*********************************************** 

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. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears 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 reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
STATE OF CONNECTICUT v. JAMES A.*

(SC 20453)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Kahn, Ecker and Keller, Js.

Syllabus

Convicted of sexual assault in the first degree, sexual assault in the second

degree, risk of injury to a child, strangulation in the first degree, threatening in the second degree, and disorderly conduct in four cases that were

joined for trial, the defendant appealed to this court. The two cases

involving the sexual assault, risk of injury, and strangulation charges

arose from the defendant’s sexual abuse of J and L, the daughters of

the defendant’s then girlfriend, D, and his choking of J to the point

of unconsciousness on one occasion. The threatening and disorderly

conduct charges in the other two cases arose from the defendant’s

conduct in connection with two incidents that occurred soon after he

and D were married. During the wedding after-party, D’s eldest daughter,

S, accused the defendant of sexually abusing J and called him a ‘‘pedophile son of a bitch.’’ In response to S’s accusation, the defendant became

extremely agitated and threatened to decapitate S, D, and other family

members if any charges were brought against him, grappled with S’s

father, A, who had intervened to protect S, punched a hole in the wall,

flipped over a table, shattering a chandelier in the process, and thereafter

screamed at the remaining guests. Thereafter, S, J, L, and other family

members departed for A’s house. The following night, after J disclosed

the defendant’s sexual abuse and her allegations were reported to the

police, the defendant arrived at A’s house and peered into the living

room where J and L were sleeping. D’s father, M, and A confronted the

defendant with their guns drawn and ordered him to leave the premises.

The defendant proceeded to taunt M and then threw an open can of

beer and charged at M. M shot the defendant, and the police arrived

shortly thereafter. The defendant was charged in separate informations

with threatening in the second degree, in connection with his conduct

at the after-party, and with disorderly conduct, in connection with his

conduct at A’s house. The state moved to consolidate the four cases

for trial. Although the defendant did not object to the consolidation of

the two sexual assault cases, he filed a motion to sever, arguing that

the threatening and disorderly conduct cases should be tried separately

from the sexual assault cases. The trial court nevertheless granted the

state’s motion to consolidate and denied the defendant’s motion to

sever, concluding that the evidence in the sexual assault cases and the

threatening and disorderly conduct cases was cross admissible and that,

under State v. Boscarino (204 Conn. 714), joinder would not be unduly

prejudicial to the defendant. The trial court also granted the defendant’s

pretrial motion in limine, barring the state from inquiring about the

defendant’s prior felony record. During the prosecutor’s direct examination of M, however, M testified that, at the wedding after-party, the

defendant yelled that he was not going back to jail. The court struck

that testimony and gave a curative instruction, but it denied defense

counsel’s request, as a remedy for M’s improper disclosure, that the

defendant be allowed to testify about the nonsexual nature of his prior

felony convictions without opening the door to being asked on crossexamination about the name or nature of those felonies. The defendant

ultimately opted not to testify. On the defendant’s appeal from the

judgment of conviction, held:

1. The defendant could not prevail on his claim that the trial court had

abused its discretion when it joined the defendant’s sexual assault cases

and his threatening and disorderly conduct cases for trial, as the evidence

in each case was cross admissible in the other cases:

a. This court clarified the procedures involved in the trial court’s determination of whether joinder is proper:

The trial court first must consider whether, in the event of separate

trials, evidence relating to each of the cases would have been admissible
in the other, which requires consideration of whether the evidence in

each of the cases is relevant in the other case or cases and, if the evidence

is relevant, whether admission of the evidence relating to each of the

cases would be more probative than prejudicial in the other case or cases.

If the court determines that the evidence in each case is relevant in the

other case or cases and that its admission would be more probative than

prejudicial, the evidence is cross admissible, and the cases may be joined;

if the court determines that the evidence in one case is relevant to the

other case or cases but that its admission would be more prejudicial

than probative, the evidence is not cross admissible, and the cases may

not be joined.

If the court determines that the evidence in one case is not relevant in

the other case or cases, it must determine whether joinder of the cases

would be unduly prejudicial by applying the factors set forth in Boscarino, including whether the charges involve discrete, easily distinguishable factual scenarios, whether the crimes were of a violent nature or

concerned brutal or shocking conduct, and the duration and complexity

of the trial if the cases were to be joined.

b. There was no merit to the defendant’s contention that, for evidence

to be cross admissible, all evidence from each case must be fully admissible in each of the other cases:

The defendant’s claim regarding the proper standard for joinder was

inconsistent with this court’s well established joinder jurisprudence,

which holds that cross admissibility is not defeated by virtue of the fact

that evidence may be admitted only for a limited purpose in one of the

cases to be joined and that the state must prove either that the evidence

in the cases is cross admissible or that joinder will not unfairly prejudice

the defendant pursuant to the Boscarino factors.

Moreover, requiring full, bilateral and actual cross admissibility would

defeat the benefits of judicial economy and providing context for the

trier that are afforded by joinder.

c. The trial court did not abuse its discretion in determining that evidence

of the conduct that gave rise to the charges in the threatening and

disorderly conduct cases was admissible in the sexual assault cases:

The evidence in the threatening and disorderly conduct cases was relevant in the sexual assault cases, as the defendant’s violent reaction to

S’s accusation of sexual abuse at the after-party, which underlay the

threatening and disorderly conduct charges, tended to establish that he

was intent on preventing the victims from disclosing the allegations

of sexual abuse to the authorities, which, in turn, demonstrated his

consciousness of guilt and tended to make it more probable that he

had committed the sexual abuse, and the defendant’s reaction to the

accusations also tended to explain why J and L would have been afraid

of the defendant and, in turn, delayed their disclosure of the defendant’s

sexual abuse.

Moreover, the evidence in the threatening and disorderly conduct cases

was more probative than prejudicial in the sexual assault cases, and,

although the trial court improperly applied the Boscarino undue prejudice analysis, which applies only when the trial court has determined

that the evidence in one case would be irrelevant in the other case or

cases, rather than the ordinary more prejudicial than probative evidentiary analysis in determining whether the evidence was cross admissible,

that error was harmless insofar as those analyses are substantially

similar.

The trial court reasonably determined that the defendant would not be

unduly prejudiced by the admission of the evidence in the threatening

and disorderly conduct cases in the sexual assault cases, especially given

the shocking and brutal nature of the sexual assault charges, and this

court rejected the defendant’s contention that he was substantially prejudiced by joinder insofar as he was represented by different attorneys

with respect to the sexual assault cases and the threatening and disorderly conduct cases, the ten count information made it more likely that

the jury would draw negative conclusions about the defendant and his

guilt, and joinder made it more likely that a witness would disclose that

he previously had been incarcerated, in violation of the trial court’s
ruling prohibiting the admission of such evidence.

d. The trial court did not abuse its discretion in determining that evidence

of the conduct that gave rise to the charges in the sexual assault cases

was cross admissible in the threatening and disorderly conduct cases:

With respect to the threatening charge, the evidence pertaining to the

charges in the sexual assault cases was relevant to whether the defendant

intended to terrorize other persons when he threatened to decapitate S,

D, and other family members because, without knowing whether S’s

accusation that the defendant was a ‘‘pedophile son of a bitch’’ had any

basis in fact, the jury would have been unable to determine whether his

enraged response was a drunken expression of momentary indignation

and outrage at being falsely accused or, instead, revealed his consciousness of guilt and an intent to terrorize the targets of, and those who

heard, the threats to keep them from reporting the sexual abuse to the

police, and it was also relevant to whether the targets of the threats and

others would interpret them as a genuine threat of violence or, instead,

as drunken bluster.

With respect to the disorderly conduct charge, the evidence pertaining

to the charges in the sexual assault cases was relevant to whether the

defendant was aware of and consciously disregarded the risk that he

would cause inconvenience, annoyance, or alarm when he went to A’s

house to confront A’s family and threw a can of beer and charged at M,

and whether that conduct was genuinely threatening.

