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State v. Bolden

STATE OF CONNECTICUT v.

CHRISTOPHER BOLDEN

(AC 46215)

Elgo, Moll and Prescott, Js.

Syllabus

Pursuant to statute (§ 53a-155 (a)), a defendant is guilty of tampering with

evidence if, ‘‘believing that a criminal investigation conducted by a law

enforcement agency . . . is . . . about to be instituted, [the defendant]

. . . conceals . . . [a] thing with purpose to impair its . . . availability

in such criminal investigation . . . .’’

Convicted, following a jury trial, of the crimes of evading responsibility in

the operation of a motor vehicle and tampering with physical evidence,

the defendant appealed to this court. The defendant’s conviction

stemmed from an incident during which the defendant struck and killed

the victim with the SUV he was driving, fled the scene, and thereafter

left the SUV in a driveway. Held:

1. The defendant could not prevail on his claim that the evidence was

insufficient to support his conviction of tampering with evidence:

a. The evidence was sufficient to prove beyond a reasonable doubt that

the defendant believed that a criminal investigation was about to be

instituted when he fled the scene of the accident and abandoned the

SUV he was driving in a driveway; the jury was permitted to consider

circumstantial evidence presented by the state to make reasonable inferences regarding the defendant’s state of mind, including evidence that

the defendant saw the victim on the ground when he returned to the

intersection before fleeing the scene, or that the defendant must have

known from the significant damage to the SUV that the victim had been

injured, and the jury was free to credit or discredit the defendant’s

statements in his recorded statement to the police.

b. There was sufficient evidence to prove beyond a reasonable doubt

that the defendant had concealed the SUV; a rational juror could consider

and credit the context for the defendant’s act of concealment, including

evidence that the defendant likely knew he had seriously injured a pedestrian, fled the scene, and needed to act quickly and temporarily abandon

the vehicle, which had become disabled, and, in light of the defendant’s

exigent circumstances, a juror could conclude that he saw an opportunity

to make the SUV less noticeable in a private driveway among several

other vehicles.

2. This court did not reach the merits of the defendant’s claim that the trial

court’s refusal to answer two questions submitted by the jury during

its deliberations as to whether moving evidence equated to tampering

or concealing evidence resulted in an unconstitutional enlargement of

the charged crimes, as that claim was deemed waived pursuant to State
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State v. Bolden

v. Kitchens (299 Conn. 447): although the trial court did not inform the

parties of the answer it intended to provide to the jury’s questions, it

invited counsel, outside the presence of the jury, to raise any issues

before the answer was given, both counsel stated that they had nothing

further to discuss, and counsel failed to object after the court responded

to the jury’s questions; accordingly, this court could not say that the

defendant was deprived of a fair trial when the record indicated that

the defense was provided a meaningful opportunity to propose an answer

to the jury’s questions and to object to the trial court’s response to

those questions, and, therefore, the defendant waived the right to challenge that response on appeal.

Argued May 15—officially released August 27, 2024

Procedural History

Substitute information charging the defendant with

the crimes of evading responsibility in the operation of

a motor vehicle, misconduct with a motor vehicle, and

tampering with physical evidence, brought to the Superior Court in the judicial district of Waterbury, geographical area number four, and transferred to the judicial district of Waterbury, where the case was tried to

the jury before Kwak, J.; verdict and judgment of guilty

of evading responsibility in the operation of a motor

vehicle and tampering with physical evidence, from

which the defendant appealed to this court. Affirmed.

Alice Osedach Powers, assigned counsel, for the

appellant (defendant).

Alexander O. Kosakowski, certified legal intern, with

whom were Scott A. Warden, certified legal intern, and,

on the brief, Ronald G. Weller, senior assistant state’s

attorney, for the appellee (state).

