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*********************************************** 
STATE OF CONNECTICUT v. LAMAR MCCARTHY

(AC 43785)

Bright, C. J., and Prescott and Vertefeuille, Js.

Syllabus

Convicted of three counts of kidnapping in the second degree and one count

each of conspiracy to commit robbery in the second degree and larceny

in the second degree, the defendant appealed to this court. The defendant

drove R, an individual who sought to purchase heroin from him and

who owed him money, to a bank. Unbeknownst to the defendant, who

had remained in his vehicle during the incident, R robbed the bank.

Although the defendant was unaware of R’s wrongdoing, as he drove

away from the scene, he noticed a police cruiser following him and

began to drive very erratically and at high speeds. After his motor vehicle

became disabled, the defendant stopped in front of a gas station. The

defendant and R exited the vehicle, ran toward a Jeep that was parked

at a gas pump, and demanded that W, the driver of the Jeep, get out of

the vehicle. When W responded that his family was inside, the defendant

ran to the passenger side of the vehicle, climbed over M, W’s wife, and

got into the driver’s seat. R attempted to enter the backseat of the Jeep

but was unsuccessful, as M and W’s grandchildren were strapped into

booster seats in the backseat. The defendant promptly exited the gas

station at a high rate of speed with M and her grandchildren still inside

the vehicle. The defendant took M’s cell phone from her and entered

the highway, continuing to drive erratically and at a high rate of speed.

Approximately ten minutes after gaining control of the Jeep, the defendant pulled over to the side of the highway to let M and her grandchildren

exit the vehicle. The defendant then immediately drove away, without

returning M’s cell phone, and M had to flag down a passerby for assistance. The defendant was not charged with any crimes relating to the

robbery of the bank, rather, the charges against him stemmed solely

from his taking of the Jeep. Held:

1. The defendant could not prevail on his claim that he was entitled to a

new trial on the kidnapping charges because the trial court improperly

failed to provide an incidental restraint instruction to the jury in accordance with State v. Salamon (287 Conn. 509), the state having persuaded

this court beyond a reasonable doubt that the error was harmless: the

trial court’s failure to instruct the jury on an essential element of the

offense was a constitutional error, requiring the state to prove that

the failure was harmless beyond a reasonable doubt; moreover, when

evaluated in accordance with the relevant factors set forth in Salamon,

there was no reasonable possibility that a properly instructed jury would

have reached a different result concerning whether the defendant’s

restraint of M and her grandchildren was incidental to or necessary

for him to complete the larceny, as, even though the defendant took

possession of the Jeep at approximately the same time that he first

restrained the victims and he restrained them only for approximately

ten minutes, the defendant could have completed the larceny and

released the victims earlier, he transported the victims to multiple locations while they were confined to the Jeep, the fact that the defendant

was more likely to be apprehended by the police at the gas station if

he permitted the victims to immediately exit the Jeep did not compel

a conclusion that the victims’ restraint was incidental to or necessary

for the commission of the larceny, the defendant’s restraint of the victims

in a fast-moving vehicle while withholding M’s cell phone from her,

prevented the victims from summoning assistance or alerting the police

to his location, the defendant’s risk of detection was reduced and he

was able to flee the gas station unhindered because he did not stop to

free the victims at or near the scene of the larceny, and the restraint

increased the victims’ risk of harm independent of that posed by the

larceny because the defendant confined them to a moving car that he

was operating in an erratic manner and at high speeds and then left

them on the side of the highway, he refused to return M’s cell phone

before he drove away, and he inspired fear in his victims.
2. Contrary to the defendant’s claim, there was sufficient evidence from

which the jury reasonably could have found the defendant guilty beyond

a reasonable doubt of each of the three counts of kidnapping in the

second degree: because, with respect to the defendant’s first claim, this

court concluded that there was no reasonable possibility that a properly

instructed jury would find that the defendant’s restraint was incidental

to or necessary for his completion of the larceny, it necessarily followed

that a reasonable view of the evidence supported the jury’s finding that

the defendant intended to prevent the victims’ liberation beyond that

which was incidental to or necessary to complete the larceny and,

consequently, supported the jury’s verdict; moreover, the evidence

admitted at trial, including testimony regarding the defendant’s erratic

driving at high speeds and M’s concern for her safety and for that

of her grandchildren, and the reasonable inferences that the jury was

permitted to draw therefrom, were more than sufficient to establish

that the defendant used or threatened to use force or intimidation to

restrain the victims from exiting the vehicle before he began driving

and while the vehicle was in motion.

3. The defendant could not prevail on his claim that the trial court abused

its discretion and violated his constitutional right to due process when

it denied his requests to have his leg shackles removed during trial:

although the defendant expressed concern at trial that one of the jurors

may have seen his leg shackles, the trial court had instructed a judicial

marshal to sit in various chairs in the jury box to confirm that the

defendant’s leg shackles were not visible to the jury and the record

revealed no evidence to suggest that the jurors actually saw or otherwise

knew of the defendant’s leg shackles; accordingly, the defendant failed

to satisfy his burden of demonstrating that the jurors actually saw or

otherwise was aware of his restraints and, therefore, failed to establish

that the trial court’s denial of his requests to remove his restraints

deprived him of his right to a fair trial.

Argued September 15, 2021—officially released January 18, 2022

Procedural History

Substitute information charging the defendant with

three counts of the crime of kidnapping in the second

degree and with one count each of the crimes of robbery

in the second degree, conspiracy to commit robbery in

the second degree, and larceny in the second degree,

brought to the Superior Court in the judicial district of

New Britain, geographical area number seventeen, and

tried to the jury before D’Addabbo, J.; verdict and judgment of guilty of three counts of kidnapping in the

second degree and one count each of conspiracy to

commit robbery in the second degree and larceny in

the second degree, from which the defendant appealed

to this court. Affirmed.

Alice Osedach, assistant public defender, for the

appellant (defendant).

Jonathan M. Sousa, deputy assistant state’s attorney,

with whom, on the brief, were Brian W. Preleski, state’s

attorney, and Christian Watson, supervisory assistant

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

PRESCOTT, J. The defendant, Lamar McCarthy,

appeals from the judgment of conviction, rendered following a jury trial, of one count of conspiracy to commit

robbery in the second degree in violation of General

Statutes §§ 53a-48 and 53a-135 (a) (1) (A), one count

of larceny in the second degree in violation of General

Statutes § 53a-123 (a) (1), and three counts of kidnapping in the second degree in violation of General Statutes § 53a-94. The defendant claims that (1) the trial

court improperly failed to instruct the jury in accordance with State v. Salamon, 287 Conn. 509, 550, 949

A.2d 1092 (2008); (2) there was insufficient evidence

to prove beyond a reasonable doubt that he intended

to prevent the liberation of the victims beyond that

which was incidental and necessary to commit the larceny and that he used or threatened to use physical

force or intimidation to restrain the victims; and (3)

the court violated his constitutional right to due process

by denying his requests to remove his leg shackles. We

affirm the judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to this

appeal. On June 18, 2017, the defendant received a

phone call from Norman Renaldi, who sought to purchase heroin from the defendant and asked him for a

ride from Newington to Hartford. Renaldi previously

had purchased heroin from the defendant on several

occasions. The defendant picked up Renaldi in a red

Honda minivan and told Renaldi that he owed the defendant money. Renaldi instructed the defendant to drive

to the Stop & Shop at 505 North Main Street in Southington, inside of which was a People’s United Bank

branch (bank). During the drive and unbeknownst to

the defendant, Renaldi wrote a note on the back of a

coupon, which stated, ‘‘EMPTY BOTH CASH DRAWERS QUICKLY + QUI[E]TLY AND NO-ONE GETS

HURT!!’’

After the defendant and Renaldi arrived at Stop &

Shop, the defendant remained in the minivan while

Renaldi went inside. Renaldi approached the bank and

handed the note to one of the bank tellers. He kept one

of his hands in the pocket of his sweatshirt, suggesting

to the teller that he had a weapon. The teller retrieved

and handed to Renaldi a large quantity of cash, which

Renaldi placed, along with the note, into a slit that he

had cut into the lining of his sweatshirt. Renaldi then

exited the Stop & Shop, got back into the minivan, and

told the defendant that they could leave. He did not tell

the defendant that he had robbed the bank. Meanwhile,

one of the bank tellers activated an alarm, which alerted

the police that a robbery had occurred at the bank.

At approximately 1:15 p.m., on duty police officers

received a dispatch that a white male had entered the
bank, demanded cash, implied that he possessed a

weapon, and then fled the scene in a red minivan. When

the dispatch was received, the defendant was driving

the minivan northbound on Route 10 in Southington.

Southington Police Officer Jeremey Busa, who was on

patrol, observed a red minivan that matched the

description from the dispatch driving on Route 10.

When the minivan stopped at a red traffic light, Busa

pulled behind it in his police cruiser. The defendant

noticed Busa’s cruiser and became nervous. The defendant attempted to maneuver the minivan around a vehicle that was stopped in front of it at the stoplight but

proceeded to hit the vehicle. The defendant then executed a U-turn and accelerated southbound down Route

10, at which point Busa activated the lights and siren

of his cruiser. The defendant drove at a high rate of

speed, striking the curb on the side of the road, weaving

in and out of traffic, crossing into incoming traffic,

failing to stop at red lights, and driving across the driveways and lawns that abutted Route 10. Southington

Police Officer Neal Ayotte, who was also on patrol,

responded to the bank robbery dispatch, activated his

body camera, and joined in the pursuit of the minivan

in his police cruiser. As he approached the minivan

on Route 10, Ayotte observed the driver operating the

minivan erratically, and, at some point, Ayotte had to

pull his cruiser into the front yard of a nearby residence

to avoid being hit by the minivan.

