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*********************************************** 
STATE OF CONNECTICUT v. CHARLES

NICHOLAS PETERSEN

(AC 41907)

Lavine, Prescott and Moll, Js.

Syllabus

Convicted, after a jury trial, of the crime of failure to appear in the first

degree, the defendant appealed to this court. The defendant had been

arrested and charged with a felony offense; a trial was scheduled to

commence at 10 a.m. on October 3, 2017. The defendant was not present

in court on the scheduled date and time and the court ordered the

defendant’s bond forfeited and that he be rearrested. The defendant

entered the courthouse at 10:34 a.m., then briefly went outside to telephone his attorney, W. The defendant and W reentered the courthouse

and the court ordered that jury selection proceed; the defendant, however, left the courthouse and, subsequently, he was charged with failure

to appear. On appeal, the defendant claimed, inter alia, that the evidence

was insufficient to sustain his conviction. Held:

1. The evidence was sufficient to support the defendant’s conviction of

failure to appear in the first degree: the evidence admitted at trial and

the reasonable inferences from that evidence that the jury was permitted

to draw were sufficient to establish that the defendant wilfully failed

to appear, as the defendant knew that he must appear in court to

commence jury selection, he admitted that he could have walked to the

courthouse from his home and arrived on time but chose not to do so,

and the jury reasonably could have inferred from that decision that he did

not intend to appear; moreover, the defendant’s conduct after arriving

at the courthouse provided a basis for the jury reasonably to have

inferred that he wilfully failed to appear in court at the place and time

to which the charges against him were continued, the court provided

an opportunity for the defendant to remedy his failure to appear by

stating that, even though it ordered a rearrest, it was willing to commence

with jury selection that day and reopened a courtroom to do so, and,

despite knowing of this opportunity, the defendant fled the courthouse;

furthermore, the defendant did not remedy his failure to appear in the

following days and failed to surrender to authorities for more than one

month, from which the jury reasonably could have inferred that his

failure to appear was not accidental but, instead, demonstrated an intent

to avoid any incarceration that might result from his criminal trial and,

thus, his conduct after arriving at the courthouse and in the weeks that

followed October 3, 2017, arguably demonstrated a consciousness of

guilt regarding his intention to appear in court at 10 a.m.

2. The defendant could not prevail on his claim that the trial court abused

its discretion by admitting evidence of the events that occurred after

he arrived at the courthouse, which was based on his claim that the

evidence was irrelevant because once the court forfeited his bond and

ordered him rearrested, he was no longer obligated to appear; the defendant’s conduct after entering the courthouse was probative of his state

of mind as to whether he intended to appear in a courtroom at all that

day, and the jury reasonably could have inferred that the defendant’s

failure to appear at the continued proceeding was part of his scheme

to avoid the commencement of his trial.

3. The defendant’s claim that the trial court improperly admitted W’s testimony because it did not place the burden on the state to demonstrate

a compelling need for the testimony, and that the state did not show a

compelling need, was unavailing: the court understood that it must apply

the compelling need test and was satisfied that the state met that burden,

and, even if the court’s decision was ambiguous, this court presumes

the court applied the correct legal standard; moreover, W was uniquely

positioned to testify about what he told the defendant and his impression

of the defendant’s understanding of the situation, and W’s testimony

was, thus, relevant to the defendant’s state of mind.

4. The trial court properly instructed the jury on the third element of failure

to appear in the first degree: despite the defendant’s claim that the court
instructed the jury in a manner that permitted the jury to convict him

on the basis of conduct that occurred after he was no longer required

to appear, the court’s instructions were consistent with the applicable

statute (§ 53a-172 (a)) and case law, the instructions directly quoted the

statutory language the defendant contended was necessary, and, thus,

the jury understood that it could convict the defendant only if he wilfully

failed to appear when legally called according to the terms of his bail

bond; moreover, the court’s use of the phrase ‘‘as required’’ in explicating

the third element of the offense was a shorthand reference to § 53a-172

(a), and, read in context, tied the defendant’s obligation to appear at

the time and place he was legally called according to the terms of his

bail bond; furthermore, when the court forfeited the defendant’s bond,

it stated that it was willing to proceed with jury selection if W could

get the defendant to the courthouse, and the practical effect of that

statement was to condition the forfeiture of the bond until later in the

day to give the defendant an opportunity to cure his failure to appear

and, accordingly, the defendant’s bond continued to obligate him to

appear in a courtroom after he arrived at the courthouse.

Argued October 18, 2019—officially released March 31, 2020

Procedural History

Two part substitute information charging the defendant, in the first part, with the crime of failure to appear

in the first degree, and, in a second part, with having

committed an offense while on release, brought to the

Superior Court in the judicial district of New Britain,

geographical area fifteen, where the first part of the

information was tried to the jury before Graham, J.;

verdict of guilty; thereafter, the defendant was presented to the court on a plea of guilty to having committed an offense while on release; judgment of guilty, from

which the defendant appealed to this court. Affirmed.

Andrew S. Marcucci, assigned counsel, for the appellant (defendant).

Nancy L. Walker, assistant state’s attorney, with

whom, on the brief, were Brian Preleski, state’s attorney, and Dave Clifton, assistant state’s attorney, for the

appellee (state).
Opinion

PRESCOTT, J. The defendant, Charles Nicholas Petersen, appeals from the judgment of conviction, rendered after a jury trial, of failure to appear in the first

degree in violation of General Statutes § 53a-172 (a)

(1). The defendant claims that (1) there was insufficient

evidence to prove beyond a reasonable doubt that he

had wilfully failed to appear in court when the court

forfeited his appearance bond, (2) the court improperly

admitted evidence of the conduct in which he engaged

after the court had forfeited his bond, (3) the court

improperly permitted the state to call his former attorney as a witness because there was no compelling need

for his testimony, and (4) the court improperly

instructed the jury on the elements of failure to appear

in the first degree. We affirm the judgment of the

trial court.

