STATE OF CONNECTICUT v. LUIS XAVIER SOTO

(AC 38612)

Alvord, Prescott and Mullins, Js.

Syllabus

The defendant, who was convicted after a jury trial of criminal possession

of a pistol and risk of injury to a child on the basis of evidence that

was discovered in the execution of a search warrant at his cousin’s

apartment, appealed to this court. The jury heard conflicting testimony

regarding whether the defendant owned the pistol that was seized from

the closet of the bedroom in which he had been staying. Police officers

who executed the search warrant testified that the defendant made

certain inculpatory statements. The defendant also testified, denying

that he owned the pistol and that he made any such inculpatory statements. The defendant filed a motion for a judgment of acquittal at the

close of the state’s case-in-chief, but did not file any postverdict motions.

On appeal, the defendant claimed that the jury’s verdict was against the

weight of evidence presented at trial. Held that this court declined to

review the defendant’s claim, raised for the first time on appeal, that

the evidence against him was so weak as to raise a substantial question

regarding the reliability of the verdict and that he was entitled to a new

trial, as the defendant failed to file a motion to set aside the verdict

and for a new trial after the jury returned its verdict and the defendant

failed to provide an adequate record to review his claim under State v.

Golding (213 Conn. 233); contrary to the defendant’s claim, filing a

motion for a judgment of acquittal at the close of the state’s case-inchief did not preserve for appellate review his challenge to the verdict

as against the weight of the evidence, and moreover, only the judge

who presided over the trial where the verdict was returned was legally

competent to decide whether that verdict was against the weight of the

evidence, and because the defendant here failed to file a postverdict

motion for a new trial, the trial court was not asked to reweigh the

jury’s credibility determinations or to make findings regarding the evidence and, consequently, this court could not determine from the record

whether the trial court abused its discretion because that court was

never called upon to exercise its discretion.

Argued April 19—officially released August 22, 2017

Procedural History

Substitute information charging the defendant with

the crimes of stealing a firearm, criminal possession of

a pistol, possession of narcotics within 1500 feet of a

school and risk of injury to a child, brought to the

Superior Court in the judicial district of Fairfield and

tried to the jury before Dennis, J.; verdict and judgment

of guilty of criminal possession of a pistol and risk of

injury to a child, from which the defendant appealed

to this court. Affirmed.

W. Theodore Koch III, assigned counsel, forthe appellant (defendant).

Linda F. Currie-Zeffiro, assistant state’s attorney,

with whom, on the brief, were Jonathan M. Sousa,

former special deputy assistant state’s attorney, John

C. Smriga, state’s attorney, and Nicholas J. Bove, Jr.,

senior assistant state’s attorney, forthe appellee (state).
Opinion

MULLINS, J. The defendant, Luis Xavier Soto, appeals

from the judgment of conviction rendered after a jury

trial of one count of criminal possession of a pistol in

violation of General Statutes § 53a-217c (a) (1) and one

count of risk of injury to a child in violation of General

Statutes § 53-21 (a) (1). The defendant’s sole claim on

appeal is that this court should remand the case for a

new trial because the jury’s verdict was against the

weight of the evidence. We decline to review the defendant’s claim because it is unpreserved and not entitled

to review under State v. Golding, 213 Conn. 233, 239–40,

567 A.2d 823 (1989). Accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On June 11, 2014, at approximately 5 a.m., police

officers with the Statewide Urban Violence Cooperative

Crime Control Task Force (task force) executed a

search warrant on the second floor apartment at 217

Hough Avenue in Bridgeport. The task force had

obtained the warrant on the basis of a confidential

informant’s tip that Francisco Pineiro, the defendant’s

cousin, was in possession of a black semiautomatic

handgun. When the task force officers applied for the

warrant, they believed that, in addition to Pineiro, Christina Jimenez and her two children resided at the

apartment.

Upon entering the apartment, task force officers

encountered Pineiro, Jimenez, two children aged ten

and five, and the defendant. Some of the task force

officers detained the apartment’s occupants in the

kitchen while other officers searched the apartment.

