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PHILLIP WHITE III v. COMMISSIONER

OF CORRECTION

(AC 38453)

Alvord, Prescott and Mihalakos, Js.

Argued October 18, 2016—officially released January 31, 2017

(Appeal from Superior Court, judicial district of

Tolland, Oliver, J.)

Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s

attorney, Susann E. Gill, former supervisory assistant

state’s attorney, Craig P. Nowak, senior assistant state’s

attorney, and Yamini Menon, special deputy assistant

state’s attorney, for the appellant (respondent).

Wade Luckett, assigned counsel, with whom, on the

brief, was Walter C. Bansley IV, assigned counsel, for

the appellee (petitioner).
Opinion

PRESCOTT, J. The respondent, the Commissioner of

Correction, appeals from the summary judgment rendered by the habeas court in favor of the petitioner,

Phillip White III, granting his amended petition for a

writ of habeas corpus.1 On appeal, the respondent

claims that the habeas court improperly granted the

petition after concluding that the jury in the petitioner’s

underlying criminal case should have been instructed

on the intent and conduct necessary to find the petitioner guilty of kidnapping in accordance with State v.

Salamon, 287 Conn. 509, 550, 949 A.2d 1092 (2008).

Having thoroughly reviewed the record, we conclude

that the habeas court properly granted the amended

petition for a writ of habeas corpus, and, accordingly,

we affirm the judgment.

The following facts, as set forth by this court in the

petitioner’s direct criminal appeal, and procedural history are relevant to this appeal. ‘‘On June 24, 2003, the

[teenage] complainant was alone inside her parents’

home in the town of Fairfield. At approximately 4 p.m.,

the [petitioner] approached the front door and rang the

doorbell. The complainant answered the door, and the

[petitioner] informed her that he was selling magazine

subscriptions to earn money for college. The [petitioner] asked the complainant to look at a brochure to

determine if she was interested in purchasing any of

the magazines. The complainant informed the [petitioner] that she could not purchase anything because

her parents were not home. She recommended that he

return sometime around 6 p.m. when her parents would

be home from work.

‘‘The [petitioner] asked the complainant if he could

use the bathroom. The complainant hesitated. The [petitioner] explained that he really had to use the bathroom.

Without invitation, the [petitioner] brushed by the complainant, who was standing in the doorway, and walked

straight down the hallway of the foyer toward the bathroom located off the kitchen. The [petitioner] remained

in the bathroom for approximately thirty seconds. When

he emerged from the bathroom, the [petitioner] walked

slowly toward the complainant. While the [petitioner]

was in the bathroom, the complainant did not hear

the bathroom door shut or the water running from the

bathroom plumbing. The complainant remained near

the front doorway while the [petitioner] was in the

bathroom.

‘‘The [petitioner], again, asked the complainant to

look at the magazine brochure. The complainant briefly

looked at the brochure, handed it back to the [petitioner] and told him that she had not heard of any of

the magazines on the list. The [petitioner] took the

brochure, walked toward the [front] door and closed

[it]. Placing his hand in the rear pocket of his trousers,
the [petitioner] told the complainant that he had a gun

and ordered her to sit on a couch in the den adjacent

to the foyer. The complainant entered the den and sat

on the couch closest to the foyer. The [petitioner] asked

her what time her parents would arrive home. Though

the complainant had told him earlier that her parents

would be home at approximately 6 p.m., this time she

told the [petitioner] that they would arrive at approximately 5:30 p.m., hoping that he would believe that

her parents would arrive sooner. The [petitioner] then

asked if anyone else was home, and she told him that

no one else was home at the time.

‘‘After approximately three minutes, the [petitioner]

told the complainant to stand up because he wanted

to go upstairs. Walking sideways facing the complainant, the [petitioner] slowly approached the stairwell

just off the den. After taking several slow steps, the

[petitioner] placed his hand on the complainant’s elbow

to hurry her along. As the [petitioner] touched the complainant’s arm, she began to scream and cry. The [petitioner] told the complainant to be quiet, and she

attempted to leave the house via the front door. The

[petitioner] blocked the doorway, as the complainant

continued to scream. The [petitioner] suddenly stopped

and said that he was just playing. The [petitioner] then

called the complainant a ‘scaredy-ass,’ opened the front

door and ran out of the house. Approximately ten

minutes elapsed from the time the [petitioner] first

arrived at the home to the time that he departed.

‘‘The complainant closed the door and locked it. She

immediately called a friend, who lived up the street,

to warn her that the [petitioner] was running in her

direction. She was unable to contact her friend. The

complainant then unsuccessfully called both of her parents. Finally, she reached her boyfriend by telephone

and told him what had happened. She then called the

police and gave a brief description of the [petitioner].

‘‘Within approximately ten minutes, Officer Joseph

Kalson of the Fairfield police department arrived at the

home. The complainant again gave a description of the

[petitioner], and Kalson broadcast over the police radio

that the original description was correct. Officer Christopher Ioli of the Fairfield police department also

responded to the call. Ioli observed the [petitioner] jogging on a street. By the time that Ioli had turned his

vehicle around and turned down that street, the [petitioner] was sitting on the front lawn of a house.

