State v. Ruocco

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STATE OF CONNECTICUT v. DUSTIN RUOCCO
(AC 34763)
Alvord, Keller and Harper, Js.
Argued March 5—officially released July 22, 2014
(Appeal from Superior Court, judicial district of New
Haven, Moore, J.)
Alice Osedach, assistant public defender, with whom,
on the brief, was Katrina Cessna, certified legal intern,
for the appellant (defendant).
Jennifer F. Miller, special deputy assistant state’s
attorney, with whom, on the brief, were Michael Dear-
ington, state’s attorney, and Marc Ramia, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Dustin Ruocco, appeals
from the judgment of conviction, rendered after a jury
trial, of burglary in the third degree in violation of Gen-
eral Statutes § 53a-103 (a)1 and larceny in the third
degree in violation of General Statutes § 53a-124 (a) (2).2
The defendant claims that the trial court improperly (1)
failed to instruct the jury that it may draw no unfavor-
able inferences from his failure to testify, as mandated
by General Statutes § 54-84 (b); (2) excluded expert
testimony; and (3) interpreted the term ‘‘building’’ for
purposes of his burglary conviction. We agree that the
court improperly failed to give the mandatory jury
instruction, and therefore reverse the judgment of
the court.
The jury reasonably could have found the following
facts. The defendant and his girlfriend, Denise Cintron,
rented a basement apartment from Thomas Blake in
East Haven. Blake’s property is immediately adjacent
to property owned by Donald Gennette (Donald) and
Maria Gennette (Maria). There is a shed in the backyard
of the Gennettes’ property located approximately
twenty feet from the Gennette-Blake property line.
On May 5, 2011, Donald and Maria went to work at
6:20 a.m. and 7:15 a.m., respectively. Maria returned
home at 11:40 a.m. to take care of her grandchild while
her son went to work. Upon arriving home, Maria
observed the defendant and Cintron sitting in the defen-
dant’s vehicle, a red Toyota Corolla. Maria then took
her dog for a walk in her backyard and observed that
the defendant’s car, although on the Blake property,
was parked immediately next to the Gennette-Blake
property line. Maria noted that the defendant’s car was
parked in close proximity to her shed, and that the
location of the car was unusual because she had never
seen the car parked there before. Maria observed that
Cintron was now alone in the vehicle.
Cintron exited the vehicle and began to ask Maria
questions about her dog. This interaction was unusual,
according to Maria, because Cintron had never spoken
to her during the nine months that Cintron had resided
on the Blake property. After Cintron had questioned
her for about two minutes, Maria went back inside her
house. Approximately ten minutes later, at 12:15 p.m.,
Maria, her son, and the grandchild departed, leaving no
one in the house. Upon leaving, Maria observed that
the defendant’s car had not moved.
Maria returned home at 3:15 p.m. and noticed that
an exterior light on the shed was turned on, which she
described as unusual. Donald, an experienced electri-
cian, explained how he had wired the exterior light on
the shed.3 He explained that a switch inside the shed
controls the exterior light. If the switch is in one posi-
tion, the light stays on continuously. If the switch is in
the other position, the light is controlled by a motion
sensor mounted on the exterior of the shed. The motion
sensor will turn the light on if someone moves in front
of it. He explained, however, that he configured the
motion sensor so that it is disabled while it is light
outside. The only explanation for the light being on
during the day is that someone went inside the shed
and put the switch in the position that turns the light
on continuously. According to Donald, on May 5, 2011,
the exterior light was off when he left for work and
should have remained off throughout the day.
Donald was ‘‘suspicious’’ after Maria told him that
the defendant’s car had been parked on the property
line and that the exterior light on the shed was on
when she arrived home. Donald went into the shed and
noticed several items were missing. He immediately
called the police and spoke with his neighbor, Rick
Gallo, who resides on the other side of the Gennettes’
property. Gallo was unemployed at the time and testi-
fied that he was home painting his son’s room on the
date in question.
At 2 p.m. on May 5, 2011, Gallo observed the defen-
dant enter the Gennettes’ shed, remove items from it,
and place them in the trunk of the defendant’s car,
which was parked in close proximity to the Gennette-
Blake property line. Gallo stated that, although he
observed someone other than one of the Gennettes
removing items from their shed, he ‘‘[did not] want to
assume that [the defendant] was stealing’’ because it
was possible that the defendant was assisting Donald
with his work as an electrician. Gallo later reported his
observations to the police after Donald notified him
that he called to report the burglary.
