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******************************************************STATE OF CONNECTICUT v. KENNETH JAMISON (AC 35625)
Beach, Mullins and Bear, Js. Argued May 20—officially released September 16, 2014 (Appeal from Superior Court, judicial district of Fairfield, geographical areanumbertwo, McKeever, J.)
JohnL. Cordani, Jr., assigned counsel, forthe appellant (defendant).
MatthewA. Weiner, deputyassistantstate’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, andRichardL. Palombo, Jr., senior assistant state’s attorney, for the appellee (state).Opinion BEAR, J. The defendant, Kenneth Jamison, appeals from the judgment of conviction, rendered after ajury trial, ofpossession ofnarcotics in violation of General Statutes § 21a-279 (a), manufacturing a bomb in violation of General Statutes § 53-80a, and possession of an explosive inviolation ofGeneral Statutes §§ 29-343 and 29-348.1 On appeal, the defendant claims that (1) the statepresentedinsufficientevidencetosupporttheconviction of manufacturing a bomb, (2) the trial court committed plain error in failing to give an accomplice credibility instruction, (3) his conviction of all three charges violated the constitutional prohibition against double jeopardy, (4) the court failed to adequately instruct the jury on the elements of possession, and (5) the state violated his rights under the Connecticut constitutionbycompellinghimtoprovideahandwriting exemplar. We agree with the defendant that the court committed plain error in failing to provide an accomplice credibility instruction and reverse the judgment of conviction on that ground only as to the charges of manufacturing a bomb and possession ofan explosive. We are not persuaded by the defendant’s other claims.
The following facts, which reasonably could have been found bythejury, andprocedural history are relevant to the issues on appeal. Maria Caban lived in a third floor apartment in Bridgeport. The defendant, her boyfriend at the time, would stay with her on occasion. On October 12, 1995, at approximately 8:40 p.m., eight police officers executed a search warrant on the apartment, which had front and rear entrances. One group of officers entered the rear of the apartment using a battering ram while the second group entered through the front. The group entering from the front encountered the defendant, dressed only in boxer shorts, on the stairs leading up to the apartment. The defendant
was brought up into the apartment and read his Miranda2 rights. During the search, Caban arrived.
The police searched the premises and found a pair of sneakers that contained a straw and folded dollar bill. Inside of the bill was a white powdery substance that later was revealed through testing to be cocaine. When questioned, the defendant admitted that the sneakers belonged to him. The search also produced
an M-1000 explosive device with pennies glued to its exterior, a loaded firearm, an additional small amount of cocaine, a weighing scale, an electric heat sealer for sealing plastic bags, and a notebook with references to drug trafficking. The police also discovered a safe containing business documents signed by the defendant.
The defendant was arrested and charged with two counts of possession of narcotics with intent to sell, manufacturing abomb, possession ofan explosive, andcriminalpossessionofafirearm. Priortotrial,thedefendant was ordered by the court to submit a handwriting exemplar for comparison with the notebook found in the apartment. In October, 1996, the defendant was tried before ajury. Afterthe state rested, the defendant moved for ajudgment of acquittal on all charges. The courtgrantedthemotionwithrespecttothetwo counts of possession of narcotics with intent to sell and directedthe statetofile anamendedinformation charging the defendant with possession of narcotics. The court denied the motion as to all other charges.
Thejury found the defendant guilty ofpossession of narcotics, manufacturing abomb, and possession ofan explosive device, but acquitted the defendant on the charge of criminal possession of a firearm. The court sentenced the defendant to a total effective term of thirty-seven years of incarceration, execution suspended after thirty-two years, with five years ofprobation. This appeal followed.
I First, the defendant claims that the state presented insufficientevidenceto supporthis convictionofmanufacturing a bomb in violation of § 53-80a. He argues that gluing pennies onto an existing explosive device does not constitute fabricating a bomb as a matter of law. We are not persuaded. ‘‘Generally, [i]n reviewing a sufficiency of the evidenceclaim, weapplyatwo-parttest. First, weconstrue the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construedandthe inferencesreasonablydrawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.

. . . When, as in the present case, the claim of insufficient evidence turns
on the appropriate interpretation ofa statute, however,
our review is plenary.

. . . ‘‘The process ofstatutory interpretation involves the determination ofthe meaning ofthe statutory language
as applied to the facts ofthe case

. . . . When construing astatute, [o]urfundamental objective isto ascertain and give effect to the apparent intent ofthe legislature.

. . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language
as applied to the facts of [the] case

. . . . In seeking to determine that meaning

. . . [General Statutes] § 1- 2z directsusfirstto considerthetextofthe statuteitself andits relationship to otherstatutes. If, afterexamining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

. . . When a statute is not plain and unambiguous, we also look for interpretive guidance to thelegislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, andto its relationship to existinglegislation and commonlawprinciplesgoverningthe same general subject matter

. . . . We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise

. . . .’’ (Citations omitted; internal quotationmarks omitted.) Statev. Webster, 308 Conn. 43, 51–52, 60 A.3d 259 (2013).
Section 53-80aprovides: ‘‘Anyperson, otherthan one engaged in the manufacture of firearms or explosives
or incendiary devices for lawful purposes, who fabricates, in any manner, anytype ofan explosive, incendiary or other device designed to be dropped, hurled, or set in place to be exploded by a timing device, shall be guilty of a class B felony.’’ The defendant does not dispute that the explosive device found by the police is
adevicethemanufacture ofwhichthe statuteprohibits. Therefore, we are concerned only with whether the defendant’s actions in relation to the device constitute ‘‘fabricat[ion], in any manner

. . . .’’ General Statutes § 53-80a.
The term ‘‘fabricate’’ is not defined within the statutoryscheme. ‘‘Wethuslooktothe commonunderstanding ofthe term as expressed in a dictionary.’’ (Internal quotation marks omitted.) State v. Webster, supra, 308 Conn. 53. Webster’sThirdNewInternationalDictionary defines ‘‘fabricate,’’ in relevant part, as ‘‘to form by art and labor’’ and ‘‘to form into a whole by uniting parts.’’ Webster’s Third New International Dictionary (1993). We also must consider the additional language, ‘‘in any manner

. . . .’’ General Statutes § 53-80a. This phrase
can onlybe construed to broaden the range ofacts that
are prohibited by the statute. See American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008) (‘‘[i]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous’’ [internal quotation marks omitted]).
In the present case, the evidence shows that the defendant glued pennies onto an M-1000 explosive device3 that Caban had purchased with a bag of fireworks. At trial, the state’s explosives expert testified that, in his experience, the purpose of gluing pennies to this type of explosive was to create ‘‘an improvised explosive antipersonnel device

. . . to cause serious physical injury to anyone [near where] it detonates

. . . .’’ Considering the plain and unambiguous text of § 53- 80a, we conclude that the defendant’s actions are prohibited by the statute.4 By uniting parts, the M-1000 explosive device andthepennies, the defendantformed by art and labor an explosive device designed to be dropped, hurled, or set in place to be exploded by atiming device. Given the broad scope of the statute, these actions constitute fabrication. Accordingly, the defendant’s claim that the state presented insufficient evidence to support his conviction is unfounded.
II
The defendant next claims that the court erred in failing to give an accomplice credibility instruction regarding the testimony ofCaban. The defendant seeks review ofthis unpreserved claim under the plain error doctrine; Practice Book § 60-5; and reversal ofthe conviction of manufacturing a bomb and possession of an explosive. We agree that the court’s failure to provide
an accomplice credibility instruction, which was and is amandatoryinstruction, wasplain errorand, accordingly, we reverse the judgment as to the conviction of those charges. ‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courtsto rectify errors committedattrialthat, although unpreserved, are of such monumental proportion that they threaten to erode our system ofjustice and work
a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine

. . . is not

. . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properlypreserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for
reasons ofpolicy.

. . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.

. . . Plain error is a doctrine that should be invoked sparingly.

. . . Implicit in this very demanding standard is the notion

. . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.

. . . ‘‘An appellate court addressing a claim ofplain error first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also

. . . obvious in the sense ofnot debatable.

. . . This determination clearly requires a review of the plain error claim presented in light of the record. ‘‘Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application.

. . . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness ofits consequences in orderto determine whetherreversalundertheplainerrordoctrineisappropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief willresult in manifest injustice.

. . . InState v. Fagan, [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we described the two-pronged nature of the plain error doctrine: [An appellant] cannotprevail under [the plain
error doctrine]

. . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse thejudgmentwouldresultinmanifest injustice.’’ (Citationomitted; emphasisinoriginal; internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 77–78, 60 A.3d 271 (2013). Applying this test, we first must determine whether the court’s failure to provide an accomplice credibility instruction was a patent or readily discernible error. It is well settled that it is the court’s duty to provide an instruction regarding the credibility of an accomplice witness. See State v. Moore, 293 Conn. 781, 823–24, 981 A.2d 1030 (2009) (‘‘Generally, adefendantisnotentitled toaninstructionsinglingoutanyofthestate’switnesses andhighlightinghis orherpossiblemotivefortestifying falsely.

. . . An exception to this rule, however, involves the credibility of accomplice witnesses.

. . . [When] it is warranted by the evidence, it is the court’s dutyto caution thejuryto scrutinize carefullythe testimony if the jury finds that the witness intentionally assisted in the commission, or if [he or she] assisted
or aided or abetted in the commission, of the offense with which the defendant is charged.’’ [Emphasis altered; internal quotation marks omitted.]), cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010). At trial, Caban testified that she had purchased the M-1000 explosive device andthat she andthe defendanthadactedtogetherto gluepennies ontothe device. Given the nature of this testimony, we conclude that the court committed a patent and readily discernible
error by failing to provide an instruction regarding her credibility as an accomplice. Next, we must consider whether the court’s error is
so clear and harmful that a failure to reverse it would result in manifest injustice. ‘‘[T]he fact that the instruction

. . . was mandated

. . . does not, in and of itself, establish the existence of manifest injustice necessary for plain error.’’ State v. Sanchez, supra, 308 Conn. 83. ‘‘[B]ecause an instructional error relating to general principles ofwitness credibility is not constitutional in nature

