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*********************************************** 
ELIZABETH BURKE v. GREGORY MESNIAEFF

(SC 20062)

Robinson, C. J., and Palmer, D’Auria, Mullins,

Kahn, Ecker and Vertefeuille, Js.

Syllabus

The plaintiff sought to recover damages from the defendant, her former

husband, for, inter alia, intentional assault and battery in connection

with an incident that occurred during a tour of the defendant’s historic

house. The defendant had purchased the house while the parties were

still married and recorded the deed in his name only. Although the house

was not the parties’ primary marital residence, the plaintiff had spent

time there periodically and stored possessions there. At the time of the

incident, the parties were experiencing marital difficulties, and, after

the plaintiff learned that the defendant would be hosting a tour of the

house, she drove there to confront him. The tour was in progress when

the plaintiff arrived, and, after aggressively entering the house, she

became enraged and began screaming. The defendant and his guests

all were afraid of the plaintiff’s conduct and believed that it posed a

risk to their safety. The defendant asked the plaintiff to leave, and, when

she refused, he took her by the arm and forcibly escorted her out of

the house and down the driveway. The plaintiff resisted the defendant’s

escort, continued to shout at the defendant, and repeatedly attempted

to break loose of his hold in order to return to the house, but she was

unable to do so. The defendant raised a number of special defenses,

including justification and defense of others. At a charging conference,

the defendant clarified that his justification defense was essentially

based on a defense of premises defense and argued that his use of force

was justified because the plaintiff was trespassing on his property at

the time of the incident. In response, the plaintiff argued that trespass

was inapplicable because a spouse cannot, as a matter of law, commit

a criminal trespass on marital property in the absence of a court order

or pending divorce proceedings. Over the plaintiff’s objection, however,

the trial court included in its jury instruction on justification a charge

on the law of criminal trespass. The jury subsequently returned a verdict

for the defendant, finding that, although the defendant’s conduct constituted an intentional assault and battery, the plaintiff’s recovery was

barred by the special defenses of justification and defense of others.

The trial court rendered judgment for the defendant in accordance with

the verdict, and the plaintiff appealed to the Appellate Court, which

affirmed the trial court’s judgment. On the granting of certification,

the plaintiff appealed to this court. Held that, although the trial court

improperly charged the jury with respect to the defendant’s special

defense of justification by including a charge on the law of criminal

trespass, that instructional impropriety was harmless because the evidence was sufficient to support the jury’s independent finding with

respect to the special defense of defense of others:

1. The trial court improperly charged the jury on the law of criminal trespass

in its jury instruction on the defendant’s special defense of justification:

in determining whether a spouse has committed the crime of trespass,

the focus of the inquiry is on whether that spouse had a right or privilege

to enter or remain on the premises and not solely on whether the spouse

has an ownership interest in the property or whether the property is

marital in nature, and a spouse requesting a jury charge on criminal

trespass must demonstrate that both parties understood that the trespassing spouse had relinquished his or her possessory interest in the

property; in the present case, although the defendant had purchased

the house and recorded the deed in his name only, the record demonstrated that the plaintiff had a possessory interest in the property, as

she had a key to the house, went back and forth between the house

and the parties’ primary marital residence, and stored her possessions

at the house, her driver’s license listed the address of the house as her

residential address, the parties were not estranged, separated or in the

process of divorcing at the time of the incident, and the defendant’s
single request that the plaintiff leave the house, made during a marital

dispute, was insufficient to support a criminal trespass instruction.

2. The jury was misled by the trial court’s improper instruction on criminal

trespass and defense of premises in arriving at its finding on the defendant’s justification defense; the parties and the trial court treated that

defense as the functional equivalent of a defense of premises defense,

and the jury, by finding in favor of the defendant on his defense of

justification, necessarily found that the defendant’s use of force was

justified by the plaintiff’s commission or attempted commission of criminal trespass.

3. The trial court’s improper instruction on criminal trespass and defense

of premises did not affect the jury’s independent finding with respect

to the defense of others defense, and, therefore, the instructional error

was harmless; although defense of others is a type of justification

defense, the defendant pleaded and tried his case in a manner that

would have led the jury to believe that his defense of others defense

was separate and distinct from his justification defense, the trial court

likewise treated those defenses as separate and independent in both

the jury instructions and the verdict form and properly instructed the

jury on the elements of defense of others, that instruction did not include

any reference to criminal trespass or defense of premises, and the jury’s

finding with respect to the defense of others defense did not depend

implicitly or explicitly on whether the jury had found the plaintiff to be

a criminal trespasser and indicated that the jury properly distinguished

among the various defenses.

4. The evidence was sufficient to support the jury’s finding that the defendant

was acting in defense of others when he forcibly removed the plaintiff

from the house, as the jury reasonably could have found, on the basis

of the totality of the evidence and the reasonable inferences drawn

therefrom, that the defendant subjectively believed that the plaintiff

posed an imminent risk of physical harm to his guests and that the

defendant’s use of force under the circumstances was objectively reasonable: the record demonstrated that, when the plaintiff arrived at the

house, she was enraged, hysterical, and screaming at the defendant and

the guests, her conduct was aggressive and out of control, and, on the

basis of body language that the defendant had previously observed the

plaintiff exhibit during prior incidents, the defendant was terrified that

the plaintiff would harm the guests; moreover, the jury reasonably could

have inferred, on the basis of her yelling during the incident, that the

plaintiff believed that the defendant was having an extramarital affair

with one of the guests, and two of the guests testified that they were

afraid of the plaintiff and felt physically threatened by her out of control behavior.

(Two justices concurring separately in one opinion)

Argued December 19, 2018—officially released December 17, 2019

Procedural History

Action to recover damages for, inter alia, intentional

assault and battery, and for other relief, brought to the

Superior Court in the judicial district of Litchfield and

transferred to the judicial district of Stamford-Norwalk,

where the case was tried to the jury before Lee, J.;

verdict and judgment for the defendant, from which

the plaintiff appealed to the Appellate Court, Lavine,

Keller and Bishop, Js., which affirmed the trial court’s

judgment, and the plaintiff, on the granting of certification, appealed to this court. Affirmed.

Gregory Jacob, pro hac vice, with whom were

Mishima Alam, pro hac vice, and Anne C. Dranginis,

for the appellant (plaintiff).

Charles S. Harris, with whom was Stephanie C.

Laska, for the appellee (defendant).

Joseph D. Jean filed a brief for the Connecticut Coalition Against Domestic Violence as amicus curiae.
Opinion

ECKER, J. The plaintiff, Elizabeth Burke, appeals

from the Appellate Court’s affirmance of the trial court’s

judgment rendered in favor of the defendant, Gregory

Mesniaeff, after a jury returned a verdict finding that,

although the defendant had perpetrated an intentional

assault and battery on the plaintiff, his use of physical

force was justified because, first, the plaintiff was trespassing at the time of the incident, and, second, he was

acting in the defense of others. The plaintiff claims on

appeal that (1) the jury should not have been instructed

on the special defense of criminal trespass because the

parties were married at the time of the assault and

battery, and a spouse cannot, as a matter of law, trespass on marital property, and (2) the evidence was

insufficient to support the jury’s finding that the defendant was acting in defense of others. We conclude that

the trial court improperly instructed the jury on criminal

trespass and defense of premises as part of the jury

charge on justification but that the instructional impropriety was harmless because the evidence was sufficient to support the jury’s independent finding with

respect to the special defense of defense of others. We

therefore affirm the judgment of the Appellate Court.