Eventually, the tires on the passenger side of the

minivan became flat, began to squeal, and emanated

sparks and smoke. The defendant told Renaldi that the

minivan belonged to his wife and that they needed to

obtain another vehicle. Accordingly, the defendant

stopped in front of a Shell gas station located at 212

Main Street in Southington (gas station) and parked the

minivan so that it straddled the curb and the sidewalk in

front of the gas station. Several police officers, including

Busa and Ayotte, simultaneously arrived at the gas station. The defendant and Renaldi exited the minivan and

ran toward a white Jeep Cherokee that was parked at

a gas pump in front of the gas station.

The driver of the Jeep, W, had just finished pumping

gas and had begun to get back into his Jeep when the

defendant and Renaldi approached him. W’s wife, M,

was sitting in the front passenger seat of the vehicle,

and their grandchildren, L and O, were sitting in booster

seats in the backseat. Renaldi grabbed W and instructed

him to get out of the Jeep, to which W responded that

his family was inside of the vehicle. The defendant ran

to the passenger side of the vehicle, climbed over M,

and got into the driver’s seat. Renaldi unsuccessfully

attempted to enter the backseat of the Jeep through

the passenger side door. Once the defendant was in the

driver’s seat, he promptly exited the gas station in the

Jeep at a high rate of speed with M, L, and O still inside.
Police officers chased Renaldi, who had exited the

parking lot of the gas station on foot and had run onto

Route 10. The officers ordered Renaldi to stop running

and to get on the ground. Eventually, the officers apprehended Renaldi and recovered his sweatshirt, the stolen

cash, which totaled more than $12,000, and the note.

Later, Renaldi identified the driver of the Jeep as the

defendant.1

While at the gas station, Busa observed that the minivan, which was still running, had sustained damage to

its front bumper and quarter panel, its rear rim, and its

passenger side tires. Busa recovered a wallet on the

driver’s seat of the minivan. The defendant’s license

and several other cards with his name on them were

located inside of the wallet. Various documents

addressed to the defendant, including a letter, a receipt,

and an invoice, were also recovered from the minivan.

After exiting the gas station, the defendant drove the

Jeep southbound on Route 10 at a high rate of speed.

M had to hold onto the dashboard, the handle above

the passenger side door, and the inside of the door

while he was driving. The defendant asked M about the

location of the nearest highway and whether she had

a cell phone. M directed the defendant to the entrance

of Interstate 84 and, although she initially lied and

responded that she did not have a cell phone, eventually

gave her cell phone to the defendant for fear that the

phone may ring. Throughout the course of the drive,

M tried to calm her grandchildren, one of whom was

crying, while acknowledging that she ‘‘couldn’t believe’’

what was happening. She also told the defendant that

she ‘‘didn’t know’’ or ‘‘care’’ what he had done, but she

‘‘just wanted [her grandchildren] to be safe . . . .’’ The

defendant told M that he ‘‘wasn’t going to hurt’’ her and

the grandchildren.

The defendant entered Interstate 84 westbound and

drove on the highway. Eventually, the defendant pulled

the Jeep to the side of the highway and instructed M to

quickly exit the vehicle. Although the defendant pulled

over on the side of the highway near an exit, he did

not exit the highway to release M, L, or O. M exited

the Jeep, removed her grandchildren from their booster

seats, and shut the door. The defendant immediately

drove away without returning M’s cell phone to her.

M attempted to calm her grandchildren and, shortly

thereafter, flagged down a passerby and borrowed his

cell phone to call her son. The police subsequently

arrived to where the defendant had left them. In total,

approximately ten minutes passed between when the

defendant gained control of the Jeep at the gas station

and when the defendant allowed the victims to exit the

vehicle.

On September 25, 2017, the defendant was arrested

pursuant to a warrant. Prior to trial, the state filed a
corrected substitute information dated September 12,

2019, charging the defendant with one count of robbery

in the second degree in violation of § 53a-135 (a) (1)

(A), one count of conspiracy to commit robbery in the

second degree in violation of §§ 53a-48 and 53a-135 (a)

(1) (A), one count of larceny in the second degree in

violation of § 53a-123 (a) (1), and three counts of kidnapping in the second degree in violation of § 53a-94.

Following a jury trial, the defendant was found not

guilty of robbery in the second degree but was found

guilty of all other counts.2 The defendant was sentenced

to a total effective term of twenty-five years of imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that he is entitled to a

new trial on the kidnapping charges because the court

improperly failed to provide to the jury an incidental

restraint instruction in accordance with State v. Salamon, supra, 287 Conn. 550, which would have ensured

that the defendant could be convicted of kidnapping

only if the restraint that formed the basis of the kidnapping charges held criminal significance separate and

apart from that incidental to or necessary for the completion of the larceny. See White v. Commissioner of

Correction, 170 Conn. App. 415, 423–24, 154 A.3d 1054

(2017). The state concedes that the court improperly

declined to provide a Salamon instruction in the present

case. The state contends, however, that the court’s failure to give a Salamon instruction was harmless beyond

a reasonable doubt because no reasonable juror could

have concluded that the defendant did not intend to

prevent the victims’ liberation for a longer period of

time or to a greater degree than that which was incidental to or necessary to commit the underlying larceny.

Stated differently, the state argues that the court’s failure to provide to the jury an incidental restraint instruction did not affect the verdict. Because we conclude

that the state has persuaded us beyond a reasonable

doubt that the court’s failure to provide a Salamon

instruction was harmless, we reject the defendant’s

claim.

The following additional procedural history is relevant to our resolution of this claim. Throughout the

duration of the trial, the court and the parties discussed

in chambers whether the court should provide to the

jury an incidental restraint instruction in accordance

with Salamon. The court held a charge conference on

September 26, 2019, following the close of evidence

and outside of the presence of the jury, in accordance

with Practice Book § 42-19. During the charge conference, the defendant requested an incidental restraint

instruction. The court informed the parties that,

although it preliminarily was inclined not to include

such an instruction, it would rule on the defendant’s
request the following day.

On September 27, 2019, the court denied the defendant’s request, stating in its oral ruling that the defendant’s restraint of the victims was not incidental to

the larceny or the robbery and that it believed that a

defendant is entitled to a Salamon instruction only if

a defendant was charged with kidnapping and another

substantive crime arising out of an assault, such as a

sexual assault. The court charged the jury later that day

and did not provide to the jury a Salamon instruction.

Following the jury charge and outside of the presence

of the jury, the defendant noted on the record his objection to the court’s failure to provide a Salamon instruction.

We begin by setting forth the applicable standard of

review and the relevant principles of law. ‘‘The applicability of Salamon and whether the trial court’s failure

to give a Salamon instruction was harmless error are

issues of law over which our review is plenary.’’ Farmer

v. Commissioner of Correction, 165 Conn. App. 455,

459, 139 A.3d 767, cert. denied, 323 Conn. 905, 150 A.3d

685 (2016). Further, ‘‘the question of whether conduct

bears . . . criminal significance as kidnapping [independent from the completion of another substantive

offense] is one of law. It is, of course, the function of

the jury to find the relevant facts, including, ultimately,

whether a crime was committed with the intent necessary to qualify as kidnapping, namely, the specific intent

to prevent the victim’s liberation and not simply to

perpetrate the underlying crime. . . . At the same time,

it is beyond cavil that it is the role of the judiciary to

interpret the relevant statutes and to define, as a matter

of law, what type of conduct constitutes kidnapping

according to those statutes. . . . As [our Supreme

Court] explained in Salamon, a necessary corollary is

that it falls to the courts to define the intent element

of the crime of kidnapping . . . to delineate the ways

in which kidnapping differs from coterminous crimes

such as robbery and sexual assault . . . and to specify

the factors that are relevant to that analysis . . . in

light of our understanding of the legislative history of

the kidnapping statutes and the policy objectives that

animated their modern revision.’’ (Citations omitted.)

Banks v. Commissioner of Correction, 339 Conn. 1, 34,

259 A.3d 1082 (2021).

In Salamon, our Supreme Court ‘‘reconsidered [its]

long-standing interpretation of our kidnapping statutes,

General Statutes §§ 53a-91 through 53a-94a. . . . [T]he

defendant [in Salamon] had assaulted the victim at a

train station late at night . . . and ultimately was

charged with kidnapping in the second degree in violation of . . . § 53a-94, unlawful restraint in the first

degree, and risk of injury to a child. . . . At trial, [the

defendant] requested a jury instruction that, if the jury

found that the restraint had been incidental to the
assault, then the jury must [find him not guilty] of the

charge of kidnapping. . . . [Consistent with established precedent of our Supreme Court] [t]he trial court

declined to give that instruction [and the defendant

was convicted of kidnapping in the second degree in

addition to the two other crimes]. . . .

‘‘[The Supreme Court] . . . ultimately concluded

that [o]ur legislature . . . intended to exclude from the

scope of the more serious crime of kidnapping and its

accompanying severe penalties those confinements or

movements of a victim that are merely incidental to

[or] necessary for the commission of another crime

against that victim.3 Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant

must intend to prevent the victim’s liberation for a

longer period of time or to a greater degree than that

which is necessary to commit the other crime’’; (footnote added; internal quotation marks omitted) id.,

11–12; or than that which was ‘‘merely incidental to

that underlying crime.’’ Id., 4.

Our Supreme Court thus explained in Salamon that

‘‘a defendant may be convicted of both kidnapping and

another substantive crime if, at any time prior to, during,

or after the commission of that other crime, the victim

is moved or confined in a way that had independent

criminal significance, that is, the victim was restrained

to an extent exceeding that which was [incidental to or]

necessary to accomplish or complete the other crime.