According to Ioli, the [petitioner] was sweating and

appeared slightly nervous. Ioli conducted a patdown

search for weapons but found none. The complainant

was transported to that location, where she identified

the [petitioner], and the [petitioner] was taken into custody.’’ State v. White, 97 Conn. App. 763, 766–68, 906

A.2d 728, cert. denied, 280 Conn. 939, 912 A.2d 476

(2006).
Following a jury trial, the petitioner was convicted

of kidnapping in the second degree with a firearm in

violation of General Statutes § 53a-94a (a)2 and burglary

in the second degree with a firearm in violation of

General Statutes § 53a-102a (a).3 He was sentenced by

the trial court to fifteen years incarceration on the kidnapping charge and ten years incarceration on the burglary charge, both sentences to run concurrently, for a

total effective sentence of fifteen years. On direct

appeal, this court affirmed the petitioner’s kidnapping

conviction, but reversed the petitioner’s burglary conviction on the ground that the trial court improperly

declined to instruct the jury on the lesser included

offense of criminal trespass in the second degree. State

v. White, supra, 97 Conn. App. 765. After this court

remanded the case for a new trial on the burglary

charge, the state, on January 25, 2007, nolled that

charge.

The petitioner subsequently filed his first habeas

action, in which he alleged ineffective assistance of

counsel. After a trial, the habeas court denied in part

and granted in part the petition for a writ of habeas

corpus, restoring the petitioner’s right to sentence

review. White v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-04-4000100-S (October

15, 2007). On appeal, this court affirmed that judgment

of the habeas court. White v. Commissioner of Correction, 113 Conn. App. 901, 964 A.2d 1261, cert. denied,

293 Conn. 904, 976 A.2d 705 (2009). After the petitioner

applied for sentence review, his sentence was affirmed.

State v. White, Superior Court, judicial district of Fairfield, Docket No. CR-03-190578-T (February 2, 2009).

On January 5, 2015, in a second habeas action, the

petitionerfiled an amended petition, alleging a violation

of his due process rights under our federal and state

constitutions in light of our Supreme Court’s decisions

in State v. Salamon, supra, 287 Conn. 509, and Luurtsema v. Commissioner of Correction, 299 Conn. 740,

12 A.3d 817 (2011). The petitioner claimed that the trial

court did not properly instruct the jury as to the charge

of kidnapping because, pursuant to Salamon, a defendant cannot be convicted of kidnapping in conjunction

with another crime if the confinement or movement

necessary to support the kidnapping charge is merely

incidental to the commission of the other crime.4 State

v. Salamon, supra, 546–47.

On February 5, 2015, the petitioner filed a motion for

summary judgment on his amended petition pursuant

to Practice Book § 23-37,5 which was accompanied by

a memorandum of law in support. On March 9, 2014,

the respondent filed an objection to the motion. Oral

argument on the motion was heard on June 1, 2015,

and both sides stipulated to the habeas court treating

the June 1 argument as a full habeas trial on the papers.6
Thereafter, the habeas court granted the petitioner’s

motion for summary judgment and, in turn, his amended

petition for a writ of habeas corpus. In its memorandum

of decision dated September 10, 2015, the court summarily concluded that the petitioner was entitled to an

instruction on the kidnapping charge in a manner that

comports with Salamon, and, in a more lengthy analysis, concluded that the lack of the proper instruction

was not harmless error. The habeas court subsequently

granted the respondent’s petition for certification to

appeal, and this appeal followed.

The respondent claims that the habeas court improperly concluded that the petitioner was entitled to an

incidental restraint instruction on the kidnapping

charge in accordance with Salamon. The respondent

then argues that, even if an incidental restraint instruction should have been given, the habeas court improperly concluded that the trial court’s failure to give the

instruction was harmful error. We disagree.

As an initial matter, we set forth the applicable standard of review and principles of law. ‘‘Practice Book

§ 23-37 provides in relevant part that a habeas court

may grant summary judgment if the pleadings, affidavits

and any other evidence submitted show that there is

no genuine issue of material fact between the parties

requiring a trial and the moving party is entitled to

judgment as a matter of law. On review from the granting of a motion for summary judgment, our task is to

determine whether the court correctly determined that

the moving party was entitled, as a matter of law, to

summary judgment on the basis of the absence of any

genuine issues of material fact requiring a trial. Because

this inquiry requires a legal determination, our review

is plenary.’’ (Internal quotation marks omitted.) Eric

M. v. Commissioner of Correction, 153 Conn. App. 837,

842–43, 108 A.3d 1128 (2014), cert. denied, 315 Conn.

915, 106 A.3d 308 (2015).

‘‘In Salamon, [our Supreme Court] reconsidered our

long-standing interpretation of our kidnapping statutes,

General Statutes §§ 53a-91 through 53a-94a. . . . The

defendant [in Salamon] had assaulted the victim at a

train station late at night, and ultimately was charged

with kidnapping in the second degree in violation of

§ 53a-94, unlawful restraint in the first degree, and risk

of injury to a child. . . . At trial, the defendant

requested a jury instruction that, if the jury found that

the restraint had been incidental to the assault, then

the jury must acquit the defendant of the charge of

kidnapping. . . . The trial court declined to give that

instruction. . . .