The apartment had three bedrooms, one of which eventually was determined to be the defendant’s. In the

closet of that bedroom, Detective David Edwards found

a leather backpack containing a bag of cocaine, three

loose .40 caliber rounds, and a semiautomatic pistol

that was fully loaded with twelve rounds. The task force

officers eventually determined that the pistol had been

stolen several years earlier. Edwards also found the

defendant’s state identification card on a television

stand in that bedroom and some clothes hanging in the

bedroom closet.

While being detained in the kitchen, the defendant

became aware that task force officers found a pistol in

the bedroom. At that point, Officer Ilidio Pereira, who

was detaining the apartment’s occupants in the kitchen,

overheard the defendant ask Pineiro in Spanish, ‘‘quie ́n

va a tomar,’’ which means ‘‘who’s going to take it.’’

After recovering the pistol, Edwards questioned

Pineiro, Jimenez, and the defendant about the pistol.

Both Pineiro and Jimenez denied possession and knowledge of the pistol. Additionally, Jimenez was ‘‘genuinely

concerned and shocked’’ about the pistol’s presence in
the apartment and ‘‘placed the blame’’ on the defendant

for the pistol. The defendant, who was a convicted

felon, stated that the pistol was not his, that he had

never seen it before, and that he did not know to whom

it belonged. The defendant did indicate, however, that

he was staying in that bedroom, that the clothes hanging

in the closet belonged to him, and that he had been ‘‘in

and out of the closet multiple times.’’

As a result of the search and questioning of the apartment’s occupants,task force officers arrested the defendant on several gun and drug offenses. The state

charged the defendant with stealing a firearm in violation of General Statutes § 53a-212 (a), criminal possession of a pistol in violation of § 53a-217c (a) (1),

possession of a controlled substance within 1500 feet

of a school in violation of General Statutes § 21a-279

(b), and risk of injury to a child in violation of § 53-21

(a) (1). The defendant elected a jury trial.

At trial, the state sought to establish that the defendant constructively possessed the pistol, ammunition,

and cocaine seized from Pineiro’s apartment. Specifically, it sought to link the defendant to those items with

statements he had made to Pineiro and to task force

officers at Pineiro’s apartment. The defendant’s statements were introduced through the testimony of several

task force officers who had participated in executing

the warrant at Pineiro’s apartment. In particular, those

officers testified that the defendant asked Pineiro

‘‘who’s going to take it’’ in reference to the pistol, that

he indicated that he was staying in the bedroom in

which the items were found, that he stated that the

clothes hanging in the closet belonged to him, and that

he admitted that he had been ‘‘in and out of the closet

multiple times.’’

In an effort to refute the officers’ testimony with his

own version of the events as to what had transpired at

Pineiro’s apartment, the defendant testified on his own

behalf. The defendant’s decision to do so rendered this

case, in large part, a credibility contest between the

defendant and the task force officers. The thrust of

the defendant’s testimony was a blanket denial of the

inculpatory statements the task force officers alleged

he had made, including his asking Pineiro ‘‘who’s going

to take it’’ with respect to the pistol that the officers

had discovered.

Furthermore, the defendant denied that the officers

asked him whether he had been staying in the bedroom

in which the pistol was found, whether the backpack

in which the pistol was stored belonged to him, whether

the cocaine stored in the backpack belonged to him,

and whether the clothes in the bedroom belonged to

him. According to the defendant, the only question the

officers asked him was if the gun belonged to him. The

defendant testified that, in response to that question,

he stated ‘‘that’s not my gun, I never saw it.’’
The jury found the defendant guilty of criminal possession of a pistol and risk of injury to a child, but

not guilty of stealing a firearm and possession of a

controlled substance within 1500 feet of a school. After

the jury returned its verdict, the defendant did not file

any postverdict motions challenging the verdict, such

as a motion for a judgment of acquittal,1 a motion to

set aside the verdict, or a motion for a new trial. The

court sentenced the defendant to twelve years incarceration, two years of which were mandatory. This

appeal followed.

