*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
STATE OF CONNECTICUT v. TRAVIS LANIER

(AC 43671)

Bright, C. J., and Moll and Bear, Js.

Syllabus

Convicted of the crime of burglary in the second degree in connection with

a confrontation in the victim’s apartment, the defendant appealed to

this court, claiming, inter alia, that his constitutional rights to confrontation and to present a defense were violated when the trial court precluded him from cross-examining the victim about matters pertaining

to the victim’s bias against him and motive to falsify his claims to the

police. The victim, the defendant and M had been at a bar when the

defendant asked the victim if he could borrow twenty dollars. The victim

gave the defendant the money and stated that he had other money at

home for his rent. When the bar closed, the defendant invited the victim

to his apartment, where he and M punched the victim and asked him

about a watch he allegedly had stolen from M. The men then went to

the victim’s apartment, where the defendant took $400 and threatened

to shoot the victim if he talked to the police. The state charged the

defendant with six crimes, including burglary in the second degree by

entering or remaining unlawfully in the victim’s apartment with the

intent to commit any, some or all of the underlying crimes of robbery

in the first degree, robbery in the second degree, threatening in the

second degree in violation of statute (§ 53a-62 (a) (1)) and larceny in

the sixth degree. Prior to trial, the defendant filed a motion in limine

seeking to impeach the victim’s credibility with evidence of his felony

conviction of driving while under the influence of intoxicating liquor or

drugs, which had occurred prior to the incident with the defendant and

M, and for which the victim was serving a sentence of probation both

at the time of the incident with the defendant and M and at the time of

trial. The defendant claimed, inter alia, that there would likely be testimony that the victim’s conduct during the incident with the defendant

and M violated the terms of the victim’s probation, and that such evidence was relevant to the victim’s state of mind during the incident and

motive to fabricate claims against the defendant. The defendant also

sought to question the victim about a violation of the victim’s probation

that occurred prior to the pendency of this case, asserting that, because

the victim had not been incarcerated as a result of that violation, he

had an interest in staying in the state’s good graces, which was relevant

to his veracity and motive to falsify claims against the defendant. The

defendant further contended that, because M claimed that the victim

had stolen his watch, the victim would have a motive to fabricate his

allegations against the defendant if he knew that a condition of his

probation was that he not have any new arrests. The trial court denied

the defendant’s motion but permitted him to question the victim regarding his felony conviction, the name of the crime of which he had been

convicted and the fact that he was on probation as a result of that

conviction at the time of the incident with the defendant and M and at

the time of trial. Held:

1. The trial court did not impermissibly infringe on the defendant’s constitutional rights to confrontation or to present a defense and did not abuse

its discretion in limiting his cross-examination of the victim: although

the court did not explicitly find that the defendant’s proffered line of

questioning was irrelevant, it determined that it was speculative and

that its probative value was outweighed by its prejudicial effect, the

issues related to the victim’s probationary status, which the court

excluded, were marginally related, at best, to the issues in the case, and

the defendant failed to provide a sufficient foundation to support his

claim that his proffered line of questioning related to the victim’s motive

to fabricate the allegations against him, as it strained credulity to believe

that the victim would initiate contact with the police if he was worried

that they would learn he had been drinking alcohol or that the defendant

and M would accuse him of larceny as to M’s watch; moreover, the

defendant’s attempt to characterize his proffered line of questioning as
relating to the victim’s state of mind was tenuous and did not change

its speculative nature, this court having previously determined that speculative evidence is irrelevant; furthermore, defense counsel undertook

an extensive and robust cross-examination of the victim that addressed

many inconsistencies in his testimony, and the jury found the defendant

not guilty of five of the six charges against him, which indicated that

it did not credit all of the victim’s testimony.

2. The defendant could not prevail on his unpreserved claim that the trial

court’s jury instruction on burglary in the second degree misled the

jury because the court did not define the terms ‘‘physical threat’’ and

‘‘imminent’’ as elements of the underlying crime of threatening in the

second degree:

a. The defendant was not entitled to review of his claim pursuant to

State v. Golding (213 Conn. 233), as it was clear from the record that,

under State v. Kitchens (299 Conn. 447), he implicitly waived his right

to challenge the trial court’s instructions on appeal; defense counsel

had a meaningful opportunity to review, comment on and suggest modifications to the court’s proposed instructions, she affirmatively accepted

the instructions as proposed by repeatedly telling the court that she

had no other issues to raise concerning the instructions, the proposed

instructions were provided to defense counsel six days prior to when

the jury was charged, defense counsel had the opportunity, overnight,

to review the final jury instructions as modified from the charging conference with the court, and at no time before or after the final charge did

defense counsel raise any issue or objection concerning the instructions

as they related to the underlying crime of threatening.

b. The defendant’s assertion that the state failed to provide an adequate

record to show that he waived his instructional claim was unavailing:

although the record did not contain a copy of the trial court’s proposed

jury charge, which had not been made an exhibit at trial, and despite the

defendant’s contention that there was not enough evidence to determine

what was in the draft of the court’s proposed instructions, the record

was adequate for this court to closely examine the particular facts and

circumstances and to make a determination as to whether the defendant

had implicitly waived his right to challenge the instructions on appeal,

as the trial court had held an on-the-record charging conference in which

it addressed each jury instruction the parties requested, and gave the

parties multiple opportunities to comment on them and on the court’s

proposed instructions; moreover, the waiver rule in Kitchens did not

require that a copy of the proposed instructions be marked as an exhibit

but, rather, only evidence that the court gave the parties a copy of the

proposed instructions, and that the reviewing court’s determination of

implied waiver be based on a close examination of the record and the

particular facts and circumstances of the case.

c. Contrary to the defendant’s alternative claim, the trial court did not

commit plain error when it failed to include the definitions of ‘‘physical

threat’’ and ‘‘imminent’’ in its jury charge relating to the underlying

crime of threatening in the second degree, as this court previously has

determined that a ‘‘threat,’’ consistent with its dictionary definition, is

an expression of intent to cause future harm, and the defendant did not

demonstrate that ‘‘imminent,’’ as used in § 53a-62, has anything other

than its ordinary meaning: because the jury returned a general verdict

on the burglary charge, it was unknown whether the verdict was based

on the underlying crime of threatening or the underlying crime of larceny

in the sixth degree, any error in the court’s instructions on threatening

was harmless beyond a reasonable doubt, as the evidence was sufficient

to support the defendant’s conviction of burglary on the basis of the

underlying crime of larceny, which the defendant conceded in his appellate brief, the defendant did not raise any challenge to the jury instructions, and he did not show that the verdict was based on a legally

inadequate underlying theory of conduct on his part or allege that the

court misstated the law, that the state’s theory of conviction was time

barred or that his actions were constitutionally protected.

