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*********************************************** 
STATE OF CONNECTICUT v. MARCELLO E.*

(AC 44211)

Alvord, Suarez and Bishop, Js.

Syllabus

Convicted of the crime of assault in the first degree in connection with the

stabbing of the victim, his former partner and the mother of their two

children, the defendant appealed to this court. He claimed that the trial

court improperly admitted certain evidence of his alleged uncharged

misconduct that pertained to two altercations he had with the victim

prior to the date of the charged crime. Prior to trial, the state, pursuant to

the applicable provision (§ 4-5 (c)) of the Connecticut Code of Evidence,

sought to admit evidence of four prior altercations between the defendant and the victim for the purpose of establishing the defendant’s intent

to commit the charged crime. The trial court admitted evidence of two

of the altercations, which occurred two and three years before the

stabbing. In one incident, the victim sustained a concussion after the

defendant punched her in the face; in another incident, he punched her

in the mouth in the presence of their minor daughter. On appeal, the

defendant claimed that the uncharged misconduct was not relevant to

intent or similar in nature to the charged crime, and that the uncharged

misconduct was more prejudicial than probative and, thus, harmful. Held

that the trial court did not abuse its discretion in admitting uncharged

misconduct evidence involving two prior altercations between the defendant and the victim, as that evidence was relevant and probative and,

thus, admissible to prove his intent to assault the victim by stabbing

her: the court reasonably could have found that the prior misconduct

was sufficiently probative of intent because it involved the same victim

and was of a similar nature as the charged conduct, which involved

repeated stabs to the victim’s head and body, evidence that the defendant

previously struck the victim made it more likely that he intended to

cause her serious physical injury by stabbing her, as the prior misconduct, which was not too remote, was probative of his attitude toward

her well-being, and, contrary to defendant’s assertion, the admission of

the prior misconduct did not run afoul of the Supreme Court’s determination in State v. Juan J. (344 Conn. 1) that uncharged misconduct is

inadmissible to prove intent in general intent crimes; moreover, this

court could not conclude that the trial court abused its discretion in

determining that the probative value of the misconduct evidence outweighed its prejudicial effect, as the conduct and injuries underlying

the misconduct, which did not involve the use of a weapon, were substantially less severe than that involved in the charged crime and were not

likely to arouse the jurors’ emotions so as to create undue prejudice,

the misconduct evidence was litigated out of the jury’s presence and

did not consume an undue amount of trial time or create side issues,

the state’s questioning of the victim about it was limited and not inflammatory, and the defendant was not unfairly surprised by the misconduct

evidence; furthermore, the court instructed the jury on three occasions

that it could consider the misconduct evidence solely on the issue of

intent, thereby restricting the state’s use of the misconduct and limiting

its prejudicial effect, the defendant’s alibi that he was asleep at home

when the stabbing occurred rested on his testimony and that of his

mother and sister, which was contradicted by the testimony of investigating police officers that his mother and sister were not cooperative and

would not provide them with any information, and, even if the court

improperly admitted the misconduct evidence, in light of the strength

of the state’s case and the tailored introduction of the uncharged misconduct evidence, this court was left with a fair assurance that the evidence

did not substantially affect the verdict.

(One judge dissenting)

Argued March 8—officially released October 18, 2022

Procedural History
Substitute information charging the defendant with

the crime of assault in the first degree, brought to the

Superior Court in the judicial district of Hartford and

tried to the jury before Gold, J.; verdict and judgment

of guilty, from which the defendant appealed to this

court. Affirmed.

John R. Weikart, assigned counsel, with whom was

Emily Graner Sexton, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, senior assistant state’s attorney,

with whom, on the brief, were Sharmese L. Walcott,

state’s attorney, and Anthony Bochicchio, supervisory

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

ALVORD, J. The defendant, Marcello E., appeals from

the judgment of conviction, rendered after a jury trial,1

of assault in the first degree in violation of General

Statutes § 53a-59 (a) (1). On appeal, the defendant

claims that the trial court improperly admitted

uncharged misconduct evidence. 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. The defendant and the victim met and began

dating around 1995 when the victim was fifteen years

old. The defendant and the victim had two children

together, J, who was born in 1998, and S, who was born

in 2003. At the time of S’s birth, the defendant and

the victim lived together in Hartford; they later moved,

briefly, to South Windsor. In 2008, the defendant and

the victim began to have problems in their relationship.

The couple had several arguments that evolved from

verbal disagreements to physical incidents. Following

one such incident in October, 2009, the defendant

stopped living with the victim and their children.

In November, 2011, the defendant resided at his mother’s home with his mother, sister, nephews, and brother

on B Street in Hartford. He and the victim had an

arrangement wherein the defendant would pick up S

from school, after 3 p.m., and bring her to his mother’s

house until the victim left her workplace. After the

victim left work at about 5 p.m., she would pick up S

at the home of the defendant’s mother and then return

to their home on M Street in Hartford. When the victim

arrived at the home of the defendant’s mother to pick

up S, the victim typically would not go inside but instead

would call S to come out because the victim ‘‘did not

want to have any contact with [the defendant] at all.’’

On November 16, 2011, the defendant picked up S

at school at about 3:45 p.m., took her to a fast-food

restaurant, and brought her to his mother’s home. After

they arrived, the defendant went upstairs to his room.

Thirty minutes before the victim picked up S, the defendant left the house with a backpack and got into a car.

He did not return prior to S’s leaving the house.

At about 5:30 p.m., the victim picked up S at the home

of the defendant’s mother. The victim and S then went

to a grocery store to pick up food for dinner, which took,

at most, twenty minutes. Then, they returned home to

M Street, where the victim parked her car in the driveway. S got out of the car, walked to the back door,

and entered the home first. The victim followed after

grabbing her bag and the groceries.

The victim entered her home and turned to lock the

back door when the defendant ran up to her and began

stabbing her. Because the defendant was not wearing

a face covering, the victim got a good look at him. The
defendant repeatedly stabbed the victim in the head,

leg, arm, and back, and pulled her outside. The victim

yelled for J, who was already inside the home, to come

help her. J ran outside, picked up the victim, brought

her into their home, and locked the door. The victim

originally thought she had been beaten, but upon hearing a gushing sound and feeling her leg, she told J,

‘‘your father stabbed me.’’ The defendant ran toward a

neighbor’s fence on the side of the victim’s home.

Shortly thereafter, S called the defendant, told him

about the attack on the victim, and the phone line

promptly went dead.

At 5:58 p.m., two minutes after receiving a call that

someone had been stabbed on M Street, a Hartford

police officer arrived at the victim’s home. As part of

their investigation, officers spoke with J on November

16, 2011.2

J told the officers that the victim had identified

the defendant as her assailant.

Later that evening, two police officers went to the

home of the defendant’s mother to speak with the defendant. Officer Valentine Olabisi first spoke with the

defendant regarding his whereabouts at the time the

victim was attacked. Officer Olabisi testified that the

defendant had told him that ‘‘he was with his mother

all day and he hadn’t left the house’’ but ‘‘refused to

speak to [Officer Olabisi] any further.’’ Thereafter,

Detective Luis Poma attempted to make contact with

the defendant, but the defendant’s brother told him that

the defendant ‘‘was agitated.’’ When Detective Poma

then asked him for the defendant’s contact information,

he told Detective Poma that the defendant’s phone was

broken.

As a result of the defendant’s attack, the victim sustained multiple stab wounds, suffered a collapsed lung,

received staples extending from the top of her head

down to her ear, underwent three surgeries, and was

hospitalized for five days.3 After she was transported

to a hospital, stabilized by medical personnel, and

administered a large amount of pain medication, the

victim told the police that ‘‘she did not see the suspect’’

and that she had been attacked by an ‘‘unknown person.’’4 Five days after the attack, the victim identified

the defendant as her assailant from a photographic

array that the police had prepared.

Prior to trial, the defendant filed a motion for the

disclosure of any evidence of uncharged misconduct

that the state would seek to present at trial. On October

31, 2019, the court held a hearing on the admissibility

of evidence of four incidents in which the defendant

either had threatened or used violence against the victim. At the hearing, the state presented the testimony

of the victim as to the four incidents.