Whether the movement or confinement of the victim

is merely incidental to [or] necessary for another crime

will depend on the particular facts and circumstances of

each case. Consequently, when the evidence reasonably

supports a finding that the restraint was not merely

incidental to the commission of some other, separate

crime, the ultimate factual determination must be made

by the jury. For purposes of making that determination,

the jury should be instructed to consider . . . various

relevant factors . . . .’’ (Internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 460, 988 A.2d 167

(2009); see also State v. Salamon, supra, 287 Conn. 542.

Since its decision in Salamon, our Supreme Court

has reiterated that, ‘‘when a criminal defendant is

charged with kidnapping in conjunction with another

underlying crime . . . the jury must be’’ provided a

Salamon instruction. Banks v. Commissioner of Correction, supra, 339 Conn. 4; see also State v. Fields, 302

Conn. 236, 247–48, 24 A.3d 1243 (2011). ‘‘The failure to

charge in accordance with Salamon is viewed as an

omission of an essential element . . . and thus gives

rise to constitutional error’’; (internal quotation marks

omitted) White v. Commissioner of Correction, supra,

170 Conn. App. 428; that is subject to harmless error

analysis. Banks v. Commissioner of Correction,

supra, 29–30.

In the present case, the defendant was charged with
kidnapping in conjunction with larceny arising from his

taking the Jeep with M, L, and O inside. Accordingly,

the court was required, as the state concedes, to instruct

the jury in accordance with Salamon and its progeny.

See id., 4; State v. Fields, supra, 302 Conn. 247. No such

instruction, however, was given. Because the court’s

failure to instruct the jury on an essential element of

the offense is constitutional error, the burden shifts

to the state to demonstrate that the court’s failure to

instruct the jury was harmless beyond a reasonable

doubt. See Banks v. Commissioner of Correction,

supra, 339 Conn. 15; see also Hinds v. Commissioner

of Correction, 321 Conn. 56, 78, 136 A.3d 596 (2016)

(‘‘this standard imposes the burden of persuasion exclusively on the state’’).

‘‘Under Neder [v. United States, 527 U.S. 1, 15, 119

S. Ct. 1827, 144 L. Ed. 2d 35 (1999)]4

. . . the state

must demonstrate that a trial error [of constitutional

magnitude] was harmless beyond a reasonable doubt.’’

(Citation omitted; footnote added.) Banks v. Commissioner of Correction, supra, 339 Conn. 15; see also

Neder v. United States, supra, 15 (articulating test ‘‘for

determining whether a constitutional error is harmless’’ (emphasis added)). ‘‘[T]he test for determining

whether a constitutional [error] is harmless . . . is

whether it appears beyond a reasonable doubt that the

[error] complained of did not contribute to the verdict

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

Hampton, supra, 293 Conn. 463. Put differently, we

evaluate ‘‘whether there is a reasonable possibility that

a properly instructed jury would reach a different

result.’’ State v. Flores, 301 Conn. 77, 87, 17 A.3d

1025 (2011).

In the present case, the jury, properly instructed,

would have been tasked with determining whether the

defendant’s restraint of the victims was incidental to

or necessary for his completion of the larceny. See

State v. Hampton, supra, 293 Conn. 460. To make this

determination, the jury should have been instructed to

consider a series of factors laid out by our Supreme

Court in Salamon, namely, ‘‘(1) the nature and duration

of the victim’s movement or confinement, (2) whether

that movement or confinement occurred during the

commission of the separate offense, (3) whether the

restraint was inherent in the nature of the separate

offense, (4) whether the restraint prevented the victim

from summoning assistance, (5) whether the restraint

reduced the perpetrator’s risk of detection, and (6)

whether the restraint created a significant danger or

increased the victim’s risk of harm independent of that

posed by the separate offense.’’Banks v.Commissioner

of Correction, supra, 339 Conn. 42; see also State v.

Salamon, supra, 287 Conn. 548.

On the basis of our review of the record, we conclude

that the court’s failure to provide an incidental restraint
instruction was harmless because the state has persuaded us that there is no reasonable possibility that

the jury, properly instructed, would have reached a

different result concerning whether the defendant’s

restraint of the victims was incidental to or necessary

to complete the larceny. In so concluding, we consider

the various relevant factors set forth in Salamon;

5

see

White v. Commissioner of Correction, supra, 170 Conn.

App. 429; and acknowledge that, ‘‘[a]lthough the relative

importance of the various factors will vary depending

on the context, [our Supreme Court] ha[s] made clear

that the touchstone in any Salamon case, in assessing

whether conduct associated with [another substantive

offense] has independent criminal significance as a kidnapping, is the intent of the offender.’’ Banks v. Commissioner of Correction, supra, 339 Conn. 43.

With regard to the first relevant factor, the nature

and duration of the victims’ movement or confinement,

the state argues that the nature of the defendant’s confinement of the victims in a moving vehicle and the

distance the defendant moved the victims indicates that

the restraint was neither incidental to nor necessary for

his completion of the larceny. The defendant disagrees,

arguing that this factor weighs in his favor because the

larceny and the alleged kidnappings commenced at the

same time, the defendant did not harm or threaten to

harm the victims while he drove them, and the victims

were in the vehicle for no more than ten minutes.

‘‘[T]here are no minimum time or distance requirements to establish a restraint’’ within the context of

kidnapping. State v. Winot, 294 Conn. 753, 767, 988 A.2d

188 (2010). Nonetheless, our Supreme Court, in Hinds,

‘‘attempted to categorize various Salamon incidental

restraint cases with differing degrees of confinement

or movement’’; White v. Commissioner of Correction,

supra, 170 Conn. App. 430; and noted that ‘‘an important

facet of cases where the trial court has failed to give

a Salamon instruction and that impropriety on appellate

review has been deemed harmless error is that longer

periods of restraint or greater degrees of movement

demarcate separate offenses. . . . [M]ultiple offenses

[like kidnapping and another substantive crime] are

more readily distinguishable—and, consequently, more

likely to render the absence of a Salamon instruction

harmless—when the offenses are separated by greater

time spans, or by more movement or restriction of

movement.

‘‘Conversely, multiple offenses occurring in a much

shorter or more compressed time span make the same

determination more difficult and, therefore, more likely

to necessitate submission to a jury for it to make its

factual determinations regarding whether the restraint

is merely incidental to another, separate crime.’’ (Citations omitted; internal quotation marks omitted.) Hinds

v. Commissioner of Correction, supra, 321 Conn. 92–93.
For the purpose of evaluating harm in light of this factor,

our Supreme Court in Hinds distinguished cases in

which a defendant restrained the victims for a longer

period of time and confined or moved the victims to a

greater degree; State v. Hampton, supra, 293 Conn. 456,

463–64 (defendant confined victim for approximately

three hours before committing substantive crime); State

v. Jordan, 129 Conn. App. 215, 222–23, 19 A.3d 241

(defendant committed substantive crime during fortyfive minute period and employed restraint significantly

greater than necessary to commit substantive crime),

cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011); State

v. Strong, 122 Conn. App. 131, 143, 999 A.2d 765 (defendant restrained victim for more than one hour in multiple locations after making threats), cert. denied, 298

Conn. 907, 3 A.3d 73 (2010); State v. Nelson, 118 Conn.

App. 831, 860–62, 986 A.2d 311 (defendant assaulted

victim, then confined victim for several hours in several

locations), cert. denied, 295 Conn. 911, 989 A.2d 1074

(2010); from cases in which a defendant restrained the

victims for a shorter period of time and subjected the

victims to limited confinement or movement, as in State

v. Flores, supra, 301 Conn. 81–82, 89 (defendant’s robbery and confinement of victim lasted between five

and twenty minutes and remained limited to singular

location), and State v. Thompson, 118 Conn. App. 140,

144, 162, 983 A.2d 20 (2009) (defendant confined victim

and committed other substantive crime within fifteen

to twenty minute span and subjected victim to limited

movement), cert. denied, 294 Conn. 932, 986 A.2d 1057

(2010). See Hinds v. Commissioner of Correction,

supra, 92–93. The Supreme Court concluded that,

‘‘where kidnapping and multiple offenses occur closer

in time to one another, it becomes more difficult to

distinguish the confinement or restraint associated with

the kidnapping from another substantive crime.’’ (Internal quotation marks omitted.) Id., 93.

As we have noted, approximately ten minutes passed

between when the defendant gained control of the Jeep

at the gas station and when the defendant allowed the

victims to exit the vehicle, indicating that the victims

were restrained for ten minutes. Although, on its face,

a ten minute period of confinement appears to fall

within the latter line of cases recognized by our

Supreme Court, rather than the former; see id., 91–93;

we note that, for the commission of the larceny, the

defendant only needed to, ‘‘with intent to deprive

another of property . . . wrongfully [take], [obtain] or

[withhold] [the Jeep] from [its] owner. . . .’’ General

Statutes § 53a-119; see also General Statutes § 53a-123

(a) (1). The larceny statute under which the defendant

was convicted did not require that he continuously operate the vehicle for some specified amount of time after

taking it; the defendant could have stopped the vehicle

one block or two blocks away from the gas station to

release the victims without frustrating his commission
of the larceny.6 The degree to which the defendant

moved the restrained victims; see Hinds v. Commissioner of Correction, supra, 321 Conn. 92; further supports the state’s position. Although, as the defendant

contends, the kidnappings and the larceny commenced

at the same time, and, by implication, at the same location, he transported the victims on Route 10 in Southington, onto an interstate highway, and on the highway

some distance. Put differently, the defendant moved

the victims to multiple locations while they were confined to the vehicle. Thus, we conclude that the first

factor weighs in favor of the state.