The following procedural history and facts, as reasonably could have been found by the jury, are relevant to

this appeal. The defendant was arrested on May 7, 2015,

and charged with a felony offense.1 He was released

from custody that same day in accordance with the

terms of a nonsurety appearance bond, pursuant to

which he promised to appear in court on the date and

time specified on the bond, and ‘‘at any other place

and time to which the charge(s) against me may be

continued . . . .’’ Consistent with the language of the

bond, the defendant also acknowledged that ‘‘if I fail

to appear, in accordance with the foregoing promises

. . . I will be committing the crime of Failure to

Appear’’ and be subject to arrest. Attorney William Watson filed an appearance on behalf of the defendant on

March 29, 2017.

A jury trial with respect to the unclassified felony

and the other charges was scheduled to commence at

10 a.m. on October 3, 2017, in the Superior Court in

New Britain. The defendant knew that his presence in

court was required at that time and place.

At 10 a.m. on October 3, 2017, the court, Hon. Edward

J. Mullarkey, judge trial referee, the prosecutor, the

clerk, and Watson were present in courtroom 4A, where

jury selection was to be held. The defendant, however,

was not. The court passed the matter to give Watson

time to find the defendant. During that time, judicial

marshals also searched the courthouse for the defendant. He still was not present at 10:25 a.m. Accordingly,

the court ordered that the defendant’s bond be forfeited

and that he be rearrested. The court also ordered counsel and the clerk to remain available in case the defendant appeared later that day. Watson returned to his

office across the street from the courthouse.

The defendant entered the courthouse at 10:34 a.m.

After being unable to locate his attorney, the defendant

briefly went outside the courthouse and contacted Wat-
son by telephone. Watson told the defendant that they

needed to be in the courthouse because the judge had

stated that he would ‘‘deal with the outstanding rearrest

orders . . . and we would continue with jury selection’’ if the defendant appeared. Watson informed the

defendant that they needed to address the defendant’s

outstanding failure to appear, and he also told the defendant what steps the court might take with respect to

his failure to appear in court at 10 a.m. Watson testified

that he intended to ask the court to vacate the rearrest order.

The defendant and Watson met and reentered the

courthouse at approximately 10:45 a.m. They proceeded

to courtroom 4A together, but it was locked. The clerk

received word that Watson had found the defendant and

that the defendant was in the courthouse. She conveyed

this information to the court. Upon learning this, the

court ordered that the defendant be taken into custody.

The court also ordered that jury selection proceed in

a courtroom on the third floor that had direct access

to the courthouse lockup facilities, which would be

necessary if the defendant were taken into custody.

The court ordered the clerk to inform counsel of this

change. Watson, in turn, informed the defendant that

he was required to appear in the courtroom on the

third floor.

Court was opened in a third floor courtroom to continue the proceedings. The prosecutor, the clerk, and

Watson appeared in that courtroom, but the defendant

did not. Surveillance footage later showed that the

defendant had left the courthouse. The court indicated

that its prior rearrest order would remain in effect. Per

the court’s instructions, counsel and the clerk remained

on standby until approximately noon, in case the defendant appeared again. Although the defendant had

entered the courthouse at 10:34 a.m. on October 3, 2017,

at no time did he appear in a courtroom before a judge

as required. Jury selection did not proceed, and an

arrest warrant charging the defendant for failure to

appear in the first degree in violation of § 53a-172 was

later issued. The defendant waited approximately one

month before he surrendered to law enforcement, during which time he claimed he needed to ‘‘put [his] affairs

in order . . . .’’

The defendant subsequently was arraigned on the

charge of failure to appear in the first degree for ‘‘wilfully fail[ing] to appear in court when legally called

according to the terms of his bail bond . . . .’’ The

state also charged the defendant in a part B information

with being a subsequent offender in possession of a

controlled substance and with committing an offense

while on release.

Following the grant of a motion to suppress filed by

the defendant, the court dismissed all of the charges

pending against the defendant except for the charge of
failure to appear in the first degree and the charge of

committing an offense while on release. The defendant

pleaded not guilty to the remaining charges and elected

to be tried by a jury with respect to the charge of failure

to appear in the first degree and by the court with

respect to the charge in the part B information.

Trial commenced on March 8, 2018. After the state

rested, the court, Graham, J., denied the defendant’s

motion for a judgment of acquittal. The defendant testified that on October 3, 2017, he awoke at 7 a.m. and

was ready for court at approximately 8 a.m. He admitted

that he had to be in court for jury selection that day, so

he planned to arrive at court at 9:30 a.m. The defendant

testified that, the night before, he had arranged for his

friend, Jason Nadeau, to drive him to court because the

defendant did not own a vehicle and his license had

been suspended. The defendant lived 1.6 miles from

the courthouse, and he testified that the drive was

approximately fifteen minutes long. He also testified

that he briskly could have walked that distance in

thirty minutes.

The defendant testified that he tried to confirm his

ride with Nadeau at approximately 9:20 a.m. on October

3, 2017, but did not receive a response from him. He

began looking for another ride to court. According to

the defendant, he contacted his sister at approximately

9:25 or 9:30 a.m., then contacted his friend Shawn, and

then Amanda Russo. The defendant called Todd Russo

(Russo) at approximately 9:30 a.m.; Russo returned that

call at approximately 9:45 a.m. Russo agreed to drive

the defendant to court and arrived at the defendant’s

house at approximately 10 a.m.

The defendant testified that when he arrived at the

courthouse and contacted Watson by telephone, Watson told him that ‘‘they revoked [his bond]. They issued

a cash only bond and a warrant . . . .’’ He also testified

that Watson did not tell him to go to a different courtroom. Instead, he claimed that Watson told him that

there was nothing more he could do.

Russo also testified on behalf of the defendant. He

had known the defendant for the defendant’s entire life.

At approximately 9:45 a.m. on the morning of October

3, 2017, he received a call from the defendant, who

asked for a ride to court. Following that call, Russo got

dressed and went to the defendant’s house. It took

approximately fifteen to twenty minutes to get there.

After picking the defendant up, Russo drove straight

to the courthouse. Russo testified that they arrived at

the courthouse ‘‘later than [10 a.m.] but not by much’’

and that he watched the defendant enter the courthouse. During closing arguments to the jury, the state

argued that, as demonstrated by the defendant’s continuing course of conduct throughout the day of October

3, 2017, the defendant wilfully had failed to appear in

court on that date for trial on his pending felony charge.
The state contended that the defendant’s intent was to

prevent the commencement of his trial, and that even

though he had gone to the courthouse that morning,

he never intended to appear in the courtroom for the

commencement of trial. The state argued that the jury

should consider his flight from the courthouse as consciousness of guilt evidence from which it could infer

that his failure to appear in court for jury selection that

day was wilful.

