State v. Graham S.

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. GRAHAM S.*
(AC 34613)
Beach, Robinson and Flynn, Js.**
Argued December 2, 2013—officially released April 8, 2014
(Appeal from Superior Court, judicial district of
Waterbury, O’Keefe, J.)
Craig A. Sullivan, assigned counsel, for the appel-
lant (defendant).
Matthew A. Weiner, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Karen Diebolt, assistant state’s attorney,
for the appellee (state).
Opinion
FLYNN, J. The defendant, Graham S., appeals from
the judgment of conviction, rendered after a jury trial,
of burglary in the first degree in violation of General
Statutes § 53a-101 (a) (2), unlawful restraint in the first
degree in violation of General Statutes § 53a-95, assault
in the third degree in violation of General Statutes § 53a-
61 (a) (1), strangulation in the second degree in viola-
tion of General Statutes § 53a-64bb, and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1). On appeal, the defendant claims that the trial court
erred (1) by permitting the victim to make reference
to the defendant’s prior incarceration, in contravention
of its prior ruling on this matter and, additionally, by
not sua sponte declaring a mistrial after this testimony
was given; (2) in rendering a judgment of conviction
of unlawful restraint in the first degree, assault in the
third degree, and strangulation in the second degree,
in contravention of § 53a-64bb (b), and in violation of
the fifth and fourteenth amendments to the United
States constitution and article first, §§ 8 and 9, of the
Connecticut constitution; and (3) in improperly
instructing the jury on the requirement of a unanimous
verdict to convict of burglary in the first degree, strangu-
lation in the second degree, and risk of injury to a child.
We affirm in part and reverse in part the judgment of
the trial court.
The jury reasonably could have found the following
facts. The defendant and the victim had at one time
been romantically involved with each other and had a
daughter together. On March 18, 2011, the defendant
accompanied the victim and their daughter to the vic-
tim’s apartment. The defendant and his daughter played
together outside on the apartment’s porch while the
victim retired to her bedroom where she eventually fell
asleep. She next awoke to find the defendant in her
bedroom, yelling at her and calling her names. The
defendant’s rant ‘‘made no sense.’’ The victim asked
him if he had been drinking. After initially denying it,
the defendant admitted that he had been drinking. The
victim asked the defendant to leave, which he did. The
victim locked the door behind the defendant.
Approximately fifteen minutes after the defendant
left the apartment, he began banging on the locked
door. The victim asked the defendant to leave her and
their daughter alone, telling him that they were going
to sleep. Fifteen minutes later, the victim heard noises
coming from the bathroom area. When she got up to
investigate, she saw the defendant attempting to enter
her apartment through her bathroom window. Fearing
that she could not prevent the defendant from entering
her apartment, the victim returned to her bedroom,
where their daughter was sleeping, and locked the bed-
room door.
The defendant gained entrance and remained in the
apartment for thirty minutes. He became irate and, in
a drunken tirade, yelled at the victim and demanded
to see their daughter. Once the defendant had gained
entrance, the victim told him to leave them alone, but
she allowed him to sleep on her couch.
Eventually, the victim heard more banging coming
from her daughter’s bedroom, which was separated
from her bedroom by a wall. While lying in bed with
her daughter, she observed the defendant open her bed-
room window from outside. The defendant attempted
to enter the victim’s bedroom through this window. The
victim struggled to close and lock the window, but she
soon realized that she would be overpowered by the
defendant. At this point, the victim instructed her
daughter to ‘‘call 911.’’ Upon hearing this, the defendant
backed out of the window, reentered his daughter’s
room and then broke through the victim’s bedroom
door. As soon as he broke through the bedroom door
‘‘he said he’s not going back to jail.’’ The defendant
proceeded to choke the victim until she could no longer
breathe; she eventually lost consciousness and fell to
the floor.
The victim awoke to her daughter screaming ‘‘we
have to take mommy to the hospital.’’ The victim found
blood on her hands, which had come from her mouth.
The defendant became fearful that the victim would
report what had happened to the police and demanded
that she give him her telephone, which she refused to
do. The victim reassured the defendant that she would
not call the police; she asked him to leave them alone
and told him that they we going back to sleep. The
victim lay in bed with her daughter while the defendant
continuously paced in and out of her bedroom through-
out the night.