. . . the defendant bears the burden of establishing that the error deprived him of his due process rightto afairtrial.’’ (Internal quotation marks omitted.) State v. Moore, supra, 293 Conn. 824. Our Supreme Courthasidentifiedfourfactorsforconsiderationwhen determining whether the trial court’s failure to give a cautionary instruction deprived the defendant of a fair trial: ‘‘whether (1) the accomplice testimony was corroborated by substantial independent evidence ofguilt, (2) the accomplice testimony was consistent, (3) the accomplices’ potential motives for falsifying theirtesti-mony were brought to the jury’s attention, and (4) the court’s instructions to the jury suggested that the witnesses might have an interest in coloring their testimony.’’ Id., 825. Applying these factors to the present case, we conclude that the first factor, which is whether the accomplice testimony was corroborated by substantial independent evidence of guilt, favors the defendant. Caban’stestimonywasthe sole evidencepresentedthat tied the defendant to the explosive device found in Caban’s apartment. The second factor, which is whether the accomplice testimony was consistent, also favors the defendant, as Caban provided inconsistent testimony about the gun found in her apartment. On direct examination, she indicated that the gun belonged to the defendant, but later, on cross-examination, stated that it belonged to another person. The third factor, which is whether the accomplice’s potential motives for falsifying her testimony were brought to the jury’s attention, favors the state. The state and the defendant stipulated that Caban previouslyhad been charged in connection withthe explosive device foundinherapartment andthatthe charges had been dropped. This stipulation brought her potential motives for falsifying her testimony to the jury’s attention. Furthermore, during closing argument, defense counsel suggested that Caban had agreed to testify against the defendant in order to avoid being charged with a crime herself. Finally,thefourthfactor, whichiswhetherthecourt’s instructionstothejurysuggestedthatthewitnessmight have an interest in coloring her testimony, favors the defendant. The court gave only a basic instruction as to witness credibility, asking the jury to consider the characterofthetestimony, the demeanorofthewitness
as itbears on credibility, the substance ofthetestimony and the probability or improbability that what the witness said was true. The court did not instruct the jury to considerpotentialbiaseswhenconsideringthe credibility of witnesses in general or Caban specifically. Thus, there was no suggestion made by the court that Caban might have had an interest in coloring her testimony. See id., 826–27 (court’s general instruction to considerbiases ofwitnesses in weighing credibility did not suggest to jury that accomplice witnesses might have had interest in coloring testimony). We conclude that these four factors, when considered together, weigh in favor of the defendant.
This court recently considered a claim ofplain error for failure to provide an accomplice credibility instruction in State v

. Miller, 150 Conn. App. 667, 92 A.3d 986, cert. denied, 312 Conn. 926, A.3d (2014). In that case, we held that the court’s failure to provide themandatoryaccompliceinstructiondidnotrequirereversal pursuant to the plain error doctrine because our failure to reverse would not result inmanifest injustice. Id., 681–82. That case, however, is distinguishable from the present case in that inMiller, the trial court gave a credibility instruction that directed thejuryto consider whether any witness had any interest in the outcome of the case or any bias or prejudice concerning any party or any matter involved in the case. Id., 681. The trial court also specifically instructed the jury that it had to consider whether the witnesses in the case had any interest in its outcome or any bias or prejudice as to any party or matter involved in the case, and the courtfurtherinstructedthatthejurycouldusetheprior criminal history of the defendant’s coconspirator and accomplice inassessinghercredibility. Neitherofthese safeguardswas inplace inthepresentcase, asthe court gave no instruction as to bias and did not specifically instruct the jury in any way as to Caban’s testimony.
Our Supreme Court recently addressed the issue of
a court’s failure to provide an accomplice credibility instruction as plain error in State v. Moore, supra, 293 Conn. 781, holding that the lack of such an instruction did not require reversal because its failure to reverse would not result in manifest injustice. Id., 829. Moore is also distinguishable from the present case, as there
was substantial evidence presented by the state at trial corroboratingtheaccomplices’testimony, andthetestimony of two of the relevant witnesses was consistent
as to the defendant’s role in the charged crime. Id., 825–26. In the present case, no evidence besides Caban’s testimony tied the defendant to the explosive device, and aninconsistencyinhertestimonywas identified during cross-examination. Considering all ofthe factors, we are persuaded that the lack of the mandatory accomplice credibility instruction in the present casejeopardized the fairness ofthe defendant’s trial to a degree significantly greater than in Miller and Moore and, therefore, we conclude that manifest injustice would result without a reversal ofthe defendant’s conviction ofmanufacturing abomb and possession of an explosive.5
In summary, the court’s failure to provide an accomplice credibility instruction was plain and readily discernible error. The court’s failure to do so deprived the defendant of a fair trial and, therefore, our failure to
reverse the defendant’s conviction of manufacturing a bomb and possession of an explosive after recognition ofthis errorwould result in manifest injustice. The two prongs oftheplainerrordoctrine aretherefore satisfied inthiscaseandreversaloftheconvictiononthecharges in question is required.
III Next, the defendant claims that his conviction of allthree charges violated the constitutional prohibition against double jeopardy on two grounds.6 First, he claims thatthe charges brought against him forpossession of an explosive and manufacturing a bomb arose out of the same act or transaction and represented the same offense for the purposes of double jeopardy analysis. Second, he claims that his conviction of possession of narcotics following his acquittal of possession of narcotics with intent to sell amounted to two prosecutionsforthe same offense. The defendantseeks review of these unpreserved claims pursuant to State

v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).7
We begin by setting forth the standard of review and governing legal principles. ‘‘A defendant’s double jeopardy claim presents a question of law, over which
our review is plenary.