‘‘[Our Supreme Court thus] reexamined our longstanding interpretation of the kidnapping statutes to

encompass even restraints that merely were incidental

to and necessary for the commission of another sub-
stantive offense, such as robbery or sexual assault. . . .

[Our Supreme Court] ultimately concluded that [o]ur

legislature . . . intended to exclude from the scope of

the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and

necessary for the commission of another crime against

that victim. Stated otherwise, to commit a kidnapping

in conjunction with another crime, a defendant must

intend to prevent the victim’s liberation for a longer

period of time or to a greater degree than that which

is necessary to commit the other crime.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Hampton, 293 Conn. 435, 459–60, 988 A.2d 167 (2009).

The court in Salamon explained that ‘‘a defendant

may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after

the commission of that other crime, the victim is moved

or confined in a way that had independent criminal

significance, that is, the victim was restrained to an

extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental

to and necessary for another crime will depend on the

particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the

commission of some other, separate crime, the ultimate

factual determination must be made by the jury.’’

(Emphasis omitted; footnote omitted.) State v. Salamon, supra, 287 Conn. 547–48.

At the close of evidence in the petitioner’s underlying

criminal case, and in accordance with our pre-Salamon

case law, the trial court instructed the jury in relevant

part: ‘‘A person is guilty of kidnapping in the second

degree with a firearm when he commits kidnapping in

the second degree and in the commission of such

offense he represents by his words and conduct that

he possesses a firearm. A person is guilty of kidnapping

in the second degree when he abducts another person.

. . . Abduct means to restrain a person with intent to

prevent her liberty by either secreting or by hiding her

in a place where she is not likely to be found or by using

or threatening to use physical force or intimidation.

Restrain means to restrict a person’s movement intentionally or unlawfully in such a manner as to interfere

substantially with her liberty by moving her from one

place to another or by confining her either in the place

where the restriction commences or to a place to which

she has been moved without consent. . . . There is

no special requirement that the restraint be for any

particular length of time or that the victim be moved

over any particular distance.’’ No instruction setting

forth the principle of incidental restraint, namely, an

instruction designed to ensure that the defendant could

be convicted of kidnapping only if the restraint that
formed the basis of the kidnapping charge had criminal

significance separate and apart from that necessarily

used in connection with the burglary offense, was given

to the jury.7

In this appeal, the respondent claims in his brief,

and asserted at oral argument, that the habeas court

improperly concluded that a Salamon incidental

restraint instruction was required under the particular

facts of this case. In doing so, the respondent relies

upon State v. Golder, 127 Conn. App. 181, 14 A.3d 399,

cert. denied, 301 Conn. 912, 19 A.3d 180 (2011), a case in

which this court held that the evidence did not warrant a

Salamon instruction on the kidnapping charge because

the restraint used by the defendant was not necessary

or incidental to the other charged offense of burglary.

Id., 190–91. We are not persuaded by this argument for

two reasons.

First, in State v. Fields, 302 Conn. 236, 24 A.3d 1243

(2011), our Supreme Court indicated that whenever kidnapping and another substantive offense are charged,

a Salamon instruction ordinarily must be given. Id.,

247; see also State v. Hampton, supra, 293 Conn. 462

(implicitly accepting defendant’s argument that Salamon instruction required when defendant is charged

with both kidnapping and offense separate from kidnapping). Thus, because the petitioner here was charged

with both kidnapping as well as the substantive offense

of burglary, Fields instructs us to conclude that the

Salamon instruction should have been given automatically to the jury. We note that this court in Golder did

not have the guidance of our Supreme Court’s decision

in Fields because Fields was decided approximately

five months after we officially released our decision in

Golder. See State v. Fields, supra, 237 (officially

released August 30, 2011); State v. Golder, supra, 127

Conn. App. 181 (officially released March 8, 2011).

Second, Golder is distinguishable from the present

case on its facts. In Golder, the defendant entered the

victim’s residence with the intent to steal her jewelry.

State v. Golder, supra, 127 Conn. App. 183–84. Upon

unexpectedly encountering the victim inside the residence as she walked toward her bedroom, the defendant grabbed her, moved her to the kitchen while

holding her in a ‘‘ ‘bear hug,’ ’’ released her, and took

a bag of jewelry from the closet. Id., 184. At that point,

the defendant told the victim that he was going to have

to put her in the basement, but changed his mind and

moved her instead to the bedroom after the victim told

him she was claustrophobic and asthmatic. Id. The

defendant then ‘‘asked if she had any rope. [The victim]

responded that she did not have any, so the defendant

took some neckties belonging to [the victim’s] husband

and ‘hog-tied’ her to the bed. The defendant then asked

[the victim] where she kept her car and where the keys

for it were located. [The victim] told him the keys were
in her pocketbook, and the defendant went into the

kitchen. [The victim] attempted to release herself from

the bed, and the defendant returned to ask [the victim]

if the car had an alarm. When the defendant left for the

second time, [the victim] freed herself and called 911.

[The victim] was tied to the bed for a total of twenty

to twenty-five minutes.’’ Id., 184–85.