Moreover, although the sexual assault cases involved conduct that was

more brutal and shocking than that involved in the threatening and

disorderly conduct cases, the disparity between the cases was not so

great that the evidence relating to the sexual assault cases was more

prejudicial than probative in the threatening and disorderly conduct

cases, especially given the trial court’s finding that the cases were interwoven and the highly probative nature of the evidence.

Furthermore, even if the evidence relating to the sexual assault cases

was inadmissible in the threatening and disorderly conduct cases because

it was more prejudicial than probative, the joinder of the cases was

harmless in view of the record, as the defendant failed to establish that

the joinder substantially affected the verdict.

2. This court declined to review the defendant’s claim that the trial court

improperly had denied his request to testify about the nonsexual nature

of his prior felony convictions without being subject to cross-examination about the specific nature of those convictions, the record having

been inadequate for review of that claim:

Nothing in the record indicated the reason for the defendant’s ultimate

decision not to testify, and it was possible that he would have decided

not to testify, even if the trial court had barred the prosecutor from

asking the defendant on cross-examination about the specific nature of

his prior convictions.

Moreover, nothing in the record indicated whether the defendant

intended to testify only that his prior convictions were of a nonsexual

nature or, instead, that he intended to testify concerning the lack of guilt

on the charges he was facing, and, without knowing what the defendant

intended to testify about, this court could not determine whether the

testimony that the prosecutor intended to elicit on cross-examination

would have been relevant to the defendant’s veracity.

(Two justices concurring separately and one justice

concurring in part separately)

Argued March 25—officially released December 19, 2022*

Procedural History

Two part substitute information, in four consolidated

cases, charging the defendant, in the first part, with

three counts each of the crimes of sexual assault in the

first degree and risk of injury to a child, and with one

count each of the crimes of sexual assault in the second

degree, strangulation in the first degree, threatening in
the second degree and disorderly conduct, and, in the

second part, with being a persistent dangerous felony

offender, brought to the Superior Court in the judicial

district of Waterbury, where the first part of the information was tried to the jury before Klatt, J.; verdicts

of guilty; thereafter, the defendant was presented to

the court, Klatt, J., on a plea of guilty to the second

part of the information; judgments of guilty in accordance with the verdicts and plea, from which the defendant appealed to this court. Affirmed.

Lisa J. Steele, assigned counsel, for the appellant

(defendant).

Rocco A. Chiarenza, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Amy L. Sedensky and Don E. Therkildsen,

Jr., senior assistant state’s attorneys, for the appellee

(state).
Opinion

KELLER, J. The primary issue before us in this appeal

is whether the trial court properly joined for trial, pursuant to Practice Book § 41-19,1

sexual assault, risk of

injury to a child, and strangulation charges with threatening and disorderly conduct charges. The defendant,

James A., appeals2

from the judgments of conviction,

rendered after a jury trial, of one count of threatening

in the second degree in violation of General Statutes

§ 53a-62 (a) (2) (A), three counts of sexual assault in

the first degree in violation of General Statutes § 53a70 (a) (2), one count of sexual assault in the second

degree in violation of General Statutes § 53a-71 (a) (1),

three counts of risk of injury to a child in violation of

General Statutes § 53-21 (a) (2), one count of strangulation in the first degree in violation of General Statutes

§ 53a-64aa (a) (1) (B), and one count of disorderly conduct in violation of General Statutes § 53a-182 (a) (1).

On appeal, the defendant claims that the trial court

abused its discretion when it (1) joined for trial his

sexual assault, risk of injury to a child, and strangulation

charges with his threatening and disorderly conduct

charges, and (2) denied his request, as a remedy for

the disclosure of his prior incarceration by one of the

state’s witnesses, that he be allowed to testify about

the nonsexual nature of his prior felony convictions

without opening the door to being asked on cross-examination about the nature of those convictions. We reject

the defendant’s claims and, accordingly, affirm the judgments of the trial court.

The jury reasonably could have found the following

facts. The defendant began a relationship with D sometime around 2011. D was the mother of S, who was

born in 1996, J, who was born in 2003, L, who was born

in 2006, and V, who was born in 2016. In 2014, the

defendant, D, J, and L moved into a basement apartment

in Naugatuck. The apartment was small, and they

shared it with D’s brother, his girlfriend, and their three

children. The five children shared one bedroom. J testified that the first time the defendant sexually assaulted

her was in this apartment during the summer before she

entered the sixth grade. While the adults were outside

smoking and the other children were in a different

room, the defendant came into the room where J was

reading to kiss her goodnight. He then took down her

blanket, pulled down her pajama pants and underwear,

and put his tongue in her vagina.

Later that year, the defendant purchased a five bedroom home in Naugatuck, into which he moved with

D, S, J, L, and D’s father, M. J testified about three

incidents of sexual abuse that occurred at the Naugatuck home. During the first incident, J was watching a

movie with L and the defendant, when he asked her to

come lie down with him. At this point, J’s buttocks

were against the defendant’s penis. The defendant put
a blanket over J and himself and then put his hand in

J’s pants and inserted his finger into her vagina. J testified that she felt the defendant’s penis become erect

during the incident. J asked the defendant to stop in a

whispered tone so that L, who was also on the couch,

would not see or hear what was happening.

During the second incident, the defendant and J were

sitting in the dining room of the house. The defendant

pulled J onto him and started kissing her neck. When

J stood up, the defendant stood up as well, slid his hand

into her underwear, and digitally penetrated her vagina

while holding her arms down and grabbing her chest.

After a couple of minutes passed, J pushed the defendant off and ran to a nearby cul-de-sac to meet a friend.

Several hours later, J returned home, and the defendant

apologized. He also told J not to tell D what had happened ‘‘because he bought the house for [them] and . . .

fed [them] and . . . made [her] mom happy.’’ J did not

tell D what had happened because she was afraid of

the defendant.

During the third incident, the defendant entered J’s

room while she was video chatting with a friend on her

computer. The defendant pulled down J’s pants and

licked her anus. J stopped her conversation and flipped

her computer upward to prevent her friend from seeing

what the defendant was doing. After the defendant left

the room, J locked her door and did not mention the

incident to her friend. At some point, J disclosed to S

the sexual abuse by the defendant.

In addition to the sexual abuse, J also testified that

the defendant had strangled her to the point of unconsciousness on multiple occasions. On one occasion, the

defendant, without warning, started choking her with

L present in the room. When L noticed that J could not

breathe, L jumped on the defendant’s back, but J still

lost consciousness temporarily. When J regained consciousness, the defendant shook her and said: ‘‘[D]on’t

tell your mom. It was an accident. I didn’t know you

were going to pass out.’’

The defendant also sexually assaulted L. On one occasion, when L was in the fourth or fifth grade, the defendant entered her bedroom where she was playing with

dolls. He attempted to close the door but was unable

to do so because its hinge was broken. The defendant

then pulled L’s pants and underwear down to her knees

and put his tongue on her vagina. At this point, D entered

the room, saw the defendant with his face near L’s

naked buttocks, and began to hit and scream at the

defendant. It appeared to D that the defendant was

‘‘blowing farts’’ in L’s buttocks. L testified that she knew

the defendant’s actions were ‘‘inappropriate,’’ but she

‘‘was scared of him.’’

On August 4, 2018, the defendant and D were married

and hosted a wedding after-party at the Naugatuck
home. Shortly after midnight, the defendant and D had

an altercation. S, upset by the altercation, approached

the defendant, accused him of touching J inappropriately, and called him a ‘‘pedophile son of a bitch.’’ S

testified that the defendant responded to her comment

with ‘‘[e]xtreme anger and extreme violence.’’ The

defendant charged at S after stating: ‘‘If any charges are

brought against me, I will cut your fucking head off

. . . .’’ (Internal quotation marks omitted.) The defendant also threatened S’s father, A, D’s sister, K, M, and

D. While making these threats, the defendant grappled

with A, who had stepped in to protect S from the defendant, smashed several framed pictures that were on the

wall in the corridor next to his bedroom, and punched

a hole in the wall. The defendant also flipped over a

heavy wooden dining room table, shattering the glasses

that had been on it and the chandelier hanging above

it. While engaged in this conduct, the defendant screamed

at the wedding guests, who were still present in the

house, to ‘‘[g]et the fuck’’ out. (Internal quotation marks

omitted.) J, who was in her bedroom with a friend,

heard S and the defendant screaming and the flipping

of the table. The ruckus was so loud that it was heard

by neighbors, who reported it to the police.