Opinion

ELGO, J. The defendant, Christopher Bolden, appeals

from the judgment of conviction, rendered following a

jury trial, of evading responsibility in the operation of

a motor vehicle in violation of General Statutes § 14-224

(a) and tampering with physical evidence in violation of

General Statutes § 53a-155 (a). On appeal, the defendant
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State v. Bolden

claims that (1) with regard to the tampering charge, the

evidence was insufficient to prove beyond a reasonable

doubt that the defendant believed that a criminal investigation was about to be instituted and that he had

concealed a thing with the purpose to impair its availability in such investigation, and (2) the court’s refusal

to answer the jury’s questions during its deliberations

resulted in an improper enlargement of the charged

crimes. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as reasonably could have been

found by the jury, are relevant to the resolution of this

appeal. At approximately 8:40 p.m. on May 1, 2020,

the defendant, an unlicensed driver, was driving his

girlfriend’s black BMW sport utility vehicle (SUV) on

Baldwin Street in Waterbury. The roadway was dry,

and the intersection of Baldwin Street and Scovill Street

was well lit from the streetlights and exterior lights

from Saint Mary’s Hospital. A witness driving a vehicle

behind the defendant could clearly see the victim, Shaneice Copeland, walking along the sidewalk near the

intersection. As the defendant and the witness both

approached the intersection, the light was green. At

that time, the victim stepped off the sidewalk and into

the crosswalk. The defendant did not slow down or

brake as he approached the intersection, and he struck

the victim with the SUV. The victim rolled over the

hood of the SUV before landing on the street.

After striking the victim, the defendant drove several

hundred feet before coming to a stop on Baldwin Street.

After approximately twenty seconds, the defendant

conducted a U-turn and returned to the intersection

where he had struck the victim. The defendant paused

at the intersection, made eye contact with a witness,

and then immediately fled the scene. Witnesses who

called 911 immediately after the accident described the

victim as a ‘‘body’’ on the ground and noted that she
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State v. Bolden

was ‘‘[laying] on the ground . . . like she is dead.’’ The

victim died later that evening as a result of blunt impact

injuries to the head, neck, torso, and extremities.

After leaving the scene of the accident, the defendant

drove the SUV to Meriden Road in Waterbury, approximately six or seven miles from where the accident

occurred. The SUV began to overheat and smoke. When

the SUV was no longer drivable, the defendant put it

in neutral and allowed it to roll backwards down the

natural incline of the street and into a driveway on

Meriden Road that had at least seven other vehicles

parked in it. The defendant knocked on the door of the

residence and told the homeowner that he was having

car trouble. The homeowner called a cab for the defendant and, when it arrived, at the defendant’s request, the

homeowner and the cab driver assisted the defendant

in pushing the SUV far enough into the driveway so

that its front bumper would no longer protrude into

the street. The defendant then left in the cab, and the

homeowner understood that the defendant would

return the next day for the SUV. The cab driver took

the defendant to his girlfriend’s place of employment,

then drove the couple to a hotel, where they stayed for

the night.

From the description provided by a witness at the

scene of the accident, police investigators knew that

they were looking for a black SUV with front end damage consistent with striking a pedestrian. At approximately 10:50 a.m. the next morning, on May 2, 2022, a

patrol officer found the SUV parked in the driveway on

Meriden Road. The officer noted that the SUV was facing the street, and, as a result, the front end damage

was clearly visible to anyone driving in either direction.

A crime scene technician was dispatched to photograph

and collect evidence from the SUV, while police officers

spoke with the homeowner at that address.
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State v. Bolden

On that same morning, the defendant and his girlfriend were picked up from the hotel by a friend.

Between approximately 11 a.m. and noon, the defendant, along with his friend and his girlfriend, drove past

the driveway on Meriden Road, where the SUV was

parked. The girlfriend testified that it was their intention

‘‘to go get the car, to look at the car, to go see what

happened to the car’’ but, upon seeing the police activity

at the residence on Meriden Road, they drove past it

without stopping and eventually returned to the home

of the defendant’s girlfriend. Once at her home, the

girlfriend called the police to report that her vehicle

had been stolen but later admitted to making the false

report. Soon after, the police arrived and took the defendant and his girlfriend to the police station for questioning. The defendant at that time confessed to striking

the victim with the SUV, leaving the scene without

speaking to anyone, parking and leaving the SUV in the

driveway on Meriden Road, and stated that he was

aware that his girlfriend had falsely reported that the

SUV had been stolen.

