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******************************************************STATE OF CONNECTICUT v. ANGEL MORALES (AC 37867)
Beach, Mullins and Bear, Js.* Argued November 29, 2016—officially released April 18, 2017 (Appeal from Superior Court, judicial district of

Hartford, Dewey, J.)
Daniel P. Scholfield, with whom, on the brief, was Hugh F. Keefe, for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, andRobin Krawczyk, senior assistant state’s attorney, for the appellee (state).Opinion BEAR, J. The defendant, AngelMorales, appealsfrom the judgment of conviction, rendered after ajury trial, of intentional manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a) and criminal possession of a firearm in violation of GeneralStatutes § 53a-217(a) (1) (criminalpossession). On appeal, the defendant claims that the trial court erred (1) by denying his motion to bifurcate the elements of criminal possession or to sever the murder charges brought against him from the criminal possession charge; (2) in instructing the jury on combat by agreement; and (3) in refusing to instruct the jury on the common-law defense of necessity. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On the evening ofAugust 29, 2013, the defendant drove with his friend, Christopher Spear, and two female companions to a nightclub in downtown Hartford known as ‘‘Up or On the Rocks.’’ The defendant parked his car in a nearby parking lot located in the
area ofHigh Street and Church Street. Also at the club that nightwere the victim, Miguel Delgado, his brother, JoseDelgado,1andafriend, StevenCastano, allofwhom had arrived by taxi. While on the second floor of the club andwiththe defendantpresent, Delgado andSpear bumped into each other; Spear spilled his drink on Delgado. An argument ensued, during which Spear made a racially charged threat to shoot someone. Returning from the bar, Castano found the two men arguing and tried to separate them. Spear, however, slapped the drink Castano was holding at him, the victim, and Delgado. At that point, the club’s security escorted Spear, the defendant, and their companions out of the club while detaining the victim, Delgado, and Castano inside the club in an effort to defuse the situation and prevent violence.
Club securityheldthe victim and Delgado inthe club for about ten minutes. When they left, Delgado and Spear renewed their argument outside ofthe nightclub where the defendanthadbeenwaitingwith Spear. With the defendant present, Spear again threatened to shoot
someone. Althoughtheirfriends, butnotthe defendant, attempted to defuse the altercation, Delgado and Spear agreedtoengageinafistfight, andthepartiesproceeded to the parking lot where the defendant had parked his car. When the men reached the parking lot, Spear struck Delgado on the head with a hard object injuring him. When Spearattemptedtoretrievethe object, whichhad fallen to the ground, Delgado punched him, rendering him unconscious. Despite the fact that Spear was unconscious on the ground, Delgado continued to beat Spear, causing him significant injuries to his headand face. Meanwhile, the defendant recognized that the object withwhich Spearstruck Delgado was agun. The defendant went to pick it up, but the victim, who was behind him, engaged the defendant and the two men struggled with each other on the ground. In the course of the ensuing struggle, the defendant obtained the gun. As the victim stood up, he struck the defendant inthe face and the defendant fired a single shot, which struck the victim in the chest.
The victim ran toward Allyn Street where he collapsed on the sidewalk. Despite intervention by Delgado, a passerby who administered cardiopulmonary resuscitation, and medical personnel, the victim later died at the hospital at 2:15 a.m. of a gunshot wound to his chest.
After shooting the victim, the defendant fled. He discarded the gun in a garbage receptacle. He then drove away, leaving behind Spear and the women who had accompanied them.
On October 29, 2014, in a single long form information, the state charged the defendant with murder in violation of General Statutes (Rev. to 2013) § 53a-54a and reckless manslaughter in the first degree with a firearm in violation of § 53a-55a (a) (murder charges),
as well as criminal possession. At trial, the defendant stipulated that he shot the victim, but he testified both that the gun accidently discharged and that he was acting in self-defense. The jury returned a verdict of not guilty on the murder charge, but it found him guilty ofthe lesserincluded offense ofintentionalmanslaughter in the first degree with a firearm. Additionally, the jury found the defendant guilty ofreckless manslaughter in the first degree with a firearm, and criminal possession. The court accepted the jury’s verdict but a month later vacated the guilty verdict on the reckless manslaughter charge because of double jeopardy concerns. The courtthensentencedthe defendanttothirtyfive years incarceration, suspended after twenty years, withfive yearsprobation onthe intentional manslaughter conviction, and five years incarceration and a fine of $5000 for the criminal possession conviction. The courtorderedthatthesentencesbeservedconcurrently for a total effective sentence of thirty-five years incarceration, suspended after twenty years, with five years probation, and a $5000 fine. This appeal followed. Furtherfactswillbe setforthasnecessarytotheresolution of this appeal.
I
The defendant contends on appeal that the court abusedits discretionwhenitdeniedhismotiontoeither bifurcate or severthe charges against him. Specifically, he argues that he was prejudiced by having to defend simultaneously the murder charges and the criminalpossession charge. He claims prejudice because, in order to prove criminal possession, the state had to presentevidence thathepreviouslyhadbeen convicted of a felony. We disagree.
The following additionalfacts andproceduralhistory
are necessary for the resolution of this claim. On the first day of evidence and after the jury had been selected, the defendant moved to bifurcate or sever the charges against him. He proposed two alternative remedies. First, he asked that the court bifurcate the proofoftheelementsofcriminalpossession, submitting to thejury in the first part ofthe trial only the element ofpossession. Then, ifthe jury found that the element ofpossession was proven, he would stipulate to having been previously convicted ofa felony. Alternatively, he askedthecourtto sever2the criminalpossessioncharge fromthe murdercharges, andto hold consecutive trials using the same jury. Conceding that the charges were logically connected, the defendant argued that proof of the convicted felon element of criminal possession would be unduly prejudicial ifhe did not testify on his
own behalfin this case,3 as was his right. Based on the state’s assertion that it would agree to stipulate to the prior felony conviction without naming the conviction
or underlying conduct, the court determined that, with
a limiting instruction, any prejudicial impact of trying the charges together would be circumscribed, and, accordingly, it denied the motion.
A
The defendant first sought to bifurcate the elements of criminal possession. Section 53a-217 (a) provides in relevantpart: ‘‘Aperson is guilty ofcriminalpossession of a firearm