In Golder, the nature and duration of the victim’s

movement and confinement that occurred after the

defendant stole the jewelry from the kitchen closet is

far more significant than that which occurred in the

case at hand. The victim in Golder was physically moved

between several different rooms in the house, and ultimately was forced to have all of her limbs bound and

tied to the bed while the defendant escaped the residence, leaving her to her own fate. In contrast, the

complainant in the instant case was only briefly, and

not aggressively, physically touched by the petitioner,

and was ordered to sit on a couch for a brief period of

time. Moreover, the total length of time that the victim

in Golder was hog-tied to the bed, which does not even

account for the length of time beforehand that the

defendant spent moving her around the residence and

stealing her jewelry, was more than twice the length

of time that the petitioner in the present case spent

inside the complainant’s residence from start to finish.

Accordingly, it is much less clear here, as opposed

to the facts in Golder, that the restraint used by the

petitioner had its own ‘‘independent criminal significance, that is, the victim was restrained to an extent

exceeding that which was necessary to accomplish or

complete the [burglary].’’ State v. Salamon, supra, 287

Conn. 547. For all of these reasons, we conclude that

the habeas court properly concluded that the petitioner

was entitled to a Salamon incidental restraint instruction on the kidnapping charge.

Having decided that the habeas court properly determined that the petitioner was entitled to a jury instruction on incidental restraint, we next turn to whether

the failure to give such an instruction was harmful. ‘‘In

[Luurtsema v. Commissioner of Correction, supra, 299

Conn. 770], the court indicated that the proper standard

to [assess whether the omission of a Salamon instruction requires reversal of the petitioner’s kidnapping conviction] would be the harmless error standard applied

on direct appeal. . . . On direct appeal, [i]t is well

established that a defect in a jury charge which raises

a constitutional question is reversible error if it is reasonably possible that, considering the charge as a

whole, the jury was misled. . . . [T]he test for

determining whether a constitutional error is harmless

. . . is whether it appears beyond a reasonable doubt

that the error complained of did not contribute to the

verdict obtained.8

. . . A jury instruction that improperly omits an essential element from the charge constitutes harmless error [only] if a reviewing court
concludes beyond a reasonable doubt that the omitted

element was uncontested and supported by overwhelming evidence, such that the jury verdict would have

been the same absent the error. . . . The failure to

charge in accordance with Salamon is viewed as an

omission of an essential element . . . and thus gives

rise to constitutional error. . . . [T]his standard

imposes the burden of persuasion exclusively on the

state . . . .’’ (Citations omitted; emphasis altered; footnote added; internal quotation marks omitted.) Hinds

v. Commissioner of Correction, 321 Conn. 56, 77–78,

136 A.3d 596 (2016).

Salamon makes clear that if the evidence regarding

the perpetrator’s intent—that is, whether he or she

intended ‘‘to prevent the victim’s liberation for a longer

period of time or to a greater degree than that which

is necessary to commit the other crime’’—is susceptible

to more than one interpretation, that question is one

for the jury. State v. Salamon, supra, 287 Conn. 542.

As previously mentioned, ‘‘[a] defendant may be convicted of both kidnapping and another substantive

crime if, at any time priorto, during or afterthe commission of that other crime, the victim is moved or confined

in a way that has independent criminal significance,

that is, the victim was restrained to an extent exceeding

that which was necessary to accomplish or complete

the other crime. Whetherthe movement or confinement

of the victim is merely incidental to and necessary for

another crime will depend on the particular facts and

circumstances of each case. . . . For purposes of making that determination, the jury should be instructed

to consider the various relevant factors, including the

nature and duration of the victim’s movement or confinement by the defendant, whether that movement or

confinement occurred during the commission of the

separate offense, whether the restraint was inherent in

the nature of the separate offense, whetherthe restraint

prevented the victim from summoning assistance,

whether the restraint reduced the defendant’s risk of

detection and whetherthe restraint created a significant

danger or increased the victim’s risk of harm independent of that posed by the separate offense.’’ (Footnote

omitted.) Id., 547–48.

On the basis of ourreview of the record in the present

case, we conclude that the improper instruction was

not harmless, because the respondent has failed to persuade us beyond a reasonable doubt that the omission

of an instruction on incidental restraint did not contribute to the verdict. In doing so, we consider the various

relevant factors set forth in Salamon.

9

With regard to the first relevant factor, the respondent argues that the petitioner’s confinement and movement of the complainant was not de minimus. The

petitioner disagrees with the respondent’s contention,

citing that the confinement lasted only a matter of
minutes and that any movement took place over a short

distance. We agree with the petitioner that this factor

weighs in his favor.