I

The evidence regarding virtually every material

aspect of the underlying events was the subject of vigorous dispute at trial. Construing the evidence in the light

most favorable to sustaining the verdict, as we must;

see, e.g., Carrol v. Allstate Ins. Co., 262 Conn. 433, 442,

815 A.2d 119 (2003); the jury reasonably could have

found the following facts relevant to this appeal. The

plaintiff and the defendant were married in 1989. In

1998, the defendant, who is interested in the historic

preservation of old homes, purchased a historic house

in Sharon (Sharon house), which he titled solely in his

name. Although the Sharon house was not the parties’

primary marital residence, they both had Connecticut

drivers’ licenses listing the Sharon house as their residential address. The defendant spent more time at the

Sharon house than the plaintiff, but the plaintiff had

keys to the home, spent two weeks there in 2002 with

the defendant, stayed there occasionally at other times,

and stored personal possessions on the premises.

The Sharon house is subject to a historic preservation

easement, which requires the home occasionally to be

opened to the public for viewing. To fulfill this requirement, the defendant invited members of The Questers, a

historical preservation organization, to tour the Sharon

house on December 5, 2009, between the hours of 2

and 4:30 p.m. The defendant did not invite the plaintiff

to attend the tour because she was not a member of

The Questers, they were not ‘‘on the best of terms at

that time,’’ and he was ‘‘afraid that there could be some
problems if she was there.’’

On the morning of December 5, 2009, the plaintiff

went online to find out the date and time of the annual

Christmas tree lighting ceremony in Sharon, only to

discover that a tour of the Sharon house was scheduled

for that afternoon. The plaintiff was ‘‘shocked and puzzled’’ because the defendant had not mentioned the

tour, and she believed that he was at work that day.

She called the defendant at his office but was unable

to reach him. The plaintiff decided to go to the Sharon

house and talk to the defendant because she was convinced that he would deny the existence of the historic

house tour, and she ‘‘couldn’t take the lying anymore

. . . .’’

Due to the snowy weather that afternoon, only three

members of The Questers other than the defendant

were present for the tour: Anne Teasdale, Suzanne

Chase Osborne, and Lauren Silberman. When the plaintiff arrived at the Sharon house, the defendant was in

the kitchen, Osborne was in the television room, and

Teasdale and Silberman were in the living room. Rather

than park her car in the driveway of the Sharon house,

the plaintiff parked at an adjacent guest cottage and

entered the house through the back door that leads into

the television room. Osborne walked midway across

the television room to greet the plaintiff, whom she

believed was another guest arriving for the tour. The

defendant entered the television room from the kitchen

to greet the new arrival but, upon realizing it was the

plaintiff, immediately instructed Osborne to go into the

living room.

When the plaintiff opened the door and saw the defendant and Osborne alone together in the television room,

she flew into a rage, screaming, ‘‘Who is that woman?’’

and ‘‘What are you doing in my house?’’ Osborne testified1

that she was afraid of the plaintiff, who ‘‘came in

like a raging bull, screaming,’’ and who ‘‘was aggressively attempting to enter the house.’’ The defendant

testified that the plaintiff was ‘‘angry,’’ ‘‘enraged’’ and

‘‘shrieking . . . hysterically high.’’ The defendant

stated: ‘‘There was body language that I recognized from

previous such incidents, where I was terrified. . . . I

was scared. I was scared of her demeanor and what

she was saying and what I thought she could do, given

the fact that we have been married for twenty years

and, you know . . . I was afraid, but I was also embarrassed in front of the guests [who] were in the house,

that this is my wife.’’ Although the plaintiff did not

verbally threaten to harm Osborne, the defendant

believed that her out of control behavior posed a risk

of harm to his guests.

The defendant approached the plaintiff and asked

her to leave. He then took hold of the plaintiff’s upper

arm and ‘‘escorted’’ her out the door and down the

driveway toward the Sharon town green, where he
believed her car was parked. The plaintiff kept turning

around, trying to return to the house, but the defendant

would not permit her to do so. The defendant testified

that the plaintiff was shrieking, ‘‘over and over, ‘who’s

that woman in my house, what’s going on here, what are

you doing?’ ’’ The plaintiff continued shouting, ‘‘[W]ho’s

that woman? What’s going on between the two of you?’’2

The defendant ‘‘felt at that moment [that the plaintiff]

was trying to run back into the house and confront the

guests . . . and [he] was terrified of that.’’

Osborne and Teasdale watched through the windows

as the defendant escorted the plaintiff to the end of the

driveway. Teasdale testified that she was ‘‘very concerned for everybody, so I watched out of the side

window and I saw . . . [the plaintiff] coming by, and

she was screaming, and she was really mad. She was

just out of control. Mad screaming . . . .’’ Teasdale

continued: ‘‘I could hear the screaming and screaming,

that same ‘Who is that woman?’ . . . . When I saw her

in the side window, her face, she was screaming; she

was shaking, [en]raged, screaming.’’ Teasdale testified

that she ‘‘felt in danger—[like] my life was in danger

with what was going on by [the plaintiff’s] showing up

and screaming like that,’’ and ‘‘I didn’t know if [the

plaintiff] had a gun . . . . I didn’t know what was going

on out there, and I was really worried about our safety,

my safety, everyone’s safety.’’

Although the plaintiff testified that the defendant

‘‘dragged’’ her down the driveway by her arm, head,

and neck and repeatedly ‘‘flung’’ her to the ground and

yanked her back up again, Osborne, Teasdale, and the

defendant testified to a very different version of events.

Teasdale explained that it ‘‘looked like [the plaintiff and

the defendant] were walking as a couple. At that point,

it looked like they were—he had his arm on her—

around her elbow, like, you know, like a gentle—like a

man would walk with a woman . . . .’’ Teasdale further

explained that ‘‘it was snowy, and . . . it looked like

[the plaintiff] was slipping, but [the defendant] . . .

kept her steady . . . .’’ Osborne testified that the defendant escorted the plaintiff away from the house by

putting ‘‘his arm around her’’ and that the level of force

used by the defendant was ‘‘appropriate for the occasion’’ because it was ‘‘[e]nough to keep her from getting

back into the house and to move her down the driveway

. . . .’’ The defendant admitted that he held the plaintiff

by the arm and forcibly led her down the driveway

away from the house, even though she was actively

resisting him, slipping in the snow, and trying to return

to the house, but explained that he did so to protect

his guests from harm.

After the parties reached the sidewalk, the plaintiff

began waving her arms and yelling, ‘‘Help, help! Call

the police!’’ Pierce Kearney, who was driving to the

Christmas tree lighting ceremony with his family,
observed the parties on the sidewalk. At first, Kearney

believed that they were ‘‘clowning around,’’ but, when

he slowed down the car and rolled down his windows,

he could hear the plaintiff ‘‘screaming that she was

being assaulted by her husband and could you please

call the police.’’ Kearney pulled over, exited the car, and

ran across the street, where he observed the defendant

holding the plaintiff in ‘‘a very aggressive fashion.’’ The

defendant told Kearney, ‘‘It’s okay, she’s my wife.’’ Kearney’s wife called the police while he interposed himself

between the parties and said, ‘‘No, this is over.’’ The

defendant then turned around and returned to the

Sharon house.