In the morning, the victim found the defendant asleep
on her living room couch. The victim drove the defen-
dant to his home in Meriden and then went directly to
her father’s home. The victim’s father called the police.
He then drove the victim to the hospital and then to
the Watertown police station. The defendant was
arrested thereafter.
Following a jury trial, the defendant was convicted
of the crimes charged in the substitute long form infor-
mation. The defendant was sentenced to twenty years
of incarceration, suspended after nine years, and five
years of probation for the conviction of burglary in the
first degree; nine years of incarceration for the convic-
tion of risk of injury to a child; five years of incarceration
for the conviction of strangulation in the second degree;
five years of incarceration for the conviction of unlawful
restraint in the first degree; and one year of incarcera-
tion for the conviction of assault in the third degree,
all to run concurrently, for a total effective sentence
of twenty years of incarceration, suspended after nine
years, and five years of probation. This appeal followed.
I
The defendant first claims that the court abused its
discretion by permitting a witness for the state to make
reference to his prior incarceration, in contravention
of the court’s earlier ruling that had limited reference
to the defendant’s prior convictions and uncharged acts
of prior misconduct. Specifically, he claims that the
court should not have overruled his objection to the
victims’ testimony that after the defendant broke into
her bedroom, he exclaimed that he was ‘‘not going back
to jail’’ before proceeding to attack her. He further
claims that the court should have, sua sponte, declared
a mistrial after this testimony was offered. We disagree.
Prior to the commencement of trial, the defendant
filed three motions seeking to prevent the state from
introducing into evidence acts of prior criminal activity
and uncharged misconduct on the part of the defendant.
After listening to argument from counsel, the court held
that the victim was precluded from ‘‘testify[ing] to other
crimes committed against her that are uncharged.’’
Applying a balancing test,1 the court stated that
‘‘uncharged misconduct on the part of the defendant
[is] not admissible because it’s more prejudicial than
probative.’’ The court also held that the state could not
make reference to the defendant’s prior convictions for
assault in the third degree and risk of injury to a child.
Significantly, however, the court did say that the victim
may ‘‘testify to what she saw or heard or did that day.’’
The court also stated that ‘‘[i]f [the victim] blurts out
inadmissible evidence after I’ve made a ruling, there
will be a mistrial.’’
During the state’s case-in-chief, the victim testified
that the defendant attempted to break into her apart-
ment through their daughter’s locked bedroom window;
that she struggled to keep him out; and that when she
realized that she would not be able to do so, she
instructed her daughter to call 911. The prosecutor and
the victim then had the following exchange:
‘‘[The Prosecutor]: And then what happened?
‘‘[The Victim]: As soon as I said, call 911, he went
back in through her window, out of her room, and that’s
when he pushed my door open. It was locked but he—
‘‘[The Prosecutor]: And pushing it open, what hap-
pened to the door?
‘‘[The Victim]: [It had] cracks in it.
‘‘[The Prosecutor]: And did he get through that door?
‘‘[The Victim]: Oh yeah.
‘‘[The Prosecutor]: And was he saying anything at
this time?
‘‘[The Victim]: As soon as he got through that door,
he said he’s not going back to jail.
‘‘[Defense Counsel]: Objection, Judge. Reference to—
‘‘[The Court]: Overruled.’’
The defendant contends that the court abused its
discretion by overruling his objection to the victim’s
testimony that immediately prior to the attack, the
defendant stated to her that he was ‘‘not going back to
jail.’’ He argues that this statement should not have been
allowed because its probative value was outweighed by
the danger of unfair prejudice, and, alternatively, that
the law of the case doctrine prohibited admission of
this testimony.2 The defendant further argues that the
court should have declared a mistrial once the victim
made the challenged statement. We reject the defen-
dant’s claims.
‘‘It is well established that this court affords great
deference to a trial court’s evidentiary rulings. . . .