Immediately after the defendant made the threats

against S and the others, S rushed to J’s bedroom and

informed her that she had told the defendant about J’s

disclosures of sexual abuse. In response, J was ‘‘terrified, hysterical [and] crying,’’ and stated, ‘‘[h]e’s going

to kill me. I told on him.’’ (Internal quotation marks

omitted.) At some point, both J and L left the house

and were brought to A’s van. As J approached the van,

she saw the defendant, panicked, and ran back to her

bedroom, where she hid in a closet. Her uncles found

her there and brought her to the van a second time. At

that point, the defendant, who had been ‘‘yelling at

people’’ in the driveway, ordered L to get out of the

van. She refused.

The police eventually arrived in response to the noise

complaint and spoke to several people, including M,

who told them that the defendant ran off into the woods

when they arrived. After a short time, the police left,

and A, K, J, L, and S left in the van and went to A’s house.

S, J, and L remained at A’s house the day after the

wedding. M, D, and V arrived at some point, and J told

D at that time about the defendant’s sexual abuse of

her. A notified the Naugatuck police about the sexual

abuse allegations, and they came to the house to investigate. The police then made unsuccessful attempts to

locate the defendant. Believing that the defendant

would come to the house to carry out his threats, the

adults there made a plan that M and A would arm

themselves and stay outside, and, if the defendant showed

up, they would give a signal, and S, D, and K would

‘‘grab the children and . . . go into the basement.’’
At approximately 11 p.m., A observed a car slowly

drive down his secluded, dead-end street and stop in

the middle of the road. A walked down the driveway

to investigate, and the car then began to move toward

the dead end and turned around. As A walked back up

the driveway, he saw the defendant emerge from behind

a bush, walk onto the front porch of the house, and peer

into the living room, where J, L, and V were sleeping

on the couch. A drew a handgun and stated, ‘‘James

is that you?’’ (Internal quotation marks omitted.) This

caused M to walk toward the front of the house. The

defendant acknowledged his identity, and A ordered

him to leave and shouted the secret word to trigger

everyone inside the house to get to the basement and

to call the police. The children were ‘‘hysterical’’ and

‘‘crying,’’ and cowered under a utility sink while covering their ears. J called the police.

Meanwhile, A told the defendant that the police were

looking for him, and he responded, ‘‘I know. For what?’’

(Internal quotation marks omitted.) The defendant further stated that he was not going to leave. At that point,

both A and M had their guns pointed at the defendant,

and A told the defendant, ‘‘[y]ou got another gun on

you, so just get down,’’ and said that the police were

on their way. (Internal quotation marks omitted.) The

defendant then began to act ‘‘crazy.’’ He looked at M

and said, ‘‘How did I do ‘em? Did I do ‘em like this?’’

while ‘‘humping the air.’’ (Internal quotation marks

omitted.) He then threw an open beer can that he was

holding at M and charged at him. M shot the defendant

once when the defendant was four to six feet away

from him. M then walked up the driveway, placed the

gun on the top of a car, and waited for the police to

arrive, knowing that they had already been called. The

Naugatuck and Prospect police arrived at the scene

shortly thereafter.3 At that point, everyone at the house

was ‘‘extremely relieved that [they] were safe [and] that

[they] knew where [the defendant] was [and] . . . that

he couldn’t come and try to hurt [them].’’

The state subsequently charged the defendant with

disorderly conduct in connection with the altercation

with A and M on the day after the wedding. The state

also charged the defendant in a separate information

with threatening in the second degree in connection

with his conduct at the after-party at the Naugatuck

house. With respect to his conduct toward J and L, the

state charged the defendant, in two separate informations, with three counts of sexual assault in the first degree,

one count of sexual assault in the second degree, three

counts of risk of injury to a child, and one count of

strangulation in the first degree.

Prior to trial, the state moved to consolidate the four

cases for trial, and the defendant responded by filing

a motion to sever. The defendant did not object to the

consolidation of the sexual assault cases4

involving J
and L but argued that the threatening and disorderly

conduct cases should be severed and tried separately

from the sexual assault cases. The trial court granted

the state’s motion to consolidate and denied the defendant’s motion to sever, determining that the state had

met its burden of establishing by a preponderance of

the evidence that the evidence in the sexual assault

cases and the threatening and disorderly conduct cases

was cross admissible. The trial court also determined

that, under State v. Boscarino, 204 Conn. 714, 722–24,

529 A.2d 1260 (1987), joinder would not be unduly prejudicial to the defendant.5

The cases were tried to a jury. During its jury charge,

the trial court instructed the jury to consider each of the

ten charged counts separately during its deliberations.6

The jury found the defendant guilty on all counts. Thereafter, the defendant pleaded guilty to a part B information charging him with being a persistent dangerous

felony offender, and the trial court imposed a total

effective sentence of fifty years of incarceration, execution suspended after thirty-five years, followed by

twenty years of probation.7 This direct appeal followed.

Additional facts will be set forth as necessary.

On appeal, the defendant claims that the trial court

abused its discretion when it (1) joined the sexual

assault cases with the threatening and disorderly conduct cases for trial, and (2) denied the defendant’s

request for permission to testify that his prior felony

convictions were nonsexual in nature, without being

subject to cross-examination by the state as to the

nature of those prior convictions, as a remedy for the

inadvertent disclosure of the defendant’s prior incarceration by a state’s witness. We address each claim in turn.

I

We begin with the defendant’s claim that the trial

court abused its discretion when it joined the sexual

assault cases and the threatening and disorderly conduct cases for trial. The defendant contends that, for

evidence to be cross admissible for purposes of our

joinder jurisprudence, all evidence from each case must

be fully admissible in every other case. The defendant

also contends that, under State v. Boscarino, supra, 204

Conn. 722–24; see footnote 5 of this opinion; he was

substantially prejudiced by the joinder as a result of

(1) the shocking and brutal nature of the sexual assault

charges, (2) issues concerning trial strategy and jury

selection occasioned by his having a public defender

representing him with respect to the sexual assault

cases and private counsel representing him with respect

to the threatening and disorderly conduct cases, (3) the

adverse effect that having to consider and deliberate

on a ten count information may have had on the jury,

and (4) the increased chance that the multiplicity of

witnesses in the consolidated cases would result in

the inadvertent disclosure of his felony record, which
indeed happened during M’s testimony.

In response, the state contends that the trial court

did not abuse its discretion in determining that the

evidence underlying the sexual assault cases and the

threatening and disorderly conduct cases was cross

admissible because the defendant’s threats and conduct

in response to the accusation of sexual abuse were

relevant and probative to establish his consciousness

of guilt with respect to the sexual assault charges, and

the evidence of the sexual assaults established a motive

for his threats and disorderly conduct. The state also

contends, in the alternative, that none of the Boscarino

factors is present here because each case involved discrete, easily distinguishable factual scenarios, and none

of the cases was so shocking and brutal that any prejudice could not be cured by the court’s instructions to

the jury. Finally, the state contends that, even if the

trial court abused its discretion in joining the cases,

any error was harmless because it did not substantially

sway the jury’s verdict. We conclude that the trial court

properly joined the cases.

We begin with a review of the governing legal principles. ‘‘[The] General Statutes and rules of practice

expressly authorize a trial court to order a defendant

to be tried jointly on charges arising from separate

cases.’’ (Internal quotation marks omitted.) State v.

Rivera, 260 Conn. 486, 490, 798 A.2d 958 (2002); see

General Statutes § 54-57; Practice Book § 41-19. ‘‘[I]n

State v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012),

and State v. Payne, 303 Conn. 538, 544–50, 34 A.3d

370 (2012) . . . we rejected the notion of a blanket

presumption in favor of joinder and clarified that, when

charges are brought in separate informations, and the

state seeks to join those informations for trial, the state

bears the burden of proving that the defendant will

not be substantially prejudiced by joinder pursuant to

Practice Book § 41-19. [See footnote 1 of this opinion.]

