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STATE OF CONNECTICUT v. MARK A. TENAY

(AC 35045)

Gruendel, Robinson and Alvord, Js.*

Argued November 18, 2013—officially released May 13, 2014

(Appeal from Superior Court, judicial district of

Ansonia-Milford, geographical area number twentytwo, Keegan, J.)

Jeremiah Donovan, for the appellant (defendant).

Harry Weller, senior assistant state’s attorney, with

whom were Kevin D. Lawlor, state’s attorney, and

Kevin S. Russo, supervisory assistant state’s attorney,

for the appellee (state).
Opinion

ROBINSON, J. The defendant, Mark A. Tenay, appeals

from the judgment of conviction, rendered after a jury

trial on the first part of an information, of operating a

motor vehicle while under the influence of alcohol in

violation of General Statutes § 14-227a (a) (1),1 and following a trial to the court on a part B information,2 of

being a three time offender pursuant to General Statutes

§ 14-227a (g) (3). The defendant claims on appeal that

the trial court improperly (1) excluded from evidence

during the jury trial portions of certain hospital records

that pertained to medical treatment that he received

following his arrest; (2) admitted into evidence during

the jury trial the results of a finger dexterity roadside

sobriety test without first determining the scientific

validity of that particular test in accordance with State

v. Porter, 241 Conn. 57, 80–90, 698 A.2d 739 (1997), cert.

denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645

(1998); and (3) admitted into evidence during the trial

to the court on the part B information a certified copy

of a case abstract detailing a Florida criminal action

attributed to the defendant and a related fingerprint

card. We agree with the defendant that the abstract was

improperly admitted into evidence and, thus, reverse

that part of the judgment finding the defendant to be

a three time offender under § 14-227a (g); we otherwise

affirm the judgment of the trial court.3

The jury reasonably could have found the following

facts. Early in the morning of April 18, 2009, Officer

Jeffrey Nelson of the Milford Police Department was

dispatched to Naugatuck Avenue, where he observed

a brown Jeep Cherokee with Vermont license plates

partially on the front lawn of 1028 Naugatuck Avenue.

Additional police officers, Matthew Mello and Gillian

Gallagher, later arrived at the scene. The vehicle had

considerable damage. The rear bumper was hanging off

of the vehicle, the passenger side of the vehicle looked

to have been sideswiped, the front passenger side window was broken, and the front passenger side fender

and headlight were damaged. There was no tire on the

front passenger side of the vehicle, and a gouge in

the pavement, which extended back from the scene

approximately one mile to the off ramp of Interstate

95, indicated that the vehicle had traveled for a considerable distance on its rim without the tire.

When Nelson arrived, the defendant was seated in

the driver’s seat of the vehicle with the door open. He

was confused and disoriented. His eyes had a glassy

appearance, and he smelled strongly of alcohol. When

Nelson inquired about the condition of the vehicle, the

defendant responded that he may have struck a curb

a couple of blocks away, although the damage to the

vehicle did not support that scenario. The defendant

later indicated that he may have struck a mailbox or

something else. Nelson had to repeat his request for the
defendant’s driver’s license, registration and insurance

card a few times before the defendant complied.

On the basis of initial observations, the defendant

was asked to perform certain field sobriety tests: the

alphabet test, the walk and turn test, the one leg stand

test, the horizontal gaze nystagmus test, and the finger

dexterity test. Nelson first asked the defendant to perform the alphabet test, which required him to recite

the alphabet from A to Z. The defendant responded that

he was ‘‘not good’’ at reciting the alphabet because his

first grade teacher had passed away in the middle of

the school year, and, thus, he never learned to recite

the alphabet properly. He nevertheless agreed to try.

He could only recite the letters A through K, the latter

which he pronounced as ‘‘key,’’ following which he

recited, in order, the letters E, M and F.

Nelson next indicated that he was going to have the

defendant perform a walk and turn test.4 Before Nelson

could explain to the defendant what the test entailed,

the defendant indicated that he would be unable to

perform the test because of existing knee problems.

Nelson instructed the defendant that he did not have

to place the toe of one foot against the heel of the other

as is usually required, but could keep them somewhat

apart. Even with that accommodation, however, the

defendant failed the test. He walked nine steps forward

and nine steps back, but counted fourteen steps, failed

to keep his balance and stepped off of the line. The

defendant refused to take the one leg stand test when

asked by Nelson.5

Mello then conducted the horizontal gaze nystagmus

test.6 Although Mello instructed the defendant to keep

his head straight and only move his eyes, the defendant

was not able to comply and moved his head. At the

maximum deviation point, the defendant’s eyes were

‘‘bouncing,’’ which was a strong indicator that he

was intoxicated.

