State v. Papineau

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STATE OF CONNECTICUT v. MICHAEL J.
PAPINEAU
(AC 39474)
Keller, Bright and Norcott, Js.
Syllabus
Convicted of the crimes of assault in the first degree and conspiracy to
commit assault in the first degree in connection with the beating of
the victim, the defendant appealed to this court. The defendant, his
coconspirator, W, and the victim had been preparing to spend the night
in an abandoned mill when W repeatedly struck the victim with a baseball
bat. The defendant and W thereafter pushed the victim into a hole in
the floor, covered him with debris and then left the mill. The next day,
while traveling in a car together, W overheard the defendant tell the
defendant’s former wife, P, in a telephone conversation that the defen-
dant and W had assaulted the victim in the mill. The defendant also
asked P in a text message for the phone number of a friend in Ohio
because he wanted to find out if the friend would permit him to stay
with him. The defendant told P that he intended to leave Connecticut
for a five year period because he believed that five years was the length
of the statute of limitations for the crime of attempt to commit mur-
der. Held:
1. The defendant could not prevail on his claim that the trial court improperly
precluded W from testifying about the defendant’s telephone conversa-
tion with P:
a. The record was inadequate to review the defendant’s claim that W’s
testimony was offered to impeach P’s testimony and as circumstantial
evidence of the defendant’s state of mind in order to demonstrate that
he had not confessed to P that he was involved in the beating of the
victim; the defendant’s arguments were based on speculation concerning
how W may have testified, as the record did not contain the substance
of the excluded testimony, the defendant having failed to ask the trial
court to hear W’s responses to defense counsel’s questions outside the
presence of the jury.
b. The defendant’s unpreserved claims that W’s testimony was admissi-
ble under the residual exception to the rule against hearsay and that
the trial court’s ruling deprived the defendant of his right to present a
defense were not reviewable, defense counsel having failed to ask the
court to rule on whether his inquiries of W were proper under the
residual hearsay exception or to raise any argument concerning the
defendant’s right to present a defense; moreover, even if the trial court’s
evidentiary rulings were erroneous, the defendant could not have demon-
strated harm, as W had contradicted P’s testimony and testified that
the defendant, during the telephone conversation, had not discussed
traveling to Ohio, that nothing about the telephone conversation both-
ered or concerned W, and that the conversation concerned normal topics
involving the defendant’s children.
2. The defendant’s unpreserved claim that the trial court improperly pre-
cluded defense counsel from eliciting testimony from the defendant’s
mother, D, that the defendant planned to travel to Massachusetts prior
to the events at issue was not reviewable: although the court sustained
the prosecutor’s objection to certain testimony from D, who answered
defense counsel’s inquiry before the court ruled on the objection, and
the prosecutor did not move to strike D’s answer after the court’s ruling,
nor did the court sua sponte order that the testimony be stricken, D’s
answer was not part of the evidence, and the defendant did not make a
proffer or advance any theory of admissibility following the prosecutor’s
objection to the question; moreover, even if the claim was reviewable,
the defendant could not demonstrate that the court’s ruling deprived
him of a fair trial, as other testimony from D and W demonstrated that
prior to the assault, the defendant and W had told D that they were
going away for Christmas, and the defendant was permitted to present
evidence that he had preexisting plans to travel to Cape Cod.
3. The trial court did not abuse its discretion by admitting into evidence a
printout of certain text messages between the defendant and P; although
the defendant claimed that the messages were not properly authenti-
cated because the phone from which they were sent had not been in
the sole custody of the defendant at the time that the messages were
sent, the evidence was sufficient to authenticate the messages, as P
testified that she and the defendant had been in an ongoing relationship,
that the messages were part of an ongoing conversation between them,
that the messages prompted telephone conversations between them,
which the defendant did not dispute, and that she provided images of
the messages to the police, and even if the court’s ruling was improper,
it was harmless, the defendant having acknowledged that the text mes-
sages corroborated P’s testimony, which was offered without objection.
4. The evidence was sufficient to support the defendant’s conviction of
conspiracy to commit assault in the first degree; in light of the evidence
presented and the inferences drawn therefrom, the jury reasonably could
have found beyond a reasonable doubt that the defendant and W
intended to commit the crime of assault in the first degree and agreed
with one another to commit the conduct constituting the crime, and
that one or both of them engaged in overt acts in furtherance of the
conspiracy, as the jury reasonably could have inferred that the defendant
and W had a reason to be upset with the victim and planned to retaliate
against him in the mill, there was evidence that the defendant actively
participated in the crime by joining with W to push the victim into the
hole in the floor and cover him with debris, and the defendant did not
take any measures to stop the attack or to flee the scene after W violently
attacked the victim with the baseball bat, the evidence of the defendant’s
conduct before, during and after the events at issue reflected that he
and W conspired to cause serious physical injury to the victim by means
of a dangerous instrument, and the defendant’s conduct and statements
to P after the events at issue undermined his argument that he was a
bystander during those events and, instead, reflected his consciousness
of his guilt and bolstered a finding that he had been an active participant
with W in a preplanned retaliatory event.
Argued January 29—officially released June 19, 2018
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree, conspiracy to
commit assault in the first degree and hindering prose-
cution in the second degree, brought to the Superior
Court in the judicial district of Windham, geographical
area number eleven, and tried to the jury before Swords,
J.; thereafter, the court granted the defendant’s motion
for a judgment of acquittal as to the charge of hindering
prosecution in the second degree; verdict and judgment
of guilty of assault in the first degree and conspiracy
to commit assault in the first degree, from which the
defendant appealed to this court. Affirmed.
James B. Streeto, senior assistant public defender,
with whom was Edward D. Melillo, certified legal
intern, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Anne F. Maho-
ney, state’s attorney, and Mark A. Stabile, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Michael J. Papineau,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of assault in the first degree with a
dangerous instrument in violation of General Statutes
§ 53a-59 (a) (1), and conspiracy to commit assault in
the first degree in violation of General Statutes §§ 53a-
59 (a) (1) and 53a-48.1 The defendant claims (1) that
the trial court erroneously precluded his half brother
from testifying about a phone conversation that tran-
spired between the defendant and the defendant’s for-
mer wife; (2) that the court erroneously precluded him
from presenting testimony from the defendant’s mother
that, prior to the events at issue, he planned to travel
to Massachusetts; (3) the court erroneously admitted
a printout of text messages that the state failed to
authenticate; and (4) the evidence was insufficient to
support his conviction of conspiracy to commit assault
in the first degree. We affirm the judgment of the
trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
During the afternoon of December 22, 2014, the defen-
dant and his half brother, Joshua Whittington,2 were
walking along railroad tracks in Danielson, at which
time they met up with the victim, Jason Tworzydlo. For
a period of time prior to the events at issue, the victim
had lived with the defendant. As the three men walked
together, they discussed where they would sleep that
night. The defendant and Whittington indicated to the
victim that they needed a place to spend the night, and
the victim suggested that they stay in an abandoned
textile mill that was located on Maple Street in Dan-
ielson where he recently had been staying. The defen-
dant and Whittington agreed to stay there that night.
At approximately 3 p.m., the victim left the company
of the defendant and Whittington so that he could attend
a counseling session. Meanwhile, the defendant and
Whittington explored the mill without him.
At approximately 6 p.m., the three men reunited and,
by maneuvering around a fence that surrounded the
mill and crawling through a window, they gained access
to the inside of the mill. The men carried some of their
possessions with them. Whittington was carrying a
metal baseball bat. It was very dark inside of the mill;
there were no working lights, and only a few light
sources illuminated the mill’s interior through openings
in the walls. The victim used a flashlight. The victim
showed the defendant and Whittington a dry location
in the mill where he had slept previously. The defendant
and Whittington, however, expressed their opinion that
the location did not provide ideal sleeping conditions
for all of them, so they led the victim to another location
inside of the mill, in an area of the mill that used to
house a gym. The defendant and Whittington said that
this location, which they had discovered earlier that
day, was more suitable to their needs, and the men
agreed to spend the night there.
Shortly thereafter, the victim turned away from the
defendant and Whittington, at which time Whittington
struck him in the head with his baseball bat.3 He did
so with such force that the victim felt the bat ‘‘bounce
off [his] skull’’ and ‘‘heard the ringing of metal . . . .’’
Whittington struck the victim several additional times.
When the victim asked what was happening, he was
told that he had stolen money ‘‘from them’’ on a prior
occasion. During some or all of the attack, the defendant
used the light on a cell phone to illuminate the victim.
The victim attempted to flee from the defendant and
Whittington, but they pushed him into another part of
the mill. The victim was stabbed with a sharp object.
Ultimately, the defendant and Whittington pushed the
victim into a large hole in the floor. As they stood over
the victim, he played dead for a brief time. He saw
the light of a flashlight from above and overheard the
defendant and Whittington as they discussed the
amount of blood he had lost, questioned whether he
was still alive and breathing, and expressed their belief
that he would be dead by the next morning. Whittington
stated that he wanted to throw a brick at the victim’s
head to ensure that he was dead, but he did not do so.
