the state having presented sufficient evidence to prove
beyond a reasonable doubt that the defendant operated a motor vehicle
while he was intoxicated: contrary to the defendant’s claim, there was
ample evidence to support a finding that he had operated his vehicle
just prior to the point in time that he encountered the trooper, as a
written statement that the defendant provided to the police following
his arrest permitted the jury to reasonably find that he had admitted
that he pulled over for safety just prior to the trooper’s arrival on the
scene, the jury reasonably could have inferred that the defendant’s
explanation to K about the incident with the trooper reflected an implicit
admission that he had been driving just prior to the time that he encoun-
tered the trooper, and it would have been reasonable for the jury to
conclude from the trooper’s testimony that he saw the defendant’s park-
ing lights go on when the brake lights went off, that the defendant had
shifted the gears in the automobile with the key in the ignition, which
contradicted the defendant’s testimony that his vehicle had been dis-
abled prior to his encounter with the trooper; moreover, the jury reason-
ably could have rejected as untruthful the defendant’s testimony that
the automobile was inoperable, as the state presented ample evidence
that, following his arrest, the defendant engaged others to provide a
false version of events concerning his operation of the automobile, and
that evidence was highly probative of the fact that he had operated
the vehicle just prior to his encounter with the trooper and of his
consciousness of guilt for having operated the motor vehicle while under
the influence.
2. The defendant could not prevail on his claim that the trial court improperly
admitted into evidence a copy of a written Facebook message that he
had sent to P in which he asked her to corroborate his version of the
events that led to his arrest; the state satisfied its burden of authenticat-
ing the exhibit at issue because it presented sufficient evidence to sup-
port a finding that the evidence was what the state claimed it to be,
namely, a Facebook message sent to P by the defendant, as P’s personal
knowledge of the defendant and the subject matter of the message, as
well as the distinctive characteristics of the communication in light
of the surrounding circumstances in which it was made, constituted
sufficient circumstantial evidence of authenticity, the defendant had a
full opportunity to expose to the jury what he believed were weaknesses
in the evidence and to argue that it lacked probative value, and any
error with respect to the admission of the written Facebook message
was harmless, as the message was merely cumulative of other efforts
made by the defendant to induce P to testify falsely.
Argued October 23, 2017—officially released February 20, 2018
Procedural History
Two part substitute information charging the defen-
dant, in the first two cases, with the crimes of operating
a motor vehicle while under the influence of intoxicat-
ing liquor or drugs, operating a motor vehicle with an
elevated blood alcohol content and making a false state-
ment in the second degree, and with possession of a
small amount of a cannabis-type substance, and the
infractions of improper parking and operating a motor
vehicle without carrying an operator’s license, and, in
the second part, with having previously been convicted
of operating a motor vehicle while under the influence,
and substitute information in the third case, charging
the defendant with two counts of the crime of tampering
with a witness, brought to the Superior Court in the
judicial district of Tolland, geographical area number
nineteen, where the court, Graham, J., granted the
state’s motion to consolidate the cases for trial; there-
after, the charges in the first and third cases of operating
a motor vehicle while under the influence of intoxicat-
ing liquor or drugs, operating a motor vehicle with an
elevated blood alcohol content, making a false state-
ment in the second degree and tampering with a witness
were tried to the jury before Oliver, J.; verdicts of guilty;
subsequently, the charges in the first two cases of pos-
session of a small amount of a cannabis-type substance,
improper parking and operating a motor vehicle without
carrying an operator’s license were tried to the court,
Oliver, J.; finding of guilty; thereafter, the defendant
was presented to the court, Oliver, J., on a plea of nolo
contendere to the second part of the first information;
judgment of guilty; subsequently, the court, Oliver, J.,
vacated the verdict of guilty of operating a motor vehicle
with an elevated blood alcohol content; judgments of
guilty, from which the defendant filed separate appeals
with this court; thereafter, this court consolidated the
appeals. Affirmed.
Jennifer B. Smith, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Charles W. Johnson, assistant state’s
attorney, for the appellee (state).
Opinion
KELLER, J. In these consolidated appeals,1 the defen-
dant, Brian J. Smith, appeals from the judgments of
conviction, rendered following a jury trial, of operating
a motor vehicle while under the influence of intoxicat-
ing liquor or any drug in violation of General Statutes
§ 14-227a (a) (1), and tampering with a witness in viola-
tion of General Statutes § 53a-151 (a). The defendant
claims that (1) the evidence was insufficient to convict
him of operating a motor vehicle while under the influ-
ence of intoxicating liquor or any drug and (2) the court
erroneously admitted certain evidence relating to the
witness tampering count. We affirm the judgments of
the trial court.
The jury reasonably could have found the following
facts. At approximately 1:50 a.m. on March 7, 2014,
James Grimes, a state police trooper, was patrolling
near the intersection of Route 44 and Route 195 in
Manchester when he observed a stationary motor vehi-
cle in the eastbound travel lane of Route 320, which
intersects with Route 195 a short distance from the
intersection of Route 44 and Route 195. The motor
vehicle, a tan colored Volvo, was impeding travel.
Grimes observed the vehicle for a few minutes and saw
that the vehicle’s brake lights were on and that the
vehicle remained stationary.
Grimes positioned his police cruiser behind the sta-
tionary vehicle and activated his vehicle’s emergency
lights. At that time, he observed that ‘‘the brake lights
[on the stationary vehicle] went off because you could
see the parking lights go on as the vehicle was shifted
into park.’’ Grimes exited his cruiser and knocked on
the passenger window. The sole occupant and operator
of the vehicle, the defendant, rolled down the passenger
window. Immediately, Grimes smelled burnt marijuana.
Grimes asked the defendant ‘‘what was going on,’’ to
which the defendant replied, ‘‘I’m just stopped,’’ and
that he was trying to use his cell phone. Grimes, after
concluding that the defendant was not experiencing a
medical issue and that there were not any mechanical
issues with the vehicle, told him that he could have
chosen a more suitable location. Grimes then asked
the defendant for his driver’s license and his vehicle’s
registration. The defendant, however, did not have his
driver’s license with him.
While the defendant was searching for his license
and registration, Grimes asked him several questions
to gauge whether he was impaired. Grimes observed
that the defendant’s speech was slurred and that his
eyes were bloodshot and ‘‘glazed over . . . .’’ The
defendant’s responses were ‘‘kind of slow and kind of
spacy,’’ and the defendant was ‘‘struggling’’ to under-
stand or was not fully engaged in the conversation. For
example, the defendant first told Grimes that he was
traveling from Willimantic, but then told Grimes that
he was coming from his place of employment at a res-
taurant in Waterford.
Grimes walked to the driver’s side of the defendant’s
vehicle and the defendant complied with his request to
roll down the window. Grimes smelled not just burnt
marijuana, but also alcohol. Grimes asked the defendant
if he had been drinking or smoking marijuana, and the
defendant denied that he had used either substance.
Grimes then asked the defendant, who was still in
the vehicle, to complete two tests to gauge his sobriety
and coordination. The defendant was asked to recite
specified portions of the alphabet and to complete a
‘‘finger dexterity test’’ that required him to count aloud
while touching each of his fingertips with his thumb.