. . . The doublejeopardy clause ofthefifthamendmenttotheUnited States constitution provides: [N]orshall anypersonbe subjectforthe same offense to be twice put injeopardy of life or limb. The double jeopardy clause [applies] to the states through the due process clause of the fourteenth amendment.

. . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.

. . . Althoughthe Connecticut constitution doesnotinclude
adoublejeopardyprovision, the dueprocess guarantee of article first, § 9, of our state constitution encompasses protection against double jeopardy.’’ (Citation omitted; internalquotationmarksomitted.)Statev.Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied, U.S. , 133 S. Ct. 1804, 185 L. Ed. 2d 811 (2013).

A
The defendant first claims that his conviction ofpossession ofan explosive and manufacturing abomb violated the constitutional prohibition against double jeopardy. He argues that the two charges arise out of the same act or transaction and represent the same offense for the purposes of double jeopardy analysis.8 Although the claim is reviewable, as the record is adequate for review and the claim is ofconstitutional magnitude, we are not persuaded that possession of an explosive and manufacturing a bomb are the same offense under ourtest and, therefore, we conclude that the claim fails under the third prong of Golding

. ‘‘Double jeopardy analysis in the context of a single trial is atwo-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.

. . . Traditionally we have applied theBlockburgertest to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions,the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States [284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)]. This test is a technical one and examines only the statutes, charging instruments, and bill ofparticulars as opposed to the evidence presented at trial.’’ (Internal quotation marks omitted.) State v. Bernacki, supra, 307 Conn. 9. Here, the defendant was charged with possession of
an explosive in violation of §§ 29-3439 and 29-348,10 and manufacturing a bomb in violation of § 53-80a.11 The statutory elements of possession of an explosive are (1) possession (2) of an explosive as defined by the statutorydefinition. Thestatutoryelementsofmanufacturing a bomb are (1) fabricating, in any manner, (2) any type of explosive, incendiary or other device, (3) designed to be dropped, hurled, or set in place to be exploded by a timing device.
Our task is to determine whether conviction of each crime requires proof of a fact that the other does not. Considering the statutory language, it is apparent that both crimes require proof of a fact that the other does not. In orderfor apersonto be convicted ofpossession of an explosive, the state must prove that such person possessed the explosive. Such proof is not necessary to support a conviction of manufacturing a bomb.12 In order for a person to be convicted of manufacturing a bomb, the state must prove that the person fabricated the bomb. Fabrication is not an element of the crime ofpossession ofan explosive. Accordingly, possession of an explosive and manufacturing a bomb are not the
same offense under the applicable test, and the defendant’s claim fails under the third prong of Golding

. B Next, the defendant claimsthathis conviction ofpossession of narcotics following his acquittal of possession of narcotics with intent to sell violated the constitutional prohibition against double jeopardy. He argues that he faced two prosecutions for the same offensewhenthe courtallowedthestatetoaddacharge ofpossession ofnarcoticsto its informationaftergranting his motion forajudgment ofacquittal ofpossession of narcotics with intent to sell. Although the claim is reviewable, as the record is adequate for review and the claim is of constitutional magnitude, we are not persuaded that the defendant was prosecuted a second timeand, therefore, the claimfailsunderthethirdprong of Golding

. As set forth previously, our review of a defendant’s double jeopardy claim is plenary. In addition to protecting against the imposition of multiple punishments for the same offense, the doublejeopardy clause ofthe United States constitution ‘‘protects against a secondprosecution for the same offense after acquittal.’’ State

v. Hedge, 297 Conn. 621, 666, 1 A.3d 1051 (2010). In order for this type of protection to be implicated, a defendantmust, (1) forthe same offense (2) astowhich he was previously acquitted, (3) be prosecuted a second time.
In the present case, the defendant initially was chargedwithpossession ofnarcoticswithintentto sell. Afterthe state rested, the court grantedthe defendant’s motion for ajudgment of acquittal on that charge and directed the state to file an amended information that included a charge ofpossession ofnarcotics. The state filed the new information the following day. The state did not seek to open its case in order to present additional evidence or testimony. Following closing arguments and jury instructions, the jury found the defendant guilty of possession of narcotics. First, we must determine whetherthe crimes at issue constitute the same offense for the purposes of double jeopardy. As set forth previously, whether a charged crime constitutes the ‘‘same offense’’ as anotherforthe purposes of double jeopardy is analyzed on the basis of the principles espoused in Blockburger v. United States, supra, 284 U.S. 299. Under this test, any lesser included offense constitutes the ‘‘same offense’’ as its greater offense for the purposes of double jeopardy analysis. Brown v. Ohio, 432 U.S. 161, 167–68, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Here, it is undisputed that, as a lesser included offense, possession of narcotics represents the same offense as possession of narcotics with intent to sell for the purposes of double jeopardy. See State v. Polanco, 308 Conn. 242, 244, 61 A.3d 1084 (2013). Therefore, the charge included in the amended information
wasthe ‘‘same offense’’ asthatruleduponinthemotion for ajudgment of acquittal. Next, we considerwhetherthe defendantwas acquitted of the charge of possession with intent to sell for doublejeopardy purposes. Doublejeopardy protection applies equally to acquittals rendered by a jury or by
a judge in ruling on a motion for acquittal. Smith v. Massachusetts, 543 U.S. 462, 467–68, 125 S. Ct. 1129, 160 L. Ed. 2d 914 (2005). ‘‘[A]n acquittal