[T]he trial court has broad discretion in ruling on the
admissibility . . . of evidence. . . . The trial court’s
ruling on evidentiary matters will be overturned only
upon a showing of a clear abuse of the court’s discre-
tion. . . . We will make every reasonable presumption
in favor of upholding the trial court’s ruling, and only
upset it for a manifest abuse of discretion. . . . More-
over, evidentiary rulings will be overturned on appeal
only where there was an abuse of discretion and a
showing by the defendant of substantial prejudice or
injustice.’’ (Citation omitted; internal quotation marks
omitted.) State v. Douglas F., 145 Conn. App. 238, 246,
73 A.3d 915, cert. denied, 310 Conn. 955, 81 A.3d 1181(2013). ‘‘We will make every reasonable presumption
in favor of upholding the trial court’s ruling . . . .’’
(Internal quotation marks omitted.) State v. Kerr, 120
Conn. App. 203, 214, 991 A.2d 605, cert. denied, 296
Conn. 907, 992 A.2d 1136 (2010).
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the [impropriety] was harmful. . . .
[T]he proper standard for determining whether an erro-
neous evidentiary ruling is harmless [is] . . . whether
the jury’s verdict was substantially swayed by the error.
State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006),
overruled in part on other grounds by State v. DeJesus,
288 Conn. 418, 455 n. 23, 953 A.2d 45 (2008) (en banc).
[A] nonconstitutional error is harmless when an appel-
late court has a fair assurance that the error did not
substantially affect the verdict. . . . Id. [W]hether [the
improper admission of a witness’ testimony] is harmless
in a particular case depends upon a number of factors,
such as the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must
examine the impact of the [improperly admitted] evi-
dence on the trier of fact and the result of the trial.’’
(Citation omitted; internal quotation marks omitted.)
State v. Kerr, supra, 120 Conn. App. 214.
We conclude that it was not improper for the court
to overrule the defendant’s objection to the victim’s
testimony that the defendant said he was ‘‘not going
back to jail.’’ This statement was consistent with the
court’s pretrial ruling that the victim may ‘‘testify to
what she saw or heard or did that day.’’ The victim’s
testimony was limited to reciting only what the defen-
dant said to her immediately prior to the strangulation.
The defendant’s statement was relevant for the permis-
sible purpose of showing the defendant’s motive in
strangling the victim, namely, to incapacitate her so that
she could not call for emergency and police assistance.3
Therefore, the court did not abuse its discretion in
admitting this evidence by overruling the defendant’s
objection. For the same reasons, the defendant has also
not shown that the court abused its wide discretion in
failing to declare a mistrial on its own motion.
II
The defendant next claims that the trial court erred
in rendering a judgment of conviction of unlawful
restraint in the first degree, assault in the third degree,
and strangulation in the second degree, in contraven-
tion of § 53a-64bb (b), and in violation of the fifth and
fourteenth amendments to the United States constitu-
tion and article first, §§ 8 and 9, of the Connecticut
constitution. The state concedes the defendant’s claim
of error under § 53a-64bb (b). We agree that, pursuant
to § 53a-64bb (b), it was error for the court to render
a judgment of conviction of all three of these crimes.
A
We adhere to Justice Brandeis’ principle of constitu-
tional avoidance. ‘‘[I]f a case can be decided on either
of two grounds, one involving a constitutional question,
the other a question of statutory construction or general
law, the Court will decide only the latter.’’ Ashwander
v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.
Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring);
see also State v. McCahill, 261 Conn. 492, 502, 811 A.2d
667 (2002). Because we are able to resolve the matter
before us on statutory grounds, we do not address the
defendant’s federal or state constitutional claims.
The claim presented is one of statutory construction,
over which this court applies plenary review. State v.
Adams, 308 Conn. 263, 269, 63 A.3d 934 (2013). ‘‘When
construing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply.’’ (Internal quotation marks omitted.) Id., 270.
Our analysis begins with the statutory text. General
Statutes § 53a-64bb (b) provides in pertinent part: ‘‘No
person shall be found guilty of strangulation in the
second degree and unlawful restraint or assault upon
the same incident, but such person may be charged
and prosecuted for all three offenses upon the same
information.’’ We interpret this statute to mean three
things. First, a person may not be convicted of strangu-
lation in the second degree and unlawful restraint, upon
the same incident. Second, a person may not be con-
victed of strangulation in the second degree and assault,
upon the same incident. Third and finally, a person may
not be convicted of strangulation in the second degree
and both unlawful restraint and assault, upon the same
incident. ‘‘In construction of statutes . . . courts are
often compelled to construe or as meaning and, and
again and as meaning or.’’ (Emphasis in original; inter-
nal quotation marks omitted.) United States v. Fisk, 70
U.S. (3 Wall.) 445, 447, 18 L. Ed. 243 (1865).