The defendant’s sole claim on appeal is that this court

should order a new trial because the jury’s verdict was

against the weight of the evidence presented at trial.

He argues that the ‘‘[s]tate’s case against [him] was

inherently weak.’’ Specifically, the defendant contends

that the evidentiary basis supporting the state’s theory

of constructive possession was a ‘‘paltry foundation’’

because it essentially consisted of a single piece of

evidence—proof that the defendant had asked Pineiro

‘‘who’s going to take it’’ in reference to the pistol found

by police. At trial, the state had asked the jury to infer

from the defendant’s asking of that question that he

knew about the pistol’s presence and incriminating

nature.

The defendant argues that he undermined this ‘‘paltry

[evidentiary] foundation’’ by denying, during his testimony at trial, that he asked Pineiro ‘‘who’s going to

take it.’’ Furthermore, even if the jury believed that the

defendant asked Pineiro that question, the defendant

contends that the question is not necessarily inculpatory in nature. Thus, according to the defendant, ‘‘to

have a conviction rest on the foundation of four words

. . . [testified to] by a police officer and denied by a

defendant creates too great a risk of wrongful conviction.’’

The defendant also acknowledges that his failure to

move to set aside the verdict and for a new trial raises

an issue as to whether his claim is preserved and reviewable. The defendant argues, nevertheless, that his claim

is preserved because he filed a motion for a judgment

of acquittal at the close of the state’s case-in-chief. He

further argues in the alternative that even if his claim

is unpreserved, Golding review is appropriate.

The state’s principal response is that the defendant’s

claim is unpreserved and unreviewable because ‘‘the

defendant never moved to set aside the jury’s verdict.’’

In particular, it argues that a reviewing court cannot

consider an unpreserved weight of the evidence claim

because it has not had, like the trial court, ‘‘the same

opportunity as the jury to view the witnesses, to assess

their credibility and to determine the weight that should

be given to their evidence.’’ (Internal quotation marks

omitted.) Furthermore, the state contends that the
defendant is not entitled to Golding review because the

record is inadequate to review his claim in the absence

of any findings by the trial court.2 Because we agree

with the state that the defendant’s claim is unpreserved

and not entitled to Golding review, we decline to

review it.

We begin our analysis of the defendant’s claim with

a review of the legal principles governing claims challenging a verdict as against the weight of the evidence.

At the outset, we note that a challenge to the weight

of the evidence is not the same as a challenge to the

sufficiency of the evidence. A sufficiency claim ‘‘dispute[s] that the state presented sufficient evidence, if

found credible by the jury, to sustain [the defendant’s]

conviction.’’ State v. Hammond, 221 Conn. 264, 267,

604 A.2d 793 (1992), overruled on other grounds by

State v. Ortiz, 280 Conn. 686, 720 n.19 and 722 n.22,

911 A.2d 1055 (2006). In contrast, a weight claim ‘‘does

not contend that the state’s evidence . . . was insufficient, as a matter of law, to establish the defendant’s

guilt beyond a reasonable doubt. . . . Rather, [it]

asserts that the state’s case . . . was so flimsy as to

raise a substantial question regarding the reliability of

the verdict [and that there was a] serious danger that

[the defendant] was wrongly convicted.’’ (Footnotes

omitted.) State v. Griffin, 253 Conn. 195, 200, 749 A.2d

1192 (2000).

Sufficiency claims and weight claims also differ with

respect to the remedy they afford. ‘‘A reversal based

on the insufficiency of the evidence . . . means that

no rational factfinder could have voted to convict the

defendant.’’ Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct.

2211, 72 L. Ed. 2d 652 (1982). Thus, a defendant convicted on the basis of insufficient evidence is entitled

to a judgment of acquittal. State v. Calabrese, 279 Conn.

393, 401, 902 A.2d 1044 (2006). On the other hand, a

reversal based on the weight of the evidence ‘‘does not

mean that acquittal was the only proper verdict. . . .

