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*********************************************** 
STATE OF CONNECTICUT v. RAMON A. G.*

(AC 39704)

Keller, Elgo and Moll, Js.

Syllabus

Convicted of the crimes of assault in the third degree and criminal violation of

a protective order in connection with an incident in which the defendant

assaulted the victim, the defendant appealed to this court. Held:

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

his constitutional rights to due process and to present a defense by

improperly declining to give a jury instruction on the defense of personal

property with respect to the assault charge against him: the claim of

instructional error was not properly preserved for appellate review, as

neither the defendant’s written request to charge nor anything else in

the record indicated that the defendant ever alerted the trial court to

the distinct instructional deficiency claimed on appeal; moreover, the

doctrine of implied waiver precluded substantive consideration of the

defendant’s claim of instructional impropriety, as the record revealed

that the defendant was provided with a meaningful opportunity to review

the trial court’s initial draft charge that the court provided during an

in-chambers conference, the revised draft charge that the court sent to

the parties later that night and the final draft charge that the court

provided prior to the parties’ closing arguments, that the court solicited

and received comments from the parties over the course of multiple

charge conferences, that the defendant thereafter expressed satisfaction

with both the draft charge and the ultimate charge that the court delivered to the jury and that at no time at trial did the defendant voice any

objection regarding the instructional deficiency he alleged on appeal.

2. The prosecutor’s improper comment that certain cell phone records that

were not in evidence probably would have helped the state’s case did

not deprive the defendant of a fair trial, as it did not so infect the trial

with unfairness that the defendant’s resulting conviction amounted to

a denial of due process; the prosecutorial impropriety consisted of a

single, isolated, inadvertent comment during rebuttal argument that was

not particularly severe, the comment was not central to the critical

issues in the case, as the existence of the cell phone records had little

bearing on the question of whether the defendant perpetrated the

charged offenses, the comment was invited by the defendant’s testimony

that suggested that the cell phone records would have corroborated his

trial testimony, the state’s case against the defendant was strong with

respect to the crimes of which he was convicted, and the trial court

gave the jury a curative instruction that it should not consider the

prosecutor’s improper comment because it was not supported by evidence in the record.

Argued January 10—officially released June 11, 2019

Procedural History

Substitute information charging the defendant with

the crimes of robbery in the first degree, assault in the

second degree and criminal violation of a protective

order, brought to the Superior Court in the judicial

district of New Britain and tried to the jury before

Keegan, J.; verdict and judgment of guilty of the lesser

included offense of assault in the third degree and of

criminal violation of a protective order, from which the

defendant appealed to this court. Affirmed.

Jennifer B. Smith, for the appellant (defendant).

James M. Ralls, assistant state’s attorney, with

whom, on the brief, were Brian Preleski, state’s attor-
ney, and Elizabeth Moseley, senior assistant state’s

attorney, for the appellee (state).
Opinion

ELGO, J. The defendant, Ramon A. G., appeals from

the judgment of conviction, rendered after a jury trial,

of assault in the third degree in violation of General

Statutes § 53a-61 and criminal violation of a protective

order in violation of General Statutes § 53a-223 (a). On

appeal, the defendant claims that (1) the trial court

improperly declined to furnish a jury instruction on the

defense of personal property with respect to the assault

charge and (2) prosecutorial impropriety during closing

argument deprived him of his due process right to a

fair trial. We affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the

jury reasonably could have found the following facts.

In August, 2012, the victim began what she described

at trial as a ‘‘toxic relationship’’ with the defendant,

which lasted seven months and concluded in March,

2013. On March 18, 2013, a protective order was issued

that prohibited the defendant from having any contact

with the victim.

At approximately nine o’clock on the evening of

March 22, 2013, the victim received a text message from

the defendant indicating that he wanted to meet with

her.1 Although initially hesitant, she ultimately agreed

to do so and began walking toward the apartment where

the defendant resided with his mother, who at that time

was hospitalized. The defendant then picked the victim

up in a motor vehicle and continued to the apartment,

where they socialized with other individuals. When

some attendees became rowdy, the victim decided to

leave. As she exited the apartment, the victim took the

keys to a vehicle belonging to the defendant’s mother

and began to walk home.

Halfway to her home, the victim ‘‘felt like something

bad was going to happen,’’ so she tossed the keys into

a bush alongside the road, which she described at trial

as ‘‘[s]omewhere safe where I could go back for them

later.’’ At that time, she was wearing a backpack that

contained, among other things, her cell phone, a money

order, and cash. Soon thereafter, a vehicle driven by

an unidentified person stopped in the middle of the

street. The defendant exited the vehicle and started

yelling ‘‘[w]here’s the keys’’ in an angry manner. The

defendant then grabbed the victim’s backpack and

swung her around. With her backpack still on, the victim

fell to the ground, and the defendant began kicking her

in the head, back, and stomach. After one particular

blow to her temple area, the victim saw ‘‘stars’’ and let

go of the backpack. The defendant rummaged through

its contents, returned to the vehicle with the backpack

in hand, and departed.

Martin Martinez was inside his nearby residence at

the time of the altercation. When he looked outside, he

saw a man kicking a woman on the ground. As he
testified: ‘‘I . . . remember seeing a male beating up a

female . . . . I saw some kicking. I saw her on the

ground, and I saw someone—the male, you know, really

giving it to her, stomping on her.’’ Martinez immediately

called 911 to report the incident.2

Officer Marcus Burrus of the New Britain Police

Department arrived at the scene to find the victim crying, shaking, and hunched on the ground. The victim

‘‘was bleeding from areas of her face. She had blood

on her ears, her face, [and] her hands.’’ While awaiting

medical assistance for the victim, Burrus answered an

incoming call to her cell phone from a contact labeled

‘‘Maria.’’ On the basis of prior experience and conversations with the defendant,3 Burrus recognized the caller

as the defendant. During that conversation, Burrus testified that the defendant ‘‘told [him] that he came to the

area [where the altercation transpired] and that he had

confronted [the victim] because he believed that she

was in possession of his mother’s keys. And [the defendant] stated that he didn’t touch her, but that he was

there and that he just was going to find and borrow his

mother’s keys.’’