Officer Craig Michalowski of the East Haven Police
Department responded and met with Donald, Maria,
Gallo, and Blake. Donald told Michalowski that the
following items were taken from his shed: (1) a chain
saw; (2) a miter saw; (3) a drill; and (4) a ‘‘cordless kit’’
containing a drill and two saws. The next day, after
Donald conducted a more thorough search of the shed,
he reported to the police that he was also missing (1)
sixty to seventy feet of ‘‘two aught’’ copper wire; (2)
‘‘a couple [of] rolls’’ of ‘‘number two’’ wire; (3) approxi-
mately 750 feet of yellow ‘‘Romex’’ wire; and (4) approx-
imately 750 feet of white ‘‘Romex’’ wire. Donald had
this wire on hand in order to perform a specific modifi-
cation to his house’s electrical system.
After his initial investigation, Michalowski identified
the defendant as a potential suspect in the crime.4 He
continued the investigation by checking the records
from area scrap yards and pawn shops in order to deter-
mine whether the defendant sold any of the items taken
from the shed. Michalowski explained that when some-
one sells something to either a scrap yard or pawn shop,
the businesses keep a record of the date and time of
the sale, the item sold, and the seller’s name and
address. The businesses send these records to the
police department approximately every six weeks.
Michalowski checked the records on file at the police
department and found that, at 6:55 a.m. on the day after
the burglary, the defendant sold wire to a scrap yard
that was consistent with the type of wire reported miss-
ing from the Gennettes’ shed.
The defendant was arrested on June 14, 2011, and
charged with burglary in the third degree and larceny
in the third degree. At trial, the defendant argued that
Donald had lied about the amount of wire taken in
order to defraud his insurance company.5 He specifi-
cally argued that Donald’s account of the amount and
value of the wire taken from the shed was inconsistent.
Moreover, the defendant argued that the amount of wire
purportedly in the shed was disproportionate to the
amount necessary to modify the electrical system for
the Gennettes’ house as Donald had claimed. As such,
the defendant argued, the state did not prove beyond
a reasonable doubt that the property taken was worth
more than $2000, the amount necessary to be convicted
of larceny in the third degree pursuant to § 53a-124 (a)
(2). The jury returned a verdict of guilty on both counts,
and the court rendered judgment accordingly. Addi-
tional facts will be set forth as necessary.
I
The defendant first claims that the trial court improp-
erly failed to instruct the jury that it may draw no
unfavorable inferences from his failure to testify at trial.
Section 54-84 (b) provides in relevant part: ‘‘Unless the
accused requests otherwise, the court shall instruct the
jury that they may draw no unfavorable inferences from
the accused’s failure to testify. . . .’’ This instruction
is mandatory unless the defendant requests otherwise.
State v. Stewart, 64 Conn. App. 340, 349, 780 A.2d 209,
cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). Both
parties concede that the jury was not charged with the
mandatory instruction. The state claims, however, that
the record is inadequate for our review because it is
ambiguous as to whether the defendant waived the
mandatory instruction, and therefore the defendant’s
claim must fail. The defendant argues that there is no
evidence in the record that he waived the instruction
and, therefore, failing to give the instruction is plain
error that requires a new trial. We agree with the defen-
dant and reverse the judgment of the trial court.
The following facts are necessary for the resolution
of this claim. After the parties presented their closing
arguments, and before adjourning for its lunch recess,
the court stated: ‘‘Counsel, I’ve given you each a copy
of my proposed charge. . . . [I]f you have any ques-
tions, or concerns, or comments, I’ll be available at 1:30
in my chambers. If I don’t see you at 1:30, I’ll just assume
that you have no comments or questions. But we will
be starting a little before 2 because I’d like to have as
much time this afternoon for the jury and its delibera-
tions.’’ After the recess, the jury entered the courtroom
and the court gave the jury charge. The court did not
put on the record whether any party had come to its
chambers to discuss the charge. Furthermore, there is
no reference to any charge conference and no copy of
the proposed charge in the record.
The defendant concedes that this claim is unpre-
served, but argues that the judgment should be reversed
pursuant to the plain error doctrine. See Practice Book
§ 60-5. Our Supreme Court ‘‘recently clarified the two
step framework under which we review claims of plain
error. First, we must determine whether the trial court
in fact committed an error and, if it did, whether that
error was indeed plain in the sense that it is patent [or]
readily discernable on the face of a factually adequate
record, [and] also . . . obvious in the sense of not
debatable. . . . [T]his inquiry entails a relatively high
standard, under which it is not enough for the defendant
simply to demonstrate that his position is correct.