We next address the second relevant Salamon factor,

that is, whether the movement or confinement occurred

during the commission of the separate offense. The

state argues that this factor weighs in its favor because

the defendant completed the larceny before he confined

and moved the victims, which the state asserts substantiated the kidnapping charges. The state specifically

argues that, once the defendant took possession of the

Jeep with the intent to deprive the true owner of it

permanently, he successfully satisfied each element of

larceny. See State v. Hayward, 169 Conn. App. 764,

772–73, 153 A.3d 1 (2016), cert. denied, 324 Conn. 916,

154 A.3d 527 (2017). Accordingly, it is the state’s position that any additional action the defendant took, specifically, confining and moving the victims for the ten

minutes that followed his gaining control of the Jeep

at the gas station, was not necessary to accomplish the

already completed offense of larceny. The defendant

contends that he restrained the victims while committing the larceny because he took control of the Jeep

while the victims were already inside and fled the scene

with the victims in the vehicle.

Our Supreme Court’s analyses in Banks and Bell v.

Commissioner of Correction, 339 Conn. 79, 259 A.3d

1073 (2021), guide our analysis in the present case. In

Banks, the petitioner was convicted of multiple counts

of kidnapping in connection with the robberies of two

retail stores. Banks v. Commissioner of Correction,

supra, 339 Conn. 5, 10. During both robberies, the petitioner took money from the stores’ cash registers while

brandishing a gun, then subsequently moved and confined the store employees in the stores’ bathrooms

before he fled the scenes. Id., 5–9. At the defendant’s

criminal trial, the court failed to provide a Salamon

instruction to the jury, and, on review,7

the habeas court

concluded that the instructional error was harmless

because the conduct that gave rise to the kidnapping

convictions occurred after the petitioner had completed

the robberies. Id., 13.

Our Supreme Court, evaluating whether the trial

court’s failure to provide an incidental restraint instruction constituted harmless error under Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L. Ed.
2d 353 (1993), analyzed whether the restraint occurred

during the commission of the robberies. Banks v. Commissioner of Correction, supra, 339 Conn. 34, 39–40,

42–43. Our Supreme Court noted that the case before

it presented ‘‘a distinct and novel scenario—asportation

and confinement to facilitate a perpetrator’s escape

following the completion of a robbery’’; id., 35; and

characterized the case as ‘‘categorically distinct from

. . . [its] prior Salamon cases insofar as the petitioner

indisputably had accomplished the criminal objective

of his underlying crimes prior to the commencement

of the alleged kidnapping.’’ Id., 39. Accordingly, our

Supreme Court concluded, the robbery had been completed once the petitioner took the cash, not after he

fled the scene. See id.

Our Supreme Court further determined: ‘‘Under such

circumstances, there simply is no concern that the

intent of the legislature will be frustrated by prosecuting

a defendant for kidnapping solely on the basis of the

restraint inherent in or necessary to accomplish the

underlying crime. Many if not most robbers choose to

leave the scene immediately upon obtaining the fruits

of their crime. . . . [A] perpetrator’s choice to remain

at the crime scene and further restrict a victim’s liberty

after having robbed him or her manifests independent,

criminal significance.’’ Id. Because the petitioner confined the victims after he had taken the cash, his

restraint of the victims did not occur during the commission of the separate offense. See id., 43 (‘‘[t]he [kidnapping] conduct at issue occurred after the objective of

the robbery had been completed’’). In Bell, our Supreme

Court summarized its holding inBanks, stating: ‘‘[W]hen

it is clear that a perpetrator forcibly moved and

restrained his victims after having taken their property,

for the apparent purpose of escaping undetected and

unhindered from the scene of the robbery, a reviewing

court typically may conclude as a matter of law that

such conduct bears independent criminal significance

and is not merely incidental to the underlying robbery.’’

(Emphasis altered.) Bell v. Commissioner of Correction, supra, 339 Conn. 92.

In Bell, the petitioner was convicted of two counts

of kidnapping in connection with the robberies of two

restaurants. Id., 83, 85. During the first robbery, the

petitioner, after stating that he had a gun, instructed a

restaurant employee to open the restaurant’s safe. Id.,

83. While he looted the safe, he confined the employee

in the walk-in refrigerator of the restaurant.8

Id., 83, 93.

After looting the safe, he required that the employee

remain confined in the refrigerator for a period of time.

Id., 83–84. During the second robbery, the petitioner,

while appearing to brandish a gun, instructed a restaurant employee to open the restaurant’s safe and, before

extracting money from the safe, instructed her to get

into the restaurant’s walk-in cooler. Id., 84. The petitioner told the employee that he would ‘‘let [her] know
when he was finished and when it was safe to come

out’’ and, after waiting several minutes, the employee

exited the refrigerator. (Internal quotation marks omitted.) Id. At the petitioner’s criminal trial, which was

held six years prior to the decision in Salamon, the

court failed to provide a Salamon instruction to the

jury. Id., 83, 86. On review, after our Supreme Court

determined that Salamon applied retroactively, the

habeas court concluded that the instructional error was

harmless because the petitioner’s confinement of the

victims was not inherent in the robberies themselves

and, by contrast, the petitioner confined the victims to

reduce the risk that he would be detected. Id., 87–88.

Like in Banks, our Supreme Court in Bell evaluated

whether the court’s failure to provide an incidental

restraint instruction constituted harmless error and specifically considered whether the restraint occurred during the commission of the robberies. Id., 92–93. Our

Supreme Court stated that, ‘‘[u]nlike in Banks, the jury

in the present case reasonably could have found that

the petitioner [confined each employee] . . . not to

facilitate his postrobbery escape but, rather, to incapacitate them while he completed the robberies. The petitioner informed the police that he took the money from

each safe while the victims were restrained . . . . [The

employee of the second restaurant that the petitioner

robbed] seemed to confirm that account of events, indicating that the petitioner ordered her into the [cooler]

immediately after she had opened the safe, and that he

stated that he would release her when he was finished,

presumably meaning after he was finished emptying

the safe. Although [the employee of the first restaurant

that the petitioner robbed] testified that the petitioner

had ordered her into the refrigerator after he finished

looting the . . . safe, she did not directly witness him

taking the contents of the safe, and the jury might well

have credited his statement that, consistent with his

modus operandi in the [second] robbery, he waited to

empty the safe until [the employee] was incapacitated

so he could do so unobstructed. At the very least,

defense counsel should have had the opportunity to

make such an argument.’’ (Internal quotation marks

omitted.) Id., 92–93. Thus, the Supreme Court concluded, ‘‘[i]f a victim is restrained in the midst of a

robbery, rather than after the victim’s property has

been taken, then it rarely will be possible to say, as a

matter of law, that the restraint bore independent criminal significance and was not merely incidental to the

completion of the underlying crime.’’ (Emphasis

added.) Id., 93.

The present case presents a situation that does not

fall squarely into either of the categories described in

Banks or Bell. In this case, the defendant did not restrain

the victims in the middle of the larceny or after having

taken the Jeep; see id.; but, instead, he took possession

of the Jeep at approximately the same time he first
restrained the victims—when he got into the Jeep and

drove it out of the parking lot of the gas station. Thus,

unlike in Banks or Bell, the larceny and the initial

restraint of the victims appear to have taken place at

approximately the same time. We conclude, however,

that, because the defendant took the Jeep and initially

restrained the victims almost simultaneously, the second factor weighs in favor of the defendant.

We next address the third relevant Salamon factor,

namely, whether the restraint was inherent in the nature

of the other substantive offense. The state argues that

the restraint of the victims was not inherent in the

larceny of the Jeep and, accordingly, the restraint was

neither incidental to nor necessary for the commission

of the larceny. The state contends that the defendant

was consciously aware of the victims’ presence in the

car, and he nonetheless confined and moved the victims

for ten minutes to facilitate his escape from the scene

without being apprehended by the police. The defendant argues that the restraint was inherent in the nature

of the larceny because the defendant could not have

taken the Jeep and escaped the scene without

restraining the victims.

As this court explained in White, ‘‘our Supreme Court

[in Fields] expressly rejected the notion that the rationale of Salamon is not implicated merely because

restraint of the victim is not an essential element of the

other substantive offense charged along with kidnapping.’’ White v. Commissioner of Correction, supra, 170

Conn. App. 436. ‘‘On the contrary, restraint may be used

in the commission of the underlying offense . . . even

though it is not an element of that offense. Thus,

depending on the facts of the underlying crime, the fact

finder reasonably might conclude that the kidnapping

was merely incidental to the underlying crime irrespective of whether that crime requires the use of restraint.’’

State v. Fields, supra, 302 Conn. 248. Because restraint

is not an essential element of larceny in the second

degree; see General Statutes §§ 53a-119 and 53a-123 (a)

(1); we consider ‘‘whether restraint was inherent in the

nature of the [larceny] in this particular case.’’ White

v. Commissioner of Correction, supra, 436.

In light of our review of the record, we conclude that

the defendant’s restraint of the victims was not inherent

in the nature of the larceny of the Jeep. After exiting

the parking lot of the gas station at a high rate of speed,

the defendant drove away from the scene erratically

for ten minutes. The defendant continued driving erratically throughout the duration of the drive, despite M’s

pleas that the defendant not hurt her grandchildren,

and confiscated M’s cell phone, preventing her from

calling for assistance. He did not stop at any point to

let the victims free, despite acknowledging their presence in the vehicle by stating that he would not hurt

them, until he had merged onto and driven some dis-
tance on the highway.

