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STATE OF CONNECTICUT v. ZACKERY C. FRANKLIN

(AC 37161)

Gruendel, Lavine and Bishop, Js.

Argued September 25—officially released December 29, 2015

(Appeal from Superior Court, judicial district of New

Haven, B. Fischer, J.)

G. Douglas Nash, for the appellant (defendant).

Michele C. Lukban, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and Kevin C. Doyle, former senior

assistant state’s attorney, for the appellee (state).
Opinion

LAVINE, J. The defendant, Zackery C. Franklin,

appeals from the judgment of conviction,rendered after

a jury trial, of one count of murder in violation of General Statutes § 53a-54a (a), one count of felony murder

in violation of General Statutes § 53a-54c, and one count

of robbery or attempt to commit robbery in the first

degree in violation of General Statutes §§ 53a-49 (a) (2)

and 53a-134 (a) (1). The defendant also appeals from

the judgment of conviction rendered after a trial to the

court of one count of carrying a pistol without a permit

in violation of General Statutes § 29-35, and one count

of criminal possession of a pistol orrevolverin violation

of General Statutes (Rev. to 2011) § 53a-217c (a) (1).

On appeal, the defendant claims that (1) the evidence

was insufficient to support the judgment of conviction

on all counts because the state relied on a single eyewitness whose testimony was contradicted by the physical

evidence; (2) the verdicts were against the weight of

the physical evidence, entitling him to a new trial; (3)

the court erred in admitting prior misconduct evidence

to show that he possessed the means to commit the

crimes; (4) the prosecutor engaged in impropriety during closing argument; (5) the court erred in merging

the convictions for murder and felony murder; and (6)

the judgment file must be corrected because the conviction for ‘‘robbery or attempted robbery’’ encompassed

a unanimous finding on the lesser offense of attempt

but not the greater completed offense of robbery. We

reverse the judgment of the court as to the felony murder conviction. We affirm the judgment in all other

respects.

The defendant’s convictions arise from the murder

of John Claude James (victim). On July 9, 2011, the

victim was in the area of Howard Avenue and Putnam

Street in New Haven. At approximately 6 p.m., firefighters responded to a call that someone had been shot;

they found the victim on the sidewalk adjacent to the

entrance to the parking lot behind 518–526 Howard

Avenue. The victim had been shot three times and he

died shortly after being taken to the hospital.

The jury reasonably could have found the following

facts. The defendant had a motive to kill the victim so

that he could obtain the victim’s gold chain, holding a

joker medallion.1 The victim was wearing this chain on

July 9, 2011. Two witnesses, Carol Boxley and Charles

Caple, stated individually to police that on or about

July 9, 2011, they overheard the defendant discussing

gold jewelry, including the victim’s joker chain. Boxley

told police that the defendant said ‘‘we’re going to get

the joker chain ’cause gold is high now.’’ Caple told

police that on the day the victim was shot, the defendant

may have said that he was ‘‘gonna get’’ the victim.

Boxley and her family lived at 536 Howard Avenue.
Her daughter, Renicka (Nicky) Boxley, had a relationship with the defendant and was pregnant with his

child. Boxley’s son, Antonio Lofton, Jr., witnessed the

victim’s shooting.

At approximately 5:30 p.m. on July 9, 2011, Dorothy

Council was on the back porch of 530 Howard Avenue

when the victim stopped by to greet her. The victim

left soon after and approximately fifteen minutes later,

Council heard gunshots and ran inside 530 Howard

Avenue. Looking through a window, Council saw the

victim run across the parking lot toward Putnam Street,

lose his balance, spin around, and fall down at the

entrance of the parking lot to 518–526 Howard Avenue.

At this time, Lofton was in his backyard at 536 Howard Avenue, from where he could see across Putnam

Street and into the parking lot of 518–526 Howard Avenue. Lofton saw the defendant shoot the victim in the

chest. The defendant fired ‘‘three or more’’ or ‘‘maybe

four or five shots’’ while the victim was facing him.

Lofton saw the defendant, with a ‘‘silvery handgun’’ in

his hand, and his friend, Earl Simpson, run from the

back of Putnam Street toward the front of his house.

He did not see anything in Simpson’s hands. Lofton was

able to identify the defendant because he had known

him for about a year. He had known the victim for

longer, and was able to identify him as well.

Lofton went into his house using a rear entrance and

saw the defendant in his kitchen. Both Simpson and

the defendant offered Lofton marijuana and money,

which Lofton did not accept. The defendant and Simpson ran out of the apartment toward Carlisle Street and

got into a waiting black car.

At this time, Caple was in the area and heard the

gunshots. He saw a black Acura, which he thought

belonged to Isis Hargrove, drive by on Carlisle Street.

Hargrove was Simpson’s sister and Caple was familiar

with her. He knew that she had been involved with the

defendant, and had seen her previously driving a black

Acura in the area. Police later confirmed that she had a

black Acura registered in her name. The police gathered

evidence from the area, including several of the victim’s

belongings, in the front part of the alcove between 518

and 522 Howard Avenue. The police found the victim’s

unbroken joker chain on the ground. Although the victim had a cell phone with him that afternoon, the police

recovered only the leather cell phone case that the

victim was known to wear on his belt. The police found

six nine millimeter shell casings in the alcove, as well

as blood-like substances near the alcove and on the

sidewalk near the entrance to the parking lot where

the victim was found.

On July 11, 2011, the police spoke with Hargrove

about the shooting. On the night of July 12, 2011, the

defendant and Hargrove, along with Simpson and his
girlfriend Mikia Gary, rented a car and drove to North

Carolina. On the way, the car was stopped for speeding

in New Jersey. The state trooper asked for the occupants’ identifications, and the defendant gave his brother’s name. In the following weeks, the defendant was

not seen in the area of Howard Avenue and Putnam

Street, although he regularly spent time there prior to

the shooting.