. . . encompass[es] anyrulingthattheprosecution’sproofis insufficient to establish criminal liability for an offense,’’ including a judgment of acquittal during a jury trial. Evans v. Michigan, U.S. , 133 S. Ct. 1069, 1074– 75, 185L. Ed. 2d 124 (2013); seealsoSmithv.Massachusetts, supra, 467–68. Here, the defendant was acquitted of the charges of possession of narcotics with intent to sell when the judge granted his motion for ajudgment of acquittal.13 See Evans v. Michigan, supra, 133 S. Ct. 1069 (‘‘[I]t is plain that the [trial court]

. . . evaluated the [State’s]evidence and determined that it was legally insufficient to sustain a conviction.

. . . This ruling was not a dismissal on aprocedural groundunrelatedto factual guilt
or innocence

. . . but rather a determination that the State had failed to prove its case.’’ [Citations omitted; internal quotation marks omitted.]); see also State v. Kruelski, 250 Conn. 1, 7, 737 A.2d 377 (1999) (‘‘[w]here the court, before the jury returns a verdict, enters a judgment of acquittal

. . . [retrial] will be barred

. . . when it is plain that the [trial court]

. . . evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction’’ [internal quotation marks omitted]), cert. denied, 528 U.S. 1168, 120 S. Ct. 1190, 145 L. Ed. 2d 1095 (2000). Finally, we must determine whether the defendant facedasecondprosecution. ‘‘[S]ubjecting [a] defendant to postacquittal factfinding proceedings going to guilt
or innocence violates the Double Jeopardy Clause.’’ (Internalquotationmarksomitted.)Smithv.Massachusetts, supra, 543 U.S. 467. The clause is not violated when a defendant is not exposed to trial or trial-like proceedings, even when the result is a reversal of the acquittal. Id. (‘‘[w]hen ajury returns a verdict of guilty and a trialjudge [or an appellate court] sets aside that verdict and enters ajudgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate thejuryverdict ofguilty’’). Reversal is permissible under these circumstances because ‘‘[c]orrection ofan error oflaw at that stage [does] not granttheprosecutoranewtrialorsubjectthedefendant totheharassmenttraditionallyassociatedwithmultiple prosecutions.’’ United States v. Wilson, 420 U.S. 332, 352, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975). Here, the defendant was not subjected to postacquittal fact-finding proceedings going to his guilt or innocence on the charge of possession of narcotics. No additional witnesses or testimony were presented. Rather, the conviction was based solely on the case made by the state on the original information charging possession with intent to sell. From the court’s actions and its instruction to the state to file an amended information charging only possession, it is clear that the court found that the state had failed to prove the intent to sell element ofthe charge ofpossession with intent to sell. There was no harassment of the defendant, as the trial continued on the same schedule as it would have without the filing of the amended information. Under these circumstances, we cannot conclude that the defendant was prosecuted twice. Accordingly, the defendant’s doublejeopardy claim fails under the third prong of Golding

. IV Next, the defendant claims that the court failed to adequately instruct thejury on the elements ofpossession of narcotics.14 Specifically, he argues that thecourt’s instructions (1) conflated two elements ofpossession—knowledge ofthe contraband’s presence and knowledge ofthe contraband’scharacter—and (2) erroneously informed the jury that it could infer those elements from his possession of the contraband. The defendant seeks review ofthis unpreserved claim pursuant to State v. Golding, supra, 213 Conn. 239–40. Although the claim is reviewable, as the record is adequate for review and the claim is ofconstitutional magnitude; see State v. Boyd, 115 Conn. App. 556, 562, 973 A.2d 138 (constitutionally axiomatic that jury be instructedonessentialelementsofcrimecharged), cert. denied, 293 Conn. 912, 978 A.2d 1110 (2009); we are not persuaded that the instructions were inadequate and, therefore, we conclude that the claim fails under the third prong of Golding

. ‘‘Our standard of review with regard to claims of instructional error is well established. [I]ndividualjury instructions should not bejudged in artificial isolation, butmustbeviewedinthe context ofthe overall charge.

. . . The pertinent test is whether the charge, read in 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 of law.

. . . 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 a microscopic search for possible error.