To the extent the defendant contends that, had he

allowed the victims to exit the vehicle at the scene or

shortly thereafter, he could not have successfully taken

the Jeep because he would have been apprehended by

the police, we note that the mere fact that the restraint

facilitated his commission of the larceny does not mean

that the restraint was incidental to or necessary for

the completion of the larceny. Although the defendant

escaped from the scene without delay because he did

not stop to let the victims out of the Jeep at the gas

station or shortly thereafter, his taking of the Jeep

would not have been frustrated had he released the

victims at any point immediately after taking the Jeep.

See Banks v. Commissioner of Correction, supra, 339

Conn. 40–41 (‘‘There is nothing specific to—let alone

inherent in—the crime of robbery about forcing someone at gunpoint to the back of a store and restraining

them in a bathroom or cooler. That conduct could just

as well follow, and facilitate the offender’s escape from,

a physical or sexual assault, or other crime. The purpose

is to escape unhindered from a crime scene—which,

presumably, is a goal of most criminals . . . .’’). In

other words, the defendant could have stolen the vehicle without restraining the victims for approximately

ten minutes. The fact that he was more likely to be

apprehended by the police at the gas station if he had

permitted the victims to get out of the car immediately,

or at any point shortly thereafter, does not compel a

conclusion that the victims’ restraint was incidental to

or necessary for the commission of the larceny. Thus,

we conclude that the third factor weighs in favor of

the state.

With regard to the fourth relevant factor, whether

the restraint prevented the victim from summoning

assistance, the state argues that the defendant’s

restraint of the victims in a moving vehicle prevented

them from exiting the vehicle to summon assistance.

The state relies on the fact that the defendant withheld

M’s cell phone from her, further preventing her from

contacting assistance while inside of the vehicle. The

defendant argues that, because he released the victims

in a place where they easily could summon help—on

the side of a highway—his restraint of the victims did

not prevent them from summoning assistance.

As we have explained, the defendant restrained the

victims in a moving vehicle, which he operated in an

erratic manner and at a high rate of speed, in Southington and on the interstate highway. The two minor

victims were strapped into their booster seats, such

that they could not escape without being unstrapped,

and M could not exit the vehicle to summon assistance

without opening the door of a moving car. Only after

the defendant released the victims could M flag down a

passerby to summon assistance. Further, the defendant
confiscated M’s cell phone and did not return it to her,

even after he let her exit the vehicle. Accordingly, we

conclude that the fourth factor weighs in favor of the

state.

With respect to the fifth relevant factor, whether the

restraint reduced the defendant’s risk of detection, the

state argues that the defendant’s restraint of the victims

reduced his risk of detection because the defendant

confined the victims inside of a moving vehicle, prevented M from calling the police to report the defendant’s location, and left the victims on the side of a

highway, rather than in a place of safety, so he could

drive away without being detected. The defendant

insists that he did not hide the victims. His eventual

release of the victims, the defendant contends, in fact

increased his risk of detection because the victims were

able to contact the police once he released them.

As we explained in our analysis of the fourth relevant

Salamon factor, the defendant transported the victims

in a fast-moving vehicle and withheld M’s cell phone,

which prevented the victims from summoning assistance. Likewise, the defendant’s transportation of the

victims in a fast-moving vehicle and the withholding of

M’s cell phone prevented the victims from alerting the

police to the defendant’s location by exiting the vehicle

or by calling for help. Moreover, as the defendant argued

in his brief and as we noted in our analysis of the third

relevant Salamon factor, because the defendant did

not stop to free the victims at or near the scene, the

defendant fled the scene unhindered. Although the

defendant freed the victims in public—on a highway—

he did not release the victims until he had driven away

from the gas station for ten minutes, and he released

the victims on the side of the highway, instructing them

to exit quickly before he continued driving on the highway. The fifth factor, thus, weighs in the state’s favor.

Finally, we address the sixth relevant Salamon factor,

namely, whether the restraint created a significant danger or increased the victims’ risk of harm independent

of that posed by the separate offense. The state argues

that the defendant’s erratic driving and decision to leave

the victims on the side of a highway exposed them to

significant danger and increased their risk of harm,

independent of that posed by the defendant simply taking the Jeep. The state also relies on the fear experienced by M, who fearfully handed her cell phone over

to the defendant, and the grandchildren, one of whom

was crying during the incident. The defendant contends

that his restraint of the victims did not create a significant danger because the victims remained secured in

their seats throughout the drive and that the defendant

neither harmed nor threatened to harm them at any

point during the period of confinement.

To start, we note that the defendant’s restraint of the

victims was indeed ‘‘especially dangerous’’; White v.
Commissioner of Correction, 170 Conn. App. 438; even

though there was no evidence presented to suggest that

the defendant physically assaulted the victims. Nonetheless, the defendant confined the victims within a

moving vehicle, which he operated in an erratic manner

and at a high rate of speed, for ten minutes in order to

evade arrest by the police. The defendant’s attempt to

elude the police by driving erratically and at high speeds

posed a risk of danger to the victims. Had the victims

been outside of the Jeep, as was W, when the defendant

took it at the gas station, they would not have been

subjected to any risk of harm presented by the defendant’s erratic driving. Further, as we have explained,

the defendant eventually released the victims from the

vehicle onto the side of the highway, without exiting

the highway, and refused to return M’s cell phone to

her before driving away. The defendant’s decision to

leave the victims on the side of an interstate highway,

in and of itself, posed a risk of danger to which they

otherwise would not have been exposed, namely, the

risk that they could have been injured by a passing car.

Further, as our Supreme Court has explained, ‘‘the

distinct danger that is relevant to the question of

whether criminal conduct bears independent significance as kidnapping need not be physical danger. . . .

Criminal conduct that inspires distinct fears or has a

uniquely harmful psychological impact on the victim

also qualifies.’’ (Citation omitted.) Banks v. Commissioner of Correction, supra, 339 Conn. 46. In the present

case, it is clear that the defendant’s confinement and

movement of the victims inspired distinct fear in them.

While the defendant erratically operated the Jeep, M

had to hold onto various parts of its interior, exhibiting

the fear she experienced while confined within the car.

When the defendant asked M whether she had a cell

phone, M initially lied to him and stated that she did

not have one, but she eventually surrendered her cell

phone to him out of fear that the phone may ring. She

additionally pleaded with the defendant not to harm

her grandchildren and expressed that she was worried

about them, reflecting her fear that he may harm them.

Likewise, one of M’s grandchildren was crying while in

the Jeep. During the ride and once the victims were

released, M attempted to calm both of her grandchildren, reflecting the distinct fear they experienced as a

result of their restraint. In sum, therefore, we conclude

that the sixth factor weighs in the state’s favor.

Balancing the foregoing considerations,9 we conclude

that the state has persuaded us beyond a reasonable

doubt that there is no reasonable possibility that the

jury, properly instructed, would have reached a different result with respect to whether the defendant

restrained the victims ‘‘with the intent necessary to

qualify as kidnapping . . . and not simply to perpetrate

the underlying’’ larceny. Id., 34. We therefore conclude

that the defendant cannot prevail on this claim.
II

The defendant next claims that there was insufficient

evidence to support his conviction of three counts of

kidnapping in the second degree.10 With respect to this

claim, the defendant makes two related arguments.

First, the defendant asserts that, on the basis of the

evidence presented at trial, no reasonable jury could

determine that the state had proven beyond a reasonable doubt that he intended to abduct, or prevent the

liberation of, the victims beyond that which was incidental or necessary to commit the larceny of the Jeep.

Second, the defendant argues that no reasonable jury

could determine that the state had proven beyond a

reasonable doubt that he used or threatened to use

physical force or intimidation to restrain the victims.

We are not persuaded.

We begin our analysis by setting forth the well established legal principles for assessing an insufficiency of

the evidence claim. ‘‘In reviewing the sufficiency of the

evidence to support a criminal conviction we apply a

[two part] test.’’ (Internal quotation marks omitted.)

State v. Shin, 193 Conn. App. 348, 357, 219 A.3d 432,

cert. denied, 333 Conn. 943, 219 A.3d 374 (2019). ‘‘[W]e

first must construe the evidence in the light most favorable to sustaining the verdict . . . .’’ State v. Rhodes,

335 Conn. 226, 229, 249 A.3d 683 (2020). ‘‘[E]stablished

case law commands us to review claims of evidentiary

insufficiency in light of all of the evidence [adduced at

trial]. . . . In other words, we review the sufficiency

of the evidence as the case was tried . . . . Accordingly, we have traditionally tested claims of evidentiary

insufficiency by reviewing no less than, and no more

than, the evidence introduced at trial.’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Petersen, 196 Conn. App. 646, 656, 230 A.3d

696, cert. denied, 335 Conn. 921, 232 A.3d 1104 (2020).

Second, we must ‘‘determine whether, on the basis

of those facts and the inferences reasonably drawn from

them, the jury reasonably could have concluded that

the cumulative force of the evidence established guilt

beyond a reasonable doubt. . . . On appeal, we do not

ask whether there is a reasonable view of the evidence

that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable

view of the evidence that supports the [jury’s] verdict

of guilty.’’ (Citation omitted; internal quotation marks

omitted.) State v. Rhodes, supra, 335 Conn. 229. Put

differently, ‘‘before this court may overturn a jury verdict for insufficient evidence, it must conclude that no

reasonable jury could arrive at the conclusion the jury

did.’’ (Internal quotation marks omitted.) Id., 233.