On November 16, 2011, the defendant was arrested

in Virginia. When the deputy making the arrest asked

the defendant for identification, he gave a YMCA card

with his photograph on it but with a name other than

his own. At trial, the state asserted that the defendant’s

use of false names and his flight from the state were

indicative of his consciousness of guilt.

The defendant was brought back to Connecticut and

charged with five offenses. The charges of murder, felony murder, and robbery or attempt to commit robbery

in the first degree were tried to a jury, which returned

a verdict of guilty on all three charges. The charges of

carrying a pistol without a permit and criminal possession of a pistol or revolver were tried to the court,

which found him guilty. The court merged the murder

and felony murder convictions and imposed a sentence

of sixty years imprisonment on the murder charge and

twenty years on the robbery or attempted robbery

charge to be served concurrently. The court imposed

a sentence of five years on the conviction of carrying

a pistol without a permit to be served concurrently,

and five years on the conviction of criminal possession

of a pistol or revolver to be served consecutively. The

total effective sentence was sixty-five years. The defendant appeals from this judgment. Additional facts will

be set forth as necessary.

I

SUFFICIENCY OF THE EVIDENCE

We first consider the defendant’s claim that the evidence was insufficient for the jury and court to return

verdicts of guilty as to all five counts. The defendant’s

argument is twofold. First, he argues that the jury could

not rely on Lofton’s testimony because it was ‘‘physically impossible’’ for it to be true. Second, he argues

that without Lofton’s testimony, the remaining circumstantial evidence was insufficient to prove that the

defendant was guilty of any of the offenses charged.

We disagree.

A

We begin with the defendant’s claim that it was physically impossible for Lofton’s testimony to be true. The

defendant’s claim is not actually one of physical impossibility, but rather is a challenge to Lofton’s credibility

and an argument that the jury could draw only one

inference about where the shooting occurred based on

the location of the expended shell casings. Prior to
analyzing the sufficiency of the evidence claim, we

explain why the defendant’s physical impossibility

claim fails.

The defendant’s physical impossibility claim turns

entirely on where the shooting occurred. The following

additional facts are relevant to this issue. Lofton was

the only eyewitness to the shooting and at the time he

testified, he was twenty years old and testifying pursuant to a subpoena. The building at 518–526 Howard

Avenue is an apartment building, and in between each

unit on the ground floor are recessed alcoves. Each

alcove is about twenty feet deep and ten feet wide, and

is enclosed on three sides by the walls of the building.

Police found the victim’s belongings and the expended

nine millimeter shells in the alcove between apartment

518 and 522. Lofton said that he could not see into this

alcove, but was able to see if people exited from it. The

defendant asserts that the location of the expended

shells conclusively proves that the shooting took place

in this alcove, into which Lofton could not see.

The state called two witnesses with firearms experience, who testified as to where the six shells were

found and their relation to where the shots were fired.

One witness, Detective Omaida Nieves, testified that

where the six shells and blood were found in the alcove

did not prove that the shots were fired from that location. James Stephenson, a firearms expert from the

state forensic science laboratory, testified that it was

impossible to determine the ejection pattern of a firearm without knowing several variables, such as the type

of firearm and the position of the shooter’s hand upon

firing. He refused to speculate as to where the shots

were fired from based upon the location of the six

shell casings.

The defendant asserts that the ‘‘[the experts’ testimony] established that the only shots fired occurred in

the alcove, not in the parking lot driveway area as

claimed by Lofton. The shots were fired from a place

that Lofton concededly could not see into.’’ A review

of Nieves’ and Stephenson’s testimony reveals that the

defendant bases his claim not on facts in the record,

but on his own conclusory assertions about the inferences that should be drawn from where the shells were

found. The defendant relies principally upon State v.

Hammond, 221 Conn. 264, 276–78, 604 A.2d 793 (1992),

in which the defendant prevailed on his claim of physical impossibility because the DNA and blood type evidence conclusively established that the defendant could

not have committed the crime. In the present case,

however, it is entirely possible that the victim was running away from the alcove when he was shot and that

the defendant was standing in a place where Lofton

could see him. Thus, whether Lofton saw the defendant

shoot the victim is a matter of credibility, not impossibility.
‘‘[B]ecause the jury has the opportunity to observe

the conduct, demeanor and attitude of the witnesses

and to gauge their credibility, [i]t is axiomatic that evidentiary inconsistencies are for the jury to resolve, and

it is within the province of the jury to believe all or

only part of a witness’ testimony.’’ (Internal quotation

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

877 A.2d 739 (2005). After concluding that the physical

evidence did not preclude Lofton from having seen the

shooting, ‘‘[o]n appeal we cannot revisit the jury’s decision to believe the witness.’’2 State v. Robinson, 125

Conn. App. 484, 489, 8 A.3d 1120 (2010), cert. denied,

300 Conn. 911, 12 A.3d 1006 (2011). Thus, the defendant’s claim that Lofton’s testimony should have been

rejected based on physical impossibility fails.

B

We next turn to the sufficiency of the evidence,

including Lofton’s testimony, as to each of the defendant’s convictions. ‘‘The standard of review employed

in a sufficiency of the evidence claim is well settled.

[W]e 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. . . . 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. Mendez, 154 Conn. App. 271, 275–76, 105 A.3d

917 (2014).

First, the defendant’s challenge to the murder conviction fails because Lofton’s testimony and the circumstantial evidence were sufficient to establish the

defendant’s guilt. ‘‘To establish a violation of § 53a-54a,

the crime of murder, the state must prove beyond a

reasonable doubt that the defendant, with intent to

cause the death of another person . . . cause[d] the

death of such person . . . . [T]he specific intent to kill

is an essential element of the crime of murder. To act

intentionally, the defendant must have had the conscious objective to cause the death of the victim. . . .

Intent is a question of fact, the determination of which

should stand unless the conclusion drawn by the trier

is an unreasonable one.’’(Citation omitted; internal quotation marks omitted.) State v. Lisboa, 148 Conn. App.
769, 775, 85 A.3d 1244 (2014).