The victim was transported by ambulance to a nearby

hospital, where she received medical treatment. Photographs of injuries to her face, neck, hands, and back

were taken while she was hospitalized and were admitted into evidence at trial.

The victim was released from the hospital on the

morning of March 23, 2013. Although a protective order

remained in place, the victim received multiple text

messages from the defendant later that morning. In

those messages, the defendant indicated that he wanted

to exchange the victim’s backpack for the keys to his

mother’s vehicle. The victim, however, did not want to

meet with the defendant. The defendant’s cousin later

returned the backpack to her with its contents secure.

Burrus met with the victim at her home the following

day. At that time, the victim informed him that she

had received text messages from the defendant, which

Burrus reviewed on her phone.4 At trial, Burrus testified

that one such message contained ‘‘something along the

lines of I ain’t done with you yet.’’

The defendant testified at trial on his own behalf and

provided a different account of the altercation. In his

testimony, the defendant admitted that he had confronted the victim on the sidewalk as she was walking

home that night. He testified that he ‘‘said please give

me my mother’s keys’’ and that the victim then ‘‘began

to swing at [him].’’ The defendant testified that, as he

grabbed her hands and ‘‘told her, please, just give me

the keys,’’ he slipped and fell to the ground, which he

attributed to wintry weather conditions. The defendant

further testified that, as he attempted to ‘‘get up to

leave,’’ the victim ‘‘grabbed a hold of [his] foot,’’ causing
him to again fall to the ground. The defendant testified

that ‘‘I just shook my foot loose and I crossed the street

and I got in the car and we left.’’

Following that altercation, the defendant was

arrested and charged with robbery in the first degree

in violation of General Statutes § 53a-134 (a) (3), assault

in the second degree in violation of General Statutes

§ 53a-60 (a) (2), and criminal violation of a protective

order in violation of § 53a-223 (a). Pursuant to General

Statutes § 53a-40b, the state also charged, in a part B

information, that the defendant committed those

offenses while on release ‘‘pursuant to [General Statutes] §§ 54-63a to 54-63g and/or [General Statutes]

§§ 54-64a to 54-64c . . . .’’ A trial followed, at the conclusion of which the jury found the defendant not guilty

of robbery in the first degree and assault in the second

degree. The jury found the defendant guilty of criminal

violation of a protective order and the lesser included

offense of assault in the third degree. The defendant

thereafter pleaded guilty to the charge set forth in the

part B information. The court rendered judgment

accordingly and sentenced the defendant to a total

effective sentence of seven years incarceration, followed by three years of special parole. From that judgment, the defendant now appeals.

I

The defendant first claims that the court improperly

declined to furnish a jury instruction on the defense of

personal property with respect to the assault count. In

response, the state submits that the defendant both

failed to preserve and impliedly waived that claim at

trial. We agree with the state.

The following additional facts are relevant to the

defendant’s claim. On the first day of trial, the defendant

filed a one page request to charge with the court.5 On

the second day of trial, the court noted for the record

that it had received the defendant’s request to charge.

The court then stated: ‘‘[W]hat I would like to do is try

to have a discussion about this. I think it would be

easiest to start it in chambers so that I can give you

copies [of the court’s draft charge], and then come out

here and summarize on the record what we have done

and what we discussed in chambers. Because if it gets

to a point where we could do closing arguments tomorrow, I very much would like to do closing arguments

tomorrow.’’ The court indicated that it would ‘‘take

about forty-five minutes to preliminarily discuss the

jury charge with the attorneys’’ in chambers during an

afternoon recess.

When that recess concluded, the court explained to

the jury: ‘‘[W]e’ve had the opportunity to have a preliminary discussion on the jury charge. And I have given

to each attorney a very rough draft of what I call my

overinclusive jury charge. I intend to take out the areas
that do not apply in this case, and then to also work

further on the charges with respect to the crimes that

are alleged in this case. And I intend to send this out

via e-mail tonight to the two attorneys so that you will

have that for review tonight. I am going to grant the

defendant’s request to charge the jury on defense of

personal property. I will put that in there. And [if the

prosecutor has] any objections to it, you can do that

formally tomorrow on the record.’’ (Emphasis added.)

The record before us contains a copy of the draft

charge that the court provided to the parties later that

night.6 That charge states in relevant part: ‘‘The evidence

in this case raises the issue of the use of force against

another to defend personal property. This defense

applies to the charge of [r]obbery in the [f]irst [d]egree.’’

The draft charge did not indicate that the defense

applied to either the assault or the criminal violation

of a protective order counts.

The next day, the court held a charge conference

with the parties following the close of evidence. At the

outset, the court indicated that it had sent a copy of

its revised draft charge to the parties the previous night

and inquired whether they had reviewed it; defense

counsel answered affirmatively. The court also noted

that ‘‘the defense did ask yesterday in chambers . . .

for a lesser included [offense] of assault in the third

degree on the assault second, so I have included that.

. . . And the defense also asked for the self-defense

under the defense of [personal] property, which is

included as well.’’ (Emphasis added.) The court then

asked if the parties had sufficient time to review the

court’s proposed charge to the jury and solicited feedback thereon, at which time defense counsel asked the

court to change the word ‘‘statement’’ to ‘‘statements’’

in a section on impeachment evidence because the

defendant was claiming that multiple inconsistent statements had been made. After agreeing to that change, the

court asked: ‘‘Anything else?’’ Defense counsel replied,

‘‘No, Your Honor. . . . I’m all set, Your Honor. Thank

you.’’ The court then stated: ‘‘All right. And you both

have had enough time with the charge that you feel

comfortable with the court charging [the jury] today?’’