The defendant failed these tests.
Grimes returned to his cruiser to inform his dis-
patcher that he was going to administer standardized
field sobriety tests to the defendant. When he walked
in the direction of the defendant’s vehicle, he observed
the defendant quickly ‘‘shoving’’ candy into his mouth.
In Grimes’ experience, ‘‘this was a way for people that
are driving under the influence to try and mask their
breath or try to get something in their system that’s
going to dilute the alcohol concentration in their sys-
tem.’’ Grimes instructed him to stop.
At Grimes’ direction, the defendant exited the vehicle.
He moved slowly and kept his right hand closed. Grimes
ordered him to open his hands and to keep them raised,
but the defendant did not comply fully as he continued
to keep his right hand closed. Grimes opened the defen-
dant’s hand to reveal a small brown pipe. The pipe, like
the defendant’s vehicle, smelled like burnt marijuana.
The pipe contained marijuana residue.
Grimes then administered three standard field sobri-
ety tests, including the horizontal gaze nystagmus test,
the walk and turn test, and the one leg stand test. The
defendant failed all of these tests.
At 2:10 a.m., Grimes arrested the defendant after
which the defendant was handcuffed, seated in the
police cruiser, and transported to the state police bar-
racks for Troop C in Tolland. After Grimes advised the
defendant of his Miranda rights,2 the defendant pleaded
with Grimes to let him go because ‘‘he didn’t need this,’’
and that he was worried about losing his job. He stated
that ‘‘he just was going to see this girl and just wanted
to . . . sleep it off . . . .’’
At the state police barracks, Grimes searched the
defendant’s clothing. In a pocket of the defendant’s
jacket, he discovered a cigar holder containing mari-
juana. Grimes requested that the defendant submit to
a breath test. He advised the defendant of his rights in
this regard, as well as the significance of a refusal to
submit to the test.3 The defendant then spoke with his
attorney by telephone.
Grimes asked the defendant for his decision with
respect to the breath test. The defendant stated that he
wanted to talk to his attorney again. Grimes informed
the defendant that his indecision constituted a refusal
to submit to the test. Grimes summoned another state
police trooper, Jonathan Neihengen, to the processing
room. At that time, Neihengen witnessed the defen-
dant’s failure to cooperate with respect to the test,
which constituted his refusal. Grimes again permitted
the defendant an opportunity to use the telephone to
inform his attorney that he had refused to submit to
the test.
As the defendant turned to use the telephone, he
inserted a candy or a breath mint into his mouth. Earlier,
while Grimes was transporting the defendant to the
state police barracks, one of the things he discussed
with the defendant was that he could not have anything
to eat or drink until after he had completed the test.
When Grimes informed the defendant that his conduct,
which included eating candy, amounted to a refusal to
submit to a breath test, the defendant replied that he
had sustained injuries to his wrists as a result of the
handcuffs and that he wanted medical treatment at a
hospital. Emergency medical personnel arrived on the
scene, but they declined to transport him to the hospital
to treat what they considered to be an ‘‘extremely
minor’’ abrasion. When Grimes told the defendant that
he would not be going to the hospital, he then com-
plained for the first time that he wanted to go to the
hospital because he was experiencing heart problems
and trouble breathing. The defendant’s outward appear-
ance was normal, yet, on the basis of the defendant’s
new complaints, the emergency medical personnel at
the scene made the decision to transport the defendant
to Rockville General Hospital for examination.
Despite the fact that Grimes already had recorded
the defendant’s refusal to submit to a breath test, a state
police sergeant, Craig Jones, afforded the defendant yet
another opportunity to submit to a breath test. The
defendant declined this request, but stated that he
would provide a blood sample once he was at the hospi-
tal. Grimes accompanied the defendant to the hospital.
Upon his arrival, the defendant informed hospital staff
that he was experiencing chest pains and palpitations.
Hospital staff detected an alcohol-like odor being emit-
ted from the defendant. When hospital staff asked to
perform an electrocardiogram and lab work, the defen-
dant immediately replied that he needed to speak with
his attorney, his pain had subsided, and he was feeling
better since his arrival at the hospital. After speaking
with his attorney, the defendant told hospital staff that
he would submit to an electrocardiogram test and pro-
vide a urine sample, but he stated that he would not
submit to a blood test because he was afraid of needles.
Ultimately, at 5:08 a.m., more than three hours after
Grimes first encountered the defendant, the defendant
provided a blood sample to hospital staff. The defen-
dant’s urine sample tested positive for marijuana use,
his blood sample reflected a blood alcohol content of
0.10 percent,4 and the result of his electrocardiogram
test was normal. By 6 a.m., the defendant had been
discharged from the hospital because he was not suffer-
ing from any health issues, and he was returned to
the state police barracks. The defendant then gave the
police a written statement in which he admitted that
when Grimes came upon him earlier that morning, he
had pulled his automobile ‘‘over for safety’’ and was
attempting to complete a telephone call. After the police
completed processing the defendant, he was issued a
summons to appear in court and was released from
police custody.
The defendant called his girlfriend at that time, Lena
Knowles, from the police barracks because he needed
to be picked up. Later that day, he stated to her that
he was arrested for driving under the influence of alco-
hol and that he had, in fact, consumed a couple glasses
of wine. The defendant stated to her, however, that he
had a plan to deal with his arrest because, if he was
convicted, he would be separated from his son. Specifi-
cally, he planned on claiming that he had not driven
his automobile. He asked Knowles to relate the follow-
ing facts to law enforcement: she had been driving the
defendant’s automobile on March 6, 2014, while she
was out with friends. Meanwhile, the defendant was at
home with Knowles’ children. A friend of Knowles, Kelly
Aston, was following Knowles home when the defen-
dant’s automobile began ‘‘acting funny . . . .’’ Knowles
pulled over the disabled automobile, and Aston drove
her home. Later that night, Knowles drove the defendant
to the disabled automobile and left him with the auto-
mobile so that he could call for roadside assistance.
After Knowles departed, the police encountered the
defendant in the automobile.
Despite the fact that no aspect of this story was
accurate, Knowles indicated to the defendant that she
would relate these facts to the authorities on his behalf
because she felt sorry for him. The defendant told
Knowles that he had spoken with Aston, who had
agreed to corroborate this version of events, and asked
Knowles to persuade another friend of hers, Danielle
Petsa, to corroborate this version of events.
Later that day, at Knowles’ residence, the defendant
spoke with Aston. He told her about the circumstances
of his arrest, specifically, that he had consumed wine
at his place of employment, began driving to Knowles’
residence, and ‘‘was pulled over’’ on the road when the
police found him in his automobile. The defendant told
Aston the version of events that he had fabricated and,
initially, Aston agreed to ‘‘go along’’ with the defendant’s
story. Subsequently, she spoke with an investigator
working for the defendant’s attorney and made state-
ments that were consistent with the defendant’s false
version of events. After speaking with family members
about the matter, however, Aston decided that she
would not make any further false statements concern-
ing the incident because she was not comfortable doing
something that could get her into trouble with law
enforcement.