Rather, the party seeking plain error review must dem-
onstrate that the claimed impropriety was so clear, obvi-
ous and indisputable as to warrant the extraordinary
remedy of reversal. . . . [U]nder the second prong of
the analysis we must determine whether the conse-
quences of the error are so grievous as to be fundamen-
tally unfair or manifestly unjust. . . . Only if both
prongs of the analysis are satisfied can the appealing
party obtain relief.’’ (Citations omitted; emphasis omit-
ted; internal quotation marks omitted.) State v. Coward,
292 Conn. 296, 306–307, 972 A.2d 691 (2009).
A
The parties disagree as to whether the record is ade-
quate for review, which is a requirement under the first
prong of the plain error doctrine. Id., 307. The state
argues that ‘‘there is a possibility that the defendant
could have waived [the mandatory instruction]’’ in an
in-chambers conference during the lunch recess.
Because we must presume that the trial court acted
properly; Gaines v. Commissioner of Correction, 306
Conn. 664, 690, 51 A.3d 948 (2012); the state claims
there exists ‘‘a clear . . . manner in which the trial
court could have acted properly’’ if the defendant
waived the mandatory instruction in chambers. As a
result, the record is inadequate because, as the state
argues, ‘‘the defendant has not demonstrated that the
trial court’s failure to give the instruction was not
directly and correctly responsive to [the defendant’s]
request that it not so instruct.’’ Because there exists
this possibility that the defendant waived the mandatory
instruction in chambers, the state argues, the record
is incomplete until it reflects whether an in-chambers
conference took place, and if so, whether the defendant
waived the mandatory instruction during that confer-
ence. The state ultimately argues that because the
record is inadequate and the defendant, as the appellant,
has the burden of providing an adequate record, the
defendant’s claim must fail. We disagree.
We conclude that the record before us is clear, unam-
biguous, and adequate for review with respect to the
defendant’s claim that the court improperly refrained
from giving the no unfavorable inference instruction.
Presuming that the trial court acted properly, as we
must, the record leads to the conclusion that no off-
the-record charge conference occurred. Had an in-
chambers charge conference occurred, as the state sug-
gests, then a court acting properly would have summa-
rized it on the record, as directed by Practice Book
§ 42-196 and State v. Baptiste, 302 Conn. 46, 57–58, 23
A.3d 1233 (2011).7 The record reflects that the trial court
offered the parties the opportunity to take exception
to the proposed jury charge, which is not contained in
the record. There is no record of either party taking
exception to the charge and no record of the defendant
waiving the mandatory instruction, but there is a record
of the charge being read to the jury without the manda-
tory instruction. Because the complete jury charge is
found in the transcript, the record is sufficient to review
a claim of plain error due to the omission of a no
unfavorable inference instruction. See State v. Stewart,
60 Conn. App. 301, 308–309, 759 A.2d 142 (no record of
waiver and total omission of no unfavorable inference
instruction plain error), remanded, 255 Conn. 913, 763
A.2d 1039 (2000) (appeal withdrawn October 1, 2000),
on remand, 64 Conn. App. 340, 780 A.2d 209, cert.
denied, 258 Conn. 909, 782 A.2d 1250 (2001).8
If we adopted the state’s reasoning, and concluded
that the record is inadequate and, as a result, the defen-
dant’s claim fails, that would place the burden on the
defendant to provide a record sufficient to support the
state’s waiver argument. If the state intends to argue
that the defendant waived a mandatory instruction, the
burden is on the state to secure an adequate record to
support that argument. See State v. Brown, 299 Conn.
640, 659, 11 A.3d 663 (2011) (no waiver pursuant to
State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942[2011], when ‘‘no record of the charging conference or
copy of the court’s intended charge . . . . [because
the court] cannot determine from the record whether
the copy of the final instructions given to defense coun-
sel included the correct charge or the charge as actually
given’’ [citation omitted]). Although the state correctly
notes that it is the appellant’s responsibility to provide
an adequate record for review; Practice Book § 61-10;
as far as the defendant is concerned, the record is ade-
quate to review his claim. The same is not true, however,
of the state’s claim that the defendant may have possibly
waived the no unfavorable inference instruction. Plac-
ing the burden on the defendant to secure a record
adequate to review the state’s claim—as opposed to his
claim—is manifestly unjust. See Practice Book § 60-1
(rules of practice interpreted liberally to avoid surprise
or injustice). We therefore conclude that the record
before us is factually adequate.