The victim testified that the first incident occurred

on January 30, 2007, at her workplace. The defendant
showed up there and wanted the victim to ‘‘come speak

to him about something that was going on’’ outside.

When the victim refused to speak with him, the defendant entered her workplace and attempted to pull her

outside. The victim ran from the defendant into a

coworker’s office. The defendant left the victim’s place

of work but continued to make threats to her over the

phone. The victim did not recall the specific words he

used to threaten her but recalled that they were ‘‘arguing

back and forth.’’

The victim testified as to a second incident that

occurred in March, 2008, at the home of the victim

and the defendant in South Windsor. The victim was

vacuuming, which ‘‘irritated [the defendant] because

the vacuum was too loud.’’ The victim asked the defendant to leave and ‘‘thought [the defendant] was leaving,

and . . . he proceeded to punch [her] in . . . [the]

head.’’ The victim attempted to leave the room multiple

times, but the defendant would not let her leave.

According to the victim, the defendant eventually ‘‘had

[her] on the ground. He punched [her] in [the] face.

[She] got a concussion from that. And he just would

not get out of [her] face.’’ The victim attempted to leave

the house, but the defendant pulled her back inside.

She pleaded with the defendant to let her leave. The

victim was eventually able to leave by saying that she

needed to get their dog, who had run outside, and then

ran to her neighbor’s home to call the police.

The victim testified as to a third incident that

occurred on October 13, 2009, at the home of the victim

and the defendant when they lived in Hartford. Because

the victim’s car was overheating, she asked the defendant for a ride, but he did not give her one. She took

her car to work, and it overheated on the highway.

According to the victim, when she arrived home, the

defendant acted ‘‘like nothing happened’’ and as though

her ‘‘safety was not a concern of his . . . .’’ The victim

and the defendant proceeded to get ‘‘into an altercation

where . . . something happened, and he punched [her]

in [the] face, in [her] mouth in front of [their] daughter

at the time and, like, blood was like squirting everywhere.’’ A friend arrived and brought the victim and S

to the police department to file a report.

The victim testified as to a fourth incident that

occurred on December 16, 2009, after the defendant no

longer lived with her. The defendant called the victim

to try to get her to take him back. The defendant made

threats to the victim and stated, ‘‘if I go down you go

down with me . . . .’’

The prosecutor argued that the four prior incidents

were relevant to the defendant’s motive and intent to

commit the charged crime and stated that there was not

‘‘enough to offer them under identity.’’ Defense counsel

objected, arguing, principally, that the incidents were

not relevant to either motive or intent and that they
would be unduly prejudicial. Defense counsel argued

that the incidents were not similar in nature to the

charged crime because, in contrast to the prior incidents, during the charged crime, ‘‘there was no words,

there was no threats. There was just an attack.’’ Additionally, defense counsel argued, inter alia, that the

prejudicial effect of the prior incidents was ‘‘[overwhelming, especially] in view of the nature of the actual

allegations of the serious assault.’’5

The prosecutor argued that the incidents revealed a

pattern of ‘‘escalating violence towards one particular

individual which goes directly to . . . motive, which

is essential, and intent, which needs to be proved.’’

Additionally, the prosecutor argued that ‘‘the fact that

[the prior incidents of misconduct] are less egregious

than the incident offense, makes [them] more admissible.’’ In responding to the defendant’s argument that

the misconduct evidence was not similar to the charged

offense, the prosecutor argued that ‘‘similarity is

important if you’re looking to admit the evidence [for]

identity, which we are not.’’ Additionally, the prosecutor

maintained that, were the court to admit the prior misconduct evidence at trial, he would not seek to offer

any evidence of convictions or arrests resulting from

the incidents or seek to elicit testimony from the victim

that she had called the police.

After hearing the victim’s testimony regarding the

uncharged misconduct evidence and during counsel’s

arguments, the court requested that the prosecutor

summarize the nature of the conduct that was charged

in the case and the nature of the victim’s testimony.

The prosecutor responded: ‘‘In this case, basically, [the

victim] will testify that she had come home from picking

up her daughter. Her daughter went to the house first.

She was going into the house. . . . [A]s she was walking in she was attacked from behind, and . . . thought

at the time she was being assaulted. She didn’t realize

she was stabbed until the attack was over. She was

stabbed several times causing serious physical injury.

And she’s going to testify that [the defendant] is the

individual who stabbed [her].’’ The court further

inquired whether the victim was stabbed multiple times

and the location of her wounds. The prosecutor stated

that she was stabbed multiple times on her head and

body and that ‘‘[t]here was significant injury to her legs

and to her head. She will testify, I believe, that there

was no warning and no lead up . . . to it.’’

On the first day of trial, the court orally ruled on the

admissibility of the uncharged misconduct evidence.

The court stated that, ‘‘[p]ursuant to § 4-5 of the [Connecticut] Code of Evidence these prior incidents are

admissible only if they satisfy the relevancy standard

set forth in [§] 4-1 of the [Connecticut Code of Evidence]

and [the] balancing test set forth in [§] 4-3 [of the Connecticut Code of Evidence]. Consistent with those . . .
code provisions, the court has considered the extent

to which these prior incidents are relevant to the issues

of intent and motive, and then undertaken to balance

the probative value of each incident against that incident’s prejudicial effect.

‘‘In considering the prejudicial effect of the other

crimes evidence, the court has considered such prejudice that could arise, for example, from the creation of

side issues, the possible risk of jury confusion, or a risk

that the jury’s emotion would be so aroused by learning

of these prior incidents so as to create undue prejudice.

At the outset the court has recognized that as our Appellate Court has stated most recently in State v. Anthony

L., 179 Conn. App. 512 [179 A.3d 1278, cert. denied, 328

Conn. 918, 181 A.3d 91 (2018)], and State v. Morales,

164 Conn. App. 143 [136 A.3d 278, cert. denied, 321

Conn. 916, 136 A.3d 1275 (2016)], and I quote, when

instances of a defendant’s prior misconduct involved

the same victim as the crimes for which the defendant

is presently being tried, those acts are especially illuminative of the defendant’s motivation and attitude toward

that victim and thus of his intent as to the incident in

question, closed quote.

‘‘I have also taken into account that our law makes

clear that where, as here, a defendant has pleaded not

guilty the defendant places in issue all elements of the

charges against him including the element relating to

intent. Moreover, all elements remain challenged by the

defendant in the eyes of the law even if the defendant

plans to pursue a defense that centers not on his mental

state but on whether or not he was the perpetrator of

the crime.’’

The court then addressed each of the four incidents of

uncharged misconduct separately. The court excluded

evidence of the first incident, which allegedly occurred

at the victim’s workplace, because ‘‘neither the nature

of the physical contact [the victim] described nor the

threat bears sufficiently on the defendant’s intent in the

present case.’’ The court also excluded evidence of the

fourth incident, the phone call on December 16, 2009,

when the defendant allegedly threatened the victim by

saying, ‘‘if I go down you go down . . . .’’ The court

concluded that admitting evidence of the phone call

would require the victim to contextualize and explain

events that occurred two years prior to the crime at

issue and would ‘‘create a risk that the jury would

become confused and would certainly create side

issues.’’

The court ruled that it would permit the state to

introduce evidence of two of the four incidents, specifically, the second and third incidents. As to the second

incident, in which the defendant allegedly punched the

victim in the head during an argument and restrained

her from leaving their home, the court found those facts

‘‘to be probative of the defendant’s intent in the present
case and sufficiently probative so as to outweigh any

prejudicial effect.’’ Balancing the probative value of the

evidence against its prejudicial effect, the court concluded that the incident was ‘‘not so remote in time to

the charged offense to eliminate its probative value and

when compared to the facts claimed in the charged

case, is not such as is likely to arouse the jury’s emotions.’’ Additionally, the court concluded that, because

the second incident did not involve a weapon, the jurors’

emotions would not be so aroused by the behavior

during that incident and that they would be able to

‘‘separate that incident from the present one.’’ Finally,

the court addressed the ‘‘dissimilarity’’ between the

charged stabbing incident and the prior assault, and

noted that courts have held ‘‘that prejudice is lessened

by virtue of that dissimilarity.’’