[Such a] reversal . . . can occur only after the State

both has presented sufficient evidence to support [a]

conviction and has persuaded the jury to convict. [This

type of] reversal simply affords the defendant a second

opportunity to seek a favorable judgment.’’ Tibbs v.

Florida, supra, 42–43. Accordingly, ‘‘the proper remedy

for a successful challenge to a jury’s verdict on weight

of the evidence grounds is a new trial rather than a

judgment of acquittal . . . .’’ Sinchak v. Commissioner of Correction, 173 Conn. App. 352, 362,

A.3d (2017).

Given that these two types of claims raise fundamentally different issues, the inquiry appropriately undertaken by a court ruling on a sufficiency of the evidence

claim differs substantially from that of a court ruling

on a weight of the evidence claim. In reviewing the

sufficiency of the evidence, a court considers whether
there is a reasonable view of the evidence that would

support a guilty verdict. E.g., State v. Calabrese, supra,

279 Conn. 402 (‘‘[court] construe[s] the evidence in the

light most favorable to sustaining the verdict’’ [internal

quotation marks omitted]); see also State v. Gemmell,

151 Conn. App. 590, 612, 94 A.3d 1253 (trial court ruling

on motion for judgment of acquittal made pursuant

to Practice Book § 42-40 applies sufficiency standard),

cert. denied, 314 Conn. 915, 100 A.3d 405 (2014). In

doing so, the court does ‘‘not sit as a thirteenth juror

who may cast a vote against the verdict based upon

our feeling that some doubt of guilt is shown by the

cold printed record. . . . [It] cannot substitute its own

judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.’’ (Internal quotation

marks omitted.) State v. Morgan, 274 Conn. 790, 800,

877 A.2d 739 (2005). Thus, a court ‘‘will not reweigh

the evidence or resolve questions of credibility in

determining whetherthe evidence was sufficient.’’ State

v. Lekosky, 41 Conn. App. 746, 747, 677 A.2d 489 (1996).

In contrast, a court determining if the verdict is

against the weight of the evidence does precisely what

a court ruling on a sufficiency claim ought not to do.

That is, the court ‘‘must do just what every juror ought

to do in arriving at a verdict. The juror must use all

his experience, his knowledge of human nature, his

knowledge of human events, past and present, his

knowledge of the motives which influence and control

human action, and test the evidence in the case

according to such knowledge and render his verdict

accordingly. . . . The trial judge in considering the verdict must do the same . . . and if, in the exercise of

all his knowledge from this source, he finds the verdict

to be so clearly against the weight of the evidence in

the case as to indicate that the jury did not correctly

apply the law to the facts in evidence in the case, or

were governed by ignorance, prejudice, corruption or

partiality, then it is his duty to set aside that verdict

and to grant a new trial.’’ (Emphasis added; internal

quotation marks omitted.) Sinchak v. Commissioner

of Correction, supra, 173 Conn. App. 368–69. In other

words, the court specifically is required to act as a

‘‘thirteenth juror’’ because it must independently

‘‘assess [the] credibility [of witnesses]’’ and ‘‘determine

the weight that should be given to . . . evidence.’’

(Internal quotation marks omitted.) State v. Griffin,

supra, 253 Conn. 201–202.

Thus, because a court is required to independently

assess credibility and assign weight to evidence, a

weight of the evidence claim necessarily raises the issue

of which courts are competent to perform those tasks.

It is well settled that ‘‘only the judge who presided over

the trial where a challenged verdict was returned is

legally competent to decide if that verdict was against

the weight of the evidence . . . .’’ (Emphasis added.)

Sinchak v. Commissioner of Correction, supra, 173
Conn. App. 362. Consequently, ‘‘a judge in a later proceeding, such as a direct appeal or a habeas corpus

proceeding, is not legally competent to decide such a

claim on the basis of the cold printed record before it.’’