The defendant and Whittington covered the victim’s
body with debris, including tires and tables, before they
abandoned the victim in the mill.
When he no longer heard voices or footsteps, the
victim, fearing for his survival, crawled out of the hole
into which he had been pushed, exited the mill, and
made his way to a nearby residence. Barely able to
stand, the victim knocked on the front door to summon
help. The occupant of the residence, Michael Pepe,
found the victim in a dire condition; the victim’s body
and clothing were soaked in blood. Pepe rendered assis-
tance by wrapping the victim in bedsheets and called
911.
Police and emergency medical personnel responded
to the scene. The victim, who was in shock, sustained
a variety of significant physical injuries, some of which
were life-threatening. The victim’s injuries included, but
were not limited to, stab wounds, deformities to his
face and jaw, a hematoma under his skull, a hematoma
on his neck, a collapsed internal jugular vein, multiple
bone fractures, and a severe neck laceration. Initially,
the defendant was transported to Day Kimball Hospital
in Putnam. In light of the severity of the victim’s numer-
ous injuries and, in particular, a life-threatening neck
wound, Joel Stephen Bogner, an emergency department
physician, determined that he should be transported to
the trauma center at UMass Memorial Medical Center in
Worcester, Massachusetts, for further treatment. With
further treatment, the victim survived the ordeal.
Immediately following the incident, the victim told
the police that he was attacked by unknown assailants
outside of the mill. The following day, on December
23, 2014, the victim identified the defendant and Whittin-
gton as his assailants, and indicated to the police that
he was afraid that they would retaliate against him.
During their investigation, the police spoke with the
defendant, who acknowledged having spent time with
the victim on the day of the assault but denied that he or
Whittington had played any role in the victim’s assault.
During the police investigation, Whittington also denied
any involvement in the victim’s assault. When asked by
the police where he kept his clothing, the defendant
responded that most of his and Whittington’s clothes
had been stolen. After meeting with the police on
December 23, 2014, the defendant had a telephone con-
versation with his former wife, Chelsea Papineau. Dur-
ing the conversation, he stated that he and Whittington
had assaulted the victim in the mill, but that he and
Whittington believed that they had ‘‘cleared their
names’’ with the police. This telephone conversation
took place while the defendant was traveling with Whit-
tington. On December 25, 2014, the defendant sent Chel-
sea Papineau a text message in which he asked for the
telephone number of a friend of his, Corby Julian, who
lived in Ohio. During a telephone conversation with
Chelsea Papineau later that day, the defendant indi-
cated that he intended to leave the state for a five year
period because, to his understanding, that was how
long it would take for the statute of limitations for the
crime of attempted murder to expire. He stated that he
wanted Julian’s telephone number because he wanted
to find out if Julian would permit him to stay with him.
After Chelsea Papineau complied with the defendant’s
request, he instructed her to delete her text messages.
Several days later, on January 2, 2015, the police
executed arrest warrants on the defendant and Whittin-
gton in Falmouth, Massachusetts. At the time of his
arrest, the defendant was wearing a pair of jeans that
was contaminated with the victim’s blood. Additional
facts will be set forth as necessary.
I
First, the defendant claims that the court erroneously
precluded Whittington’s testimony about a phone con-
versation that had transpired between the defendant
and Chelsea Papineau. We disagree.
The following additional facts provide context for
the defendant’s claim. During the state’s case-in-chief,
Chelsea Papineau testified that, on December 23, 2014,
she had planned for the defendant, who is her former
husband and the father of her two children, to visit
with his children at his mother’s house. At or about 3
p.m., the defendant sent Chelsea Papineau a text mes-
sage in which he stated that he was unable to visit with
his children. Chelsea Papineau testified that, at or about
5:30 p.m., she called the defendant to make other vis-
iting arrangements. The following examination by the
prosecutor followed:
‘‘Q. And what was his response?
‘‘A. He said that he wouldn’t be able to see them; he
didn’t know when he’d be able to see them again. He
and his brother were on their way to his brother’s
father’s house in Glastonbury, Connecticut.
‘‘Q. What else did you talk about?
‘‘A. He asked me if the police had spoken to me yet,
and I told him no.
‘‘Q. What did he say to you then?
‘‘A. After I responded with no, he told me he needed
to tell me something. He didn’t know when he’d be able
to see us again.
‘‘Q. Exactly what did he say?
‘‘A. He told me that the previous night him and his
brother had met [the victim] . . . and that they went
to the mill and just lost it. He told me that they had
beat him over the head and that they had left him in
the mill.
‘‘Q. What was your response?
‘‘A. I really didn’t know how to respond at first. I
asked [about the identity of the victim]. And he told
me Jason Tworzydlo.
‘‘Q. Did you know [the victim]?
‘‘A. I did.
‘‘Q. How did you know him?
‘‘A. He lived with us for a short time.
‘‘Q. And did he indicate that he was part of this
assault?
‘‘A. Yes.
‘‘Q. How did he indicate that?
‘‘A. He just kept saying we.
‘‘Q. At any point did he say Josh and I?
‘‘A. Yes.
‘‘Q. Was there any discussion about the defendant
. . . having spoken to the police that day?
‘‘A. Yes. He said that he and, I believe, him and his
brother had spoken with the police and that they
believed that they had cleared their names.
‘‘Q. Did . . . he express any other concerns . . . ?
‘‘A. He said that they were leaving anyway.’’
Thereafter, Chelsea Papineau testified that, on the
following day, she received text messages from the
defendant in which he asked her for the telephone num-
ber of a friend, Julian, who lived in Ohio, because he
needed to talk with him. She testified that this led to
another telephone conversation with the defendant.
Chelsea Papineau testified that ‘‘[h]e told me that in
the past few months [Julian] had offered him a place
to stay if he ever needed a place to stay. And he wanted
to get a hold of [Julian] to see if that was still available
for him.’’ Chelsea Papineau testified that the defendant
expressed his belief that he would be charged with
attempted murder and that he could evade the charge if
he stayed away from Connecticut for five years. Chelsea
Papineau testified that after she provided the defendant
with Julian’s telephone number, he instructed her to
delete her text messages. Instead, she provided them
to the police.
During the defendant’s case-in-chief, Whittington tes-
tified in relevant part that on the afternoon of December
23, 2014, he and the defendant were traveling by car to
New London. Whittington testified that he overheard
a telephone conversation between the defendant and
Chelsea Papineau. The present claim is based on two
rulings made by the court during Whittington’s testi-
mony concerning that telephone conversation.
First, defense counsel asked Whittington, ‘‘do you
recall what they said—what he said?’’ The prosecutor
objected to the inquiry on the ground that it called for
hearsay. Defense counsel stated that the inquiry ‘‘goes
to impeach [Chelsea] Papineau’’ and that it ‘‘goes to
[the defendant’s] state of mind, as well.’’ The court
sustained the objection.
Second, defense counsel asked Whittington if the
defendant said anything to Chelsea Papineau that
‘‘implicated him . . . in attacking [the victim]?’’ The
prosecutor objected on the basis of the hearsay ground
previously set forth, and the court sustained the
objection.
The following examination of Whittington by defense
counsel then occurred:
‘‘Q. Okay. How were . . . around that time period
. . . [Chelsea] Papineau and [the defendant] getting
along?
‘‘A. They were not getting along at all. She was actu-
ally trying to get him to sign over his rights to his kids
to her.
‘‘Q. And were they communicating very well? . . .
‘‘A. No. They were fighting a lot. They had just gotten
divorced and . . . she gets mad a lot. They don’t get
along even when they were together very much.
‘‘Q. All right. She . . . didn’t like [the defendant] at
all, did she?
‘‘A. No.
‘‘Q. Was there ever any discussion on . . . the drive
down between you and anybody about you and [the
defendant] going to Ohio?
‘‘A. No, there was not.
‘‘Q. And . . . in the phone conversation that [the
defendant] had, did any of it bother you or concern you?
‘‘A. No, it did not.
‘‘Q. Did it seem just like a normal conversation about
what to do with children?
‘‘A. For the most part, yes.’’
Additionally, Whittington testified that, on December
23, 2014, he and the defendant were traveling to New
London to meet with Whittington’s father. He testified
that, in accordance with plans made prior to the events
at issue, he and the defendant traveled with and spent
Christmas with Whittington’s father in Cape Cod, Mas-
sachusetts.
The defendant claims that the court’s rulings in
response to the state’s objections were erroneous. Rely-
ing on the theories of admissibility that he raised before
the trial court, he argues that Whittington’s testimony
in response to defense counsel’s inquiry would not have
constituted hearsay because it was not offered for its
truth, but for the purpose of impeaching Chelsea Papi-
neau’s testimony concerning what the defendant had
stated to her. Also, the defendant argues that Whitting-
ton’s testimony would not have constituted hearsay
because it was offered not for its truth, but as ‘‘circum-
stantial evidence of [his] innocent state of mind by
demonstrating to the jury that he did not confess to his
involvement in a crime to Chelsea Papineau.’’