Both parties answered, ‘‘Yes, Your Honor.’’ The court

then adjourned the proceeding for a midday recess.

When that recess concluded, the court stated for the

record that it had ‘‘sent both parties a copy of the

final jury instruction in electronic form.’’ The court then

permitted the parties to make closing arguments. In his

closing argument, defense counsel stated in relevant

part that the defense of personal property ‘‘is a complete

defense to robbery in the first degree.’’ Counsel did not

reference that defense in his discussion of either the

assault or the criminal violation of a protective order

offenses.

Following closing arguments, the court provided its
charge to the jury. With respect to the defense of personal property, the court instructed the jury that this

defense applied to the robbery charge.7 When it concluded, the court asked the parties if they had any

objections. At that time, defense counsel stated, ‘‘No

objections, Your Honor, at all.’’

On appeal, the defendant claims that the court

‘‘improperly instructed the jury that the defense of [personal] property only applied to the robbery charge.’’ He

argues that, on the basis of his request to charge, the

court should have instructed the jury that the defense

applied to the robbery and assault charges set forth in

counts one and two of the information, but not to the

criminal violation of a protective order charge contained in count three. The court’s failure to do so, he

contends, violated his constitutional rights to due process and to present a defense.

Before we can consider the merits of that claim, we

must resolve two threshold issues. Specifically, we must

determine whether the defendant properly preserved

that claim with the trial court. If that claim was not

properly preserved, we also must determine whether

the doctrine of implied waiver precludes further review.

A

We begin by noting the fundamental precept, deeply

ingrained in our decisional law and our rules of practice,

that the appellate courts of this state ‘‘shall not be bound

to consider a claim unless it was distinctly raised at

the trial . . . .’’8

(Internal quotation marks omitted.)

Ulbrich v. Groth, 310 Conn. 375, 427, 78 A.3d 76 (2013);

see also Practice Book § 42-16 (party taking exception

to court’s instruction ‘‘shall state distinctly the matter

objected to and the ground of exception’’); Practice

Book § 60-5 (party obligated to distinctly raise claim

before trial court to be entitled to appellate review);

State v. King, 289 Conn. 496, 505–506, 958 A.2d 731

(2008) (preservation requirement applies to challenges

to jury instructions); Lee v. Stanziale, 161 Conn. App.

525, 538, 128 A.3d 579 (requirement that party distinctly

raise claim of error before trial court ‘‘a prerequisite to

appellate review’’), cert. denied, 320 Conn. 915, 131 A.3d

750 (2015); State v. Nieves, 106 Conn. App. 40, 55, 941

A.2d 358 (requirement that party distinctly raise claim

applies to jury instruction challenge), cert. denied, 286

Conn. 922, 949 A.2d 482 (2008). ‘‘The requirement that

the claim be raised distinctly means that it must be so

stated as to bring to the attention of the court the precise

matter on which its decision is being asked. . . . [It

must] alert the trial court to the specific deficiency

now claimed on appeal.’’ (Citation omitted; emphasis

in original; internal quotation marks omitted.) State v.

Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).

Requiring a party to distinctly raise a claim of error

before the trial court is no mere formality; rather, it
ensures that the trial court is specifically apprised of the

alleged error and, thus, has an opportunity to respond

accordingly. ‘‘As [our Supreme Court] repeatedly has

observed, the essence of the preservation requirement

is that fair notice be given to the trial court of the party’s

view of the governing law . . . . A secondary purpose

of the preservation requirement is to prevent the possibility that an appellee would be lured into a course of

conduct at the trial which it might have altered if it had

any inkling that the [appellant] would . . . claim that

such a course of conduct involved rulings which were

erroneous and prejudicial to him. . . . Assigning error

to a court’s . . . rulings on the basis of objections

never raised at trial unfairly subjects the court and the

opposing party to trial by ambush.’’ (Citations omitted;

internal quotation marks omitted.) State v. Benedict,

313 Conn. 494, 505–506, 98 A.3d 42 (2014); accord State

v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013) (‘‘the

sina qua non of preservation is fair notice to the trial

court’’). Through that lens must an appellate body view

claims of error on the part of the trial court.

In the context of jury instructions, a party ‘‘may preserve for appeal a claim that an instruction . . . was

. . . defective either by: (1) submitting a written

request to charge covering the matter; or (2) taking an

exception to the charge as given.’’ (Internal quotation

marks omitted.) State v. King, supra, 289 Conn. 505;

see also Practice Book § 42-16. The defendant in the

present case filed a written request to charge. See footnote 5 of this opinion. The question, then, is whether

that request sufficiently covered the matter so as to

preserve the issue for appellate review. Put differently,

the relevant inquiry is whether the defendant’s request

to charge alerted the trial court to the specific deficiency now claimed on appeal. See State v. Carter,

supra, 198 Conn. 396.

We conclude that it did not. The distinct claim presented on appeal concerns the failure of the trial court

to provide a defense of personal property instruction

to the jury with respect to two of the three counts

alleged in the operative information—namely, the robbery and assault counts, but not the criminal violation

of a protective order count. On its face, the defendant’s

written request to charge is patently deficient in this

regard, as it does not alert the trial court to such a

request. The substance of that one page request merely

communicated (1) the defendant’s desire to have the

court provide a defense of personal property instruction

to the jury and (2) the defendant’s belief that ‘‘[t]he

evidence supports this request.’’ As a result, the defendant’s request is inherently ambiguous, in that it is

unclear whether the defendant sought such an instruction as to only one of the charged offenses, all of the

charged offenses, or some combination thereof.

As our Supreme Court has explained, ‘‘the submission
of a request to charge covering the matter at issue

preserves a claim that the trial court improperly failed

to give an instruction on that matter. . . . In [such]

instances, the trial court has been put on notice and

afforded a timely opportunity to remedy the error. . . .