Upon reentering the Sharon house, the defendant

apologized to his frightened guests and told them that

he was going to drive them to the train station for their

safety. The defendant drove Teasdale, Osborne, and

Silberman to the train station and then returned to

the Sharon house, where the police were present. The

defendant cooperated with the police investigation,

calmly informing the officers that he had escorted the

plaintiff from the property because she was not welcome at the Sharon house and that ‘‘he is the sole owner

of the house and his wife’s name is not on the deed.’’

Sometime after the December 5, 2009 incident, the

parties divorced, and the plaintiff filed this action, seeking compensatory damages from the defendant for personal injuries she sustained during the assault and battery. The complaint contained six counts: (1) intentional

assault and battery; (2) reckless assault and battery;

(3) negligent assault and battery; (4) intentional infliction of emotional distress; (5) negligent infliction of

emotional distress; and (6) reckless infliction of emotional distress. The defendant raised, among others, the

following special defenses: (1) the plaintiff’s injuries

were caused by her own contributory negligence; (2)

the plaintiff’s action is barred by her own wrongful

conduct, including her trespassing on the premises of

the Sharon house, exhibiting disorderly conduct, creating a public disturbance, and/or assaulting and battering

the defendant; (3) his actions were in self-defense; (4)

his actions were in defense of others; and (5) his actions

were justified because ‘‘the plaintiff was trespassing on

[his] property.’’

After an eight day jury trial, the trial court held a

charge conference, at which it asked the defendant to

clarify the distinction between the special defenses of

‘‘justification’’ and ‘‘wrongful conduct.’’ The defendant

explained that ‘‘the case law is, if there is a criminal

trespass, you are justified in removing the person. That’s

from the criminal statutes. So that’s how that ties into

the trespass part of it. And the wrongful conduct, it

could be trespass. It could be [the plaintiff’s] trying to

hit [the defendant]. It could be all these other things.

But for justification, if she was there after he ordered
her to leave, he has a physical right to remove her using

reasonable force.’’ The trial court asked the defendant

whether his justification defense ‘‘is premised largely

on trespass.’’ The defendant answered that he was ‘‘justified in the use of force’’ against the plaintiff because

‘‘she became a criminal trespasser after [he] told her

to leave and she refused.’’

As relevant to this appeal, the plaintiff objected to a

jury instruction on criminal trespass on the ground that

a wife cannot ‘‘commit a criminal trespass on marital

property when there [are] no divorce proceedings’’

pending or court orders regarding the property. The

defendant disagreed, arguing that the Sharon house was

not marital property because it ‘‘was bought in his name

[and] titled in his name.’’ The trial court noted that

‘‘there is evidence on both sides’’ and, therefore, considered an instruction on criminal trespass to be appropriate.

The trial court instructed the jury that the defendant

had raised ‘‘five special defenses . . . . They are: (1)

[t]he contributory negligence of [the plaintiff]; (2) [j]ustification; (3) self-defense; (4) defense of others; [and]

(5) [w]rongful conduct of [the plaintiff].’’ With respect

to the second special defense, which the trial court

referred to as ‘‘justification,’’3

the trial court instructed

the jury as follows: ‘‘Justification is a general defense

to the use of physical force. The use of physical force

upon another person that results in actual injury, while

usually a criminal assault, is not criminal if it is permitted or justified by a provision of law or statute.

‘‘Therefore, when one who is accused of committing

an assault claims that he or she acted under a legal

justification, the jury must examine the circumstances

and discover whether the act was truly justified. The

court’s function in instructing the jury is to tell the jury

the circumstances in which the use of physical force

against another person is legally justified.

‘‘Justification defenses focus on the defendant’s reasonable beliefs as to circumstances and the necessity

of using force. The jury must view the situation from the

perspective of the defendant. However, the defendant’s

belief ultimately must be found to be reasonable. For

example, a person in possession or control of premises

is justified in using reasonable physical force upon

another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a

criminal trespass by such other person in or upon such

premises. A person commits criminal trespass when,

knowing that such person is not licensed or privileged

to do so, such person enters or remains in a building

or any other premises, after an order to leave, or after an

order not to enter, that was personally communicated

to such person by the owner of the premises.
‘‘The claim focuses on what the defendant reasonably

believes under the circumstances and presents a question of fact. The jury’s initial determination requires the

jury to assess the veracity of witnesses, often including

the defendant, and to determine whether the defendant’s account of his belief at the time of the confrontation is in fact credible. The jury must make a further

determination as to whether that belief was reasonable,

from the perspective of a reasonable person in the

defendant’s circumstances.

‘‘The defendant’s conduct must be judged ultimately

against that of a reasonably prudent person. It is not

required that the jury find that the victim was, in fact,

using or about to use physical force against the

defendant.’’

The trial court then proceeded to instruct the jury

regarding the defenses of self-defense and defense of

others. This portion of the jury charge provided as follows: ‘‘The defendant raised the issues of self-defense

and defense of others as to the incident on December

5, 2009. After you have considered all of the evidence

in this case, if you find that the plaintiff has proved her

claims, you must go on to consider whether . . . the

defendant acted in [the defense] of himself or of others.

‘‘A person is justified in the use of force against

another person that would otherwise be illegal if he is

acting in the defense of himself or others under the

circumstances.

‘‘The statute defining self-defense reads in pertinent

part as follows:

‘‘ ‘[A] person is justified in using reasonable physical

force upon another person to defend himself [or a third

person] from what he reasonably believes to be the use

or imminent use of physical force, and he may use such

degree of force which he reasonably believes to be

necessary for such purpose . . . .’

‘‘The statute requires that, before a defendant uses

physical force upon another person to defend himself,

he must have two ‘reasonable beliefs.’ The first is a

reasonable belief that physical force is then being used

or about to be used upon him. The second is a reasonable belief that the degree of force he is using to defend

himself from what he believes to be an ongoing or

imminent use of force is necessary for that purpose.

‘‘A defendant is not justified in using any degree of

physical force in self-defense against another if he provokes the other person to use physical force against

him. Also, a defendant is not justified in using any

degree of physical force in self-defense against another

if he is the initial aggressor. A defendant cannot use

excessive force in his self-defense or defense of others.’’

After deliberating for more than one day and asking,

among other things, to rehear the testimony of Osborne
and Teasdale regarding their views of the alleged assault

and battery, the jury returned a verdict in favor of the

defendant. The plaintiff’s verdict form reveals the following basis for the jury’s verdict.4 The jury found that

the defendant’s conduct on December 5, 2009, constituted an intentional assault and battery and that the

defendant’s conduct proximately caused or aggravated

the plaintiff’s injuries and damages. The jury also found,

however, that the plaintiff’s recovery was barred by

the defendant’s special defenses of justification and

defense of others. The jury rejected the plaintiff’s claims

of intentional and negligent infliction of emotional distress, and also rejected the defendant’s special defenses

of self-defense and wrongful conduct. The trial court

rendered judgment in favor of the defendant, and the

plaintiff appealed to the Appellate Court.

On appeal to the Appellate Court, the plaintiff raised

two claims: (1) the jury improperly was charged on the

defendant’s special defense of justification because the

trial court incorporated an instruction on criminal trespass, even though a spouse cannot trespass on marital

property as a matter of law;5 and (2) the evidence was

insufficient to support the defendant’s special defense

of defense of others. See Burke v. Mesniaeff, 177 Conn.