Argued March 9—officially released July 6, 2021

Procedural History

Two part substitute information charging the defendant, in the first part, with the crimes of conspiracy to

commit robbery in the first degree, conspiracy to com-
mit robbery in the second degree, robbery in the first

degree, robbery in the second degree, assault in the

second degree and burglary in the second degree, and,

in the second part, with being a persistent felony

offender, brought to the Superior Court in the judicial

district of Middlesex, where the court, Suarez, J.,

denied the defendant’s motion to admit certain evidence; thereafter, the first part of the information was

tried to the jury; verdict of guilty of burglary in the

second degree; subsequently, the defendant was tried

to the court on the second part of the information;

finding of guilty; thereafter, the court rendered judgment in accordance with the verdict and the finding,

from which the defendant appealed to this court.

Affirmed.

Pamela S. Nagy, assistant public defender, for the

appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Michael A. Gailor, state’s

attorney, and Russell C. Zentner, senior assistant state’s

attorney, for the appellee (state).
Opinion

BEAR, J. The defendant, Travis Lanier, appeals from

the judgment of conviction, rendered following a jury

trial, of burglary in the second degree in violation of

General Statutes § 53a-102 (a). He claims that (1) the

trial court violated his constitutional rights to confrontation and to present a defense when it precluded him

from cross-examining the victim regarding matters that

allegedly concerned the victim’s bias against the defendant and motive to falsify his claims to the police regarding the defendant, and (2) the court’s jury instruction on

burglary in the second degree misled the jury because

it did not define the elements of threatening in the

second degree, which was one of the alleged underlying

crimes for the burglary charge.1 We disagree and affirm

the judgment of the trial court.

The jury reasonably could have found the following

facts. On the evening of January 28, 2018, at about 11

p.m., after the victim, Alejandro Marrinan, had finished

working, he went to a local bar in Middletown called

the Corner Pocket. While at the bar, he encountered

the defendant, whom he had met on previous occasions

at the bar and who went by the name ‘‘Taz.’’ The defendant was at the bar with two other individuals, a man

named Mason Moniz and Moniz’ mother. At some point,

the defendant bought the victim a drink, and the two

had a conversation. The defendant asked to borrow

twenty dollars from the victim, who gave him the money

and stated, ‘‘I have my other money at home for my

rent.’’2 The victim testified that he stayed at the bar

with the defendant until the bar closed at 1 a.m., at

which time the defendant invited the victim and Moniz

to his apartment. Before they left the bar, they bought

beer to bring to the apartment.

At the defendant’s apartment, when the victim was

taking off his jacket, he turned around and was punched

in the face by the defendant and ‘‘knocked out.’’ The

victim testified that he was ‘‘out cold’’ or unconscious

for about thirty seconds, and that he remembered the

defendant picking him up and hitting him again, this

time in the mouth. Thereafter, he also was hit by Moniz.

At that time, the defendant and Moniz asked the victim

about a watch,3 and stated that they were going to go

to the victim’s apartment to get his money or they were

going to hurt him.

While the three men walked to the victim’s apartment,

which was on Main Street in Middletown, the victim

walked slowly because he had dialed 911 on his cell

phone, which was in his pocket, and hoped that the

call would alert the police to his location. The victim

testified that, during that time, the defendant and Moniz

walked behind him and pushed him. When they arrived

at the victim’s apartment, the defendant was very angry

and demanded that the victim open the door. The victim
testified that the defendant and Moniz forced him to

go inside his apartment, and, once inside, the defendant

said, ‘‘give me the money, where’s the money?’’ The

victim kept his money in a bank envelope in a bedroom

closet, with $400 folded in the envelope and $400 the

long way in the envelope. When the victim took the

envelope out of the closet, the defendant grabbed the

envelope, took the money and left the room, stating

that he would shoot or hurt the victim if the victim

talked to the police. Although the envelope contained

$800, the victim testified that the defendant took only

$400. The defendant and Moniz then left the apartment,

and the victim called 911 again. This time, the victim

spoke to a 911 operator and stated that two people had

just robbed him, that the two individuals were walking

down the street, and that he was scared for his life

because one of the robbers had threatened to shoot

him if he talked to the police. During that call, the victim

also stated that he had been hanging out with friends

when the incident occurred and that, after the defendant took his money, the defendant asked if the victim

wanted to go back to the defendant’s apartment.

Officer Kyle Pixley of the Middletown Police Department was working a late shift on the evening of January

28, 2018, into the morning of January 29, 2018, when

he received a call at 2:47 a.m. from police dispatch to

go to the north end of Main Street to canvass the area

for two suspects involved in an armed robbery. Once

there, he saw two individuals who matched the descriptions of the suspects walking northbound on the sidewalk on the east side of Main Street, just south of

Rapallo Avenue, and they were the only two people on

Main Street at that time. He drove his police cruiser

alongside the suspects, stopped, got out, and asked

them to show him their hands. The men ignored the

officer and continued to walk in a northbound direction,

at which point the officer drew his pistol and asked

several more times for them to comply. Moniz stopped,

raised his hands, and ‘‘froze,’’ while the defendant kept

walking and rounded the corner onto Rapallo Avenue,

out of Officer Pixley’s sight. At that time, Officer Jeffrey

Scoppetto of the Middletown Police Department had

arrived at the corner of Main Street and Rapallo Avenue,

stopped his police cruiser on Rapallo Avenue, got out

of his vehicle, and approached the defendant, who was

walking in an easterly direction on Rapallo Avenue.

Initially, the defendant did not comply with the requests

of either officer to come back, but he eventually walked

back toward Officer Pixley. After the defendant and

Moniz were handcuffed, Officer Pixley walked around

the corner onto Rapallo Avenue to see if the defendant

had discarded a weapon or other evidence, and he found

two 100 dollar bills lying on the sidewalk, which were

taken and tagged as evidence. Two 50 dollar bills were

taken from Moniz and also tagged as evidence.