The defendant thereafter was arrested and charged

with the following crimes: in count one, evading responsibility in the operation of a motor vehicle in violation

of § 14-224 (a),1 in count two, misconduct with a motor

vehicle in violation of General Statutes § 53a-57 (a),2

and, in count three, tampering with physical evidence

in violation of § 53a-155 (a).3 Specifically, in count three,

1 General Statutes § 14-224 (a) provides in relevant part: ‘‘Each operator

of a motor vehicle who is knowingly involved in an accident which results

in the death of any other person shall at once stop and render such assistance

as may be needed and shall give such operator’s name, address and operator’s

license number and registration number to any officer or witness to the

death of any person . . . .’’ 2 General Statutes § 53a-57 (a) provides: ‘‘A person is guilty of misconduct

with a motor vehicle when, with criminal negligence in the operation of a

motor vehicle, he causes the death of another person.’’ 3 General Statutes § 53a-155 (a) provides in relevant part: ‘‘A person is

guilty of tampering with or fabricating physical evidence if, believing that

a criminal investigation conducted by a law enforcement agency or an official
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State v. Bolden

the state charged the defendant with tampering with

physical evidence ‘‘in that, on or about May 1, 2020, at

or about [9 p.m.], at or near 727 Meriden Road, in the

[c]ity of Waterbury, Connecticut, the [defendant],

believing that a criminal investigation conducted by a

law enforcement agency was about to be instituted,

concealed a thing with purpose to impair its availability

in such criminal investigation.’’

After the presentation of evidence at trial, the court

instructed the jury on the elements of each of the

charged crimes, noting that ‘‘[t]he state is required to

prove each element and each count beyond a reasonable doubt.’’ During deliberations, the jury asked for

clarification regarding two of the elements in count

three, specifically, whether moving evidence equated

with tampering or concealing evidence. The court

responded that it was up to the jury as a group to

determine that answer.

The jury found the defendant guilty on count one,

evading responsibility in the operation of a motor vehicle in violation of § 14-224 (a), and on count three,

tampering with physical evidence in violation of § 53a155 (a). The jury found the defendant not guilty on

count two, misconduct with a motor vehicle in violation

of § 53a-57 (a). The court rendered judgment in accordance with the jury’s verdict and sentenced the defendant to a total effective term of fifteen years of incarceration. This appeal followed. Additional facts will be set

forth as necessary.

I

The defendant’s first claim is that the evidence was

insufficient to support his conviction of tampering with

proceeding is pending, or about to be instituted, such person . . . [a]lters,

destroys, conceals or removes any record, document or thing with purpose

to impair its verity or availability in such criminal investigation or official

proceeding . . . .’’
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State v. Bolden

physical evidence because the state failed to prove

beyond a reasonable doubt that he (1) believed a criminal investigation was about to be instituted when he

fled the scene of the accident and subsequently abandoned the SUV in a driveway, and (2) concealed the

SUV.4 We disagree.

‘‘To determine whether the evidence was sufficient

to establish [an] essential element of [a crime], we apply

a two part test. First, we construe the evidence in the

light most favorable to sustaining the verdict. Second,

we determine whether upon the facts so construed and

the inferences reasonably drawn therefrom, the [jury]

reasonably could have concluded that the cumulative

force of the evidence established guilt beyond a reasonable doubt . . . . In doing so, we are mindful that the

trier of fact is not required to accept as dispositive

those inferences that are consistent with the defendant’s innocence. . . . The trier [of fact] may draw

whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and

logical. . . .

4 In the statement of issues and in the primary heading in his principal

appellate brief, the defendant claims, inter alia, that the evidence was insufficient to prove that he ‘‘intended to conceal a vehicle with the intent to

impair its availability in [a] criminal proceeding.’’ In the subheading and

body of his brief, however, the defendant does not argue the ‘‘intent to

conceal’’ the SUV or ‘‘intent to impair its availability.’’ Rather, the defendant

argues that ‘‘the evidence was insufficient to prove beyond a reasonable

doubt that [he] concealed the vehicle.’’ Because the substance of the defendant’s argument involves the alleged concealment of the SUV, that is the

claim we address on appeal. See, e.g., Taylor v. Mucci, 288 Conn. 379, 383

n.4, 952 A.2d 776 (2008) (‘‘We repeatedly have stated that [w]e are not

required to review issues that have been improperly presented to this court

through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief

the issue properly. . . . Where a claim is asserted in the statement of issues

but thereafter receives only cursory attention in the brief without substantive

discussion or citation of authorities, it is deemed to be abandoned.’’ (Internal

quotation marks omitted.)).
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State v. Bolden