In addition to raising these preserved evidentiary
claims, the defendant argues that ‘‘[c]ertain other sub-
claims, specifically, the right to present a defense . . .
and the residual hearsay exception . . . were not refer-
enced [at the time of the court’s ruling] but are raised on
appeal. These theories are part of the same legal claim.’’
Arguing that Whittington’s testimony would have
been admissible under the residual exception to the
hearsay rule, the defendant states in relevant part: ‘‘In
this case, the use of the defendant’s statements was
reasonably necessary. Whittington was privy to the tele-
phone conversation and testifying against his own inter-
ests; his testimony was both critical to the defendant’s
defense, and the only available source of contradiction
of Chelsea Papineau’s critical testimony [concerning
her phone conversation with the defendant]. Further,
it was trustworthy. . . . The defendant’s statements
were [made] in the context of a phone call the day after
the assault. . . . Whittington was testifying against his
own interests . . . . He was available for cross-exami-
nation.’’ (Citations omitted.)
With respect to his right to present a defense argu-
ment, the defendant states in relevant part: ‘‘In this
case, the defendant’s theory of the case was that he
had gone to the abandoned mill with [the victim] and
Whittington, but he had not participated in the assault.
Chelsea Papineau’s testimony that the defendant con-
fessed to participating in the assault was the only clear,
certain and unequivocal evidence of his participation.
Whittington’s testimony refuting that testimony was
critical to the defense theory of the case. As such, the
defendant’s constitutional right to present a defense
was implicated by its exclusion.’’ The defendant seeks
review of the right to present a defense claim under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989).4
We will address in turn each of the four subclaims that
constitute the present claim. We begin by addressing
the defendant’s claim under the residual exception to
the hearsay rule. We decline to review this unpreserved
evidentiary claim. ‘‘An appellant who challenges on
appeal a trial court’s exclusion of evidence is limited
to the theory of admissibility that was raised before
and ruled upon by the trial court. A court cannot be said
to have refused improperly to admit evidence during a
trial if the specific grounds for admission on which the
proponent relies never were presented to the court
when the evidence was offered.’’ (Internal quotation
marks omitted.) State v. Polynice, 164 Conn. App. 390,
401, 133 A.3d 952, cert. denied, 321 Conn. 914, 136 A.3d
1274 (2016). We recognize that, during the heat of trial,
it is typical for counsel to set forth objections and
responses thereto that may not be as complete or well
researched as the arguments set forth in an appellate
brief, but, at the very least, the arguments raised before
the trial court must sufficiently alert the court to their
legal significance. As our Supreme Court has observed,
‘‘in response to a hearsay objection, although a party
need not explicitly identify the hearsay exception that
would apply, he or she must at least reference the sub-
stance of the applicable exception in order to preserve
the claim.’’ State v. Santana, 313 Conn. 461, 468, 97
A.3d 963 (2014).
Here, defense counsel responded to the state’s hear-
say objection on the grounds that defense counsel’s
inquiries would, permissibly, impeach Chelsea Papi-
neau or demonstrate the defendant’s state of mind.
Defense counsel did not ask the court to rule on whether
the inquiries were proper under the residual hearsay
exception or make any arguments concerning the trust-
worthiness or necessity of Whittington’s testimony con-
cerning the telephone conversation. Likewise, defense
counsel did not raise any arguments concerning the
defendant’s right to present a defense. Accordingly, the
claim based on the residual clause of the hearsay rule
is unpreserved. Defense counsel did not assert such
ground before the trial court.
The defendant’s other evidentiary claims based on
impeachment and state of mind are preserved, yet they
are not reviewable on the record before us. The defen-
dant goes to great length in his brief to this court to
emphasize the significance of how Whittington possibly
may have testified in response to defense counsel’s
inquiries. He argues that Chelsea Papineau’s testimony
concerning the defendant’s statements to her was highly
damaging to the defendant’s case. Additionally, he
argues: ‘‘Whittington’s . . . testimony concerning this
telephone call was of critical importance. He was pre-
sent in the car with the defendant while he spoke on
the phone with Chelsea Papineau; in fact, it was [Whit-
tington’s] cell phone. His testimony would have directly
refuted her testimony. It would have impeached Chel-
sea Papineau. It would have established [that] the tele-
phone call was innocuous, not inculpatory. Without
Whittington’s testimony, Chelsea Papineau’s character-
ization of the phone conversation was left to stand
uncontested, amounting, essentially, to a clear and posi-
tive corroboration of the state’s version of the assault,
in which the defendant played an active part . . . .’’
The defendant argues that it was critical for the defense
that the court permit Whittington to provide detailed
information about the conversation he overheard
because ‘‘Whittington might well have been able to
undercut the damning quality of [Chelsea Papineau’s]
testimony had he been allowed to testify. Had Whitting-
ton been allowed to testify . . . it would have
explained, refuted, or at a minimum, undercut Chelsea
Papineau’s testimony.’’
The defendant’s arguments are flawed because they
are based on speculation concerning how Whittington
may have replied to defense counsel’s inquiries. The
record does not contain the substance of the excluded
testimony, and, thus, leaves us without a basis on which
to evaluate its relevance. ‘‘In Connecticut, our appellate
courts do not presume error on the part of the trial
court. . . . Rather, the burden rests with the appellant
to demonstrate reversible error.’’ (Internal quotation
marks omitted.) Pettiford v. State, 179 Conn. App. 246,
260–61, 178 A.3d 1126 (2017), cert. denied, 328 Conn.
919, 180 A.3d 964 (2018). The defendant bears the bur-
den of providing this court with an adequate record to
review his claims. Practice Book § 61-10. The present
claim depends on a record that reflects the substance
of Whittington’s testimony concerning the conversation
that he allegedly overheard. This is necessary not
merely to determine whether the court properly
excluded the testimony, but whether the court’s ruling
was harmful to the defense.
Although the defendant urges us to conclude that the
excluded testimony was not hearsay and was highly
relevant to the defense, the record does not provide an
adequate foundation to support such a determination.
The defendant easily could have created an adequate
record by asking the court to hear Whittington’s
responses to the questions outside of the presence of
the jury. This, however, did not occur. The defendant
is unable to demonstrate reversible error on the basis
of speculation as to how a witness might have testified
at trial because ‘‘speculation and conjecture . . . have
no place in appellate review.’’ (Internal quotation marks
omitted.) State v. Joseph, 174 Conn. App. 260, 274, 165
A.3d 241, cert. denied, 327 Conn. 912, 170 A.3d 680
(2017).
The same concerns apply to the defendant’s right to
present a defense claim. Under Golding, the defendant
bears the burden of demonstrating that the court’s
exclusion of Whittington’s testimony deprived him of
a fair trial. Even if we assume, arguendo, that the claim
is of constitutional magnitude, it nonetheless fails under
Golding’s first prong; see footnote 4 of this opinion;
because the record is inadequate to review it. Absent
a foundation in the record to reflect the substance of
the excluded testimony, we are unable to conclude that
the court deprived the defendant of a fair trial.
Alternatively, we observe that, even if we were to
presume that the court’s evidentiary rulings were erro-
neous and that Whittington would have testified as the
defendant claims on appeal, the record before us leads
us to conclude that the defendant would be unable to
sustain his burden of demonstrating that he was harmed
by them.5 The defendant argues that he should have
been permitted to impeach Chelsea Papineau and to
demonstrate his innocent state of mind by eliciting testi-
mony from Whittington that he did not hear the defen-
dant make any incriminatory statements concerning the
events in the mill and that nothing about the defendant’s
conversation reflected a guilty state of mind. Yet, as
is reflected in our discussion of the court’s rulings,
Whittington’s testimony unmistakably contradicted
Chelsea Papineau’s testimony with respect to the tele-
phone conversation that she had with the defendant.
In contrast with Chelsea Papineau’s testimony that the
defendant admitted that he and Whittington perpetu-
ated a brutal attack that led him to believe he could be
charged with attempted murder and led him to make
plans to leave the state immediately, Whittington testi-
fied that the defendant did not discuss traveling to Ohio.
He testified, as well, that nothing about the telephone
conversation bothered or concerned him, and he agreed
that the subject of the conversation was ‘‘normal’’ topics
involving the defendant’s children. Thus, based on what
we may glean from the defendant’s arguments on appeal
and the record he has provided this court for review,
it appears that the rulings were harmless because the
excluded testimony would have been substantially
cumulative of Whittington’s trial testimony.
Moreover, in connection with his claim that the
court’s rulings infringed on his right to present a
defense, one of our important considerations as a
reviewing court is not only the nature of the excluded
inquiry, but also whether it was adequately covered by
other questions that were allowed.6 For the reasons we
have discussed, it appears from the defendant’s argu-
ments and the record that defense counsel unambigu-
ously elicited from Whittington that, during the
telephone call with Chelsea Papineau, the defendant
did not make any statements of an incriminating nature.