. . . when such person possesses a firearm

. . . and (1) has been convicted ofa felony

. . . .’’ As this court has previously stated: ‘‘No useful purpose wouldbe servedbyaseparateinformationalleging only the prior conviction.

. . . [A]n information alleging only that a defendant possessed a handgun, without mention of his prior conviction, would fail to allege any cognizable offense under our penal code.’’ State v. Banta, 15 Conn. App. 161, 173, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). Accordingly, the court did not abuse its discretion when it deniedthe defendant’smotiontobifurcatethe elements of criminal possession.
B
In the alternative, the defendant sought to sever the criminal possession charge from the murder charges. Before analyzing the defendant’s claim, we set forth the applicable law and standard of review. ‘‘Ajudicial authority may order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.

. . . A judicial authority may also order separate trials if itappears that a defendant is prejudiced byjoinder.

. . . This does not mean that severance is to be had for the asking.

. . . The question of severance lies within the discretion ofthe trial court. We will not disturb the trial court’s conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised onlyifajointtrialwill substantiallyprejudice the defendant. Substantialprejudiceismorethandisadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant.

. . . Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together.’’ (Citations omitted; internal quotation marks omitted.) Statev. Jones, 234 Conn. 324, 343, 662 A.2d 1199 (1995).
In determining whether a refusal to order separate trials was an abuse of discretion when one of the charges involves proof of the prior commission of a felony, this court considers the five factors enunciated in State v. Banta, supra, 15 Conn. App. 170–71:4 ‘‘[1] the manner in which the evidence entered the case and the extent of the jury’s knowledge of the facts underlying the prior felony conviction

. . . [2] the adequacy ofany cautionary instructions given by the court

. . . [3] the use of the prior felony evidence by the prosecution in argument to the jury

. . . [4] the likelihood that the prior felony conviction evidence will inflame the passions ofthejurors in light ofthe nature ofthe offenses charged

. . . and [5] the strength ofthe evidence against the defendant.’’5 (Citations omitted.)
The first factor requires consideration ofthe manner in which the evidence entered the case and the amount ofdetailthatthejuryreceivedregardingthepriorfelony conviction. The jury first learned of the defendant’s prior felony conviction at the close ofthe state’s casein-chiefby way ofa stipulation that stated onlythat the defendant had ‘‘previously been convicted ofa felony.’’ Additionally, the defendant admitted during his testimony that he was convicted of felonies in 2008 and 2013. Thejurydidnothearanydetailsofthedefendant’s prior convictions. This factor does not favor him.
The second factor addresses the adequacy of the cautionary instructions given by the court. After the stipulation was read to thejury, the court immediately instructed the jury that it was free to accept or reject the stipulation and that it was not to speculate as to the nature ofthe felony.6 In its final instructions to the jury,7 the court informed thejury that it must consider separately each of the charges. The court directed the jury to consider the stipulation to aprior conviction as evidence to satisfy an element of criminal possession. Additionally, the court instructed that the jury must acceptthe stipulation as factbutthe stipulation did not establish proof of an element of the crime beyond a reasonable doubt. The court instructed the jury, how-ever, that it was not to consider the defendant’s prior felony convictions as an indication of his guilt with respect to the other crimes charged, but only as it related to his credibility with respect to his testimony concerningeachofthose crimes. Thecourtalsoadvised the jury that the stipulation was ‘‘to be used only for the specific purpose it was entered for and not to be used for any other purpose.’’
Thedefendantarguesthatboththecourt’sinstruction to the jury immediately after the stipulation was read andits final charge tothejurywere inadequate. Specifically, he contends that the court failed to provide a sufficient contemporaneous limiting instruction when the stipulation was read to the jury and that the court failed to caution at any point that the stipulation could not be considered to prove any violent propensities. A trial court generally is not obliged to give a limiting instruction sua sponte; State v. Crenshaw, 313 Conn. 69, 90 n.16, 95 A.3d 1113 (2014); and, a fortiori, nor is it required to give a contemporaneous limiting instruction. State v. Willoughby, 153 Conn. App. 611, 618, 102 A.3d 1118 (2014) (court not required to give contemporaneous limiting instruction on admissible hearsay statement); see also William C. v. Commissioner of Correction, 126 Conn. App. 185, 190, 10 A.3d 115 (court not required to give contemporaneous limiting instruction on constancy of accusation testimony), cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).