‘‘[W]e do not draw a distinction between direct and

circumstantial evidence so far as probative force is

concerned . . . . Indeed, [c]ircumstantial evidence

. . . may be more certain, satisfying and persuasive

than direct evidence. . . . It is not one fact . . . but

the cumulative impact of a multitude of facts [that]

establishes guilt in a case involving substantial circumstantial evidence.’’ (Citation omitted; internal quotation

marks omitted.) State v. Honsch, Conn. , ,

A.3d (2024).

Section 53a-155 (a) provides in relevant part that

a defendant is guilty of tampering with evidence ‘‘if,

believing that a criminal investigation conducted by a

law enforcement agency . . . is . . . about to be instituted, [the defendant] . . . conceals . . . [a] thing

with purpose to impair its . . . availability in such

criminal investigation . . . .’’5 Consequently, the court

instructed the jury that, in order to find the defendant

guilty of tampering with evidence, it must find the following elements beyond a reasonable doubt: ‘‘(1) the

defendant believed that a criminal investigation conducted by a law enforcement agency was pending or

about to be instituted, (2) the defendant tampered with

physical evidence, and (3) the defendant concealed any

item with the purpose of impairing its availability in

such proceeding.’’

‘‘We . . . note that the jury must find every element

proven beyond a reasonable doubt in order to find the

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

the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.

5 Although § 53a-155 (a) allows a defendant to be convicted if he ‘‘conceals

or removes any . . . thing with purpose to impair its verity or availability’’;

(emphasis added); here, the state only charged the defendant with concealment, and not removal, of a ‘‘thing . . . .’’ For that reason, concealment

was the element used in the jury instructions, as well as the element that

is considered on appeal.
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State v. Bolden

. . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the

jury is permitted to consider the fact proven and may

consider it in combination with other proven facts in

determining whether the cumulative effect of all the

evidence proves the defendant guilty of all the elements

of the crime charged beyond a reasonable doubt.’’

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

330 Conn. 149, 187, 193 A.3d 1 (2018), cert. denied,

U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).

When a penal statute includes a requirement such as a

defendant’s belief or intent, the jury is often tasked

with considering circumstantial evidence in order to

determine the defendant’s state of mind at the time of

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

crime is often the most significant and, at the same

time, the most elusive element of the crime charged.

. . . Because it is practically impossible to know what

someone is thinking or intending at any given moment,

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

of mind is usually [proven] by circumstantial evidence.

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

before, during and after [a crime]. Such conduct yields

facts and inferences that demonstrate a pattern of

behavior and attitude . . . by the defendant that is probative of the defendant’s mental state.’’ (Citation omitted; internal quotation marks omitted.) State v. Bonilla,

317 Conn. 758, 766, 120 A.3d 481 (2015). Here, the jury

was permitted to rely on the circumstantial evidence

presented by the state, such as the defendant’s actions

and his pattern of behavior, to make reasonable and

logical inferences regarding his state of mind.

A

The defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he

believed that a criminal investigation was about to begin

when he fled the scene of the accident and abandoned
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State v. Bolden

the SUV he has driving in a driveway. Specifically, the

defendant points to his recorded statement to the police

in which he stated that he never observed the victim

on the ground after striking her and, instead, believed

that the victim was uninjured because he mistakenly

thought she was an unidentified person walking along

the sidewalk after the accident. The defendant argues

that, ‘‘as [he] left the scene, he did not believe that an

official proceeding or investigation against him was

probable because he believed that . . . the person had

not been injured.’’ With regard to parking the SUV in

the driveway, the defendant similarly argues that he

moved the disabled SUV into the driveway because

Meriden Road is a busy road with very little shoulder,

and not because he believed that a criminal investigation was about to be instituted. We are not persuaded.

The jury was permitted to consider circumstantial

evidence presented by the state, together with the

defendant’s actions and his pattern of behavior, to

determine his state of mind. ‘‘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.’’ (Internal quotation marks omitted.) State v.