Mello also conducted the finger dexterity test. The

finger dexterity test requires the subject to count the

fingers of one hand by using the thumb to move forward

and back, touching the tips of the fingers starting with

the index finger, while counting out loud from one to

four and then backward from fourto one. The defendant

failed the test because he performed the required tasks

very slowly, he had to concentrate on his hands and

focus on counting, and he swayed and lost his balance

while performing the test.

Having failed to perform adequately any of the roadside sobriety tests administered to him, the defendant

was arrested for operating his motor vehicle while

under the influence, and he was transported to the

Milford Police Department. While at the police department, the defendant refused to take a breathalyzer or

a urine test to determine his blood alcohol content. The
defendant was given a summons and released. The next

day, he reported for medical treatment to the emergency room at Yale-New Haven Hospital. Additional

facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court erred in

redacting portions of medical records that he sought

to introduce as full exhibits during the jury trial. The

medical records at issue pertain to treatment the defendant received after his arrest. The defendant argues

that the medical records in their unredacted form were

necessary to his defense because they tended to show

his physical and mental condition at the time leading up

to his arrest, and, in so doing, supported an alternative

explanation for his behavior and why he failed the field

sobriety tests. The state argues that the defendant’s

evidentiary claim fails because the court did not wholly

exclude the proffered records, but merely redacted certain portions that either were irrelevant, constituted

inadmissible hearsay, or would have confused the jury

without some further explanation from a witness.7 The

state also argues that the defendant has failed to prove

that he was harmed by the court’s redactions. We agree

with the state that the court did not abuse its discretion

in redacting portions of the proffered medical records.

The following additional facts and procedural history

are relevant to the present claim. Prior to the state

resting its case, the defendant sought to make an offer

of proof regarding medical records that he had subpoenaed from Yale-New Haven Hospital and that he wanted

to introduce to the jury as full exhibits without a witness.8 The defendant wanted a ruling from the court on

the admissibility of the medical records prior to his

deciding whether to testify on his own behalf.

The medical records at issue consist of four reports

dated April 21, April 27, April 30 and May 11, 2009—

each memorializing a follow-up visit that the defendant

had after his initial treatment in the hospital’s emergency room on April 19, 2009—and an operative report

detailing a knee surgery that the defendant underwent

on July 29, 2009. When the court inquired as to the

relevancy of the records, the defendant argued that the

records would show that he had visited the emergency

room the day after the incident and that he had complained of problems with his left knee, which ultimately

required surgery. According to the defendant, such evidence supported his defense theory that his knee

impairment, and not his intoxication, had prevented

him from properly executing the walk and turn test and

from taking the one leg stand test. The defendant also

argued that the records indicated that he had suffered

a cervical strain and was provided with a cervical collar,

which, the defendant argued, was relevant to show that

there had been ‘‘some collision that caused the defen-
dant’s body to be thrown about.’’

The state objected to the proffered medical records

being introduced as full exhibits. It argued that the

medical records contained little relevant information.

It also argued that they were replete with inadmissible

hearsay in that they contained the authoring doctor’s

recitation of statements the defendant had made with

regard to the defendant’s medical history and to events

that transpired prior to his arrest. Finally, the state

argued that, without a witness, the records, which contained the defendant’s self-reporting of a history of concussions and blackouts, could mislead the jury into

believing that they were actual clinical diagnoses by

the treating physician.

In response to the state’s relevancy argument,

defense counsel stated that he was ‘‘not necessarily

claiming the entire document,’’ and indicated some willingness to redact portions of the documents. As to the

state’s hearsay arguments, defense counsel argued that

he believed that the defendant’s statements could come

in under an exception to the hearsay rule for statements

made for the provision of medical services.9 The defendant did not directly respond to the state’s argument

that the records contained information that could mislead the jury without an explanatory witness.

After taking a brief recess to review the documents

further, the court, Keegan, J., ruled on the record as

follows: ‘‘[T]he majority of the documents are not relevant to the issues that the jury has to decide in this

trial, namely, whether or not on the [day in] question

[the defendant] was recklessly operating a motor vehicle, while under the influence of intoxicating liquors,

or any drugs, or both.’’ The court also noted that ‘‘these

records are confusing without a witness to explain the

records.’’ The court concluded that it would ‘‘order a

redaction of certain records to permit [the defendant]

to introduce the records with respect to the fact that

he had reported prior knee surgeries, and that he had

a knee surgery in July of 2009.’’ The court also indicated

that it would do the redactions during the next break.