Moreover, Whittington testified that the defendant was
traveling to Massachusetts with him in accordance with
holiday travel plans that existed prior to the events at
issue. Unaided by a proffer that would have provided
this court with a record reflecting what further details
Whittington would have provided if he had been permit-
ted to do so, the defendant merely argues on appeal
that ‘‘[t]he details of this exchange [between the defen-
dant and Chelsea Papineau] were critical . . . .’’ The
defendant does not demonstrate how further testimony
from Whittington would have helped the defense. In
the absence of such further details and because the
defendant was permitted to elicit testimony from Whit-
tington that reflected the innocent tone and subject of
the telephone conversation, thereby impeaching Chel-
sea Papineau, it is highly unlikely that the excluded
inquiry infringed on his right to present a defense.
II
Next, the defendant claims that the court erroneously
precluded him from presenting testimony from his
mother that, prior to the events at issue, he planned to
travel to Massachusetts. We disagree.
The following additional facts are relevant to this
claim. The defense presented testimony from Denise
Papineau, the mother of the defendant and Whittington.
She testified that she was close with both of her sons.
During Denise Papineau’s direct examination by
defense counsel, the following occurred:
‘‘[Defense Counsel]: . . . I want to turn your atten-
tion to . . . December 22, 2014, that afternoon, did you
see the two of them that afternoon?
‘‘[The Witness]: Yes. They came over in the afternoon
before I went to work. They wanted to let me know
that they were going away for Christmas and . . . I
wasn’t gonna see them for Christmas.
‘‘[Defense Counsel]: And was . . . there . . . any
other reason for letting you know about that?
‘‘[The Witness]: So I could make arrangements to see
my grandchildren.
‘‘[Defense Counsel]: And . . . who’s the mother of
the grandchildren?
‘‘[The Witness]: Chelsea [Papineau] was [the defen-
dant’s] wife and Lexi, which was [Whittington’s] girl-
friend.
‘‘[Defense Counsel]: And . . . did [Whittington] and
. . . [the defendant] talk about . . . what they . . .
were gonna do?
‘‘[The Witness]: They were supposed to go with—
‘‘[The Prosecutor]: Objection.
‘‘[The Witness]: —[Whittington’s] dad to—
‘‘The Court: Wait.
‘‘[The Witness]: —Cape Cod.
‘‘The Court: Wait, wait, wait. There’s an objection, so
you just hold on—
‘‘[The Witness]: I’m sorry.
‘‘The Court: —for a minute.
‘‘[The Prosecutor]: Hearsay.
‘‘The Court: Okay. What was the question, [defense
counsel]?
‘‘[Defense Counsel]: I asked what . . . their plans
were for Christmas.
‘‘The Court: Okay. I’m gonna sustain the objection.’’
Without making any further argument regarding
admissibility, the state’s objection, or the court’s ruling,
defense counsel proceeded in his examination of Denise
Papineau. On appeal, the defendant argues that the
court improperly precluded Denise Papineau from testi-
fying that the defendant and Whittington had preex-
isting plans to vacation in Cape Cod. The defendant
argues that the testimony fell within the state of mind
and residual exceptions to the hearsay rule. See Conn.
Code Evid. §§ 8-3 (4) and 8-9. Also, the defendant argues
that the court’s ruling represented ‘‘a critical blow to
the defense,’’ as it desperately needed to refute the
state’s consciousness of guilt evidence, which included
Chelsea Papineau’s testimony that the defendant
intended on fleeing the state and evidence that the
defendant was arrested in Massachusetts.
The defendant argues that he preserved this eviden-
tiary claim by means of ‘‘the actual proffer’’ he made
at the time of trial.7 Alternatively, the defendant argues
that the claim is of constitutional magnitude because
it implicates ‘‘the defendant’s right to present a defense
and to refute the evidence against him.’’ On this basis,
he argues that the claim, if not preserved, is reviewable
under the doctrine set forth in State v. Golding, supra,
213 Conn. 239–40,8 and that the court’s rulings deprived
him of a fair trial. Also, the defendant argues that we
should grant him relief under the plain error doctrine.
See Practice Book § 60-5.
Before considering issues of reviewability related to
this claim, we address the state’s contention that the
claim is undermined by the fact that Denise Papineau’s
testimony concerning the defendant’s plan to travel to
Massachusetts was, in fact, part of the evidence before
the jury. The state correctly observes that although
the court sustained the prosecutor’s objection, Denise
Papineau answered defense counsel’s inquiry before
the court ruled on the objection, the prosecutor did not
move to strike the testimony after the court ruled in
its favor, and the court did not sua sponte order that
the testimony be stricken. The state argues that, in light
of the court’s preliminary9 and final instructions10 to the
jury, the jury would have been left with the impression
that her answer was part of the evidence. The defendant
argues that, guided by the court’s preliminary instruc-
tions, the jury would have been left with the impression
that the answer was not part of the evidence.
Relying on this court’s analysis in State v. Holley, 160
Conn. App. 578, 626–30, 127 A.3d 221 (2015), rev’d, 327
Conn. 576, 175 A.3d 514 (2018), and binding authority
cited therein, which includes State v. Lewis, 303 Conn.
760, 779–80, 36 A.3d 670 (2012), and Hackenson v.
Waterbury, 124 Conn. 679, 684, 2 A.2d 215 (1938), we
conclude that Denise Papineau’s testimony concerning
the defendant’s plan to travel to Cape Cod was not part
of the evidence before the jury. As the state argues, the
court’s preliminary instructions reflect that any testi-
mony that is not stricken by the court is part of the
evidence. Yet, the court’s instructions do not specifi-
cally address the situation that occurred here. The
record reflects that the prosecutor timely objected to
defense counsel’s inquiry. The witness, however, con-
tinued to testify despite the fact that the objection was
pending, and the court clearly had instructed her to
‘‘wait’’ before continuing to answer. The witness failed
to comply with the court’s instruction, leading the court,
once again, to instruct the witness to ‘‘[w]ait, wait,
wait.’’ The court stated that an objection was pending.
Then, in the jury’s presence, the court ruled in favor of
the state. In light of these unique circumstances, we
conclude that the jury would have believed that Denise
Papineau’s rushed response to defense counsel’s
inquiry was improper and, thus, that it was not part of
the evidence.11
Next, we consider whether the evidentiary claim
raised on appeal was adequately preserved. We readily
conclude that it was not. The defendant neither made
a proffer nor advanced any theory of admissibility to
the trial court following the prosecutor’s objection on
hearsay grounds. Certainly, defense counsel’s silence
did not alert the court to the present claim. ‘‘It is well
settled that this court will not entertain claims of eviden-
tiary error that were not distinctly raised before the
trial court.’’ Wilderman v. Powers, 110 Conn. App. 819,
828, 956 A.2d 613 (2008); see also State v. Polynice,
supra, 164 Conn. App. 401 (appellant limited to theory of
admissibility raised before and ruled on by trial court).
Here, the defendant did not advance any theory of
admissibility before the trial court.
We turn now to the defendant’s right to present a
defense claim, for which he seeks review under Gold-
ing. See footnote 4 of this opinion. The defendant’s
recourse to Golding fails for several reasons. First, the
claim is not reviewable under Golding’s second prong,
which requires that the claim be of constitutional magni-
tude and that it allege the violation of a fundamental
right. Phrasing the claim in terms of his right to present
a defense represents the defendant’s attempt to clothe
an unpreserved evidentiary claim in constitutional garb.
‘‘Regardless of how the defendant has framed the issue,
he cannot clothe an ordinary evidentiary issue in consti-
tutional garb to obtain appellate review.’’ (Internal quo-
tation marks omitted.) State v. Warren, 83 Conn. App.
446, 452, 850 A.2d 1086, cert. denied, 271 Conn. 907,
859 A.2d 567 (2004). At trial, the defendant did not
advance any theories under which statements to Denise
Papineau about his travel plans should have been admit-
ted. Here, he argues that the court’s ruling precluding
such testimony infringed on his right to refute the state’s
consciousness of guilt evidence. ‘‘It has . . . been
stated numerous times that consciousness of guilt
issues are not constitutional and, therefore, are not
subject to review under [Golding].’’ (Internal quotation
marks omitted.) State v. Guzman, 110 Conn. App. 263,
270, 955 A.2d 72 (2008), cert. denied, 290 Conn. 915,
965 A.2d 555 (2009); see also State v. Lugo, 266 Conn.
674, 691–92 and 692 n.17, 835 A.2d 451 (2003) (claim
that trial court improperly declined to allow defendant
to present evidence to refute state’s consciousness of
guilt evidence deemed to be ‘‘purely evidentiary’’ and
not subject to constitutional analysis).