Soon after the incident, Knowles called Petsa on the
telephone and invited her to her residence to discuss
the defendant’s plan. Petsa met with the defendant and
Knowles at Knowles’ residence. The defendant and
Knowles discussed the details of her providing informa-
tion to law enforcement on the defendant’s behalf in
accordance with his plan. When Petsa was contacted
by an inspector working for the defendant’s attorney,
however, she had difficulty providing facts that were
consistent with the defendant’s version of events. She
had second thoughts about participating in the defen-
dant’s plan, experienced panic attacks, and ultimately
decided that she would not provide a false statement.
In a second conversation with the investigator, she told
him that she would not be involved with this any longer
and would not ‘‘cover’’ for the defendant.
When the defendant learned that Petsa was apprehen-
sive about providing false statements to the investigator
and had difficulty doing so, he communicated with her
on Facebook in an attempt to calm her and assure her
that she could do what he had asked of her. Later, when
the defendant learned from Knowles that Petsa would
not provide the information that he wanted her to pro-
vide, he sent her one or more messages on Facebook
in which he stated, among other things, that if she did
not testify on his behalf, he would tell the police that
she drives with her children in an unregistered automo-
bile and that he would tell the wife of a married man
with whom she was having an affair about the affair.5
Additional facts will be set forth in our analysis of the
defendant’s claims.
I
First, the defendant claims that the evidence was
insufficient to convict him of operating a motor vehicle
while under the influence of intoxicating liquor or any
drug. We disagree.
To sustain a conviction under § 14-227a (a) (1), the
state bore the burden of proving beyond a reasonable
doubt that (1) the defendant operated a motor vehicle
and (2) that he did so while under the influence of an
intoxicating liquor. The defendant does not argue that
the evidence did not support a finding that he was
intoxicated when Grimes encountered him in the early
morning of March 7, 2014. As he did before the trial
court,6 the defendant argues that the state did not pre-
sent sufficient evidence to demonstrate that he had
operated a motor vehicle at or near the time that he
encountered Grimes.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
Focusing on the essential element of operation of a
motor vehicle as used in § 14-227a (a) (1), we observe
that although evidence of driving readily proves that
operation occurred, the state may prove that operation
occurred other than by proof of driving. ‘‘Nothing in
our definition of ‘operation’ requires the vehicle to be
in motion or its motor to be running.’’ State v. Haight,
279 Conn. 546, 552, 903 A.2d 217 (2006). ‘‘It is well
settled that operating encompasses a broader range of
conduct than does driving. . . . [T]here is no require-
ment that the fact of operation be established by direct
evidence.’’ (Citation omitted; internal quotation marks
omitted.) State v. Sienkiewicz, 162 Conn. App. 407, 410,
131 A.3d 1222, cert. denied, 320 Conn. 924, 134 A.3d
621 (2016). ‘‘Operation occurs when a person in the
vehicle intentionally does any act or makes use of any
mechanical or electrical agency which alone or in
sequence will set in motion the motive power of the
vehicle. . . . This court has clarified the meaning of
operation by holding that an intent to drive is not an
element of operation. . . . An accused operates a
motor vehicle within the meaning of . . . § 14-227a (a)
when, while under the influence of alcohol or any drug
and while in the vehicle and in a position to control
its movements, he manipulates, for any purpose, the
machinery of the motor or any other machinery manipu-
lable from the driver’s position that affects or could
affect the vehicle’s movement, whether the accused
moves the vehicle or not.’’ (Internal quotation marks
omitted.) State v. Roth, 104 Conn. App. 248, 251 n.3,
932 A.2d 1071 (2007); see also State v. Wiggs, 60 Conn.
App. 551, 554, 760 A.2d 148 (2000).
In his assessment of the evidence, the defendant
relies heavily on his trial testimony. Notably, the defen-
dant testified that that his automobile was inoperable
at the time that Grimes came upon him and that he had
not driven the vehicle before it became inoperable. The
defendant testified to the following version of events:
He was driving to Knowles’ residence at approximately
7 p.m. on March 6, 2014, when his automobile experi-
enced problems of an electrical or mechanical nature
that were related to a continuously running fan. He
pulled to the side of the road and removed the key from
the ignition. He called Aston for a ride. Aston drove
the defendant to a bar where he and Aston smoked
marijuana. At a second bar, the defendant consumed
alcohol for the first time that evening. At approximately
1 a.m., on March 7, 2014, Aston drove the defendant
back to his disabled automobile and left immediately
after dropping him off.7 When he was back inside of
his automobile, he began searching for his roadside
assistance card. This is when Grimes approached him.
It was only after Grimes walked to his automobile and
instructed him to roll down his window that he retrieved
his key from his jacket, inserted the key into the ignition,
and turned the ignition to the ‘‘on’’ position so that he
could lower the window. According to the defendant,
the automobile had enough battery power to lower the
window, but not enough battery power ‘‘to power up
the vehicle.’’ The defendant testified that he never
attempted to induce Knowles, Aston, or Petsa to make
a false statement to help him in connection with the
present case.
Relying on his testimony that the automobile was
inoperable,8 as well as the fact that Grimes did not
observe the automobile in motion, the defendant argues
that operation could not have occurred in the present
case. The defendant cites precedent standing for the
proposition that an automobile that is totally disabled
or incapable of movement cannot be said to have been
operated. See, e.g., State v. Cyr, 291 Conn. 49, 60, 967
A.2d 32 (2009); State v. Swift, 125 Conn. 399, 404, 6
A.2d 359 (1939).
The defendant’s analysis of the claim is flawed
because, in arguing that the evidence was insufficient
to support a finding that he operated the automobile,
he disregards ample evidence that supported a finding
that he had operated the vehicle just prior to the point in
time that Grimes arrested him. In our role as a reviewing
court, we are bound to examine the evidence in the
light most favorable to the jury’s finding of guilt. State
v. Crespo, supra, 317 Conn. 16. The evidence included
the written statement that the defendant provided to
the police following his arrest. Therein, the defendant
stated in relevant part that ‘‘[o]n [March 7, 2014,] at
about 1:30 [a.m.,] I was stopped along [Route 195] near
the four corners and CVS in Willington, CT. I was
attempting to make a phone call and had pulled over
for safety. A [s]tate [t]rooper then pulled in behind my
car and came up to the passenger side of my car and
asked for my paperwork.’’ The jury, exercising common
sense in its evaluation of the evidence, reasonably could
have found that, when the defendant provided this
explanation to the police to explain what had occurred
when the police found his automobile obstructing traf-
fic, he admitted that he had ‘‘pulled over for safety’’
just prior to Grimes’ arrival on the scene. At trial, the
defendant testified that several events took place
between the time of operation and the time that he
encountered Grimes. Yet, the jury reasonably could
have inferred that the omission of these events from
the defendant’s statement suggested that his testimony
was not true. A rational interpretation of the statement
reflects that the defendant’s conduct in pulling over
was occasioned by and occurred contemporaneously
with his attempt to make a telephone call.9
Consistent with the defendant’s written statement
was Aston’s testimony that the defendant told her that,
prior to Grimes’ arrival, he had consumed wine at his
place of employment, began to drive to Knowles’ resi-
dence upon leaving work, and pulled his automobile
over for some reason. He was pulled over when Grimes
came upon him. The jury reasonably could have inter-
preted the evidence of the defendant’s candid explana-
tion to Aston in the same manner that it reasonably
could have interpreted the defendant’s statement to the
police, namely, as evidence of an implicit admission by
the defendant that he had operated his automobile just
prior to his encounter with Grimes. Moreover, Knowles
testified that when she discussed the incident with the
defendant upon his release from police custody, he
revealed to her that ‘‘he had been pulled over and that
he was arrested,’’ and that ‘‘[h]e said he had a couple of
glasses of wine.’’ Nothing in this explanation remotely
suggests that the myriad of events detailed by the defen-
dant in his trial testimony occurred between the time
that he ceased operating the automobile and the time
that Grimes came upon the scene. Additionally, the
defendant stated that he ‘‘had a plan to say that he
hadn’t been driving,’’ which included Knowles, Petsa
and Aston corroborating a false version of events. In
light of the evidence viewed in its entirety, the jury
reasonably could have inferred that the defendant’s
explanation to Knowles reflected an implicit admission
by the defendant that, in fact, he had been driving just
prior to the time that he encountered Grimes.