In response to the victim’s second 911 call concern-
ing a robbery, Sergeant Nicholas Puorro and Officer

Michael Pellegrini of the Middletown Police Department went to the victim’s apartment, where they interviewed the victim. Sergeant Puorro observed that the

victim was ‘‘shaken up,’’ nervous, and scared, and had

visible injuries about his face. Thereafter, Officer Pellegrini took the victim in his police cruiser to the area

of Main Street and Rapallo Avenue, where the defendant

and Moniz had been detained on the sidewalk. Officer

Pellegrini asked the victim to identify the two suspects,

and he did so ‘‘[i]mmediately’’ and ‘‘[w]ithout hesitation.’’ After the identifications were made by the victim,

which occurred at 3:20 a.m., he was taken back to his

apartment, and he subsequently was transported by

ambulance to a hospital after complaining to Officer

Pellegrini about a head injury. The victim told staff

at the emergency department of the hospital that he

thought he might have been drugged. Matthew Dolan,

an emergency medical doctor, saw the victim in the

early morning of January 29, 2018, and ordered certain

tests because the victim had signs of blunt trauma to

his face. The results of those tests indicated that the

victim’s nose was broken.

The defendant was arrested and charged in a third

substitute information with having committed the following crimes: in count one, conspiracy to commit robbery in the first degree in violation of General Statutes

§§ 53a-48 (a) and 53a-134 (a) (1); in count two, conspiracy to commit robbery in the second degree in violation

of General Statutes §§ 53a-48 (a) and 53a-135 (a) (1) (A);

in count three, robbery in the first degree in violation

of § 53a-134 (a) (1); in count four, robbery in the second

degree in violation of § 53a-135 (a) (1) (A); in count

five, assault in the second degree in violation of General

Statutes § 53a-60 (a) (1); and in count six, burglary in

the second degree in violation of § 53a-102 (a). Specifically, in count six, the state alleged that the defendant

committed burglary in the second degree by entering

or remaining unlawfully in the victim’s apartment sometime between 1 and 2:50 a.m. on January 29, 2018, while

the victim was present, with the intent to commit a

crime therein, namely, robbery in the first degree as

alleged in count three, and/or robbery in the second

degree as alleged in count four, and/or threatening in

the second degree in violation of General Statutes § 53a62 (a) (1), and/or larceny in the sixth degree in violation

of General Statutes § 53a-125b (a). The defendant also

was charged in a part B information with being a persistent felony offender in violation of General Statutes

§ 53a-40 (g) as a result of his two prior convictions in

2006 and 2000 of possession of narcotics in violation

of General Statutes § 21a-279 (a).

Following a jury trial, the jury found the defendant

guilty of burglary in the second degree as alleged in

count six and not guilty of the charges in counts one

through five. Thereafter, on June 7, 2019, a trial was
held before the court with respect to the part B information, and the defendant was found guilty and adjudicated to be a persistent felony offender. The court thereafter sentenced the defendant on count six to seven

years of incarceration, followed by three years of special parole with special conditions. This appeal followed. Additional facts and procedural history will be

set forth as necessary.

I

The defendant’s first claim is that the court violated

his constitutional rights to confrontation and to present

a defense when it prevented him from cross-examining

the victim about matters that he claimed were highly

relevant to the victim’s bias against the defendant and

motive to falsify his claims to the police. We disagree.

The following additional facts are relevant to this

claim. On April 26, 2019, prior to the commencement

of trial, the defendant filed a motion in limine,

requesting ‘‘that the court allow him to impeach the

[victim’s] credibility with evidence of the [victim’s] felony conviction and to confront him with certain conduct, while on probation, which [was] probative of his

lack of veracity.’’ Specifically, the victim had been convicted in 2017 of the felony of operating a motor vehicle

while under the influence of intoxicating liquor or

drugs, and, at the time of the incident underlying the

criminal charges against the defendant, the victim was

serving a period of probation in connection with that

conviction. In his motion, the defendant stated that he

was seeking to cross-examine the victim, a key witness

for the state, ‘‘on evidence of prior crimes, as well as

the status, standard conditions, and special conditions

of the probationary period that he is currently serving,

in addition to the facts and circumstances surrounding

his conviction, the original sentence and the sentence

following a violation of probation.

‘‘In this case, where there is suspended prison time

hanging over the [victim], the fact that a jury might

reasonably contemplate that a person in such a situation

might have a tendency to wish to curry favor with the

prosecuting authorities is a legitimate [ground] of crossexamination. Secondly, where there will likely be testimony from the [victim] and other witnesses that [the

victim’s] conduct at the time of the alleged incident

[violated] the terms and conditions of his probation,

[such evidence], at [a] minimum, goes to the state of

mind of the [victim], and certainly towards the [victim’s]

motive to fabricate. As such, these are matters properly

considered by a jury. . . . These facts are different

from mere impeachment as a result of prior criminal

convictions and go directly towards the jury’s ability to

weigh the credibility of the [victim].’’ (Citation omitted.)

In his motion, the defendant acknowledged that the

victim’s felony conviction did not involve a crime that
necessarily related to the victim’s credibility but argued

that the court should balance the probative value of

the evidence against its prejudicial effect. According to

the defendant, the fact that the victim previously had

been convicted of a crime that did not directly reflect

on his credibility did not bar admission of evidence of

that conviction, as the jury could simply afford less

weight to the evidence if it chose to do so.

On May 10, 2019, the court held a hearing on the

defendant’s motion in limine. At the hearing, defense

counsel stated that she wanted to ask the victim about

the fact that the victim previously had violated his probation, although that violation did not occur during the

pendency of this case.4 Specifically, defense counsel

argued that, because the victim previously had violated

his probation and was not incarcerated as a result of

that violation, he had an interest in making sure that

he stayed ‘‘in the state’s good graces . . . .’’ Defense

counsel stated: ‘‘That certainly goes to any motive to

fabricate, also veracity. We do have the fact that he is

being accused throughout these allegations of larceny.

He has recently—again, he has experienced the effect

of being arrested while on probation and having the

risk of going back to jail three weeks before, and he

did not. So, certainly he is on notice that, if it happens

again, which could have happened if—if he had been

reported for this larceny, that he could have violated

again shortly—in very short succession, and my guess

is, the state would not have looked quite as kindly on

him for the second violation.’’ The court responded,

stating, ‘‘[t]hat’s all too speculative. That’s way too speculative. There are many reasons why somebody can get

violated [on] probation. It’s way too speculative.’’