Even if the claim was reviewable under Golding, the
claim would fail under Golding’s third prong because
the defendant is unable to demonstrate that he was
deprived of a fair trial. As we discussed in part I of this
opinion, an important consideration in an evaluation of
whether a trial court’s decision not to admit evidence
infringed on a defendant’s right to present a defense is
whether the defense was permitted to cover the field
of inquiry by other means. See footnote 6 of this opinion.
‘‘A defendant may not successfully prevail on a claim
of a violation of his right to present a defense if . . .
he adequately has been permitted to present the defense
by different means.’’ State v. Santana, supra, 313 Conn.
470; see also State v. Kelly, 256 Conn. 23, 76, 770 A.2d 908
(2001) (no violation of constitutional right to present
defense where subject matter of precluded testimony
was presented through other witnesses).
According to the defendant’s theory, Denise Papi-
neau’s testimony concerning the defendant’s plans to
travel to Cape Cod for Christmas was relevant to rebut
the inference that he fled to Massachusetts, where he
later was arrested, because he was conscious that he
was criminally liable for his role in the victim’s assault.12
The defendant was permitted to present evidence that
rebutted this inference. Specifically, defense counsel
was permitted to elicit testimony from Denise Papineau
that during the afternoon of December 22, 2014, prior
to the assault, the defendant and Whittington visited
with her and told her that they were ‘‘going away for
Christmas’’ and that she would not see them on Christ-
mas. Additionally, Whittington testified that between 3
p.m. and 6 p.m. on December 22, 2014, he and the
defendant visited with Denise Papineau. He testified:
‘‘We discussed going to my dad’s and then to Cape Cod
to my cousin’s for Christmas vacation.’’ Whittington
testified that this was something that he did ‘‘almost
every year’’ and that there was ‘‘a discussion about
what’s gonna happen with the grandkids.’’
Whittington’s father, David Whittington, testified that
spending Christmas in Cape Cod with the defendant and
Joshua Whittington generally was an annual tradition.
David Whittington testified that the ‘‘plan’’ was for the
defendant and Joshua Whittington to be at his house
in New London on December 23, 2014, and they were
there by the time that he finished work on that day.
David Whittington testified that, that evening, his wife
transported him, the defendant, and Joshua Whittington
to her residence in Glastonbury. Thereafter, the defen-
dant and Whittington traveled with David Whittington
and his wife to visit with relatives on Cape Cod. David
Whittington testified that while the defendant and
Joshua Whittington were at his home on December 23,
2014, he invited them to live there with the hope that
they could gain employment and ‘‘get a life.’’ He testified
that, in his view, they enthusiastically accepted that invi-
tation.
The foregoing discussion reflects that the defendant
was permitted to present evidence that he had preex-
isting plans to travel to Cape Cod by means other than
the narrow inquiry that was excluded by the trial court.
Thus, the defendant is unable to demonstrate that the
court violated his right to a fair trial and, thus, his claim
fails under Golding’s third prong.13
III
Next, the defendant claims that the court erroneously
admitted a printout of text messages that the state failed
to authenticate. We disagree.
The following additional facts are relevant to this
claim. As we have discussed previously in this opinion,
Chelsea Papineau testified that, at or about 3 p.m. on
December 23, 2014, the defendant sent her a text mes-
sage in which he indicated that he would not be able
to visit with his children at his mother’s house that day.
At or about 5:10 p.m. that day, Chelsea Papineau called
the defendant, and during their conversation, the defen-
dant told her that he did not know when he would be
able to see her or the children again, that he and his
brother had assaulted the victim in the mill, and that
he and his brother had spoken with the police about
the incident. Chelsea Papineau testified that although
the defendant believed that they had ‘‘cleared their
names’’ with the police, ‘‘they were leaving anyway.’’
Chelsea Papineau testified that the next day, Decem-
ber 24, 2014, the defendant sent her another text mes-
sage in which he asked her for the phone number of
their friend, Julian, who lived in Ohio. Chelsea Papineau
said that, following this request, she spoke to the defen-
dant on the telephone. The defendant told her that
Julian recently had offered him a place to stay if he
ever needed a place to stay and that he wanted to see
if that invitation was still open to him. Chelsea Papineau
testified that the defendant expressed his belief that
there was a five year statute of limitation for the crime
of attempted murder and, therefore, he believed that
he needed to leave Connecticut for at least five years.
Chelsea Papineau testified that the defendant asked her
to delete her text messages. Instead, setting aside her
initial belief that ‘‘it was a joke,’’ she brought the text
messages to the attention of the state police.
At the prosecutor’s request, the court marked a four
page document as an exhibit for identification. It suf-
fices to observe that the content of the messages is
consistent with Chelsea Papineau’s testimony about
them.14 The following examination of Chelsea Papineau
by the prosecutor followed:
‘‘Q. . . . I’m showing you a four page document
. . . . I’d ask you to look through those pages at this
time; just look through them, and then tell us whether
or not you recognize them.
‘‘A. Yes, I do.
‘‘Q. What do you recognize them to be?
‘‘A. This is the phone conversation, the text conversa-
tion from the 23rd and the 24th between [the defendant]
and myself.
‘‘Q. And how were those created? Do you recall?
‘‘A. I took a screenshot of my cell phone—
‘‘Q. And the police . . . took them.
‘‘A. —and then I e-mailed them.
‘‘Q. So, those are the text messages between you and
the defendant from the 23rd and the 24th of December
of 2014?
‘‘A. Yes.’’
When the prosecutor offered the document to be
admitted as a full exhibit, defense counsel objected on
three grounds, namely, that the document constituted
hearsay, the document bolstered the testimony of Chel-
sea Papineau because she already had testified about
its content and her conversations with the defendant,
and the document was not authenticated. With regard
to the latter ground, defense counsel stated that there
was no way to verify that the messages actually came
from the defendant’s telephone. The prosecutor replied:
‘‘She’s established the authenticity. These are part of a
series of conversations of the two days, both telephonic
and text. Documents and electronic evidence can cor-
roborate a witness’ testimony and she has authenti-
cated [them].’’
The court overruled defense counsel’s objection, stat-
ing: ‘‘This witness has adequately authenticated those
text messages as coming from the defendant. And, of
course, they’re admissible as statements of the
defendant.’’
During Chelsea Papineau’s cross-examination by
defense counsel, the following examination occurred:
‘‘Q. . . . Back on December . . . 22nd, 23rd, 24th,
did [the defendant] have a telephone?
‘‘A. No.
‘‘Q. So, he was calling you on somebody else’s
telephone?
‘‘A. His brother’s.
‘‘Q. And those texts came from his brother’s phone?
‘‘A. Yes.
‘‘Q. So, you . . . have no idea if he entered those
texts or not, do you?
‘‘A. I’m very positive it was him, but no.
‘‘Q. You . . . weren’t there when . . . it was being
done. Is that correct?
‘‘A. No, I didn’t see him physically do it. No.
‘‘Q. All right. And it’s his brother’s telephone?
‘‘A. Yes.’’
During redirect examination of Chelsea Papineau by
the prosecutor, she testified that from the time that she
divorced the defendant in August, 2014, until the time
of these text messages in December, 2014, she took
steps to keep the defendant involved in the lives of
their children. She testified that the text messages that
she described were interrelated with telephone conver-
sations that she had with the defendant, and agreed
that the text messages and telephone conversations
were part of a single string of conversations between
her and the defendant.
Echoing the arguments that he raised before the trial
court, the defendant argues before this court that ‘‘[the]
text messages, purportedly between the defendant and
Chelsea Papineau . . . were not properly authenti-
cated because the phone they were sent from was not
in the sole custody of the defendant at the time they
were made, and the messages in question cannot be
said with sufficient certainty to have been made by
the defendant.’’
‘‘To the extent a trial court’s admission of evidence
is based on an interpretation of the Code of Evidence,
our standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. They require determinations about which rea-
sonable minds may not differ; there is no judgment call
by the trial court, and the trial court has no discretion
to admit hearsay in the absence of a provision providing
for its admissibility. . . .
‘‘We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law, how-
ever, for an abuse of discretion. . . . In other words,
only after a trial court has made the legal determination
that a particular statement is or is not hearsay, or is
subject to a hearsay exception, is it vested with the
discretion to admit or to bar the evidence based upon
relevancy, prejudice, or other legally appropriate
grounds related to the rule of evidence under which
admission is being sought. For example, whether a
statement is truly spontaneous as to fall within the
spontaneous utterance exception will be reviewed with
the utmost deference to the trial court’s determination.
Similarly, appellate courts will defer to the trial court’s
determinations on issues dictated by the exercise of
discretion, fact finding, or credibility assessments.’’
(Citations omitted; internal quotation marks omitted.)
State v. Saucier, 283 Conn. 207, 218–19, 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 eviden-
tiary matters will be overturned only upon a showing
of a clear abuse of the court’s discretion. . . . Further-
more, [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 evi-
dentiary 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. . . .
‘‘Preliminary questions concerning . . . the admissi-
bility of evidence shall be determined by the court.