Accordingly, ‘‘[a] party challenging the validity of the

jury’s verdict on grounds that there was insufficient

evidence to support such a result carries a difficult

burden.’’ (Internal quotation marks omitted.) Id.
‘‘Although the jury must find every element proven

beyond a reasonable doubt in order to find the defendant guilty of the charged offense . . . each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt.’’ (Internal quotation marks omitted.) Id. The jury, ‘‘[i]n evaluating evidence . . . is not required to accept as dispositive those inferences that are consistent with the

defendant’s innocence. . . . The [jury] 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. Shin, supra,

193 Conn. App. 358. ‘‘Because [t]he only kind of an

inference recognized by the law is a reasonable one

[however] . . . any such inference cannot be based on

possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be

rational and founded upon the evidence.’’ (Internal quotation marks omitted.) State v. Ervin B., 202 Conn. App.

1, 6, 243 A.3d 799 (2020).

In light of the foregoing legal principles, we turn to

the sufficiency of the evidence as a whole, beginning

with the elements of the offense for which the defendant

was charged. Section 53a-94 provides in relevant part:

‘‘(a) A person is guilty of kidnapping in the second

degree when he abducts another person. . . .’’ Section

53a-91 (2) defines ‘‘ ‘[a]bduct’ ’’ to mean, in relevant

part, ‘‘to restrain a person with intent to prevent his

liberation by . . . (B) using or threatening to use physical force or intimidation.’’ Section 53a-91 (1) defines

‘‘ ‘[r]estrain’ ’’ to mean ‘‘to restrict a person’s movements intentionally and unlawfully in such a manner

as to interfere substantially with his liberty by moving

him from one place to another, or by confining him

either in the place where the restriction commences

or in a place to which he has been moved, without

consent. . . .’’

The defendant first argues that the evidence in the

record is insufficient to prove beyond a reasonable

doubt that he intended to prevent the victims’ liberation

beyond that which was incidental to or necessary for

the commission of the larceny of the Jeep. Specifically,

he argues that the evidence, namely, the testimony that

established that the victims were already in the vehicle

when the defendant arrived at the gas station, that the

defendant did not further restrain the victims, and that

the defendant told the victims that he would not harm

them, indicated that his restraint of the victims was

incidental to the larceny. The defendant also asserts

that he did not restrain, harm, or threaten the occupants

in any way beyond what was necessary to commit the

larceny. Because, in connection with our resolution of

the defendant’s first claim, we concluded that the

court’s failure to provide a Salamon instruction to the

jury was harmless error because there was no reason-
able possibility that a properly instructed jury would

find that the defendant’s restraint was incidental to or

necessary for his completion of the larceny, it necessarily follows that a reasonable view of the evidence supports the jury’s finding that the defendant intended to

prevent the victims’ liberation beyond that which was

incidental to or necessary to complete the larceny and,

consequently, the jury’s verdict of guilty.

The defendant also contends that no reasonable fact

finder could conclude that he used or threatened to use

force or intimidation to restrain the victims. Specifically, the defendant argues that there is no evidence

that he physically harmed or threatened to physically

harm the victims. The defendant asserts that he never

physically blocked M from exiting the Jeep before he

drove out of the parking lot of the gas station, nor did

he brandish a weapon or threaten M to prevent her

from exiting the vehicle. Further, the defendant asserts

that he did not use physical force to restrain L and O

because they were already strapped into their booster

seats when he entered the Jeep. In response, the state

argues that the defendant used physical force to restrain

the victims when he confined them in a moving vehicle

for ten minutes and failed to permit them to get out

of the car. The state notes that, during that time, M

surrendered her cell phone to the defendant out of fear.

Accordingly, the state contends, the jury reasonably

concluded that the defendant intimidated the victims

or, through his actions, implicitly threatened the use of

force against them.

A defendant who uses force or threatens to use force

‘‘coerc[es] or comp[els] [the victim] by an actual or

threatened act,’’ to acquiesce to the defendant’s

demand. (Internal quotation marks omitted.) State v.

Tucker, 226 Conn. 618, 650 n.37, 629 A.2d 1067 (1993).

This court has held that the jury, in evaluating whether

a defendant intended to restrain a victim by using

threats of force or intimidation, may consider the victim’s reasonable belief that, had she tried to escape

his confinement, the defendant may have used force

against her. See State v. Morlo M., 206 Conn. App. 660,

688–90, 261 A.3d 68, cert. denied, 339 Conn. 910, 261

A.3d 745 (2021); State v. Franko, 142 Conn. App. 451,

461, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d

30 (2013); see also State v. Wideman, 36 Conn. App.

190, 196, 650 A.2d 571 (1994) (‘‘[t]he state of mind of the

victim is a relevant consideration in’’ jury’s evaluation

of whether defendant restrained victim ‘‘by the threat of

force’’ (internal quotation marks omitted)), cert. denied,

232 Conn. 903, 653 A.2d 192 (1995). In State v. Myers,

129 Conn. App. 499, 513–14, 21 A.3d 499, cert. denied,

302 Conn. 918, 27 A.3d 370 (2011), for example, this

court, in affirming the jury’s determination that the

defendant had used the threat of force to restrain the

victim, relied on a victim’s testimony that she felt as if

she had ‘‘ ‘no choice’ ’’ other than to comply with the
defendant’s demand to get into a car.

The evidence admitted at trial in the present case,

and the reasonable inferences from that evidence that

the jury was permitted to draw, were more than sufficient to establish that the defendant used or threatened

to use force or intimidation to restrain the victims.

Contrary to the defendant’s contention that he did not

prevent M from exiting the Jeep, M testified that, to

enter the Jeep, the defendant opened the passenger

side door, next to where M was sitting, and climbed over

M to get into the driver’s seat. M and Ayotte testified

that the defendant drove out of the parking lot of the

gas station at a high rate of speed, and Ayotte’s body

camera footage documented that far less than one

minute passed between the defendant arriving at the

gas station in the minivan and exiting the gas station

in the Jeep. M’s grandchildren, L and O, were strapped

into their booster seats in the backseat. M additionally

testified that the defendant drove erratically and at a

high rate of speed, such that she had to hold onto the

Jeep’s interior, and that the defendant drove the Jeep

on the highway. From this evidence, the jury reasonably

could have inferred that the defendant used force to

prevent the victims from exiting the vehicle before he

began driving and while the vehicle was in motion.

Further, M testified, she expressed to the defendant

that she ‘‘just wanted [her grandchildren] to be safe,’’

regardless of what the defendant had done. Having

heard M’s pleas, the defendant nonetheless did not

allow the victims to exit the vehicle until after he had

driven for ten minutes in total, at which point he pulled

over on the side of the highway and instructed M to

quickly exit the vehicle. M testified that she was worried

about her grandchildren, one of whom was crying. M

also testified that the defendant had asked her whether

she had a cell phone and that she initially had lied to

the defendant by stating that she did not have one. M,

however, eventually surrendered her cell phone to the

defendant, out of fear that the phone may ring. The jury

reasonably could have inferred that M surrendered her

only channel of communication because she feared that

the defendant may have reacted by using force against

her or her grandchildren, had the phone rang. Viewing

the evidence in the light most favorable to sustaining

the verdict, the jury reasonably could have inferred that

the defendant intimidated or threatened to use force

to restrain the victims and that M reasonably believed

that, if she tried to escape her confinement, the defendant would use force against her or her grandchildren.

In sum, we are not persuaded that the evidence in

the present case was insufficient to prove that the defendant intended to prevent the victims’ liberation beyond

what was incidental to or necessary for the successful

completion of the larceny and that he used or threatened to use force or intimidation to restrain the victims.
We therefore conclude that there was sufficient evidence from which the jury reasonably could have found

the defendant guilty beyond a reasonable doubt of each

of the three counts of kidnapping in the second degree.

III

The defendant’s final claim on appeal is that the court

abused its discretion when it denied his requests to

have his leg shackles removed during the trial11 and

violated his constitutional right to due process by

requiring him to be shackled during the trial. Specifically, the defendant argues that the court’s denial of his

requests to remove his leg shackles without adequately

explaining why it denied the requests resulted in the

defendant being unfairly restrained, deprived him of

his right to a fair trial and undermined his presumption

of innocence.12 The state argues that the court provided

sufficient reasons to support its denial of the defendant’s requests and, more importantly, the defendant

failed to present evidence establishing that the shackles

were visible to the jury. Because we find that the defendant has failed to meet his burden of proving that his

leg shackles were visible to the jury, the defendant’s

claim necessarily fails.

The following additional procedural history is relevant to our resolution of this claim. On the first three

days of jury selection on September 11, 13 and 16, 2019,

the defendant requested that his handcuffs be removed,

and, on confirming with the judicial marshals that there

existed no security concern, the court granted each

request. The court noted on September 11 and 13, 2019,

that the defendant’s legs remained shackled and that

his leg shackles were not visible to the venirepeople.

On September 16, 2019, a judicial marshal characterized

the defendant’s behavior as ‘‘[g]reat.’’ On September 19,

2019, the court granted the defendant’s request that his

shackles be removed.13

The trial began on September 23, 2019. During a midtrial recess on the first day of trial, counsel for the

defendant requested in chambers that the defendant’s

leg shackles be removed. On the record, the court asked

the judicial marshals whether they had any safety or

behavioral concerns, and the judicial marshals

answered that the defendant had not presented any

issues. Accordingly, although the court noted that it

believed that his leg shackles were not visible to the

jury, the court granted the defendant’s request and

ordered that the leg shackles be removed. A judicial

marshal asked the court whether the defendant’s legs

should remain unshackled for the duration of the trial,

and the court clarified that it would reevaluate whether

to remove the defendant’s leg shackles on each day of

the proceedings, at the request of the defendant.