In an oral decision, the court denied the defendant’s

motion in limine, stating: ‘‘So, first of all, our courts

have held that the sixth amendment right to compulsory

process is limited by controverting public interest and

the rules of evidence. The constitution does not require

that a defendant be permitted to present every piece

of evidence he wishes. The trial court retains the power

to rule on admissibility of evidence pursuant to traditional evidentiary standards.

‘‘In Connecticut, we have a Code of Evidence, which

specifically addresses the issue of prior convictions.

Section 6-7 . . . states that ‘[f]or the purpose of

impeaching the credibility of a witness, evidence that

a witness has been convicted of a crime is admissible

if the crime was punishable by imprisonment of more

than one year. In determining whether to admit evidence of a conviction, the court shall consider the

extent of the prejudice likely to arise, the significance

of the particular crime in indicating untruthfulness, and

the remoteness in time of the conviction.’

‘‘Before the court are requests to allow the defendant

to cross-examine the [victim] on his [operating a motor
vehicle while under the influence] conviction and a

violation of that probation. The violation of that probation arose as a result of an action prior to the incident

here in question. The [victim] remains on probation.

‘‘Of course, every cross-examination based on a conviction has, in itself, a degree of prejudice. To this court,

the question really is what’s the probative value? Having

considered the prejudice and the probative value of

what’s being requested, the court will order as follows.

The defendant may inquire of the [victim] of a prior

felony conviction, and the defendant may inquire as to

whether or not he is currently on probation. Any inquiry

as to whether or not he violated that probation, [or the]

basis of the violation of that probation, the court finds

that its probative value is outweighed by its [prejudice].

Therefore, the court is going to limit the inquiry as to

those two areas.’’

On direct examination by the state, the victim

acknowledged that he had a prior felony conviction in

2017 for operating a motor vehicle while under the

influence of intoxicating liquor or drugs. He also testified that he was on probation for that offense. Before

the commencement of cross-examination, the state

made an oral motion in limine to preclude the defendant

from asking the victim about whether the victim thought

that his consumption of alcohol on the night in question

could result in a violation of a condition of his probation. In response, defense counsel asked the court that

she be able to question the victim about his consumption of alcohol on the night in question. The following

colloquy transpired:

‘‘[Defense Counsel]: . . . It may not—based on the

state’s representation, even though [the victim’s consumption of alcohol] may not be a technical violation

[of his probation], it could change the conditions of his

current probation. If he had finished substance abuse

treatment and his probation officer learned that he was

now consuming excess amounts of alcohol, then the

probation officer could potentially change those conditions, require him to go back into treatment. That may

be something that the [victim] would wish to avoid and,

because of that, he may not want the probation officer

to get information about what had happened that night,

the fact that he was consuming potentially excess

amounts of alcohol, that he was intoxicated, as he represented in the emergency room. And for those reasons,

the defense believes that probing into that line of questioning is relevant to his motive to fabricate, his veracity, and we believe that we should be able to have that

opportunity to question him.

‘‘The Court: Well, isn’t that speculative, whether or

not the probation officer may or may not use this to

violate his probation? He hasn’t done it yet.

‘‘[Defense Counsel]: Well, it is in the mind of the
[victim], whether he has those concerns, we should be

able to ask him about, because that may lead him to

have a motive to fabricate. So, he may speculate, but

that is something that we should be able to question

him about. Did he have those concerns?

‘‘[The Court]: No. But isn’t that speculation on your

part? I mean, you’re assuming that the probation officer

may violate him if he—if he drank alcohol.

‘‘[Defense Counsel]: I’m not—I’m not assuming that

the probation officer would violate him if he drank

alcohol. What we would want to question the witness

about is whether or not he knew that one of the conditions of his probation was substance abuse treatment

and whether he knew that, potentially, the knowledge

of him being intoxicated on that night or drinking excessive amounts of alcohol while he’s on probation for a

felony [conviction of operating a motor vehicle while

under the influence] could potentially change those conditions of his probation.

‘‘I’m not speculating as to whether it would, but we

believe that being able to question him about his

thoughts on that, whether he knew those [conditions]

of his probation is relevant and necessary in order to

delve into his motive to fabricate and his veracity.

‘‘The Court: Okay.

‘‘[Defense Counsel]: And bias, for that matter. Thank

you.

‘‘[The Prosecutor]: Your Honor, I would direct the

court’s attention to § 6-6 of the Connecticut Code of

Evidence, subsection (b), on specific instances of conduct where it says [the] general rule, where it’s codified

that a witness may be asked, in good faith, about specific instances of conduct of the witness, if probative

of the witness’ character for truthfulness. The fact that

he consumed alcohol is not something that would be

probative of his truthfulness. . . .

‘‘[Defense Counsel]: Your Honor, just in response,

the defense filed a motion specifically delving into this

area regarding the [victim’s] state of mind. The court

has made a ruling regarding our questioning of him on

probation, the fact that he was on probation at the time,

the fact that he’s on probation now, the fact that he

has that felony conviction for [operating a motor vehicle

while under the influence]. This goes specifically to his

state of mind at the time and is particularly relevant to

show motive, bias, or interest, and there is case law in

Connecticut that any evidence tending to show motive,

bias, or interest of an important witness is never collateral or irrelevant.

‘‘We should be able to question him about that, about

his state of mind at the time and whether or not he

may have had an interest at the time, knowing that he

was on probation and that this event did happen. We
should be able to question him about that in order to

determine what his state of mind was at the time and

if he had any motive, bias, or interest at that time. . . .

‘‘The Court: Are you familiar with § 6-7 of the [Connecticut Code of Evidence]? . . .

‘‘[Defense Counsel]: Yes.

‘‘The Court: And it talks, as a general rule, of

impeaching the credibility of a witness, evidence that

a witness has been convicted of a crime is admissible

if the crime was punishable by imprisonment for more

than one year. In determining whether to admit evidence of a conviction, the court shall consider the

extent of the prejudice likely to arise, the significance

of the particular crime indicating untruthfulness, and

the remoteness in time of the conviction.

‘‘There are several cases that talk about what types

of crimes may be admitted for untruthfulness, lack of

veracity. And the [Connecticut] Code [of Evidence] still

leaves it to the discretion of the court as to whether

or not to admit it or not, and the court has to impose

a balancing act, probative value versus prejudicial

[effect].

‘‘Now, I allowed you yesterday, or whenever we heard

the motion, to ask questions as to his conviction of a

felony [for operating a motor vehicle while under the

influence]. I’m not sure that [such] a felony [conviction]

goes toward veracity. It’s not a crime of larceny. It’s

not a crime of fraud or things of that sort. It’s a felony.