It does not follow, however, that a request to charge

addressed to the subject matter generally, but which

omits an instruction on a specific component, preserves

a claim that the trial court’s instruction regarding that

component was defective.’’ (Citations omitted; emphasis in original.) State v. Ramos, 261 Conn. 156, 170–71,

801 A.2d 788 (2002), overruled in part on other grounds

by State v. Elson, 311 Conn. 726, 754–55, 91 A.3d 862

(2014). A defendant’s failure to distinctly raise an

instructional claim in its written request to charge or

to otherwise take an exception to the court’s instruction

renders that particular claim unpreserved for appellate

review. See id., 171; see also State v. Tozier, 136 Conn.

App. 731, 743, 46 A.3d 960 (‘‘[t]he defendant did not

preserve this claim for appellate review as he did not

. . . distinctly raise these arguments [regarding

instructional error] before the trial court’’), cert. denied,

307 Conn. 925, 55 A.3d 567 (2012); State v. Joseph,

110 Conn. App. 454, 459–60, 955 A.2d 124 (because

defendant’s written request to charge contained general

credibility instruction but did not distinctly raise issue

of accomplice credibility, trial court ‘‘was not put on

notice’’ of that issue, rendering it unpreserved), cert.

denied, 289 Conn. 945, 959 A.2d 1010 (2008); Abdelsayed

v. Narumanchi, 39 Conn. App. 778, 785, 668 A.2d 378

(1995) (‘‘[W]hile the defendant did prepare a written

request to charge, that proposed charge did not distinctly address the issue the defendant now raises. We,

therefore, do not address his claim on appeal. [Footnote

omitted.]’’), cert. denied, 237 Conn. 915, 676 A.2d 397,

cert. denied, 519 U.S. 868, 117 S. Ct. 180, 136 L. Ed. 2d

120 (1996); id., 785 n.1 (concluding that ‘‘these words

[contained in the defendant’s request to charge] did not

sufficiently afford notice to the trial court as to the

claimed error the defendant now raises’’); contra

Benanti v. Delaware Ins. Co., 86 Conn. 15, 21, 84 A.

109 (1912) (‘‘[t]he issue of misrepresentation of title

. . . was distinctly presented in the defendant’s

requests to charge’’); cf. State v. Jones, 289 Conn. 742,

760, 961 A.2d 322 (2008) (‘‘when the trial court failed

to instruct the jury as the defendant had requested,

defense counsel objected two different times, thus

effectively preserving the issue for appellate review

even if his written request to charge was ambiguous’’).

The defendant claims that State v. Ramos, 271 Conn.

785, 860 A.2d 249 (2004), is ‘‘controlling’’ on the question

of preservation. We do not agree. In that case, only

two counts remained following the close of evidence:

assault in the second degree in violation of § 53a-60 (a)

(2) and carrying a weapon in a motor vehicle in violation

of General Statutes (Rev. to 1997) § 29-38. Id., 790. At
trial, the defendant ‘‘requested that the trial court

instruct the jury on the affirmative defense of selfdefense but did not specify the count or counts of the

information to which the defense applied. The trial

court gave a self-defense instruction with respect to

the assault charge, but . . . instructed the jury that

self-defense was not a defense to the charge under § 29-

38.’’ Id., 800. On appeal, the defendant claimed that

‘‘the trial court improperly instructed the jury that the

defense of self-defense did not apply to a charge under

§ 29-38.’’ Id., 799. Our Supreme Court concluded that the

defendant’s claim was preserved for appellate review,

stating: ‘‘Although we agree with the state that the

record leaves some doubt as to whether the defendant’s

general request to charge was adequate to place the

trial court on notice that he believed that the claim of

self-defense applied to both charges, we read the failure

to specify as an indication that it applied to both charges

and that the claim was, therefore, preserved for review.’’

Id., 801.

For two reasons, Ramos is readily distinguishable

from the present case. First, as a factual matter, the

defendant here is not arguing that his general request

to charge on the defense of personal property should

have been applied to all pending counts, as was the

case in Ramos.

9 Rather, the defendant maintains that

the court should have provided that instruction with

respect to two of the three counts levied against him

by the state and improperly furnished such an instruction as to only one of those counts.

Second, as a procedural matter, the defendant overlooks the critical fact that, in Ramos, the state had filed

‘‘a supplemental request to charge’’ in response to the

defendant’s request to charge, in which the state maintained that ‘‘self-defense was not a defense to the charge

under § 29-38.’’ Id., 800. By so doing, the state alerted

the court to the distinct issue of whether that defense

so applied, rendering that issue properly preserved for

appellate review. It nonetheless remains that the state

in the present case neither filed a request to charge

regarding the applicability of the defense of personal

property to an assault charge nor otherwise raised that

issue in any manner before the trial court. Ramos, therefore, is both factually and procedurally inapposite to

the present case.

Similarly misplaced is the defendant’s reliance on

State v. Paige, 304 Conn. 426, 40 A.3d 279 (2012). In

Paige, both the defendant and the state submitted

requests to charge on the disputed instruction. Id., 439.

Moreover, the trial court held a charging conference,

at which it heard argument from the parties on that

instructional issue. Id. With ‘‘the specific circumstances

of the present case in mind,’’ our Supreme Court ultimately concluded that the issue was preserved for

appellate review, noting that ‘‘[w]e never have required
. . . a defendant who has submitted a request to charge

also to take an exception to a contrary charge . . . .’’

(Emphasis added.) Id., 442–43. Significantly, the state,

in both Paige and Ramos, requested an alternative

instruction that was contrary to the one requested by

the defendant. As a result, the trial court in those cases

plainly was apprised of the distinct instructional issue,

obviating the need for the defendant to further memorialize his objection to the court’s charge. No such contrary request was made by the state in the present case.