Campbell, 328 Conn. 444, 504, 108 A.3d 882 (2018). The

jury was free to credit or disregard the defendant’s

statements in his recorded statement to the police. Similarly, the jury was permitted to draw reasonable inferences from the evidence in the record, including that

the defendant saw the victim on the ground when he

returned to—and paused at—the intersection before

fleeing the scene, or that the defendant must have

known from the significant damage to the SUV that the

victim had been injured. The state produced sufficient
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State v. Bolden

evidence upon which the jury could find that the defendant believed that a criminal investigation was about

to be instituted when he fled the scene and ultimately

abandoned the SUV. Accordingly, the defendant’s

claim fails.

B

The defendant next claims that the state’s evidence

was insufficient to prove beyond a reasonable doubt

that he concealed the SUV. The defendant provides

various definitions of the term ‘‘conceal’’ and argues

that this term ‘‘cannot be interpreted broadly, but must

be construed narrowly . . . .’’ On the basis of a narrow

reading of the definitions he provided, the defendant

argues that, ‘‘[b]ecause there was no evidence that [he]

attempted to or did conceal the vehicle, the [jury’s]

verdict was based on speculation and not reasonable

inferences drawn from the evidence.’’ We disagree.

‘‘When construing a statute . . . [General Statutes]

§ 1-2z directs us first to consider the text of the statute

itself and its relationship to other statutes. If, after

examining 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. . . . In determining whether the statutory

language is plain and unambiguous, words and phrases

[must] be construed according to the commonly

approved usage of the language . . . . General Statutes § 1-1 (a).’’ (Citation omitted; internal quotation

marks omitted.) Redding Life Care, LLC v. Redding,

331 Conn. 711, 718, 207 A.3d 493 (2019). The word

‘‘conceal’’ is not defined in § 53a-155 (a) (1) or elsewhere in the Penal Code. Although ‘‘[w]e ordinarily look

to the dictionary definition of a word to ascertain its

commonly approved usage’’; (internal quotation marks

omitted) Redding Life Care, LLC v. Redding, supra,
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State v. Bolden

718; in a jury trial, ‘‘[i]t is not necessary to define words

[for the jury] which are commonly used and which are

defined in our standard dictionaries. [T]he definition of

words in our standard dictionaries is taken as a matter

of common knowledge which the jury is supposed to

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

Lewtan, 5 Conn. App. 79, 85, 497 A.2d 60 (1985).

‘‘[J]urors . . . are not required to leave common sense

at the courtroom door . . . nor are they expected to

lay aside matters of common knowledge or their own

observations and experience of the affairs of life . . . .’’

(Internal quotation marks omitted.) State v. King, 289

Conn. 496, 522, 958 A.2d 731 (2008). Thus, it is in the

purview of a jury to use and apply the ordinary meaning—as the jury understands it—of a word that is commonly used and is not statutorily defined. It is with this

understanding that courts often decline to provide a jury

with a dictionary definition of commonly understood

terms. See, e.g., State v. Lewis, 303 Conn. 760, 782–83,

36 A.3d 670 (2012) (presuming jury understood and

applied common usage of disputed terms); State v.

Maresca, 173 Conn. 450, 460, 377 A.2d 1330 (1977)

(court did not err in failing to define terms that may be

understood in their ordinary meaning); State v. Lewtan,

supra, 85 (courts may ‘‘refuse to define words which

are ‘used and might be understood in their ordinary

meanings’ ’’).

Here, it is presumed that the jury would know the

commonly understood meaning of the word ‘‘conceal.’’

Merriam-Webster’s Collegiate Dictionary includes in its

definition of the word ‘‘conceal’’ ‘‘to prevent disclosure

or recognition of [something] . . . .’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2014) p. 257. Using

their ‘‘common knowledge . . . and experience of the

affairs of life’’; (internal quotation marks omitted) State

v. King, supra, 289 Conn. 522; the jurors were expected

to determine whether the defendant’s placement of the
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State v. Bolden

SUV in the driveway was an act of concealment in

keeping with a commonly understood definition of the

word ‘‘conceal.’’

Although the defendant argues that, if it was his intention, he could have more effectively concealed the SUV

by using a tarp, parking it in a garage, or facing it away

from the street, that is not the relevant inquiry. Rather,

when considering a sufficiency of the evidence claim,

we view the cumulative evidence in the light most favorable to sustaining the jury’s verdict and then determine

whether any rational juror could find that the defendant

concealed the SUV.