Further supporting a finding that the defendant had
operated his automobile just prior to his encounter
with Grimes was Grimes’ testimony that when he first
observed the defendant’s automobile, it was parked in
the middle of the roadway with its brake lights illumi-
nated. Grimes testified that he stopped behind the
defendant’s automobile and activated his emergency
lights, at which time ‘‘the brake lights went off because
you could see the parking lights go on as the vehicle
was shifted into park.’’10 It would have been reasonable
for the jury to have concluded that this evidence, which
suggested that the defendant had shifted the gears in
the automobile with the key in the ignition, plainly con-
tradicted his testimony that, when Aston returned him
to the automobile, he merely was in the process of
looking for his roadside assistance card.
The defendant testified that he had turned off the
motor of his automobile and removed the key from
the ignition because a display inside of the automobile
warned him of the potential for irreversible damage.
Although he denied having driven the automobile just
prior to his encounter with Grimes, the defendant
acknowledged that, after Aston returned him to his
automobile and Grimes arrived on the scene, he
inserted his key into the ignition and turned the key so
that he could lower his window. The defendant stated
that he did so because Grimes had knocked on the
window and motioned for him to lower it.
The defendant does not dispute that a finding that
he drove the automobile was sufficient to demonstrate
operation, and that relevant precedent reflects that the
act of inserting the key into the ignition and turning
the key within the ignition of an operable motor vehicle
is sufficient to demonstrate that a defendant has oper-
ated it. See, e.g., State v. Haight, supra, 279 Conn. 553;
State v. Bereis, 117 Conn. App. 360, 366–67, 978 A.2d
1122 (2009); State v. Clausen, 102 Conn. App. 241, 244,
925 A.2d 372 (2007). The defendant rebuts the evidence
of operation by focusing on the evidence that he pre-
sented to demonstrate that the automobile was inopera-
ble. The jury, having carefully considered the evidence
in its entirety, reasonably could have relied on the evi-
dence that the defendant had operated the automobile
and reasonably could have rejected as untruthful the
defendant’s testimony that his automobile was inopera-
ble. Moreover, the state presented ample evidence that,
following his arrest, the defendant engaged others to
provide a false version of events concerning his opera-
tion of the automobile. The evidence presented by the
state to demonstrate that the defendant tampered with
witnesses was highly probative of the fact that he had
operated the vehicle just prior to his encounter with
Grimes and of the defendant’s consciousness of guilt
for having operated a motor vehicle while under the
influence. These facts supported the jury’s reliance on
the state’s evidence and theory of the case.
In light of the foregoing, we conclude that the state
presented sufficient evidence to prove beyond a reason-
able doubt that the defendant operated a motor vehicle
while he was intoxicated. Accordingly, we reject the
defendant’s claim.
II
Next, the defendant claims that the court erroneously
admitted certain evidence relating to one of the tamper-
ing with a witness counts. See footnote 1 of this opinion.
We disagree.
During its case-in-chief, the state presented testimony
from Petsa about how she was asked to corroborate
the defendant’s version of events leading up to his
arrest. Petsa testified that, initially, Knowles called her
on the telephone and asked her to corroborate ‘‘a story
that would help keep [the defendant] from getting in
trouble.’’11 Petsa testified that she then met with
Knowles and the defendant at Knowles’ residence, and
that ‘‘[t]he conversation’’ centered around a false narra-
tive of the events leading up to the defendant’s arrest.
Petsa testified that, after Knowles and the defendant
discussed the plan with her, she did not discuss the
plan with either of them until after she spoke with
an investigator working on behalf of the defendant’s
attorney. At that time, she decided that she did not
want to get into trouble for making a false statement
to law enforcement. Petsa testified that she spoke with
an investigator working on behalf of defense counsel,
but she was told that the defense did not intend to rely
on her because her answers ‘‘didn’t match what the
other people were saying.’’ Thereafter, she spoke with
her friend, Knowles, to let her know that she was experi-
encing panic attacks and did not want to be involved
with the defendant’s plan.
Petsa testified: ‘‘Once [the defendant] found out that
I was having panic attacks and stuff like that about it,
he tried reaching out to me on Facebook and messaging
me on Facebook. You know, kind of some of the first
ones were, like, you know, you can handle this; you
know, just keep it calm and everything else like that,
and then when he found out I wasn’t going to back up
his story, I started getting messages and, like, pages
upon pages of stuff from him saying that he was going
to call the state police on me and tell them that I’m
driving [without a license or registration] with my kids
in the car . . . and if I don’t testify on his behalf, then
he’s going to call the state police and let them know
where I drive and all that kind of stuff to get me caught.’’
Petsa testified that, through her relationship with
Knowles, the defendant knew that she was having an
affair with a married man and that, in an eight page
message on Facebook, he also threatened both her and
the man by ‘‘saying that he was going to rat him out to
his wife’’ if Petsa did not cooperate. Petsa testified
that ‘‘[a]ny messages on Facebook from [the defendant]
were definitely after I talked to the investigator.’’
The prosecutor showed Petsa a document marked
for identification purposes. Petsa stated that it was an
excerpt from one of the Facebook messages that she
had received from the defendant and that she had pro-
vided it to the prosecutor. She stated that she knew it
was from the defendant ‘‘[b]ecause it comes in from my
Facebook and it says who it comes from on Facebook.’’
Petsa stated that the defendant’s name appeared at the
top of the message because ‘‘[i]t prints out automatically
from the Internet.’’
The state offered the Facebook message as a full
exhibit on the ground that it was a statement made by
a party opponent, the defendant. The court excused the
jury after defense counsel objected to the admission of
the exhibit. Defense counsel argued that the state had
not authenticated the exhibit because the state failed
to prove that it came from the defendant’s Facebook
account or that it was his message.
The prosecutor conducted a voir dire examination
of Petsa in an attempt to provide a more complete
foundation for the proffered exhibit. Petsa testified that
she had a Facebook account for a couple of years and
that the defendant was not blocked from her Facebook
page. She testified that the exhibit at issue was part of
a series of messages that the defendant sent to her on
Facebook. In this series of messages, the defendant
threatened to expose Petsa’s affair with a married man,
discussed a baseball team on which Petsa and Knowles
played, and discussed the role that Petsa played in the
demise of the defendant’s relationship with Knowles.