We first note that in Hinds v. Commissioner of Correction, supra, 321 Conn. 92–93, our Supreme Court

attempted to categorize various Salamon incidental

restraint cases with differing degrees of confinement

or movement: ‘‘Although no minimum period of

restraint or degree of movement is necessary for the

crime of kidnapping, an important facet of cases where

the trial court has failed to give a Salamon instruction

and that impropriety on appellate review has been

deemed harmless error is that longer periods of

restraint or greater degrees of movement demarcate

separate offenses. See State v. Hampton, supra, 293

Conn. 463–64 (defendant confined victim in a car and

drove her around for approximately three hours before

committing sexual assault and attempted murder);

State v. Jordan, [129 Conn. App. 215, 222–23, 19 A.3d

241 (2011)] (evidence showed the defendant restrained

the victims to a greater degree than necessary to commit

the assaults even though assaultive behavior spanned

entire forty-five-minute duration of victims’ confinement)[cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011)];

State v. Strong, [122 Conn. App. 131, 143, 999 A.2d 765]

(defendant’s prolonged restraint of victim while driving

for more than one hour from one town to another not

merely incidental to threats made prior to the restraint)

[cert. denied, 298 Conn. 907, 3 A.3d 73 (2010)]; and State

v. Nelson, [118 Conn. App. 831, 860–62, 986 A.2d 311]

(harmless error when defendant completed assault and

then for several hours drove victim to several locations)

[cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010)].

Thus, as these cases demonstrate, multiple offenses are

more readily distinguishable—and, consequently, more

likely to render the absence of a Salamon instruction

harmless—when the offenses are separated by greater

time spans, or by more movement or restriction of

movement.

‘‘Conversely, multiple offenses occurring in a much

shorter or more compressed time span make the same

determination more difficult and, therefore, more likely

to necessitate submission to a jury for it to make its

factual determinations regarding whether the restraint

is merely incidental to another, separate crime. In those

scenarios, [in which] kidnapping and multiple offenses

occur closer in time to one another, it becomes more

difficult to distinguish the confinement or restraint

associated with the kidnapping from another substantive crime. The failure to give a proper Salamon instruction in those scenarios is more likely to result in harmful

error precisely because of the difficulty in determining

whether each crime has independent criminal significance. See State v. Thompson, [118 Conn. App. 140, 162,

983 A.2d 20 (2009)] (within fifteen minutes defendant

entered victim’s car, pushed her behind a building and
sexually assaulted her) [cert. denied, 294 Conn. 932,

986 A.2d 1057 (2010)]; State v. Flores, [301 Conn. 77,

89, 17 A.3d 1025 (2011)] (defendant’s robbery of victim

in her bedroom lasted between five and twenty

minutes); State v. Gary [120 Conn. App. 592, 611, 992

A.2d 1178] (defendant convicted of multiple sexual

assaults and an attempted sexual assault that were in

close temporal proximity to the defendant’s restraint of

the victim; thus court determined evidence reasonably

supports a finding that the restraint merely was incidental to the commission of other crimes, namely, sexual

assaults and attempted sexual assault; lack of Salamon

instruction harmful error) [cert. denied, 297 Conn. 910,

995 A.2d 637 (2010)].’’ (Internal quotation marks

omitted.)

The instant case resembles the latter line of cases,

rather than the former, in that the burglary was committed in close temporal proximity to the alleged kidnapping and any confinement/movement was limited in

nature and distance. The complainant’s encounter with

the petitioner in this case, from the time he first

appeared at her front door until the time he ran out of

the residence, lasted about ten minutes. As for the

nature of the restraint, the complainant testified that

she was confined to the couch for approximately three

minutes after the petitioner indicated he had a gun and

ordered her to sit, and that the only physical contact

between her and the petitioner occurred when he

briefly, and without much force, touched her elbow in

an effort to ‘‘hurry [her] along upstairs.’’ At that point,

the complainant began crying and screaming, and the

contact stopped. Moreover, the events took place in a

single location—the complainant’s residence—and the

distance over which the complainant testified she was

ordered by the petitioner to move consisted of mere

feet.10 Given that the two offenses were not separated

by a significant time span or by much movement, it is

difficult for us to conclude that the jury would have

necessarily made the factual determination that the

restraint involved in the alleged kidnapping was not

merely incidental or de minimus to the separate crime

of burglary.

We next address the second relevant Salamon factor,

that is, whetherthe movement or confinement occurred

during the commission of the separate offense. The

respondent argues that the absence of a Salamon

instruction did not contribute to the kidnapping verdict

here because the burglary had been completed prior

to the petitioner’s conduct comprising the kidnapping.

More specifically, he argues that the offense of second

degree burglary was completed ‘‘once there [was] an

unlawful entering or remaining in a building with the

intent to commit a crime [therein]’’; (internal quotation

marks omitted) State v. Ayala, 133 Conn. App. 514, 522,

36 A.3d 274, cert. denied, 304 Conn. 913, 40 A.3d 318

(2012); and ‘‘the petitioner gestured to his back pocket
and told the [complainant] he had a gun.’’ Therefore,

he argues, any additional action the petitioner took

after he represented by his words or conduct that he

possessed a firearm—e.g., ordering the complainant to

sit on the couch, instructing herto move upstairs, touching her elbow in an attempt to get her to move faster—

was not necessary to accomplish the already concluded

offense of burglary. We do not find this unduly legalistic

line of reasoning persuasive.