App. 824, 826, 173 A.3d 393 (2017). With respect to the

plaintiff’s first claim, the Appellate Court determined

that it need not decide whether the trial court improperly instructed the jury on criminal trespass because

it ‘‘construe[d] the jury’s findings to indicate [that] it

decided that the plaintiff was not trespassing.’’ Id., 837.

The Appellate Court reasoned that, even though ‘‘trespassing is understood to be a form of wrongful conduct,’’ the jury did not find that the plaintiff’s recovery

was barred by the doctrine of wrongful conduct, and,

therefore, the jury necessarily found that the plaintiff

was not trespassing. Id. With respect to the plaintiff’s

second claim regarding the sufficiency of the evidence

of the defense of others defense, the Appellate Court

determined that ‘‘the jury’s verdict is supported by the

evidence and by its commonsense evaluation of what

happened during the incident.’’ Id., 846. The Appellate

Court therefore affirmed the judgment of the trial

court. Id.

Judge Bishop filed a dissenting opinion in which he

expressed his view that the ‘‘wrong minded notion’’ of

‘‘the plaintiff as a trespasser in a marital residence’’

likely ‘‘confus[ed] the jury and, as a result, render[ed]

its verdict unreliable.’’ Id., 847 (Bishop, J., dissenting).

Judge Bishop believed that there was no ‘‘basis for the

court to instruct the jury on the law of criminal trespass’’; id., 858; because ‘‘both parties understood the

Sharon house to be a marital residence,’’ and, as such,

the plaintiff was licensed and privileged to be on the

property notwithstanding the defendant’s title ownership. Id., 859. Judge Bishop also believed that the evidence was insufficient to support the jury’s finding of
defense of others because there was no objective evidence ‘‘that, at any time, the plaintiff, by gesture or

words, made any threats against the houseguests.’’ Id.,

862. Accordingly, Judge Bishop would have reversed

the judgment of the trial court and remanded the case

for a new trial. Id., 863.

The plaintiff filed a motion for reconsideration en

banc or, in the alternative, for reconsideration, which

the Appellate Court denied. This certified appeal

followed.6

II

The plaintiff claims that the trial court improperly

instructed the jury on the law of criminal trespass

because she, as the defendant’s spouse, had a legal right

to be at their shared marital residence, regardless of

the title ownership of the property. She argues that the

defendant’s justification defense was premised entirely

on the law of criminal trespass, and, therefore, the jury

necessarily found that the plaintiff was a criminal trespasser at the time of the assault and battery. She further

argues that the improper instruction on criminal trespass irrevocably tainted the jury’s finding that the defendant was acting in defense of others because a criminal

trespasser’s ‘‘refusal to leave when so instructed by the

‘rightful owner’ is inherently threatening . . . .’’ Alternatively, the plaintiff contends that the evidence was

insufficient to support the jury’s finding of defense of

others because the defendant ‘‘provided no evidence

that he believed [the plaintiff] was imminently about

to use physical force against his houseguests, much

less any evidence that such a belief would have been

reasonable.’’ (Footnote omitted.)

The defendant responds that the trial court’s instruction on the law of criminal trespass was proper because

the Sharon house was not a marital residence but the

defendant’s individually owned property, and the plaintiff did not acquire an ownership interest in the Sharon

house by virtue of the parties’ marriage. Because it was

undisputed that the plaintiff refused to leave after being

instructed to do so by the defendant-owner, the defendant contends that the evidence supported the trial

court’s criminal trespass instruction. Lastly, the defendant argues that the evidence was sufficient to support

the jury’s finding that he was acting in defense of others

in light of his testimony, as well as the testimony of

Teasdale and Osborne, that the plaintiff’s aggressive

and out of control behavior posed a risk of harm to

his guests.

A

We first address the plaintiff’s claim that the trial

court’s instruction on the defendant’s special defense

of justification was improper because one cannot criminally trespass on the property of his or her spouse.

‘‘Our analysis begins with a well established standard
of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that

a charge to the jury is to be considered in its entirety,

read as a whole, and judged by its total effect rather

than by its individual component parts. . . . [T]he test

of a court’s charge is not whether it is as accurate upon

legal principles as the opinions of a court of last resort

but whether it fairly presents the case to the jury in

such a way that injustice is not done to either party

under the established rules of law. . . . As long as [the

instructions] are correct in law, adapted to the issues

and sufficient for the guidance of the jury . . . we will

not view the instructions as improper.’’ (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275

Conn. 395, 400, 880 A.2d 151 (2005).

To determine whether the trial court properly

instructed the jury on criminal trespass, we turn first

to General Statutes § 53a-20, which governs the use of

physical force in defense of premises.7 Section 53a-20

provides in relevant part that ‘‘[a] person in possession

or control of premises, or a person who is licensed or

privileged to be in or upon such premises, is justified

in using reasonable physical force upon another person

when and to the extent that he reasonably believes such

to be necessary to prevent or terminate the commission

or attempted commission of a criminal trespass by such

other person in or upon such premises . . . .’’ A person

commits a criminal trespass when, ‘‘[k]nowing that such

person is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally

communicated to such person by the owner of the premises or other authorized person . . . .’’ General Statutes § 53a-107 (a) (1). Both criminal trespass and

defense of premises contain a scienter requirement.

Specifically, in order to commit a criminal trespass,

the trespasser must know that ‘‘he is not privileged or

licensed to enter or to remain on the premises’’; State

v. Garrison, 203 Conn. 466, 474, 525 A.2d 498 (1987);

and, in order to be justified in using physical force

to prevent or terminate the commission or attempted

commission of a criminal trespass, the person in possession or control of the premises must ‘‘reasonably

[believe]’’ that the use of force is ‘‘necessary to prevent

or terminate the commission or attempted commission

of a criminal trespass . . . .’’ General Statutes § 53a-20.

Our sister states uniformly have held that, in

determining whether one spouse has committed the

crime of trespass (or a similar crime) on the property

of the other spouse, the focus is not on ownership per

se but, rather, on the ‘‘trespassing’’ spouse’s right or

privilege to enter or remain on the property. See, e.g.,

People v. Johnson, 906 P.2d 122, 125 (Colo. 1995) (holding that, in determining whether estranged spouse has

committed crime of trespass or burglary against other

spouse, ‘‘the focus is [on] the possessory rights of the
parties, and not their ownership rights’’); State v.

Hagedorn, 679 N.W.2d 666, 671 (Iowa 2004) (upholding

defendant’s burglary conviction, even though he formerly had lived in marital home, because his wife had

removed his personal belongings, told him on multiple

occasions that he no longer was welcome, and changed

locks); Commonwealth v. Robbins, 422 Mass. 305, 315

and n.5, 662 N.E.2d 213 (1996) (holding that marital

relationship does not preclude burglary conviction,

regardless of title or leasehold ownership, and that jury

must be instructed on ‘‘factors that bear on a defendant’s right to enter’’ spouse’s premises); State v.

Spence, 768 N.W.2d 104, 108–10 (Minn. 2009) (upholding

defendant’s burglary conviction, even though he coowned residence with his estranged spouse, because

property owners can divest themselves of possessory

interests by agreement); State v. McMillan, 158 N.H.