Petsa testified that all of the messages she had received
from the defendant made sense to her in light of her
relationship with him and with Knowles. She testified
that she did not have any reason to believe that the
message at issue did not originate from the defendant.
She testified: ‘‘I knew it came from [the defendant].
. . . Just from meeting [the defendant] and knowing
how he talks and how he, like, lays himself out there,
that definitely was a message from [the defendant].’’
Defense counsel argued that the state failed to satisfy
its burden of authenticating the message because it
failed to prove that the defendant sent it. Defense coun-
sel suggested that anyone could have sent the message
by using the defendant’s Facebook account and that
Petsa, familiar with the defendant’s manner of speaking,
could have manufactured the message at issue. The
prosecutor argued that, in accordance with § 9-1 of the
Code of Evidence, the state had presented sufficient
evidence, in the form of Petsa’s testimony, for the finder
of fact to determine that the evidence was what it was
purported to be, namely, a message sent to Petsa from
the defendant. The prosecutor disagreed that any addi-
tional proof, such as testimony from a Facebook
employee, was required to demonstrate that the mes-
sage was authentic.
The court asked Petsa for additional information with
respect to how the message had been printed because,
in the court’s opinion, the message appeared to be type-
written on plain white paper and was not similar in
appearance to other ‘‘print-offs from Facebook’’ with
which the court apparently was familiar. In response,
Petsa testified that, earlier that month, she was in the
prosecutor’s office and had printed the message by
copying it from her Facebook account and pasting it
into a computer program known as ‘‘Word’’ so that she
could print it. She stated that ‘‘we had an issue with
[it] at the office at that time . . . trying to print it from
Facebook directly whereas we copied and pasted from
[the defendant’s] message to put it into Word so that I
could print it for [the prosecutor], but if you were to
. . . allow me to log onto my Facebook [account], you
could see all that directly under his messages.’’
The court, stating that it had reviewed the relevant
evidentiary rule, ruled as follows: ‘‘Based on the content
of the writing and the testimony of this witness with
the surrounding circumstances, it meets the threshold
to be sufficiently put before the jury and to leave to
them with cross-examination and rebuttal testimony
how much weight they give to it based on the credibility
of this witness, other witnesses in support of this . . .
plan. So the objection is overruled . . . .’’
Thereafter, in the presence of the jury, the prosecutor
asked Petsa about the exhibit, as follows:
‘‘Q. Ms. Petsa, is state’s [exhibit] 20, which is now a
full exhibit, part of a series of Facebook messages that
you printed out for me?
‘‘A. Yes.
‘‘Q. Was I in your presence when you printed those
out?
‘‘A. Yes.
‘‘Q. And did you actually do that on the computer in
my office?
‘‘A. Yes.
‘‘Q. Was that shortly after I learned that those mes-
sages existed?
‘‘A. Yes.
‘‘Q. Did you alter any text in those messages in
any way?
‘‘A. None at all.’’
The prosecutor published the exhibit for the jury by
reading it aloud. The exhibit, which bears a date of May
29, a time of 11:55 p.m., and the defendant’s name,
states in relevant part: ‘‘Danielle, please give me a call
before you call my [l]awyer’s [i]nvestigator back tomor-
row. Lena told me that, you had a mini panic attack &
didn’t answer any of his questions today, now you were
worried he is suspect. I have dealt with this investigator
before & there is absolutely nothing for you to be
stressed or have panic about. Your statement in this is
so small & I want you to call him & insist that, he either
take your statement over the phone, or he drive to
you because, you just can’t get down there. You are a
[w]itness Dani, not the 1 on [t]rial. I’ll be the 1 on [t]rial,
if it goes that far. He works for my [l]awyer & his job
is 2 things. His job is to gather evidence for my [l]awyer
so, we don’t have to go to [t]rial because, my [w]itnesses
are so solid that, [t]rial could possibly be avoided. He
is also prepping you for [t]rial, in case I do have to go
to [t]rial. I know you got nervous but, don’t be. Call
Lena in the morning & do what her & Kelly did. Write
down everything she tells you to write down so, you
can have the answers in front of you on paper so, you
won’t get nervous. I want to give you a positive pep
talk & ask you the questions I think he might ask, to
prep you for your call with him, after you’ve talked to
Lena & before you call the [i]nvestigator. So, call me
on my cell in the morning. You didn’t blow it. We just
have to get you ready so, you are confident, like you
always are & like Lena & Kelly were, when they talked
to him. Call Lena, take notes, then call me before you
call him. We got this & thank you for having my back
with this. You, Kelly & Lena are really saving my hide
with this & I appreciate it more than I could ever tell
you. The 3 of you will have my loyalty for life for this.
Talk to you in the morning. . . . Goodnight’’
As he did at trial, the defendant argues on appeal that
the state failed to authenticate the written Facebook
message presented to the jury12 by presenting sufficient
evidence to demonstrate that he authored the message
reflected therein.13 In this vein, the defendant argues
that (1) it was not sufficient for the state to demonstrate
that the message originated from the defendant’s Face-
book account; (2) Petsa’s testimony concerning other
messages that Petsa believed had been sent to her by
the defendant was insufficient to demonstrate that he
authored the message at issue; (3) the message at issue
did not contain information to suggest that it could
only have originated with him; and (4) the evidence
suggested that it was possible that Knowles could have
accessed the defendant’s Facebook account and sent
the message.
‘‘We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law . . .
for an abuse of discretion.’’ State v. Saucier, 283 Conn.
207, 218, 926 A.2d 633 (2007). ‘‘It is axiomatic that [t]he
trial court’s ruling on the admissibility of evidence is
entitled to great deference. . . . In this regard, the trial
court is vested with wide discretion in determining the
admissibility of evidence . . . . Accordingly, [t]he trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion. . . . Furthermore, [i]n determining
whether there has been an abuse of discretion, every
reasonable presumption should be made in favor of the
correctness of the trial court’s ruling, and we will upset
that ruling only for a manifest abuse of discretion. . . .
Even when a trial court’s evidentiary ruling is deemed
to be improper, we must determine whether that ruling
was so harmful as to require a new trial. . . . In other
words, an evidentiary ruling will result in a new trial
only if the ruling was both wrong and harmful.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Rios, 171 Conn. App. 1, 29–30, 156 A.3d 18, cert.
denied, 325 Conn. 914, 159 A.3d 232 (2017).
‘‘Preliminary questions concerning . . . the admissi-
bility of evidence shall be determined by the court.’’
Conn. Code Evid. § 1-3 (a). ‘‘The requirement of authen-
tication as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that
the offered evidence is what its proponent claims it to
be.’’ Conn. Code Evid. § 9-1 (a). The official commentary
to § 9-1 (a) of the Code of Evidence provides in relevant
part: ‘‘The requirement of authentication applies to all
types of evidence, including writings, sound recordings,
electronically stored information, real evidence such
as a weapon used in the commission of a crime, demon-
strative evidence such as a photograph depicting an
accident scene, and the like. . . . The category of evi-
dence known as electronically stored information can
take various forms. It includes, by way of example only,
e-mails, Internet website postings, text messages and
‘chat room’ content, computer stored records and data,
and computer generated or enhanced animations and
simulations. As with any other form of evidence, a party
may use any appropriate method, or combination of
methods . . . or any other proof to demonstrate that
the proffer is what the proponent claims it to be, to
authenticate any particular item of electronically stored
information.’’ (Citations omitted.)