The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence

in the cases is cross admissible or that the defendant

will not be unfairly prejudiced pursuant to the factors

set forth in State v. Boscarino, [supra, 204 Conn. 722–24]

. . . . Although the state bears the burden of proof in

the trial court, [i]t is the defendant’s burden on appeal to

show that joinder was improper by proving substantial

prejudice that could not be cured by the trial court’s

instructions to the jury . . . . As we emphasized in

LaFleur, our appellate standard of review remains

intact. Accordingly, [i]n deciding whether to [join informations] for trial, the trial court enjoys broad discretion,

which, in the absence of manifest abuse, an appellate

court may not disturb.’’8

(Citations omitted; emphasis

added; footnotes omitted; internal quotation marks

omitted.) State v. Devon D., 321 Conn. 656, 664–65, 138

A.3d 849 (2016).
‘‘A long line of cases establishes that the paramount

concern is whether the defendant’s right to a fair trial

will be impaired. Therefore, in considering whether

joinder is proper, this court has recognized that, [when]

evidence of one incident would be admissible at the

trial of the other incident, separate trials would provide

the defendant no significant benefit. . . . Under such

circumstances, the defendant would not ordinarily be

substantially prejudiced by joinder of the offenses for

a single trial. . . . Accordingly, we have found joinder

to be proper [when] the evidence of other crimes or

uncharged misconduct [was] cross admissible at separate trials. . . . [When] evidence is cross admissible,

therefore, our inquiry ends.’’ (Citations omitted; internal

quotation marks omitted.) State v. LaFleur, supra, 307

Conn. 155; see Leconte v. Commissioner of Correction,

207 Conn. App. 306, 327, 262 A.3d 140 (‘‘[I]t is well

established that [when] the evidence in one case is

cross admissible at the trial of another case, the defendant will not be substantially prejudiced by joinder.

. . . Our case law is clear that a court considering joinder need not apply the Boscarino factors if evidence

in the cases is cross admissible.’’ (Internal quotation

marks omitted.)), cert. denied, 340 Conn. 902, 263 A.3d

387 (2021). To be cross admissible, the evidence must

be both relevant and more probative than prejudicial.

See Conn. Code Evid. § 4-3 (‘‘[r]elevant evidence may

be excluded if its probative value is outweighed by the

danger of unfair prejudice or surprise, confusion of the

issues, or misleading the jury, or by considerations of

undue delay, waste of time or needless presentation of

cumulative evidence’’); see also State v. Campbell, 328

Conn. 444, 522, 180 A.3d 882 (2018) (‘‘[f]or prior misconduct evidence to be admissible, it must not only be

relevant and material, but also more probative than prejudicial’’).

Before addressing the merits of the defendant’s claim,

we address his claim that, under the foregoing principles, full cross admissibility for joinder purposes means

that every intimate detail necessary to prosecute each

charge must be admissible in each case. He asks us

to ‘‘reject any suggestion that partial or unidirectional

admissibility is sufficient to join cases’’ because, in such

a circumstance, separate trials would provide a significant benefit to the defendant. See State v. LaFleur,

supra, 307 Conn. 155 (‘‘[when] evidence of one incident

would be admissible at the trial of the other incident,

separate trials could provide the defendant no significant benefit’’ (internal quotation marks omitted)). The

defendant contends that the cases should not be joined

if (1) evidence in one case is admissible in the other

case only for a limited purpose, or (2) the evidence

presented at one of the trials would not be fully admissible at another. We disagree. With respect to the defendant’s first contention, our case law establishes that

the fact that evidence that may be admitted only for a
limited purpose in one of the cases to be joined does

not defeat a finding of cross admissibility for purposes

of joinder. See, e.g., State v. Crenshaw, 313 Conn. 69,

86–88, 95 A.3d 1113 (2014) (establishing cross admissibility by concluding that evidence of assault and first

degree kidnapping charges in first case would be admissible as to murder charge in second case to establish

intent and that evidence of murder and second degree

kidnapping charges in second case would be admissible

as to first degree kidnapping charge in first case to

establish motive and intent).

With respect to the defendant’s contention that the

evidence in both cases must be fully cross admissible

before the cases may be joined, that contention is inconsistent with our well established jurisprudence holding

that the state must prove ‘‘either that the evidence in

the cases is cross admissible or that the defendant will

not be unfairly prejudiced [by joinder] pursuant to the

[Boscarino] factors . . . .’’ (Emphasis added; internal

quotation marks omitted.) State v. Devon D., supra, 321

Conn. 664–65. The defendant’s proposed standard also

conflicts with the principle that, ‘‘in making the discretionary, pretrial decision to join multiple cases, [the

trial court] rules on whether the evidence could be

admissible, not whether the evidence actually is admitted.’’ (Emphasis in original.) State v. Crenshaw, supra,

313 Conn. 89. ‘‘Because the decision to join two cases

occurs prior to the introduction of evidence, the trial

court must make its decision on the basis of potential

admissibility rather than what actually transpires at

trial. It would not make sense for a reviewing court to

overturn the trial court’s discretionary, pretrial decision

to consolidate solely on the ground that the parties did

not ultimately introduce the evidence at trial.’’ Id. Thus,

under Crenshaw, cases may be joined for trial, even if

it is possible that no cross admissible evidence will

actually be admitted. Indeed, requiring the state to

establish full, bilateral and actual cross admissibility

would defeat the benefits of judicial economy and context for the trier that are afforded by joinder.

Having rejected the defendant’s claim related to the

proper standard for joinder, we turn to the questions of

whether the evidence in the threatening and disorderly

conduct cases was admissible in the sexual assault

cases, and vice versa. We begin with the question of

whether the evidence in the threatening and disorderly

conduct cases was admissible in the sexual assault

cases. Although evidence of other crimes is generally

‘‘inadmissible to prove the bad character, propensity,

or criminal tendencies’’ of the defendant; Conn. Code

Evid. § 4-5 (a); it is admissible for nonpropensity purposes, ‘‘such as to show intent, an element [of] the

crime, identity, malice, motive or a system of criminal

activity,’’ if its probative value outweighs its prejudicial

effect. (Emphasis added; internal quotation marks omitted.) State v. Anderson, 318 Conn. 680, 693, 122 A.3d
254 (2015); see also Conn. Code Evid. § 4-5 (c); State

v. James G., 268 Conn. 382, 390, 844 A.2d 810 (2004)

(‘‘[s]uch evidence is admissible if: (1) it is relevant and

material to at least one of the circumstances encompassed by the exceptions; and (2) its probative value

outweighs its prejudicial effect’’). We conclude that the

trial court reasonably could have concluded that the

defendant’s violent reaction to the accusation of sexual

abuse, which underlay the threatening and disorderly

conduct charges, tended to establish that he was intent

on preventing the victims from disclosing the allegations of sexual abuse to the authorities. In turn, this

intent showed consciousness of guilt and tended to

make it more probable that he committed the sexual

abuse. See State v. Walker, 214 Conn. 122, 129, 571 A.2d

686 (1990) (‘‘evidence of threats against witnesses is

generally admissible either on the theory that such conduct is inconsistent with the defendant’s claim of innocence or on the theory that the making of such threats

evinces a consciousness of guilt’’); see also State v.

Edwards, 325 Conn. 97, 141, 156 A.3d 506 (2017) (‘‘[i]t

is well established that ‘[i]n a criminal trial, it is relevant

to show the conduct of an accused, as well as any

statement made by him subsequent to the alleged criminal act, which may fairly be inferred to have been

influenced by the criminal act’ ’’ (emphasis added)).

We also agree with the state’s argument that the defendant’s violent reaction to the accusation would be relevant to explain why J and L would have been afraid of

the defendant and, in turn, their delayed disclosure of

the defendant’s sexual abuse to D and the authorities.

See, e.g., State v. Daniel M., 210 Conn. App. 819, 825,

271 A.3d 719 (evidence of domestic violence witnessed

by sexual assault victim was probative of her credibility

because it provided explanation for delayed disclosure), cert. denied, 343 Conn. 906, 273 A.3d 234 (2022).