Conn. Code Evid. § 1-3 (a). The requirement of authenti-
cation as a condition precedent to admissibility is satis-
fied 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. . . .
‘‘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.
. . .
‘‘[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. . . .
‘‘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 (5th Ed. 2014) § 9.2.3.
‘‘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; empha-
sis omitted; internal quotation marks omitted.) State v.
Smith, 179 Conn. App. 734, 761–64, 181 A.3d 118, cert.
denied, 328 Conn. 927, A.3d (2018).
Here, the state presented sufficient evidence to dem-
onstrate that the document at issue was what the state
claimed it to be, namely, a series of text messages
between the defendant and Chelsea Papineau on
December 23 and 24, 2014. The defendant urges us to
conclude that the record did not provide ‘‘certainty’’
that the defendant sent the text messages at issue, yet
as our discussion of the applicable legal standard
reflects, the state did not bear the burden of ruling out
any possibility that the messages did not originate with
the defendant, but was permitted to establish his
authorship by means of circumstantial evidence. Chel-
sea Papineau’s testimony provided strong circumstan-
tial evidence of authorship. Chelsea Papineau was in
an ongoing relationship with the defendant, her former
husband, and she testified that these text messages
were part of an ongoing conversation between them.15
Moreover, the text messages at issue prompted tele-
phone conversations between Chelsea Papineau and
the defendant. Although the defense disagrees with the
state about the content of those telephone conversa-
tions, the defense does not appear to dispute that they,
in fact, occurred. Chelsea Papineau testified that she
captured images of these text messages and provided
them to the state police. In these circumstances, no
additional means of authentication were necessary.
The defendant relies, in part, on Chelsea Papineau’s
testimony during cross-examination that the text mes-
sages originated from Whittington’s telephone to chal-
lenge the court’s decision to admit the exhibit. We
observe that this testimony, which came after the
court’s ruling, is not a sufficient basis on which to chal-
lenge the ruling. See, e.g., State v. Harris, 32 Conn.
App. 476, 481 n.4, 629 A.2d 1166 (‘‘[w]e are bound to
evaluate the propriety of the trial court’s rulings on the
basis of the facts known to the court at the time of its
rulings’’), cert. denied, 227 Conn. 928, 632 A.2d 706
(1993). Even if we were to consider this later testimony,
however, it does not affect our analysis. Chelsea Papi-
neau testified that these messages were part of a series
of conversations between her and the defendant, these
conversations included telephone calls with the defen-
dant (a person with whom she was very familiar), and
that she was ‘‘very positive’’ that the text messages were
from the defendant. In light of this evidence, it is of no
consequence to our analysis that the defendant utilized
Whittington’s telephone to send the text messages. The
circumstantial evidence provided an adequate founda-
tion upon which to find that the defendant, not Whitting-
ton, authored the text messages.16 The defendant has
not demonstrated that the court’s ruling reflects an
abuse of its discretion.
Assuming, arguendo, that the court’s evidentiary rul-
ing, which was not of constitutional magnitude, was
improper, we readily would conclude that it was harm-
less. Previously in this opinion, we set forth the standard
for harmless error. See footnote 5 of this opinion. As
the defendant acknowledges, the text messages sub-
stantially corroborated other evidence that was offered
absent objection, namely, Chelsea Papineau’s testi-
mony. In light of this other evidence of the defendant’s
text messages to Chelsea Papineau, the defendant is
unable to demonstrate that the court’s ruling substan-
tially affected the verdict.
IV
Finally, the defendant claims that the evidence was
insufficient to support his conviction of conspiracy to
commit assault in the first degree in violation of §§ 53a-
59 (a) (1) and 53a-48.17 We disagree.
The defendant argues that ‘‘[t]he evidence, even in
the light most favorable to sustaining the verdict, con-
tains no evidence of an agreement between the defen-
dant and [Whittington] to cause serious physical injury
to [the victim] by means of a deadly weapon. Rather,
the evidence, even if it is construed as favorably as
possible to the state, suggests a spontaneous outburst
of violence, not a planned assault. . . .
‘‘[E]ven [when viewed] in the light most favorable
to sustaining the verdict, the evidence shows that the
defendant, [the victim] and Whittington went to the
abandoned mill at [the victim’s] suggestion, that there
was no expressed preassault animosity between them,
and that nothing indicated any possibility that the
assault would break out until Whittington suddenly,
spontaneously, and without warning hit [the victim]
with a baseball bat.’’ Additionally, the defendant argues
that although the victim testified that he and Whitting-
ton appeared to be working together, he failed to
describe ‘‘coordination or communication between the
two aside from walking through the mill and trying to
find a place to sleep before the attack.’’ Moreover, the
defendant relies on Whittington’s testimony that the
defendant had no role in the attack, there had been
no conversations about harming the victim, and that
Whittington threatened to strike him when he attempted
to intervene on the victim’s behalf.
‘‘In reviewing a sufficiency of the evidence claim, 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 jury 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,
[w]here a group of facts are relied upon for proof of
an element of the crime it is their cumulative impact
that is to be weighed in deciding whether the standard
of proof beyond a reasonable doubt has been met and
each individual fact need not be proved in accordance
with that standard. It is only where a single fact is
essential to proof of an element, however, such as iden-
tification by means of fingerprint evidence, that such
evidence must support the inference of that fact beyond
a reasonable doubt. . . .
‘‘As we have often noted, however, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier, 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 evidence that
supports the jury’s verdict of guilty. . . . Furthermore,
[i]t is immaterial to the probative force of the evidence
that it consists, in whole or in part, of circumstantial
rather than direct evidence.’’ (Internal quotation marks
omitted.) State v. Edwards, 325 Conn. 97, 136–37, 156
A.3d 506 (2017).
Section 53a-59 (a) provides in relevant part: ‘‘A person
is guilty of assault in the first degree when: (1) With
intent to cause serious physical injury to another per-
son, he causes such injury to such person or to a third
person by means of a deadly weapon or a dangerous
instrument . . . .’’ ‘‘To obtain a conviction for conspir-
acy to commit assault in the first degree in violation of
§§ 53a-48 (a) and 53a-59 (a) (1), as charged, the state
bore the burden of proving beyond a reasonable doubt
that the defendant (1) intended that conduct constitut-
ing the crime of assault in the first degree be performed,
(2) agreed with one or more persons to engage in or
cause the performance of such conduct and (3) that
any one of those persons committed an overt act in
pursuance of such conspiracy. Conspiracy is a specific
intent crime, with the intent divided into two parts: (1)
the intent to agree to conspire; and (2) the intent to
commit the offense that is the object of the conspiracy.
. . . To sustain a conviction for conspiracy to commit
a particular offense, the prosecution must show not
only that the conspirators intended to agree but also
they intended to commit the elements of the offense.’’
(Internal quotation marks omitted.) State v. Wells, 100
Conn. App. 337, 347–48, 917 A.2d 1008, cert. denied,
282 Conn. 919, 925 A.2d 1102 (2007).
‘‘[T]he existence of a formal agreement between the
conspirators need not be proved [however] because
[i]t is only in rare instances that conspiracy may be
established by proof of an express agreement to unite to
accomplish an unlawful purpose. . . . [T]he requisite
agreement or confederation may be inferred from proof
of the separate acts of the individuals accused as cocon-
spirators and from the circumstances surrounding the
commission of these acts. . . . Further, [c]onspiracy
can seldom be proved by direct evidence. It may be
inferred from the activities of the accused persons. . . .
Finally, [b]ecause direct evidence of the accused’s state
of mind is rarely available . . . intent is often inferred
from conduct . . . and from the cumulative effect of
the circumstantial evidence and the rational inferences
drawn therefrom.’’ (Citation omitted; internal quotation
marks omitted.) State v. Danforth, 315 Conn. 518, 532–
33, 108 A.3d 1060 (2015); see also State v. Smith, 36
Conn. App. 483, 486, 651 A.2d 744 (1994) (sufficient for
state to demonstrate that actors mutually agreed to
commit forbidden act), cert. denied, 233 Conn. 910, 659
A.2d 184 (1995).
We begin our analysis of the evidence by focusing
on the defendant’s undisputed relationship with Whit-
tington, who testified that he was the sole perpetrator
of the violent assault. The evidence reflects that it was
not a coincidence for the defendant and Whittington to
be together in the mill on the night of December 22,
2014. They were half brothers who, according to
defense witnesses, shared a close relationship. This
type of relationship, while not dispositive, makes it less
likely that they acted independently in the mill and
more likely that they acted in unison. See State v. Hen-
derson, 83 Conn. App. 739, 748–49, 853 A.2d 115 (evi-
dence of nature of relationship between alleged
coconspirators relevant to issue of existence and object
of conspiracy), cert. denied, 271 Conn. 913, 859 A.2d
572 (2004).