So, I allowed you to question him on that basis, and I

went beyond that and allow[ed] you to ask whether or

not he’s on probation for that.

‘‘The [Connecticut] Code [of Evidence] limits the subject matter of proof to the introduction that the witness

has been convicted of a crime. The court shall limit the

crime by its name and when and where the conviction

was rendered. Except that the court may exclude evidence of the name of the crime and, if the witness

denies the conviction, the court may permit evidence

of the punishment imposed. That’s if the victim . . .

denies the conviction.

‘‘I think I—I think I’ve granted you extra latitude by

allowing you to inquire as to whether or not he’s on

probation. But whether or not he’s going to be violated

for his probation, this incident occurred a year ago, a

year and a half ago. Whether or not he’s going to be

violated or not I think goes beyond that scope.

‘‘[Defense Counsel]: Your Honor, if I may just

respond? The court did make a ruling regarding the

defense being able to question the [victim] about being

on probation at the time and also being on probation

today.

‘‘The Court: Right.
‘‘[Defense Counsel]: That is a separate matter from

whether or not he has a felony conviction that goes

directly towards veracity. The court also ruled that we

could discuss the fact that he has a felony conviction.

In fact, the state already elicited that information from

the [victim].

‘‘The Court: Right.

‘‘[Defense Counsel]: And the state also elicited the

information regarding the [victim] being on probation.

The questions that the defense is seeking or may seek

to ask the [victim] [do] not go to whether or not he

was on probation but whether his state of mind at the

time could have been affected by the knowledge that

being on probation and being intoxicated at the time

could give him some motive, interest, or bias to fabricate. . . . Now, the defense should be able to crossexamine this [victim] regarding whether he had any

motive, interest, bias, or prejudice based on the knowledge that, because he was being monitored and because

this incident happened and if his probation officer found

out about that, it could change the conditions of his

probation. It could have a number of consequences and

I’m not—

‘‘The Court: But that’s all speculative.

* * *

‘‘The Court: Like I said to you when I issued the

decision, the sixth amendment is not unlimited. It does

still have to—there are rules of evidence that allow

some and exclude other testimony. Anything else?

‘‘[Defense Counsel]: Your Honor, just to conclude,

the defense believes that [the defendant’s] sixth amendment right to fully cross-examine this [victim] should

allow him to fully delve into areas of motive, interest,

bias, or prejudice as a matter of right in order to determine whether this [victim] did have any ulterior motives

to fabricate, what his state of mind was at the time,

and being able to cross-examine this witness against

[the defendant] is a fundamental right in [the defendant’s] trial. Any—we believe that any limit on that

ability to cross-examine would affect his due process

rights.

‘‘The Court: Well, all right. Well, okay. Thank you for

that. The court’s decision is that you can inquire as to

the crime, which is the [operating a motor vehicle while

under the influence] felony conviction. By the way, I

think the court is being even generous by allowing you

to name the crime. And the fact that he’s on probation. I

think that the court’s already gone beyond the—beyond

that which is permitted by the [Connecticut] Code [of

Evidence]. I’m going to find that asking questions with

respect to any potential violation of his probation is so

speculative that the probative value is outweighed by

any—by the prejudicial value of it. . . .
‘‘[Defense Counsel]: Just to clarify. Is the defense

allowed to discuss the probation conditions of his probation?

‘‘The Court: No. You can ask that he had a felony

conviction. You can ask that it’s for [operating a motor

vehicle while under the influence]. You can ask that

he’s on probation for it.’’

When defense counsel also asked the court if it was

permissible to ask the victim whether one of the standard conditions of his probation was not to be arrested,

the state objected on the ground of relevance, and the

court asked, ‘‘[h]ow is that relevant?’’ Defense counsel

explained that it was relevant ‘‘to delve into the [victim’s] state of mind and motive to fabricate,’’ given the

allegation against the victim that he stole Moniz’ watch.

See footnote 3 of this opinion. According to the defense,

if the victim knew that one of the standard conditions

of his probation was not to have any new arrests, and

he was being accused of a larceny involving the theft

of a watch, that might have given him a motive to fabricate his allegations against the defendant. The court did

not agree and limited cross-examination to the victim’s

felony conviction and whether he was on probation at

the time of the incident and at trial. The court explained:

‘‘Now, you can test his veracity pursuant to the [Connecticut] Code [of Evidence]. You can—you can certainly cross-examine him. But the limit of his felony

conviction is limited to the fact that he has one for

[operating a motor vehicle while under the influence]

and that he’s on probation for it.’’

On cross-examination of the victim, the defense

brought out the fact that, at the time of the incident,

the victim was on probation for a 2017 felony conviction

for operating a motor vehicle while under the influence

of intoxicating liquor or drugs and that he was still on

probation at the time of trial. Defense counsel also

addressed a number of inconsistencies in the victim’s

testimony. Some of those inconsistencies included the

following: (1) although the victim testified on direct

examination that he drank a Long Island iced tea while

at the defendant’s apartment after the bar had closed,

he testified on cross-examination that he had the drink

at the bar, not the defendant’s apartment, and that he

actually did not have any drinks at the defendant’s apartment; (2) the fact that the victim told a victim’s advocate

that he had had only one drink at the bar, but, at the

emergency department of the hospital, told staff that

he had one or two drinks with acquaintances and testified on direct examination that he had three drinks at

the bar; (3) the victim testified on direct examination

and told a 911 dispatcher that the defendant stole $300

from him, but the victim told a victim’s advocate and

testified on cross-examination that the defendant took

$400 from him; and (4) the victim told staff at the emergency department that he might have been drugged
but never mentioned that to the 911 dispatcher or to

the police.

On appeal, the defendant claims that the trial court

erred in determining that his proposed questions of

the victim were speculative and more prejudicial than

probative. According to the defendant, the proposed

questions of the victim ‘‘went directly to establishing

that [the victim] may have had his own reasons for

fabricating his allegations,’’ and that, ‘‘[w]ithout any

evidence of [the victim’s] motive to lie, the jury had

no reason to disbelieve his claim that [the] defendant

forcefully entered his apartment so that he and Moniz

could take [the victim’s] money.’’ The defendant

explains in his brief to this court that ‘‘[t]he mere fact

that the jury learned that [the victim] had a felony conviction and was on probation did not matter because

[the] defendant was unable to show how those things

impacted [the victim’s] claims.’’ The defendant, thus,

claims that the court’s ruling, which deprived him of

the opportunity to develop the victim’s motive and bias,

was harmful and warrants a new trial because it violated

his constitutional rights to confrontation, to present a

defense, and to a fair trial.