The defendant stated for the record that he disagreed

with the court’s decision to have the documents

redacted. The court laterfurther clarified its evidentiary

ruling, stating that ‘‘[t]he court finds that only any complaint of the injury to the knee is relevant to the defendant’s claims about his ability to perform the roadside

sobriety tests. So, that’s the part that the court would

allow in, and we do need to redact the records for that.’’

The court later provided the parties with copies of the

redacted versions of the documents. Defense counsel

offered the redacted versions for admission as full

exhibits at the start of the defendant’s case, and they

were admitted without further objections.

We begin with the standard of review that governs

our consideration of the defendant’s evidentiary claim.
‘‘It is axiomatic that [t]he trial court’s ruling on the

admissibility of evidence is entitled to great deference.

. . . Accordingly, [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing

of a clear abuse of the court’s discretion. . . . Furthermore, [i]n determining whetherthere has been an abuse

of discretion, every reasonable presumption should be

made in favor of the correctness of the trial court’s

ruling, and we will upset that ruling only for a manifest

abuse of discretion. . . . In a criminal case, an

improper evidentiary ruling by the trial court is harmless if the reviewing court has a fair assurance that the

error did not substantially affect the jury’s verdict.’’

(Citation omitted; internal quotation marks omitted.)

State v. Williams, 146 Conn. App. 114, 124, 75 A.3d 668,

cert. granted on other grounds, 310 Conn. 959, 82 A.3d

626 (2013).

‘‘[I]f an [evidentiary] impropriety is of constitutional

proportions, the state bears the burden of proving that

the error was harmless beyond a reasonable doubt.

. . . 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. Longo, 106 Conn.

App. 701, 708, 943 A.2d 488 (2008). ‘‘To the extent [that]

a trial court’s admission [or exclusion] of evidence is

based on an interpretation of the [Connecticut] Code of

Evidence, our standard of review is plenary.’’ (Internal

quotation marks omitted.) State v. Annulli, 130 Conn.

App. 571, 579–80, 23 A.3d 808 (2011), aff’d, 309 Conn.

482, 71 A.3d 530 (2013).

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

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

110 Conn. App. 708, 716, 955 A.2d 1222, cert. denied,

289 Conn. 952, 961 A.2d 418 (2008). ‘‘A clear statement

of the defendant’s theory of relevance is all important

in determining whether the evidence is offered for a

permissible purpose. . . . Ordinarily, we will not consider a theory of relevance that was not raised before

the trial court.’’ (Internal quotation marks omitted.)

State v. Crespo, 114 Conn. App. 346, 366, 969 A.2d 231

(2009), aff’d, 303 Conn. 589, 35 A.3d 243 (2012). ‘‘While

relevant evidence is generally admissible, the trial judge

has a certain amount of discretion in excluding such

evidence; matters likely to mislead a jury, or to be

misused by it, or to unnecessarily complicate a case,

or of slight, remote, or conjectural significance, ought

not to be admitted.’’(Internal quotation marks omitted.)

State v. Gooch, 186 Conn. 17, 23, 438 A.2d 867 (1982).

Thus, even potentially relevant evidence properly may

be excluded if its probative value is outweighed by the

danger of misleading the jury.

When asked at trial to explain the relevancy of the

proffered medical records, the defendant argued that
the records showed that he had reported to the emergency room shortly after the incident leading to his

arrest complaining of problems with his left knee, and

that he ultimately required surgery to correct the problems with the knee. According to the defendant, evidence of the knee injury was relevant because it

supported his theory of defense ‘‘that [he] had a medical

condition that would, at least, with respect to the walk

and turn and the one leg stand [tests], at least, impede

his ability to perform those tests, as a result of that

condition.’’ When the court asked if there was anything

else the defendant wanted to argue with respect to

relevancy, the defendant mentioned that the records

also indicated that he had suffered a cervical strain and

was given a cervical collar, which he argued tended to

support the notion that there had been some serious

collision prior to his arrest. The defendant never

explained to the court how evidence of a serious collision would aid the jury in its consideration of whether

the defendant had been intoxicated while operating the

vehicle or in resolving any other issue properly before

the jury.10

The defendant also mentioned to the court that the

records ‘‘contained a discussion about positive amnesia

that the defendant suffered,’’ and also indicated selfreported, ‘‘subtle blackout type episodes.’’ The defendant did not explain the significance of that evidence,

and, when the court indicated that it did not know

what the term ‘‘positive amnesia’’ meant, the defendant

immediately returned to a discussion of his knee injury.