(Emphasis added.) Id. The rationale behind this rule is

sound: ‘‘[T]he trial court is uniquely situated to entertain

a motion to set aside a verdict as against the weight of

the evidence because, unlike an appellate court, the

trial [court] has had the same opportunity as the jury

to view the witnesses, to assess their credibility and

to determine the weight that should be given to their

evidence. . . . [T]he trial judge can gauge the tenor of

the trial, as [an appellate court], on the written record,

cannot, and can detect those factors, if any, that could

improperly have influenced the jury.’’ (Citations omitted; internal quotation marks omitted.) State v. Griffin,

supra, 253 Conn. 201–202; see also id., 202 (‘‘[o]nly the

trial judge [i]s in a position to evaluate . . . testimony,

along with the other relevant evidence, to make . . .

a determination [of whether the verdict is against the

weight of the evidence]’’).

The rule that the trial judge is the only authority

competent to rule upon weight claims has obvious

implications for appellate review of such claims. Our

Supreme Court previously has refused to review a claim

challenging the jury’s verdict as against the weight of

the evidence because it was made for the first time on

appeal. State v. Griffin, supra, 253 Conn. 202.

In reviewing the facts underlying Griffin, we note

that they are analogous to the present case in two

important ways. First, like the defendant in the present

case, the defendant in Griffin moved for a judgment

of acquittal after the state rested but did not file a

postverdict motion to set aside or motion for a new

trial. Id., 200 n.8. Second, the specific claim in Griffin

was that ‘‘the testimony of the state’s key witness . . .

was not believable’’; id., 202; and, therefore, like the

defendant’s claim in the present case, principally challenged the jury’s credibility determinations.

In declining to review the unpreserved weight claim

in Griffin, our Supreme Court stated that it could not

‘‘[o]n a cold record . . . meaningfully assess . . .

[the] credibility [of the state’s key witness] to determine

whether his testimony . . . was so unworthy of belief

as to warrant a conclusion that allowing the verdict to

stand would constitute a manifest injustice. . . . Only

the trial judge was in a position to evaluate [that] testimony, along with the other relevant evidence, to make

such a determination.’’3

(Citations omitted; emphasis

added.) Id.; see also Sinchak v. Commissioner of Correction, supra, 173 Conn. App. 364–72 (affirming habeas

court’s refusal to review procedurally defaulted claim

challenging weight of evidence because only trial court

is in position to determine if verdict was against weight

of evidence).
Because an appellate court cannot make an initial

ruling on a weight of the evidence claim, appellate

review of such a claim is greatly circumscribed. ‘‘Appellate review of a trial court’s decision granting or denying

a motion for a new trial must take into account the trial

judge’s superior opportunity to assess the proceedings

over which he or she has personally presided.’’ State

v. Hammond, supra, 221 Conn. 269. Therefore, ‘‘[t]he

proper appellate standard of review when considering

the action of a trial court granting or denying a motion

to set aside a verdict and a motion for a new trial is

the abuse of discretion standard. . . . In determining

whether there has been an abuse of discretion, every

reasonable presumption should be given in favor of the

correctness of the court’s ruling. . . . Reversal is

required only where an abuse of discretion is manifest

or where injustice appears to have been done. . . . We

do not . . . determine whether a conclusion different

from the one reached could have been reached. . . .

A verdict must stand if it is one that a jury reasonably

could have returned and the trial court has accepted.’’

(Citation omitted; internal quotation marks omitted.)

State v. Fred C., 167 Conn. App. 600, 606, 142 A.3d 1258,

cert. denied, 323 Conn. 921, 150 A.3d 1150 (2016).

Thus, if asked to review the trial court’s ruling on a

weight of the evidence claim presented to it, an appellate court is notto independently make credibility determinations or assign weight to evidence. Furthermore,

our task is not to assess the jury’s credibility determinations and assignment of weight to evidence. Rather, our

task is to review, for an abuse of discretion, the trial

court’s assessment of the jury’s credibility determinations and assignment of weight to evidence. See, e.g.,

State v. Scott C., 120 Conn. App. 26, 40, 990 A.2d 1252

(‘‘[When reviewing a weight claim predicated on credibility determinations, the] issue presented to us . . .

is whether we should reverse the [trial] court’s finding

that the jury reasonably could have credited [the challenged] testimony. . . . [We must decide whether to]

reverse the trial court’s assessment [of the jury’s credibility determinations].’’ [Emphasis added.]), cert.

denied, 297 Conn. 913, 995 A.2d 956 (2010).