There is sufficient evidence in the record to sustain

the jury’s verdict. First, a rational juror could consider

and credit the context for the act of concealment,

which, here, includes evidence that the defendant likely

knew he had seriously injured a pedestrian, fled the

scene, and needed to quickly and temporarily abandon

the SUV. Next, in light of the exigencies of the defendant’s circumstances, a juror could conclude that the

defendant saw an opportunity to make the SUV less

noticeable in a private driveway with a significant number of other vehicles. Using the commonly understood

definition of ‘‘concealment,’’ a rational juror reasonably

could conclude that parking a disabled vehicle in a

private driveway amongst several other vehicles, even

if the subject vehicle is in plain sight, could prevent

the vehicle from being located. For this reason, the

defendant’s argument that the evidence was insufficient

to prove that he committed an act of concealment fails.

II

The defendant’s second claim is that the court’s

refusal to answer the jury’s questions as to whether

moving evidence equated to tampering or concealing

evidence unconstitutionally enlarged the charged

offense. We do not reach the merits of this claim
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State v. Bolden

because it is deemed waived pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), and because the

defendant failed to properly raise a claim of plain error.6

The following additional facts are relevant to this

claim. During deliberations, the court received a note

containing two questions from the jury concerning

count three, the tampering charge. Specifically, the jury

asked: ‘‘Related to count three: In element [two], does

moving evidence equate to tampering with evidence?

In element [three], does moving evidence equate to

concealing evidence?’’ Before calling the jury back into

the courtroom, the court advised the parties that it

would excuse the jury for the remainder of the day and

would respond to its questions the following morning.

The court read the questions aloud to the parties and

their respective counsel, excused the jury, and then

asked counsel if they wanted to read the note for themselves. Both counsel declined. The court then asked:

‘‘Is there anything before we adjourn for today?’’ Both

parties’ counsel responded, ‘‘No, Your Honor.’’

The next morning, the court again invited the parties

to provide feedback by asking: ‘‘Is there anything we

6 ‘‘[T]he 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. . . . A

party cannot prevail under plain error unless it has demonstrated that the

failure to grant relief will result in manifest injustice.’’ (Citation omitted;

internal quotation marks omitted.) State v. McClain, 324 Conn. 802, 812,

155 A.3d 209 (2017). In his principal appellate brief, the defendant makes

several conclusory assertions that ‘‘the trial court’s inadequate response to

the jurors’ questions constituted plain error,’’ but provides no analysis to

support his claim. Although the defendant’s reply brief contains a citation

to case law regarding the plain error doctrine, it similarly is devoid of

analysis, and, instead, merely asserts that the plain error doctrine applies

to his claim. ‘‘We repeatedly have stated that [w]e are not required to

review issues that have been improperly presented to this court through an

inadequate brief. . . . Analysis, rather than mere abstract assertion, is

required in order to avoid abandoning an issue by failure to brief the issue

properly.’’ (Internal quotation marks omitted.) Taylor v. Mucci, supra, 288

Conn. 383 n.4.
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State v. Bolden

need to discuss before bringing [in] the [jurors] and

[giving] them an answer to the questions that they asked

yesterday?’’ Both counsel responded: ‘‘No, Your

Honor.’’ The jurors were brought into the courtroom,

and the court read back their questions regarding

whether moving evidence equated to concealing or tampering with evidence, and stated: ‘‘[The court] cannot

give you that answer. That is for you to determine,

whether that equates to those things. So, you’ll have to

make that decision as a group.’’ The court asked the jury

to resume its deliberations, then affirmatively asked

counsel if there was ‘‘[a]nything before we recess,’’ to

which both counsel responded: ‘‘No, Your Honor.’’

Defense counsel expressed no objection to the court’s

course of action in responding to the jury’s note.

Whether the court’s response to the jury’s questions

resulted in an enlargement of the charged offenses constitutes a legal question over which we exercise plenary

review. See, e.g., State v. David N.J., 301 Conn. 122,

158, 19 A.3d 646 (2011) (‘‘enlargement claims . . .

require us to exercise plenary review’’).