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

that the only theory of relevancy offered by the defendant to the court at the time the court ruled on the

admissibility of the medical records pertained to the

knee injury evidence. The court ruled that it would

allow the records in as a full exhibit with respect to

evidence concerning the defendant’s knee injury. The

rationale given by the court for redacting other portions

of the records was that they contained material that

was notrelevant and that might mislead the jury without

further explanation. That rationale is fully supported

by the record. The defendant has failed to establish that

the court abused its discretion in admitting only the

redacted versions of the proffered medicalrecords, and,

accordingly his claim to the contrary fails.

II

The defendant next claims that the court abused its

discretion by admitting testimony regarding the defendant’s failure to pass the finger dexterity test without

first determining whether that test is scientifically valid

pursuant to Porter. We disagree.

The following additional facts are relevant to our

resolution of this claim. The state called Mello to testify

about the two field sobriety tests that he administered
to the defendant. Mello first testified, without objection,

about administering the horizontal gaze nystagmus test

to the defendant, and the results he observed. When

the state asked Mello whether he had administered

another test, defense counsel indicated that he had an

objection that should be heard outside the presence of

the jury. The jury was excused, after which defense

counsel indicated that he objected to any testimony

from Mello regarding the finger dexterity test without

the state first making an offer of proof that the test

satisfies the criteria for admissibility of scientific evidence as set forth in Porter. Defense counsel argued

that although he was aware of literature from the

National Highway Traffic Safety Administration validating the use of the horizontal gaze nystagmus test, the

walk and turn test, and the one leg stand test as standard

field sobriety tests, he knew of no such scientific validation with regard to the finger dexterity test.

In response to questions from the court, Mello indicated that although the horizontal gaze nystagmus test,

the walk and turn test, and the one leg stand test are

the three standard field sobriety tests, the police also

employ other tests capable of gauging a person’s motor

skills and hand-eye coordination, such as the finger

dexterity test. With respect to the finger dexterity test,

Mello explained that if a person was under the influence, they might either miss touching a finger or count

incorrectly. The state argued that it believed that the

defense’s objection pertained more to the weight of the

evidence, not to its admissibility.

The court ruled as follows: ‘‘Well, as to whether or

not a Porter hearing is necessary on finger dexterity,

based on what the officer has said, it doesn’t sound

scientific at all. It sounds no different to the walk and

turn, which is to see whether or not the person can

exhibit dexterity and count at the same time, as an

indicator as to whether or not, you know, that could

be used as a factor—to make a determination as to

whether a person is intoxicated or not. So, because it

sounds so similar to the walk and turn, using fingers

instead of feet, the [c]ourt feels that it is admissible

under the same standards that the walk and turn is

admissible.’’ Defense counsel noted his objection for

the record.11

The jury was brought back to the courtroom. In

response to questions from the state, Mello explained

to the jury what the finger dexterity test entailed, noting

that the test allowed officers ‘‘to observe an individual

at a normal task that they should be able to complete

if they’re not under the influence of drugs or alcohol.’’

When he was asked to describe the defendant’s results,

Mello testified: ‘‘He was very slow, concentrating on

his hands, focusing on counting. Also, while doing that,

he was swaying. That’s another indication. Someone

who’s under the influence, when you ask them to do
normal tasks, sometimes other natural motor skills will

start to fade away. At, which, at the time he was doing

that, he started swaying, as if he was losing his balance.’’

On the basis of his observations and experience, Mello

determined that the defendant had failed the test.

‘‘In Porter, this court followed the United States

Supreme Court’s decision in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,

125 L. Ed. 2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis,

to determine the reliability of the scientific evidence.

. . . Following [Porter], scientific evidence, and expert

testimony based thereon, usually is to be evaluated

under a threshold admissibility standard assessing the

reliability of the methodology underlying the evidence

and whether the evidence at issue is, in fact, derived

from and based upon that methodology . . . .’’ (Citations omitted; internal quotation marks omitted.) State

v. West, 274 Conn. 605, 630, 877 A.2d 787, cert. denied,

546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

Nevertheless, ‘‘certain types of evidence, although

ostensibly rooted in scientific principles and presented

by expert witnesses with scientific training, are not

scientific for . . . purposes of our admissibility standard for scientific evidence, either before or after Porter

[was decided]. . . . Thus, even evidence with its roots

in scientific principles, which is within the comprehension of the average juror and which allows the jury to

make its own conclusions based on its independent

powers of observation and physical comparison, and

without heavy reliance upon the testimony of an expert

witness, need not be considered scientific in nature for

. . . purposes of evidentiary admissibility. . . . [E]vidence . . . which merely places a jury . . . in a position to weigh the probative value of the testimony

without abandoning common sense and sacrificing

independent judgment to the expert’s assertions based

on his special skill or knowledge . . . is not the type

of scientific evidence within the contemplation of Porter, and similarly was not within the ambit of our standard for assessing scientific evidence prior to Porter.’’