Lofton’s testimony alone was sufficient for the jury

to find the defendant guilty of murder as it reasonably

allowed the jury to inferthat the defendant had committed all of the elements of the crime. Lofton testified

that the defendant shot the victim three times, causing

the victim’s death. The jury reasonably could have

inferred from Lofton’s description of the events that

the defendant intended to shoot the victim. See id., 776

(‘‘it is a permissible . . . inference that [the] defendant

intended the natural consequences of his voluntary conduct’’ [internal quotation marks omitted]). It also does

not matterthat Lofton was the sole witness to the shooting. ‘‘The credited testimony of even a single witness

may be sufficient to sustain a defendant’s conviction.’’

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

160 Conn. App. 61, 73, A.3d (2015); see also State

v. Whitaker, 215 Conn. 739, 757 n.18, 578 A.2d 1031

(1990). The jury also had circumstantial evidence of

the defendant’s motive and consciousness of guilt to

consider along with the eyewitness testimony.

The defendant’s challenges to the sufficiency of the

circumstantial evidence regarding his motive, consciousness of guilt, and possession of means to commit

the crime also fail. The defendant argues that the evidence of Simpson’s and his fleeing the scene after the

crime and leaving the state days later; his offer of money

and marijuana to Lofton; Boxley and Caple’s testimony

regarding his motive; and, evidence that he possessed

a gun in the area of the shooting less than one month

before it occurred, are ‘‘separately or together’’ insufficient to support the convictions of guilty beyond a reasonable doubt. While perhaps each ‘‘separately’’ might

be insufficient, we disagree that ‘‘together’’ they do not

support the jury’s verdicts, especially when considered

with Lofton’s eyewitness testimony that the defendant

shot the victim.

At trial, the state claimed that the defendant’s flight

from Connecticut and use of false names was indicative

of his consciousness of guilt. The jury reasonably could

infer the defendant’s consciousness of guilt from these

circumstances. See State v. Silva, 113 Conn. App. 488,

497–98, 966 A.2d 798 (2009) (jury can infer consciousness of guilt from defendant’s flight); State v. Martinez,

95 Conn. App. 162, 189, 896 A.2d 109 (jury can infer

consciousness of guilt from use of alias), cert. denied,

279 Conn. 902, 901 A.2d 1224 (2006). The jury also

reasonably could have inferred from the circumstances

that the defendant’s offer of marijuana and money to

Lofton was to persuade him not to tell the police about

the shooting.

In regard to the testimony about the defendant’s

motive, he makes similar challenges to the credibility

of Boxley and Caple that he made to Lofton. At trial,

both initially testified that they did not remember mak-
ing statements to the police relating to the defendant’s

motive. The jury had all of the evidence and testimony

in its deliberations that the defendant now uses on

appeal in his challenges to the witnesses’ credibility.

We again note we will not question the jury’s credibility

determinations and the conclusions itreached in resolving apparent inconsistencies in the testimony.

The testimony that the defendant possessed a gun in

the area weeks prior to the shooting was admitted to

show that he possessed the means to commit the crime,

and the jury reasonably could have considered it in

determining the defendant’s guilt.3

Second, the defendant’s challenge to the conviction

of carrying a pistol without a permit fails because the

evidence was sufficient for the court to find the defendant guilty beyond a reasonable doubt. Section 29-35

(a) provides in relevant part that: ‘‘No person shall carry

any pistol or revolver upon his or her person, except

when such person is within the dwelling house or place

of business of such person, without a permit to carry

the same issued as provided in section 29-28. . . .’’

‘‘Accordingly, the required elements of § 29-35 (a) are

that the defendant: (1) carried a pistol, (2) for which

he lacked a permit, (3) while outside his dwelling house

or place of business.’’ (Internal quotation marks omitted.) State v. Davis, 156 Conn. App. 175, 182, 111 A.3d

567 (2015). At trial, the parties stipulated that the defendant did not have a permit to carry a firearm. Stephenson testified that the murder weapon was a nine

millimeter semiautomatic handgun, and the court reasonably could infer from Lofton’s eyewitness testimony

that the defendant possessed a pistol outside his dwelling or place of business.

Third, in regard to the conviction of criminal possession of a pistol or revolver, General Statutes (Rev. to

2011) § 53a-217c, provided in relevant part: ‘‘A person

is guilty of criminal possession of a pistol or revolver

when such person possesses a pistol or revolver . . .

and (1) has been convicted of a felony . . . .’’ The

parties stipulated at trial that as of July 9, 2011, the

defendant was a convicted felon. This stipulation and

Lofton’s eyewitness testimony were sufficient for the

court to find the defendant guilty of this count.

Fourth, the defendant claims that there was insufficient evidence to find him guilty of robbery or armed

robbery in the first degree and, accordingly, of felony

murder. The defendant concedes that the victim’s possessions found in the alcove and the fact that his cell

phone was missing, considered with the wounds that

the victim suffered, allow for the inference that a robbery and murder occurred. Nonetheless, the defendant

contends that the evidence was insufficient to convict

him of robbery or attempted robbery because ‘‘none of

this implicated the [him] . . . . No fingerprints, DNA

or any evidence identifying [him] as the robber-shooter
was produced.’’

Section 53a-134 (a) provides in relevant part: ‘‘A person is guilty of robbery in the first degree when, in the

course of the commission of the crime of robbery . . .

he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . .’’ Section 53a-49 (a) provides

in relevant part: ‘‘A person is guilty of an attempt to

commit a crime if, acting with the kind of mental state

required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the

circumstances as he believes them to be, is an act or

omission constituting a substantial step in a course of

conduct planned to culminate in his commission of

the crime.’’

The defendant’s argument fails because it overlooks

that ‘‘[r]obbery may be proven by circumstantial evidence and the inferences drawn therefrom.’’ State v.