The evidence supported a finding that, prior to the
attack in the mill, the defendant and Whittington were
upset with the victim because they believed that he had
stolen money from one or both of them on a prior
occasion. The defendant and Whittington knew that,
later that night, the victim would return to the darkened,
abandoned mill because they had made plans to meet
him there. After making arrangements to spend the
night in the mill with the victim, the defendant and
Whittington had an opportunity to explore the mill in
the victim’s absence and found a favorable location in
the mill in which to retaliate against him. Whittington
arrived at the mill while carrying a dangerous instru-
ment, namely, a metal baseball bat.18
The evidence demonstrated that, once the three men
were alone in the mill, it was Whittington who began
the altercation by striking the victim in the back of the
head when he had turned away from him. There was
evidence that the defendant did not attempt to stop
the altercation and did not flee the scene. Whittington
struck the victim repeatedly with the bat, and there was
evidence that the victim had been stabbed repeatedly.
The evidence is undisputed that the three men were
alone inside of the mill, and Whittington denied that
he stabbed the victim.19 The victim testified that the
defendant and Whittington seemed to be working
together as he was pushed into the hole in the floor.
This was corroborated by Whittington’s testimony that
he and the defendant had dragged the victim in the mill.
Then, the defendant and Whittington threw debris on
top of him. Once he was in the hole, the victim over-
heard the defendant and Whittington discuss his dire
condition before abandoning him in the mill.
After they left the victim, the defendant and Whitting-
ton provided false information to the police about the
events at issue to conceal their participation in the
crime. The defendant told the police that his clothing
had been stolen. The defendant and Whittington did
not go their separate ways following the assault, but
remained together.20 Ultimately, they left the state
together. In his conversation with Chelsea Papineau,
the defendant did not express remorse or indicate that
he was a bystander to the events at issue, but acknowl-
edged to his former wife that he and Whittington had
beaten the victim violently in the mill and had left him
there. The defendant, believing that he faced an
attempted murder charge, indicated his intention to flee
to Ohio for at least five years in an attempt to evade
criminal liability for the events that transpired in the
mill.
The foregoing subordinate facts, which the jury rea-
sonably could have found, and the rational inferences
drawn therefrom, support a finding beyond a reason-
able doubt that the defendant and Whittington intended
to commit the crime of assault in the first degree, agreed
with one another to commit the conduct constituting
the crime, and that one or both of them engaged in
overt acts in furtherance of the conspiracy.
The jury reasonably could have inferred that the
defendant and Whittington had a reason to be upset
with the victim prior to the attack.21 The jury reasonably
could have inferred that, following their initial meeting
with the victim, they planned to retaliate against him
in the mill.22 Whittington, not the victim, initiated the
assault by utilizing the baseball bat that he brought with
him to the mill. The evidence suggested that Whittington
waited for an opportune moment in which to strike the
victim with the bat, and that he and the defendant had
planned to lure the victim to their choice of location
inside of the mill, where they could push the victim
into the hole in the floor. The joint efforts of the defen-
dant and Whittington in this location reflected that it
was not a spur of the moment occurrence, as the defen-
dant argues. There was evidence to support a finding
that the defendant actively participated in the crime by
joining with Whittington to push him into the hole in
the floor and cover him with debris. See, e.g., State v.
Forde, 52 Conn. App. 159, 168, 726 A.2d 132 (commis-
sion of single act in furtherance of conspiracy sufficient
to demonstrate knowing participation), cert. denied,
248 Conn. 918, 734 A.2d 567 (1999).
It is significant to our analysis of intent and whether
an agreement existed that, according to the victim’s
testimony, the defendant did not take any measures to
stop the attack or to flee the scene after Whittington
violently used a baseball bat to strike the victim repeat-
edly. The defendant did not express surprise or outrage,
nor at any point in time did he insist that help be sum-
moned. Instead, the jury reasonably could have found
that the defendant was an active participant in the
attack by utilizing the light on Whittington’s cell phone
to illuminate the victim while Whittington struck him
with the baseball bat, stabbing the victim repeatedly,
working with Whittington to drag the victim into the
hole in the floor, and covering the victim’s badly injured
body with debris. Thereafter, the defendant and Whittin-
gton discussed the effects of their attack as the victim
was lying in the hole. The evidence supported a finding
that the defendant remained on the scene during the
multiple phases of the attack, helping to injure the vic-
tim severely, until the victim was incapacitated. There-
after, the defendant left the mill just as he had arrived
at the mill, in unison with Whittington. The defendant’s
coordinated conduct with Whittington strongly
reflected his participation in a plan to retaliate against
the victim by inflicting serious injury. See State v. Mil-
lan, 290 Conn. 816, 828, 966 A.2d 699 (2009) (‘‘[a] cocon-
spirator’s conduct at the scene can provide the requisite
evidence of an agreement’’); State v. Elsey, 81 Conn.
App. 738, 747, 841 A.2d 714 (‘‘the jury could have based
at least part of its decision regarding the conspiracy
charges on the defendant’s decision to come to the
scene of the crime with the coconspirators, stay at the
scene while the crimes were committed and leave the
scene with the coconspirators’’), cert. denied, 269 Conn.
901, 852 A.2d 733 (2004).
The defendant’s conduct and his statements to Chel-
sea Papineau following the incident not only reflected
his consciousness of his guilt, but strongly bolstered a
finding that he intended for the victim to sustain serious
physical injury and that he had been an active partici-
pant with Whittington in a preplanned retaliatory event.
‘‘Although mere presence at a crime scene, standing
alone, generally is insufficient to infer an agreement,
a defendant’s knowing and willing participation in a
conspiracy nevertheless may be inferred from his pres-
ence at critical stages of the conspiracy that could not
be explained by happenstance . . . .’’ (Internal quota-
tion marks omitted.) State v. Rosado, 134 Conn. App.
505, 511, 39 A.3d 1156, cert. denied, 305 Conn. 905, 44
A.3d 181 (2012). The defendant’s actual participation
in the assault and his conduct following the assault
undermines his argument that he merely was a
bystander during the events at issue. The defendant
relies almost exclusively on Whittington’s testimony. In
accordance with our well settled standard of review,
we focus on the evidence that supported the jury’s
finding of guilt. The defendant attempts to portray Whit-
tington as the sole perpetrator, yet the evidence of the
defendant’s conduct before, during, and after the events
at issue reflect that he and Whittington conspired to
cause serious physical injury to the victim by means of
a dangerous instrument. See State v. Williams, 94 Conn.
App. 424, 433, 892 A.2d 990 (defendant’s conduct before,
during, and following incident may shed light on his
state of mind), cert. denied, 279 Conn. 901, 901 A.2d
1224 (2006).
In light of the foregoing, we reject the defendant’s
argument that the evidence was insufficient to convict
him of conspiracy to commit assault in the first degree.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court granted the defendant’s motion for a judgment of acquittal
with respect to one count of hindering prosecution in the second degree in
violation of General Statutes § 53a-166.
The court imposed a total effective sentence of fourteen years imprison-
ment, five years of which are mandatory, followed by six years of special
parole.
2
Unless, for clarity, we refer to Joshua Whittington by his full name,
generally we will refer to him in this opinion as ‘‘Whittington.’’
3
Whittington testified for the defense. His version of events was that he
became angry with the victim because he believed that, on a prior occasion,
the victim took money from him and the defendant. He testified that he
alone physically attacked the victim with a baseball bat in the mill, that it
was a ‘‘spur of the moment’’ decision on his part, and that the defendant,
who was present with him and the victim in the mill, fled the scene without
harming the victim. He testified that after he had struck the victim several
times, the defendant attempted to take the bat away from him. He and the
defendant struggled briefly, but he ordered the defendant to ‘‘get [the] heck
out of there’’ and ‘‘gestured that [he] was gonna hit him next.’’
4
As modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),
the Golding doctrine provides that ‘‘a defendant can prevail on a claim of
constitutional error not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the alleged claim of
error; (2) the claim is of constitutional magnitude alleging the violation of
a fundamental right; (3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail. The appellate tribunal
is free, therefore, to respond to the defendant’s claim by focusing on which-
ever condition is most relevant in the particular circumstances.’’ (Emphasis
omitted; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.
‘‘The defendant bears the responsibility for providing a record that is
adequate for review of his claim of constitutional error. . . . The defendant
also bears the responsibility of demonstrating that his claim is indeed a
violation of a fundamental constitutional right. . . . Finally, if we are per-
suaded that the merits of the defendant’s claim should be addressed, we will
review it and arrive at a conclusion as to whether the alleged constitutional
violation . . . exists and whether it . . . deprived the defendant of a fair
trial.’’ (Citations omitted.) Id., 240–41.
5
‘‘When an improper evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the error was harmful.
. . . [A] nonconstitutional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect the verdict. . . .
[Our] determination [of whether] the defendant was harmed by the trial
court’s . . . [evidentiary 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 [to the defense], whether
the testimony was cumulative, the presence or absence of evidence corrobo-
rating or contradicting the testimony . . . on material points . . . 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).