(Citations omitted; internal quotation marks omitted.)

Id., 631.

This court previously has concluded that, unlike the

horizontal gaze nystagmus test, field sobriety tests like

the walk and turn test and the one leg stand test, which

‘‘probe an individual’s sense of balance, his coordination and his abilities to comprehend and follow instructions,’’ are within the common knowledge of lay jurors,

and, thus, do not constitute scientific evidence. State

v. Merritt, 36Conn.App. 76, 90–91, 647A.2d 1021 (1994),

appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995).

Such tests are not highly technical, nor do they require

special skills or knowledge to be understood. See State
v. Gracia, 51 Conn. App. 4, 19, 719 A.2d 1196 (1998).

The court in the present case ruled that, like the walk

and turn test, the finger dexterity test was not scientific

evidence. It based that decision on the testimony of

Mello that the finger dexterity test was used to evaluate

a person’s motor skills and hand-eye coordination. The

court correctly reasoned that the finger dexterity test,

like the walk and turn test, required a test subject to

demonstrate coordination while counting at the same

time. The jury required no special skills or knowledge

to evaluate the observational evidence provided by

Mello of the defendant’s performance. The court did

not err in determining that, like the walk and turn test

and the one leg stand test, the finger dexterity test does

not constitute scientific evidence as contemplated in

Porter, and we reject the defendant’s claim that the

court abused its discretion in admitting Mello’s testimony regarding the finger dexterity test without first

conducting a Porter hearing.

III

The defendant next claims that the court improperly

admitted into evidence during the part B trial a copy

of a criminal case abstract obtained from a court clerk

in Santa Rosa County, Florida (abstract), and a related

fingerprint card obtained from the Santa Rosa County

sheriff. The defendant argues that information on the

abstract and fingerprint card was inadmissible hearsay

and that the state failed to lay a proper foundation for

the documents’ admission under a hearsay exception

for public records. We agree that the abstract was not

properly admitted and that this constituted reversible

error.12

The following additional facts and procedural history

are relevant to our review of the claim. The defendant

was charged in the part B information with being a

repeat offender subject to an enhanced sentence pursuant to § 14-227a (g).13 According to the information, the

defendant previously had been convicted of driving a

motor vehicle while under the influence in Florida in

1996 and in Connecticut in 2002. The state, therefore,

had the burden of proving those prior convictions

beyond a reasonable doubt.14 To meet that burden, the

state presented the testimony of Ian Shackleton, a criminal justice secretary II with the office of the state’s

attorney in the judicial district of Ansonia-Milford.

Shackleton testified that, using parameters that

included the defendant’s name, date of birth, gender,

race and social security number, he had conducted

searches of state and federal government on-line databases for criminal and motor vehicle records with data

matching those parameters. On the basis of the information that Shackleton obtained from his database

searches, he contacted the court of record in Santa

Rosa County, Florida, seeking a certified copy of disposition. He was referred to a county records clerk from
whom he requested the necessary record.15

A deputy clerk with the archives division of the Santa

Rosa County Clerk of Courts sent Shackleton a certified

letter explaining that because of a Florida law regarding

the retention of documents, the only documentation

available with respect to the requested 1996 Florida

conviction was an abstract containing the case history

detail. The clerk’s signature was marked with a raised

seal of the court. Attached to the letter was a copy of

the abstract that was certified by the same clerk as a

true and correct copy. In addition to docket descriptions, the abstract contained general case information.

In particular, it contained entries identifying by name

and address the party defendant—the name being the

same as that of the defendant in the present case—and

indicating, inter alia, the date the offense had occurred,

the disposition, the disposition date and the sentence

that was imposed. Although the abstract did not include

any notation identifying the specific statutory violation

at issue, amongst the docket descriptions were entries

indicating that an ‘‘INFORMATION DUI’’ had been filed

and that, following an adjudication of ‘‘GUILTY,’’ the

defendant’s driver’s license had been suspended, and

he had been ordered to attend ‘‘DUI SCHOOL.’’

The defendant objected to the admission of the

abstract arguing, inter alia, that it contained inadmissible hearsay and violated his constitutional rights under

the confrontation clause because the person that had

prepared the abstract was not available for cross-examination. The state argued that the abstract should be

admitted because it was a self-authenticated public document. The court overruled all objections to the admissibility of the abstract based on the fact that the abstract

was a court document certified by a clerk of the court

under seal.