In response, the defendant argued to the jury, through

counsel, that his conduct in failing to appear in the

courtroom at 10 a.m. on October 3, 2017, was not wilful.

The defendant asserted that if he truly had not intended

to appear in court that day, he never would have bothered coming to the courthouse at all. With respect to

his decision to leave the courthouse after he had met

with Watson, the defendant argued that he knew that

he likely was to be taken into custody and that he

became ‘‘understandably upset and frustrated about the

fact that no one seemed to care that he had done his

best to get to court on time that day . . . .’’ Finally,

the defendant argued to the jury that it should not

consider his conduct in leaving the courthouse because,

by that time, his bond already had been forfeited as a

consequence of Judge Mullarkey’s order and, thus, he

no longer was under an obligation to appear in a courtroom. In sum, the defendant contended to the jury that

he unsuccessfully had tried to get to court on time and

that his decision to leave the courthouse was a ‘‘red

herring’’ and should not be considered as evidence of

wilfulness because he was no longer obligated to come

to court and simply was frustrated that he likely was

going to be taken into custody during his trial.

The jury found the defendant guilty of failure to

appear in the first degree. The defendant then elected

to plead guilty to the charge in the part B information,

conditioned on his right to file this appeal. See Practice

Book § 61-6. The court subsequently imposed on the

defendant a total effective sentence of five years of

incarceration, and this appeal followed.

I

The defendant first claims that there was insufficient

evidence to support his conviction of failure to appear

in the first degree because ‘‘[n]o reasonable fact finder

could determine . . . that the defendant’s failure to

appear prior to 10:25 a.m. on October 3, 2017 was wilful.’’ With respect to this claim, the defendant makes

two related arguments. First, the defendant asserts that

any evidence regarding the events that occurred after

he arrived at the courthouse was legally irrelevant to

the jury’s assessment of whether he wilfully failed to

appear prior to the forfeiture of his bond because, once

his bond had been forfeited, he no longer was under a

legal obligation to appear in a courtroom. Second, the

defendant argues that, in the absence of the evidence
regarding his conduct after he arrived at the courthouse,

the remaining evidence was insufficient to prove that

he wilfully failed to appear in court at the time that his

bond was forfeited. In this regard, the defendant asserts

that the facts of his case are nearly identical to the facts

in State v. Khadijah, 98 Conn. App. 409, 909 A.2d 65

(2006), appeal dismissed, 284 Conn. 429, 934 A.2d 241

(2007), in which this court concluded that the evidence

was insufficient to prove that the defendant in that case

wilfully failed to appear. We are not persuaded that the

evidence in the present case was insufficient to prove

beyond a reasonable doubt that the defendant’s failure

to appear for trial was wilful, and we find the defendant’s reliance on Khadijah unconvincing.

We begin our analysis with the well established standard of review for assessing an insufficiency of the

evidence claim. ‘‘In reviewing the sufficiency of the

evidence to support a criminal conviction we apply a

[two part] test. First, we construe the evidence in the

light most favorable to sustaining the verdict. Second,

we determine whether upon the facts so construed and

the inferences reasonably drawn therefrom the [finder

of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a

reasonable doubt. . . .

‘‘We note that the [finder of fact] must find every

element proven beyond a reasonable doubt in order to

find the defendant guilty of the charged offense, [but]

each of the basic and inferred facts underlying those

conclusions need not be proved beyond a reasonable

doubt. . . . If it is reasonable and logical for the [finder

of fact] to conclude that a basic fact or an inferred fact

is true, the [finder of fact] is permitted to consider the

fact proven and may consider it in combination with

other proven facts in determining whether the cumulative effect of all the evidence proves the defendant

guilty of all the elements of the crime charged beyond

a reasonable doubt. . . .

‘‘In evaluating evidence, the [finder] of fact is not

required to accept as dispositive those inferences that

are consistent with the defendant’s innocence. . . .

The [finder of fact] may draw whatever inferences from

the evidence or facts established by the evidence it

deems to be reasonable and logical. . . .

‘‘On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether

there is a reasonable view of the evidence that supports

the [finder of fact’s] verdict of guilty.’’ (Internal quotation marks omitted.) State v. Shin, 193 Conn. App. 348,

357–58, 219 A.3d 432, cert. denied, 333 Conn. 943, 219

A.3d 374 (2019).

As a preliminary matter, we first address the defendant’s assertion that, in assessing the sufficiency of the
evidence, this court should not consider as part of that

calculus any evidence presented to the jury regarding

his conduct after the court revoked his bond and

ordered him rearrested. We reject this assertion

because it is inconsistent with the well established rule

that the sufficiency of the evidence must be assessed

in light of all of the evidence submitted to the jury,

including evidence that the defendant argues was

improperly admitted.

As we recently stated, established case law commands us to ‘‘review claims of evidentiary insufficiency

in light of all of the evidence [adduced at trial]. . . .

State v. Morelli, 293 Conn. 147, 153, 976 A.2d 678 (2009).

In other words, we review the sufficiency of the evidence as the case was tried . . . . Accordingly, we

have traditionally tested claims of evidentiary insufficiency by reviewing no less than, and no more than, the

evidence introduced at trial. . . . [Id.]; see also State

v. Adams, 139 Conn. App. 540, 550, 56 A.3d 747 (2012)

(appellate review of evidentiary insufficiency claim

incorporates all evidence, even inadmissible evidence,

adduced at trial), cert. denied, 308 Conn. 928, 64 A.3d

121 (2013).’’ (Citations omitted; internal quotation

marks omitted.) State v. Cancel, 149 Conn. App. 86,

94, 87 A.3d 618, cert. denied, 311 Conn. 954, 97 A.3d

985 (2014).

In light of this rule, we next discuss the sufficiency

of the evidence as a whole and the defendant’s reliance

on State v. Khadijah, supra, 98 Conn. App. 409. We

begin with the elements of the offense for which the

defendant was charged. Section 53a-172 (a) provides

in relevant part: ‘‘A person is guilty of failure to appear

in the first degree when (1) while charged with the

commission of a felony and while out on bail or released

under other procedure of law, such person wilfully fails

to appear when legally called according to the terms

of such person’s bail bond or promise to appear . . . .’’