On September 24, 2019, and outside of the presence

of the jury, the defendant requested that his leg shackles
be removed. The court stated that, on the basis of its

conversations with the parties that morning, it anticipated that certain testimony the state planned to elicit

from one of its witnesses could produce an emotional

reaction from the defendant.14 The court noted that,

although it did not ‘‘have a crystal ball,’’ it would be

easier to prevent an emotional reaction than to remediate any consequences of one. Consequently, the court

denied the defendant’s request.

Counsel for the defendant expressed to the court that

the defendant was ‘‘concerned’’ that, on the previous

day, one of the jurors had seen the shackles. The court,

however, explained that, earlier that day, it had

instructed one of the judicial marshals to sit in various

chairs in the jury box, including in two chairs near the

counsel’s tables, to determine whether the leg shackles

were visible to any juror. The judicial marshal confirmed that the leg shackles were not visible from the

various seats in the jury box.

The trial resumed, and, on September 26, 2019, the

defense rested. The following day, before the commencement of closing arguments and jury instructions,

the defendant once again requested that his leg shackles

be removed. The court denied the defendant’s request,

providing as reasons for its decision that the defendant

would not ‘‘be moving around the courtroom’’ during

closing arguments and jury instructions, that his leg

shackles were not visible to the jury, and that he was

not wearing hand shackles.15

We begin by setting forth the legal principles that

govern our analysis of this claim, including the applicable standard of review. ‘‘[I]n reviewing a shackling

claim, our task is to determine whether the court’s

decision to employ restraints constituted a clear abuse

of discretion.’’ (Internal quotation marks omitted.) State

v. Brawley, 321 Conn. 583, 589, 137 A.3d 757 (2016).

‘‘Central to the right to a fair trial, guaranteed by the

[s]ixth and [f]ourteenth [a]mendments [to the United

States constitution], is the principle that one accused

of a crime is entitled to have his guilt or innocence

determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion,

indictment, continued custody, or other circumstances

not adduced as proof at trial.’’ (Internal quotation marks

omitted.) State v. Marcus H., 190 Conn. App. 332, 345,

210 A.3d 607, cert. denied, 332 Conn. 910, 211 A.3d 71,

cert. denied, U.S. , 140 S. Ct. 540, 205 L. Ed. 2d

343 (2019). ‘‘[C]ourts must be alert to factors that may

undermine the fairness of the fact-finding process. In

the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is

to be established by probative evidence and beyond a

reasonable doubt.’’ (Internal quotation marks omitted.)

State v. Woolcock, 201 Conn. 605, 613, 518 A.2d 1377

(1986). Thus, ‘‘[i]n order for a criminal defendant to
enjoy the maximum benefit of the presumption of innocence, our courts should make every reasonable effort

to present the defendant before the jury in a manner

that does not suggest, expressly or impliedly, that he

or she is a dangerous character whose guilt is a foregone

conclusion.’’ (Internal quotation marks omitted.) State

v. Webb, 238 Conn. 389, 455, 680 A.2d 147 (1996).

Accordingly, ‘‘[i]t is well established that, [a]s a general proposition, a criminal defendant has the right to

appear in court free from physical restraints. . . .

Grounded in the common law, this right evolved in

order to preserve the presumption favoring a criminal

defendant’s innocence, while eliminating any detrimental effects to the defendant that could result if he were

physically restrained in the courtroom. . . . The presumption of innocence, although not articulated in the

[c]onstitution, is a basic component of a fair trial under

our system of criminal justice.’’ (Internal quotation

marks omitted.) State v. Brawley, supra, 321 Conn. 587.

As this court explained in Marcus H., ‘‘the United States

Supreme Court [in Deck v. Missouri, 544 U.S. 622, 628,

125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005)] stated that

. . . [c]ourts and commentators share close to a consensus that, during the guilt phase of a trial, a criminal

defendant has a right to remain free of physical

restraints that are visible to the jury; [and] that the

right has a constitutional dimension . . . .’’ (Emphasis

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

Marcus H., supra, 190 Conn. App. 347.

‘‘Nonetheless, a defendant’s right to appear before

the jury unfettered is not absolute. . . . A trial court

may employ a reasonable means of restraint [on] a

defendant if, exercising its broad discretion in such

matters, the court finds that restraints are reasonably

necessary under the circumstances.’’ (Internal quotation marks omitted.) State v. Brawley, supra, 321 Conn.

587. For example, a defendant’s ‘‘right to remain free

of physical restraints that are visible to the jury . . .

may be overcome in a particular instance by essential

state interests such as physical security, escape prevention, or courtroom decorum.’’ (Emphasis omitted; internal quotation marks omitted.) State v. Marcus H., supra,

190 Conn. App. 347, quoting Deck v. Missouri, supra,

544 U.S. 628. Because ‘‘[a] trial judge has a duty to do

what may be necessary to prevent escape, to minimize

danger of harm to those attending trial as well as to

the general public, and to maintain decent order in the

courtroom . . . [s]hackles may properly be employed

in order to ensure the safe, reasonable and orderly

progress of trial.’’ (Citations omitted; internal quotation

marks omitted.) State v. Woolcock, supra, 201 Conn. 614.

‘‘Despite the breadth of [the court’s] discretion, however, [t]he law has long forbidden routine use of visible

shackles during the guilt phase . . . .’’ (Emphasis

added; internal quotation marks omitted.) State v.
Brawley, supra, 321 Conn. 587. ‘‘[T]he [United States

Supreme] [C]ourt held [in Deck v. Missouri, supra, 544

U.S. 629] that the [f]ifth and [f]ourteenth [a]mendments

prohibit the use of physical restraints visible to the jury

absent a trial court determination, in the exercise of

its discretion, that they are justified by a state interest

specific to a particular trial.’’ (Emphasis in original;

internal quotation marks omitted.) State v. Marcus H.,

supra, 190 Conn. App. 347.

Practice Book § 42-46 mandates in relevant part: ‘‘In

ordering the use of restraints or denying a request to

remove them, the judicial authority shall detail its reasons on the record outside the presence of the jury.

The nature and duration of the restraints employed

shall be those reasonably necessary under the circumstances. . . .’’ See also State v. Brawley, supra, 321

Conn. 589 (‘‘a trial court must ensure that its reasons

for ordering the use of restraints are detailed in the

record’’ (internal quotation marks omitted)). Although

a trial court is not mandated to conduct ‘‘an evidentiary

hearing concerning the necessity for restraints,’’ our

‘‘appellate review is greatly aided when a court develops

the record by conducting [such] an evidentiary hearing

. . . .’’ (Internal quotation marks omitted.) Id.

If ‘‘a court, without adequate justification, orders [a]

defendant to wear shackles that will be seen by the jury,

the defendant need not demonstrate actual prejudice

to make out a due process violation. The [s]tate must

prove beyond a reasonable doubt that the [shackling]

error complained of did not contribute to the verdict

obtained.’’ (Emphasis in original; internal quotation

marks omitted.) Id., 588–89. ‘‘The negative connotations

of restraints, nevertheless, are without significance

unless the fact of the restraints comes to the attention

of the jury.’’ (Internal quotation marks omitted.) State

v. Webb, supra, 238 Conn. 455. ‘‘[T]o establish that he

was deprived of his right to a fair trial, the defendant

. . . must provide evidence demonstrating that the jury

actually saw or otherwise was aware of his restraints.’’

State v. Brawley, supra, 321 Conn. 590–91. ‘‘The defendant bears the burden of showing that he has suffered

prejudice by establishing a factual record demonstrating that the members of the jury knew of the restraints.’’

(Internal quotation marks omitted.) Id., 588.

In light of the foregoing legal principles, we remind

courts to follow the prescriptions of Practice Book § 42-

46 and to articulate the reasons that support a court’s

decision to order the use of, or to deny a defendant’s

request to remove his, leg shackles, regardless of

whether the shackles are visible to the jury. See Practice

Book § 42-46. We also emphasize the constitutional

dimension inherent in a defendant’s right to remain free

of physical restraints that are visible to the jury during

the guilt phase of his trial. See State v. Marcus H.,

supra, 190 Conn. App. 347.
Turning to the present case, our review of the record

reveals no evidence to suggest that the jurors actually

saw or otherwise knew of the defendant’s leg shackles.

See State v. Brawley, supra, 321 Conn. 592. Although

defense counsel expressed to the trial court on one

occasion that the defendant was ‘‘concerned’’ that one

of the jurors had seen his leg shackles, the defendant

pointed to no evidence, neither to the court nor in his

brief to this court, to support that any juror could see the

shackles.16 By contrast, the court instructed a judicial

marshal to sit in various chairs in the jury box to assure

that the defendant’s leg shackles were not visible to

the jury. Because the defendant has failed to satisfy

his burden of demonstrating that members of the jury

actually saw or otherwise were aware of his restraints,

he has failed to establish that the court’s denial of his

requests deprived him of his right to a fair trial, and,

accordingly, his claim fails.17

The judgment is affirmed.

In this opinion the other judges concurred.

1 At some point prior to trial, Renaldi and the defendant were incarcerated

in the same correctional facility. Renaldi testified at trial that, during this

period of incarceration, the defendant asked him to recant his statement

identifying the defendant as the driver of the Jeep. Initially, Renaldi recanted

his statement, but he later executed a cooperation agreement under which

he agreed to testify at trial against the defendant.

2 The robbery charge of which the defendant was acquitted related to his

taking of the Jeep. During oral argument before this court, the state clarified

that it did not charge the defendant with any crimes related to the robbery

of the bank.

3

In previous Salamon cases, our Supreme Court and this court have used

a phrase that our Supreme Court refers to as Salamon’s ‘‘ ‘incidental and

necessary test’ ’’; Banks v. Commissioner of Correction, supra, 339 Conn.