‘‘It is well established that [a]uthentication is . . .
a necessary preliminary to the introduction of most
writings in evidence . . . . In general, a writing may
be authenticated by a number of methods, including
direct testimony or circumstantial evidence. . . .
‘‘Both courts and commentators have noted that the
showing of authenticity is not on a par with the more
technical evidentiary rules that govern admissibility,
such as hearsay exceptions, competency and privilege.
. . . Rather, there need only be a prima facie showing
of authenticity to the court. . . . Once a prima facie
showing of authorship is made to the court, the evi-
dence, as long as it is otherwise admissible, goes to the
jury, which will ultimately determine its authenticity.’’
(Internal quotation marks omitted.) State v. Carpenter,
275 Conn. 785, 856, 882 A.2d 604 (2005), cert. denied,
547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006).
‘‘[T]he bar for authentication of evidence is not partic-
ularly high. . . . [T]he proponent need not rule out all
possibilities inconsistent with authenticity, or . . .
prove beyond any doubt that the evidence is what it
purports to be . . . . In addition, [a]n electronic docu-
ment may . . . be authenticated by traditional means
such as direct testimony of the purported author or
circumstantial evidence of distinctive characteristics
in the document that identify the author.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) Gagliardi v. Commissioner of Children &
Families, 155 Conn. App. 610, 619, 110 A.3d 512, cert.
denied, 316 Conn. 917, 113 A.3d 70 (2015).
Among the examples of methods of authenticating
evidence set forth in the official commentary to § 9-1
(a) of the Code of Evidence is that ‘‘[a] witness with
personal knowledge may testify that the offered evi-
dence is what its proponent claims it to be,’’ and ‘‘[t]he
distinctive characteristics of an object, writing or other
communication, when considered in conjunction with
the surrounding circumstances, may provide sufficient
circumstantial evidence of authenticity.’’ Conn. Code
Evid. § 9-1 (a), commentary. ‘‘An unsigned document
may be authenticated by any number of circumstances,
including its own distinctive characteristics such as its
contents and mode of expression, as well as the circum-
stances and context in which it was found.’’ C. Tait & E.
Prescott, Connecticut Evidence § 9.2.3 (5th Ed. 2014).
This court has observed: ‘‘The need for authentication
arises [in the context of electronic messages from social
networking websites] because an electronic communi-
cation, such as a Facebook message, an e-mail or a cell
phone text message, could be generated by someone
other than the named sender. This is true even with
respect to accounts requiring a unique user name and
password, given that account holders frequently remain
logged in to their accounts while leaving their comput-
ers and cell phones unattended. Additionally, pass-
words and website security are subject to compromise
by hackers. Consequently, proving only that a message
came from a particular account, without further authen-
ticating evidence, has been held to be inadequate proof
of authorship. . . .
‘‘[T]he emergence of social media such as e-mail, text
messaging and networking sites like Facebook may not
require the creation of new rules of authentication with
respect to authorship. An electronic document may con-
tinue to be authenticated by traditional means such as
the direct testimony of the purported author or circum-
stantial evidence of distinctive characteristics in the
document that identify the author. . . .
‘‘Nevertheless, we recognize that the circumstantial
evidence that tends to authenticate a communication
is somewhat unique to each medium. . . . [I]n the case
of electronic messaging . . . a proponent of a docu-
ment might search the computer of the purported
author for Internet history and stored documents or
might seek authenticating information from the com-
mercial host of the e-mail, cell phone messaging or
social networking account.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) State
v. Eleck, 130 Conn. App. 632, 638–41, 23 A.3d 818 (2011),
aff’d, 314 Conn. 123, 100 A.3d 817 (2014).14
In the present case, the state satisfied its burden of
authenticating the exhibit at issue because it presented
sufficient evidence to support a finding that the evi-
dence was what the state claimed it to be, namely, a
Facebook message sent to Petsa by the defendant. Petsa
testified about the circumstances in which she received
the message at issue. She and the defendant were Face-
book account holders. She received the message, bear-
ing the defendant’s name, only after she had agreed
to be a part of the defendant’s plan to provide false
statements to law enforcement and after she had met
with an inspector working for defense counsel. This
meeting was unfavorable for the defendant because,
during the meeting, Petsa did not sufficiently corrobo-
rate the defendant’s false version of events. Petsa testi-
fied that the message at issue was part of a larger series
of messages that culminated in the defendant threaten-
ing her in various ways after she informed Knowles
that she would not participate in the defendant’s plan.
The fact that the message at issue was part of a larger,
related series of messages was part of how the state
properly attempted to demonstrate through circum-
stantial evidence that the message at issue was sent by
the defendant. Therefore, it was not improper, as the
defendant argues, for the state to have relied on the
other Facebook messages that he sent to Petsa as evi-
dence of the circumstances under which Petsa had
received the written message that was memorialized in
the exhibit at issue. Petsa testified that the content of
these messages made sense to her and revealed things
that she would expect the defendant to know. More-
over, Petsa testified that the message at issue, in terms
of the unique speaking style that it reflected, as well
as its content, led her to believe definitively that it had
been sent to her by the defendant.
The defendant’s arguments before the trial court and
before this court seemingly reflect his belief that the
state bore the insurmountable burden of ruling out any
possibility that the message was not sent by the defen-
dant. The state’s burden as the proponent of the evi-
dence, however, was to present ‘‘evidence sufficient to
support a finding that the offered evidence was what
its proponent claims it to be.’’ Conn. Code Evid. § 9-
1 (a). Here, in terms of evidence of Petsa’s personal
knowledge of the defendant and the subject matter of
the message, as well as the distinctive characteristics
of the communication in light of the surrounding cir-
cumstances in which it was made, the state presented
sufficient circumstantial evidence of authenticity.15 It
suffices to observe that the court’s ruling that the evi-
dence was admissible did not affect the weight that the
jury should afford the evidence. The defendant argues
that the content of the message did not reflect facts
that could only have been known by the defendant and
that there was evidence to suggest that it would have
been possible for Knowles to have sent the message.
These arguments, which were appropriate fodder for
the jury in its scrutiny of the state’s case, are misdirected
at the court’s decision to admit the evidence. The defen-
dant had a full opportunity to expose what he believed
to be weaknesses in the evidence and to argue to the
jury that the evidence lacked probative value.16
Finally, we conclude that, even if the court admitted
the evidence in error, the ruling was harmless. ‘‘When
an improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [A] nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict. . . . [O]ur determination [of whether] the
defendant was harmed by the trial court’s . . . [eviden-
tiary ruling] is guided by the various factors that we have
articulated as relevant [to] the inquiry of evidentiary
harmlessness . . . such as the importance of the . . .
testimony in the [state’s] case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony . . . on
material points, the extent of cross-examination other-
wise permitted, and, of course, the overall strength of
the [state’s] case. . . . Most importantly, we must
examine the impact of the evidence on the trier of fact
and the result of the trial.’’ (Internal quotation marks
omitted.) State v. Rodriguez, 311 Conn. 80, 89, 83 A.3d
595 (2014).