The defendant’s insufficiency of the evidence claim

focuses only on the state’s obligation to demonstrate

that his failure to appear was wilful.

‘‘To prove the wilful element of failure to appear the

state must prove beyond a reasonable doubt . . . that

the defendant received and deliberately ignored a notice

to appear . . . . [T]he word wilful means doing a forbidden act purposefully in violation of the law. It means

that the defendant acted intentionally in the sense that

his conduct was voluntary and not inadvertent . . . .

Thus, wilful misconduct is intentional misconduct,

which is conduct done purposefully . . . .’’ (Citation

omitted; emphasis altered; internal quotation marks

omitted.) State v. Bereis, 114 Conn. App. 554, 561, 970

A.2d 768, cert. denied, 293 Conn. 902, 975 A.2d 1278

(2009).

‘‘[T]he state of mind of one accused of a crime is

often the most significant and, at the same time, the
most elusive element of the crime charged. . . .

Because it is practically impossible to know what someone is thinking or intending at any given moment, absent

an outright declaration of intent, a person’s state of

mind is usually [proven] by circumstantial evidence

. . . . For example, intent may be proven by conduct

before, during and after [the commission of the crime].

Such conduct yields facts and inferences that demonstrate a pattern of behavior and attitude . . . that is

probative of the defendant’s mental state.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Bonilla, 317 Conn. 758, 766, 120 A.3d 481 (2015).

The evidence admitted at trial, and the reasonable

inferences from that evidence that the jury was permitted to draw, were more than sufficient to establish that

the defendant wilfully failed to appear in court for the

commencement of his jury trial. The defendant knew

that he must appear in court on October 3, 2017, at 10

a.m. to commence jury selection. The defendant lived

only 1.6 miles from the courthouse and admitted in his

testimony that he could have walked to the courthouse

and arrived by 10 a.m. He deliberately chose not to do

so, and the jury reasonably could have inferred from

that choice that he did not really intend to appear in

court.

Additionally, the defendant’s conduct after arriving

late to the courthouse also provides a basis for the jury

reasonably to have inferred that he wilfully chose not

to appear in court ‘‘at the place and time to which the

charges against [him had been] continued . . . .’’ The

court provided the defendant an opportunity to remedy

his failure to appear in court at 10 a.m. by communicating to the defendant through his attorney that, even

though he had ordered a rearrest of the defendant, it

was still willing to commence with jury selection that

day and, in fact, reopened a courtroom to do so. Despite

knowing of an additional opportunity to appear for jury

selection, and his attorney’s direction to the defendant

that he must appear in a courtroom on the third floor,

the defendant instead chose to flee the courthouse.

From this evidence, the jury reasonably could have

inferred that, in spite of his protestations, the defendant

had never intended to appear in a courtroom for jury

selection at any point that day even though he had come

to the courthouse that morning. See State v. Turmon,

34 Conn. App. 191, 196, 641 A.2d 138 (evidence sufficient

to prove wilful failure to appear even though defendant

came to courthouse on required date but left because

of alleged intestinal illness without appearing in courtroom or notifying court personnel), cert. denied, 229

Conn. 922, 642 A.2d 1216 (1994).

Moreover, despite knowing that he had failed to

appear in court for the commencement of jury selection,

the defendant did nothing to remedy that failure in the

following days, such as filing a motion to vacate the
rearrest order. He did not surrender to authorities for

more than one month, a fact from which the jury reasonably could have inferred that his failure to appear at

10 a.m. on October 3, 2017, was not accidental but,

instead, demonstrated an intent to avoid, at least temporarily, any incarceration that might result following the

completion of his criminal trial. Thus, his conduct after

arriving at the courthouse late and in the weeks that

followed October 3, 2017, arguably demonstrated a consciousness of guilt regarding his intention to appear in

court at 10 a.m. See State v. Oliveras, 210 Conn. 751,

759, 557 A.2d 534 (1989) (‘‘[e]vidence that an accused

has taken some kind of evasive action to avoid detection

for a crime, such as flight, concealment of evidence, or

a false statement, is ordinarily the basis for a charge

on the inference of consciousness of guilt’’).2

In large measure, the defendant’s insufficiency of the

evidence claim is premised on the misguided assertion

that the jury was obligated to credit his testimony that

his conduct prior to 10:34 a.m. demonstrated that he

had intended to appear in court as required. See, e.g.,

State v. Gibson, 114 Conn. App. 295, 303, 969 A.2d 784

(2009) (jury was free to not credit defendant’s ‘‘testimony about why he missed his court date’’), reversed

in part on other grounds, 302 Conn. 653, 31 A.3d 346

(2011).3 For example, the jury was not obligated to

credit the defendant’s testimony (1) regarding the

alleged efforts that the defendant made to arrange transportation to the courthouse, (2) that he had called the

clerk’s office to inform the court that he would be late,

and (3) that he left the courthouse because Watson had

told him in the hallway ‘‘nothing could be done’’ to

vacate the order of a rearrest.

In support of the defendant’s contention that his failure to appear was not wilful, he relies primarily on

State v. Khadijah, supra, 98 Conn. App. 409, in which

this court concluded that the evidence was insufficient

to prove that the defendant in that case wilfully failed

to appear. Id., 418–19. Khadijah, however, is distinguishable from the present case.

In Khadijah, the defendant appeared for the first day

of jury selection in a criminal prosecution of various

felony charges. Id., 411. At the end of the first day of

jury selection, the court ordered the parties to return

to court the next day at 10:45 a.m. to resume the proceedings. Id. The defendant then went to work delivering newspapers from 1 to 8 a.m. Id., 415. When the

defendant returned home after her shift, she sat on

her couch and told her boyfriend to wake her if she

inadvertently fell asleep. Id. The defendant, in fact, fell

asleep, but she did not wake up until her attorney telephoned her from the courthouse. Id. The defendant

immediately departed for court but arrived at approximately 11:30 a.m., forty-five minutes after the proceeding was scheduled to begin. Id., 415 n.6. Later that day,
the trial court refused to vacate the rearrest that had

been ordered. Id., 412.