The court found that the third incident, in which the

defendant allegedly punched the victim in the mouth

after her car overheated, was ‘‘relevant to the issue of

intent in the present case.’’ Balancing the probative

value of the evidence against its prejudicial effect and

relying on precedential case law, the court determined

that the third incident was ‘‘not too remote, nor is it

too similar to the present case, nor is it so serious as

to be such as to arouse the jury’s emotion.’’ Therefore,

the court concluded that evidence of the third incident

was ‘‘probative of [the defendant’s] intent in the present

case and sufficiently probative so as to outweigh its

prejudicial effects.’’

The court stated that it was ‘‘permitting those incidents to be considered by the jury only as to intent,

not as to motive.’’ The court further instructed the prosecutor to ensure that he did not question the victim in

a manner so as to elicit information ‘‘regarding police

involvement or court proceedings that may have followed the incident[s] . . . .’’ Additionally, the court

directed that ‘‘[t]he state also shall elicit testimony

regarding these two prior incidents in a non-inflammatory manner.’’ Finally, the court stated that it was ‘‘prepared to give an instruction regarding the use to which

these prior incidents may be put’’ and that it would do

so in its final charge to the jury and immediately before

or after the victim testified to these incidents, whichever defense counsel preferred. Defense counsel

responded that he would prefer that the court give the

limiting instruction after the victim testified.

Prior to the start of evidence, the court instructed

the jury that ‘‘[s]ome evidence in this case may be admitted for a limited purpose only. If I instruct you that

particular evidence has been admitted for a limited

purpose, then you may consider that evidence only for

the limited purpose that I explain to you and not for

any other purpose.’’ At trial, the victim testified, in less

detail than during the hearing,6 as to the second and

third incidents discussed previously. With respect to
the March, 2008 incident, the victim testified that she

had ‘‘asked [the defendant] to leave and it became verbal and then it became physical,’’ and he hit her. With

respect to the incident on October 13, 2009, the victim

testified that she and the defendant got into an argument

and that he punched her in the face.

After the victim testified, and, as requested by defense

counsel, the court instructed the jury regarding the limited purpose of the uncharged misconduct evidence.7

The court instructed the jury that it could consider the

victim’s testimony regarding the prior acts ‘‘solely to

show or to establish what the defendant’s intent may

have been at the time he’s alleged to have committed

the specific crime charged here.’’ Further, the court

warned the jury that it ‘‘may not consider the evidence

of these prior acts as establishing a predisposition on

the part of the defendant to commit the crime charged

or to demonstrate that he has a criminal propensity

to engage in criminal conduct. You may consider this

evidence of these prior incidents only if you believe it

occurred, and further, only if you find that it logically,

rationally and conclusively bears on the issue of

whether or not the defendant had the intent to commit

the crime that is charged in this case.’’ Defense counsel

did not object to the substance or timing of these

instructions.

The defendant presented an alibi defense at trial. The

defendant’s mother and sister both testified that, on

the evening the victim was attacked, the defendant was

at his mother’s home. They both testified that the defendant’s mother called out to the defendant from the

living room at about 6 p.m. but that he did not come

downstairs from his room. The defendant’s mother then

walked upstairs and shook the defendant to wake him.

The defendant’s mother and sister testified that at least

one police officer8 came to their home on November

16, 2011, to speak with the defendant regarding the

attack on the victim. Although the defendant’s mother

and sister both testified that they would have provided

information to the officers on the night of the attack

or at any time thereafter, had they been contacted,

Officer Olabisi testified, to the contrary, that ‘‘[the

defendant’s mother and sister] were not cooperative,

and they wouldn’t provide any information.’’

The defendant testified in his own defense and maintained that he was not responsible for the attack on

the victim. He testified that, after he brought S from

school to his mother’s house, he helped her with her

homework, and then went upstairs to bed. He stated

that the next thing he remembered was his mother

waking him up. According to the defendant, S called

him shortly after that, at 6:01 p.m. but the phone disconnected on her end. He testified that he was cooperative

with Officer Olabisi, the first officer to arrive at the

home of the defendant’s mother, and that Detective
Poma called him twice that night and hung up on him.

During direct examination by his counsel, the defendant acknowledged that he and the victim had troubles

in the past ‘‘like any other couples . . . .’’ On crossexamination, the defendant stated that he had physical

altercations with the victim in the past and that, after

the last incident in 2009, they stopped living together.

The following colloquy between defense counsel and

the defendant took place during redirect examination:

‘‘Q. [The prosecutor] indicated that you had a physical

altercation with her in the past?

‘‘A. In the past.

‘‘Q. With [the victim] in the past. Correct?

‘‘A. Yes, sir.

‘‘Q. And you accepted responsibility for it?

‘‘A. Yes, sir.

‘‘Q. You pled guilty to it?

‘‘A. Yes, sir.’’

During closing argument, the prosecutor reminded

the jury that it could consider evidence of the defendant’s prior conduct: ‘‘Now, you also heard about some

prior conduct by the defendant towards [the victim].

When I asked the defendant the relationship went bad,

yeah, like everybody’s. But you got physical. Simple

response was yes. That can be considered by you.’’

Additionally, in setting forth the elements of the charge

of assault in the first degree, the prosecutor argued

that, ‘‘if you have a serious physical injury and intent

to cause a serious physical [injury] . . . the question

then becomes who committed the act. I’d argue that

there is only evidence of one particular party that would

be the defendant.’’ During rebuttal argument, the prosecutor stated: ‘‘I can agree with [defense] counsel that

the issue in this case is identification.’’

During closing argument, defense counsel argued:

‘‘[The defendant] said that he had a physical altercation

with his wife three years before the incident. But certainly nothing even close to the level of violence we

see in this case and certainly with no weapon of any

type. And to his credit he took responsibility for his

actions and pled guilty. If he’s guilty, he pleads guilty.’’

After the close of evidence and closing arguments,

the court, again, instructed the jury that it could consider the victim’s testimony regarding the uncharged

misconduct evidence only for the limited purpose of

proving that the defendant had the intent to commit

the crime with which he was charged.9 The jury found

the defendant guilty of assault in the first degree. The

court imposed a sentence of twenty years of incarceration.10
By way of a motion for a new trial, the defendant

renewed his challenge to the admission of the two incidents of prior uncharged misconduct evidence. He

argued that ‘‘[a]llowing the jury to hear about them

even for a limited purpose was much more prejudicial

than probative.’’ Additionally, he emphasized the difference between the misconduct and the crime at issue,

arguing that the prior incidents were ‘‘domestic matters’’ that ‘‘happened about two or three years prior to

the incident’’ at issue and ‘‘came nowhere [near] the

level of violence in this case.’’ The court orally denied

the motion. Thereafter, this appeal from the judgment

of conviction followed.

The defendant’s sole claim on appeal is that the trial

court abused its discretion in admitting evidence of his

prior misconduct. He argues that the evidence was not

relevant or material, and, even if deemed to have probative value, its prejudicial effect outweighed any such

probative value and was harmful. In response, the state

maintains that the trial court acted well within its discretion in admitting the prior misconduct evidence after

finding it relevant and not unduly prejudicial. The state

additionally maintains that, even if the admission of the

prior misconduct was improper, the defendant has not

satisfied his burden of demonstrating harm resulting

from its admission. We agree with the state.

‘‘Although [e]vidence of a defendant’s uncharged misconduct is inadmissible to prove that the defendant

committed the charged crime or to show the predisposition of the defendant to commit the charged crime,

such evidence is admissible if it is offered to prove

intent, identity, malice, motive, a system of criminal

activity or the elements of a crime. . . . To determine

whether evidence of prior uncharged misconduct is

admissible for a proper purpose, we have adopted a

two-pronged test: First, the evidence must be relevant

and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value

of such evidence must outweigh the prejudicial effect

of the other crime evidence.’’ (Citation omitted; internal

quotation marks omitted.) State v. Patrick M., 344 Conn.

565, 597, 280 A.3d 461 (2022); see Conn. Code Evid. § 4-

5 (‘‘(a) [e]vidence of other crimes, wrongs or acts of

a person is inadmissible to prove the bad character,

propensity, or criminal tendencies of that person’’ but

is admissible for other purposes, ‘‘(c) . . . such as to

prove intent, identity, malice, motive, common plan or

scheme, absence of mistake or accident, knowledge, a

system of criminal activity, or an element of the crime,

or to corroborate crucial prosecution testimony’’).