The record reflects, and both parties concede, that
the jury charge did not include an instruction that no
adverse inferences were to be drawn from the defen-
dant’s failure to testify, as mandated by § 54-84 (b).
‘‘[N]oncompliance with § 54-84 (b) is plain error . . . .
We have regularly characterized as error any but the
most minor departure from the language that § 54-84
(b) requires.’’ (Internal quotation marks omitted.) State
v. Suplicki, 33 Conn. App. 126, 128, 634 A.2d 1179 (1993),
cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994). We
therefore conclude that the record is complete and the
error is obvious.
B
In order for the defendant to be entitled to reversal
of the judgment, the error must be one that affects
the integrity of the judicial proceedings and results in
manifest injustice. State v. Coward, supra, 292 Conn.
307. ‘‘[T]he total omission of the no adverse inference
instruction is plain error that is not subject to a harmless
error analysis. The unconditional language of the stat-
ute is a legislative mandate and the failure to use that
language is a pivotal aspect of the defendant’s privilege
against self-incrimination. The statutory language is
based on a constitutional right, and its omission can
never be harmless.’’ (Internal quotation marks omitted.)
State v. Suplicki, supra, 33 Conn. App. 130. Accordingly,
we conclude that the failure to include the no adverse
inference instruction, as mandated by § 54-84 (b), is
plain error that requires a new trial.
Although our resolution of the defendant’s first claim
is dispositive of this appeal, the defendant’s remaining
claims regarding the preclusion of expert testimony and
the court’s interpretation of the term ‘‘building’’ are
likely to arise during the defendant’s new trial, and,
therefore, we will address those claims. See State v.
Lee, 229 Conn. 60, 65, 640 A.2d 553 (1994).
II
The defendant claims that the court improperly pre-
cluded the testimony of his expert witness because (1)
the expert was not qualified, and (2) the testimony was
irrelevant. We conclude that a portion of the expert’s
proposed testimony was improperly precluded as irrele-
vant, but that the error was harmless. The following
facts are necessary for the resolution of this claim.
Donald testified that he had planned to use the wire
that he had been storing in the shed to modify the
electrical system serving his house. He specifically pur-
chased the wire to ‘‘put a new service up’’ and rewire
his house accordingly.9 Donald testified that he usually
purchases electrical supplies from a wholesaler and
overestimates the amount he needs to complete a job.
Donald reported to the police that the property sto-
len, including the wire, was valued at approximately
$3000. He determined the value of the property based
on prices provided to him by an electrical supply com-
pany that he uses on a regular basis. Maria relayed
the values as determined by Donald to their insurance
company, and no one from the company came to the
Gennettes’ residence to investigate the claim. The Gen-
nettes collected approximately $3000 for the loss pursu-
ant to their homeowner’s insurance policy.
The defendant proffered expert testimony from
Thomas Lipsett, an electrician with twenty-five years of
experience. The subject matter of his testimony would
have been the price of the various types of wire taken
from the shed and the amount of wire necessary to
‘‘upgrade the service’’ of the Gennettes’ residence.10 The
court precluded Lipsett from testifying because he did
not have any ‘‘specialized training’’ that would permit
him to testify as to the price of the wire at the time of
the offenses at issue. The court also concluded that the
testimony regarding the amount of wire necessary to
perform the work on the Gennettes’ house was irrele-
vant. We conclude that the court properly precluded
Lipsett from testifying as to the price of the wire, but
improperly concluded that evidence concerning the
amount of wire necessary to perform the electrical work
at issue was irrelevant.
A
We first set forth our standard of review. ‘‘[T]he trial
court has wide discretion in ruling on the admissibility
of expert testimony . . . .’’ (Internal quotation marks
omitted.) Sullivan v. Metro-North Commuter Railroad
Co., 292 Conn. 150, 157, 971 A.2d 676 (2009). The well
established standard of review for claims regarding the
admissibility of expert testimony is abuse of discretion.
Id. ‘‘In determining whether there has been an abuse
of discretion, the ultimate issue is whether the court
could reasonably conclude as it did. . . .