The defendant’s reliance on State v. Johnson, 316

Conn. 45, 111 A.3d 436 (2015), also is unavailing. In that

case, the defendant filed a written request to charge

that proposed specific language on the issues of constructive and nonexclusive possession. Id., 52. In both

its draft charge and the final charge that it provided to

the jury, the trial court declined to include all of the

language requested by the defendant; instead, the court

‘‘selectively omitted certain paragraphs [specifically

requested by the defendant] altogether.’’ Id., 55–56. Furthermore, ‘‘[t]here was never any discussion relating to

this charge or this element of the offenses.’’ Id., 56. In

such circumstances, our Supreme Court held that the

defendant was not obligated to raise a further objection

to the court’s charge to preserve the issue for appeal

because ‘‘[t]he defendant reasonably could have interpreted the trial court’s selective adoption of parts of

her possession instruction as a purposeful rejection of

the omitted language. . . . [T]he defendant was not

required to object to the truncated instruction to preserve her request for the more comprehensive instruction.’’ Id. As in Paige and Ramos, the trial court in

Johnson was specifically alerted to the distinct instructional deficiency later pursued on appeal.

The facts of the present case are markedly different.

Neither the defendant’s written request to charge nor

anything else in the record before us indicates that

the defendant ever alerted the court to the distinct

instructional deficiency he now alleges on appeal. At

no time did the defendant apprise the court of his desire

to have the court furnish a defense of personal property

instruction with respect to counts one and two, but

not count three, of the information. Rather, the record

before us indicates that (1) the defendant generally

requested a defense of personal property instruction

without specifying its alleged applicability to any particular counts; (2) the court discussed that request with

both parties during an in-chambers conference on May

17, 2016, and then agreed on the record to provide a

defense of personal property instruction to the jury;10

(3) at that time, the court stated that it would entertain

any objections to that instruction at the charge conference the next day; (4) the court then included an instruction on the defense of personal property with respect

to the robbery count in the draft charge that it provided

to the parties; and (5) the court also included that
instruction in both the revised charge that it ‘‘sent [to

the] parties . . . in electronic form’’ and the final

charge that it ultimately delivered to the jury. At no

time did the defendant notify the court of any issue

or disagreement with the court’s instruction despite

several opportunities to do so. Rather, defense counsel

affirmatively indicated that he was ‘‘all set.’’

Accordingly, we cannot conclude on the particular

facts of this case that the instruction provided by the

court was ‘‘contrary’’ to that submitted by the defendant

in his written request to charge. See State v. Paige,

supra, 304 Conn. 443 (defendant who has submitted

request to charge not required ‘‘to take an exception

to a contrary charge’’). The record indicates that the

defendant asked for an instruction on the defense of

personal property and that the court, after discussing

the matter with the parties, granted the defendant’s

request and provided such an instruction. At the same

time, the record does not reflect that the trial court

ever was ‘‘on notice of the purported defect’’ that the

defendant now advances on appeal. State v. Thomas

W., 301 Conn. 724, 736, 22 A.3d 1242 (2011).

Our law requires a party pursuing a claim of instructional error ‘‘to bring to the attention of the [trial] court

the precise matter on which its decision is being asked’’

so as to ‘‘alert the trial court to the specific deficiency

now claimed on appeal.’’ (Citation omitted; emphasis

in original; internal quotation marks omitted.) State v.

Carter, supra, 198 Conn. 396. The defendant failed to

do so in his written request to charge. Furthermore,

despite ample opportunity, the defendant raised no

such objection to the court’s instruction at any time.

Accordingly, we conclude that his claim of instructional

error was not properly preserved for appellate review.

B

Having determined that the defendant failed to alert

the trial court to the distinct claim of instructional error

presented in this appeal, we next consider whether

the doctrine of implied waiver precludes substantive

review. Whether a defendant has waived the right to

challenge the court’s jury instructions involves a question of law, over which our review is plenary. State v.

Davis, 311 Conn. 468, 477, 88 A.3d 445 (2014).

Our analysis begins with the seminal decision of State

v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), in which

our Supreme Court ‘‘established a framework under

which we review claims of waiver of instructional error

. . . .’’ State v. McClain, 324 Conn. 802, 810, 155 A.3d

209 (2017). In Kitchens, the court emphasized that

waiver involves the idea of assent; State v. Kitchens,

supra, 469; and explained that implied waiver occurs

when a defendant ‘‘had sufficient notice of, and

accepted, the instruction’’ proposed or given by the

trial court. (Emphasis in original.) Id., 487 n.25. More
specifically, the court held that ‘‘when the trial court

provides counsel with a copy of the proposed jury

instructions, allows a meaningful opportunity for their

review, solicits comments from counsel regarding

changes or modifications and counsel affirmatively

accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential

flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct

appeal.’’ Id., 482–83. The court further explained that

‘‘[s]uch a determination by the reviewing court must

be based on a close examination of the record and the

particular facts and circumstances of each case.’’11 Id.,

483; see also State v. Bellamy, 323 Conn. 400, 426, 147

A.3d 655 (2016) (‘‘reviewing courts are required to determine whether the unique facts and circumstances in

any given case support a finding of waiver’’).

In the present case, the trial court conducted a preliminary charge conference with the parties in chambers

following the filing of the defendant’s request to charge.

When that conference concluded, the court indicated

that it had provided the parties with ‘‘a very rough draft’’

of its jury charge, which it further refined later that

day. The court also stated that it was ‘‘going to grant

the defendant’s request to charge the jury on defense

of personal property. I will put that in there.’’ The court

then sent the parties a revised version of its draft charge

that night, which included an instruction that the

defense of personal property was a defense to the

charge of robbery in the first degree.

The next day, the court held another charge conference, at which defense counsel confirmed that he had

received the court’s revised draft charge. The court at

that time solicited comments from the parties regarding

changes or modifications, and defense counsel asked

the court to make a linguistic change to a section of

the charge regarding impeachment evidence, which the

court agreed to do. The court then asked: ‘‘Anything

else?’’ Defense counsel replied, ‘‘No, Your Honor. . . .

I’m all set, Your Honor. Thank you.’’ The court then

stated: ‘‘All right. And you both have had enough time

with the charge that you feel comfortable with the court

charging [the jury] today?’’ Defense counsel answered,

‘‘Yes, Your Honor.’’