‘‘Our standard of review on such matters is well established. The admission of evidence of prior uncharged

misconduct is a decision properly within the discretion

of the trial court. . . . [E]very reasonable presumption

should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only [when]

abuse of discretion is manifest or [when] an injustice

appears to have been done.’’ (Internal quotation marks

omitted.) State v. Patrick M., supra, 344 Conn. 598.

‘‘In determining whether there has been an abuse of

discretion, the ultimate issue is whether the court could

reasonably conclude as it did.’’ (Internal quotation

marks omitted.) State v. Franko, 142 Conn. App. 451,

460, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d

30 (2013).

The defendant argues on appeal that ‘‘this court

should conclude that in the present case, where the

defendant was charged with using a deadly weapon

to carry out an out-of-the-blue ambush style stabbing

attack on his ex, more than two years after the end of

their relationship, the trial court abused its discretion

by admitting evidence that he twice, during their relationship, inflicted a lesser degree of violence on her

without a weapon in the context of escalating domestic

arguments that resulted in much less severe injuries.

. . . Moreover, where the nature of the attack, as

shown by the state’s uncontested evidence, left little

doubt that the perpetrator of the attack on [the victim]

acted with the specific intent to cause serious physical

injury, and where identity of the perpetrator was the

central issue for the jury, the prejudicial effect of the

uncharged misconduct evidence far outweighed any

marginal probative value, because the jury, in

attempting to resolve the identity issue, was likely to

employ an impermissible inference that the defendant

had a propensity to violence against [the victim].’’

We first consider the probative value of the prior

misconduct evidence. The trial court found that the

prior misconduct evidence from (1) the vacuuming incident in March, 2008, and (2) the car overheating incident

on October 13, 2009, was ‘‘probative of the defendant’s

intent in the present case . . . .’’ We agree with the

court that the evidence of uncharged misconduct was

relevant to the issue of intent.

The defendant was charged with assault in the first

degree in violation of § 53a-59 (a) (1),11 which is a specific intent crime. State v. Sivak, 84 Conn. App. 105,

110, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d

573 (2004). Therefore, ‘‘the state bore the burden of

proving the following elements beyond a reasonable

doubt: (1) the defendant possessed the intent to cause

serious physical injury to another person; (2) the defendant caused serious physical injury to such person . . .

and (3) the defendant caused such injury by means of

a deadly weapon or a dangerous instrument.’’12 State v.

Holmes, 75 Conn. App. 721, 740, 817 A.2d 689, cert.

denied, 264 Conn. 903, 823 A.2d 1222 (2003).

At the outset, we address the defendant’s contention

that, because intent was not at issue during the trial

and he pursued an alibi defense, the court abused its
discretion in admitting the uncharged misconduct evidence under the intent exception to the hearsay rule

as set forth in § 4-5 (c) of the Connecticut Code of

Evidence. We disagree.

‘‘[I]ntent, or any other essential element of a crime, is

always at issue unless directly and explicitly admitted

before the trier of fact.’’ (Emphasis in original; internal

quotation marks omitted.) State v. Irizarry, 95 Conn.

App. 224, 233–34, 896 A.2d 828, cert. denied, 279 Conn.

902, 901 A.2d 1224 (2006); see also Estelle v. McGuire,

502 U.S. 62, 69–70, 112 S. Ct. 475, 116 L. Ed. 2d 385

(1991) (noting that ‘‘prosecution’s burden to prove

every element of [a] crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense’’ and holding that extrinsic act evidence is not constitutionally inadmissible merely

because it relates to issue that defendant does not

actively contest). ‘‘Because intent is almost always

proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied

upon.’’ (Internal quotation marks omitted.) State v. Chyung, 325 Conn. 236, 263, 157 A.3d 628 (2017).

In its oral ruling on the admissibility of the uncharged

misconduct evidence, the court stated that the defendant had pleaded not guilty to the charge of assault in

the first degree and that ‘‘all elements remain challenged

by the defendant in the eyes of the law even if the

defendant plans to pursue a defense that centers not

on his mental state but on whether or not he was the

perpetrator of the crime.’’ The defendant did not

directly and explicitly admit before the trier of fact

that he had the intent to cause serious physical injury.

Therefore, the state bore the burden of proving that

the defendant had the intent to cause serious physical

injury to the victim. See State v. Erhardt, 90 Conn. App.

853, 860 n.2, 879 A.2d 561 (‘‘The defendant argues that

intent was not an issue in this case because he testified

that the victim injured herself and that intent was not

a focus of the state’s case. That argument is meritless.

The defendant did not admit that he had an intent to

cause physical injury; therefore, this was a contested

issue that the state had to prove, and evidence regarding

that issue was relevant and material.’’), cert. denied,

276 Conn. 906, 884 A.2d 1028 (2005). The trial court

reasonably could have determined that the uncharged

misconduct evidence was relevant to prove intent.

The defendant further argues that the uncharged misconduct evidence was irrelevant to whether he intended

to cause serious physical injury to the victim on the

night of the charged conduct because ‘‘there must be

some particular, articulable connection between the

uncharged misconduct and the specific intent element

the state is required to prove.’’ Specifically, the defendant claims that ‘‘[t]he absence of similarity between

the charged and uncharged misconduct severely limited
its probative value . . . .’’ Additionally, he contends

that, ‘‘even if the defendant acted intentionally in 2008

and 2009 [the years in which the uncharged misconduct

incidents occurred], it is not at all clear that he acted

with an intent to cause serious physical injury.’’ The

state responds that the uncharged misconduct evidence

‘‘placed their relationship in context and demonstrated

[the defendant’s] attitude and motivation against [the

victim], and, thus, his intent to engage in an assault

that caused [the victim] serious physical injury.’’ We

agree with the state.

In admitting the prior misconduct evidence for the

purpose of showing the defendant’s intent to commit

assault in the first degree, the court relied on State v.

Anthony L., supra, 179 Conn. App. 525, and State v.

Morales, supra, 164 Conn. App. 180, for the principle

that, ‘‘when instances of a defendant’s prior misconduct

involved the same victim as the crimes for which the

defendant is presently being tried, those acts are especially illuminative of the defendant’s motivation and

attitude toward that victim and thus of his intent as to

the incident in question . . . .’’

In Anthony L., the defendant appealed from his conviction of sexual assault in the first degree, risk of

injury to a child, and sexual assault in the third degree,

claiming in relevant part ‘‘that the trial court abused its

discretion by admitting evidence of uncharged misconduct because the evidence was more prejudicial than

probative.’’ State v. Anthony L., supra, 179 Conn. App.

523. On appeal, this court determined that prior misconduct evidence of the defendant’s ‘‘sexual interest in

the complainant, upon which the defendant acted by

sexually abusing the complainant before and during the

charged period,’’ was relevant to the defendant’s motive

and intent. Id., 525. Specifically, this court determined

that, ‘‘[w]hen instances of a criminal defendant’s prior

misconduct involve the same [complainant] as the

crimes for which the defendant is presently being tried,

those acts are especially illuminative of the defendant’s

motivation and attitude toward the [complainant], and,

thus, of his intent as to the incident in question. . . .

[Therefore] because the [prior] misconduct . . .

involved the same complainant and was of the same

nature as the misconduct charged, it was material to

prove the defendant’s lustful inclinations toward the

complainant.’’ (Citations omitted; internal quotation

marks omitted.) Id., 525–26. Similarly, the court in the

present case reasonably could have found that the prior

misconduct evidence, specifically, the defendant’s

punching and hitting the victim in the head and mouth,

was sufficiently probative of the defendant’s intent in

the present case because it involved the same victim

and was of a similar nature as the charged conduct—

repeated stabs to the victim’s head and body. See id.,

526; see also State v. Erhardt, supra, 90 Conn. App. 860

(‘‘prior incidents of physical violence by the defendant
toward the same victim are relevant and material to

indicate that he intended to cause the victim physical

injury in the stabbing incident’’).