‘‘This court recently articulated the test for the admis-
sion of expert testimony . . . . Expert testimony
should be admitted when: (1) the witness has a special
skill or knowledge directly applicable to a matter in
issue, (2) that skill or knowledge is not common to the
average person, and (3) the testimony would be helpful
to the court or jury in considering the issues. . . . In
other words, [i]n order to render an expert opinion the
witness must be qualified to do so and there must be
a factual basis for the opinion.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Id.,157–58.
In order to possess the requisite skill or knowledge
to qualify as an expert, ‘‘[i]t is not essential that an
expert witness possess any particular credential . . .
so long as his education or experience indicate that
he has knowledge on a relevant subject significantly
greater than that of such persons lacking such educa-
tion or experience.’’ (Internal quotation marks omitted.)
Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribi-
coff & Kotkin, 247 Conn. 48, 62, 717 A.2d 724 (1998).
An expert witness’ special skill or knowledge ‘‘may
emanate from a myriad of sources, such as teaching,
scholarly writings, study or practical experience.’’
Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489(1990). Regardless of the source of the expert’s special-
ized knowledge, a court properly may preclude testi-
mony if the expert’s knowledge does not pertain to the
specific matter at issue. See Baranowski v. Safeco Ins.
Co. of America, 119 Conn. App. 85, 97, 986 A.2d 334(2010) (out-of-state insurance agent precluded from tes-
tifying as expert because expert had not ‘‘acquired suffi-
cient knowledge, either from reading, experience or
course work, of the applicable standard of care in Con-
necticut in 1998’’).
Lipsett testified that he had twenty-five years of expe-
rience as an electrician and that at the time of trial he
served as a supervisor electrician for the West Haven
Board of Education. This position requires him to ren-
der cost estimates for various electrical jobs performed
in the course of his employment. He also stated that
he was familiar with the type of wire taken from the
shed and described his knowledge of the value of the
wire in question. Lipsett stated that, on the basis of his
experience and expertise as an electrician, he knew the
current value of the type of wire in question.
Lipsett acknowledged, however, that the price of the
wire in question fluctuates. He admitted that before
providing an official estimate as part of his employment,
he first contacts a supplier to check the price of sup-
plies. He also admitted that he was not familiar with
the value of the wire in question on May 5, 2011, the
date of the burglary. In order to determine the price of
the wire at issue on that specific date, Lipsett stated
that he would have to contact a supplier who keeps a
record of the daily price of supplies. He informed the
court, however, that in preparation for his testimony
he had not researched the price for the relevant wire
on May 5, 2011, and could testify only as to the price
of the wire on the day prior to his testimony.
The court properly concluded that Lipsett was not
qualified as an expert regarding the price of the wire
because he had no knowledge of the value of that wire
on the date of the offenses at issue. In order to find
the defendant guilty of larceny in the third degree, the
jury was required to find that the value of the property
taken exceeded $2000 at the time and place of the crime.
General Statutes §§ 53a-121 and 53a-124. The obvious
deficiency in Lipsett’s testimony was his lack of knowl-
edge as to the price of the wire on the date of the
offenses at issue. His testimony concerning the relevant
price of the wire did not depend on his specialized
knowledge or skill but only on his ability to read and
relay the information provided by a supplier who kept
the appropriate records. Because his testimony as to the
price of the wire would amount to reading the supplier’s
records without employing any specialized knowledge
or skill to interpret or transform that information, we
conclude that the court did not abuse its discretion in
precluding his testimony. Compare State v. McNally,
39 Conn. App. 419, 424, 665 A.2d 137 (‘‘expert opinion
. . . properly excluded on the ground that a determina-
tion of a person’s intoxication based solely on observa-
tion and not on an interpretation of sobriety tests is
within the general knowledge of the jury’’ [emphasis in
original]), cert. denied, 235 Conn. 931, 667 A.2d 1269(1995), with State v. Lamme, 19 Conn. App. 594, 603–
604, 563 A.2d 1372 (1989) (expert testimony that defen-
dant intoxicated admissible because based on
interpretation of sobriety test), aff’d, 216 Conn. 172, 579
A.2d 484 (1990). Lipsett did not demonstrate that he
possessed any specialized knowledge or skill relative
to the price of the subject wire on the relevant date,
and therefore his testimony was properly precluded.
See Baranowski v. Safeco Ins. Co. of America, supra,119 Conn. App. 97–98.