. . . Where

. . . the challenged jury instructions involve a constitutional right, the applicable standardofreviewiswhetherthere is a reasonable possibility that the jury was misled in reaching its verdict.’’ (Citation omitted; internal quotation marks omitted.) Id., 562–63. ‘‘When, as here, a defendant is charged with possession ofnarcotics

. . . and the contraband is not found
on his person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact.

. . . To prove

. . . constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew ofthe character ofthe drug and its presence, and exercised dominion and control over it.

. . . In our criminal statutes concerning possession, control ofthe object must be exercised intentionally.

. . . That intent may be proved by circumstantial evidence.’’ (Citations omitted; internal quotation marks omitted.) Statev. Fasano, 88 Conn. App. 17, 25, 868 A.2d 79, cert. denied, 274 Conn. 904, 876 A.2d 15 (2005), cert. denied, 546 U.S. 1101, 126 S. Ct. 1037, 163 L. Ed. 2d 873 (2006). ‘‘Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there
are other incriminating statements or circumstances tending to buttress such an inference.’’ (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135,150, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101 (2008).
In the present case, the trial court instructed thejury with regard to the possession element ofthe narcotics charge as follows: ‘‘Foryou to find the defendant guilty of [possession of narcotics], the state must prove beyond a reasonable doubt that the defendant knowingly possessed or had under his control a narcotic substance. An element of the offense of possession of narcotics is that the accused knowingly possessed a narcotic substance. An act is done knowingly if it is done voluntarily and purposely. Knowledge may be inferred from possession. In other words, if you find possessionproved beyond areasonable doubt, you can logically and reasonably infer that the defendant had knowledge that he possessed the subject item. Knowledge can also be inferred from all ofthe facts, circumstances and evidence in the case. ‘‘Possession, as used in criminal statutes, ordinarily signifies intentional control of a designated thing accompanied by knowledge of its character. The accused will be guilty of a violation of this statute if, in fact, he did possess cocaine, which

. . . as I have instructed you, is a narcotic substance. The word possession, as used in the law, has no technical meaning. It does not mean that one must have a narcotic substance on his person. That, however, is one form of possession. It does meanhaving something under one’s control or dominion, as you speak ordinarily ofthings. We possess athing when we have it under our immediate control or dominion. You possess the articles on your person because obviously they are within your immediate control or dominion. I possess the records
on the bench before me, and it’s obvious that they are obviously within my immediate control or possession. I also possess the briefcase, which happens to be in my chambers, because it’s under my control. I possess the furniture and other items in my home, even though I am not actually there now, for the same reason.’’ Considering the defendant’s first argument, which is that the court’s instructions conflated the elements of knowledge of the drug’s presence and knowledge of the drug’s character, we deem it meritless. On the contrary, the court expressly distinguished between those two elements in instructing the jury that possession ‘‘ordinarily signifies intentional control of a designated thing accompanied by knowledge of its character.’’ (Emphasis added.)
We are equally unconvinced by the defendant’s argumentthatthe court’s instructiontothejurythatit could infer knowledge of the drug’s presence and character fromhispossessionofthe drugwasimproper. Although
ourSupreme Courthas clearlystatedthatitis improper to inferthat an accused has knowledge ofcontraband’s presence or character on the basis ofhis or her nonex-clusive possession ofthepremises inwhichthe contraband is found; see State v. Martin, supra, 285 Conn. 150; the defendant has not identified any authority suggesting that it is improper to infer that an accused has such knowledge on the basis of his or her possession of the contraband itself. If ajury is convinced that an accused has control and dominion over certain contraband even though it was found in premises not in the accused’s exclusive possession, it is indeed reasonable to infer that the accused is aware of the presence and character of that contraband. Accordingly, there was no flaw in the court’s instructions regarding the defendant’s possession of narcotics.
V Finally, the defendant claims that the state violated hisrightsunderthe Connecticutconstitutionincompelling him to provide a handwriting exemplar. Although he acknowledges that such protection is not inherent in the right against self-incrimination contained in the fifth amendment to the federal constitution, he argues thatthe Connecticut constitution’s analogousprovision affords greater protection than its federal counterpart. The defendant seeks review of this unpreserved claim pursuant to State v. Golding, supra, 213 Conn. 239–40. We assume for purposes of analyzing the defendant’s argument that he has satisfied the second prong of Golding; but see State v. Evans, 44 Conn. App. 307, 321, 689 A.2d 494 (claim that compelling defendant to display teeth violated article first, § 8, of Connecticut constitution was not of constitutional magnitude and this did not satisfy second prong of Golding), cert. denied, 240 Conn. 924, 692A.2d819 (1997). Evenassuming that the claim is reviewable, the record is adequate forreview and the claim is ofconstitutional magnitude,
we are not persuaded that a clear constitutional violation occurred and, therefore, the claim fails under the third prong of Golding

. ThefifthamendmenttotheUnitedStatesconstitution provides in relevant part that ‘‘[n]o person

. . . shall be compelled in any criminal case to be a witness against himself’’; U.S. Const., amend. V; whereas the Connecticut constitution provides in relevant part that ‘‘[n]o personshallbe compelledto give evidence againsthimself