Our law does not require that the uncharged misconduct evidence be identical to the charged crime to be

probative of the defendant’s intent. See State v. Erhardt,

supra, 90 Conn. App. 860 (‘‘[t]he high degree of similarity required for admissibility on the issue of identity is

not required for misconduct evidence to be admissible

on the issue of intent’’ (internal quotation marks omitted)). In the present case, the two incidents, involving

the defendant’s assault of the victim by hitting and

punching her, were sufficiently similar to the charged

assault on the victim, which involved the defendant

stabbing her. See State v. Epps, 105 Conn. App. 84, 94,

936 A.2d 701 (2007) (upholding admission of evidence

of prior misconduct, as relevant to intent, involving

defendant’s punching and hitting victim where charged

incident involved defendant’s pouring gasoline on victim and igniting it, resulting in extensive burns), cert.

denied, 286 Conn. 903, 943 A.2d 1102 (2008); State v.

Erhardt, supra, 858–60 (upholding admission of evidence of prior misconduct, as relevant to intent, involving defendant’s head-butting victim where charged incident involved defendant’s cutting of victim’s face with

knife and holding knife to her throat).

‘‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.

. . . One fact is relevant to another if in the common

course of events the existence of one, alone or with

other facts, renders the existence of the other either

more certain or more probable.’’ (Internal quotation

marks omitted.) State v. Kantorowski, 144 Conn. App.

477, 487, 72 A.3d 1228, cert. denied, 310 Conn. 924, 77

A.3d 141 (2013). Evidence that the defendant previously

had struck the victim made it more likely that he

intended to cause her serious physical injury by stabbing her because it was probative of ‘‘the defendant’s

attitude toward the well-being of the victim in the present case.’’ State v. Urbanowski, 163 Conn. App. 377,

405–406, 136 A.3d 236 (2016), aff’d, 327 Conn. 169, 172

A.3d 201 (2017). We therefore conclude that the prior

misconduct evidence was relevant and probative and,

thus, admissible for the purpose of establishing the

defendant’s intent to commit assault in the first degree.

Our determination that the evidence was relevant to

intent does not contravene the guidance of our Supreme

Court’s recent decision in State v. Juan J., 344 Conn.

1, 276 A.3d 935 (2022).13 In that case, the defendant was

convicted of the following general intent crimes: one

count of sexual assault in the first degree in violation

of General Statutes § 53a-70 (a) (2), one count of attempt

to commit sexual assault in the first degree in violation

of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1),

and two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2), arising out of two

charged incidents of sexual abuse involving inappropriate touching. Id., 5. At trial, the court admitted

uncharged misconduct evidence of prior incidents of

sexual abuse by the defendant against the complainant

for the purpose of showing the defendant’s intent. Id.,

8–9. Specifically, in addition to testifying regarding the

two charged incidents of inappropriate touching, the

complainant testified that ‘‘the defendant touched her

inappropriately ‘[o]ver ten times,’ that the inappropriate

touching took place ‘[f]requently’; she agreed with the

prosecutor that the touching took place ‘about ten times

and [that] it was essentially the same conduct each of

those times,’ and she testified that the touching continued after December 24, 2015, until she began living with

[her older cousin] in June, 2016.’’ Id., 9. The court also

admitted into evidence as full exhibits video recordings

of two forensic interviews of the complainant, in which

she stated, among other things, that the touching

occurred ‘‘all the time’’ and ‘‘every other day.’’14 (Internal

quotation marks omitted.) Id., 10. She also stated in

one of the forensic interviews that ‘‘the defendant had

performed oral sex on her, put his mouth on her breasts,

and digitally penetrated her anus.’’ Id.

On appeal, the defendant in Juan J. argued that the

trial court had abused its discretion in admitting the

uncharged misconduct evidence, as ‘‘intent was not presumptively at issue because he was charged only with

general intent crimes, not specific intent crimes,’’ and

‘‘intent was not affirmatively at issue because his theory

of defense was that the conduct never happened at all,

not that the conduct occurred as a result of unintentional actions.’’ Id., 17.

Our Supreme Court in Juan J. first recognized ‘‘the

fine line between using uncharged misconduct to prove

intent and using it to show the defendant’s bad character or propensity to commit the crime charged.’’ Id., 20.

After discussing the risk that the evidence will be used

improperly, the court stated: ‘‘In light of these concerns,

the state’s introduction of uncharged misconduct is

properly limited to cases in which the evidence is

needed to prove a fact that the defendant has placed,

or conceivably will place, in issue, or a fact that the

statutory elements obligate the government to prove.’’

(Internal quotation marks omitted.) Id. The court then

set forth the elements the state was required to prove

and noted that all the crimes charged were crimes of

general intent. See id. The court turned to a discussion

of how the burden of proof differs when prosecuting

general intent crimes as opposed to specific intent

crimes, ‘‘in which intent is a legislatively prescribed

element that the state must prove beyond a reasonable

doubt unless explicitly admitted by the defendant.’’ Id.,

22.15 Ultimately, our Supreme Court held that, ‘‘in a

general intent crime case, in which the theory of defense

is that the conduct did not occur at all, rather than
a theory of defense in which the conduct occurred

unintentionally, uncharged misconduct is irrelevant and

inadmissible to prove intent.’’ Id., 4–5. Thus, the court’s

holding is not controlling of the present case, in which,

as we already have explicated, the defendant was

charged with a specific intent offense, and the state, at

trial, bore the burden of proving beyond a reasonable

doubt that he acted with the specific intent required

for the commission of the charged offense. Rather, the

purpose for admitting the uncharged misconduct evidence in the present case—to prove that the defendant

had the specific intent to cause serious physical harm—

falls squarely within the limited parameters of Juan J.,

which permit the introduction of uncharged misconduct

in cases ‘‘in which the evidence is needed to prove a

fact that the defendant has placed, or conceivably will

place, in issue, or a fact that the statutory elements

obligate the government to prove.’’ (Emphasis added;

internal quotation marks omitted.) Id., 20.

Next, we address whether the evidence was unduly

prejudicial. ‘‘To determine whether the prejudicial

effect of evidence outweighs its probative value, a trial

court is required to consider whether the evidence may

(1) unduly arouse the jury’s emotions, hostility or sympathy, (2) create a side issue that will unduly distract

the jury from the main issues, (3) consume an undue

amount of time, or (4) unfairly surprise the defendant,

who, having no reasonable ground to anticipate the

evidence, is . . . unprepared to meet it. . . . We defer

to the ruling of the trial court because of its unique

position to [observe] the context in which particular

evidentiary issues arise and its preeminent position to

weigh the potential benefits and harms accompanying

the admission of particular evidence.’’ (Citation omitted; internal quotation marks omitted.) State v. Patrick

M., supra, 344 Conn. 600.

‘‘We are mindful that [w]hen the trial court has heard

a lengthy offer of proof and arguments of counsel before

performing the required balancing test, has specifically

found that the evidence was highly probative and material, and that its probative value significantly outweighed the prejudicial effect, and has instructed the

jury on the limited use of the evidence in order to

safeguard against misuse and to minimize the prejudicial impact . . . we have found no abuse of discretion.

. . . Proper limiting instructions often mitigate the

prejudicial impact of evidence of prior misconduct.

. . . Furthermore, a jury is presumed to have followed

a court’s limiting instructions, which serves to lessen

any prejudice resulting from the admission of such evidence.’’ (Internal quotation marks omitted.) State v.

Wilson, 209 Conn. App. 779, 821, 267 A.3d 958 (2022).

The defendant argues that ‘‘admissibility for the purpose of proving intent in the present case could only

have been based on reasoning that the past incidents
of violence by the defendant against [the victim] made

it more likely that the defendant wanted to hurt [the

victim] on November 16, 2011, and that he therefore

committed the charged offense.’’ He argues that, in this

context, the evidence was equivalent to prohibited propensity evidence.16 The state responds that ‘‘the trial

court properly analyzed the prejudicial effect of admitting the prior misconduct vis-a`-vis its probative value

and concluded that the prior misconduct did not create

undue prejudice.’’ We agree with the state.