B
The defendant also claims that the court improperly
precluded Lipsett’s testimony regarding the amount of
materials required to upgrade the service on the Gennet-
tes’ house on the ground that the testimony was irrele-
vant, and that this error deprived him of his
constitutional right to present a defense. We conclude
that the testimony was relevant, but precluding this
testimony was harmless beyond a reasonable doubt.
The court has wide discretion in precluding expert
testimony as irrelevant if it is not helpful to the jury in
considering the issues. Sullivan v. Metro-North Com-
muter Railroad Co., supra, 292 Conn. 157–58. ‘‘Evi-
dence is irrelevant or too remote if there is such a want
of open and visible connection between the evidentiary
and principal facts that, all things considered, the for-
mer is not worthy or safe to be admitted in the proof
of the latter.’’ (Internal quotation marks omitted.) State
v. Billie, 250 Conn. 172, 181, 738 A.2d 586 (1999). ‘‘Rele-
vant evidence is evidence that has a logical tendency
to aid the trier in the determination of an issue. . . .
One fact is relevant to another if in the common course
of events the existence of one, alone or with other facts,
renders the existence of the other either more certain
or more probable. . . . Evidence is not rendered inad-
missible because it is not conclusive. All that is required
is that the evidence tend to support a relevant fact even
to a slight degree, so long as it is not prejudicial or
merely cumulative.’’ (Internal quotation marks omit-
ted.) Id.In order to convict the defendant of larceny in the
third degree, the state had to prove that the property
taken from the shed was worth at least $2000 at the
time and place of the crime. General Statutes §§ 53a-
121 and 53a-124. The state presented evidence that the
Gennettes received $3000 from their insurance com-
pany to compensate them for the value of the property
stolen. The evidence also established that the items
taken were worth the following amounts: (1) a chain
saw, $300; (2) a miter saw, $400; (3) a drill, $200; and
(4) a ‘‘cordless kit’’ containing a drill and two saws,
$500. The total value of these items was $1400. Whether
the settlement from the insurance company accurately
reflected that the value of the property taken exceeded
$2000, as required for a conviction of larceny in the
third degree, therefore depended on the value of the
wire taken from the shed.
At trial, the defendant sought to have Lipsett testify
that the amount of wire that Donald claimed he had in
the shed was more than the amount of wire needed to
upgrade the service and modify the wiring in the house.
Lipsett testified that, in the twenty-five years during
which he had been in business as an electrician, he
upgraded the service on residential homes approxi-
mately fifty to sixty times. The defendant proffered
Lipsett’s testimony as relevant to the jury’s determina-
tion of what property was in the shed: ‘‘I believe that
[Lipsett] can assist the jury in determining the facts
that are at issue and give a deeper understanding of
the evidence so that they will understand whether . . .
[Donald] even actually was likely to have [the wire] in
the shed.’’ In precluding Lipsett’s testimony, the court
reasoned: ‘‘[W]hat [wire] was necessary to be used as
upping the service in a house is not relevant to this
particular issue.’’ Later, the court explained: ‘‘What a
person might use on a job, what a person might have
in their home, that’s not what’s in front of the [jury].
What’s in front of the [jury] is, did an individual take
a material, which a person had in their home, away
from that home; that’s the material issue in front of
the [jury].’’
Although we agree with the trial court that the ulti-
mate issue to be determined by the jury was not whether
Donald intended to upgrade the service on his house,
the jury did have to find that the property taken from
the shed was worth more than $2000 in order to find
the defendant guilty of larceny in the third degree.
Because the amount of wire in the shed directly related
to the total value of the property stolen, Lipsett’s testi-
mony had the tendency to aid the jury in determining the
value of the property taken, and therefore the testimony
was relevant. Even though this testimony was helpful
to the jury only if the jury also knew the price of the
wire, that deficiency alone does not render Lipsett’s
testimony irrelevant. See State v. Billie, supra, 250
Conn. 181 (relevancy determined by considering fact
‘‘ ‘alone or with other facts’ ’’). The court, therefore,
improperly precluded Lipsett’s testimony.
An improper evidentiary ruling is subject to harmless
error analysis, and if the impropriety is constitutional
in nature the state has the burden of proving that the
error was harmless beyond a reasonable doubt. State
v. Osimanti, 299 Conn. 1, 15–16, 6 A.3d 790 (2010).