753, 759, 973 A.2d 287 (2009) (concluding that ‘‘holding

a legal interest in property, such as a leasehold, is not

dispositive on the issue of license or privilege’’ to enter

premises but, rather, ‘‘the fact finder must look beyond

legal title and evaluate the totality of the circumstances

in determining whether a defendant had license or privilege to enter’’); State v. Parvilus, 332 P.3d 281, 283, 286

(N.M. 2014) (upholding defendant’s burglary conviction, despite statute providing that ‘‘neither [spouse]

can be excluded from the other’s dwelling,’’ because

‘‘marital property provisions . . . do not provide

immunity from prosecution for burglary of a spouse’s

separate residence’’ [internal quotation marks omitted]); State v. Lilly, 87 Ohio St. 3d 97, 102, 717 N.E.2d

322 (1999) (‘‘in Ohio, one can commit a trespass and

burglary against property of which one is the legal

owner if another has control or custody of that property’’); State v. Wilson, 136 Wn. App. 596, 606–607, 150

P.3d 144 (2007) (noting that, ‘‘[i]n domestic violence

cases, determining possession of a residence presents

a murky area of law,’’ but ‘‘Washington case law is clear

that an offender can burglarize the residence of his

or her spouse or partner despite legal ownership of

property’’). We find these precedents persuasive and

hold that ‘‘whether one has a right or privilege to enter

property is not determined solely by [the spouse’s] ownership interest in the property, or by whether the structure can be characterized as the ‘marital home,’ ’’ but,

rather, ‘‘[by] whether the [spouse] had any possessory

or occupancy interest in the premises at the time of

entry.’’ State v. Hagedorn, supra, 670.

Whether one spouse has a possessory or occupancy

interest in the premises of the other spouse at the time

of entry is a fact intensive inquiry that depends on

multiple factors, including, but not limited to, the relationship status of the spouses (i.e., whether the parties

are legally separated or involved in divorce proceedings), the existence of extended periods of separation,

the applicability of any relevant court orders, the estab-
lishment of separate residences, the existence of any

agreements regarding access to the subject property,

and the method and manner of entry. See, e.g., Commonwealth v. Robbins, supra, 422 Mass. 315; State v.

Spence, supra, 768 N.W. 2d 109–10. In light of the scienter requirements contained in the criminal trespass and

defense of premises statutes, the party requesting a jury

charge on criminal trespass and defense of premises

in the context of a case involving a spousal relationship

must adduce evidence demonstrating that both parties

‘‘understood that the possessory interest of one was

being relinquished, even if it was relinquished begrudgingly or reluctantly.’’ State v. O’Neal, 103 Ohio App. 3d

151, 155, 658 N.E.2d 1102, appeal dismissed, 73 Ohio

St. 3d 1411, 651 N.E.2d 1309 (1995). In general, when

the marital relationship is legally intact and both

spouses have a possessory or occupancy interest in the

premises, an isolated request to leave during a heated

marital argument will not suffice to revoke one spouse’s

possessory or occupancy interest in the premises visa`-vis the other. See, e.g., id.; cf. State v. Garrison, supra,

203 Conn. 473–74 (holding that evidence was insufficient to support defense of premises defense, even

though defendant had asked victim, who was dating

and living with defendant’s sister in shared apartment,

to leave apartment, because sister had not revoked victim’s possessory or occupancy interest in ‘‘manifest

fashion’’; instead, because of couple’s ‘‘stormy relationship’’ and sister’s intoxication, ‘‘her order to the victim

to leave was simply a part of the couple’s ongoing relationship’’).

In the present case, the undisputed evidence established that the plaintiff had a possessory or occupancy

interest in the Sharon house at the time of her entry

on December 5, 2009. The plaintiff had a key to the

Sharon house, would ‘‘go back and forth’’ between there

and the parties’ primary marital residence, and stored

her personal possessions on the premises. The plaintiff

had obtained a Connecticut driver’s license that listed

the Sharon house as her residential address, and she

was involved in the management and improvement of

the property.8 Furthermore, although the parties’ marital relationship was strained, they were neither

estranged nor separated at the time of the incident, and

a dissolution action had not yet been commenced. In

light of these facts, the defendant’s request that the

plaintiff leave the Sharon house, made in the midst of

a heated marital dispute, plainly was insufficient to

support the trial court’s criminal trespass instruction.

See, e.g., Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 139, 757 A.2d 516 (2000) (trial

court’s instructions must be ‘‘reasonably supported by

the evidence’’ [internal quotation marks omitted]).

Our conclusion is bolstered by the fact that the defendant himself did not believe the plaintiff was trespassing

when he used force to remove her from the Sharon
house on the afternoon of December 5, 2009. At trial,

the defendant testified that ‘‘we were married at the

time so I didn’t think . . . [trespassing] was an issue

at all.’’ The defendant explained that it did not occur

to him that the plaintiff may have been a criminal trespasser until sometime after the incident. Because the

defendant did not believe that the use of force was

‘‘necessary to prevent or terminate the commission or

attempted commission of a criminal trespass’’; General

Statutes § 53a-20; he lacked the requisite state of mind

to support a defense of premises instruction.

B

Having determined that the trial court improperly

instructed the jury on criminal trespass and defense of

premises, we next consider whether the improper jury

instruction was harmful. It is well established that ‘‘not

every improper jury instruction requires a new trial

because not every improper instruction is harmful. [W]e

have often stated that before a party is entitled to a new

trial . . . he or she has the burden of demonstrating the

error was harmful. . . . An instructional impropriety

is harmful if it is likely that it affected the verdict.’’

(Internal quotation marks omitted.) Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 656, 935 A.2d 1004 (2007).

‘‘When two or more separate and distinct defenses . . .

are present in a case, an error in the charge as to one

normally cannot upset’’ the jury’s verdict if the jury was

‘‘properly charged as to the remaining defenses.’’ Dinda

v. Sirois, 166 Conn. 68, 75, 347 A.2d 75 (1974).

We conclude that the plaintiff has not established

that the improper instruction in this case affected the

jury’s verdict. As we previously explained, the jury

returned a verdict in favor of the defendant on the basis

of its findings in connection with two different special

defenses: justification and defense of others. These special defenses were pleaded and charged as separate

and distinct theories of defense at trial; the justification

defense was limited to the plaintiff’s alleged criminal

trespass and the defendant’s corresponding right to use

physical force in defense of his premises; see part II B

1 of this opinion; whereas the defense of others defense

was premised on the plaintiff’s alleged threatening

behavior and the defendant’s corresponding right to

use physical force to protect his guests from imminent

physical harm. We conclude that the jury charge on

defense of others was insulated from any taint affecting

the justification charge and, consequently, hold that the

jury’s finding in the defendant’s favor on the basis of

his special defense of defense of others renders harmless the instructional impropriety on the special defense

of justification.

1

We first address whether the trial court’s improper

instruction on justification affected the jury’s finding
on that special defense. As background, we point out

that the defense of justification, although not treated

as such in the present case, ordinarily is understood to

encompass the defense of premises, self-defense, and

the defense of others. See State v. Bryan, 307 Conn.

823, 832, 60 A.3d 246 (2013) (‘‘[t]he defense of others,

like self-defense, is a justification defense’’); State v.

Garrison, supra, 203 Conn. 472 (‘‘[j]ustification for the

use of deadly force may also be found in the provisions

of § 53a-20 dealing with defense of premises’’). ‘‘These

defenses operate to exempt from punishment otherwise

criminal conduct when the harm from such conduct is

deemed to be outweighed by the need to avoid an even

greater harm or to further a greater societal interest.

. . . Thus, conduct that is found to be justified is, under

the circumstances, not criminal.’’9

(Internal quotation

marks omitted.) State v. Bryan, supra, 832–33.