We conclude, therefore, that the evidence in the threatening and disorderly conduct cases also was relevant

in the sexual assault cases.9

We also conclude that the evidence in the threatening

and disorderly conduct cases was more probative than

prejudicial in the sexual assault cases. See, e.g., State

v. Hill, 307 Conn. 689, 698, 59 A.3d 196 (2013) (‘‘evidence

is admissible to prove consciousness of guilt if, first, it

is relevant, and second, its probative value outweighs

its prejudicial effect’’); see also State v. James G., supra,

268 Conn. 395 (‘‘a reviewing court must be able to infer

from the entire record that the trial court considered the

prejudicial effect of the evidence against its probative

nature before making a ruling’’ (emphasis omitted;

internal quotation marks omitted)). ‘‘[T]he test for

determining whether evidence is unduly prejudicial is

not whether it is damaging to the [party against whom

the evidence is offered] but whether it will improperly

arouse the emotions of the jur[ors].’’ (Internal quotation

marks omitted.) State v. Best, 337 Conn. 312, 322–23,
253 A.3d 458 (2020).

Before addressing the merits of the defendant’s claim

that he was prejudiced by the joinder of the cases,

because there appears to be some confusion on this

issue, we take this opportunity to clarify the procedures

for a trial court’s determination of whether joinder is

proper. To make this determination, the trial court must

first consider whether, ‘‘in the event of separate trials,

evidence relating to each of the cases would have been

admissible in the other.’’ State v. Greene, 209 Conn. 458,

464, 551 A.2d 1231 (1988). Thus, the court must consider

(1) whether the evidence in each of the cases is relevant

in the other case, and (2) if the evidence is relevant,

whether admission of the evidence relating to each of

the cases would be more probative than prejudicial in

the other case. See Conn. Code Evid. § 4-3 (relevant

evidence may be excluded if its probative value is outweighed by its prejudicial effect). If the court determines that the evidence in each case is relevant in the

other case and its admission would be more probative

than prejudicial, the evidence is cross admissible, and

the cases may be joined. See State v. LaFleur, supra,

307 Conn. 155 (‘‘[when] evidence is cross admissible

. . . our inquiry ends’’); Leconte v. Commissioner of

Correction, supra, 207 Conn. App. 327 (‘‘[o]ur case law

is clear that a court considering joinder need not apply

the Boscarino factors if evidence in the cases is cross

admissible’’ (internal quotation marks omitted)). If the

evidence in one case is relevant to the other case, but

its admission would be more prejudicial than probative,

then the evidence is not cross admissible and the cases

may not be joined. There is no need for the trial court to

determine whether joinder would be prejudicial under

Boscarino because the court has already determined

that admission of the evidence would be prejudicial

under ordinary evidentiary principles. If the court determines that the evidence in one case is not relevant

in the other case, then the trial court must determine

whether joinder of the cases would be prejudicial by

applying the Boscarino factors. Thus, it is only when

the trial court has determined that the evidence in one

case would be irrelevant in the other case that Boscarino comes into play.

In the present case, the trial court determined that,

although the evidence in the threatening and disorderly

cases showed that the defendant had engaged in violent

conduct, the conduct was not so brutal and shocking

that it would unduly prejudice the defendant.10 Specifically, the court determined that the evidence in the

threatening and disorderly conduct cases was relevant

in the sexual assault cases and then determined that

admission of the evidence in the sexual assault cases

would not be unduly prejudicial under Boscarino. As we

explained, the court should have applied the ordinary

‘‘more prejudicial than probative’’ evidentiary analysis

to determine whether the evidence was cross admissi-
ble, not the Boscarino undue prejudice analysis. Because

those analyses are substantially similar, however, we

conclude that this error was harmless. Compare Conn.

Code Evid. § 4-3 (‘‘[r]elevant evidence may be excluded

if its probative value is outweighed by the danger of

unfair prejudice or surprise, confusion of the issues, or

misleading the jury, or by considerations of undue

delay, waste of time or needless presentation of cumulative evidence’’) with State v. Boscarino, supra, 204

Conn. 722–24 (to determine whether joinder of cases

in which evidence is not cross admissible would cause

undue prejudice, trial court must consider (1) whether

charges involve discrete, easily distinguishable factual

scenarios, (2) whether crimes were of violent nature

or concerned brutal or shocking conduct on defendant’s

part, and (3) duration and complexity of trial). We further conclude that the trial court’s conclusion that the

defendant would not be prejudiced by the admission of

the evidence in the threatening and disorderly conduct

cases in the sexual assault cases was reasonable. This

is especially so given the shocking and brutal nature

of the sexual assault charges. Cf. State v. Dillard, 132

Conn. App. 414, 426, 31 A.3d 880 (2011) (‘‘[t]his court

consistently has declined to conclude that the admission of evidence was unduly prejudicial when the prior

acts of misconduct were substantially less shocking

than the crimes charged’’), cert. denied, 303 Conn. 932,

36 A.3d 694 (2012).

The defendant also contends that he was prejudiced

by the joinder because he was represented by different

attorneys with respect to the sexual assault cases and

the threatening and disorderly conduct cases, and joining the cases deprived them of their ‘‘ability to each

make tactical decisions about jury selection, crossexamination, and argument that would benefit [the

defendant] in the [cases] each was retained for.’’ The

trial court rejected this contention, concluding that

each attorney would be required to take into account

the existence of the cases in which he was not representing the defendant when making tactical decisions,

regardless of whether the cases were joined. We agree

with the trial court and, therefore, reject the defendant’s contention.

The defendant further contends that, even if the substance of the evidence in the threatening and disorderly

conduct cases was not unduly prejudicial, the ten count

information by itself made it more likely that the jury

would draw negative conclusions about the defendant

and his guilt. We disagree. Without the misdemeanor

threatening and disorderly conduct charges, the charges

in the sexual assault cases accounted for eight of the

ten counts of the information. Further, the trial court

instructed the jury that the evidence must be considered

separately as to each element in each count and that

each count was a separate entity requiring separate consideration.
Finally, the defendant contends that he was prejudiced by the joinder of the threatening and disorderly

conduct cases with the sexual assault cases because

joinder made it more likely that a witness would disclose that he previously had been incarcerated in violation of the trial court’s ruling prohibiting the admission

of such evidence, which actually occurred during M’s

testimony.11 Again, we disagree. In the absence of strong

evidence to the contrary, we cannot conclude that the

trial court must foresee that a witness will, either intentionally or inadvertently, violate the court’s rulings on

the admissibility of evidence when determining whether

joinder is appropriate. Accordingly, we conclude that

the trial court did not abuse its discretion in determining

that evidence of the conduct that gave rise to the

charges in the threatening and disorderly conduct cases

would be admissible in the sexual assault cases.

The question remains whether the trial court correctly determined that evidence of the conduct that

gave rise to the charges in the sexual assault cases

was cross admissible in the threatening and disorderly

conduct cases. The state contends that evidence that

the defendant sexually assaulted J and L established

the requisite intent in the threatening case, namely, that

the defendant threatened to commit a ‘‘crime of violence with the intent to terrorize another person . . . .’’

General Statutes § 53a-62 (a) (2) (A). Specifically, the

state contends that the evidence would tend to establish

the defendant’s motivation for making threats and to

rebut any claim that the defendant was engaged in

‘‘mere puffery.’’ The state further contends that evidence in the sexual assault cases was relevant to establish the elements of disorderly conduct pursuant to

§ 53a-182 (a) (1) because it explained why M and A

were patrolling outside A’s house and why the defendant went there, which, in turn, tended to show that

the defendant’s violent and tumultuous conduct was

intended to cause inconvenience, annoyance, or alarm.

We agree with the state.