The defendant did not request any contemporaneous limiting instruction. The court gave a limiting instruction during the charge to the jury on the use of the prior felony evidence. Although the instruction did not addresstheuse ofthe evidenceforviolentpropensities, there was no evidence to suggest that either of the defendant’s felony convictions was for a crime of violence, and the court specifically instructed thejury not to speculate as to the nature of the offense. In the absence of evidence to the contrary, we presume that the jury followed the trial court’s instructions. State v. Jamison, 320 Conn. 589, 607, 610, 134 A.3d 560 (2016). Therefore, we concludethatthe court’sinstructions did not mislead the jury and, thus, the second factor does not favor the defendant.
The third factor requires this court to consider the
use of the prior felony evidence by the prosecution in argument to the jury. In her closing arguments with respect to criminal possession, the prosecutor stated, ‘‘And there’s a stipulation in evidence that he has previously been convicted of a felony and on the stand he indicated that he had been. That count should be guilty
as well.’’ It is unlikely that such a brief comment that merelysummarizedthe relevantevidence, andwaspresented without embellishment, would substantially prejudice the defendant and, therefore, this factor does not favor him.The fourth factor considers the likelihood that the prior felony conviction evidence will inflame the passions ofthejurors in light ofthe nature ofthe offenses charged. As stated, the jurors learned nothing of the nature ofthe felony convictions. ‘‘Although the stipulation may have been disadvantageous to the defendant, it was an element that necessarily had to be proven under § 53a-217.’’ State v. Thompson, 81 Conn. App. 264, 287, 839 A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d 312 (2004). This factor does not favor the defendant.
The fifthfactoristhe strength ofthe evidence against the defendant. The jury was presented with evidence thatthe defendantwaspresent duringthe entire course of events, including both inside and outside the club, and during the subsequent altercation between Spear and Delgado in the parking lot. Rather than leave at any time, he stayed throughout with his friend Spear,
even though Spear had threatened to shoot people at least twice that evening. During the altercation in the parkinglot, the defendantsawthe gunafterithadfallen to the ground, ran toward it rather than away from it, struggledforit, andshotthevictimwithit. Hestipulated and testified that he shot the victim.
The matter for the jury to decide was whether the defendant possessed the requisite mental state—the necessary specific intent—to be convicted of murder
or manslaughter, or whether the killing was justified
as self-defense. Thejuryreturned averdict ofnot guilty
on the murder charge but guilty of the lesser included offense of intentional manslaughter in the first degree with a firearm in violation of § 53a-55a (a). Although the defendant claimed that he acted in self-defense, he also repeatedly testified that the shooting was an accident. Hethustestifiedinconsistentlyabouthisstate of mind that evening and his description of the events leading up to and including the shooting. Accordingly, therewas directevidence inthe form ofthe defendant’s admission and acknowledgement that he shot the victim. His testimony was equivocal and, therefore, sufficient for the jury to decide his mental state. The fifth factor does not weigh in favor of the defendant. Applying the five Banta factors to this case, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion to sever the charges against him.
II
The defendant claims that the court improperly instructed thejury. First, he claims that the court erred when it gave a combat by agreement instruction because, he argues, there was a complete lack of evidence of such an agreement. Second, he claims that the court erred when it denied his request to charge the jury on the defense of necessity as to the criminalpossession charge.
Before addressing the defendant’s claims, we set forththe well established standard ofreview for claims of instructional error. ‘‘An improper instruction on a defense, like an improper instruction on an element of
an offense, is of constitutional dimension.’’ (Internal quotationmarks omitted.)Statev. Clark, 264 Conn. 723, 729, 826 A.2d 128 (2003). ‘‘[I]ndividualjury instructions should not bejudged in artificial isolation, but must be viewed in the context of the overall charge.