Generally, as set forth in part I of this opinion, a

court’s ruling on the admissibility of evidence is entitled

to great deference and will be overturned only for a

clear abuse of discretion. See State v. Williams, supra,

146 Conn. App. 124. ‘‘[T]o the extent a trial court’s

admission of evidence is based on an interpretation of

the Code of Evidence [however], our standard ofreview

is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether

a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ;

there is no ‘judgment call’ by the trial court, and the

trial court has no discretion to admit hearsay in the

absence of a provision providing for its admissibility.’’

State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633

(2007).

‘‘Hearsay is an out-of-court statement offered to

prove the truth of the matter asserted and is generally

inadmissible unless an exception to the hearsay rule
applies.’’ State v. Calderon, 82 Conn. App. 315, 321, 844

A.2d 866, cert. denied, 270 Conn. 905, 853 A.2d 523,

cert. denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d

361 (2004); see also Conn. Code Evid. § 8-2 (‘‘[h]earsay

is inadmissible, except as provided in the Code, the

General Statutes or the Practice Book’’). Section 8-3

(7) of the Connecticut Code of Evidence codifies our

common-law hearsay exception applicable to public

records and reports. Conn. Code Evid. § 8-3, commentary. ‘‘The public records exception to the hearsay rule

is based upon the fact that the [record] of the public

official can be relied upon for its trustworthiness. The

public official may act only occasionally, but when he

does act he knows and feels that he is acting under the

sanction of his official place. Experience has led to the

conclusion that it is ordinarily safe to rely upon the

trustworthiness of a [record] made under such circumstances.’’ (Internal quotation marks omitted.) State v.

Calderon, supra, 322. ‘‘Although Connecticut has neither precisely nor consistently defined the elements

comprising the common-law public records exception

to the hearsay rule . . . [§] 8-3 (7) gleans from case

law three distinct requirements for substantive admissibility.’’(Citations omitted.)Conn. CodeEvid. § 8-3, commentary. Specifically, it is the burden of the party

offering the evidence to show that ‘‘(A) the record,

report, statement or data compilation was made by a

public official under a duty to make it, (B) the record,

report, statement or data compilation was made in the

course of his or her official duties, and (C) the official

or someone with a duty to transmit information to the

official had personal knowledge of the matters contained in the record, report, statement or data compilation.’’ Conn. Code Evid. § 8-3 (7).

‘‘[I]t is generally recognized that public documents

can be authenticated simply by showing [that] the

record purports to be a public record and comes from

the custody of the proper public office.’’ (Emphasis

added; internal quotation marks omitted.) State v. Calderon, supra, 82 Conn. App. 322, citing C. Tait, Connecticut Evidence (3d Ed. 2001) § 9.4.2, pp. 757–58. Further,

General Statutes § 52-165 provides in relevant part that

‘‘[t]he entries or records of all corporations and all

public offices, where entries or records are made of

their acts, votes and proceedings, by some officer

appointed for that purpose, may be proved by a copy

certified under the hand of such officer, and the seal

of such corporation or office, if any . . . . ’’ See also

Conn. Code Evid. § 9-1 (b)(no extrinsic evidence necessary ‘‘if the offered evidence is self-authenticating in

accordance with applicable law’’). Rules governing the

authentication of documents, however, are not a proper

substitute for a valid hearsay exception. See Wright v.

Hutt, 50 Conn. App. 439, 446–47, 718 A.2d 969, cert.

denied, 247 Conn. 939, 723 A.2d 320 (1998). ‘‘An official

certificate simply authenticates a document, that is, it
proves that it is what it purports to be. It is not a hearsay

exception that permits the contents of a certified document to be used to prove the truth of the matter

asserted. Any and all assertions of fact contained within

a certified document must be proven by the usual rules

of evidence and must satisfy the hearsay rule or its

exceptions.’’ C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 9.12.3, p. 698.

Here, the state sought to admit the abstract as substantive evidence that the defendant had a prior conviction for driving a motor vehicle while under the

influence in Florida. No argument was made at trial

that the data entries on the abstract were not being

admitted for the truth of the matter asserted and, thus,

that the entries were not hearsay statements. Rather,

in response to the defendant’s objection that the information contained in the abstract was hearsay, the state

argued only that the document was properly authenticated and admissible as a public record. The defendant

argued to the trial court, as he does on appeal, that the

state had failed to show that the foundational requirements set forth in § 8-3 (7) of the Connecticut Code of

Evidence were satisfied.