After a hearing on the admissibility of the uncharged

misconduct evidence, the trial court carefully considered the state’s offer of four incidents of misconduct

and the defendant’s arguments in opposition and determined that evidence of only two of the incidents was

admissible. In explicating its determination as to each

incident, the court expressly considered the ‘‘creation

of side issues, the possible risk of jury confusion, or a

risk that the jury’s emotions would be so aroused by

learning of these prior incidents so as to create undue

prejudice.’’ Finally, the court limited the purpose for

and manner by which the state could introduce the

evidence. Specifically, the court limited the state to

introduction of the evidence for the purpose of intent,

prohibited the state from questioning the victim

‘‘regarding police involvement or court proceedings that

may have followed the incident[s]’’ and required the

state to ‘‘elicit testimony regarding these two prior incidents in a non-inflammatory manner.’’ See State v. Patterson, 344 Conn. 281, 296, 278 A.3d 1044 (2022) (finding

significant ‘‘the degree to which the trial court exercised

its discretion to limit the extent of the evidence of the

prior shootings it admitted’’).

Moreover, in ruling on the admissibility of the two

incidents of uncharged misconduct, the trial court

stated that, ‘‘when compared to the facts claimed in

the charged case, [the uncharged misconduct evidence

was] not such as is likely to arouse the jury’s emotions.’’

Specifically, the court noted that the misconduct evidence ‘‘does not involve the use of a knife’’ and that it

is not ‘‘so serious . . . .’’ In his principal brief, the

defendant acknowledges that the uncharged misconduct evidence did not involve a weapon and was not

as serious as the charged crime.

The trial court carefully reasoned that the conduct

and injuries underlying the uncharged misconduct were

substantially less severe than that involved in the

charged crime. See State v. Patrick M., supra, 344 Conn.

601 (‘‘[t]his court has repeatedly held that [t]he prejudicial impact of uncharged misconduct evidence is

assessed in light of its relative viciousness in comparison with the charged conduct’’ (internal quotation

marks omitted)); State v. Patterson, supra, 344 Conn.

298 (same). As a result of the charged conduct, the

victim suffered multiple stab wounds to her head, back,
arm, and leg, which required three surgeries and continues to cause her discomfort. Evidence that the defendant previously hit and punched the victim was far less

severe than the conduct and injuries involved in the

charged offense and, therefore, was unlikely to unduly

arouse the emotions of the jurors. See State v. Patrick

M., supra, 601; State v. Patterson, supra, 298.

Additionally, the introduction of the uncharged misconduct evidence did not consume an undue amount

of trial time or create side issues, given that only two

of twenty-six pages of the victim’s testimony referenced

the misconduct, and the prosecutor did not belabor his

examination of her. See State v. James G., 268 Conn.

382, 401, 844 A.2d 810 (2004) (admission of prior misconduct evidence did not result in ‘‘trial within a trial’’

when it consisted of only twenty-five of approximately

500 pages of trial transcript and ‘‘state’s attorney did

not belabor his examination of [the witness]’’ (internal

quotation marks omitted)). Consistent with the court’s

ruling, the prosecutor’s questioning of the victim was

limited and not inflammatory. See footnote 6 of this

opinion. The victim testified that she and the defendant

got into an argument in March, 2008, ‘‘[she] asked him to

leave and it became verbal and then it became physical,’’

and the defendant hit her. Additionally, the victim testified that, on October 13, 2009, she and the defendant

got into an argument concerning her car overheating,

and he punched her in the face.

Moreover, the admissibility of the prior misconduct

evidence was litigated outside the presence of the jury,

and the defendant does not claim that he was unfairly

surprised by the evidence. The court carefully considered the state’s proffer, of both the misconduct evidence and the conduct underlying the charged offense,

and the defendant’s objections, and ultimately permitted the state to introduce into evidence only two of

four incidents in a ‘‘non-inflammatory manner.’’ See

State v. Beavers, 290 Conn. 386, 406, 963 A.2d 956 (2009)

(‘‘the care with which the [trial] court weighed the evidence and devised measures for reducing its prejudicial

effect mitigates against a finding of abuse of discretion’’

(internal quotation marks omitted)).

Last, it is significant that the court gave a limiting

instruction to the jury on three separate occasions: during its preliminary instructions, after the victim testified

to the uncharged misconduct evidence, and in its final

charge to the jury. By instructing the jury to consider

the evidence solely on the issue of intent, the court

restricted the parameters of the state’s use of the prior

misconduct evidence, thereby limiting its prejudicial

effect. See footnote 7 of this opinion; see also State v.

Kantorowski, supra, 144 Conn. App. 492 (court did not

abuse its discretion in admitting uncharged misconduct

evidence where ‘‘the court heard a detailed offer of

proof and arguments of counsel before it performed
the required balancing test’’ and confined state’s use

of uncharged misconduct evidence to limit prejudice).

‘‘Absent evidence to the contrary, we presume that the

jury followed the court’s limiting instruction.’’ (Internal

quotation marks omitted.) State v. Wilson, supra, 209

Conn. App. 827.

Considering the record as a whole, we cannot conclude that the trial court abused its discretion in

determining that the probative value of the prior misconduct evidence outweighed its prejudicial effect.17

Having determined that the prior uncharged misconduct evidence was properly admitted, we need not

address the defendant’s argument that the admission

of that evidence was harmful. Nevertheless, even if we

were to assume, arguendo, that the court improperly

admitted the evidence, we agree with the state that the

defendant has not satisfied his burden of proving that

the admission was harmful.

‘‘When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.’’ (Internal quotation marks omitted.) State v. Urbanowski, supra, 163

Conn. App. 407. ‘‘[W]hether [an improper evidentiary

ruling that is not constitutional in nature] is harmless

in a particular case depends upon a number of factors,

such as the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating

or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the

prosecution’s case. . . . Most importantly, we must

examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial.

. . . [T]he proper standard for determining whether

an erroneous evidentiary ruling is harmless should be

whether the jury’s verdict was substantially swayed by

the error. . . . Accordingly, a nonconstitutional error

is harmless when an appellate court has a fair assurance

that the error did not substantially affect the verdict.’’

(Internal quotation marks omitted.) Id.

The defendant argues that the admission of the prior

misconduct evidence was harmful because ‘‘the state’s

case was not a particularly strong one.’’ Specifically,

the defendant points to the ‘‘substantial alibi evidence’’

that he presented at trial in comparison to the victim’s

‘‘inconsistent’’ testimony and J’s testimony that ‘‘his

memory of the events . . . was poor.’’ Additionally, the

defendant contends that ‘‘it is highly likely that the

evidence that the defendant had a history of violence

toward [the victim] influenced the verdict’’ because it

was ‘‘precisely the type of evidence that has the tendency to excite jurors’ passions and influence their

judgment.’’ The state responds that its evidence was

strong in comparison to the defendant’s alibi defense
and that the trial court’s ‘‘careful limitations on the

introduction of the evidence reduced any harm.’’ We

agree with the state.

The state’s case was strong. The victim provided a

detailed account of the incident and a description of

her injuries, which were corroborated by photographs

and additional testimony presented by the state. Additionally, the victim responded affirmatively when the

prosecutor asked her whether, on the night of the

attack, she ‘‘got a good look’’ at her assailant. She further testified that, within minutes after the attack, she

told J, ‘‘your father stabbed me.’’ J corroborated the

victim’s identification and testified that he told the

police, on the night of the attack, that the victim’s assailant was his father. Moreover, S’s testimony established

that the defendant had left his mother’s home thirty

minutes prior to the victim’s arrival and that he knew

that the victim and S were heading home. Finally, when

S called the defendant and told him about the attack

on the victim, the defendant’s phone line immediately

went dead.

In contrast, the defendant’s alibi defense was not

corroborated by the testimony of uninterested third

parties but rested on his testimony and that of his

mother and sister. The alibi defense also was not based

on uncontroverted evidence, for it was explicitly contradicted by the testimony of the investigating police officers. Although the defendant’s mother and sister testified that the defendant was asleep in his bed at 6 p.m.,

a few minutes after the attack, they never mentioned

that to the officers who came to their home, despite

knowing that the defendant was being questioned about

his whereabouts that evening. Moreover, despite the

contention of the defendant’s mother and sister that

they would have provided information to the officers

had they been contacted, Officer Olabisi testified that

‘‘they were not cooperative, and they wouldn’t provide

any information.’’ Additionally, the defendant testified

that he was cooperative with Officer Olabisi’s requests

on the night of the attack and that Detective Poma

had been ‘‘harassing’’ him over the phone that night. In

comparison, the officers testified that the defendant

would not provide any form of identification upon

request, that he refused to speak with them a second

time because he was ‘‘agitated,’’ and ‘‘that his phone

was broken.’’