In the present case, the jury found the defendant
guilty of strangulation in the second degree, unlawful
restraint in the first degree, and assault in the third
degree; all three verdicts were based upon the same
incident. The court accepted this verdict, rendered a
judgment of conviction as to each charge, and sen-
tenced the defendant accordingly. The state and the
defendant are in agreement that, as a matter of law,
this was error. Cf. State v. Miranda, 142 Conn. App.
657, 664–65, 64 A.3d 1268 (convictions for first degree
unlawful restraint and second degree strangulation
upheld as involving separate and distinct incidents),
cert. granted, 310 Conn. 902, 75 A.3d 29 (2013).
In this case on appeal, both the state and the defen-
dant agree that the defendant could not be convicted
under the facts presented of strangulation in the second
degree, unlawful restraint in the first degree, and assault
in the third degree. All three were charged in the same
information and there was evidence that the defendant,
with the intent to prevent the victim from breathing or
restricting blood circulation, did impede her ability to
breathe because she passed out and blood circulation
was restricted, evidenced by blood in her mouth and
petechial hemorrhaging.
The defendant further contends that because ‘‘[t]here
is no language in the statutory prohibition that would
impute greater or lesser significance to [strangulation
in the second degree, unlawful restraint in the first
degree, and assault in the third degree]’’ this court is
without guidance to determine which of those convic-
tions for those crimes may stand, and which must fall,
pursuant to § 53a-64bb (b). We disagree. The statutory
structure suggests that the legislature, through § 53a-
64bb (b), intended to permit a conviction for strangula-
tion, assault or unlawful restraint—but not convictions
for all three when charged in the same information and
stemming from the same incident.
In its brief, the state concedes that the same act
served as the basis for the charges of strangulation,
assault, and unlawful restraint, because the prosecu-
tion’s closing argument at trial stated this. The enact-
ment of a later statute specifically addressing and
tailored to strangulation as a separate crime, and pro-
hibiting assault and unlawful restraint convictions, is
a strong indication to us that it is the strangulation
conviction which should be the one of the three convic-
tions that stands. Accordingly, the judgment of convic-
tion for unlawful restraint in the first degree and assault
in the third degree must be reversed.
B
The defendant and the state disagree, however, on
the appropriate remedy. The defendant argues that he
is entitled to a new trial, or, alternatively, a new sentenc-
ing proceeding. The state argues that a new sentencing
proceeding is unnecessary in light of the trial court’s
clear sentencing intent. Rather, the state urges this
court to remand the case to the trial court with instruc-
tions to vacate only the unlawful restraint in the first
degree and assault in the third degree convictions and
accompanying sentences. We agree with the state that
neither a new trial nor a new sentencing proceeding
is necessary.
Where a defendant is convicted of multiple crimes,
some of which are later determined to be invalid, only
the affected convictions must be vacated; the other
lawful convictions may be permitted to stand. State v.
Johnson, 137 Conn. App. 733, 757–58, 49 A.3d 1046,
cert. granted on other grounds, 307 Conn. 927, 55 A.3d
568 (2012), cert. granted, 308 Conn. 938, 66 A.3d 881(2013).
We have held that when some of a defendant’s con-
victions are reversed, and the trial court clearly
intended that a nonreversed conviction ‘‘control its sen-
tencing scheme,’’ remand for resentencing is not neces-
sary where reversing the improper convictions and
vacating the accompanying sentences will not frustrate
the trial court’s intent. State v. Dieudonne, 109 Conn.
App. 375, 378–79, 952 A.2d 69, cert. denied, 289 Conn.
924, 958 A.2d 154 (2008).4 We said in Dieudonne that
when a court’s intent is clear that a nonreversed convic-
tion should control its sentencing scheme, ‘‘we can dis-
cern no reason why the court should again be required
to exercise its sentencing discretion.’’ Id., 379; see also
State v. Martin M., 143 Conn. App. 140, 147–48, 70 A.3d
135 (remand remedy following reversal of conviction
unnecessary when it was clear that trial court did not
rely on reversed conviction when imposing sentence
and sentence imposed for reversed conviction was
served concurrently, thus having ‘‘essentially no puni-
tive effect’’), cert. denied, 309 Conn. 919, 70 A.3d 41(2013).