Having set forth the relevant law, we now turn to the

defendant’s claim that the verdict is against the weight

of the evidence. In addition to arguing the claim’s merits, the defendant also contends that the claim is preserved and reviewable. We disagree in light of our

Supreme Court’s decision in Griffin, which we conclude controls the present case. See State v. Griffin,

supra, 253 Conn. 201–202. Griffin teaches that a defendant cannot obtain appellate review of his weight of the

evidence claim unless it was preserved at trial. Under

Griffin, moving for a judgment of acquittal at the close

of the state’s case-in-chief does not preserve a weight

claim. Accordingly, we conclude that the defendant’s
filing of a motion for a judgment of acquittal4 did not

preserve his claim.

Notwithstanding our Supreme Court’s holding in

Griffin that unpreserved weight of the evidence claims

are unreviewable, the defendant cites three cases that

purportedly permit our review of such claims. We are

unpersuaded by the defendant’s reliance on these cases.

The defendant first contends that State v. Avcollie,

178 Conn. 450, 423 A.2d 118 (1979), cert. denied, 444

U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), stands

for the proposition that we can review, for error, the

trial court’s failure to sua sponte set aside the verdict.

In particular, he relies on certain language from Avcollie

in isolation, namely, the court’s remark that the ‘‘trial

court has inherent power to set aside the verdict, even

though no motion has been made.’’ (Internal quotation

marks omitted.) Id., 455. When read as a whole, however, Avcollie does not support the defendant’s position

because it did not involve an unpreserved weight of

the evidence claim. Id., 454–55. Rather, it involved a

sufficiency claim that was raised at trial in a motion

to set aside the verdict. Id., 454–55, 459; see also id.,

471 n.5 (‘‘the sole issue in this appeal was whether the

evidence before the jury was sufficient to support [its]

verdict’’ [emphasis added]).

The second case on which the defendant relies is

State v. Franklin, 162 Conn. App. 78, 129 A.3d 770

(2015), cert. denied, 321 Conn. 905, 138 A.3d 281 (2016).

On appeal to this court, the defendant in Franklin presented separate sufficiency and weight claims that were

‘‘substantively identical’’ because they both revolved

around whether the jury should have believed a particular witness. Id., 81, 93–94. We first rejected the sufficiency claim on its merits, concluding that we could

not second-guess the jury’s credibility determinations.

Id., 85–87. Turning to the weight of the evidence claim,

we noted that, although ‘‘the defendant did not preserve

this [claim] by moving for a new trial’’; id., 93; he

requested Golding review. Id. We apparently assumed,

without deciding, that the defendant’s weight claim satisfied Golding’s reviewability prongs. Id. Then, we

noted that ‘‘we [were] aware of no reason that prohibited the jury from crediting [the witness’s] testimony.’’

Id., 94. Therefore, we simply rejected the weight claim

on the same grounds that we rejected the sufficiency

claim, namely, that we on appeal declined to second

guess the credibility determination made by the jury.

Id., 93–94.

We do not read Franklin as requiring us to review

an unpreserved claim challenging a verdict as against

the weight of the evidence, nor does it foreclose our

consideration of whether the reviewability prongs of

Golding can be satisfied when such a claim is made.

Rather, Franklin presented a unique situation where

‘‘substantively identical’’ weight and sufficiency claims
were made. In avoiding adjudicating the issue of

whether Golding review was appropriate, we simply

resolved the defendant’s claim by relying on our analysis of the defendant’s sufficiency claim. The sufficiency

claim, like the weight claim, essentially amounted to

no more than an attack on the jury’s credibility determinations, and we cannot second-guess such credibility

determinations when reviewing either type of claim.

State v. Carlos C., 165 Conn. App. 195, 200, 138 A.3d

1090, cert. denied, 322 Conn. 906, 140 A.3d 977 (2016);

State v. Scott C., supra, 120 Conn. App. 40.