. . . .’’ Conn. Const., art. I, § 8. Despite this textual divergence, our Supreme Court has concluded that ‘‘there is really, in spirit and in principle, no distinction arising out of such difference of language.’’ State v. Asherman, 193 Conn. 695, 714, 478 A.2d 227 (1984) (‘‘if there is a constitutional distinction to be drawn in selfincrimination cases between giving testimony and giving evidence, our cases have not reflected it’’), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). In accordance with this analysis, our courts consistently have declined to construe the Connecticut provision more broadly than the right provided by thefederal constitution. State v. Lockhart, 298 Conn. 537, 552, 4A.3d 1176 (2010); Statev. Castonguay, 218 Conn. 486, 495–96, 590 A.2d 901 (1991).
The United States Supreme Court has considered whether the federal constitution prohibits compulsory handwriting exemplars and held that this type of evidence does not fall within the scope ofthe fifth amendment’sprotectionbecauseitisnontestimonialinnature. Gilbert v. California, 388 U.S. 263, 266–67, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). Although Connecticut appellate courts have not addressed whether the state constitution acts to prohibit the compelled production of handwriting exemplars specifically, this court and
our Supreme Court have uniformly determined that, like its federal counterpart, article first, § 8, ofourstate constitution applies only to testimonial evidence. See State v. Asherman, supra, 193 Conn. 715 (compelling defendant to submit to providing dental impression did not violate article first, § 8); State v. Evans, supra, 44 Conn. App. 321 (compelling defendant to display teeth did not violate article first, § 8); State v. Campfield, 44 Conn. App. 6, 17, 687 A.2d 903 (1996) (compelling defendant to submit to atomic absorption test did not violate article first, § 8), cert. denied, 240 Conn. 916, 692 A.2d 814, cert. denied, 522 U.S. 823, 118 S. Ct. 81, 139 L. Ed. 2d 39 (1997).
In the present case, the defendant was ordered to provide a handwriting exemplar for comparison with the notebook found in Caban’s apartment. A handwriting exemplar is a clear example of ‘‘nontestimonial’’ evidence, a fact that the defendant does not dispute.15 See Gilbert v. California, supra, 388 U.S. 263 (‘‘[n]o claim is made that the content of the exemplars was testimonial or communicative matter’’). As such, itfalls outside of any constitutional protection.16 Accordingly, the defendant’s claimrelyingonthe Connecticutconstitution fails under the third prong of Golding

. The judgment is reversed only as to the conviction of manufacturing a bomb and possession of an explosive and the case is remanded for a new trial on those charges. Thejudgment is affirmed in all other respects.
In this opinion the otherjudges concurred.

1 The defendant was convicted in 1996. His subsequent appeal was dismissed by this court for not being filed in a timely manner. In 2013, as a result of a stipulated judgment in a habeas corpus action brought by the defendant, the defendant’s appellate rights were restored, resulting in the present appeal.

2 See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 At trial, the state’s explosives expert described the M-1000 as ‘‘a hollow cardboard tube

. . . filled with a[n] [explosive] powder

. . . .’’ On one end of the device is ‘‘a hobby fuse

. . . used as a wick.’’

4 Because we considerthe language of § 53-80ato be plain and unambiguous, the rule of lenity, as raised by the defendant in this appeal, does not apply to our analysis. See State v. Lutters, 270 Conn. 198, 219, 853 A.2d 434 (2004) (‘‘[T]he touchstone of [the] rule oflenity is statutory ambiguity.

. . . Thus

. . . courts do not apply the rule of lenity unless a reasonable doubt persists about a statute’s intended scope even after resort to the languageand structure, legislative history, and motivatingpolicies ofthe statute.’’ [Citation omitted; emphasis in original; internal quotation marks omitted.]).

5 The requirementthatthe courtgive an accomplice credibilityinstruction has existed for decades. In State v

. Brown, 187 Conn. 602, 612–13, 447 A.2d 734 (1982), our Supreme Court explained that ‘‘[i]t is well established that ‘where warranted by the evidence, it is the court’s duty to caution the jury

as to the testimony of an accomplice in its charge.’

. . . State v. Ferrara, 176 Conn. 508, 511, 408 A.2d 265 (1979); see Bruton v. United States, 391 U.S. 123, 136, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); State v. Estep, 186 Conn. 648, 652, 443 A.2d 483 (1982); State v. Ruth, [181 Conn. 187, 196–97, 435 A.2d 3 (1980)]; State v. Colton, 174 Conn. 135, 140, 384 A.2d 343 (1977); State v. Carey, 76 Conn. 342, 349, 56 A. 632 (1904). ‘The conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he [or she] testifies. When those conditions exist, it is the duty ofthe judge to specially caution the jury

. . . .’ State v. Carey, [supra, 349]. In this case, because of [the witness’] status as a self-confessed accomplice in the crimes for which the defendant was being tried and her possible interest in favorable treatment, the evidence warranted the giving ofthe cautionary accomplice instruction. See State v. Ruth, [supra, 196–97].’’ (Emphasis in original.)

6 We address the merits ofthe defendant’s remaining claims because they relate to the conviction of possession of narcotics or are likely to arise on retrial. See State v. T.R.D., 286 Conn. 191, 195, 942 A.2d 1000 (2008).