Mullings, 202 Conn. 1, 11, 519 A.2d 58 (1987). At trial,

the jury heard testimony from the victim’s mother that

her son always wore his gold chain because it had

sentimental value to him, as well as testimony from her

and other witnesses that the victim had his cell phone

the day of the shooting and that it was never found.

The victim’s chain was found intact near the alcove,

and the jury reasonably could have drawn the inference

proposed by the state in closing argument that the victim would not have removed it because of its sentimental value unless he had been threatened to do so. The

jury also could have reasonably inferred that the victim’s cell phone was taken, as it was never recovered.

These inferences must be considered in light of the

testimony that Lofton saw the defendant shoot the victim in the vicinity of where the victim’s belongings were

recovered. In construing the evidence in the light most

favorable to sustaining the verdict, we determine that

the jury reasonably could have concluded that the

cumulative force of the evidence established the defendant’s guilt beyond a reasonable doubt as to the count

of robbery or attempted robbery, which served as the

basis for the defendant’s felony murder conviction.

Mindful that in determining the sufficiency of the

evidence we considerits cumulative effect, and construing the evidence in the light most favorable to sustaining

the verdict, we determine that the jury reasonably could

have concluded that the evidence established the defendant’s guilt beyond a reasonable doubt on the counts

of murder, felony murder, and robbery, and that the

court could have done the same on the counts of possession of a pistol without a permit, and criminal possession of a pistol or revolver.

II

VERDICTS AGAINST WEIGHT OF THE EVIDENCE/

NEW TRIAL REMEDY
The defendant claims that he is entitled to a new

trial, arguing that the verdicts were against the weight

of the physical evidence. We note that the defendant

did not preserve this issue by moving for a new trial

pursuant to Practice Book § 42-53, nor does he claim

that he is entitled to a new trial based on newly discovered evidence under the framework of Practice Book

§ 42-55. The defendant seeks review of this claim under

State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823

(1989). However, the defendant’s claims regarding the

physical evidence are substantively identical to the

claims we considered in part I of this opinion. Furthermore, the defendant concedes in his brief that this claim

turns on whether we discredit Lofton’s testimony, as

he stated ‘‘should this court agree with the defendant

that Lofton’s testimony must be rejected but find nevertheless that other evidence was sufficient to prove guilt,

the defendant claims that the verdicts should be set

aside and the lesser relief, which is to order a new trial,

is required.’’ As we concluded in part I of this opinion,

we are aware of no reason that prohibited the jury

from crediting Lofton’s testimony. For this reason, this

claim fails.4

III

PRIOR MISCONDUCT EVIDENCE

The defendant next claims that the trial court abused

its discretion by admitting evidence that he had previously displayed a gun to prove that he possessed the

means to commit the crimes. He argues that the trial

court erred for three reasons: (1) the witness’ description of the gun she saw was different from that of the

murder weapon, (2) the purported misconduct was too

remote in time, and (3) the prejudice outweighed the

probative value. We disagree.

The following additional facts are relevant to this

claim. The defendant filed a pretrial motion to compel

the state to provide notice of its intention to use evidence of his prior misconduct. The state apprised the

defendant of its intention to offer the testimony of a

‘‘female friend of the defendant’s girlfriend’’ describing

a confrontation during which the defendant displayed a

gun. The female friend was Caprie Ford, Nicky Boxley’s

cousin. At trial, the state made an offer of proof outside

the presence of the jury. Ford saw the defendant with

Hargrove at the circus in Milford on June 14 or 15,

2011,5 and when she later saw him in the Putnam Street

area she confronted him about his having been with a

woman other than Nicky Boxley. The defendant walked

away from Ford, but returned minutes later pointing at

her what ‘‘looked like a little gun’’ and threatened to

shoot her. Ford could see only a portion of the barrel

because the defendant covered the rest of it with his

sleeve, but stated that she was sure it was a real gun.

When cross-examined, Ford testified that she could tell
what the defendant displayed was not a toy gun because

it was metal, but she was not sure of whether the

weapon was a revolver or a semiautomatic pistol. She

testified that all that she saw was the ‘‘small,’’ ‘‘skinny’’

‘‘nozzle of the gun’’ and a part of the barrel.

The state offered this testimony pursuant to § 4-5 (b)

of the Connecticut Code of Evidence to show that the

defendant possessed the means to commit the crimes

charged. Defense counsel argued that the court should

preclude Ford’s testimony because there was no showing that what she saw was the murder weapon, that

the incident was too remote in time to the shooting of

the victim, and that there was not an adequate showing

that what Ford saw was even a gun. The court noted

that under State v. Rosario, 99 Conn. App. 92, 104, 912

A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d 276

(2007), there is no requirement that evidence of a means

to commit the crime must involve the actual weapon

used in the crime. The court determined that the evidence was admissible, and that its probative value outweighed its prejudicial effect. It stated it would give a

limiting instruction after its admission. The jury then

heard Ford testify about the incident, including the

defendant’s having threatened to shoot her with the

gun. She described the gun in the same manner. The

court then gave a limiting instruction.

The standard of review regarding uncharged misconduct evidence is well established. ‘‘Evidence of a defendant’s uncharged misconduct is inadmissible to prove

that the defendant committed the charged crime or to

show the predisposition of the defendant to commit

the charged crime. . . . Exceptions to this rule have

been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered

to prove intent, identity, malice, motive, a system of

criminal activity or the elements of a crime. . . . To

determine whether evidence of prior misconduct falls

within an exception to the general rule prohibiting its

admission, we have adopted a two-pronged analysis.

. . . First, the evidence must be relevant and material

to at least one of the circumstances encompassed by

the exceptions. Second, the probative value of such

evidence must outweigh the prejudicial effect of the

other crime evidence. . . . Since the admission of

uncharged misconduct evidence is a decision within

the discretion of the trial court, we will draw every

reasonable presumption in favor of the trial court’s

ruling. . . . We will reverse a trial court’s decision only

when it has abused its discretion or an injustice has

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

Pena, 301 Conn. 669, 673–74, 22 A.3d 611 (2011).