The third case on which the defendant relies is Tibbs

v. Florida, supra, 457 U.S. 31. In Tibbs, a state appellate

court set aside a verdict after performing its own

reweighing of the evidence and reassessment of credibility. Id., 35–39, 42–43, 46–47. Tibbs is inapposite

because a state rule of practice required the appellate

court to perform its own reweighing of the evidence in

any appeal in which the defendant had been sentenced

to death. Id., 36 n.8 (rule provided that‘‘[u]pon an appeal

from the judgment by a defendant who has been sentenced to death the appellate court shall review the

evidence to determine if the interests of justice require

a new trial’’ [emphasis added]). The parties have not

identified any comparable rule of practice that requires

or permits this state’s appellate courts to perform such

a review.

Our analysis does not end with concluding that the

defendant’s claim is unpreserved because the defendant

also requests Golding review. As previously explained,

although Griffin stands for the proposition that unpreserved weight of the evidence claims are unreviewable,

Griffin did not address Golding’s applicability to such

claims. The defendant argues that his claim satisfies all

four Golding prongs, and the state counters that his

claim fails Golding’s first two prongs, which concern

reviewability. See, e.g., State v. Gordon, 69 Conn. App.

691, 695, 796 A.2d 1238 (2002). We agree with the state

that the defendant’s claim is not entitled to Golding

review because it fails Golding’s first prong.

‘‘Under Golding, as modified in In re Yasiel R., 317

Conn. 773, 781, 120 A.3d 1188 (2015), a defendant can

prevail on a claim of constitutional error not preserved

at trial only if all of the conditions 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 fairtrial; and (4)if subjectto harmless

error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a

reasonable doubt.’’ (Internal quotation marks omitted.)

State v. Mitchell, 170 Conn. App. 317, 322, 154 A.3d 528,

cert. denied, 325 Conn. 902, 157 A.3d 1146 (2017). ‘‘The

first two prongs of Golding address the reviewability
of the claim, and the last two involve the merits of the

claim.’’ State v. Gordon, supra, 69 Conn. App. 695.

‘‘[T]he inability to meet any one prong requires a

determination that the defendant’s claim must fail.’’

State v. Ricketts, 37 Conn. App. 749, 761, 659 A.2d 188,

cert. denied, 234 Conn. 913, 660 A.2d 355, cert. denied,

516 U.S. 977, 116 S. Ct. 481, 133 L. Ed. 2d. 409 (1995).

‘‘The appellate tribunal is free, therefore, to respond to

the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.’’

(Internal quotation marks omitted.) State v. Gordon,

supra, 69 Conn. App. 695.

Turning to the application of Golding’s first prong to

the present case, we conclude that the defendant has

not provided a record that is adequate to review his

claim challenging the verdict as against the weight of

the evidence.

We have explained throughout this opinion that the

defining characteristic of a weight claim is that ‘‘only

the judge who presided overthe trial where a challenged

verdict was returned is legally competent to decide if

that verdict was against the weight of the evidence

. . . . [A court] in a later proceeding, such as a direct

appeal or a habeas corpus proceeding, is not legally

competent to decide such a claim on the basis of the

cold printed record before it.’’ Sinchak v. Commissioner of Correction, supra, 173 Conn. App. 362.

A weight claim predicated on a challenge to the jury’s

credibility determinations, which is the type of claim

the defendant presents in this appeal, requires the trial

court to make its own assessment of the jury’s credibility determinations. See State v. Griffin, supra, 253

Conn. 201–202. In other words, it is called upon to act

as a ‘‘thirteenth juror’’ and ‘‘do just what every juror

ought to do in arriving at a verdict.’’ (Emphasis added;

internal quotation marks omitted.) Sinchak v. Commissioner of Correction, supra, 173 Conn. App. 368.