The respondent’s syllogism fails to recognize that the

jury could have viewed the petitioner’s actions here

as a continuous, uninterrupted course of conduct all

relating to the burglary offense. See Hinds v. Commissioner of Correction, supra, 321 Conn. 79 (holding failure to give Salamon instruction harmful when

petitioner’s actions were ‘‘a continuous, uninterrupted

course of conduct’’). As this court recently emphasized

in a related context, ‘‘although liability for a burglary

premised on an unlawful entry attaches upon a defendant crossing the threshold; see State v. Little, [194

Conn. 665, 675, 485 A.2d 913 (1984)] . . . ; authority

exists that a burglary, once begun, continues until all

parties participating in the burglary have left the property. See 12A C.J.S. 207, Burglary § 55 (2014) (‘burglary

does not end when a burglar enters the premises, but

continues for as long as the burglar is on the premises

with the intent to commit the crime’), citing Flanders

v. Meachum, 13 F.3d 600, 603 (2d Cir. 1994) (applying

Connecticut law); see also 12A C.J.S., supra, p. 138

(liability of aider or abetter ‘is consider[ed] ongoing

during the time that the perpetrator remains inside the

structure’); 40 C.J.S. 481, Homicide § 62 (2014) (‘[a]

burglary is deemed to be in progress, for purposes of

a felony-murder charge, while the burglar is on the

premises’).’’ (Emphasis altered.) State v. Johnson, 165

Conn. App. 255, 293, 138 A.3d 1108, cert. denied, 322

Conn. 904, 138 A.3d 933 (2016).11

In the instant case, although the respondent’s argument regarding the point in time at which all the elements for burglary were satisfied and thus criminal

liability attached may technically be true,12 the jury

could have deemed the burglary to be in progress for

the entirety of the ten minutes in which he was at the

residence because he remained on the premises with

the intent to commit a crime. See id. This is especially

true under the facts of this case because the underlying

crime that formed the basis of the petitioner’s intent

for his burglary charge was never completed,13 and,

thus, the jury reasonably could have found that his

intent to ‘‘commit a crime therein’’ was ongoing up until

the point at which he abruptly left the residence. In fact,

the state implied as much during closing arguments,

stating: ‘‘[T]o determine his intention at the time that

he remained in the home, look at his actions. Look at

the [petitioner] ordering [the complainant] into the den.

Look at his statement to her, ‘Be quiet or I’ll shoot.’
Look at his statement, ‘I want to go upstairs now.’ Look

at his actions in taking her by the elbow and leading her

toward the stairs. And thatis how, ladies and gentlemen,

you determine someone’s intent.’’ (Emphasis added.)

Accordingly, we are unable to conclude that, had the

jury been instructed properly, it would have made the

factual determination that the petitioner’s actions in

confining or moving the complainant did not occur during the commission of the burglary.

With regard to the third relevant Salamon factor,

namely, whetherthe restraint was inherent in the nature

of the separate offense, the respondent argues that the

petitioner actually utilized no restraint in the course of

committing the burglary. In response, the petitioner

argues that the jury could have found that restraint was

inherent in the nature of the burglary here. We, again,

agree with the petitioner that this factor weighs in

his favor.

In State v. Fields, supra, 302 Conn. 236, 247–48, in

which the defendant was charged in relevant part with

kidnapping and assault, our Supreme Court expressly

rejected the notion that the rationale of Salamon is not

implicated merely because restraint of the victim is not

an essential element of the other substantive offense

charged along with kidnapping. Our Supreme Court

stated: ‘‘On the contrary, restraint may be used in the

commission of the [other substantive] offense . . .

even though it is not an element of that offense. Thus,

depending on the facts of the [other substantive] crime,

the fact finder reasonably might conclude that the kidnapping was merely incidentalto the [other substantive]

crime irrespective of whether that crime [inherently]

requires the use of restraint. . . . Although it is true,

of course, that not every assault involves an appreciable

restraint of the victim, many do, and, in those circumstances, we see no reason why a defendant should be

denied the benefit of a Salamon instruction simply

because the state is notrequired to prove restraint of the

victim as an element of the assault.’’(Citations omitted.)

Id., 248–49.

Because restraint is not an essential element of burglary in the second degree with a firearm; see General

Statutes §§ 53a-102a (a) and 53a-102 (a); the relevant

question becomes whether restraint was inherent in

the nature of the burglary in this particular case. As

previously mentioned, the crime underlying the charge

of burglary was never identified at trial,14 much less

ever completed by the petitioner. Because it is not clear

what underlying crime the petitioner intended to commit when he unlawfully entered the house, the jury

conceivably could have interpreted the petitioner’s confinement and movement of the complainant in several

different ways. For instance, the jury may have viewed

the petitioner’s attempt to have the complainant go

upstairs with him as an indication that he wanted to
sexually assault her, or as an indication that he wanted

to rob her of jewelry.15 The jury could have concluded

that either of these underlying offenses inherently

involved restraint by virtue of its nature. In short, without knowing the jury’s specific theory of the case on

which it convicted the petitioner of burglary, we have

no way of determining whether the jury would have

found that the restraint used here was inherent in the

crime underlying the burglary.