‘‘Evidence indicating that an accused possessed an

article with which the particular crime charged may

have been accomplished is generally relevant to show

that the accused had the means to commit the crime.’’
(Internal quotation marks omitted.) State v. Green, 62

Conn. App. 217, 240, 774 A.2d 157 (2001), aff’d, 261

Conn. 653, 804 A.2d 810 (2002). ‘‘The state does not

have to connect a weapon directly to the defendant and

the crime. It is necessary only that the weapon be

suitable for the commission of the offense. . . . State

v. Sivri, 46 Conn. App. 578, 584, 700 A.2d 96, cert.

denied, 243 Conn. 938, 702 A.2d 644 (1997).’’ (Emphasis

added; internal quotation marks omitted.) State v. Pena,

supra, 301 Conn. 675.

First, we are not persuaded by the defendant’s argument that the court could not conclude that what Ford

saw in the defendant’s possession was a gun based on

her description. Ford stated that she saw a ‘‘real gun’’

and a ‘‘metal barrel,’’ and the court also noted that

defense counsel would have the opportunity to crossexamine her. The trial court had a sufficient factual

basis to allow the admission of this testimony, and its

decision was not an abuse of discretion.

The defendant argues that Ford’s description of the

gun was not sufficiently similar to type used to shoot

the victim. He highlights that in State v. Sivri, supra,

46 Conn. App. 585, the victim’s wounds were caused

by a large caliber gun, and the evidence offered that

the defendant had the means to commit the crime were

large caliber weapons. He points out that in State v.

Pena, supra, 301 Conn. 675, the connection between

the murder weapon and the means to commit the crime

evidence was more similar, as both weapons were

described as ‘‘black pistols.’’ The defendant’s conclusion is that in the present case ‘‘there are no such

similarities here where the barrel [that Ford described]

was shown to be very different from the murder

weapon.’’

Much of the defendant’s effort to distinguish the present case is premised on the defendant’s speculation

that Ford only possibly could have seen a revolver, not

a pistol. Stephenson determined that the gun used to

kill the victim was a nine millimeter semiautomatic

pistol. Comparing Ford’s description of the weapon she

saw in the defendant’s possession with the testimony

and evidence regarding the murder weapon, we conclude that the trial court did not abuse its discretion

in determining that it was relevant to show that the

defendant possessed the means to commit the crime.

The jury reasonably could have inferred from Ford’s

testimony that she saw a handgun, and at that time, the

defendant possessed a weapon suitable forthe commission of the offense charged.

The defendant’s challenge to the relevance of the

confrontation between the defendant and Ford as too

remote in time also fails. There is no bright line governing when a defendant’s possession of the means to

commit the crime is too remote to be relevant. ‘‘In Sivri,

we held that the evidence that the defendant was in
possession of guns and ammunition three days after

the disappearance of the victim permitted the jury to

infer that the defendant had possessed the guns three

days earlier.’’ State v. Stevenson, 53 Conn. App. 551,

572, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d

990 (1999). In Stevenson, the victim was shot with a nine

millimeter handgun, and testimony that the defendant

possessed handguns a couple of weeks later was admissible to show that the defendant possessed the means

to commit the crime. Id., 571–72. In Pena, the murder

weapon was a black pistol, and our Supreme Court

concluded that the trial court did not abuse its discretion in admitting testimony that the defendant had

access to a black pistol approximately three months

before shooting the victim. State v. Pena, supra, 301

Conn. 675–76. In the present case, the confrontation

with Ford occurred approximately three weeks before

the shooting, which was not too remote in time to be

relevant.

We next examine whetherthe prejudicial effect of the

admission of Ford’s testimony outweighed its probative

value. ‘‘[E]vidence may be excluded by the trial court

if the court determines that the prejudicial effect of the

evidence outweighs its probative value. . . . Of

course, [a]ll adverse evidence is damaging to one’s case,

but it is inadmissible only if it creates undue prejudice

so that it threatens an injustice were it to be admitted.

. . . The test for determining whether evidence is

unduly prejudicial is not whether it is damaging to the

defendant but whether it will improperly arouse the

emotions of the jury.’’ (Internal quotation marks omitted.) State v. Rosario, supra, 99 Conn. App. 104.

We conclude that the court properly balanced the

probative value of the evidence of the defendant’s prior

possession of a firearm sufficient to commit the charged

crimes against its prejudice to the defendant. Furthermore, the court gave a limiting instruction explaining

to the jury the limited purpose for which it could use

Ford’s testimony. See State v. Sivri, supra, 46 Conn.

App. 583. The defendant asserts that unfair prejudice

resulted from the jury being allowed to hear that Ford

saw the gun in the context of the defendant’s threatening to shoot her. While the court in Pena concluded

that one reason admission of the defendant’s prior possession of a gun was not unduly prejudicial was because

‘‘[t]he testimony did not establish that the defendant

previously had harmed or threatened any person, acted

violently, or otherwise call into question the defendant’s

character’’; State v. Pena, supra, 311 Conn. 676; we note

that the defendant in the present case did not seek to

limit Ford’s testimony. He did not raise this issue in

the state’s offer of proof, nor did he object when Ford

testified to the entire incident in front of the jury. We

thus conclude that the court did not abuse its discretion

in admitting Ford’s testimony regarding the defendant’s

possession of the means to commit the crime.6
IV

PROSECUTORIAL IMPROPRIETY

The defendant next claims that he is entitled to a

new trial due to prosecutorial impropriety. Specifically,

the defendant claims thatthe prosecutorin closing arguments (1) misstated Council’s testimony regarding her

observation of the victim falling down, (2) misstated

the testimony of the medical examiner, (3) misstated

Boxley’s testimony regarding the defendant’s motive to

take the victim’s gold chain, and (4) argued that the

prior misconduct evidence showed motive when its

only admissible purpose was to show possession of the

means to commit the crime. The defendant did not

object during closing argument, nor did he seek a curative instruction on any of the alleged improprieties.