On the basis of these facts, a jury found that the

defendant wilfully failed to appear for the second day

of jury selection. Id. On appeal, however, this court

concluded that ‘‘[w]orking late the night before a court

appearance, pursuant to a regularly kept work schedule,

failing to set an alarm clock or asking a friend to awaken

her from a potentially inadvertent doze does not amount

to purposefully and intentionally absenting oneself from

the courthouse.’’ Id., 418.

The present case differs substantially from Khadijah.

In the present case, the defendant admitted that he

could have walked to the courthouse and arrived in

time for the commencement of jury selection. Additionally, the defendant’s conduct after arriving at the courthouse, unlike the defendant’s conduct in Khadijah, provided a basis for the jury to infer that the defendant

never intended to appear in court on that day. Despite

being given an opportunity by the court to commence

jury selection even though he had arrived late, the

defendant in the present case decided to flee the courthouse rather than attempt to persuade the court to

vacate the order of rearrest. From this conduct, the

jury was free to infer that the defendant had never

intended to appear in court at the time and place to

which the charges had been continued in order to commence jury selection. By contrast, the defendant in Khadijah appeared in a courtroom, albeit late, and took

steps to persuade the court that jury selection should

resume.

In sum, the jury in the present case reasonably could

have inferred that the defendant’s conduct throughout

the day evinced an intent to avoid the commencement

of his trial. The jury was free to discredit the defendant’s

version of events and his testimony that he fully

intended to appear in court that day and only fled the

courthouse after he had been told by his attorney that

nothing could be done with respect to the court’s decision to order a rearrest earlier that morning. See State

v. Whitford, 260 Conn. 610, 627 n.9, 799 A.2d 1034 (2002)

(‘‘[i]t is axiomatic that the jury, in its role as fact finder,

may choose to believe all, some or none of a witness’

testimony’’). Instead, the jury reasonably could have

considered the defendant’s conduct throughout the day

of October 3, 2017, and in the weeks that followed,

as evidence that the defendant never had intended to

appear in court at 10 a.m. for the commencement of

jury selection. We therefore conclude that there was

sufficient evidence from which the jury reasonably

could have found the defendant guilty beyond a reasonable doubt.

II

The defendant next claims that the trial court abused
its discretion by admitting evidence of the events that

occurred after he entered the courthouse at 10:34 a.m.

on October 3, 2017. Such evidence consisted of (1)

testimony and video footage regarding the defendant’s

movements within and departure from the courthouse,

(2) testimony regarding discussions he had with his

attorney regarding the proceeding after he arrived at

the courthouse, and (3) evidence that the defendant

failed to surrender to law enforcement authorities in

the weeks that followed his failure to appear.

The defendant’s principal argument in this regard is

that such evidence was irrelevant because, once the

trial court had forfeited his bond and ordered him to

be rearrested at 10:25 a.m., he no longer was under any

obligation to appear. Thus, according to the defendant,

his conduct after arriving at the courthouse, including

his decision to depart the courthouse, was not probative

of any material issue in the case. We disagree because,

even if we accept for purposes of argument, the premise

of his assertion that he no longer was under a legal

obligation to appear in court after 10:25 a.m. when the

court revoked his bond, his subsequent conduct was

probative of whether he ever had intended, in the first

instance, to appear in a courtroom at any time that day.4

At trial, the defendant filed a motion in limine to

exclude evidence of the events that occurred after he

entered the courthouse. Upon hearing oral argument

on the motion, the court ruled as follows: ‘‘I understand

why the defense would prefer this evidence not come

in but based on the pieces of factual information available to me, it sounds like a classic consciousness of

guilt testimony. And on that basis alone it’s admissible

whether it has some greater relevance beyond that we

will see but certainly at least as a consciousness of

guilt, it’s admissible, so the motion [in limine] by the

defendant is denied.’’5

(Emphasis added.)

‘‘We begin by setting forth the standard of review

and legal principles applicable to this claim. To the

extent [that] a trial court’s admission of evidence is

based on an interpretation of the Code of Evidence,

our standard of review is plenary. . . . We review the

trial court’s decision to admit evidence, if premised on

a correct view of the law, however, for an abuse of

discretion. . . .

‘‘It is axiomatic that [if premised on a correct view

of the law, the] trial court’s ruling on the admissibility

of evidence is entitled to great deference. . . . In this

regard, the trial court is vested with wide discretion in

determining the admissibility of evidence . . . .

Accordingly, [t]he trial court’s ruling on evidentiary

matters will be overturned only upon a showing of a

clear abuse of the court’s discretion. . . . Furthermore, [i]n determining whether there has been an abuse

of discretion, every reasonable presumption should be

made in favor of the correctness of the trial court’s
ruling, and we will upset that ruling only for a manifest

abuse of discretion.’’ (Citations omitted; internal quotation marks omitted.) State v. Ayala, 333 Conn. 225,

243–44, 215 A.3d 116 (2019).

We conclude that the court did not abuse its discretion by ruling that evidence of the events that occurred

after the defendant entered the courthouse was relevant

and admissible. ‘‘Relevant evidence, that is, evidence

having any tendency to make the existence of any fact

that is material to the determination of the proceeding

more probable or less probable than it would be without

the evidence . . . generally is admissible . . . unless

its probative value is outweighed by the danger of unfair

prejudice or surprise, confusion of the issues, or misleading the jury, or considerations of undue delay, waste

of time or needless presentation of cumulative evidence.’’ (Internal quotation marks omitted.) State v.

Rosario, 99 Conn. App. 92, 101, 912 A.2d 1064, cert.

denied, 281 Conn. 925, 918 A.2d 276 (2007); see also

Conn. Code Evid. § 4-1. Evidence that the defendant

was told by Watson that his case had been continued

in a reassigned courtroom and, upon hearing that information, he departed the courthouse, was probative of

the defendant’s state of mind regarding whether he

wilfuly had chosen not to appear in court prior to the

time that his bond was called. Indeed, the evidence

reasonably could have supported an inference that the

defendant’s departure from the courthouse later in the

morning and his failure to appear at the continued proceeding was part of his overall scheme that day to

avoid the commencement of his trial. Thus, even if we

accepted the premise of the defendant’s argument that

he was no longer under an obligation to appear in court

after his bond had been forfeited, the evidence of his

conduct after arriving at the courthouse was still independently relevant to the defendant’s state of mind.