Later that day, the court noted for the record that it

had ‘‘sent both parties a copy of the final jury instruction

in electronic form.’’ The court then permitted the parties

to make closing arguments. In his closing argument,

defense counsel stated in relevant part that defense of

personal property ‘‘is a complete defense to robbery in

the first degree.’’ Counsel did not reference that defense

in his discussion of either the assault or the criminal

violation of a protective order offenses. Furthermore,

in its subsequent charge, the court instructed the jury

that the defense of personal property applied to the
robbery charge. When it concluded, the court asked

the parties if they had any objections; defense counsel

responded, ‘‘No objections, Your Honor, at all.’’

The facts and circumstances of this case largely

resemble those chronicled in State v. Thomas W., supra,

301 Conn. 724. As our Supreme Court stated: ‘‘[T]he

following undisputed facts . . . establish an implied

waiver under the Kitchens standard. The trial court

conducted a charging conference, provided copies of

the proposed charge to the defendant and elicited input

from him. The defendant asked for an addition to the

charge, and the court complied with that request. . . .

[T]he defendant . . . conceded . . . that he had been

given sufficient time to review [the court’s draft charge].

. . . The defendant twice expressed satisfaction with

the charge when asked by the court—before and after

the charge was given.’’ (Citations omitted.) Id., 734–35.

Here, a close examination of record reveals that the

defendant was provided with a meaningful opportunity

to review the court’s initial draft charge that the court

provided during the in-chambers conference, the

revised draft charge that the court sent to the parties

later that night, and the final draft charge that the court

provided prior to closing arguments. The court solicited

and received comments from the parties over the course

of multiple charge conferences. The defendant thereafter expressed satisfaction with both the draft charge

that the court provided to the parties and the ultimate

charge that the court delivered to the jury. Moreover,

at no time at trial did the defendant voice any objection

regarding the instructional deficiency he now alleges on

appeal.12 In light of those undisputed facts, we conclude

that the doctrine of implied waiver precludes substantive consideration of the defendant’s claim of instructional impropriety.13 See State v. Kitchens, supra, 299

Conn. 482–83.

II

The defendant also claims that prosecutorial impropriety during closing argument deprived him of a fair

trial. We disagree.

The following facts are relevant to this claim. At trial,

the victim testified that the defendant placed phone

calls and sent her text messages from a phone belonging

to his mother. See footnote 1 of this opinion. In his

testimony, Burrus stated that he had reviewed certain

text messages sent to the victim from that phone. On

cross-examination, defense counsel asked Burrus if he

would ‘‘agree that if we had the cell phone records here,

or the text phone messages here, that would be a much

more reliable source of information’’; Burris answered

affirmatively. When the defendant testified the next day,

the prosecutor asked him whether he spoke with Burrus

on the night of the altercation, to which the defendant

replied: ‘‘I never spoke with him. You should have got
the phone records. I was asking for them. I never spoke

with him.’’

Prior to closing arguments, the court advised the jury

that the arguments of counsel ‘‘are not evidence’’ but,

rather, were an ‘‘opportunity to go over the evidence

that’s been presented [to] you . . . .’’ The prosecutor

then began her initial closing argument by urging the

jurors as follows: ‘‘[I]f there’s anything that I say during

my oral argument to you and your recollection of the

testimony or the evidence differs from my recollection,

you follow your recollection, not mine, okay? So, I just

want to make that very clear right from the get go.’’

The prosecutor then discussed various aspects of the

evidence presented at trial.

In his closing argument, defense counsel repeatedly

reminded the jurors that the state had not presented

evidence of the cell phone records. With respect to

certain discrepancies between the respective testimony

of the victim and the defendant, counsel stated: ‘‘This

issue could have been simply solved by giving you the

cell phone records, subpoena the Verizon records or

whoever the carrier is, bring those in, show you guys

those, show them to me, show them to the judge, those

are indisputable. Remember that it is always the state’s

burden of proof.’’ Defense counsel later remarked: ‘‘As

I’ve said over and over again, I said this several times

during the course of the case, there’s no info from

that cell phone. It could have been downloaded and

presented to you on a big screen, shown to me and

shown to you. That would be solid evidence. We don’t

have it. I don’t have it. You don’t have it.’’ After acknowledging that the victim sustained physical injuries on

the night in question, defense counsel again noted the

lack of evidence presented by the state, arguing: ‘‘I’m

going to say it again, no cell phone records, there’s no

text messages to show you, there’s no forensic evidence

in this case . . . .’’

During her rebuttal argument, the prosecutor

responded to that line of argument by defense counsel,

stating in relevant part: ‘‘Counsel also stated the fact

that there were no cell phone records. Well, cell phone

records, is he referring to the cell phone records of

[the defendant’s mother] or [the victim’s] cell phone

records? What would those records have said, had told

us? I submit those records probably would have helped

me. Counsel points that out to you about the cell phone

records.’’ Defense counsel did not object at the time

that the prosecutor made that statement.

The next morning, defense counsel alerted the court

to a concern about the prosecutor’s statement, and the

following colloquy ensued:

‘‘[Defense Counsel]: I’m thinking more about the closing that the [prosecutor] did. She made a comment

which was, I submit that the cell phone records would
have . . . probably helped her. I don’t think that that’s

a proper statement. . . . So, I would ask that the jury

be instructed that the comment was not a proper one.

‘‘The Court: All right. Any objection to that?

‘‘[The Prosecutor]: Judge, it was inadvertent.

‘‘The Court: Okay. . . .

‘‘[The Prosecutor]: —and if the court feels at all that

it was improper, I have no objection to any curative

instruction the court wishes to give.

‘‘The Court: All right. I mean, inadvertence happens,

but I think it is important to reiterate to the jury that

evidence is only what was before them, and I will specifically address this. Now—

‘‘[Defense Counsel]: Thank you, and I agree with the

state, it was completely an inadvertent thing.