Before addressing the merits of the defendant’s claim,

we set forth our standard of review and the law that

guides our analysis. ‘‘[T]he sixth amendment to the

[United States] constitution guarantees the right of an

accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured

by confrontation is the right to cross-examination

. . . . Compliance with the constitutionally guaranteed

right to cross-examination requires that the defendant

be allowed to present the jury with facts from which

it could appropriately draw inferences relating to the

witness’ reliability. . . . However, [t]he [c]onfrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, or to whatever extent, the

defense might wish. . . . Thus, [t]he confrontation

clause does not . . . suspend the rules of evidence to

give the defendant the right to engage in unrestricted

cross-examination. . . .

‘‘Although [t]he general rule is that restrictions on

the scope of cross-examination are within the sound

discretion of the trial [court] . . . this discretion

comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth

amendment. . . . If that constitutional standard has

been satisfied, then [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. . . . [That is

to say] [t]he court’s decision is not to be disturbed

unless [its] discretion has been abused, or the error is

clear and involves a misconception of the law.’’ (Citation omitted; internal quotation marks omitted.) State
v. Lopez, 177 Conn. App. 651, 661–62, 173 A.3d 485,

cert. denied, 327 Conn. 989, 175 A.3d 563 (2017). Thus,

this court ‘‘must engage in a two step analysis. We must

determine first whether the cross-examination permitted to defense counsel comported with sixth amendment standards . . . and second, whether the trial

court abused its discretion in restricting the scope of

that cross-examination. . . . Once it is established that

the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will

apply [e]very reasonable presumption . . . in favor of

the correctness of the court’s ruling in determining

whether there has been an abuse of discretion. . . .

To establish an abuse of discretion, [the defendant]

must show the restrictions imposed upon [the] crossexamination were clearly prejudicial.’’ (Citations omitted; internal quotation marks omitted.) State v. Errol

J., 199 Conn. App. 800, 807–808, 237 A.3d 747, cert.

denied, 335 Conn. 962, 239 A.3d 1213 (2020).

This court has stated that, ‘‘[a]lthough only relevant

evidence may be elicited through cross-examination

. . . [e]vidence tending to show motive, bias or interest

of an important witness is never collateral or irrelevant.

[Indeed, it] may be . . . the very key to an intelligent

appraisal of the testimony of the [witness]. . . .

Accordingly, cross-examination to elicit facts tending

to show that a witness’ testimony was motivated by

bias may not be unduly restricted.’’ (Internal quotation

marks omitted.) State v. Kehayias, 162 Conn. App. 310,

323, 131 A.3d 1200 (2016). Therefore, ‘‘[a]lthough it is

within the trial court’s discretion to determine the

extent of cross-examination and the admissibility of

evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest

may result in a violation of the constitutional requirements [of the confrontation clause] of the sixth amendment.’’ (Internal quotation marks omitted.) State v. Jessie L. C., 148 Conn. App. 216, 224, 84 A.3d 936, cert.

denied, 311 Conn. 937, 88 A.3d 551 (2014). ‘‘In determining whether a defendant’s right of cross-examination

has been unduly restricted, we consider the nature of

the excluded inquiry, whether the field of inquiry was

adequately covered by other questions that were

allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated

at trial.’’ (Internal quotation marks omitted.) State v.

Rogelstad, 73 Conn. App. 17, 22, 806 A.2d 1089 (2002).

‘‘In so inquiring, reviewing courts have declined to hold

that a defendant’s confrontation right was violated by

limits on cross-examination when the defendant was

allowed to ask other questions about the same motive,

bias, or interest.’’ State v. Kehayias, supra, 327.

In Kehayias, this court found that the defendant’s

constitutional right to confrontation was not violated

when the trial court ‘‘merely limited, and did not preclude, inquiry into a specific motive that already had
been robustly developed on cross-examination . . . .’’

Id., 328. In contrast, in State v. Milum, 197 Conn. 602,

607–608, 500 A.2d 555 (1985), ‘‘our Supreme Court found

error where the trial court refused to allow the defendant to ask the victim at all about either the victim’s

pending civil suit arising from the same events against

the defendant, or about the victim’s demand for $25,000

in exchange for her recommendation of a suspended

sentence for the defendant.’’ (Emphasis in original.)

State v. Kehayias, supra, 162 Conn. App. 328.

In the present case, the trial court based its ruling

on § 6-7 of the Connecticut Code of Evidence, which

concerns evidence of a conviction of a crime and provides in relevant part: ‘‘For the purpose of impeaching

the credibility of a witness, evidence that a witness has

been convicted of a crime is admissible if the crime

was punishable by imprisonment for more than one

year. . . .’’ See also State v. Clark, 137 Conn. App. 203,

207, 48 A.3d 135 (2012) (it is well established that ‘‘[t]he

credibility of a witness may be attacked by introducing

the witness’ conviction of a crime if the maximum penalty for that conviction is imprisonment exceeding one

year’’ (internal quotation marks omitted)), aff’d, 314

Conn. 511, 103 A.3d 507 (2014). The rule lists a number

of factors that the court should consider in determining

whether to admit evidence of a conviction, including

‘‘the extent of the prejudice likely to arise’’; Conn. Code

Evid. § 6-7 (a) (1); and ‘‘the significance of the particular

crime in indicating untruthfulness . . . .’’ Conn. Code

Evid. § 6-7 (a) (2). In determining the admissibility of

such evidence, the test is ‘‘whether the probative value

of the evidence outweighs its prejudicial effect.’’ State

v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986). ‘‘The

trial court, because of its intimate familiarity with the

case, is in the best position to weigh the relative merits

and dangers of any proffered evidence. . . . This principle applies with equal force to the admissibility of

prior convictions.’’ (Internal quotation marks omitted.)