In the present case, it is evident that the court
intended that the defendant’s sentence for burglary in
the first degree be the controlling sentence. The court
sentenced the defendant to twenty years of incarcera-
tion, suspended after nine years, and five years of proba-
tion, for the burglary conviction. The defendant was
sentenced to shorter, concurrent sentences for his other
four convictions. The court specifically explained: ‘‘All
those sentences are concurrent with each other, the
effective sentence is twenty years suspended after nine,
[with] five years probation . . . .’’ It is evident from
the record, therefore, that the sentence imposed for
burglary was designed to be the controlling sentence.
As such, remanding the case for a new sentencing pro-
ceeding is unnecessary and would constitute a waste
of judicial resources.
III
Finally, the defendant claims that the court erred
in its instruction to the jury on the requirement of a
unanimous verdict.5 Specifically, the defendant claims
that given the alternative acts charged for each offense,
the trial court erred in failing to instruct the jury that
it must unanimously agree on the factual basis to find
the defendant guilty of burglary in the first degree, stran-
gulation in the second degree, and risk of injury to a
child. We disagree.
‘‘In State v. Famiglietti, 219 Conn. 605, 619–20, 595
A.2d 306 (1991), our Supreme Court set forth the appli-
cable principles governing specific unanimity charges:
[W]e have not required a specific unanimity charge to
be given in every case in which criminal liability may be
premised on the violation of one of several alternative
subsections of a statute. We have instead invoked a
multipartite test to review a trial court’s omission of
such an instruction. We first review the instruction that
was given to determine whether the trial court has
sanctioned a nonunanimous verdict. If such an instruc-
tion has not been given, that ends the matter. Even if
the instructions at trial can be read to have sanctioned
such a nonunanimous verdict, however, we will remand
for a new trial only if (1) there is a conceptual distinction
between the alternative acts with which the defendant
has been charged, and (2) the state has presented evi-
dence to support each alternative act with which the
defendant has been charged.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) State v. Brodia, 129 Conn.
App. 391, 402, 20 A.3d 726, cert. denied, 302 Conn. 913,
27 A.3d 373 (2011).
The defendant contends that the court’s instructions
were inadequate because they did not instruct the jury
that it had to unanimously agree on the factual basis
to find him guilty of burglary in the first degree, strangu-
lation in the second degree, and risk of injury to a child.
With respect to the charge for burglary, the defendant
contends that given the alternative evidence presented
at trial, the court erred by failing to the instruct the jury
that it ‘‘needed to be unanimous in deciding whether the
defendant either knowingly and unlawfully entered the
building or whether he, alternatively, knowingly and
unlawfully remained in the building.’’6 With respect to
the charge for strangulation, the defendant argues that
given the alternative evidence presented at trial, the
court erred by not instructing the jury that it ‘‘needed
to be unanimous in deciding [1] whether the defendant
either intended to impede [the victim’s] ability to
breathe, or, alternatively, intended to restrict her blood
circulation; and [2] whether the defendant either
impeded [the victim’s] ability to breathe, or alterna-
tively, restricted her blood circulation.’’7 Finally, with
respect to the charge of risk of injury to a child, again,
given the alternative evidence presented at trial, the
defendant claims error in that the court ‘‘failed to
instruct [the jury] that [it] also needed to be unanimous
in deciding whether the defendant either caused the
child to be placed in a situation inimical to the child’s
physical welfare, or alternatively, the defendant permit-
ted the child to be placed in a situation inimical to the
child’s physical welfare.’’8 We are not persuaded.
As was the case in Famiglietti, ‘‘the court’s . . .
final charge included a general unanimity instruction
but did not specifically relate this requirement to the
alternative elements [for each] of the [crimes] with
which the defendant has been charged.’’ State v. Famig-
lietti, supra, 219 Conn. 619. Moreover, our thorough
review of the court’s jury charge reveals a complete
absence of any language expressly sanctioning a non-
unanimous verdict, which is fatal to the defendant’s
claim on appeal. ‘‘With respect to the first prong of
Famiglietti, namely, whether the trial court’s jury
instructions have sanctioned a nonunanimous verdict,
it is well established that the absence of language
expressly sanctioning a nonunanimous verdict means
that the defendant has not met the first part of the
Famiglietti test. . . . Indeed, if the trial court did not
sanction a nonunanimous verdict we need not address
the other parts of the Famiglietti test.’’ (Emphasis in
original; internal quotation marks omitted.) State v.