The record reflects that the defendant’s justification

defense in this case was not framed in accordance with

its conventional understanding. Instead, the defendant

used the defense of ‘‘justification’’ to encompass only

his defense predicated on criminal trespass and defense

of premises. The defendant thus pleaded that his use

of force was justified, in relevant part, because ‘‘the

plaintiff was trespassing on the defendant’s property

. . . knowing that she was not licensed or privileged

to do so . . . [d]espite the defendant, who is the owner

of the property, directing her to leave . . . .’’ At the

charge conference, the defendant explained that his

justification defense was based on the plaintiff’s alleged

criminal trespass, and the jury instructions, as well as

the plaintiff’s verdict form, listed justification as one

of the defendant’s five freestanding special defenses.

Although the jury was informed that ‘‘[j]ustification is

a general defense to the use of physical force,’’ the

jury was given only one example of a justifiable use of

physical force in the justification instruction—defense

of premises. The jury also was informed that, in order

to find that the defendant’s use of force was justified,

‘‘[i]t is not required that the jury find that the victim

was, in fact, using or about to use physical force against

the defendant.’’ This is a correct statement of the law

if the defendant’s justification defense is limited to

defense of premises; see General Statutes § 53a-20; but

an incorrect statement of the law if the defendant’s

justification defense included self-defense and defense

of others. See General Statutes § 53a-19 (a) (requiring

defendant to have reasonable belief of ‘‘imminent use

of physical force’’); see also part III of this opinion.10

On the basis of the foregoing, it is clear that the

defendant’s justification defense was treated by the parties, the trial court, and the jury as the functional equivalent of a defense of premises defense. By finding in

favor of the defendant on his special defense of justification, the jury necessarily found that the defendant’s use

of force was justified by the plaintiff’s commission or
attempted commission of the crime of trespass. Therefore, the jury was misled by the improper instruction

on criminal trespass and defense of premises in arriving

at its finding on the defendant’s justification defense.11

2

We next address whether the improper jury instruction on criminal trespass and defense of premises misled the jury with respect to the special defense of

defense of others. As we previously explained, defense

of others is a type of justification defense; see State v.

Bryan, supra, 307 Conn. 832; but the present case was

pleaded, tried, and charged in a manner that reasonably

would have led the jury to believe that defense of others

was an independent, freestanding special defense separate and distinct from the justification defense.12 The

trial court’s jury instruction on defense of others did not

include any reference to criminal trespass or defense

of premises. Rather, the trial court properly instructed

the jury that ‘‘ ‘[a] person is justified in using reasonable

physical force upon another person to defend himself

[or a third person] from what he reasonably believes

to be the use or imminent use of physical force, and

he may use such degree of force which he reasonably

believes to be necessary for such purpose.’ ’’ See General Statutes § 53a-19 (a). Thus, in arriving at its verdict,

the jury necessarily found that (1) the defendant

believed that the plaintiff was about to use imminent

physical force against his guests, (2) his belief was

reasonable, and (3) he used a degree of force that he

reasonably believed to be necessary to defend his

guests.13 None of these findings depended, either implicitly or explicitly, on the plaintiff’s status as a criminal

trespasser.

The plaintiff nonetheless argues that criminal trespassers are ‘‘inherently threatening,’’ and, therefore, the

trial court’s improper reference to criminal trespass in

its instruction on justification ‘‘infected . . . the entire

trial, including [the defendant’s] claim of ‘defense of

others . . . .’ ’’ We disagree. As we discussed, both the

jury instruction and the verdict form treated the special

defenses as separate and independent legal theories.

Confusion was highly unlikely under these circumstances because there was neither any linguistic overlap

between the justification and defense of others jury

instructions, nor was there anything about the verdict

form that created any discernible risk of confusion. The

jury’s disparate findings also indicate to us that it did

not lump together the defenses in an undifferentiated

manner but, instead, distinguished among those

defenses, rejecting some while crediting others. See

footnote 4 of this opinion; see also DeMarkey v. Fratturo, 80 Conn. App. 650, 660, 836 A.2d 1257 (2003)

(holding that jury’s response to interrogatories indicated that it was not misled by allegedly improper jury

instruction, and any error therefore was harmless).
Moreover, although criminal trespass may pose an

inherent risk of harm to property and privacy rights;

see State v. Robinson, 105 Conn. App. 179, 193, 937 A.2d

717 (2008) (‘‘[t]he rationale for the offense of criminal

trespass is to protect property, and the privacy interest

inhering in that property, from unwanted intruders’’),

aff’d, 290 Conn. 381, 963 A.2d 59 (2009); it does not, in

the absence of additional facts, pose a similar inherent

risk of harm to the physical safety of invitees who

happen to be on the property.14 Indeed, the crime of

trespass can be committed even if the property is uninhabited, unoccupied, or consists of public land. See

General Statutes §§ 53a-107 through 53a-109. We conclude that the instructional impropriety was harmless

because it did not affect the jury’s independent finding

with respect to the defendant’s defense of others

defense.

III

The only remaining issue is whether the evidence

was sufficient to support the jury’s finding that the

defendant was acting in defense of others when he used

physical force to remove the plaintiff from the Sharon

house on December 5, 2009. ‘‘The standards governing

our review of a sufficiency of evidence claim are well

established and rigorous. . . . [I]t is not the function

of this court to sit as the seventh juror when we review

the sufficiency of the evidence . . . rather, we must

determine, in the light most favorable to sustaining the

verdict, whether the totality of the evidence, including

reasonable inferences therefrom, supports the jury’s

verdict . . . . In making this determination, [t]he evidence must be given the most favorable construction

in support of the verdict of which it is reasonably capable. . . . In other words, [i]f the jury could reasonably

have reached its conclusion, the verdict must stand,

even if this court disagrees with it.’’ (Citations omitted;

internal quotation marks omitted.) Carrol v. Allstate

Ins. Co., supra, 262 Conn. 442.

‘‘We apply this familiar and deferential scope of

review, however, in light of the equally familiar principle’’ that there must be ‘‘sufficient evidence to remove

the jury’s function of examining inferences and finding

facts from the realm of speculation.’’ (Internal quotation

marks omitted.) Id. The jury’s verdict cannot be upheld

if the jury ‘‘reasonably and legally could not have

reached the determination that [it] did in fact reach’’

or if, ‘‘without conjecture, [it] could not have found a

required element of the cause of action . . . .’’ Id.

This is a civil case, but self-defense or, by extension,

a defense of others defense ‘‘is available to a defendant

faced with the intentional torts of civil assault and battery, provided that there is sufficient evidence in support of that defense.’’ See Brown v. Robishaw, 282

Conn. 628, 636, 922 A.2d 1086 (2007). The defendant

bears the initial burden to produce sufficient evidence
to inject the defense of others into the case; id., 643; but

this burden of production ‘‘is slight.’’ (Internal quotation

marks omitted.) State v. Terwilliger, 294 Conn. 399,

408, 984 A.2d 721 (2009). To prevail on a defense of

others defense, ‘‘a defendant must introduce evidence

that the defendant reasonably believed [the attacker’s]

unlawful violence to be imminent or immediate.’’ (Internal quotation marks omitted.) State v. Bryan, supra,

307 Conn. 835; see General Statutes § 53a-19 (a). The

standard encompasses both a subjective and objective

component: (1) the defendant must have subjectively

believed that an attack was imminent; and (2) the defendant’s subjective belief must have been objectively reasonable under the circumstances. See, e.g., State v. Prioleau, 235 Conn. 274, 286–87, 664 A.2d 743 (1995)

(explaining that ‘‘subjective-objective inquiry’’ requires

jury to ‘‘make two separate affirmative determinations

in order for the defendant’s’’ special defense to succeed:

[1] ‘‘the jury must determine whether, on the basis of

all of the evidence presented, the defendant in fact had

believed that he had needed to use . . . physical force

. . . in order to repel the victim’s alleged attack’’; and

[2] ‘‘the jury must make a further determination as to

whether that belief was reasonable, from the perspective of a reasonable person in the defendant’s circumstances’’ [emphasis in original]).