Understanding the elements of the crimes of threatening in the second degree and disorderly conduct is

essential to determining whether the evidence in the

sexual assault cases was admissible to prove the charges

in the threatening and disorderly conduct cases. To

prove that a defendant is guilty of threatening in the

second degree, the state is required to establish beyond

a reasonable doubt that the defendant ‘‘threaten[ed] to

commit any crime of violence with the intent to terrorize

another person . . . .’’ General Statutes § 53a-62 (a)

(2) (A). To meet this standard, ‘‘the state [is] required

to present evidence demonstrating that a reasonable

listener, familiar with the entire factual context of the

defendant’s statements, would be highly likely to interpret them as communicating a genuine threat of violence . . . .’’ (Internal quotation marks omitted.) State
v. Pelella, 327 Conn. 1, 18, 170 A.3d 647 (2017). This

‘‘factual context’’ includes the specific language used

by the defendant, the parties’ prior relationship, and the

immediate circumstances surrounding the defendant’s

statement. See id., 20–21. Whether the speaker had a

history of making threats toward the person threatened

or had a history of abusing the victim also is relevant

to the determination as to how the victim would interpret the speech. See State v. Krijger, 313 Conn. 434,

457, 97 A.3d 946 (2014) (citing cases).

For purposes of § 53a-62 (a) (2) (A), a threat ‘‘need

not be unconditional . . . . [Rather] a threat may still

be a true threat even if it is presented in conditional

terms such that the listener can escape from physical

violence by fulfilling certain demands or directives.’’

(Citation omitted.) State v. Pelella, 327 Conn. 16 n.15.

In addition, the threat of violence need not be directed

at the same person that the defendant intends to terrorize. For example, the statement, ‘‘if you report me to

the police, I’ll kill your family,’’ may be encompassed by

the statute. (Emphasis added; internal quotation marks

omitted.) Id., 16.

With respect to the crime of disorderly conduct,

§ 53a-182 provides in relevant part: ‘‘(a) A person is

guilty of disorderly conduct when, with intent to cause

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting

or in violent, tumultuous or threatening behavior

. . . .’’ Thus, ‘‘the crime of disorderly conduct consists

of two elements: (1) that the defendant intended to

cause, or recklessly created a risk of causing, inconvenience, annoyance or alarm and (2) that he did so by

engaging in fighting or in violent, tumultuous or threatening behavior . . . .’’ (Internal quotation marks omitted.) State v. Parnoff, 160 Conn. App. 270, 276, 125 A.3d

573 (2015), aff’d, 329 Conn. 386, 186 A.3d 640 (2018).

In the present case, the defendant was charged with

recklessly creating a risk of causing inconvenience,

annoyance, or alarm by engaging in a prohibited form

of conduct.

With this background in mind, we turn to the question

of whether the evidence pertaining to the charges in

the sexual assault cases was admissible to prove the

threatening and disorderly conduct charges. We conclude that it was. With respect to the threatening charge,

the evidence was relevant to the question of whether

the defendant intended to terrorize other persons when

he threatened to decapitate S, M, A, D, and K. Without

knowing whether S’s accusation that the defendant was

a ‘‘pedophile son of a bitch’’ had any basis in fact, the

jury would be unable to determine whether his enraged

response was a drunken expression of momentary

indignation and outrage at being falsely accused or,

instead, revealed consciousness of guilt and an intent

to terrorize the targets of the threats—and others who
heard or later learned of them, including J and L—to

keep them from reporting the sexual abuse to the police.

The evidence was also relevant to the question of

whether the persons at whom the threats were directed

and others would interpret them as a genuine threat of

violence or, instead, as drunken bluster. See, e.g., State

v. Pelella, supra, 327 Conn. 18 (jury should consider ‘‘the

entire factual context of the defendant’s [threatening]

statements’’ (emphasis added; internal quotation marks

omitted)); id. (to find defendant guilty of threatening,

jury must find ‘‘that a reasonable listener . . . would

be highly likely to interpret [the defendant’s speech] as

communicating a genuine threat of violence’’ (internal

quotation marks omitted)); see also State v. Krijger,

supra, 313 Conn. 457 (whether speaker had history of

abusing victim is relevant to determination as to how

victim would interpret threatening speech). Similarly,

with respect to the disorderly conduct charge, the evidence was relevant to whether the defendant was aware

of and consciously disregarded the risk that he would

cause inconvenience, annoyance, or alarm when he

went to A’s house on the day after the wedding to

confront his family and threw a can of beer at and

charged M, and whether that conduct was genuinely

threatening. See, e.g., State v. Parnoff, supra, 160 Conn.

App. 276 (to establish disorderly conduct, state must

prove ‘‘(1) that the defendant intended to cause, or

recklessly created a risk of causing, inconvenience,

annoyance or alarm and (2) that he did so by engaging

in fighting or in violent, tumultuous or threatening

behavior’’ (internal quotation marks omitted)). Indeed,

it is difficult to imagine how the threatening and disorderly conduct charges could be tried without introducing any evidence related to the sexual assault cases.

We also conclude that the trial court did not abuse

its discretion in finding that the probative value of the

evidence related to the sexual assault cases outweighed

any prejudicial effect in the threatening and disorderly

conduct cases.12 The evidence underlying the threatening and disorderly conduct charges established that the

defendant, on his wedding night, threatened to decapitate S, K, A, M, and his new wife, D; smashed framed

pictures; punched a hole in the wall; overturned a heavy

wooden table, shattering glasses and a chandelier in

the process; and screamed at his guests to ‘‘[g]et the

fuck’’ out of his house. The next day, knowing that the

police were looking for him in connection with the

accusations of sexual abuse, the defendant approached

A’s house at night; crept onto the front porch and peered

into the living room where J, L, and V were sleeping;

taunted M by miming sexual acts with J and L; and

threw an open can of beer at M and charged at him.

By the defendant’s own admission, this conduct was

brutal and shocking.13 Although any sexual assault on

a child is also brutal and shocking, the assaults in the

present case were not unusually so. Accordingly, we
conclude that, although the sexual assault cases involved

conduct that was more brutal and shocking than that

involved in the threatening and disorderly conduct

cases, the disparity between the cases was not so great

that the evidence related to the sexual assault cases

was more prejudicial than probative in the threatening

and disorderly conduct cases, especially given the trial

court’s finding that the cases were interwoven and the

highly probative nature of the evidence. We conclude,

therefore, that the trial court did not abuse its discretion

when it joined the cases. See, e.g., State v. Sanseverino,

287 Conn. 608, 633, 949 A.2d 1156 (2008) (when cases

were equally likely to arouse emotions of jurors, trial

court did not abuse discretion when it denied defendant’s motion to sever cases) (overruled in part on other

grounds by State v. DeJesus, 288 Conn. 418, 953 A.2d

45 (2008)), superseded in part, 291 Conn. 574, 969 A.2d

710 (2009); State v. Stevenson, 43 Conn. App. 680, 691,

686 A.2d 500 (1996) (‘‘when all of the cases sought to

be consolidated are brutal or shocking, they may be

joined properly, if consolidation does not cause a high

risk of one case being tainted by the unusually shocking

(e.g., sexual derangement) or brutal nature of the other,

or others’’), cert. denied, 240 Conn. 920, 692 A.2d 817

(1997); State v. Hermann, 38 Conn. App. 56, 62–, 658

A.2d 148 (trial court properly denied defendant’s motion

to try charges of sexual assault and risk of injury to

child separately from charge of interfering with officer

because ‘‘counts involving sexual assault and risk of

injury to children are not necessarily so brutal and

shocking as to mandate severance . . . if the jury is

properly instructed to consider the counts separately’’),

cert. denied, 235 Conn. 903, 665 A.2d 904 (1995);14 cf.