With regard to the remaining Salamon factors, the

respondent argues that the restraint utilized by the petitioner here prevented the complainantfrom summoning

assistance, reduced the petitioner’s risk of detection,

and created a significant danger or increased the complainant’s risk of harm independent of that posed by

the separate offense. As to the final factor, that is,

whether the restraint created a significant danger or

increased the complainant’s risk of harm independent

of that posed by the separate offense, it does not appear

likely that the jury could conclude that the restraint

here was especially dangerous, as the restraint was

generally not physical or aggressive in nature, there

was no proof the petitioner actually possessed a gun,

the restraint did not persist for a long period of time,

and the restraint took place in a single location—the

complainant’s own home. On the other hand, assuming

that the jury credited the entirety of the complainant’s

trial testimony, we agree with the respondent that the

additional two factors—whether the restraint utilized

by the petitioner prevented the complainant from summoning assistance and reduced the petitioner’s risk of

detection—do not weigh in the petitioner’s favor, given

that the complainant ‘‘attempt[ed] to go toward the

front door to get away’’ but was unable to escape

because the petitioner had blocked the exit. To the

extent that these cut in favor of the respondent, however, they do not trump the significance of the

remaining factors that weigh in favor of the petitioner.

In light of all of these considerations, we cannot conclude ‘‘beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been

the same absent the error . . . .’’ (Internal quotation

marks omitted.) Hinds v. Commissioner of Correction,

supra, 321 Conn. 79. In other words, a properly

instructed jury reasonably could conclude that the petitioner’s intention in confining and moving the complainant was merely in furtherance of his commission of

the crime of burglary. Under the deficient instruction,

however, the jury effectively was compelled to conclude that the petitioner committed kidnapping once

it credited the complainant’s account. Ultimately, the

respondent has not proven that the omission of the

Salamon instruction was harmless beyond a reasonable

doubt. See id., 77–78. Accordingly, the petitioner is entitled to relief under our established harmless error
standard.16

Finally, we acknowledge that the habeas court, in

fashioning a remedy, ordered that the burglary charge

against the petitioner be reinstated. Because a nolle on

the burglary charge was previously entered by the state

nearly ten years ago, this raises significant double jeopardy concerns on remand.17 Those concerns, however,

are beyond the scope of the present appeal. We, therefore, leave resolution of that issue to further proceedings in the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The habeas court granted the respondent’s petition for certification to

appeal from the judgment.

2 General Statutes § 53a-94a (a) provides in relevant part: ‘‘A person is

guilty of kidnapping in the second degree with a firearm when he commits

kidnapping in the second degree, as provided in section 53a-94, and in the

commission of such offense he uses or is armed with and threatens the use

of or uses or displays orrepresents by his words or conduct that he possesses

a pistol, revolver, machine gun, shotgun, rifle or other firearm. . . .’’ In turn,

General Statutes § 53a-94 provides in relevant part: ‘‘(a) A person is guilty

of kidnapping in the second degree when he abducts another person. . . .’’

3 General Statutes § 53a-102a (a) provides in relevant part: ‘‘A person is

guilty of burglary in the second degree with a firearm when he commits

burglary in the second degree as provided in section 53a-102, and in the

commission of such offense he uses or is armed with and threatens the use

of or displays or represents by his words or conduct that he possesses a

pistol, revolver, rifle, shotgun, machine gun or other firearm. . . .’’ In turn,

General Statutes § 53a-102 (a) provides: ‘‘A person is guilty of burglary in

the second degree when such person enters or remains unlawfully in a

dwelling, while a person other than a participant in the crime is actually

present in such dwelling, with intent to commit a crime therein.’’

4 Our Supreme Court in Luurtsema held that the rule announced in Salamon retroactively applied to collateral attacks on final judgments. See Luurtsema v. Commissioner of Correction, supra, 299 Conn. 773. Because the

petitioner in the instant case was convicted of kidnapping in 2004, and the

Salamon decision was not released until 2008, the rule would have to be

applied retroactively in this case.

5 Practice Book § 23-37 provides: ‘‘At any time after the pleadings are

closed, any party may move for summary judgment, which shall be rendered

if the pleadings, affidavits and any other evidence submitted show that there

is no genuine issue of material fact between the parties requiring a trial and

the moving party is entitled to judgment as a matter of law.’’

6 The parties also agreed to stipulate to, and admit as full exhibits, the

criminal trial transcripts dated January 12 and 13, 2004, from the petitioner’s

underlying criminal case.

7 Moreover, during closing arguments, the prosecutor did not attempt to

clearly distinguish for the jury the timing of all the acts comprising the

offense of burglary from the timing of all the acts comprising the offense

of kidnapping, stating: ‘‘There is no time requirement under the law, and

His Honor will so instruct you. The length of time does not lessen the trauma

of these events to [the complainant]. Use your common sense. When you

are held at gunpoint, presumably gunpoint, for one minute ortwenty minutes,

it doesn’t erase the fact of the crime. There is no time element.’’

8 Although the respondent recognizes that this court is bound by this

standard in determining the present claim; see Hinds v. Commissioner of

Correction, 321 Conn. 56, 77–78, 136 A.3d 596 (2016); the respondent disagrees with the application of the ‘‘harmless beyond a reasonable doubt’’

standard on collateral review, and expressly preserves an objection to this

standard in such cases. We recognize that our Supreme Court recently

granted certification to appeal in Epps v. Commissioner of Correction, 153

Conn. App. 729, 104 A.3d 760 (2014), cert. granted, 323 Conn. 901, A.3d

(2016), limited, in part, to determining the proper harmless error standard

in a claim regarding the failure of the trial court to provide a Salamon

incidental restraint instruction. At present, however, we are bound to apply

the ‘‘harmless beyond a reasonable doubt’’ standard in accordance with
Supreme Court precedent. See Stuart v. Stuart, 297 Conn. 26, 45–46, 996

A.2d 259 (2010) (‘‘it is manifest to our hierarchical judicial system that [our

Supreme Court] has the final say on matters of Connecticut law and that

the Appellate Court . . . [is] bound by [its] precedent’’).