Brodia, supra, 129 Conn. App. 403. Furthermore, the
court instructed the jury no less than seven times
throughout the course of the trial that its verdict must be
unanimous; including on all three charges the defendant
now claims were erroneous. Therefore, the defendant’s
claim fails as a matter of law.
The judgment is reversed with respect to the convic-
tions for unlawful restraint in the first degree and
assault in the third degree, and the case is remanded
with direction to vacate those convictions and the sen-
tences thereon. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The commentary to the Connecticut Code of Evidence § 4-5 (b) indicates:
‘‘For other crimes, wrongs or acts to be admissible, the court must determine
that the evidence is probative of one or more of the enumerated purposes
for which it is offered, and that its probative value is not outweighed by
the prejudicial effect.’’ See also State v. McPhee, 58 Conn. App. 501, 510,
755 A.2d 893, cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000).
2
The defendant also argues that when the court overruled his objection,
it went against its previous ruling, and, therefore, was in contravention of
the law of the case doctrine. The law of the case doctrine is a prudential
limitation which encourages the court to avoid contradicting a prior interloc-
utory ruling. See Dept. of Transportation v. White Oak Corp., 141 Conn.
App. 738, 764–65, 62 A.3d 599, cert. granted on other grounds, 309 Conn.
910, 69 A.3d 307 (2013). The state asserts that the doctrine is not applicable
in this type of situation. Because we conclude that the court’s ruling was
consistent with its prior rulings, we need not determine whether the law
of case doctrine could be applicable.
3
See Conn. Code Evid. § 4-5 (b).
4
Dieudonne relied on our Supreme Court’s decision in State v. Chicano,
216 Conn. 699, 714, 584 A.2d 424 (1990), cert. denied, 501 U.S. 1254, 111 S.
Ct. 2898, 115 L. Ed. 2d 1062 (1991), abrogated on other grounds, State v.
Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). We read Polanco to be confined
to the specific issue our Supreme Court addressed in that case, namely,
merger of convictions for greater and lesser included offenses. State v.
Polanco, supra, 248–49 and 248 n.3. In Polanco, relying principally on the
United States Supreme Court’s decision in Rutledge v. United States, 517
U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996), our Supreme Court held
that, ‘‘when a defendant is convicted of greater and lesser included offenses,
the trial court shall vacate the conviction for the lesser offense rather than
merging it with the conviction for the greater offense.’’ State v. Polanco,
supra, 260. None of the crimes at issue here are lesser included offenses.
Accordingly, we do not believe that Polanco or Rutledge vitiates our holding
in Dieudonne.
5
The defendant raises this unpreserved claim under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), which authorizes certain constitu-
tional claims to be made for the first time on appeal. The state does not
contest its reviewability, but maintains that the defendant’s claim fails as
a matter of law under State v. Famiglietti, 219 Conn. 605, 595 A.2d 306 (1991).
6
On the charge of burglary in the first degree, the court instructed the
jury: ‘‘The state must prove beyond a reasonable doubt that the defendant
(1) unlawfully entered or remained in a building; (2) that he had the intent
to commit a crime therein, and (3) that he intentionally inflicted a bodily
injury on the victim.’’
7
On the charge of strangulation in the second degree, the court instructed
the jury: ‘‘The state must prove beyond a reasonable doubt that (1) the
defendant restrained [the victim] by the neck or throat; (2) that he specifically
intended to impede [the victim’s] ability to breathe or to restrict her blood
circulation; [and] (3) that he impeded [the victim’s] ability to breathe or
restricted her blood circulation.’’
8
On the charge of risk injury to a child, the court instructed the jury:
‘‘The state must prove beyond a reasonable doubt that (1) the defendant
wilfully or unlawfully caused or permitted the minor to be placed in a
situation, (2) the situation endangered her health, and (3) the minor was
under sixteen years of age at the time.’’