The defendant argues that the evidence cannot be
considered to be harmless because ‘‘it was the only
evidence to support the charge of tampering with a
witness with respect to Danielle Petsa. Petsa testified
that the Facebook message was the only direct commu-
nication she had with the defendant about what to say.
. . . In the absence of the message, there was insuffi-
cient evidence to show that the defendant induced or
attempted to induce Petsa to provide false information.’’
(Citations omitted; footnote omitted.)
The record contradicts the defendant’s assessment
of the evidence. Prior to the admission of the written
Facebook message, the state asked Petsa about her
communications with the defendant generally. As
detailed previously in this opinion, Petsa testified that,
initially, Knowles told her about the defendant’s plan.
Petsa testified that, soon after the defendant’s arrest,
she met with the defendant and Knowles at Knowles’
residence and that the defendant and Knowles dis-
cussed the defendant’s plan for her to provide false
information. Petsa testified that, after she spoke with
the investigator, the defendant messaged her on Face-
book to reassure her that she could ‘‘handle this’’ and
to ‘‘keep it calm . . . .’’ Petsa testified that, after she
made it known to Knowles that she would not ‘‘back
up’’ the defendant’s false story, the defendant sent her
a series of messages on Facebook in which he threat-
ened her in various ways. Thus, apart from the written
Facebook message that was admitted as an exhibit,
there was evidence in the form of Petsa’s testimony
that described in general terms the defendant’s initial
attempt on Facebook to encourage Petsa to corroborate
his version of events and, later, his unmistakable
attempt on Facebook to threaten her to do so. Petsa’s
oral description of these Facebook messages from the
defendant, viewed in light of her entire testimony, sup-
ported a finding that the defendant attempted to induce
Petsa to testify falsely. At trial, the defendant objected
to the admission of the written Facebook message but
did not object to Petsa’s description of the messages
she had received from him on Facebook. In light of
Petsa’s testimony, the admission of which is not chal-
lenged in this appeal, we conclude that the written
Facebook message was merely cumulative of other
efforts made by the defendant to induce Petsa to testify
falsely. Thus, any error with respect to the admission
of the evidence was harmless.
The judgments are affirmed.
In this opinion the other judges concurred.
1
In docket numbers CR-14-0104814-S and MV-14-0372091-S, the state
charged the defendant with operating a motor vehicle while under the
influence of intoxicating liquor or any drug in violation of General Statutes
§ 14-227a (a) (1), operating a motor vehicle while having an elevated blood
alcohol content in violation of § 14-227a (a) (2), possession of a small amount
of a cannabis-type substance in violation of General Statutes § 21a-279a (a),
improperly parking a motor vehicle in violation of General Statutes § 14-
251, operating a motor vehicle without carrying an operator’s license in
violation of General Statutes § 14-213, and making a false statement in the
second degree in violation of General Statutes § 53a-157b (a). Additionally,
under docket numbers CR-14-0104814-S and MV-14-0372091-S, the state
charged the defendant in a part B information as being a third time offender
in violation of § 14-227a (g) (3). Under docket number CR-15-016544-S, the
state charged the defendant with two counts of tampering with a witness
in violation of General Statutes § 53a-151 (a).
The defendant elected a jury trial with respect to the criminal offenses
charged by the state, namely, operating a motor vehicle while under the
influence of intoxicating liquor or any drug, operating a motor vehicle while
having an elevated blood alcohol content, making a false statement, and
tampering with a witness. The defendant elected a court trial with respect
to the infractions charged by the state, namely, improperly parking a motor
vehicle and operating a motor vehicle without carrying an operator’s license,
and the charge of violation of possession of a small amount of a cannabis-
type substance. Over the defendant’s objection, the court granted the state’s
motion to consolidate all of the pending charges for trial.
The jury found the defendant guilty of operating a motor vehicle while
under the influence of intoxicating liquor or any drug, operating a motor
vehicle while having an elevated blood alcohol content, making a false
statement in the second degree, and two counts of tampering with a witness.
The court found the defendant guilty of possession of a small amount of a
cannabis-type substance, improperly parking a motor vehicle, and operating
a motor vehicle without carrying an operator’s license. Thereafter, the defen-
dant entered a plea of nolo contendere to the charge of being a third time
offender as alleged in the part B information. Following a canvass of the
defendant, the court accepted the plea and made a finding of guilt with
respect to the part B information. Prior to imposing sentence, the court,
pursuant to State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), vacated
the verdict of guilty of operating a motor vehicle while having an elevated
blood content. Thereafter, with respect to the remaining charges, the court
imposed a total effective sentence of fifteen years of incarceration, execution
suspended after seven years, followed by five years of probation.
Although our rules of practice permitted the defendant to bring a joint
appeal; Practice Book § 61-7 (a) (1); the defendant, instead, filed three
separate appeals: In AC 38103, he appealed from the judgment of conviction
rendered in docket number CR-14-0104814-S; in AC 38104, he appealed from
the judgment of conviction rendered in docket number MV-14-0372091-S;
and in AC 38105, he appealed from the judgment of conviction rendered in
docket number CR-15-016544-S. Later, this court, sua sponte, ordered that
the three appeals be consolidated.
Despite the fact that, on his appeal forms, he has indicated that he is
appealing from all of the crimes and infractions of which he was convicted,
he has brought claims on appeal that pertain to only two criminal offenses.
His first claim pertains to his conviction for operating a motor vehicle while
under the influence of intoxicating liquor or any drug in violation of § 14-
227a (a) (1). His second claim pertains to only one of his two convictions
for tampering with a witness in violation of § 53a-151 (a). One of the tamper-
ing counts was based on his conduct toward Lena Knowles and the other
of the tampering counts was based on his conduct toward Danielle Petsa.
His second claim pertains to the count based on his conduct toward Petsa.
Because he failed to brief any claims with respect to the remaining convic-
tions, he has abandoned any challenge to those convictions. See Deutsche
Bank National Trust Co. v. Bertrand, 140 Conn. App. 646, 648 n.2, 59 A.3d
864, cert. dismissed, 309 Conn. 905, 68 A.3d 661 (2013).
2
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
3
Grimes advised the defendant, as follows: ‘‘You are requested to submit
to a blood, breath or urine test chosen by the police officer. You may refuse
a blood test, in which case another test will be selected. If you elect to
submit to testing, you will be requested to submit two samples. If you refuse
to submit, the test will not be given. Your refusal will result in the revocation
of your operator’s license for [twenty-four] hours and the suspension of
your operator’s license for at least six months. If you submit to the test and
the results indicate that you have an elevated blood content, your operator’s
license will be revoked for [twenty-four] hours and will be suspended for
at least [ninety] days. If you hold a commercial driver’s license, a CDL, your
CDL will be disqualified for at least one year. Furthermore, if you are
operating a commercial motor vehicle and do not hold a CDL, your privilege
to obtain a CDL as well as your privilege to operate a commercial motor
vehicle will be disqualified for at least one year. If you hold an operator’s
license from a state other than Connecticut, your driving privilege in Con-
necticut is subject to the same revocation and suspension penalties. The
results of the test or the fact of a refusal may be admissible in evidence
against you in a criminal prosecution for driving under the influence of
alcohol and/or drugs or other offense. The evidence of a refusal may be
used against you in any criminal prosecution.’’