Moreover, the court took significant precautions to

ensure that the circumstances surrounding admission

of the prior misconduct evidence were fair. As previously discussed, the trial court ordered the prosecutor

not to elicit evidence of what, if any, law enforcement

involvement there was or criminal charges that arose

out of the incidents. Defense counsel, however, elicited

additional testimony concerning past physical altercations and incorporated that testimony into his closing
argument. As noted previously in this opinion, on direct

examination, the defendant acknowledged in his testimony that he and the victim had troubles in the past

‘‘like any other couples . . . .’’ On cross-examination,

he stated that he had physical altercations with the

victim in the past and that, after the last incident in 2009,

they stopped living together. On redirect examination,

defense counsel elicited testimony from the defendant

that he had pleaded guilty following a past physical

altercation with the victim. During closing argument,

defense counsel argued: ‘‘[The defendant] said that he

had a physical altercation with his wife three years

before the incident. But certainly nothing even close

to the level of violence we see in this case and certainly

with no weapon of any type. And to his credit he took

responsibility for his actions and pled guilty. If he’s

guilty, he pleads guilty.’’ Thus, defense counsel himself

emphasized the challenged evidence in his closing argument.

The trial court also restricted the victim’s testimony

about the prior misconduct to exclude potentially

inflammatory details and instructed the jury, on multiple occasions, not to consider the prior misconduct as

evidence of the defendant’s propensity to commit the

charged crime. See footnote 7 of this opinion; see also

State v. Raynor, supra, 337 Conn. 565 n.23 (noting that

‘‘limiting instructions may feature more prominently in

a harmless error analysis’’). The prosecutor followed

the trial court’s orders when eliciting testimony from

the victim regarding the uncharged misconduct evidence, which was not a prominent part of the state’s

case. These careful limitations on the introduction of

the prior misconduct evidence reduced any harm to the

defendant. See State v. Urbanowski, supra, 163 Conn.

App. 408–10 (lack of prominence of uncharged misconduct evidence in addition to detailed limiting instructions are factors that mitigate against finding of harm).

Last, we note that the uncharged misconduct was

less severe than the charged conduct and that the prosecutor’s reference to the uncharged misconduct in his

closing argument was brief. Cf. State v. Juan J., supra,

344 Conn. 33 (admission of uncharged misconduct evidence was harmful, and trial court’s limiting instructions could not ‘‘cure the potential prejudice to defendant’’ where uncharged misconduct was ‘‘far more

severe and frequent’’ than charged conduct and prosecutor relied on it in closing argument (internal quotation

marks omitted)).

In light of the strength of the state’s case in comparison to the defendant’s alibi defense, and the tailored

introduction of the uncharged misconduct evidence, we

are left with a fair assurance that the evidence did not

substantially affect the verdict. Therefore, even if the

court’s evidentiary ruling was improper, the defendant

has failed to demonstrate that the admission of the
uncharged misconduct evidence was harmful.

The judgment is affirmed.

In this opinion SUAREZ, J., concurred.

* In accordance with our policy of protecting the privacy interests of

victims in cases involving family violence, we decline to use the defendant’s

full name or to identify the victim or others through whom the victim’s

identity may be ascertained. See General Statutes § 54-86e.

Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)

(2018), as amended by the Violence Against Women Act Reauthorization

Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify

any person protected or sought to be protected under a protection order,

protective order, or a restraining order that was issued or applied for, or

others through whom that person’s identity may be ascertained.

1 This was the defendant’s second trial on the charge of assault in the

first degree. This court affirmed the defendant’s conviction from his first

trial on direct appeal. Subsequently, the defendant brought a petition for a

writ of habeas corpus, alleging ineffective assistance of trial counsel, which

was denied. On appeal, this court reversed the judgment of the habeas court

and remanded the case with direction to grant the petition for a writ of

habeas corpus and to vacate the defendant’s conviction. This court ordered

a new trial, the outcome of which is the subject of the present appeal.

Hereinafter, all references to the trial refer to the second trial, which took

place in November, 2019.

2 We note that the record contains conflicting information regarding J’s

age on the date of the attack on the victim at their home on November 16,

2011. The victim testified that her son, J, was born in April, 1998, which

would support a finding that he was thirteen years old on the date of the

attack. J testified that, at the time of the trial, in November, 2019, he was

twenty-one years old. To the contrary, however, J also testified that, at the

time he gave a statement to the police, on December 7, 2011, three weeks

after the attack, he was eleven years old.

3 At the time of the trial in November, 2019, eight years after the attack,

the victim testified that she continued to have difficulty walking and was

expected to undergo additional surgeries due to the severity of her injuries

from the attack.

4 Officer Chris Hunyadi was the first officer at the crime scene on the

night of the attack, and followed the victim to the hospital where he spoke

with her after medical personnel administered care to her for her significant

injuries. Officer Hunyadi testified that he remained at the hospital until he

was relieved by the lead detective later that evening. Detective Poma, the

lead detective investigating the assault, testified that he was not able to take

the victim’s statement on the night of the attack due to her medical condition.

5 During the pretrial hearing, defense counsel argued that the incidents

were too remote in time, given that they had occurred ten or more years

before trial, and that the court should consider the passage of time from

the dates of the incidents to the date of the second trial, rather than the

passage of time from the dates of the incidents to the date of the crime.

See footnote 1 of this opinion. The defendant does not renew this argument

on appeal. We note, however, that ‘‘[t]he relevant time interval for measuring

remoteness is the time elapsed between the charged and uncharged misconduct.’’ State v. Acosta, 326 Conn. 405, 407 n.2, 164 A.3d 672 (2017).

6 The entire colloquy between the prosecutor and the victim regarding

the uncharged misconduct evidence before the jury was as follows:

‘‘Q. Now I’m going to fast-forward a bit to 2008. . . . [W]ere you now

living in South Windsor?

‘‘A. Yes.

‘‘Q. And it was still you and the defendant and your two children that we

mentioned.

‘‘A. Right.

‘‘Q. Now, at this point did you begin to start to begin to have some

problems in the relationship?

‘‘A. Yes.

‘‘Q. I draw your attention to March of 2008. Do you recall getting in an

argument with the defendant on that date?

‘‘A. Yes.

‘‘Q. And do you recall what started the argument?

‘‘A. Yes.

‘‘Q. Okay. What gave rise to the argument?

‘‘A. I asked him to leave and it became verbal and then it became physical.
‘‘Q. And that was an argument where he eventually hit you in that incident. Correct?

‘‘A. Yes.

‘‘Q. Now, I’m going to move up to October 13th of ‘09, you’re now living

in Hartford at that point?

‘‘A. Yes.

‘‘Q. And where were you in Hartford at that point?

‘‘A. What, my address?

‘‘Q. Yeah.

‘‘A. [M] Street.

‘‘Q. And still with the same two children?

‘‘A. Yes.

‘‘Q. And the defendant is living with you also. Correct?

‘‘A. Right.

‘‘Q. And did you get—I’m going to draw your attention to October 13, I

believe, of 2009, did you get in an argument again on that date?

‘‘A. Yes.

‘‘Q. And what caused the argument on that date?

‘‘A. My car had overheated and he went and helped me get to work that

day, so that’s how it all transpired.

‘‘Q. And then there was an argument?

‘‘A. Yes.

‘‘Q. And at that point he eventually—he punched you in the face on that

day. Correct?

‘‘A. Yes.

‘‘Q. Now, about that time did the defendant stop living with you and

the children?

‘‘A. Yes.’’

7 The court instructed the jury: ‘‘Ladies and gentlemen, I just want to give

you an instruction at this point. You recall in the preliminary instructions

I gave you a short time ago, I mentioned evidence that may be admitted for

a limited purpose. Just now you’ve heard [the victim] describe incidents

that she stated occurred in 2008, and another incident that occurred in 2009,

during the course of a relationship with the defendant, and that in each of

those incidents that she described there was a physical assault by the

defendant against her person.