The applicable law governing claims of prosecutorial

impropriety is well established. ‘‘[I]n analyzing claims

of prosecutorial [impropriety], we engage in a two step

process. The two steps are separate and distinct: (1)

whether [an impropriety] occurred in the first instance;

and (2) whetherthat [impropriety] deprived [the] defendant of his due process right to a fair trial. Put differently, [an impropriety is an impropriety], regardless of

its ultimate effect on the fairness of the trial; whether

that [impropriety] caused or contributed to a due process violation is a separate and distinct question . . . .’’

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

313 Conn. 266, 279, 96 A.3d 1199 (2014).

The defendant’s first claim of impropriety involves

the prosecutor’s summation of Council’s testimony in

his closing rebuttal argument. Council testified that,

after she heard gunshots, she saw the victim run, spin

around, and fall down where emergency medical personnel found him. The prosecutor stated ‘‘you heard

about Miss Council saying what she saw and she claims

she was good friends with [the victim] and saw him

running and get shot and turn and landed on his back.’’

The defendant argues that the prosecutor engaged in

impropriety because Council did not testify that she

actually saw the victim get shot. We disagree.

‘‘We long have held that a prosecutor may not comment on evidence that is not a part of the record and

may not comment unfairly on the evidence in the

record.’’ State v. Fauci, 282 Conn. 23, 49, 917 A.2d 978

(2007). However, the prosecutor ‘‘may argue the state’s

case forcefully, [provided the argument is] fair and

based upon the facts in evidence and the reasonable

inferences to be drawn therefrom.’’ (Internal quotation

marks omitted.) State v. Luster, 279 Conn. 414, 429,

902 A.2d 636 (2006). Furthermore, ‘‘[c]ounsel must be

allowed a generous latitude in argument, as the limits

of legitimate argument and fair comment cannot be

determined precisely by rule and line, and something

must be allowed for the zeal of counsel in the heat of
argument.’’ (Internal quotation marks omitted.) Id., 428.

‘‘While a prosecutor is not permitted to interject his

own opinion generally, he must be permitted to speak

to the cumulative evidence he has put forth during the

course of trial. . . . Likewise, [w]e must give the jury

the credit of being able to differentiate between argument on the evidence and attempts to persuade them

to draw inferences in the state’s favor, on one hand,

and improper unsworn testimony, with the suggestion

of secret knowledge, on the other hand. The state’s

attorney should not be put in the rhetorical straightjacket of always using the passive voice, or continually

emphasizing that he is simply saying I submit to you that

this is what the evidence shows, or the like.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Ivan G.S., 154 Conn. App. 246, 255–56, 105 A.3d 905

(2014), cert. denied, 315 Conn. 923, 108 A.3d 1123

(2015).

In the circumstances here, we find that the prosecutor was merely arguing the inferences that the jury

reasonably could draw in considering the cumulative

evidence. The defendant relies on State v. Fauci, supra,

282 Conn. 49, in which the prosecutor in rebuttal argument definitively asserted the identity of a ‘‘mystery

woman’’ that one of the defendant’s witnesses refused

to identify, although there was no evidence in the record

that supported the prosecutor’s assertion. Id., 49–50. In

the present case, the prosecutor did not propose an

unreasonable or unfair inference, nor did he make an

assertion that was unsupported by the record. Council

testified that she saw the victim fall down at the location

where emergency medical personnel treated the victim

for gunshot wounds. The jury reasonably could infer

from the circumstances when Council testified that she

saw the victim fall, she actually saw the moment when

he got shot.

Second, the defendant’s claim that the prosecutor

improperly misstated the medical examiner’s testimony

also fails. The defendant’s theory of the case was that

the shooting occurred in the alcove, out of Lofton’s

view, and the victim then ran while injured and fell at

the spot where the firefighters found him. Evangelista

gave testimony that supported the theory that the defendant could have moved after being shot, stating, ‘‘there’s

no such injury such as like a spinal cord, or a brain

injury where it would make a person unable to move

or walk, so in my opinion, yes, he could ambulate or

walk or run for some time.’’ However, Evangelista also

stated ‘‘if he didn’t [move] it wouldn’t surprise me

either.’’ In regards to the wounds, he could not determine the sequence of the three gunshots, but stated

that the wound to the back and through the chest was

the fatal one, as it perforated the apex of the victim’s

heart.

In rebuttal argument, the prosecutor stated:
‘‘[R]emember something else that Dr. Evangelista told

you. That was the fatal wound. It perforated the apex

of his heart and this would have likely brought him

down quickly . . . . If he got shot in the alcove and

all these shots happened in the alcove how did he make

it that far? He wouldn’t have run that far with that type

of wound. It had to happen after he got out of the

alcove, and therefore Mr. Lofton told you that from

here he could see . . . people coming out of the alcove

area. . . . He made it out of there and that’s why Mr.

Lofton was able to see this defendant and see [the

victim].’’

The defendant’s argument is essentially that because

the medical expert testified that the victim could have

moved after being shot, that the only logical inference

that the prosecutor could propose and the jury could

draw is that the victim did move. This overlooks Evangelista’s testimony that he would not have been surprised if the victim fell immediately after being shot.

The proposed inferences were not unfair or unreasonable, and this portion of the prosecutor’s rebuttal argument was not improper.

Third, the defendant claims that the prosecutor

engaged in impropriety by summarizing Boxley’s and

Caple’s testimony regarding the defendant’s motive,

arguing that their testimony could be used only for

impeachment purposes. We disagree.

The following additional facts are relevant to this

claim. Both Boxley and Caple initially testified that they

did not remember giving statements to police regarding

the defendant’s motive to steal the victim’s chain, and

the prosecutor eventually presented them with portions

of their statements. During the state’s direct examination of both witnesses, the jury heard their statements

regarding the defendant’s motive.