Accordingly, when an appellate court reviews this type

of claim, ‘‘[t]he issue presented to [it] . . . is whether

[it] should reverse the [trial] court’s finding that the

jury reasonably could have credited [the challenged]

testimony. . . . [It must decide whether to] reverse the

trial court’s assessment [of the jury’s credibility determinations].’’ (Emphasis added.) State v. Scott C., supra,

120 Conn. App. 39–40.

In the present case, the defendant never asked the

trial court to set aside the verdict on the ground that it

was against the weight of the evidence. The defendant’s

appellate claim challenging the jury’s credibility determinations was never ruled upon by the trial court and,

therefore, is presented to this court for the first time

on appeal. Given that the trial court is the only authority

competent to assess the jury’s credibility determinations, we cannot, on appeal, stand in its stead and make
such an intricate assessment ourselves on the cold

printed record alone.

Indeed, the scope of our review is limited to evaluating, for an abuse of discretion, the trial court’s findings

regarding its assessment of the jury’s credibility determinations. Since those findings were not made in the

present case, there is nothing for us to review, and we

are without a basis for determining whether the trial

court abused a discretion that it was never called upon

to exercise. See, e.g., State v. Padua, 73 Conn. App.

386, 413, 808 A.2d 361 (2002)(‘‘Had the issue been raised

properly by motion, the trial court could have been

alerted to what this defendant has raised for the first

time on appeal. . . . If in fact the trial court acted upon

a motion presented to it, it could have articulated the

reasons why it so denied the relief sought. . . . [Thus]

there is no adequate record for review nor is there a

basis for determining that there was an abuse of a

discretion which the court was never called upon to

exercise.’’), rev’d in part on other grounds, 273 Conn.

138, 869 A.2d 192 (2005); see also State v. Brunetti, 279

Conn. 39, 63, 901 A.2d 1 (2006) (‘‘[This court’s] role is

not to guess at possibilities . . . but to review claims

based on a complete factual record developed by a

trial court. . . . Without the necessary factual and legal

conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims]

would be entirely speculative.’’ [Internal quotation

marks omitted.]), cert. denied, 549 U.S. 1212, 127 S. Ct.

1328, 167 L. Ed. 2d 85 (2007).

Accordingly, we conclude that the defendant’s unpreserved claim is not entitled to Golding review because

the record is inadequate for review.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant did move for a judgment of acquittal after the state had

rested. He did not, however, renew that motion after the jury returned

its verdict.

2 The state also argues that the defendant’s claim challenging the verdict

as against the weight of the evidence also fails under Golding’s second

prong because it is not of constitutional magnitude. Because we conclude

that the record is inadequate, we need not reach this issue.

3 The parties in Griffin did not brief the issue of whether an unpreserved

claim challenging a verdict as against the weight of evidence is reviewable

under Golding. Thus, the court in Griffin had no occasion to address the

applicability of Golding to such a claim.

4 Our Supreme Court has noted that a defendant properly preserves a

claim challenging the verdict as against the weight of the evidence by raising

it in ‘‘a motion to set aside the verdict as against the weight of the evidence.’’

State v. Griffin, supra, 253 Conn. 201–202. This court has noted that such

a claim is preserved by raising it in a motion for a new trial made pursuant

to Practice Book § 42-53. State v. Franklin, 162 Conn. App. 78, 93, 129 A.3d

770 (2015), cert. denied, 321 Conn. 905, 138 A.3d 281 (2016). We do not

believe this difference in nomenclature is consequential for purposes of

preservation. See, e.g., State v. Taylor, 196 Conn. 225, 228 n.3, 492 A.2d 155

(1985) (‘‘Practice Book § [42-53] . . . replace[d] the motion to set aside a

verdict with a motion for a new trial’’); State v. Henton, 50 Conn. App. 521,

523 n.1, 720 A.2d 517 (‘‘[a]lthough the defendant entitled [his motion] a

motion to set aside the verdict, the trial court treated it as a motion for

a new trial pursuant to Practice Book § 42-53’’ [internal quotation marks
omitted]), cert. denied, 247 Conn. 945, 723 A.2d 322 (1998). In any event,

the defendant’s claim in the present case is not preserved because it was

not raised in either a motion to set aside or a motion for a new trial.