‘‘The Court: Okay. That’s fine.

‘‘[The Prosecutor]: Thank you, counsel.’’

The jury then reentered the courtroom, at which time

the court provided a curative instruction advising it to

disregard the prosecutor’s statement from the previous day.14

On appeal, the defendant maintains that the prosecutor’s statement that ‘‘those [cell phone] records probably would have helped me’’ was improper commentary

on facts not in evidence, which deprived him of a fair

trial. The state concedes, and we agree, that the prosecutor’s statement was improper. The state nonetheless

contends that it did not amount to a denial of the defendant’s right to a fair trial.

‘‘In analyzing claims of prosecutorial impropriety, we

engage in a two step analytical process. . . . The two

steps are separate and distinct. . . . We first examine

whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether

it deprived the defendant of his due process right to

a fair trial. . . . In other words, an impropriety is an

impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful

and thus caused or contributed to a due process violation involves a separate and distinct inquiry.’’ (Internal

quotation marks omitted.) State v. Campbell, 328 Conn.

444, 541–42, 180 A.3d 882 (2018). Only the second step

of that analysis is at issue in the present case.

To determine whether the prosecutor’s improper

argument deprived the defendant of his due process

right to a fair trial, ‘‘we are guided by the factors enumerated . . . in State v. Williams, 204 Conn. 523, 540, 529

A.2d 653 (1987). These factors include the extent to

which the [impropriety] was invited by defense conduct

or argument, the severity of the [impropriety], the frequency of the [impropriety], the centrality of the [impro-
priety] to the critical issues in the case, the strength of

the curative measures adopted, and the strength of the

state’s case.’’ (Internal quotation marks omitted.) State

v. Martinez, 319 Conn. 712, 736, 127 A.3d 164 (2015).

We first consider the frequency and the severity of

the challenged remarks. As defense counsel conceded

at trial, the prosecutorial impropriety at issue consisted

of a single, inadvertent statement. The prosecutor made

no mention of cell phone records in her initial closing

argument and made only one isolated reference in her

rebuttal argument. The comment also was not particularly severe, as it consisted of a brief suggestion that

any cell phone records ‘‘probably would have helped’’

the state’s case. In this regard, we note that defense

counsel did not object to the prosecutor’s statement at

the time that it was made. See State v. Grant, 154 Conn.

App. 293, 328, 112 A.3d 175 (2014) (‘‘defense counsel’s

failure to make a contemporaneous objection . . . permits an inference that counsel did not think the impropriety was severe’’), cert. denied, 315 Conn. 928, 109

A.3d 923 (2015). Furthermore, ‘‘the severity of the

impropriety is often counterbalanced in part’’ by the

infrequency of the impropriety. (Internal quotation

marks omitted.) State v. Daniel W., 180 Conn. App. 76,

113, 182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d

638 (2018). The infrequency of the prosecutorial impropriety in the present case is undisputed.

In addition, the prosecutor’s improper comment was

not central to the critical issues in the case, as the

existence of cell phone records had little bearing on

the question of whether the defendant perpetrated the

charged offenses. Although the defendant argues in his

reply brief that ‘‘[t]he impropriety went directly to’’ his

conviction for violating a protective order, the basis of

that charge stemmed not from the defendant’s phone

calls or text messages to the victim but, rather, his

confrontation with her as she walked home. In the long

form information, the state specifically alleged that ‘‘on

or about March 23, 2013, at approximately 2:45 [a.m.] in

the area of 50 Kensington Avenue . . . [the defendant]

violated a protective order when he made contact with

[the victim] and assaulted her by repeatedly kicking her

. . . .’’ At trial, the defendant admitted in his testimony

that he confronted the victim as she was walking home.

Moreover, Burrus testified that he spoke with the defendant soon after the altercation transpired, at which time

the defendant acknowledged that ‘‘he came to the area

[of the altercation] and that he had confronted’’ the

victim. On the basis of that testimony, the jury reasonably could have concluded that the defendant violated

the terms of the protective order. We therefore disagree

with the defendant that the prosecutor’s improper comment about cell phone records was central to the critical

issues in the case.

The prosecutor’s improper comment also appears to
have been invited by the defendant’s testimony at trial.

On cross-examination, the defendant denied speaking

with Burrus shortly after the altercation, stating: ‘‘I

never spoke with him. You should have got the phone

records. I was asking for them. I never spoke with

him.’’ To the extent that the defendant in his testimony

suggested that the cell phone records would have corroborated his trial testimony, he invited the prosecutor’s improper comment to the contrary.

With respect to his conviction of criminal violation

of a protective order and assault in the third degree, the

state’s case was strong. In his testimony, the defendant

admitted that he made contact with the victim as she

walked home on the night in question. Although the

victim and the defendant provided differing accounts

of the altercation, the jury also heard testimony from

Martinez, who witnessed the incident and corroborated

the victim’s account. Contrary to the defendant’s testimony at trial that he ‘‘didn’t touch her,’’ Martinez told

the jury that he saw ‘‘a male beating up a female . . . .

I saw some kicking. I saw her on the ground, and I saw

someone—the male, you know, really giving it to her,

stomping on her.’’ The state’s case also included testimony from Burrus, who responded to the scene and

observed the victim’s physical and emotional state, as

well as photographs later taken at the hospital, which

depict in graphic fashion the injuries to the victim’s

face, neck, hands, and back.

Lastly, the trial court provided a curative instruction

in response to a concern raised by defense counsel the

day after closing arguments concluded. In that directive,

the court instructed jurors that ‘‘you should not consider’’ the prosecutor’s improper statement, as it was

not supported by evidence in the record. See footnote

14 of this opinion. In the absence of an indication to

the contrary, we presume that the jury followed that

curative instruction. See State v. Camacho, 282 Conn.

328, 385, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.

Ct. 388, 169 L. Ed. 2d 273 (2007).