The defendant’s argument is that both Boxley’s and

Caple’s prior statements were not substantively admissible evidence and could be used only for impeachment

purposes. However, the defendant did not seek to limit

the grounds of admissibility, nor did he preserve these

claims. It is well established that ‘‘[a]n appellate court

shall not be bound to consider a claim unless it was

distinctly raised at the trial or arose subsequent to the

trial.’’ (Internal quotation marks omitted.) State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert.

denied, 284 Conn. 912, 931 A.2d 932 (2007). ‘‘[A] defendant may not transform an unpreserved evidentiary

claim into one of prosecutorial impropriety to obtain

review of that claim.’’ Id. Because the defendant did

not seek to limit the scope of their testimony, it was

not improper for the prosecutor in closing argument to

invite the jury to draw substantive inferences of the

defendant’s motive from their statements. See State v.

Rowe, 279 Conn. 139, 152, 900 A.2d 1276 (2006)

(‘‘[a]rguing on the basis of evidence explicitly admitted
cannot constitute prosecutorial [impropriety]’’).

The defendant’s final claim is that the prosecutor

engaged in impropriety by arguing that the evidence of

the defendant’s possession of the means to commit the

crime also demonstrated the defendant’s character and

propensity to commit the crimes. The state concedes

that the prosecutor’s statements on this subject in his

initial and rebuttal closing arguments were improper.7

However, we conclude that these comments did not

deprive the defendant of a fair trial.

‘‘Our Supreme Court has indicated that the determination of whether any improper conduct by the [prosecutor] violated the defendant’s fair trial rights is

predicated on the factors set forth in State v. Williams,

[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due

consideration of whether that [impropriety] was

objected to at trial. . . . These factors include [1] the

extent to which the [impropriety] was invited by

defense conduct or argument, [2] the severity of the

[impropriety], [3] the frequency of the [impropriety],

[4] the centrality of the [impropriety] to the critical

issues in the case, [5] the strength of the curative measures adopted, and [6] the strength of the state’s case.’’

(Internal quotation marks omitted.) State v. James E.,

154 Conn. App. 795, 816–17, 112 A.3d 791 (2015).

The defendant did not invite the impropriety, as the

prosecutor made the improper remarks in both his initial and rebuttal closing argument. See State v. Alexander, 254 Conn. 290, 308, 755 A.2d 868 (2000). The

improprieties were not frequent, as the prosecutor

made the improper remarks about Ford’s testimony in

relatively brief instances, once each in his initial and

rebuttal closing arguments. The remarks also were not

severe, as ‘‘we considerit highly significant that defense

counsel failed to object to any of the improper remarks

[or] request curative instructions . . . . Defense counsel, therefore, presumably [did] not view the alleged

impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial.’’ (Internal quotation marks omitted.) State v. Thompson, 266 Conn. 440,

479, 832 A.2d 626 (2003).

The central issue in this case was the identity of the

shooter. The defendant asserts that the inference could

have affected the jury’s determination that the defendant was the shooter. Even if that were true, the jury

had the far more probative testimony of Lofton to consider in determining whether the defendant was the

shooter, as well as testimony relating to the defendant’s

motive and circumstantial evidence of the defendant’s

consciousness of guilt. We are not persuaded that the

jury would have reached a different conclusion about

the shooter’s identity had it not heard the brief

improper remarks.

Although the trial court did not give specific curative
instructions, ‘‘[w]e note in this regard . . . that the

defendant, by failing to bring them to the attention of

the trial court, bears much of the responsibility for the

fact that these claimed improprieties went uncured. We

emphasize the responsibility of defense counsel, at the

very least, to object to perceived prosecutorial improprieties as they occur at trial, and we continue to adhere

to the well established maxim that defense counsel’s

failure to object to the prosecutor’s argument when it

was made suggests that defense counsel did not believe

that it was unfair in light of the record of the case at

the time.’’ (Internal quotation marks omitted.) Id., 483.

The trial court gave the general instruction to the jury

not to consider the arguments of counsel as evidence.

‘‘In the absence of a showing that the jury failed or

declined to follow the court’s instructions, we presume

that it heeded them.’’ (Internal quotation marks omitted.) Id., 485.

Finally, the state’s case against the defendant was

relatively strong. ‘‘The state’s evidence does not need

to be overwhelming to support a conclusion that prosecutorial impropriety did not deprive the defendant of

a fair trial.’’ State v. Felix, 111 Conn. App. 801, 816, 961

A.2d 458 (2008). Putting aside any potential influence of

the improper remarks, the jury had Lofton’s eyewitness

testimony, as well as circumstantial evidence of the

defendant’s consciousness of guilt and the testimony

of two witnesses regarding the defendant’s motive. On

the basis of our analysis of the Williams factors, we

conclude that the improper remarks did not deprive

the defendant of a fair trial.

V

VACATUR OF FELONY MURDER CONVICTION

The defendant claims that the trial court erred in

merging his convictions for murder and felony murder.

The state concedes that State v. Miranda, 317 Conn.

741, 751, 120 A.3d 490 (2015), which was pending in

our Supreme Court when this appeal was filed, controls

this issue. Pursuant to Miranda, we reverse the judgment in part and remand the case to the trial court with

the direction to vacate the defendant’s felony murder

conviction.

VI

CORRECTION OF THE JUDGMENT FILE

The defendant’s final claim is that the judgment file

must be corrected because the trial court deprived him

of his right to a unanimous verdict in instructing jurors

that on the charge of robbery or attempted robbery the

jury did not have to be unanimous as to which theory

it found the defendant guilty, as long as it was unanimous as to one of them. We disagree.