State v. LaFleur, supra, 307 Conn. 155 (‘‘[when] evidence is cross admissible . . . our inquiry [into

whether joinder was proper] ends’’). We conclude,

therefore, that the trial court properly joined the cases

because the evidence in each case was cross admissible

in the other cases.15

In any event, even if the defendant were correct that

the evidence related to the sexual assault cases was

not admissible to prove the threatening and disorderly

conduct charges because it was unduly prejudicial, we

would conclude that the joinder of the cases was harmless on this record. The evidence that the defendant

violently threatened to decapitate multiple persons was

overwhelming, as was the evidence that multiple persons were terrorized by the defendant’s threatening and

violent speech and conduct on the night of the wedding

and the following day.16 Although many of the witnesses

to the events on the night of the wedding had consumed

alcoholic beverages at the wedding reception and the

after-party, the defendant has pointed to no evidence

that would support a finding that they were so inebriated that their capacity to perceive or remember the

events was significantly impaired. In fact, M expressly
testified that, although he had had a ‘‘couple of beers’’

earlier in the day, he was sober during the after-party

when he heard the defendant’s death threats and

observed his violent conduct. Moreover, all of the witnesses gave substantially consistent testimony about

the events of that evening, and the jury reasonably could

have concluded that any slight inconsistencies could

be explained by the violent and chaotic nature of the

events. Finally, and perhaps most significant, during his

closing argument, defense counsel did not even attempt

to contest the state’s evidence with respect to the threatening and disorderly conduct charges. Rather, he made

reference to the events on the night of the wedding

only to point out that, when the police responded to

the neighbor’s noise complaint, no one told them about

S’s accusation that the defendant had sexually abused

J. We conclude, therefore, that, even if the evidence

related to the sexual assault cases was inadmissible in

the threatening and disorderly conduct cases because

it was more prejudicial than probative, the defendant

has not established that the joinder of the cases substantially affected the verdict. See State v. Payne, supra,

303 Conn. 553 (‘‘When an error is not of constitutional

magnitude, the defendant bears the burden of demonstrating that the error was harmful. . . . The proper

standard for review of a defendant’s claim of harm is

whether the jury’s verdict was substantially swayed by

the error.’’ (Citation omitted; internal quotation marks

omitted.)).

II

We next turn to the question of whether the trial

court properly denied the defendant’s request to testify

about the nonsexual nature of his prior felony record

without permitting the prosecutor to elicit on crossexamination testimony that he had been convicted of

seven counts of robbery. We conclude that the record

is not adequate for review of this claim.

The following procedural history is relevant to this

issue. Before trial, the trial court granted the defendant’s motion in limine barring the state from asking

its witnesses about the defendant’s prior incarceration.

During trial, the court ruled that, if the defendant testified, the state could not ask him about his prior convictions for robbery. The court also barred defense counsel

from asking a state’s witness about his convictions as

the defendant’s codefendant in the robbery case. The

trial court concluded that the convictions were not relevant to either the defendant’s or the witness’ credibility.

Thereafter, the state called M as a witness. The prosecutor asked M whether he had heard the defendant say

anything during the ruckus on the night of the wedding.17 M stated that the defendant was yelling that he

was not going back to jail. The prosecutor immediately

interrupted the testimony and asked that the jury be

sent out of the courtroom. He then asked the trial court
to strike the testimony and to give a curative instruction,

which the trial court did.18

The following day, the defendant sought permission

to testify about the nonsexual nature of his prior felony

record. He also asked the trial court to bar the prosecutor from eliciting any testimony on cross-examination

that he had been convicted of robbery. Defense counsel,

Tashun Bowden-Lewis, argued that the curative instruction was an insufficient remedy for M’s disclosure

because ‘‘you can’t unring the bell . . . .’’ In response,

the prosecutor pointed out that the defendant did not

have only one felony conviction, but seven, and argued

that the nature of the prior convictions was relevant to

the defendant’s veracity. The prosecutor also pointed

out that the defendant was planning to call a character

witness and argued that the prosecutor was allowed to

cross-examine that witness about his knowledge of the

defendant’s truthfulness and that the robbery convictions were directly relevant to that issue. The trial court

ruled that, if the defendant testified about his prior

convictions, the state would be allowed ‘‘to inquire as

to the fact that he’s a convicted felon, the name of the

felony or felonies, and that’s it. We’re not getting into

the details, because then we’re getting into collateral

issues.’’

Bowden-Lewis then asked permission to have a brief

discussion with the defendant, which the trial court

granted. After a brief recess, the defendant took the

witness stand. Bowden-Lewis then had a brief discussion with cocounsel, John Bowdren, and stated, ‘‘I just

have to address one thing with [the defendant] because

he just said to me—I apologize, can I have just two

minutes?’’ The defendant then apparently left the courtroom with Bowdren.19 When they returned to the courtroom, Bowden-Lewis indicated that the defendant had

decided that he did not want to testify. The prosecutor

then argued that, because the defendant was not going

to testify, the defendant could not present testimony

about his truthfulness through a character witness. The

trial court agreed and reinstated its initial ruling that

evidence about the defendant’s prior convictions would

not be admitted. The prosecutor then stated, ‘‘[m]ay we

have one second Judge. I think we’re going to talk a

plea.’’ After a brief, off-the-record discussion between

counsel, Bowden-Lewis indicated that they were ready

for the jury to be brought back into the courtroom, and

the defendant continued his presentation of evidence.

We conclude that the record is inadequate to review

the defendant’s claim that the trial court improperly

denied his request to testify about the nonsexual nature

of his prior felony convictions without being subject

to cross-examination on the specific nature of those

convictions. First, nothing in the record indicates the

reason for the defendant’s decision not to testify, and

it is certainly well within the realm of possibility that
he would have made that decision, even if the trial court

had barred the prosecutor from asking him about the

specific nature of his prior convictions on cross-examination. Second, nothing in the record before the trial

court indicates whether the defendant intended to testify only that his prior convictions were nonsexual or,

instead, that he intended to testify concerning his lack

of guilt on the charges he was facing.20 If he intended

to testify only that his prior convictions were for a

nonsexual offense, testimony on cross-examination that

the offense had been a robbery would have not have

tended to establish the defendant’s lack of veracity

because the testimony would only have corroborated

his testimony on direct examination.21 If, on the other

hand, he intended to testify concerning his lack of guilt,

the fact that his prior convictions were for robbery

would have been relevant to establish his lack of truthfulness on that issue. See State v. Rivera, 335 Conn.

720, 731, 240 A.3d 1039 (2020) (‘‘[w]e have consistently

recognized that crimes involving larcenous intent imply

a general disposition toward dishonesty or a tendency

to make false statements’’ (internal quotation marks

omitted)).22 Without knowing what the defendant

intended to testify about, we cannot know whether the

testimony that the state intended to elicit on crossexamination would have been relevant.23 We conclude,

therefore, that the defendant’s claim is unreviewable

for lack of an adequate record.

The judgment is affirmed.

In this opinion D’AURIA, MULLINS and KAHN, Js.,

concurred, and ECKER, J., concurred as to part I.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to use the defendant’s full name or to identify the victims or others through

whom the victims’ identities may be ascertained. See General Statutes

§ 54-86e.

Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)

(2018), as amended by the Violence Against Women Act Reauthorization

Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to

identify any person protected or sought to be protected under a protection

order, protective order, or a restraining order that was issued or applied

for, or others through whom that person’s identity may be ascertained.

* December 19, 2022, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 Practice Book § 41-19 provides: ‘‘The judicial authority may, upon its

own motion or the motion of any party, order that two or more informations,

whether against the same defendant or different defendants, be tried

together.’’

2 The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3).

3 After an investigation, the Naugatuck police determined that M’s shooting

of the defendant was justified because the defendant had been the ‘‘primary

aggressor’’ during the altercation. Accordingly, the state did not prosecute

M for the shooting.

4

In the interest of simplicity, we refer to the cases related to the sexual

assault, risk of injury to a child, and strangulation charges as the sexual

assault cases.

5

In State v. Boscarino, supra, 204 Conn. 722–24, this court ‘‘identified

several factors that a trial court should consider in deciding whether a

severance [or denial of joinder] may be necessary to avoid undue prejudice

resulting from consolidation of multiple charges for trial. These factors

include: (1) whether the charges involve discrete, easily distinguishable
factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the

duration and complexity of the trial. . . . If any or all of these factors

are present, a reviewing court must decide whether the trial court’s jury

instructions cured any prejudice that might have occurred.’’ (Internal quotation marks omitted.) State v. LaFleur, 307 Conn. 115, 156, 51 A.3d 1048 (2012).

6 The trial court instructed the jury: ‘‘Now, the defendant is charged with

ten separate counts in a long form information. The defendant is entitled

to and must be given, by you, a separate and independent determination of

whether he is guilty or not guilty as to each of the counts—each of the

counts charged as a separate crime.