. . . The pertinenttestis whetherthe charge, readin its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules oflaw.

. . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict

. . . and not critically dissected in amicroscopic search forpossible error.

. . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled thejury.

. . . In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.’’ (Internal quotation marks omitted.) Statev. Hampton, 293 Conn. 435, 452–53, 988 A.2d 167 (2009).
A
In the present case, the defendant claims that the courterredwhenitgaveacombatbyagreementinstruction because there was a complete lack of evidence of suchanagreement. Hedoesnotchallengethesubstance ofthe court’s instructions. We conclude thatthe court’s instruction did not mislead the jury. ‘‘The trial court should not submit to the jury any issuethatisforeigntothefactsinevidence orforwhich
no evidence was offered.

. . . In reviewing a claim that there was insufficient evidence to support an instruction, the reviewing court must consider the evidence inthe light mostfavorable to upholding the instruction.

. . . The question on appeal is whether, viewing the evidence in this light, it was sufficient to support a reasonable inference that the physical force employed by the defendant was the product of an agreement not authorized by law.’’ (Citations omitted; internal quotation marks omitted.) State v. Johnson, 53 Conn. App. 476, 480–81, 733 A.2d 852, cert. denied, 249 Conn. 929, 733 A.2d 849 (1999). Although an individual may justifiably use deadly physical force in self-defense under General Statutes § 53a-19,8 certain exceptions under that section preclude the defense. Subsection (c) of § 53a-19 provides inrelevantpart: ‘‘Notwithstandingtheprovisionsofsubsection (a) of this section, a person is not justified inusing physical force when

. . . (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.’’ ‘‘Ajury instruction regarding the combat by agreement exception to selfdefense is warranted when the evidence is sufficient to support a reasonable inference that such a mutual combat occurred.