The trial court ruled that because the abstract was

a court document under seal and certified by the clerk

of that court, the state had addressed all concerns raised

by the foundational requirements in § 8-3 (7) of the

Connecticut Code of Evidence. Although the seal and

certification served as proof of the authenticity of the

abstract, authenticity was never challenged by the

defendant. The court’s ruling suggests that the same

elements that serve as indicia of authenticity—the seal

and certification—also serve to satisfy the foundational

elements setforth in § 8-3 (7) with respectto the hearsay

exception for public records. We can find no legal support for that proposition in the Code of Evidence, in

our statutes or in our case law.

In order to satisfy the requirements set forth in § 8-

3 (7) of the Connecticut Code of Evidence, the state

needed to show that the abstract was prepared by a

public official under a duty to do so, that the abstract

was prepared in the course of that duty, and that the

official either had personal knowledge of the information contained in the abstract or the information was

provided by someone with a duty to transmit that information to the official. In its appellate brief, the state

addresses the lack of foundation claim by stating that

it was reasonable for the court to have inferred that

the foundationalrequirements had been met.16 The state

does not cite to any case law that directly supports

the proposition that a trial court is permitted to infer

evidentiary foundational requirements. Further, we do

not agree that it reasonably can be inferred from either

the certification or the seal that the deputy clerk who

certified the abstract was the same official responsible
for its preparation, or that the deputy clerk, or someone

with a duty to transmit evidence to the deputy clerk,

had personal knowledge of the information contained

on the abstract.

The state presented only Shackleton’s testimony as

a foundation for the admission of the abstract. Shackleton provided no background information about how

or by whom the abstract was prepared. The state fails

to point to any portion of Shackleton’s testimony that

could have served as a basis for the court drawing

inferences that the foundational requirements of § 8-3

(7) of the Connecticut Code of Evidence had been met.

Because the state failed to meet its foundational burden for the admission of the abstract under the hearsay

exception for public records, we conclude that the

abstract was admitted by the court in error. In its brief,

the state concedes that the abstract was the only evidence presented that proves the defendant was convicted of driving a motor vehicle under the influence

in Florida, and thus, if the abstract was admitted in

error, that error was not harmless. We agree. We also

agree with the state, however, that because the defendant did not challenge the evidence of the Danbury

conviction, there was sufficient evidence to support the

allegation in the part B information that the defendant

was ‘‘subject to the enhanced penalties under [§] 14-

227a (g),’’ albeit as a second time offender. Accordingly,

the judgment on the part B information is reversed only

as to the court’s finding that the defendant was guilty

of being a third time offender based on the alleged

Florida conviction.

The judgment is reversed only as to the defendant’s

conviction as a third time offender under the part B

information and the case is remanded with direction

to modify his conviction on the part B information to

reflect that he is a second time offender and to resentence the defendant accordingly. The judgment is

affirmed in all other respects.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The jury also found the defendant guilty of reckless driving in violation

of General Statutes § 14-222; however, he does not challenge his reckless

driving conviction in the present appeal.

2 The defendant waived his right to a jury trial on the part B information.

3 Because we reverse the judgment of the court on the part B information

on the basis of the claimed evidentiary error, we do notreach the defendant’s

additional claims that the court erroneously determined that the defendant

previously had been convicted of violating a Florida criminal statute, Fla.

Stat. § 316.193 (1999), and that the elements of that statute essentially were

the same as those of General Statutes § 14-227a.

4

‘‘The walk and turn test requires the subject to walk heel to toe along

a straight line for nine paces, pivot, and then walk back heel to toe along

the line for another nine paces. The subject is required to count each pace

aloud from one to nine.’’ (Internal quotation marks omitted.) State v. Popeleski, 291 Conn. 769, 771 n.4, 970 A.2d 108 (2009).

5

‘‘The one leg stand test requires the subject to stand on one leg with

the other leg extended in the air for [thirty] seconds, while counting aloud

from [one] to [thirty].’’(Internal quotation marks omitted.) State v. Popeleski,
291 Conn. 769, 771 n.5, 970 A.2d 108 (2009).

6

‘‘The horizontal gaze nystagmus test measures the extent to which a

person’s eyes jerk as they follow an object moving from one side of the

person’s field of vision to the other. The testis premised on the understanding

that, whereas everyone’s eyes exhibit some jerking while turning to the side,

when the subject is intoxicated the onset of the jerking occurs after fewer

degrees of turning, and the jerking at more extreme angles becomes more

distinct.’’ (Internal quotation marks omitted.) State v. Popeleski, 291 Conn.