6
In evaluating a claim of this nature, ‘‘[w]e first review the trial court’s
evidentiary rulings, if premised on a correct view of the law . . . for an
abuse of discretion. . . . If, after reviewing the trial court’s evidentiary
rulings, we conclude that the trial court properly excluded the proffered
evidence, then the defendant’s constitutional claims necessarily fail. . . .
If, however, we conclude that the trial court improperly excluded certain
evidence, we will proceed to analyze [w]hether [the] limitations on impeach-
ment, including cross-examination, [were] so severe as to violate [the defen-
dant’s rights under] the confrontation clause of the sixth amendment . . . .
In evaluating the severity of the limitations, if any, improperly imposed on
the defendant’s right to confront, and thus impeach, a witness, [w]e consider
the nature of the excluded inquiry, whether the field of inquiry was ade-
quately covered by other questions that were allowed, and the overall quality
of the cross-examination viewed in relation to the issues actually litigated
at trial. . . . In conducting our analysis, we are mindful that trial judges
retain wide latitude insofar as the [c]onfrontation [c]lause is concerned to
impose reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or only marginally
relevant. . . . [W]e have upheld restrictions on the scope of cross-examina-
tion where the defendant’s allegations of witness bias lack any apparent
factual foundation and thus appear to be mere fishing expeditions. . . . We
consider de novo whether a constitutional violation occurred.’’ (Citations
omitted; internal quotation marks omitted.) State v. Halili, 175 Conn. App.
838, 852–53, 168 A.3d 565, cert. denied, 327 Conn. 961, 172 A.3d 1261 (2017).
7
Presumably, in referencing a proffer, the defendant relies on what Denise
Papineau stated following defense counsel’s question.
8
See footnote 4 of this opinion.
9
Prior to the presentation of evidence, the court instructed the jury in
relevant part: ‘‘Now, during the trial, counsel on each side may object when
the other side offers testimony or evidence which counsel believes is not
admissible . . . . If, during the course of the trial, the court sustains an
objection by one attorney to a question asked by the other, you should
disregard the question, and you must not speculate as to what the answer
would have been. So, also, if any testimony is ordered stricken, you should
disregard that testimony and must not give it any weight whatsoever in
your deliberations.’’
10
During its charge, the court instructed the jury that it was to consider
the evidence, including the sworn testimony of witnesses, and that ‘‘any
testimony that has been excluded or stricken’’ was not evidence.
11
Following the evidentiary ruling, it would have been better practice for
the court sua sponte to have ordered that the witness’ answer be stricken
from the evidence or for the prosecutor to have moved to strike the answer
after he had obtained a favorable ruling. Such steps would have provided
a greater degree of clarity for the jury and for this court in its evaluation
of the evidence.
12
We observe that the excluded evidence at issue in the present claim
did not tend to refute the other highly incriminating consciousness of guilt
evidence that was presented by the state, which demonstrated that the
defendant, fearing arrest on an attempted murder charge, planned to relocate
to Ohio for at least five years. This other consciousness of guilt evidence,
as well as the fact that the defense was permitted to present ample evidence
concerning the defendant’s plans to travel to Cape Cod, leads us to conclude
that, even if the court erroneously precluded the narrow inquiry at issue in
this claim, such error was harmless beyond a reasonable doubt under Gold-
ing’s fourth prong. See footnote 4 of this opinion.
13
In light of our determination that the excluded evidence was cumulative
of other evidence that the defendant was permitted to present to the jury,
we are not persuaded that the court’s ruling reflected that a serious and
manifest injustice occurred in the present case. Accordingly, we reject the
defendant’s recourse to the plain error doctrine. See State v. Myers, 290
Conn. 278, 289, 963 A.2d 11 (2009) (discussing appellant’s burden to satisfy
plain error doctrine).
14
There are fifteen incoming text messages in the document and seven
outgoing text messages. One of the incoming messages dated, ‘‘Yesterday
2:53 PM,’’ states: ‘‘Hey I can’t make it to my mom’s today. I’ll try to figure
something out.’’ Another incoming text, dated ‘‘Today 4:21 PM,’’ states: ‘‘Hey
do you have corby’s number? And so u don’t worry were keeping the phone
off w the SD card out unless we have to use the phone.’’ An outgoing text
message replies, ‘‘Why do u want it?’’ An incoming message states, ‘‘Call
me and ill talk to you.’’ The last incoming message states: ‘‘Just remember
to delete ur messages.’’
15
A review of the subject matter of the text messages reflects that, in part,
they concerned the topic of the defendant’s children with Chelsea Papineau.
16
We observe that, following the state’s prima facie showing of authentic-
ity, arguments concerning the authorship of the text messages were fodder
for the jury’s consideration. As our review of the facts underlying this claim
reveals, defense counsel availed himself of an opportunity to challenge
the state’s evidence by eliciting testimony during his cross-examination of
Chelsea Papineau to establish that the text messages came from Whitting-
ton’s telephone and that she did not physically observe the defendant using
Whittington’s telephone to send her the messages at issue.
17
At trial, the defendant moved for a judgment of acquittal with respect
to this charge. The court denied the motion.
18
The victim testified that, once he, the defendant, and Whittington were
inside the mill, he was using a flashlight, and that the defendant and Whitting-
ton were using ‘‘a flashlight that was . . . on their phone.’’ The victim
testified that, after he was struck by the baseball bat, he dropped his flash-
light. He testified that, both prior to and following the time that he was
struck, the defendant was using a cell phone light and that ‘‘[t]hat light
never went out.’’ He testified that that light source was shining on him
while Whittington was striking him repeatedly. Thus, it would have been
reasonable for the jury to find that the defendant illuminated the victim
while Whittington struck him.
19
Considering the undisputed evidence that Whittington struck the victim
in the back of the head with a baseball bat and continued to assault him
with the bat in the poorly illuminated mill, it is understandable that the
victim was unable to shed much light on which of his assailants had stabbed
him. The victim testified, in relevant part: ‘‘As I turned my head . . . I was
hit in the head with a baseball bat numerous times. I was trying to get away.
Being pushed toward the darker part of the mill, I then felt like I was being
stabbed. All the time asking . . . why is this happening? What are you guys
doing? And then I was pushed into a hole.’’
20
Whittington testified, in part, that, following the events in the mill, he
tried to conceal his actions in the mill by washing his boots in a river and
that the defendant washed his boots in the river, as well.
21
The defendant argues that he and Whittington did not have a motivation
to conspire against the victim on the basis of the stolen money because
Whittington did not learn that the victim had stolen the money until seconds
prior to the assault. This is not an accurate view of the evidence. First, we
observe that, although the defendant denied any involvement in the assault
and told the police that he ‘‘never had any problem with [the victim],’’ he
nonetheless stated that he had ‘‘heard rumors about [the defendant] robbing
people who he was staying with in the past.’’ Both the victim and Chelsea
Papineau testified that the victim had stayed with the defendant in the past.
Second, during direct examination by defense counsel, the following
examination of Whittington occurred:
‘‘Q. And so did something happen between you and [the victim inside of
the mill]?
‘‘A. We—I discussed with him because I was told by a mutual friend,
Kevin—I don’t know his last name, but he told me that [the victim] had
taken my money before, so I confronted [the victim] about it and I kept at
him, and I got closer to him and asked him, you know, if he took my money.
He finally admitted to me he did, and I got angry and I got up in his face.
He kind of tried to push me away and I snapped, and I had hold of a bat
and I hit him in the head with the bat and when he had fell over, I kept
hitting him.
‘‘Q. Let me . . . stop you right there. Now, before that, had there been
any discussion about the money?
‘‘A. He knew we were missing the money and we weren’t thinking it was
him at the time, so there was no real big discussion about it.
‘‘Q. Did . . . you and [the defendant] . . . have any discussions about
trying to get [the victim] . . . or try to hurt him or anything like that?
‘‘A. No. We actually found out that day it was . . . that we were told
that day it was him when we were meeting back up with him at [Sunnyside
Farms] by our mutual friend.
‘‘Q. But was there any plans to . . . get revenge or anything like that?
‘‘A. No. We . . . had no plans. It was spur of the moment.’’ (Emphasis
added.)
The jury could accept or reject Whittington’s testimony in whole or in
part. Setting aside Whittington’s testimony that he and the defendant had
not planned to retaliate against the victim, a reasonable view of Whittington’s
testimony reflects that, in the hours prior to the attack, the defendant and
Whittington learned information from a third party that caused them to
strongly suspect that, on a prior occasion, the victim had stolen money from
them. Whittington’s testimony reflects that he aggressively confronted the
victim and became violent once he had obtained a confession from the victim.
22
The defendant attempts to undermine a finding that any planning
occurred by relying on the undisputed evidence that the victim first sug-
gested that the three men spend the night in the abandoned mill. Simply
because the victim first suggested that the men spend the night in the mill
does not make it any less plausible that, during the afternoon hours of
December 22, 2014, the defendant and Whittington had ample time in which
to conspire to assault the victim therein.