‘‘This evidence of alleged conduct of the defendant prior to the date of

the charged offense, which as you know occurred in 2011, these prior acts

are not being admitted to prove the bad character propensity or criminal

tendencies of the defendant, but solely to show or to establish what the

defendant’s intent may have been at the time he’s alleged to have committed

the specific crime charged here. You may not consider the evidence of these

prior acts as establishing a predisposition on the part of the defendant to

commit the crime charged or to demonstrate that he has a criminal propensity to engage in criminal conduct. You may consider this evidence of these

prior incidents only if you believe it occurred, and further, only if you find

that it logically, rationally and conclusively bears on the issue of whether

or not the defendant had the intent to commit the crime that is charged in

this case.

‘‘On the other hand, if you do not believe the evidence of these prior

incidents or even if you do, if you do not find that it logically, rationally,

and conclusively bears on the issue of the defendant’s intent at the time of

the crime charged in this case, then you may not consider this testimony

relating to the incidents in the past for any purpose whatsoever. In other

words, you may not allow your mind uncritically to believe that the defendant

must be or is more likely to be the person who committed the crime charged

in this case merely because of the misconduct he may have directed toward

[the victim] previously, nor may you believe that the defendant is or is more

likely to be guilty of the offense here charged merely because of the alleged

prior misconduct.

‘‘Rather, as I have explained, you are permitted to consider this evidence

of prior incidents between the defendant and [the victim] as she has just

described only if you believe that they occurred, and then only to the extent

that you find their occurrence may bear on the issue of whether the defendant

possessed the requisite intent to commit the crime alleged in this case. These

alleged prior incidents may not be considered by you for any other purpose.’’

8 The defendant’s sister testified that she recalled two officers coming to

her mother’s home. The defendant’s mother testified that she recalled one

officer coming to her home.

9 The language used by the court paralleled the limiting instruction it
gave the jury after the victim testified regarding the uncharged misconduct

evidence. See footnote 7 of this opinion.

10 Following his conviction of assault in the first degree, the defendant

admitted that, as a result of his criminal conduct, he had violated the terms

of his probation as set forth under a separate docket number. The court,

Gold, J., imposed an additional sentence of three years of incarceration on

the violation of probation charge to be served concurrently with the sentence

on the assault conviction.

11 General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is

guilty of assault in the first degree when: (1) With intent to cause serious

physical injury to another person, he causes such injury to such person or

to a third person by means of a deadly weapon or a dangerous instrument . . . .’’

12 In his brief, the defendant argues that this court must examine both

general intent and specific intent to cause serious physical injury. As part

of his argument, the defendant cites State v. Gilligan, 92 Conn. 526, 536–37,

103 A. 649 (1918), and urges this court to limit the use of prior misconduct

to instances in which the state’s case is ‘‘reasonably consistent with a theory

that the charged offense was committed innocently, i.e., by accident or

mistake.’’ The defendant contends that, because ‘‘[t]here is no imaginable

interpretation of [the state’s] evidence that would be consistent with accident

or mistake,’’ the uncharged misconduct evidence was not relevant to prove

general intent, i.e., voluntariness of action.

The state contends, inter alia, that the defendant’s argument, premised

on Gilligan, presents a new legal ground that was not raised before the

trial court and refers this court to our recent decision in State v. McKinney,

209 Conn. App. 363, 385–88, 268 A.3d 134 (2021), cert. denied, 341 Conn.

903, 268 A.3d 77 (2022). We address the defendant’s argument because it

relates to his claim before the trial court that the uncharged misconduct

evidence was not relevant to intent.

We find the defendant’s reliance on Gilligan to be misplaced. In so deciding, we are persuaded by our Supreme Court’s rationale in State v. Beavers,

290 Conn. 386, 963 A.2d 956 (2009), in which the court stated: ‘‘We disagree

. . . with the defendant’s reliance on State v. Gilligan, [supra, 92 Conn.

526], wherein a convalescent home owner was convicted of murdering one

of her patients by arsenic poisoning. On appeal, this court concluded that

the trial court had abused its discretion when, for purposes of proving

malice and intent, as well as absence of accident or mistake, it admitted

into evidence the fact that three of the home’s other patients also had

recently died of arsenic poisoning. . . . We view the venerable Gilligan

decision as confined to its facts, because it focuses largely on the unduly

prejudicial impact of that uncharged misconduct evidence in light of the

fact that the state already had introduced ample evidence of absence of

mistake or accident, including that the victim had received multiple large

doses of arsenic, the defendant’s delay in seeking medical attention and

‘unseemly haste’ in getting rid of the body, the defendant’s failure to notify

the victim’s relatives of his death, a loan of money from the victim to the

defendant, and the defendant’s impending need for the victim’s room for

another paying patient.’’ (Citation omitted.) State v. Beavers, supra, 405–406

n.20; see also State v. Gilligan, supra, 533 (‘‘[t]he authorities on the subject

are so numerous, and the relation between the commission of one offense

and of another similar offense depends so much upon the nature of the

offense and on the circumstances of each case, that we confine our discussion to the crime of murder by poisoning’’).

13 State v. Juan J., supra, 344 Conn. 1, was decided after oral argument

in this appeal. This court ordered both parties to file supplemental briefs

addressing the impact, if any, of that decision on the present appeal, and

the defendant and the state filed their briefs on July 21 and 22, 2022, respectively. In his supplemental brief, the defendant argues that Juan J. is controlling authority ‘‘establishing the inadmissibility of uncharged misconduct

evidence to prove general intent in this case.’’ He further argues that Juan

J. also supports a conclusion that the uncharged misconduct evidence in the

present case was inadmissible to prove specific intent because its prejudicial

impact outweighed its probative value. The state argues that ‘‘[t]he rule

created in Juan J. precluding the admission of prior misconduct evidence

on the issue of intent in the prosecution of a general intent crime, where

the theory of defense is that the conduct did not occur at all, does not apply

factually or legally to the present case. Indeed, to conclude that admission

of the prior misconduct evidence in the present case was improper under

Juan J. would require this court to extend Juan J.’s holding, a result that
finds no support in our law and runs contrary to the very rationale undergirding the Supreme Court’s analysis and outcome in Juan J.’’

14 The video recordings were admitted into evidence under the hearsay

exception for medical diagnosis and treatment set forth in § 8-3 (5) of the

Connecticut Code of Evidence. See State v. Juan J., supra, 344 Conn. 10.

15 The court in Juan J. rejected the state’s reliance on cases involving

specific intent crimes ‘‘to support the proposition that the defendant’s intent

in a general intent case is always in issue unless directly and explicitly

admitted before the trier of fact.’’ (Internal quotation marks omitted.) State

v. Juan J., supra, 344 Conn. 22 n.9. The court reiterated that ‘‘the state’s

burden of proving intent in a specific intent crime case differs significantly

from its burden in a general intent crime case and unfairly borders on

propensity evidence when used in such a way. The state cannot use the logic

of specific intent cases to overwhelm a general intent case with uncharged

misconduct.’’ Id.

16 In support of his argument, the defendant relies on precedent from

various federal circuit courts of appeals that ‘‘employ an analysis to assist

in determining whether uncharged misconduct evidence ostensibly admitted

to prove one of the permissible purposes, such as intent, actually runs afoul

of the impermissible purpose of showing propensity.’’ Given the availability

of appellate authority in our state, we do not find the federal cases persuasive.

17 ‘‘The trial court has some degree of choice in balancing the probative

value of uncharged misconduct evidence against its prejudicial effect . . .

and . . . a different trial court might arrive at a different conclusion. We

hold only that, on the present record, the trial court’s decision to admit the

challenged evidence was not arbitrary or unreasonable. See, e.g., State v.

Smith, [313 Conn. 325, 336, 96 A.3d 1238 (2014)] ([T]he question is not

whether any one of us, had we been sitting as the trial judge, would have

exercised our discretion differently. . . . Rather, our inquiry is limited to

whether the trial court’s ruling was arbitrary or unreasonable.).’’ (Internal

quotation marks omitted.) State v. Patrick M., supra, 344 Conn. 602 n.13.