769, 770 n.3, 970 A.2d 108 (2009).

7 The court did not exclude the evidence on hearsay grounds. Because

we affirm the court’s evidentiary ruling on the basis of the grounds stated

by the court, we do not address whether the evidence contained inadmissible hearsay.

8 The state made no objection as to the authenticity of the records.

9 Section 8-3 of the Connecticut Code of Evidence provides in relevant

part: ‘‘The following are not excluded by the hearsay rule, even though the

declarant is available as a witness . . . . A statement made for purposes

of obtaining a medical diagnosis ortreatment and describing medical history,

or past or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof, insofar as reasonably

pertinent to the medical diagnosis or treatment.’’ Because the court did not

rule on the hearsay argument in addressing the admissibility of the medical

records, that issue is not properly before us on appeal.

10 The defendant never argued before the trial court, as he does on appeal,

that evidence of his neck injury would have helped to explain his failure

to adequately perform the horizontal gaze nystagmus test, and, therefore,

we do not consider that argument. See State v. Crespo, supra, 114 Conn.

App. 366.

11 In addition to the Porter argument, defense counsel also objected to

the admissibility of testimony regarding the finger dexterity test on the

ground that evidence of another field sobriety test would be cumulative of

other evidence supporting the officer’s determination at the time of arrest

that the defendant had been intoxicated, namely, that the defendant had

failed the horizontal gaze nystagmus test and the walk and turn test, that

he refused to participate in the one leg stand test and that he refused a

breathalyzer test. The court overruled that objection, noting that the state’s

burden of proof was very high and that it had a right to present to the jury

everything that factored into the officers’ decisions at the time of the arrest.

The defendant does not challenge that aspect of the court’s ruling on appeal.

12 Because our disposition of the claim with respect to the abstract is

dispositive, we do not address whetherthe fingerprint card also was admitted

in error. The defendant also argues as part of this claim that the admission

of the abstract and fingerprint card violated his constitutional right to confrontation under both the federal and state constitutions, although he chose

not to brief the state constitutional claim separately thus abandoning it. See

State v. Simpson, 286 Conn. 634, 651 n.17, 945 A.2d 449 (2008). ‘‘This court

has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case.’’ Moore v. McNamara,

201 Conn. 16, 20, 513 A.2d 660 (1986). Because we agree with the evidentiary

aspect of the defendant’s claim, we do not reach the constitutional question.

13 General Statutes § 14-227a (g) provides in relevant part: ‘‘Any person

who violates any provision of subsection (a) of this section shall . . . (2)

for conviction of a second violation within ten years after a prior conviction

for the same offense, (A) be fined not less than one thousand dollars or

more than four thousand dollars, (B) be imprisoned not more than two

years, one hundred twenty consecutive days of which may not be suspended

or reduced in any manner, and sentenced to a period of probation [with

statutorily described conditions]; and (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense,

(A) be fined not less than two thousand dollars or more than eight thousand

dollars, (B) be imprisoned not more than three years, one year of which

may not be suspended or reduced in any manner, and sentenced to a period

of probation [with statutorily described conditions], and (C) have such

person’s motor vehicle operator’s license or nonresident operating privilege

permanently revoked upon such third offense . . . . For purposes of the

imposition of penalties for a . . . third and subsequent offense pursuant

to this subsection, a conviction . . . in any other state of any offense the

essential elements of which are determined by the court to be substantially

the same as subdivision (1) or (2) of subsection (a) of this section or section

53a-56b or 53a-60d, shall constitute a prior conviction for the same offense.’’
14 It is not a ‘‘condition to the imposition of enhanced penalties for a third

offense, that a defendant must have been convicted previously of being a

second time offender.’’ See State v. Surette, 90 Conn. App. 177, 181, 876

A.2d 582 (2005).

15 The state also introduced through Shackleton documentary evidence

of a 2002 conviction of operating a motor vehicle while under the influence

prosecuted in the Superior Court in Danbury, including a certified copy of

a judgment of conviction and a related fingerprint card. The defendant does

not challenge the admissibility of that evidence on appeal.

16 The state argues in the alternative that the court was permitted to

consider hearsay evidence because it was acting as a sentencing court with

respect to the part B trial. We find no merit in this argument. Sentencing

cannot occur until both parts of the information have been adjudicated. See

State v. Jones-Richards, 271 Conn. 115, 123, 855 A.2d 979 (2004). Adjudication of part B of an information is no less of a trial than the proceedings

on the first part of the information; the state has the burden of proving a

violation beyond a reasonable doubt and all evidentiary rules regarding the

admission of evidence are the same.