. . . The agreement required by

. . . § 53a-19 (c) (3) need not be formal or express.

. . . Such an agreement may be tacit and inferred from the facts and circumstances of the case.’’ (Citations omitted; internal quotation marks omitted.) State v. O’Bryan, 318 Conn. 621, 637, 123 A.3d 398 (2015).
We have reviewedthe evidencepresented attrial and conclude that there was sufficient evidence to warrant thecourt’sinstruction. The courtreasonablycouldhave determined that there was sufficient evidence, if believed, from which the jury could have found that thedefendantenteredintoatacitorinformalagreement to engage in unlawful combat. For example, the defendant was present for the entirety of each altercation between Spear and Delgado, including when Spear threatened to shoot people at least twice. The club’s securityteam found itnecessaryto separate the groups in an attempt to defuse the situation and prevent violence. Once escorted out ofthe club, instead ofleaving the area, the defendant and Spear waited forthe victim andhisfriends. The defendantthenaccompanied Spear totheparkinglotafterSpearandDelgadohadexplicitly agreed to a fistfight. After Spear struck Delgado with
a hard object, which then dropped on the ground, the defendant was the first to run toward what he had identifiedas agun. Thereisno evidencethatatanytime the defendant left the area of the agreed and ongoing altercation, telephoned the police, attempted to convince Spear to leave, telephoned for medical help for Spear, or attempted to defuse the situation.
In summary, reviewing the evidence as a whole, the court reasonably could have determinedthatthere was sufficient evidence of a tacit or informal agreement among at least some of those present, including the defendant, growing out ofand relatedto the agreement between SpearandDelgado. Accordingly, the courthad the discretion to submit to the jury the question of whether the combat by agreement exception to the defendant’s claim of self-defense had been proved by thestate, assumingthatthejuryfoundpriorto considering that exception that the defendant was acting in self-defense.9 Accordingly, we conclude that the court properly exercised its discretion to charge the jury on the combat by agreement exception to the defendant’s claim of self-defense.10
B
The defendant also claims that the court erred when it denied his request to present a necessity instruction to the jury as to the criminal possession charge. Inresponse, the state contends that the court properly refused to instruct the jury on necessity because the evidence didnot supportthe instruction. We agree with the state.
The following additional procedural history is relevant to the resolution of this claim. On November 17, 2014, the day that trial began, the defendant filed a request to charge the jury on necessity concerning the criminal possession charge. After the prosecution and defense rested their cases, the court heard argument
on the necessity charge on November 19, 2014. The defendant argued that the evidence clearly supported the charge, utilizing the three factors set forth in State

v. Wright, 106 Conn. App. 295, 305, 942 A.2d 430, cert. denied, 286 Conn. 921, 949 A.2d 482 (2008), and State

v. Marsala, 59 Conn. App. 135, 142, 755 A.2d 965, cert. denied, 254 Conn. 948, 762 A.2d 905 (2000). The state objected, citing State v. Wright, 77 Conn. App. 80, 822 A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466 (2003). The courttookthe argumentsunderadvisement
as itpreparedits instructions. Atthe charge conference the next day, the defendant renewed his request for
an instruction on necessity, arguing that the evidence supported that defense, and the state again objected. The court stated that it did not think that the case law supported a necessity charge.11 The court concluded that it would not give the instruction but noted the defendant’s objection. The court did not instruct the jury on the defense of necessity and, after the charge had been given, the defendant took exception to the court’s failure to charge.
In reviewing a claim that the court failed to give a requestedcharge, ourstandardofreviewiswellsettled. ‘‘A fundamental element of due process is the right of
adefendantchargedwithacrimeto establishadefense.