7 We will review anunpreserved claimwhen ‘‘(1) the record is adequate to reviewthe allegedclaim oferror; (2) the claimis ofconstitutionalmagnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant ofafairtrial; and (4) ifsubject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence ofany one ofthese conditions, the defendant’s claim will fail.’’ (Footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.

8 The defendant argues that the state is judicially estopped from arguing

on appeal that manufacturing abomb is not the same offense as possession ofexplosivesbecause, when explainingthe contents ofasubstitute information, the prosecutor told the court that ‘‘[t]he new charges now, the third count, manufacturing a bomb, basically, Your Honor, is the same offense, pretty much the same elements as the fourth count, [possession of an explosive device]

. . . .’’ ‘‘Typically, judicial estoppel will apply if: 1) a party’s later position is clearly inconsistent with its earlier position; 2) the party’s former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel.

. . . We further limit judicial estoppel to situationswherethe risk ofinconsistentresultswithits impact onjudicial integrity is certain.

. . . Thus, courts generally will not apply the doctrine if the first statement or omission was the result of a good faith mistake

. . . or an unintentional error.’’ (Internal quotation marks omitted.) Dougan

v. Dougan, 301 Conn. 361, 372–73, 21 A.3d 791 (2011). In the present case, the state was not advancing a legal argument that possession of explosives and manufacturing a bomb are the same offense, but merely explaining the substance of the additional charge added to the information. As such, judicial estoppel is not applicable in this case. 9 General Statutes § 29-343 provides in relevant part: ‘‘Explosive

. . . means any chemical compound or any mechanical mixture that contains oxidizing and combustible units or other ingredients in such proportions, quantities or packing that ignition by fire, friction, concussion, percussion

or detonator may cause such a sudden generation of highly heated gases that the resultant gaseous pressure is capable of destroying life or limb or of producing destructive effects to contiguous objects

. . . .’’

10 General Statutes § 29-348 provides: ‘‘Any person, having in his possession any explosive forwhichhe has not abill ofsale orwho cannotproduce legal evidence showing that he obtained such explosive by a legal transfer, shall be fined not more than ten thousand dollars or imprisoned not more than ten years or both for each offense.’’

11 General Statutes § 53-80a provides in relevant part: ‘‘Any person, other than one engagedinthe manufacture offirearms orexplosives orincendiary devices for lawful purposes, who fabricates, in any manner, any type of an explosive, incendiary or other device designed to be dropped, hurled, or set in place to be exploded by a timing device, shall be guilty of a class B felony.’’12 The defendant argues that one cannot fabricate an explosive device withoutfirstpossessing an explosive andthereforepossessionis an element ofmanufacturingabomb. In support, he cites casesfrom otherjurisdictions, but fails to identify any Connecticut case for this proposition. All but one ofthese cases concern possession and manufacture ofnarcotics, not explosives or an explosive device, and are plainly distinguishable. The remaining case, UnitedStatesv.Buchanan, 830F.2d 146, 147 (10thCir. 1987), concerns
a defendant who was convicted of both manufacture and possession of an explosive device under a single statute. That case is also distinguishable fromthepresentcase, wherethedefendantwas convictedundertwo distinct statutes, each with a different purpose and different elements. Accordingly,

we do not find the cases cited by the defendant to be on point. Further, § 53-80a does not contain any reference to possession as an element ofthe offense of manufacturing a bomb.

13 There is no dispute that jeopardy first attached prior to the acquittal,

as thejury had been empaneled and sworn. See State v. Jimenez-Jaramill, 134 Conn. App. 346, 375 n.18, 38 A.3d 239 (‘‘[i]njurytrials,jeopardy attaches when ajury is empaneled and sworn’’), cert. denied, 305 Conn. 913, 45 A.3d 100 (2012).

14 As we reverse the defendant’s conviction ofpossession ofan explosive,

we limit our review of the court’s instructions on possession to those concerning the charge of possession of narcotics.

15 The defendant argues that handwriting exemplars should be treated differentlythan otherforms ofnontestimonial evidence underthe Connecticut constitution’s self-incrimination clause because compelling a defendant to submit this type of evidence subjects a person accused ofa crime to the ‘‘cruel trilemma’’ of self-accusation, perjury, or contempt. See State v. Steiger, 218 Conn. 349, 365 n.16, 590 A.2d 408 (1991). In interpreting this clause, our courts draw a line between testimonial evidence, falling within the clause’s protection, and nontestimonial evidence, falling without. The defendantprovides no authorityforthe propositionthatthe line be redrawn in the manner sought.

16 The defendant asks that we break from our Supreme Court’s precedent and hold that the Connecticut constitution’s self-incrimination clause providesbroaderprotectionthanthefifthamendmenttothefederalconstitution in that it applies to nontestimonial evidence. ‘‘It is axiomatic that the trial court and this court are without authority to overrule the decisions of our Supreme Court. In the absence of direction by our Supreme Court, inferior courts must continue to adhere to its decisions.’’ West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15, 24, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004). Accordingly, we cannot be persuaded by the defendant’s argument.