Accordingly, we reject the defendant’s evidentiary

claim.6

III

The defendant next claims that the court abused its

discretion by admitting Watson’s testimony because it

failed to place the burden on the state to demonstrate

a compelling need for the testimony and that there was,

in fact, no compelling need shown by the state. We

disagree with the defendant.

The following additional facts are relevant to our

disposition of this claim. Watson did not represent the

defendant at his trial on the charge of failure to appear.

Prior to the start of trial, the defendant filed two motions

in limine to prevent Watson from testifying. In the

motions in limine, the defendant asserted that Watson’s

testimony was irrelevant and otherwise protected by

the attorney-client privilege and work product doctrine.

The motions in limine did not assert, however, that the

state would be unable to demonstrate a compelling
need for Watson’s testimony. The court deferred resolution of the motions until trial.

At trial, the state proffered Watson’s testimony outside the presence of the jury. The defendant objected

on the basis that another witness could testify as to the

defendant’s contact with Watson’s law firm as well as

the defendant’s movements within the courthouse. During argument on the motions, the court indicated that

it needed to apply the compelling need test set forth

in ‘‘the Ullmann case . . . .’’ See Ullmann v. State, 230

Conn. 698, 716–21, 647 A.2d 324 (1994). Defense counsel

asserted to the court that, in his view, the state had

failed to meet its burden to demonstrate a compelling

need for Watson’s testimony.

In response, the state requested that the court defer

its ruling on the defendant’s objection until after the

October 3, 2017 courtroom clerk had testified because

the clerk’s testimony would illustrate that Watson’s testimony would concern facts to which only he was privy.

The court granted the state’s request.

After hearing testimony from the courtroom clerk, a

marshal, and the deputy chief clerk of the criminal

division at the courthouse, the court heard additional

argument regarding the motions in limine, during which

defense counsel again argued that the state had failed

to meet its burden to establish a compelling need for

the testimony. Defense counsel argued that a clerk or

marshal could testify to the defendant’s movements

within the courthouse but did not identify anyone in

particular who may have such knowledge. In response,

the state argued that it knew of no one else who could

testify as to the information that Watson had conveyed

to the defendant in the courthouse.

The court ultimately denied in part the defendant’s

motions in limine. In doing so, the court explicitly

referred to the compelling need test and determined

that the state had met its burden in this case. It specifically reasoned that it had not heard any witness testify

as to whether and how the defendant had been informed

of his trial date, Watson’s efforts to inform the defendant

of the court date, Watson’s course of action after the

court ordered the defendant’s rearrest, the defendant’s

contact with Watson and the extent of their discussions,

and the defendant’s movements within the courthouse.

Thus, the court permitted the state to call Watson as a

witness, but ordered that the state would not be allowed

to elicit attorney-client privileged communications

from him.

In Ullmann v. State, supra, 230 Conn. 716–21, our

Supreme Court held that the state may call a defendant’s

prior defense counsel to testify as a witness in his criminal prosecution provided that the state demonstrates

a ‘‘compelling need’’ for that testimony. In so holding,

the court adopted the ‘‘compelling need’’ test applied
by federal courts in criminal cases in which a party

seeks testimony from the prosecuting attorney. (Internal quotation marks omitted.) Id., 716, 718. In describing

the parameters of the test, the court explained as follows: ‘‘When either party in a criminal case seeks testimony from the prosecuting attorney, the federal courts

have applied a ‘compelling need’ test. . . . Under this

test, the party wishing to call a prosecutor to testify

must show that the testimony of the prosecutor is ‘necessary and not merely relevant,’ and that all other available sources of comparably probative evidence have

been exhausted.’’ (Citations omitted; footnote omitted.)

Id., 716–17. According to our Supreme Court, the ‘‘same

or analogous concerns’’ underlying the compelling need

test with respect to prosecuting attorneys ‘‘exist if the

prospective witness is or had been counsel for the

defendant.’’ Id., 717. The court believed ‘‘that the policy

concerns underlying the compelling need test are valid

and adopt[ed] that test as the criteria to be applied

when either side in a criminal case seeks to call a

prosecutor or defense attorney, who is or has been

professionally involved in the case, to testify. The compelling need test strikes the appropriate balance

between the need for the information and the potential

adverse effects on the attorney-client relationship and

the judicial process in general.’’ (Footnote omitted.)

Id., 717–18.

‘‘[T]he trial court is charged with making the determination of the materiality of the witness’ testimony and

must, of course, honor the defendant’s constitutional

rights of confrontation and compulsory process. . . .

[T]he vast weight of authority indicates that any decision whether or not to allow an attorney to be called

is left to the discretion of the trial judge. Therefore, in

reviewing [the] appellant’s claims we will only reverse

the decision of the trial court if there was an abuse

of discretion.’’ (Citations omitted; internal quotation

marks omitted.) Ullmann v. State, supra, 230 Conn. 721.

We disagree with the defendant’s contention that the

trial court did not properly apply the compelling need

test and, instead, placed the burden on him to demonstrate why there was not a compelling need for Watson’s

testimony. The court’s comments in denying the motion

make clear that it fully understood that it must apply

the compelling need test as set forth in Ullmann and

that it was satisfied that the state had met its burden

in that regard. Moreover, even if the court’s decision

was ambiguous, it is well settled that, in the absence

of a contrary indication, we must presume that the

court applied the correct legal standard. See, e.g., In

re Jason R., 306 Conn. 438, 456, 51 A.3d 334 (2012).

We also disagree with the defendant’s claim that the

court abused its discretion by concluding that there

was, in fact, a compelling need for Watson’s testimony.

Although it is possible that other witnesses might have
been available to testify as to the defendant’s movements within the courthouse, Watson was uniquely

positioned to testify about what he told the defendant

and his impression of the defendant’s understanding

of the situation facing him on October 3, 2017. We,

therefore, conclude that the court did not abuse its

discretion by finding that Watson’s testimony was necessary and that all other sources of comparably probative evidence had been exhausted. Moreover, for the

reasons discussed in part II of this opinion, Watson’s

testimony was relevant to the defendant’s state of mind

on October 3, 2017. Accordingly, we conclude that the

court did not abuse its discretion in permitting Watson

to testify.