. . . An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension.

. . . [T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury
was misled.

. . . In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect [on] the jury in guiding [it] to a correct verdict in the case.

. . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.

. . . In reviewing the trial court’s failure to charge as requested, we must adopt the version of facts most favorable to the defendant [that] the evidence would reasonably support.

. . . A challenge to the validity of jury instructions presents a question oflaw over which [we have] plenary review.’’ (Citations omitted; internal quotationmarks omitted.)Statev. Singleton, 292 Conn.734, 745–46, 974 A.2d 679 (2009).
As to his claim of necessity, ‘‘[t]he defendant is required to make a preliminary showing through an offer ofproofbefore the necessity defense maybe submitted to thejury.

. . . Therefore, as a threshold question of law, the trial court must determine whether a necessity defense is warranted under the facts presented by the defendant.

. . . If the court determines that there is sufficient evidence available to support the defense of necessity, then a defendant is entitled
as amatteroflawto adefense ofnecessityinstruction.’’ (Citations omitted.) State v. Woods, 23 Conn. App. 615, 617–18, 583 A.2d 639 (1990). ‘‘Our statutory definition of the defense ofjustification, General Statutes §§ 53a-16 and 53a-17, does not include ‘necessity’ as arecognized defenseto acriminal charge. Indeed, our Supreme Court has indicated that the defense ofnecessity has no statutory basis in Connecticut.

. . . At common law, the defense ofnecessity has been recognized under certain narrowly defined circumstances.

. . . The defense rests upon the propositionthatthere maybe circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a super[s]eding value which makes it inappropriate and unjust to apply the usual criminal rule.

. . . The defense ofnecessity traditionally covered the situation where physical forces beyondthe actor’s control rendered illegal conductthe lesser oftwo evils.

. . . The defense, however, dealswithobviousandgenerally recognized harms, not with those which are debatable and, indeed, the subject of legislation and government regulation.’’ (Citations omitted; footnotes omitted; internal quotation marks omitted.) State v. Drummy, 18 Conn. App. 303, 308–309, 557 A.2d 574 (1989); see also State v. Joseph, 161 Conn. App. 850, 852–53 n.3, 129 A.3d 183 (2015), cert. denied, 320 Conn. 923, 133 A.3d 878 (2016). ‘‘Where an offer of proof is made with respect to a defense and it is clear from the offer of proof that the defense is insufficient as amatter oflaw, the trial court may properly refuse to permit evidence ofthe defense to be submitted to the jury.

. . . This court has

. . . adopted a definition of the common law defense of necessity that requires a showing by the defendant (a) that there [was] no

. . . legal alternative available, (b) that the harm to be prevented [was] imminent, and (c) that a direct causal relationship [may] be reasonably anticipatedto existbetween defendant’s action andthe avoidance of harm.’’ (Citation omitted; internal quotation marks omitted.) State v. Marsala, supra, 59 Conn. App. 142.
In the present case, the elements of the defendant’s necessity defense as to the criminal possession charge
are similarto his self-defense arguments as to the other charges relating to his use of the gun. On appeal, heargues, on the basis of his own testimony at trial, that he saw the gun fall to the ground but that he did not know from where it came. He also argues on appeal that he testified that he attempted to obtain control of the gun because the victim was attempting to do the
same thing. The defendant, however, testified at trial that he was the first to attempt to pick up the gun and that the victim attacked him from behind. At no point did the defendant testify that he ran to pick up the gun because the victim was attempting to do so. Althoughthe defendantattemptstomeldthe grounds for his necessity affirmative defense as to the criminal possession charge withhis self-defense claims asto the murder charges, we examine his necessity claims from theinitialtimethattheopportunitytopossessorcontrol the gun presented itself. In considering the defendant’s request for a necessity charge, the court reasonably could have determined from the evidence that it and thejury had heard, thatwhen the gun fell to the ground and the defendant noticed it, he had lawful options available to him other than running toward it to pick it up. As the state argued at trial, he could have run away from the gun and left the area ofthe altercation. Additionally, ifhisconcernwastheprotectionofothers, he could have shouted a warning that there was a gun present so they also could have fled the area. He also could have shouted forthe police or for other help, run back to the nightclub, or placed a 911 call. Each of these is a lawful alternative to his decision to obtain possession ofthe gun.12 Accordingly, because he failed to present evidence to satisfy the first prong of the defense of necessity, the court reasonably determined that the defendant was not entitled to an instruction
on that defense. Contrarytothedefendant’s contention, thetrialcourt did not abuse its discretion in denying his motion to bifurcate or sever, nor did the court err in instructing the jury.
The judgment is affirmed.
In this opinion the otherjudges concurred.