‘‘The state is required to prove each element in each count beyond a

reasonable doubt. Each count must be deliberated upon separately. The

total number of counts charged does not add strength to the state’s case.

You may find that some evidence applies to more than one count in the information.

‘‘The evidence, however, must be considered separately as to each element

in each count. Each count is a separate entity. This includes a separate

consideration as to the charges related to each victim and the evidence

pertaining to each victim. You must consider each count separately and

return a separate verdict for each count. A decision on one count does not

bind your decision on another count. This means you may reach opposite

verdicts on different counts.’’

7 The trial court imposed the following concurrent sentences of imprisonment with respect to each count: On count one, threatening in the second

degree, the court imposed a sentence of one year; on count two, sexual

assault in the first degree, the court imposed a sentence of fifty years,

execution suspended after thirty-five years; on count three, risk of injury

to a child, the court imposed a sentence of twenty years; on count four,

sexual assault in the first degree, the court imposed a sentence of fifty years,

execution suspended after thirty-five years; on count five, sexual assault in

the second degree, the court imposed a sentence of twenty years; on count

six, risk of injury to a child, the court imposed a sentence of twenty years; on

count seven, strangulation in the first degree, the court imposed a sentence

of ten years; on count eight, sexual assault in the first degree, the court

imposed a sentence of fifty years, execution suspended after thirty-five

years; on count nine, risk of injury to a child, the court imposed a sentence

of twenty years; and, on count ten, disorderly conduct, the court imposed

a sentence of ninety days. In addition to imprisonment, the trial court also

imposed a twenty year probationary period and ordered the defendant to

register as a sex offender, to comply with protective orders that it issued

for the benefit of the victims, and to pay sexual assault victims account

fines totaling $1057.

8 The discretion accorded to the trial court is, of course, bounded by the

need to safeguard the defendant’s right to a fair trial. See State v. LaFleur,

supra, 307 Conn. 155. Trial courts must remain highly sensitive to the risk

of prejudice flowing from improper joinder.

9 See State v. Bermudez, 341 Conn. 233, 249, 267 A.3d 44 (2021) (‘‘Relevant

evidence is evidence that has a logical tendency to aid the trier in the

determination of an issue. . . . Evidence is relevant if it tends to make the

existence or nonexistence of any other fact more probable or less probable

than it would be without such evidence. . . . To be relevant, the evidence

need not exclude all other possibilities [or be conclusive] . . . .’’ (Internal

quotation marks omitted.)).

10 The trial court stated that it would not be prejudicial to try the disorderly

conduct and threatening cases with the sexual assault cases because ‘‘they’re

obviously separate charges, they have separate elements, [and] they’re easily

distinguishable factual scenarios for a jury. While [the threatening and disorderly conduct cases] involve violence, it’s not to the extent [that] it’s brutal

or shocking violence on the defendant’s part. In fact, [the defendant] seems

to have been the victim of the most serious violence [i.e., the gunshot wound

inflicted by M], setting aside the sex assault charges. It certainly wouldn’t

add to the length of the trial as I indicated; it appears from argument from

both parties this is all interwoven with each other.

11 We discuss these facts and procedural history more fully in part II of

this opinion.

12 Although the trial court made no express finding to this effect, such a

finding is implicit in the trial court’s determination that joinder was appropriate, despite the fact that the sexual assault cases involved ‘‘the most

serious violence,’’ because the cases were ‘‘all interwoven with each other.’’
See footnote 10 of this opinion (noting that trial court found that defendant

was victim of ‘‘the most serious violence . . . setting aside the sex assault

charges’’ (emphasis added)). Indeed, we must presume that the trial court

applied the proper standard for joinder. See, e.g., DeNunzio v. DeNunzio,

320 Conn. 178, 197, 128 A.3d 901 (2016) (‘‘[w]hen examining an ambiguous

decision . . . we presume that the trial court applied the correct standard’’

(internal quotation marks omitted)).

13 We recognize that the trial court concluded that, although the threatening and disorderly conduct charges ‘‘involve violence, it’s not to the extent

[that] it’s brutal or shocking violence on the defendant’s part.’’ The court

had not yet heard the evidence supporting the charges, however, when it

made this statement. Moreover, read in context, the court was merely observing that the conduct underlying the charges was not so brutal and shocking

that it would improperly arouse the jurors’ emotions in the sexual assault

cases, an assessment with which we agree.

14 As we indicated, the jury in the present case was instructed that it must

consider all of the counts separately. See footnote 6 of this opinion.

15 In reaching this conclusion, we are mindful of the defendant’s contention

that joining the sexual assault cases with the threatening and disorderly

conduct cases meant that the jury was confronted with a ten count information instead of a two count information, and that this made it more likely

that the jury would think of him as a ‘‘bad person and more likely to be

guilty.’’ We cannot conclude that the number of counts in the sexual assault

cases, standing alone, required the trial court to deny the state’s motion to

consolidate under the circumstances of this case.

16 To the extent that the defendant contends that, without the evidence

related to the sexual assault cases, there would have been only weak evidence of his intent to terrorize, any such claim would support our conclusion

that the evidence was highly relevant to the threatening and disorderly

conduct charges.

17 The prosecutor was attempting to elicit testimony about the defendant’s

threats to kill people.

18 Specifically, the trial court stated that it was ‘‘going to strike the witness’

last statement. I will order you [the jury] . . . to not consider that at any

point in time in your deliberation[s]. Reminding you, and you will get full

instructions, that, when a statement or an exhibit or an item is stricken,

you cannot consider that as part of your deliberations.’’

19 The trial transcript does not expressly indicate that the defendant left

the courtroom, but it does indicate that, after a brief colloquy between the

trial court and Bowden-Lewis, Bowden-Lewis stated, ‘‘I’ll wait for him to

come back out,’’ and that the defendant was then brought back into the

courtroom.

20 During the argument on the defendant’s request to testify about the

nonsexual nature of his prior felony record, defense counsel told the trial

court that the defendant would testify ‘‘to the fact solely that he is a convicted

felon of a nonsexual crime’’ and that counsel was ‘‘asking only for [the

defendant] to be able to say that he is a convicted felon of a crime of a

nonsexual nature . . . .’’ We do not interpret this language as necessarily

meaning that the defendant intended to testify only about his prior convictions. Rather, it could mean that the only testimony that the defendant was

going to give concerning the convictions were that they were for a nonsexual

offense. We note in this regard that, in his brief to this court, the defendant

argues that, as the result of the trial court’s ruling, ‘‘[t]he jur[ors] did not

hear him deny harming [J] and [L]. They did not hear him explain what he

said on his wedding night. They did not hear him explain why he went to

[A’s] house, deny that he taunted [A] and [M], and deny that he charged

two men who were pointing handguns at him.’’ Thus, the defendant has

suggested to this court that he intended to testify about his lack of guilt.

He did not, however, make any such offer of proof to the trial court.

21 Accordingly, we do not agree with the concurring justice that the fact

that the defendant was previously convicted of robbery would affect the

credibility of his testimony that his prior convictions were not for a sexual

offense. With respect to the concurring justice’s statement that we have

concluded sua sponte that the record is not adequate for review, we note

that that state contended in its brief to this court that ‘‘[t]he record does

not disclose why [the defendant] changed his mind’’ about testifying and

‘‘is devoid of any evidence as to what the defendant’s testimony would

have been.’’

22 We recognize that the trial court initially determined that the robbery

convictions were not relevant to the defendant’s lack of veracity. That
determination would have been incorrect if the trial court believed that the

defendant intended to testify about his lack of guilt, and nothing prevented

the trial court from correcting an earlier incorrect ruling, especially when

it was the defendant’s own request that triggered the correction.

23 We also note that, if the defendant wanted to testify about his lack of

guilt, he could have simply withdrawn his request to testify about the nonsexual nature of his prior felony convictions and asked the trial court to keep

in place its initial ruling that questions about the prior convictions would

not be permitted on cross-examination. Thus, any harm caused by not

presenting such testimony was self-inflicted.