Even if we assume, arguendo, that the impropriety here
affected the defendant’s right to present a defense, the
state has met its burden of demonstrating the harm-
lessness of the error. Although the jury was presented
with testimony about the amount of wire purportedly
in the shed and that the total insurance settlement was
$3000 for all of the property stolen, it could not deter-
mine the value of the wire alone without evidence as
to the price or per foot value of the wire at the time
of the offense. The defendant could not establish the
relevant price of the wire through Lipsett’s testimony,
and did not inform the court that he planned to do so
in another manner. The specific amount of wire in the
shed, standing alone, could not have called into question
the validity of the insurance settlement or aided the
trier of fact with respect to determining the value of
all the property taken from the shed. The jury needed
to be presented with both—the amount of wire and the
price of that wire—in order for the amount of wire in
the shed to have an effect on the jury’s deliberations. We
therefore conclude that precluding Lipsett’s testimony
regarding the amount of wire necessary to complete
the work on Donald’s house was harmless beyond a
reasonable doubt.
III
The defendant’s next claim is that the court improp-
erly interpreted the term ‘‘building’’ for purposes of
burglary in the third degree. By way of a motion to
dismiss, the defendant argued that a shed is not a ‘‘build-
ing,’’ as defined in General Statutes § 53a-100 (a) (1). On
appeal, the defendant claims that the court improperly
denied his motion to dismiss because it concluded that
the Gennettes’ shed is a building ‘‘based on . . . a stat-
utory construction analysis which is flawed most nota-
bly by its omission of any consideration or deference
to the legislature’s stated intent.’’ The defendant essen-
tially argues that because various dictionaries provide
a ‘‘range of meanings’’ of the word ‘‘building,’’ we should
look to the statute’s legislative history to define that
term. We disagree and conclude that the court properly
denied the defendant’s motion to dismiss.
The defendant claims that the court improperly inter-
preted the term ‘‘building,’’ and therefore our review is
plenary and directed by General Statutes § 1-2z. See
State v. Ward, 306 Conn. 698, 707–708, 52 A.3d 591(2012). The defendant’s argument that we should look
to the legislative history is unpersuasive, as our analysis
continues to be guided by the plain meaning rule, as
codified in § 1-2z, even when there are a range of dic-
tionary meanings for a statutory term. Our Supreme
Court has noted that ‘‘[a] dictionary is nothing more
than a compendium of the various meanings and senses
in which words have been and are used in our language.
A dictionary does not define the words listed in it in
the sense of stating what the words mean universally.
Rather, it sets out the range of meanings that may apply
to those words as they are used in the English language,
depending on the various contexts of those uses.’’ Nor-
throp v. Allstate Ins. Co., 247 Conn. 242, 250, 720 A.2d
879 (1998). ‘‘As Justice Thurgood Marshall so aptly put
it: ‘Condemned to the use of words, we can never expect
mathematical certainty from our language.’ . . . Thus,
any word in the English language—except for words of
specialized contexts, such as mathematics or science—
will ordinarily have multiple meanings, depending on
the context in which it has been used.’’ (Citation omit-
ted.) Community Renewal Team, Inc. v. United States
Liability Ins. Co., 128 Conn. App. 174, 180, 17 A.3d 88,
cert. denied, 301 Conn. 918, 21 A.3d 463 (2011). If we
accepted the defendant’s argument, § 1-2z would be
rendered superfluous because we would find multiple
dictionary definitions for every term we attempt to
interpret, and therefore we would always be required
to look to the legislative history. Accordingly, the trial
court did not err by interpreting the term building as
used in § 53a-100 (a) (1) in accordance with the plain
meaning rule as codified in § 1-2z.
Section 1-2z directs us to determine the meaning from
the text of the statute itself and its relationship to other
statutes. If, after doing so, the term is plain and unam-
biguous then our inquiry ends and extratextual evidence
shall not be considered. State v. Ward, supra, 306 Conn.