State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984),

is instructive on this claim. In Jones, the indictment
stated that under the felony murder statute ‘‘the defendant did commit or attempt to commit a robbery and

in the course of and in furtherance of such crime or

flight therefrom he, or another participant, caused the

death of a person . . . .’’ (Emphasis in original; internal

quotation marks omitted.) Id., 75. This did not violate

the defendant’s right to a unanimous verdict because

‘‘[w]hile some jurors might have believed that the defendant attempted the robbery but did not complete it,

and others might have believed that he did, in fact,

complete the crime, none could have believed that the

defendant completed the robbery without first undertaking a substantial step toward achieving its object.

The unanimous verdict of guilty thus necessarily

encompassed a unanimous finding that the defendant

had at least attempted to commit robbery.’’ Id., 76–77.

That analysis is directly applicable to the present case.8

Furthermore, the defendant has not demonstrated

what relief he would receive through a correction of

the judgment file. The defendant was charged with a

single count of ‘‘robbery or attempted robbery in the

first degree’’ in violation of §§ 53a-49 (a) (2) and 53a134 (a) (1). Both theories could serve as the predicate

felony for the conviction of felony murder. See General

Statutes § 53a-54c. General Statutes § 53a-51 states that

except for class A felonies, attempt is a crime ‘‘of the

same grade and degree as the most serious offense

which is attempted.’’ Section 53a-134 states thatrobbery

in the first degree is a class B felony, thus making

attempt to commit robbery in the first degree a class

B felony. The defendant faced the same punishment

under either theory. See State v. Holliday, 118 Conn.

App. 35, 42, 982 A.2d 268 (2009) (‘‘[t]he legislature

clearly intended attempt . . . to commit a class B felony to be punished the same as a class B felony or it

would have noted otherwise, as it did with class A

felonies’’), cert. denied, 295 Conn. 909, 989 A.2d 605

(2010). For this reason, this claim fails.

The judgment is reversed in part and the case is

remanded with direction to vacate the felony murder

conviction; the judgment is affirmed in all other

respects.

In this opinion the other judges concurred.

1 The joker medallion, dangling from the chain, depicts a court jester with

hands and legs extended.

2 The defendant challenges Lofton’s credibility, asserting that his testimony was inconsistent in some instances with his initial statement to police.

Cross-examination revealed that police had some concerns that Lofton’s

initial statements were not completely consistent with the other evidence

that they found, but Lofton stated multiple times on the witness stand that

he was sure he saw the defendant shoot the victim.

Regarding the details of the shooting, Lofton testified that he saw the

victim get shot in the chest, while the medical examiner, Frank Evangelista,

forensic pathologist, testified that the fatal shot entered through the victim’s

back. However, Lofton stated his conclusion that the victim was shot in the

chest was based on seeing blood in the chest area of the defendant’s shirt.

The defendant contends that Lofton’s testimony was contradicted by

Council, who stated that she saw the victim running from the direction of
the alcove, spin, and then fall at the area where he was eventually found

in the parking lot. Lofton stated that the defendant was stationary at the

time he was shot. Defense counsel had the opportunity to cross-examine

Lofton on all of these issues. On appeal, we will not second-guess the jury’s

decision about which witnesses it chose to believe, nor its conclusions in

resolving apparent inconsistencies in the evidence and testimony.

3 The defendant challenges the admissibility of this testimony, which we

consider in part III of this opinion. He argues specifically that the witness

who testified that she saw the defendant’s prior possession of a gun did

not describe a gun that was sufficiently similar to the weapon the defendant

allegedly used to shoot the victim.

4 We decline the defendant’s additionalrequest to order a new trial through

the use of our supervisory authority.

5 The parties stipulated at trial that the Coleman Brothers Circus took

place at the Milford Post Mall on June 14 and 15, 2011.

6 Even if we were to conclude that the court abused its discretion and

improperly admitted Ford’s testimony concerning the defendant’s prior possession of the handgun, we would conclude, nevertheless, that it was harmless error. ‘‘[W]hether [the improper admission of a witness’ testimony] is

harmless in a particular case depends upon a number of factors, [including]

. . . the overall strength of the prosecution’s case. . . . Most importantly,

we must examine the impact of the [improperly admitted] evidence on the

trier of fact and the result of the trial.’’ (Internal quotation marks omitted.)

State v. Rosario, supra, 99 Conn. App. 105–106 n.9. Contrary to the defendant’s assertions, we find that the state’s case was relatively strong. Putting

aside Ford’s testimony, the state presented Lofton’s eyewitness testimony

that he saw the defendant shoot the victim. This was coupled with Boxley’s

and Caple’s testimony regarding the defendant’s motive, as well as circumstantial evidence of the defendant’s consciousness of guilt.

7

In his initial closing argument, the prosecutor stated: ‘‘Within just weeks

before Mr. James is shot and killed in that area this defendant has access

to a firearm. Not only is it important that he had access to the firearm but

remember what Miss Ford said, they had an argument in the street over

something relatively stupid and she says the defendant walked away. . . .

So that means he walked and came back and within five minutes what did

he have? He had the knob of a gun at the end of his sleeve pointing it within

two feet of Miss Ford . . . .’’

In his rebuttal argument the prosecutor stated ‘‘it’s important to think

about motive and means because if a few weeks before Mr. James got shot

this defendant is willing to pull a gun and threaten to shoot Caprie Ford in

the same area where this happened. What can you tell about that? Over

something as dumb as an argument about a girl. And remember, he was

only gone for five minutes. Does that show he had a gun in that area? What

can you infer from that?’’

We agree that the prosecutor in his closing arguments improperly used

Ford’s testimony to propose inferences regarding the defendant’s character

and propensity to commit the crimes.

8 The defendant relies on State v. Gould, 241 Conn. 1, 23–24, 695 A.2d

1022 (1997), which is inapplicable because unlike in the present case, the

defendant in Gould was convicted of robbery and attempted robbery alleged

as separate counts, and sentenced to separate concurrent sentences. Our

Supreme Court held that the attempted robbery conviction, as a lesser

included offense, had to be merged with the robbery conviction.