IV

The defendant’s final claim is that the court’s jury

instruction on the third element of failure to appear in

the first degree was improper because, in essence, it

informed the jury that the state must prove that he

wilfully failed to appear ‘‘as required’’ rather than ‘‘when

legally called according to the terms of [his] bail bond

. . . .’’ General Statutes § 53a-172 (a). Specifically, the

defendant argues that the court improperly instructed

the jury in a manner that permitted it to find that the

defendant was guilty of failure to appear on the basis

of conduct that occurred after he was no longer under

an obligation to appear in court because his appearance

bond already had been forfeited by the court.7

In response, the state contends that the court properly instructed the jury because the instructions were

based on a proper interpretation of the elements of the

offense contained in § 53a-172. We agree with the state

that the court’s instructions were proper under the circumstances of this case.

The following facts and procedural history are relevant to this claim. The defendant submitted a written

request to charge on the elements of failure to appear

in the first degree. That request to charge stated in

relevant part: ‘‘The defendant is charged in count one

with failure to appear in the first degree. The statute

defining this offense reads in pertinent part as follows:

a person is guilty of failure to appear in the first degree

when while charged with the commission of a felony

and while out on bail or released under other procedure

of law, he wilfully fails to appear when legally called

according to the terms of his bail bond or promise to

appear. . . .

‘‘The third element is that the defendant wilfully failed

to appear when legally called according to the terms

of his bail bond. as required8

. . . .

‘‘In summary, the state must prove beyond a reasonable doubt that (1) the defendant was released on bail

on the condition that he appear personally in connection with his criminal proceeding at a later date, (2) he
was required to appear in court on October 3, 2017,

and (3) he wilfully failed to appear on that date when

legally called according to the terms of his bail bond.’’

(Footnote added.) The defendant’s request to charge

did not seek an instruction to the jury that it was prohibited from finding the defendant guilty for failing to

appear in court at a date and time after his bail bond

had been forfeited.

During the afternoon of the first day of evidence, the

court distributed its draft charge to the parties. With

respect to the instructions on the elements of failure

to appear, the court’s proposed charge directly quoted

the language of § 53a-172 (a) (1). The draft charge thereafter discussed each of the individual elements of the

offense. With respect to the third element, the charge

stated: ‘‘The third element is that the defendant wilfully

failed to appear as required.’’

During the charge conference, defense counsel

objected to the court’s proposed instruction on the third

element of failure to appear because the instruction did

not specifically state that a person is guilty of failure

to appear if he wilfully failed to appear when legally

called according to the terms of his bond. Defense counsel argued that the court’s proposed use of the phrase

‘‘as required’’ unduly broadened the scope of the statute

because, in his view, the jury could only consider the

defendant’s failure to appear at the time that the clerk

‘‘recite[d] the bond, call[ed] for the defendant, and the

defendant [did] not show himself before the court.’’ In

the defendant’s view, once the bond had been forfeited

at 10:25 a.m., he was no longer under any obligation

to appear in a courtroom. The court’s instruction, the

defendant contended, permitted the jury to find him

guilty on the basis of conduct that occurred at a time

that he was no longer legally called according to the

terms of his bail bond. The court subsequently overruled his objection and instructed the jury in accordance with the language used in the draft charge.9

Our standard of review pertaining to a claim of

instructional error is well established. ‘‘When reviewing

the challenged jury instruction . . . we must adhere

to the well settled rule that a charge to the jury is to

be considered in its entirety, read as a whole, and judged

by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not

whether it is as accurate upon legal principles as the

opinions of a court of last resort but whether it fairly

presents the case to the jury in such a way that injustice

is not done to either party under the established rules

of law. . . . As long as [the instructions] are correct

in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions

as improper.’’ (Internal quotation marks omitted.) State

v. Browne, 84 Conn. App. 351, 366, 854 A.2d 13, cert.

denied, 271 Conn. 931, 859 A.2d 930 (2004).
For the following reasons, we conclude that the

court’s instruction on the third element of failure to

appear in the first degree was consistent with the plain

meaning of the statute as well as case law interpreting

the statute, and did not improperly permit the jury,

under the circumstances of this case, to convict the

defendant solely on the basis of conduct that occurred

after he no longer was under a legal obligation to appear

in court.

First, it is important to note that the court’s instructions on the elements of the offense began by directly

quoting the statutory language that the defendant contends was necessary to confine the offense to its proper

limits. Thus, the jury necessarily understood that it

could convict the defendant only if ‘‘he wilfully fail[ed]

to appear when legally called according to the terms

of [his] bail bond.’’

Second, we conclude that the court’s use of the

phrase ‘‘as required’’ in further explicating the third

element of the offense was simply a shorthand reference back to the language of the statute: ‘‘when legally

called according to the terms of [his] bail bond . . . .’’

The defendant’s bail bond ‘‘required’’ him to appear in

court at 9 a.m. on May 21, 2015, and ‘‘at any other place

and time to which the charge(s) against me may be

continued . . . .’’ The court’s use of the phrase ‘‘as

required,’’ in our view, and when read in context, sufficiently tied the defendant’s obligation to appear at the

time and place he was ‘‘legally called according to the

terms of [his] bail bond . . . .’’

Third, the court’s instructions were also consistent

with this court’s statement that, to secure a conviction

for failure to appear, ‘‘the state must prove beyond a

reasonable doubt that the defendant was legally ordered

to appear under the terms of his bail bond, that he failed

to appear and that such failure was wilful.’’ (Internal

quotation marks omitted.) State v. Pauling, 102 Conn.

App. 556, 568, 925 A.2d 1200, cert. denied, 284 Conn.

924, 933 A.2d 727 (2007).10

Fourth, we reject the defendant’s assertion that the

court’s instructions improperly permitted the jury to

convict the defendant for conduct in which he may

have engaged after the court forfeited his bond at 10:25

a.m. The court’s instructions adequately informed the

jury that it could find the defendant guilty if they concluded that the defendant failed to appear in court, as

required by the terms of his bail bond, with respect to

a felony charge at 10 a.m. on October 3, 2017, and that

his failure to appear at that time and place was wilful.