On appeal, the defendant concedes that his enlargement claim was not preserved before the trial court

and thus requests review pursuant to State v. Golding,

213 Conn. 233, 567 A.2d 823 (1989), as modified by In

re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).

Under Golding, ‘‘a defendant can prevail on a claim of

constitutional error not preserved at trial only if all

of the following conditions are met: (1) the record is

adequate to review the alleged claim of error; (2) the

claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the

defendant of a fair trial; and (4) if subject to harmless

error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond
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a reasonable doubt.’’ (Emphasis in original; footnote

omitted.) State v. Golding, supra, 239–40.

It is undisputed that the first two prongs of Golding

are satisfied in the present case. The state argues, however, that the third prong is not met because the defendant waived his claim pursuant to State v. Kitchens,

supra, 299 Conn. 447. We agree with the state.

‘‘A defendant in a criminal prosecution may waive

one or more of his or her fundamental rights. . . . [I]n

the usual Golding situation, the defendant raises a claim

on appeal [that], while not preserved at trial, at least

was not waived at trial. . . . [A] constitutional claim

that has been waived does not satisfy the third prong

of the Golding test because, in such circumstances, we

simply cannot conclude that injustice [has been] done

to either party . . . or that the alleged constitutional

violation . . . exists and . . . deprived the defendant

of a fair trial. . . .

‘‘The mechanism by which a right may be waived

. . . varies according to the right at stake. . . . For

certain fundamental rights, the defendant must personally make an informed waiver. . . . For other rights,

however, waiver may be effected by action of counsel.

. . . [Our Supreme Court] has stated that among the

rights that may be waived by the action of counsel in

a criminal proceeding is the right of a defendant to

proper jury instructions.’’ (Citations omitted; internal

quotation marks omitted.) State v. Kitchens, supra, 299

Conn. 467.

The waiver by the defendant in this case is comparable to the waiver that was effected in State v. Grasso,

189 Conn. App. 186, 207 A.3d 33, cert. denied, 331 Conn.

928, 207 A.3d 519 (2019). During jury deliberations in

Grasso, the jury requested to rehear the closing arguments of counsel. Id., 222. Outside of the jury’s presence, the court read the request to the parties’ counsel,
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told them it would deny the request, and indicated that

it would, instead, instruct the jury on direct and circumstantial evidence. Id., 223. Counsel for both parties

affirmatively stated they did not have an issue with the

court’s proposed response. Id. The jury returned to the

courtroom, the court informed the jury that its request

to rehear the closing arguments was denied, and then

instructed the jury regarding direct and circumstantial

evidence. Id., 223–24. Thereafter, the jury returned to

its deliberations, and neither party raised the issue again

until the defendant’s subsequent appeal from the judgment of conviction. Id., 224. On appeal, this court determined that the defendant had waived the opportunity

to challenge the propriety of the court’s response to

the jury’s request because, at trial, defense ‘‘counsel

affirmatively replied that there were no objections to

the court’s response and, even after the court addressed

the jury in the manner it had proposed, neither the

prosecutor nor defense counsel stated any reservations

or objections to the court’s response.’’ Id., 226.

Here, although the court did not inform the parties

of the answer it intended to provide to the jury’s questions, it twice invited counsel—outside the presence of

the jury—to raise any issues they wanted to discuss

prior to the answer being given. Both counsel affirmatively stated that they had nothing to discuss. Then,

similar to Grasso, neither counsel raised a concern or

objection after the court responded to the jury’s questions, even though here, they were affirmatively invited

to do so. As a result, we conclude that the defendant

cannot satisfy the third prong of Golding. We cannot

say that the defendant was deprived of a fair trial when

the record indicates that the defense was provided a

meaningful opportunity to either propose an answer to

the jury’s questions or object to the court’s response

to those questions. Accordingly, because the defense
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State v. Bolden

acquiesced to the court’s response to the jury’s questions, the defendant waived, pursuant to Kitchens, the

right to challenge that response on appeal. The defendant’s claim fails because it is waived and, therefore,

does not satisfy Golding’s third prong. As a result, we

do not reach the merits of the defendant’s enlargement claim.

The judgment is affirmed.

In this opinion the other judges concurred.