* The listing ofjudges reflects their seniority status on this court as of the date of oral argument.
1 Although Miguel Delgado and Jose Delgado share a surname, herein we refer to Miguel Delgado as the victim and to Jose Delgado by his surname.
2 The defendantinartfullypresentsboth ofhis alternatives asbifurcations. ‘‘The term ‘bifurcation’ normallyis usedwhere one case is splitinto multiple parts. For example, ajury deliberates on liability and, after determining that liability exists, subsequently determines damages. Here, two separate cases
were joined for trial, gun charges and narcotics charges, and severance is the appropriate term.’’ State v. Fleury, 135 Conn. App. 720, 734 n.3, 42 A.3d 499 ( Flynn, J., concurring), cert. denied, 305 Conn. 919, 47 A.3d 388 (2012). Therefore, when the defendant in the present case seeks to separate his criminal possession charge from his murder charge, he seeks a severance.
3 The defendant ultimately did testify in his trial.

4 Thedefendantarguesthat, inanalyzingtheprejudicialeffectofseverance utilizing the Banta factors, the court must view the potential prejudice throughthe lens ofStatev. Jones, supra, 234 Conn. 324. We have considered Jones and find that the defendant’s reliance upon it is misplaced.

5 The Banta court added, ‘‘Another factor which, of course, must beconsidered in the appropriate case is the effect ofthejoinder upon a defendant’s right to testify or not to testify.’’ State v. Banta, supra, 15 Conn. App. 171 n.3. We need not consider that factor in the present case, however, because the defendant has not claimed on appeal that the court violated his constitutional rights to testify or not testify by the failure to sever the murder charges from the criminal possession charge.
6 The court instructed the jury as follows: ‘‘You’ll have copies of the stipulations with you during your deliberations. There are rules concerning the stipulation. You’ll receive those when I give the instructions. But those you can determine, accept or reject as you consider it relevant. ‘‘Now, as far as the convicted of a felony, don’t speculate as to what it could be. Many, many offenses are felonies in the state of Connecticut. So I’m asking you not to speculate as to what it could or couldn’t have been.’’

7 When instructing thejury regarding the defendant’s prior felony convictions and the stipulations entered, the court instructed as follows: ‘‘In this case evidence was introduced to show that the defendant was convictedofafelony, whichisanycrimeforwhichapersonmaybeincarcerated for more than one year. Evidence of the commission of a crime other than the one charged generally is not admissible to prove the guilt of the defendant. In this particular case, the commission of other crimes by this defendant has been admitted into evidence for the purpose of affecting his credibility. You must weigh the testimony along with all the other evidence in this case. You may consider the convictions of the defendant only as they bear on his credibility, and you should determine that credibility upon the same considerations as those given to any other witness. ‘‘With respect to count three, [criminal possession] evidence ofthe commission of a felony can be considered by you during your deliberations concerning the elements of that crime.