4
There was evidence at trial that these results reflect that, at the time
that the defendant’s blood was drawn, he had the equivalent of five alcoholic
drinks in his body and that a person typically ‘‘lose[s] one drink per hour
with the range of about a half a drink to a drink-and-a-half per hour.’’
5
Ultimately, neither Knowles, Aston, nor Petsa provided false information
to law enforcement in accordance with the defendant’s plan. After her
relationship with the defendant ended, Knowles told an investigator working
with defense counsel that the information she previously had provided to
him was untrue. She provided a sworn written statement to an inspector
working on behalf of the prosecutor in which she detailed the defendant’s
plan for her to provide a false statement on his behalf. Similarly, Petsa
provided an inspector working on behalf of the prosecutor with a sworn
statement in which she described the defendant’s plan for her to provide a
false statement on his behalf. Similarly, prior to trial, Aston told defense
counsel that she did not want to lie under oath.
6
At the close of the state’s case-in-chief, the defendant moved for a
judgment of acquittal with respect to the operating under the influence
charge. In relevant part, the defendant argued that there was no evidence
that he had operated the motor vehicle. The court, referring to Grimes’
testimony that he had observed the defendant’s automobile ‘‘go into park
and the brake lights go off,’’ determined that there was sufficient evidence
of operation. The court denied the motion.
7
Aston, called by the state as a rebuttal witness, testified that she was
not in the company of the defendant at any time during the hours leading
up to his arrest.
8
In addition to his testimony, the defendant presented evidence that the
automobile had experienced mechanical problems that led to repairs by a
mechanic on March 5, 2014. Also, he presented evidence that, following
his arrest, he stated to Knowles and his former wife, Lisa Smith, that the
automobile had experienced mechanical problems. Lisa Smith testified that
she purchased the defendant’s automobile in March, 2014, and that the
automobile’s motor was repaired on March 5, 2014, because a fan would
run when the vehicle was not running. Lisa Smith also testified that the
defendant called her in the middle of the night from the police station to
tell her that he had experienced a problem with the automobile and that
he had been arrested. Smith testified that, after the events at issue, the
automobile was repaired for a second time and a new battery was installed
in the automobile. It suffices to observe that the issue of whether the
defendant’s automobile was operable was a disputed issue of fact, the jury
was not obligated to accept as true any of the evidence presented by the
defense, and that there was ample evidence to support a finding that the
defendant had operated the automobile just prior to his encounter with
Grimes.
9
Contrary to the version of events about which the defendant testified
at trial, Aston testified that the defendant merely told her that, after he had
finished work, he consumed wine at his place of employment ‘‘and then,
against his better judgment, he ended up deciding to go over to visit
[Knowles] and got pulled over that night.’’ The defendant told her that ‘‘he
was pulled over when the police pulled up behind him.’’
10
Relying on his own testimony that the automobile was inoperable, the
defendant discounts the probative value of Grimes’ observation of the vehi-
cle’s lights. We reiterate that the jury, however, could have determined that
the defendant’s self-serving testimony that the automobile was inoperable
was not truthful.
11
Knowles testified that she contacted her friend, Petsa, because the
defendant asked her to do so. Also, Knowles testified that Petsa met with
her at Knowles’ residence very soon after the defendant’s arrest.
12
We observe that the defendant does not raise any claim of error with
respect to Petsa’s testimony that he sent her other messages via Facebook
in which, in furtherance of his plan, he attempted to compel her to participate
in his plan to provide false statements. The state did not attempt to present
documentary evidence with respect to these other messages, but their
incriminatory content was revealed to the jury by means of Petsa’s testimony.
13
Within his analysis of the authentication issue, the defendant refers to
Petsa’s testimony, which, as set forth previously, reflects that she copied
and pasted the message at issue, and that it was not downloaded and printed
directly from her Facebook account. According to the defendant, ‘‘[t]his
raises valid concerns as to whether the message was a true and accurate
copy and whether it actually came from [his] account.’’ At the time of oral
argument before this court, however, the defendant clarified that he was
not raising a separate claim in this regard. Such an evidentiary claim is not
preserved, and we would decline to consider its merits. The trial transcript
reveals that the gravamen of the defendant’s objection was that the state
failed to demonstrate that he authored the message. Although the court
asked Petsa to explain in further detail how the message was printed and
why, in the court’s opinion, it did not appear to have been printed directly
from her Facebook account, the defendant’s attorney did not raise any
objection in this regard. ‘‘[T]he standard for the preservation of a claim
alleging an improper evidentiary ruling at trial is well settled. This court is
not bound to consider claims of law not made at the trial. . . . In order to
preserve an evidentiary ruling for review, trial counsel must object properly.
. . . In objecting to evidence, counsel must properly articulate the basis of
the objection so as to apprise the trial court of the precise nature of the
objection and its real purpose, in order to form an adequate basis for a
reviewable ruling. . . . Once counsel states the authority and ground of
[the] objection, any appeal will be limited to the ground asserted.’’ (Internal
quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d
869 (2013).
14
In Eleck, this court rejected a defendant’s claim that a trial court errone-
ously excluded from evidence a Facebook message; the trial court’s ruling
was based on a lack of authentication and, specifically, the defendant’s
failure to prove authorship of the message. State v. Eleck, supra, 130 Conn.
App. 641–44. In affirming this court’s judgment, our Supreme Court assumed,
without deciding, that the trial court’s ruling was improper and concluded
that the evidentiary ruling under review was harmless under the unique
facts of the case. State v. Eleck, 314 Conn. 123, 129–31, 100 A.3d 817 (2014).
15
The message contains what appears to be the defendant’s cell phone
number. Although the parties did not refer to this number, or its significance,
we observe that during argument on the defendant’s objection, the presence
of the number on the Facebook message supported a finding that the mes-
sage was authentic.
16
The defendant argues that the evidence supported a finding that Knowles
could have used his Facebook account to send the message at issue to
Petsa. During his cross-examination of Petsa, defense counsel asked her if
Knowles had access to the defendant’s Facebook account. Petsa testified
that she did not know the answer. Moreover, during closing argument, the
defendant’s attorney argued in relevant part: ‘‘The Facebook message, [the
defendant] said he didn’t send that. People can open Facebook accounts
in anybody’s name. There are a lot of people with axes to grind here, a lot
of people who want to set people up, who don’t like people anymore. There’s
a lot of bad stuff going on here. So, I would ask you to just ignore that,
discredit it. If you don’t and you decide that it’s from [the defendant] to
them, I would ask you to look at it critically. Is he telling [them] what to
say? No. He’s asking them to be clear, to write things down, to get it straight
because it’s important to him.
‘‘It’s easy to misread something. It’s easy to assume it’s from someone,
but those accounts are very easy to open. I could open a Brian Smith account
today with Facebook, and nobody questions it and I could start sending all
kinds of Brian Smith messages to anybody I care to send them to. There
should be more controls on that, but there are not.’’