Even if we were to agree that the court’s instructions

permitted the jury to find the defendant guilty on the

basis of conduct that occurred after the court forfeited

his bond at 10:25 a.m., we disagree with the defendant

that a verdict of guilty on that basis would be inconsis-
tent with § 53a-172 (a) (1). When the court ordered the

defendant’s bond forfeited, it also indicated that it was

willing to proceed with jury selection if Watson was

able to get his client to the courthouse. Watson

explained this fact to the defendant and told him to

appear in the courtroom that the court was opening

for that purpose. The practical effect of the court’s

statement was to stay or condition the forfeiture of the

defendant’s bond until later in the day in order to give

the defendant the benefit of an opportunity to cure his

failure to appear. Although the court could have been

clearer regarding its intent to condition its order forfeiting the defendant’s bond and ordering him rearrested,

we conclude that no particular formalities such as

vacating or formally staying the forfeiture were necessary in order to, in effect, grant the defendant additional

time to appear in court without simultaneously terminating his legal obligation to do so. Accordingly, in our

view, the defendant’s bond continued to obligate him

to appear in a courtroom after he had arrived at the

courthouse.11 Under these circumstances, we are unpersuaded that the court’s instructions permitted the jury

to find the defendant guilty for conduct occurring at a

time when he was no longer required to appear

according to the terms of his bail bond.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Although the jury was not informed about the specific charges pending

against the defendant at the time of his failure to appear, the record indicates

that the defendant had been charged with possession of narcotics, an unclassified felony; two misdemeanor drug offenses; and two motor vehicle violations.

2 The trial court characterized the defendant’s conduct as evincing a consciousness of guilt, and the jury was free to consider it on that basis. In

our view, however, this evidence is better described as circumstantial evidence of the defendant’s state of mind regarding whether he wilfully chose

not to appear.

3

In Gibson, this court concluded that the evidence presented at trial was

sufficient to support the defendant’s conviction for failure to appear in the

first degree but awarded him a new trial because of prosecutorial impropriety

during closing argument. State v. Gibson, supra, 114 Conn. App. 303–304,

319. Following certification to appeal, our Supreme Court reversed this

court’s decision after concluding that the prosecutor’s remarks during closing argument were not improper. State v. Gibson, supra, 302 Conn. 663.

4 We ultimately also reject the premise for the defendant’s argument for

the reasons stated in part IV of this opinion.

5 The defendant did not ask the court to give a limiting instruction to the

jury regarding the appropriate use of this testimony.

6 The defendant baldly states in his brief that the court’s admission of

this evidence violated his ‘‘constitutional rights to due process and fair trial.’’

In our view, this is an evidentiary claim masquerading as a constitutional

claim. See, e.g., State v. Walker, 215 Conn. 1, 5, 574 A.2d 188 (1990) (‘‘the

admissibility of evidence is a matter of state law and unless there is a

resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved’’ [internal quotation marks

omitted]).

7 The defendant argues that the court’s instruction misled the jury, as

evidenced by the jury’s note requesting clarification as to whether ‘‘the

wilful failure to appear charge appl[ied] to [the defendant’s] failure to appear

at 10 a.m.? Or failure to appear in the court before a judge that day?’’

(Internal quotation marks omitted.) Before the court was able to respond

to the substance of this note, however, the court was required to replace

a member of the jury, who had telephoned the court to report that she had
a sick child at home and could not continue her service. The court replaced

that juror with an alternate member of the jury and instructed the newly

constituted jury that it must start its deliberations from the beginning. The

court also informed the jury that it was not going to respond to the jury

note because it came from the ‘‘prior jury.’’ The newly constituted jury did

not send out a similar note before reaching its verdict. We see no error in

the manner in which the court proceeded.

8 This sentence fragment appears in the original. It is unclear whether the

defendant intended to delete the phrase ‘‘as required’’ from the proposed

request to charge or whether the period following the word ‘‘bond’’ is a

scrivener’s error.

9 With respect to the charge of failure to appear in the first degree, the

court instructed the jury as follows: ‘‘The defendant is charged with failure

to appear in the first degree. The statute defining this offense reads in

pertinent part as follows: a person is guilty of failure to appear in the first

degree when while charged with the commission of a felony and while out

on bail or released under other procedure of law, he wilfully fails to appear

when legally called according to the terms of his bail bond.

‘‘For you to find the defendant guilty of this charge, the state must prove

the following elements beyond a reasonable doubt: Element 1—released on

bail or promise to appear.

‘‘The first element is that the defendant was released on bail upon the

condition that he appear personally in connection with his criminal proceeding at a later date. The [statute] requires that the crime with which the

defendant was charged when he was released must be a felony. Element

2—Duty to appear. The second element is that on October 3, 2017, the

defendant was required to appear before a court in connection with a

felony charge.

‘‘Element 3—Failure to appear. The third element is that the defendant

wilfully failed to appear as required. An act is done wilfully if done knowingly,

intentionally, and deliberately. In order to prove this element, the state must

prove beyond a reasonable doubt either that the defendant received and

knowingly, intentionally, and deliberately ignored a notice to appear or that

the defendant knowingly, intentionally, and deliberately embarked on a

course of conduct designed to prevent him from receiving such notice.

Please recall and apply my earlier instruction on knowledge.

‘‘Conclusion: In summary, the state must prove beyond a reasonable doubt

that (1) the defendant was released on bail on the condition that he appear

personally in connection with his criminal proceeding at a later date, (2)

he was required to appear in court on October 3, 2017, and (3) he wilfully

failed to appear on that date.’’

10 The instruction at issue was nearly identical to the model jury instruction

provided on the Judicial Branch website. See Connecticut Criminal Jury

Instructions 4.4-1 (December 1, 2007), available at https://jud.ct.gov/JI/Criminal/Criminal.pdf (last visited March 25, 2020). Although the model jury

instructions are ‘‘not dispositive of the adequacy of the [jury] instruction,

an instruction’s uniformity with the model instructions is a relevant and

persuasive factor in our analysis . . . .’’ (Internal quotation marks omitted.)

State v. Gomes, 193 Conn. App. 79, 88, 218 A.3d 1063, cert. granted on other

grounds, 334 Conn. 902, 219 A.3d 798 (2019).

11 The defendant failed to do so twice—once at 10 a.m. and again later

in the morning on the third floor.