708. The term ‘‘building’’ is defined in § 53a-100 (a) (1):
‘‘ ‘Building,’ in addition to its ordinary meaning, includes
any watercraft, aircraft, trailer, sleeping car, railroad
car or other structure or vehicle or any building with
a valid certificate of occupancy. . . .’’ We look to the
dictionary definition to determine the ordinary meaning
of building. State v. Domian, 35 Conn. App. 714, 724,
646 A.2d 940 (1994), aff’d, 235 Conn. 679, 668 A.2d
1333 (1996). The ordinary meaning of ‘‘building’’ is: ‘‘A
structure with walls and a roof, esp. a permanent struc-
ture.’’ Black’s Law Dictionary (9th Ed. 2009). ‘‘Struc-
ture’’ in turn is defined as: ‘‘Any construction,
production, or piece of work artificially built up or
composed of parts purposefully joined together.’’ Id.Donald testified that the dimensions of the shed were
eight feet by twelve feet, with a door, and that the shed
was used to store his tools, supplies, gym equipment,
and holiday decorations. The defendant does not argue
that the shed lacked walls or a roof. We conclude that
the court properly determined that the shed in question
was a building for purposes of § 53a-100 and denied
the defendant’s motion to dismiss accordingly.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
General Statutes § 53a-103 (a) provides: ‘‘A person is guilty of burglary
in the third degree when he enters or remains unlawfully in a building with
intent to commit a crime therein.’’
2
General Statutes § 53a-124 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the third degree when he commits larceny, as defined
in section 53a-119, and . . . (2) the value of the property or service exceeds
two thousand dollars . . . .’’
3
Donald testified that he has been an electrician for Amtrak for thirteen
years. He stated that he has held an electrician’s license for approximately
twenty-five years and performs a wide variety of residential work in addition
to his regular employment.
4
Michalowski testified that he was informed that Cintron was involved
in the burglary as well. He was unable to obtain sufficient personal informa-
tion to seek a warrant for her arrest.
5
The defendant also argued that he was somewhere else at the time of
the crime and that Gallo, being unemployed, had a motive to steal the items
in question.
6
Practice Book § 42-19 provides: ‘‘After the close of evidence but before
arguments to the jury, the judicial authority shall, if requested, inform coun-
sel out of the presence of the jury of the substance of its proposed instruc-
tions. The charge conference shall be on the record or summarized on
the record.’’
7
‘‘[W]e . . . take this opportunity to remind trial courts that, although
off-the-record charge conferences are acceptable, if the trial court chooses
to conduct the charging conference off the record, it should take care to
accurately note the matters discussed in the conference once the parties
are back on the record, and the court should invite counsel’s acquiescence
with regard to those comments.’’ State v. Baptiste, supra, 302 Conn. 57–58.
8
In State v. Stewart, supra, 60 Conn. App. 309, the state unsuccessfully
‘‘attempted to rectify the record to reflect what it claimed was the defendant’s
in-chambers request that the court not give the no favorable inference
instruction.’’ This court reversed the judgment of the trial court because it
failed to give the mandatory instruction. Id., 309–10. In granting the state’s
petition for certification to appeal, our Supreme Court also ‘‘ordered that
the trial court articulate the facts concerning discussions, if any, among the
state’s attorney, defense counsel and the court during a charging conference,
relative to the court’s giving a ‘no unfavorable inference’ instruction to the
jury in this matter.’’ State v. Stewart, 255 Conn. 913, 763 A.2d 1039 (2000).
After receiving the articulation, our Supreme Court remanded the matter,
and this court concluded that the defendant waived the instruction during
an in-chambers conference. State v. Stewart, supra, 64 Conn. App. 343–
44, 354–55.
We note that in Stewart the record reflected that an in-chambers charge
conference had occurred, but the substance of the conference was unknown.
Our Supreme Court’s order granting the state’s petition for certification
referred to ‘‘discussions . . . during a charging conference . . . .’’ State v.
Stewart, supra, 255 Conn. 913. On the other hand, in the present case, it is
unknown whether the parties even engaged in a charge conference.
9
Donald explained that the ‘‘service’’ is the wiring that runs from the
electric meter into a house.
10
The defendant also stated that Lipsett would have testified ‘‘whether
or not [the defendant’s] car, a 2003 Toyota Corolla, with a 13.6 cubic foot
trunk, would be able to hold 689 feet of wiring at that weight along with
[miter] saws, chain saws, cases holding three different other types of saws,
drills, and . . . whatever . . . other items were taken.’’ Lipsett did not
testify that he was familiar with either the capacity of the trunk in a 2003
Toyota Corolla or the towing capacity of that vehicle, and, therefore, we
conclude that Lipsett’s testimony in this respect was properly precluded
because he had no expertise in these matters. Cf. Sullivan v. Metro-North
Commuter Railroad Co., 292 Conn. 150, 158, 971 A.2d 676 (2009) (witness
must be qualified to render expert opinion).