State v. Ciccio, 77 Conn. App. 368, 386, 823 A.2d 1233,

cert. denied, 265 Conn. 905, 831 A.2d 251 (2003); see

also State v. Harrell, 199 Conn. 255, 262, 506 A.2d 1041

(1986) (‘‘[the] balancing of intangibles—probative values against probative dangers—is so much a matter

where wise judges in particular situations may differ

that a [leeway] of discretion is generally recognized’’

(internal quotation marks omitted)). We also note that

‘‘conviction of a crime not directly reflecting on credibility clearly lacks the direct probative value of a criminal

conviction indicating dishonesty or a tendency to make

false statement. Thus, the balance used to measure

admissibility of prior convictions is weighted less heavily toward admitting the prior conviction when it

involves a crime related only indirectly to credibility.’’

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

180 Conn. App. 624, 658, 184 A.3d 773, cert. denied, 328

Conn. 937, 184 A.3d 268 (2018).
In the present case, we must examine whether the

court’s limitation on the defendant’s cross-examination

of the victim deprived the defendant of his constitutional right to confrontation and, if not, whether the

court’s ruling was an abuse of its discretion. Despite

the fact that the victim’s prior felony conviction of

operating a motor vehicle while under the influence of

intoxicating liquor or drugs did not involve a crime that

reflected on the victim’s credibility, the court permitted

questioning regarding the victim’s conviction of that

crime, the name of the crime and the fact that the victim

was on probation for his conviction of that crime, both

at the time of the incident underlying the charges and

at the time of trial. Our Supreme Court has stated that

the right to cross-examination under the sixth amendment is satisfied ‘‘when . . . the defendant is allowed

to impeach the witness by [inquiring into the existence

of] a prior, unspecified felony conviction.’’ (Emphasis

omitted.) State v. Dobson, 221 Conn. 128, 137, 602 A.2d

977 (1992). Here, the court went beyond that and permitted the name of the crime underlying the felony conviction, as well as questioning regarding the defendant’s

probationary status, even though the felony conviction

did not involve a crime relating directly to the credibility

of the victim. See State v. Swilling, supra, 180 Conn.

App. 658–59 (‘‘[t]o avoid unwarranted prejudice to the

witness, when a party seeks to introduce evidence of

a felony that does not directly bear on veracity, a trial

court ordinarily should permit reference only to an

unspecified crime carrying a penalty of greater than

one year that occurred at a certain time and place’’

(internal quotation marks omitted)).

For this court to determine that the defendant’s sixth

amendment right to confrontation has been met, we

must be satisfied that ‘‘defense counsel [was] permitted

to expose to the jury the facts from which [the] jurors,

as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the

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

Fernando R., 103 Conn. App. 808, 819, 930 A.2d 78, cert.

denied, 284 Conn. 936, 937 A.2d 695 (2007). In doing so,

we must consider ‘‘the nature of the excluded inquiry,

whether the field of inquiry was adequately covered

by other questions that were allowed, and the overall

quality of the cross-examination viewed in relation to

the issues actually litigated at trial.’’ (Internal quotation

marks omitted.) Id.

First, it is important to note that the trial court did

not completely exclude all inquiry regarding the victim’s

prior felony conviction; in fact, the court permitted

questions regarding the felony conviction, the name of

the crime underlying the conviction, and the fact that

the defendant was on probation for that conviction, and

its ruling complied with the requirements of § 6-7 of

the Connecticut Code of Evidence. On appeal, the
defendant challenges the court’s ruling precluding

inquiry regarding (1) the conditions of the victim’s probation, (2) the victim’s consumption of alcohol on the

night in question and whether the victim thought that

might result in a violation or change in the conditions

of his probation, and (3) whether the victim feared that

the allegations of larceny against him for the theft of

a watch would result in his arrest and a violation of his

probation. The defendant claims that he was deprived

of the opportunity to develop the victim’s motive and

bias because he could not delve further into how the

victim’s probationary status may have impacted and

motivated the victim to fabricate the allegations against

the defendant. We do not agree.

We agree with the trial court’s determination that the

proffered line of questioning was based on speculation

and that its probative value was outweighed by its prejudicial effect. With respect to the conditions of the victim’s probation and his consumption of alcohol on the

night in question, defense counsel acknowledged that

the victim’s consumption of alcohol would not have

been a technical violation of his probation, which

required substance abuse treatment, and claimed that

the victim might have been worried that the conditions

of his probation could potentially change and require

him to undergo more substance abuse treatment. The

fact that the victim might have been worried about a

potential change in a condition of his probation is

clearly within the realm of speculation, and we conclude that the defendant has failed to provide a sufficient foundation to support his claim that the proffered

evidence related to the victim’s motive to fabricate the

allegations against him. This is particularly so given

that the victim called the police, prompting his meeting

with them. It strains credulity to believe that if the

victim was worried about the police learning that he

was drinking alcohol he would initiate contact with

them so that they could observe him after he had just

done so.

Moreover, the defendant’s claim that he should have

been allowed to question the victim about his motive

to fabricate relating to the theft of Moniz’ watch is

equally unavailing. According to the defendant, the victim’s alleged fear that a larceny charge might be brought

against him for the theft of Moniz’ watch, resulting in

a violation of his probation, may have motivated the

victim to fabricate the allegations against the defendant.

Again, we agree with the court’s determination that

the proffered questioning was based on speculation.

According to the victim’s testimony, he ‘‘had no idea’’

what the defendant and Moniz were talking about when

they had asked the victim about a watch after hitting

him. It was a relatively short time period between when

the victim was first confronted about the theft of the

watch, and when he called 911 both on the walk to

his apartment and immediately after the defendant and
Moniz left his apartment after stealing his rent money.

Although the defendant claimed at trial that the victim

might have feared that an arrest for larceny would result

in a violation of the victim’s probation, the defendant

never explained to the trial court or to this court how

the victim’s initiation of contact with the police on the

night of the incident was consistent with the victim’s

desire to avoid police involvement. To the contrary,

involving the police in his dispute with the defendant

and Moniz only increased the possibility that the two

men would accuse the victim of larceny when confronted by the accusation that they assaulted the victim.

Under these circumstances, the court was justified in

excluding the proffered line of questioning as speculative. Consequently, the court’s rulings restricting the

defendant’s cross-examination of the victim did not violate his sixth amendment right to confrontation. That

being the case, ‘‘[t]he trial court has broad discretion

. . . in determining the admissibility of evidence

claimed to be remote, repetitious, or otherwise lacking

in probative value.’’ State v. Bova, 240 Conn. 210, 229,

690 A.2d 1370 (1997). We cannot say that the court

abused its wide discretion in determining that the probative value of the evidence did not outweigh its prejudicial effect.