Having considered the foregoing factors in light of

the record before us, we conclude that the prosecutor’s

improper comment did not so infect ‘‘the trial with

unfairness as to make the resulting conviction a denial

of due process.’’ (Internal quotation marks omitted.)

State v. Williams, supra, 204 Conn. 539. The defendant’s

prosecutorial impropriety claim, therefore, fails.

The judgment is affirmed.

In this opinion the other judges concurred.

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

victim of a criminal violation of a protective order, we decline to identify

the victim or others through whom the victim’s identity may be ascertained.

1 At trial, the victim testified that because the defendant’s cell phone was

broken, he often called or texted her from a phone belonging to his mother,

Maria. For that reason, she would receive incoming calls or text messages

from him under a contact labeled ‘‘Maria.’’ In her testimony, the victim

indicated that all relevant phone calls or text messages received from the
defendant were from that contact.

2 An audio recording of that 911 call was admitted into evidence.

3 At trial, Burrus confirmed that he knew the defendant and had spoken

with him prior to the night in question. Burrus testified that he knew the

defendant by the nickname ‘‘Cito’’ and also knew the defendant’s mother

and brother. Burrus explained that he had ‘‘dealt with [the defendant] on

other calls [in the course of his] duties as a police officer, and prior to that

[knew him] as a teenager,’’ as the defendant was a friend of Burrus’ brotherin-law.

4 Burrus testified that the text messages were from a contact labeled

‘‘Maria.’’ See footnote 1 of this opinion.

5 The defendant’s written request to charge states in full: ‘‘Defendant

moves this court, pursuant to [Practice Book] § 42-16 et seq. and the [s]ixth

and [f]ourteenth [a]mendments to the United States [c]onstitution, to give

Jury Instruction 2.8-5, Defense of Personal Property ([General Statutes]

§ 53a-21). The evidence supports this request. Wherefore, for the reasons

set forth above, together with such other reasons as may be advanced in

any memorandum of law submitted and/or hearing conducted in connection

herewith, [the defendant] respectfully prays that the [c]ourt adopt this proposed instruction.’’ The defendant did not submit a memorandum of law

on that request.

6 Following the commencement of this appeal, the state filed a motion

for rectification, in which it asked the trial court to supplement the record

with a copy of the draft charge. The court granted that request on January

29, 2018.

7 The court instructed the jury in relevant part: ‘‘The evidence in this case

raises the issue of the use of force against another to defend personal

property. This defense applies to the charge of robbery in the first degree.

After you have considered all the evidence in this case on the charge of

robbery in the first degree, if you find that the state has proved each element

beyond a reasonable doubt, then you must go on to consider whether or

not the defendant acted justifiably in the defense of personal property. In

this case you must consider this defense in connection with count one of

the information.’’

8 As our Supreme Court explained nearly two centuries ago: ‘‘It has been

repeatedly decided, by us, that . . . we will not allow points of law to be

discussed, which were not made, or which were waived, in the court below.

We adhere to these decisions. The rule which they establish, is a salutary

one, essential to the preservation of the rights of parties, and to the due

administration of justice.’’ Torry v. Holmes, 10 Conn. 499, 507 (1835).

9 As the defendant acknowledges in his reply brief, his ‘‘trial counsel’s

theory of defense of property did not pertain to the protective order charge.’’

10 Following the in-chambers conference with the parties, the court stated:

‘‘I am going to grant the defendant’s request to charge the jury on defense

of personal property. I will put that in there.’’

11 Our Supreme Court has since reaffirmed the vitality of the waiver rule

enunciated in Kitchens and expressly rejected the claim that it ‘‘should be

overturned because it is confusing, unworkable, interferes with an appellate

court’s discretion to review unpreserved claims and does not serve the

interests of justice.’’ State v. Bellamy, 323 Conn. 400, 403, 147 A.3d 655 (2016).

12 In his principal appellate brief, the defendant also suggests that he

preserved his objection by moving for a judgment of acquittal at his sentencing hearing months after his trial concluded. He has provided no legal

authority in support of that contention. To the contrary, our Supreme Court

has held that posttrial motions do not properly preserve a claim that the

court’s charge to the jury improperly omitted an appropriate instruction.

See Oakes v. New England Dairies, Inc., 219 Conn. 1, 8, 591 A.2d 1261

(1991); see also State v. Santiago, 142 Conn. App. 582, 602 n.17, 64 A.3d

832 (declining to address claim raised ‘‘for the first time at [the defendant’s]

posttrial sentencing hearing’’), cert. denied, 309 Conn. 911, 69 A.3d 307

(2013).

13 In his reply brief, the defendant also requests review pursuant to State

v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). In Kitchens, our

Supreme Court explained that the doctrine of implied waiver, when applicable, bars recourse under Golding, as ‘‘[a] constitutional claim that has been

waived does not satisfy [its] third prong . . . because, in such circumstances, we simply cannot conclude that injustice [has been] done to either

party . . . or that the alleged constitutional violation . . . exists and . . .

deprived the defendant of a fair trial . . . .’’ (Internal quotation marks omitted.) State v. Kitchens, supra, 299 Conn. 467; see also State v. McClain,
supra, 324 Conn. 808–809. Our determination that the defendant impliedly

waived his instructional claim thus forecloses relief under Golding.

14 The court instructed the jury as follows: ‘‘[Y]esterday during closing

argument, [the prosecutor], in addressing the cell phone records, made a

comment where she said, I submit to you that if the cell phone records had

been here they would have been favorable to the state. Now remember that

I told you that the only evidence that you can decide the case upon is

evidence that has been presented to you in court and there was no evidence

presented to that so that was an argument of counsel that there is no

evidence to support that so you should not consider that statement. During

the course of argument, people make inadvertent statements, and so I bring

it to your attention just to let you know you did not receive evidence on

that so I just want to tell you that.’’ The defendant thereafter did not object

to the curative instruction provided by the court.