50–51; that is, that ‘‘[o]ur legislature . . . intended to exclude from the

scope of the more serious crime of kidnapping and its accompanying severe

penalties those confinements or movements of a victim that are merely

incidental to and necessary for the commission of another crime against

that victim.’’ (Emphasis added.) State v. Salamon, supra, 287 Conn. 542. In

Banks, however, our Supreme Court acknowledged that Salamon’s ‘‘ ‘incidental and necessary’ ’’ language has created ‘‘confusion among litigants

and the lower courts’’ with respect to whether ‘‘a defendant [is] entitled to

Salamon’s protections if either prong of the [incidental and necessary] test

applies (if, for example, restraint of the victim was incidental to a sexual

assault but was not necessary to accomplish the assault).’’ (Emphasis

added.) Banks v. Commissioner of Correction, supra, 50–51.

In evaluating ‘‘whether the incidental and necessary [language in Salamon]

is to be understood as conjunctive or disjunctive’’; id., 51; our Supreme

Court stated that the terms ‘‘incidental to the underlying crime, necessary

to commit the underlying crime, inherent in the nature of the underlying

crime, and having no independent criminal significance . . . are merely

different ways of expressing the same concept, namely, whether the restraint

imposed evidenced an independent criminal intent or subjected the victims

to risks distinct from those necessarily entailed by or inherent in the underlying offenses.’’ (Citations omitted.) Id., 54–55. Our Supreme Court concluded

that ‘‘conduct that is wholly incidental to the commission of an underlying

crime cannot qualify as kidnapping, regardless of whether it is strictly

necessary to commit that crime.’’ (Emphasis added.) Id., 54. Accordingly,

the court confirmed that a defendant is entitled to Salamon’s protections

if his actions are either incidental to or necessary to commit the underlying

offense. See id., 51–54. Thus, throughout this opinion and in accordance

with our Supreme Court’s analysis in Banks, we use the phrase ‘‘incidental

to or necessary for,’’ as opposed to ‘‘incidental to and necessary for,’’ the

commission of another substantive crime.

4

In Banks, a habeas proceeding, our Supreme Court adopted the harm-
lessness standard laid out by the United States Supreme Court in Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993),

under which ‘‘the harmlessness of constitutional errors is assessed according

to whether the error had [a] substantial and injurious effect or influence in

determining the jury’s verdict. . . . The Brecht standard reserves the remedy of a new trial for errors resulting in actual prejudice, as distinguished

from errors giving rise to a mere possibility of harm.’’ (Citations omitted;

internal quotation marks omitted.) Banks v. Commissioner of Correction,

supra, 339 Conn. 15–16. The court, however, clarified that a reviewing court

assesses harm according to the Brecht standard only ‘‘on collateral review’’;

id., 18; including in state habeas proceedings. Id., 5, 19. By contrast, a court

assesses harm according to the Neder standard ‘‘on direct review,’’ including

in the direct appeal of a defendant’s conviction. Id., 17. Thus, ‘‘it is undisputed

that Neder is the proper standard’’ to assess harm on direct review of cases

involving an instructional error pursuant to Salamon. Id.

5 As this court noted in White, ‘‘[a]lthough we recognize that the factors

enumerated in Salamon are not intended to constitute an exhaustive list of

the possible factors that may be relevant in a given case, the parties have

not identified any other factors relevant to the present case, and, thus, we

limit our discussion to those factors expressly identified in Salamon.’’ White

v. Commissioner of Correction, supra, 170 Conn. App. 429 n.9.

6 As we explain in our evaluation of the third Salamon factor, the mere

fact that a defendant’s unlawful actions facilitated his commission of a

substantive crime does not necessarily mean that those actions were incidental to or necessary for the completion of that crime. In the present case,

the mere fact that the defendant’s confinement and movement of the victims

facilitated his avoidance of immediate arrest for the larceny because it

prevented him from being stopped by the police officers at the gas station

does not necessarily mean that the restraint was incidental to or necessary

for the successful completion of the larceny.

7 Although the defendant was convicted of the robberies in 1997, before

our Supreme Court decided Salamon in 2008; see Banks v. Commissioner

of Correction, supra, 339 Conn. 5, 11; ‘‘in Luurtsema v. Commissioner of

Correction, 299 Conn. 740, 12 A.3d 817 (2011), [our Supreme Court] held

that Salamon applies retroactively in habeas actions.’’ Bell v. Commissioner

of Correction, supra, 339 Conn. 87.

8 We acknowledge that, earlier in its opinion in Bell, our Supreme Court

stated that only ‘‘after the petitioner [had] finished looting the safe’’ did he

order the employee ‘‘to proceed into the refrigerator.’’ (Emphasis added;

internal quotation marks omitted.) Bell v. Commissioner of Correction,

supra, 339 Conn. 83. Later in its opinion, however, and as we note in this

opinion, the Supreme Court clarified that ‘‘[t]he petitioner informed the

police that [in each of the two robberies he committed] he took the money

from each safe while the victims were restrained in the refrigerators.’’

(Emphasis added.) Id., 93. The Supreme Court distinguished Bell from its

opinion in Banks by emphasizing that, in Bell, the jury reasonably could

have concluded that the petitioner confined the victims to incapacitate them

‘‘while he completed the robberies.’’ (Emphasis added.) Id. Because the

analysis of the Supreme Court hinges on this distinction, we rely on its

conclusion that ‘‘the jury . . . reasonably could have found that the petitioner forced [the employee of the first restaurant that the petitioner robbed]

. . . into the walk-in [refrigerator] not to facilitate his postrobbery escape

but, rather, to incapacitate [her] while he completed the robber[y].’’ Id., 92–

93.

9 To the extent that the second factor cuts in favor of the defendant, we

find that it does not trump the significance of the remaining factors that

weigh in the state’s favor.

10 This court and our Supreme Court, in previous cases, have addressed

claims of insufficient evidence before addressing other claims raised on

appeal because, ‘‘if the defendant prevails on [his] sufficiency claim, [he]

is entitled to a directed judgment of acquittal rather than to a new trial.’’

(Internal quotation marks omitted.) State v. Bagnaschi, 180 Conn. App. 835,

840 n.3, 184 A.3d 1234, cert. denied, 329 Conn. 912, 186 A.3d 1170 (2018);

see also State v. Calabrese, 279 Conn. 393, 401, 902 A.2d 1044 (2006). In the

present case, however, we address the defendant’s claims in the order in

which they were raised in his principal appellate brief because our resolution

of his first claim necessarily resolves one of the two arguments related to

insufficiency of the evidence that he raised in his second claim.

11 We note that, although the defendant argues in his brief that the court

improperly required his legs to be shackled ‘‘during most of his trial,’’ that
characterization is somewhat misleading. The court instructed the defendant

to request that his shackles be removed on a day-by-day basis. The defendant

requested the removal of his leg shackles on September 23, 2019, and the

court granted his request. The defendant did not request that his leg shackles

be removed on September 25 or 26, 2019, and, thus, it is unclear whether

the court would have allowed the leg shackles to be removed on those days

if asked.

12 The defendant also argues that the court’s denial of his requests to

remove his leg shackles inhibited his ability to assist in his defense, noting

that physical restraints generally may inhibit a defendant’s ability to interact

with counsel or affect his decision to testify. The defendant, however, neither

argued nor pointed us to any evidence in the record to suggest that his leg

shackles inhibited his ability to assist in his defense in this case.

13 The record, however, is unclear whether the defendant requested that

his hand shackles or his leg shackles be removed and, thus, whether the

court granted the removal of the defendant’s hand or leg shackles.

14 On September 24, 2019, the state called four witnesses to testify: Renaldi,

Sergeant Steve Cifone, Detective Adam Tillotson, and Officer Ryan Lair.

15 Specifically, the court stated: ‘‘[The defendant is] not going to be moving

around the courtroom. We’ve noted for the record previously that the shackles are not visible to the jury. He is not wearing hand shackles and this is,

I think for today’s purposes, the answer is no.’’

16 The defendant also argues that the jurors may have heard the defendant’s

leg shackles. He has not pointed us to anywhere in the record to support

this contention, and our review of the record has uncovered no evidence

from which to conclude that the jurors heard the defendant’s shackles at

any point during the trial. Thus, with respect to this argument, the defendant

has not met his burden of ‘‘demonstrating that the members of the jury

knew of the restraints.’’ (Internal quotation marks omitted.) State v. Brawley,

supra, 321 Conn. 588.

17 The defendant requests that we exercise our ‘‘supervisory authority’’ to

require trial courts to conduct an evidentiary hearing to evaluate the necessity for restraints and, should the court determine that restraints are necessary, to create a record detailing the steps it took to assure that the jury is not

aware of the restraints. The defendant argues that the protections afforded

to him, namely, by the rules of practice and in our Supreme Court’s decision

in Brawley, are insufficient to ensure to him a fair trial and that the state

should bear the burden of proving that the defendant’s shackles were not

visible to the jury.

As we have explained, our Supreme Court in Brawley specifically stated

that courts need not conduct an evidentiary hearing to evaluate the necessity

of restraints and that the burden lies with the defendant to provide evidence

demonstrating that the jury was aware of his restraints. State v. Brawley,

supra, 321 Conn. 589–91. ‘‘As an intermediate appellate court, we . . . are

bound by the decisions of our Supreme Court.’’ Nogueira v. Commissioner

of Correction, 168 Conn. App. 803, 805 n.1, 149 A.3d 983, cert. denied, 323

Conn. 949, 169 A.3d 792 (2016). Accordingly, we decline to create such a

rule because it is not the province of this panel to disregard binding authority

of our Supreme Court.