The plaintiff contends that the evidence was insufficient to establish that the defendant subjectively

believed that the plaintiff ‘‘was imminently about to

use physical force against his houseguests, much less

. . . that such a belief would have been reasonable.’’

(Emphasis added; footnote omitted.) We disagree.

Although the evidence surrounding the defendant’s use

of physical force against the plaintiff was conflicting,

the jury reasonably could have found that, when the

plaintiff arrived at the Sharon house, she was enraged,

hysterical, and screaming ‘‘[w]ho is that woman’’ and

‘‘[w]hat are you doing in my house?’’ The plaintiff’s

behavior was described as ‘‘aggressive’’ and ‘‘out of

control,’’ and the defendant testified that, on the basis

of ‘‘body language that [he] recognized from previous

such incidents,’’ he was ‘‘terrified’’ that the plaintiff

would harm his guests. Throughout the December 5,

2009 incident, the plaintiff continually tried to return

to the house. The defendant testified that he believed

that the plaintiff was ‘‘trying to run back into the house

and confront the guests,’’ and he continued to use physical force against the plaintiff ‘‘[t]o protect [his] guests

from harm’s way.’’ We conclude that this evidence was

sufficient to support the jury’s finding that the defendant subjectively believed that the plaintiff posed an

imminent risk of physical harm to his guests.

The plaintiff also contends that the defendant’s subjective belief was not objectively reasonable under the

circumstances because she never made any verbal

threats and the defendant’s guests ‘‘remained safely
ensconced inside the house during the entirety of the

assault . . . .’’ Again, we are not persuaded. First, verbal threats are not required if the assailant’s physical

acts and behavior support a ‘‘reasonably perceived

threat of [imminent] physical force . . . .’’ State v.

Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994).

Although a defense of others defense does ‘‘not encompass a preemptive strike,’’ neither does it obligate the

defendant ‘‘to stand by meekly and wait until an assailant [strikes] the first blow before responding.’’ (Internal

quotation marks omitted.) State v. Jones, 320 Conn.

22, 53–54, 128 A.3d 431 (2015). Second, the physical

distance between the plaintiff and Osborne at the time

the defendant intercepted the plaintiff is unclear, but

the jury heard evidence that the plaintiff was enraged,

out of control, and ‘‘aggressively attempting to enter’’

the room in which Osborne was present.15 The plaintiff

repeatedly was screaming ‘‘[w]ho is that woman,’’

‘‘[w]hat’s going on between the two of you,’’ and ‘‘I

know what’s going on,’’ from which the jury reasonably

could have inferred, on the basis of the totality of the

evidence, that the plaintiff was accusing the defendant

and Osborne of having an extramarital affair. Under

these factual circumstances, ‘‘we cannot . . . conclude that the evidence introduced at trial was of such

a nature that the jury needed to resort to speculation

that the defendant reasonably believed that [he] had to

act in [defense of his guests].’’ (Internal quotation marks

omitted.) State v. Edwards, 234 Conn. 381, 390, 661

A.2d 1037 (1995). But cf. State v. Bryan, supra, 307

Conn. 837–39 and n.7 (holding that there was no imminent threat of harm to victim because undisputed evidence established that assailant was moving away from

building in which victim was present at time of assault

and declining to address whether victim was subject

to ‘‘an imminent attack because she was inside the

school building at the time of the stabbing’’).

The objective reasonableness of the defendant’s use

of force is further supported by Osborne’s and Teasdale’s testimony that they were afraid of the plaintiff

and felt physically threatened by her out of control

behavior. Teasdale explained that she felt like her ‘‘life

was in danger’’ because she ‘‘didn’t know if [the plaintiff] had a gun,’’ and she ‘‘was really worried about our

safety, my safety, everyone’s safety.’’ In light of the risk

of violence and volatility surrounding domestic disputes

generally, we agree with the Appellate Court that ‘‘the

jury’s verdict is supported by the evidence and by its

commonsense evaluation of what happened during the

incident.’’ Burke v. Mesniaeff, supra, 177 Conn. App.

846. We therefore conclude that the evidence was sufficient to support the jury’s verdict in favor of the

defendant.

The judgment of the Appellate Court is affirmed.

In this opinion ROBINSON, C. J., and PALMER, MUL-
LINS AND VERTEFEUILLE, Js., concurred.

1 Osborne was unavailable to testify at trial, so her deposition testimony

was read into the record.

2 The defendant testified that the plaintiff had accused him of having an

affair multiple times ‘‘during the course of the year 2009, up until this

incident.’’

3 As we discuss in greater detail later in this opinion, the trial court adopted

the defendant’s inexact and potentially confusing nomenclature to classify

the various special defenses relevant to this appeal. Properly conceived, the

defense of justification is a broad category that subsumes more specific

claims such as self-defense, defense of others, and defense of premises. See

part II B 1 of this opinion. At trial, however, the court treated the defense

of justification as synonymous with only one subtype of the broader theory—

the use of physical force in defense of premises. The plaintiff did not provide

suggested instructions that would have alleviated this confusion. This opinion adheres to the terminology used at trial to avoid any further confusion.

4 The plaintiff’s verdict form included, in relevant part, the following questions; the jury’s answers are in brackets.

‘‘1. Assault and Battery (Answer All)

‘‘a. We find that the conduct of [the defendant] on December 5, 2009,

constituted intentional assault and battery.

‘‘Yes [X] No

‘‘b. We find that the conduct of [the defendant] on December 5, 2009,

constituted reckless assault and battery.

‘‘Yes No [X]

‘‘c. We find that the conduct of [the defendant] on December 5, 2009,

constituted negligent assault and battery.

‘‘Yes No [X]

‘‘2. Infliction of Emotional Distress (Answer All)

‘‘a. We find that the conduct of [the defendant] on December 5, 2009,

constituted intentional infliction of emotional distress.

‘‘Yes No [X]

‘‘b. We find that the conduct of [the defendant] on December 5, 2009,

constituted negligent infliction of emotional distress.

‘‘Yes No [X]

‘‘3. Proximate Cause

‘‘We find that the conduct of [the defendant] on December 5, 2009 was

a substantial factor in causing or aggravating the injuries and damages of

[the plaintiff].

‘‘Yes [X] No

‘‘(If you answered no, you must render a Defendant’s Verdict, using the

Defendant’s Verdict Form.)

‘‘4. Defendant’s Defenses (Answer All)

‘‘a. We find [the plaintiff’s] recovery is barred by the doctrine of justification

‘‘Yes [X] No

‘‘b. We find [the plaintiff’s] recovery is barred by the doctrine of selfdefense

‘‘Yes No [X]

‘‘c. We find [the plaintiff’s] recovery is barred by the doctrine of defense

of others

‘‘Yes [X] No

‘‘d. We find [the plaintiff’s] recovery is barred by the doctrine of wrongful conduct

‘‘Yes No [X]

‘‘e. With respect to a finding of negligent assault and battery or of negligent

infliction of emotional distress, we find that the percentage of negligence

attributable to [the defendant] is: . . . .’’