* * * ‘‘You will recall that I have ruled some testimony and evidence have been allowed for a limited purpose. Any testimony or evidence which I identify

as being limited to a purpose, you will consider only as it relates to the limit for which it was allowed, and you shall not consider it—you shall not consider such testimony and evidence in finding any other facts as to any other issue. ‘‘In this case, evidence in the form of a stipulation between the parties

was introduced to show that the defendant was convicted of a felony and further that the defendant was the shooter on the evening in question. A stipulationis anagreementbetweentheparties concerning somefact, which you as the jury are bound to accept as fact during your deliberations. A stipulation does not, however, establish proof of the element of the crime beyondareasonable doubt. The stipulationisto beused onlyforthe specific purpose it was entered for and not to be used for any other purpose. The stipulationdoes notinclude credibilityortheweightyougivetothe exhibit.’’

8 General Statutes § 53a-19 provides in relevant part: ‘‘(a) Except as provided in subsections (b) and (c) ofthis section, aperson isjustified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessaryfor suchpurpose; exceptthat deadlyphysical force maynotbe usedunless the actorreasonablybelieves that such otherperson is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.

. . . ‘‘(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when

. . . (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.’’

9 If the jury found that the state had proved beyond a reasonable doubt that the defendant was not acting in self-defense, then the jury would not have had to reach, consider, and decide whether the combat by agreement exception negated the defendant’s self-defense claim. See State v. O’Bryan, supra, 318 Conn. 631, 637.

10 The defendant also argues on appeal that it was improper for the court to consider the combat by agreement instruction without a request by the state orthe defendant, andto determine thatthejuryshould decide whether the evidence supported a finding that the defendant, Spear, and Delgado, among others, had entered into an express or tacit agreement to fight prior to gathering in the parking lot. We disagree. ‘‘[W]e must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.’’ (Internal quotation marks omitted.)Statev. Strong, 122 Conn. App. 131, 140, 999A.2d 765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010); see also State v. Riddick, 153 Conn. App.69, 78, 100 A.2d 438 (‘‘the trial court must correctly adapt the law to the

case in question and must provide the jury with sufficient guidance in reaching acorrectverdict’’ [internalquotationmarks omitted]), cert. denied, 315 Conn. 904, 104 A.3d 757 (2014). The statute under which the defendant raises his self-defense claim, § 53a-19, includes combat by agreement as an enumerated exception. Given that it is the duty of the court to instruct the jury on the law, adapted to the facts ofthe case, and because we conclude that sufficient facts supported a combat by agreement instruction, we conclude thatthe court didnot abuse its discretionbyincludingthatinstruction in its draft instructions provided to counsel, and subsequently to the jury. See Perez v. Cumba, 138 Conn. App. 351, 378, 51 A.3d 1156 (‘‘[i]t thus was incumbent on the court to provide the jury with instructions adapted to [the issues presented]’’), cert. denied, 307 Conn. 935, 56 A.3d 712 (2012).

11 On appeal, the defendant argues that the court erred in determining that the instruction was unwarranted because it believed that instruction

was prohibited merely because there was no authority requiring it. We cannot agree that the court erred in concluding that it could not give the instruction because no law required it; the court made no such conclusion. See Johnson v. de Toledo, 61 Conn. App. 156, 162, 763 A.2d 28 (2000) (‘‘It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly.

. . . Rather, we are entitled to assume, unless it appears to the contrary, that the trial court

. . . actedproperly, including consideringthe applicable legalprinciples.’’ [Internal quotation marks omitted.]), appeal dismissed, 258 Conn. 732, 785 A.2d 192 (2001).

12 We also note that otherjurisdictions have added factors to the defense of necessity in the context of unlawful possession that make the defense unavailable when the defendant recklessly or negligently placed himself in circumstances in which it was probable that he would be forced to choose the criminal conduct. See, e.g., United States v. Ridner, 512 F.3d 846, 850 (6th Cir. 2008) (‘‘emphasiz[ing] that the keystone ofthe analysis is that the defendant must have no alternative—either before or during the event—to avoidviolatingthe law’’ [internal quotationmarks omitted]); see also United States v. Gant, 691 F.2d 1159, 1162–63 (5th Cir. 1982); State v. Crawford, 308 Md. 683, 699, 521 A.2d 1193 (1987).