9 Although we recognize that the factors enumerated in Salamon are not

intended to constitute an exhaustive list of the possible factors that may

be relevant in a given case, the parties have not identified any other factors

relevant to the present case, and, thus, we limit our discussion to those

factors expressly identified in Salamon.

10 Specifically, during her direct examination, the following exchange took

place between the complainant and the prosecutor:

‘‘Q. What happened after that time . . . ?

‘‘A. He asked me to stand up because he wanted to go upstairs.

‘‘Q. Okay. And did you stand up?

‘‘A. Yes. . . .

‘‘Q. Did you move toward the upstairs?

‘‘A. Yes, yeah, slowly. . . .

‘‘Q. And do you recall approximately how many steps you took?

‘‘A. About four. . . .

‘‘Q. . . . And where—how far did you get toward the upstairs?

‘‘A. Not far at all. I didn’t take a step upstairs.

‘‘Q. And did the [petitioner] at all take any steps toward the upstairs?

‘‘A. Yes.

‘‘Q. How many, if you know?

‘‘A. One.’’

11 Although the respondent attempts to distinguish Johnson from the present case solely on the basis of the fact that the present case does not

involve a felony murder charge, we see no reason why this principle should

not also apply to the facts at hand. In the case of felony murder, an issue

for the factfinder to determine is whether the murder occurred immediately

before or during the commission of the predicate felony, and in the case

of incidental restraint, an issue for the factfinder to consider is whether the

kidnapping occurred during the commission of the other charged offense.

See State v. Johnson, supra, 165 Conn. App. 290–91; State v. Salamon, supra,

287 Conn. 548.

12 Although we acknowledge that the burglary charge against the petitioner

is no longer pending given that the state entered a nolle on that charge

following our reversal of the burglary conviction and remand on direct

appeal; see State v. White, supra, 97 Conn. App. 783; this has no bearing on

our analysis of the claim at present. ‘‘[A]s with any jury instruction claim,

we must examine the issue or issues before the jury, including what was

undisputed, and examine the charge ‘in view of the factual posture of the case

[at that time].’ ’’ State v. Madigosky, 291 Conn. 28, 40, 966 A.2d 730 (2009).

13 As the respondent aptly points out in his brief, we note here that ‘‘the

fact that no underlying crime has occurred does not bar a conviction for

burglary,’’ and that even ‘‘[i]f a defendant changes his mind after entering

a building and does not, in fact, commit the intended crime, a burglary has

occurred nonetheless.’’ State v. Flowers, 85 Conn. App. 681, 691, 858 A.2d

827 (2004), rev’d on other grounds, 278 Conn. 533, 543, 898 A.2d 789 (2006).

14 The prosecutor asserted during closing arguments that the state had

successfully proven that the petitioner intended to commit some crime,

although it could not identify which crime, stating: ‘‘[Defense] counsel claims

that there is no evidence whatsoever of the defendant’s intention to commit

a crime. . . . [However] there is more than sufficient evidence from which

you can infer that the defendant intended to either take money, property,

assault, or sexually assault [the complainant] . . . .’’

15 Notably, the respondent concedes in his brief to this court that ‘‘if

the petitioner’s intent had been to steal from the [complainant], and his

representation that he was armed constituted both the threat of force needed

to carry out a robbery and a restraint of the [complainant] while he . . .

search[ed] [for] valuables, then the petitioner and the habeas court would

be correct that the restraint and threat of force elements overlapped to such

an extent that a jury would need to determine whether the kidnapping was

merely incidental to the robbery.’’ Given the evidence presented at trial and

how little we know about the jury’s view of the case, however, the jury

plausibly could have believed that the petitioner intended to commit a

robbery when he entered the residence unlawfully. See General Statutes

§ 53a-133 (‘‘A person commits robbery when, in the course of committing

a larceny, he uses or threatens the immediate use of physical force upon

another person for the purpose of: [1] Preventing or overcoming resistance
to the taking of the property or to the retention thereof immediately after

the taking; or [2] compelling the owner of such property or another person

to deliver up the property or to engage in other conduct which aids in the

commission of the larceny.’’); see also footnote 14 of this opinion.

16 ‘‘[T]he appropriate remedy for the instructional impropriety identified

in Salamon is to reverse the defendant’s kidnapping conviction and to

remand the case to the trial court for a new trial. It is well established that

instructional impropriety constitutes ‘trial error’ for which the appropriate

remedy is a new trial, rather than a judgment of acquittal.’’ State v. DeJesus,

288 Conn. 418, 434–37, 953 A.2d 45 (2008).

17 We note that the petitioner did notraise this as a claim of error on appeal.