5 The plaintiff also claimed that the trial court improperly instructed the

jury on criminal trespass because ‘‘the defendant failed to plead that his

special defenses relied on a criminal statute, and . . . it was plain error

for the court not to include an instruction on the duty to retreat and the

mere words doctrine.’’ Burke v. Mesniaeff, supra, 177 Conn. App. 836. The

Appellate Court noted that our rules of practice require a special defense

grounded on a statute to be specifically identified by its number; see Practice

Book § 10-3; but held that the improper instruction on criminal trespass

was harmless because ‘‘the jury did not find that [the plaintiff’s] claims

were barred by the defendant’s wrongful conduct special defense.’’ Burke

v. Mesniaeff, supra, 838. The Appellate Court further held that the plaintiff

could not prevail under the plain error doctrine ‘‘because the duty to retreat
exception on which she relies pertains to the use of deadly force, which is

not an issue in this case’’; id., 843; and the plaintiff did not request an

instruction on the mere words doctrine. Id., n.14.

6 We granted the plaintiff’s petition for certification to appeal, limited to

the following issue: ‘‘Did the Appellate Court properly affirm the trial court’s

judgment when it determined that (1) the trial court did not improperly

charge the jury on the defendant’s justification defense of criminal trespass,

(2) the special defense of others was not barred by insufficient evidence,

and (3) no finding needed to be made on the plaintiff’s rights to the property?’’

Burke v. Mesniaeff, 328 Conn. 901, 177 A.3d 564 (2018).

7 Section 53a-20 is a criminal statute, but the parties do not question its

general applicability to civil actions, and, therefore, we assume for the

purpose of this appeal that § 53a-20 provides a special defense to the tort

of intentional assault and battery, provided there is sufficient evidence to

support the defense. Cf. Brown v. Robishaw, 282 Conn. 628, 636, 922 A.2d

1086 (2007) (‘‘it is well established that the defense of self-defense is available

to a defendant faced with the intentional torts of civil assault and battery,

provided that there is sufficient evidence in support of that defense’’).

8 The undisputed evidence established that the plaintiff had painted the

interior of the Sharon house and managed the rental of an adjacent guest

cottage.

9 Wrongful conduct, by contrast, is not a justification defense; it is a

limitation on liability in civil actions premised on the notion that a plaintiff

should not recover ‘‘for injuries that are sustained as the direct result of

his or her knowing and intentional participation in a criminal act.’’ Greenwald

v. Van Handel, 311 Conn. 370, 377, 88 A.3d 467 (2014).

10 The idiosyncratic terminology adopted by the trial court in the jury

charge, following the defendant’s lead, was carried over to the jury interrogatories, which also treated the special defenses separately. In relevant part,

the jury was requested to answer four different questions, one for each

special defense. See footnote 4 of this opinion. Again, the special defense

of justification was kept separate and distinct from the special defense of

defense of others.

11 We disagree with the Appellate Court majority that the plaintiff was not

harmed by the improper justification instruction because the jury’s finding

that the plaintiff’s recovery ‘‘was not barred by the doctrine of wrongful

conduct’’ must mean that the jury ‘‘decided that the plaintiff was not trespassing.’’ Burke v. Mesniaeff, supra, 177 Conn. App. 837. We agree with

the dissenting opinion that the jury’s findings on the special defenses of

justification and wrongful conduct cannot be deemed irreconcilable for two

reasons. See id., 854 (Bishop, J., dissenting) (‘‘I do not believe it is reasonable

to glean from the jury’s answer to the wrongful conduct interrogatory that

the jury found that the plaintiff had not been trespassing’’); see also Suarez

v. Dickmont Plastics Corp., 242 Conn. 255, 270, 698 A.2d 838 (1997) (noting

that court has duty to ‘‘harmonize’’ answers to jury interrogatories if possible). First, the jury was instructed that the defendant’s special defense of

wrongful conduct was predicated on the defendant’s claim that the plaintiff

‘‘was trespassing on the premises and exhibiting disorderly conduct and/

or creating a disturbance.’’ (Emphasis added.) The use of the conjunctive

‘‘and’’ necessarily conveyed to the jury that it had to find both that the

plaintiff had committed a criminal trespass and that she had engaged in

disorderly conduct and/or creating a disturbance. The jury reasonably may

have found that, although the plaintiff had committed the crime of trespass,

she had not committed the crimes of disorderly conduct and/or creating a

disturbance, and, therefore, her recovery was not barred by the wrongful

conduct doctrine. Second, the jury was instructed that ‘‘[t]he wrongful conduct defense does not apply if you find that the plaintiff sustained injuries

and damages independent of any wrongful conduct of the plaintiff.’’ The

jury reasonably may have found that the plaintiff sustained her injuries after

the completion of the commission or attempted commission of the criminal

trespass, and, therefore, her recovery was not barred by the wrongful conduct doctrine.

12 The trial court combined self-defense and defense of others in a single instruction.

13 As we previously explained, the details surrounding the assault were

hotly disputed at trial, and the jury was presented with two very different

versions of events. According to the plaintiff, the defendant perpetrated a

violent and unprovoked physical assault, during which he dragged her out

of the house and down the driveway, flinging her to the ground and yanking

her back up multiple times. The defendant, Teasdale, and Osborne, by
contrast, testified that the defendant’s unwanted physical contact with the

plaintiff was provoked by the plaintiff’s out of control verbal and physical

behavior and consisted only of holding her arm ‘‘like a man would walk

with a woman’’ and escorting her away from the Sharon house and the

defendant’s frightened guests. The jury interrogatories reveal that the jury

resolved this factual dispute in favor of the defendant, finding that the

defendant used an amount of force that was reasonable under the circumstances to protect his guests from the imminent threat of harm posed by

the plaintiff. Given the jury’s finding that the defendant’s use of force was

reasonable, we can fairly presume that the jury did not credit the plaintiff’s

testimony that the defendant ‘‘flung [her]’’ to the ground multiple times

and ‘‘jerked [her] up . . . by [her] right arm’’ each time that she struck

the ground.

14 Recall that the jury rejected the defendant’s special defense of selfdefense, thereby indicating that it did not find the plaintiff’s trespassing

behavior to be so ‘‘inherently threatening’’ as to justify the use of force in

self-defense.

15 The plaintiff contends that there was no imminent threat of physical

harm to the defendant’s guests because, according to the defendant’s own

testimony, his physical contact with the plaintiff was consensual until the

parties were three-quarters of the way down the driveway. The defendant’s

testimony was contradicted, however, by the plaintiff’s testimony that the

assault and battery began inside the Sharon house and that the defendant

pulled her out of the Sharon house without her consent. It is well established

that the ‘‘defendant’s own testimony need not support [his] theory of

defense,’’ and the defendant may ‘‘rely on evidence adduced either by himself

or by the [plaintiff] to meet [his] evidentiary’’ burden. (Emphasis in original;

internal quotation marks omitted.) State v. Bryan, supra, 307 Conn. 834. In

light of the evidence indicating that the defendant’s use of force began inside

the Sharon house, in the same room as one of the defendant’s guests, we

reject the plaintiff’s claim that there was insufficient evidence to support

the imminence requirement.