The defendant’s attempt to characterize the proffered

line of questioning as relating to the victim’s state of

mind is tenuous and does not change its speculative

nature. ‘‘The trial court has the discretion to exclude

speculative evidence, expert or otherwise.’’ (Internal

quotation marks omitted.) Bridgeport Harbour Place

I, LLC v. Ganim, 131 Conn. App. 99, 123, 30 A.3d 703,

cert. granted, 303 Conn. 904, 31 A.3d 1179 (2011) (appeal

withdrawn January 27, 2012), and cert. granted, 303

Conn. 905, 31 A.3d 1180 (2011) (appeal withdrawn January 26, 2012). Although the trial court did not explicitly

find that the proffered evidence was irrelevant, it did

find the evidence to be speculative in nature, and this

court has determined previously that speculative evidence is irrelevant. See State v. Sulser, 109 Conn. App.

852, 874, 953 A.2d 919, cert. denied, 289 Conn. 939, 959

A.2d 1006 (2008); see also State v. Davis, 298 Conn. 1,

23–24, 1 A.3d 76 (2010) (trial court did not abuse its

discretion in excluding evidence when defendant’s

foundation for proffered evidence was ‘‘wholly speculative’’). Moreover, ‘‘[a] defendant . . . may introduce

only relevant evidence, and, if the proffered evidence is

not relevant, its exclusion is proper and the defendant’s

right [to confrontation] is not violated.’’ (Internal quotation marks omitted.) State v. Lee-Riveras, 130 Conn.

App. 607, 622, 23 A.3d 1269, cert. denied, 302 Conn. 937,

28 A.3d 992 (2011).

Finally, we note that the defendant undertook an

extensive and robust cross-examination of the victim.

As the defendant pointed out in his appellate brief, there

were many inconsistencies in the victim’s testimony
that he addressed on cross-examination, and the victim’s ‘‘testimony was so riddled with inconsistencies

that, on redirect examination, the prosecutor asked him

if he was working nights during the trial, and later

suggested to the jurors [that] he was sleep-deprived

. . . [as a] reason for the inconsistencies.’’ In fact, the

jury found the defendant not guilty of five of the six

charges against him, which was indicative that the jury

did not credit all of the victim’s testimony. The issues

related to the victim’s probationary status on which the

court excluded questioning were marginally related, at

best, to the issues in the case. ‘‘Every evidentiary ruling

which denies a defendant a line of inquiry to which he

thinks he is entitled is not constitutional error.’’ (Internal quotation marks omitted.) State v. Moye, 214 Conn.

89, 95, 570 A.2d 209 (1990). In the present case, the

defendant was afforded the opportunity on cross-examination ‘‘to expose to the jury the facts from which

jurors, as the sole triers of fact and credibility, could

appropriately draw inferences relating to the [victim’s]

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

Id.

We conclude that the court’s ruling limiting the defendant’s cross-examination of the victim did not impermissibly infringe on his constitutional right to confrontation.5 Having found no constitutional violation, we

also conclude that the court’s evidentiary ruling was

not a clear abuse of the court’s wide discretion. See

State v. Lopez, supra, 177 Conn. App. 662.

II

The defendant next claims that the trial court’s jury

instruction on burglary in the second degree misled the

jury because the court never instructed the jury on the

definitions of two terms, ‘‘physical threat’’ and ‘‘imminent,’’ set forth in the elements of threatening in the

second degree, which was one of the alleged underlying

crimes for the burglary charge. The state counters that

the defendant waived his claim of instructional error.

We agree with the state.

For this court to address the issue of waiver, it is

necessary to provide a detailed account of what transpired between the court and the parties, and, thus, we

set forth the following additional facts, as gleaned from

the record. Count six of the third substitute information

charged the defendant with burglary in the second

degree, alleging that, on January 29, 2018, between 1

and 2:50 a.m., he entered or remained unlawfully in a

dwelling, while the victim was present in such dwelling,

with the intent to commit a crime therein, namely, robbery in the first degree, robbery in the second degree,

threatening in the second degree, and/or larceny in the

sixth degree.

The defendant’s trial commenced on May 15, 2019.

After the jury was excused and before the court
adjourned for that day, the court stated: ‘‘Counsel,

before we adjourn for today, I had to—I should let you

know that I have a draft of the jury instructions ready.

It is a draft. It is a rough draft. We will have a conference

at the end of all the evidence, and I certainly will welcome any—any comments, suggestions, requests, or

otherwise. If you want to have a copy of the draft

instructions now, I’m happy to give it to you.’’ The next

day, May 16, 2019, the court stated: ‘‘[B]efore you get

started, I’d like to just put on the record that yesterday,

at the close of evidence, the court gave both parties a

draft of the jury instructions. It’s a draft. Obviously,

we’re going to have a charging conference at the end

of all the evidence. I just want everybody to have an

ample opportunity to review it, to make comments or

suggestions or additions or subtractions, and we’ll take

care of that at the right time. But I just want to put

on the record that everybody has a copy of the draft

instructions.’’ Evidence and testimony continued on

May 16 and Friday, May 17, 2019. At the close of the

day on May 17, the prosecutor stated that he had a

request to charge that he could file that day so that

defense counsel and the court could review it over the

weekend. In response, the court requested that both

the state and the defendant submit proposed charges

and stated that, if time allowed, they would have a

charging conference on Monday. When defense counsel

requested that the court permit her to submit a proposed charge on Monday, the court agreed to the

request.

On Monday, May 20, 2019, defense counsel explained

to the court that the one witness she had planned to

call that day would not be testifying and that she needed

time to discuss with the defendant whether he would

testify. She also asked for additional time to look over

the state’s supplemental request to charge, which she

had just received that morning, to which the court

replied: ‘‘Well, you’ve had the court’s version, right, for

some time, right?’’ Defense counsel stated, ‘‘yes,’’ in

response to the question, and the court granted her

request for additional time. At 11:30 a.m., when court

resumed, defense counsel informed the court that the

defendant would not be testifying. After the court canvassed the defendant, it addressed the issue of whether

it would charge the jury that afternoon or wait until

the next day. After a discussion with counsel, it was

decided that the jury would be instructed the following

day. Subsequently, the defense made an oral motion

for a judgment of acquittal, which the court denied.

Thereafter, the court stated: ‘‘So, now we have the

opportunity to have a jury charge conference. I’ve—

the court has provided copies of the court’s instruction

on Wednesday, May 15. It’s now Monday, May 20. The

court received on Friday the state’s request for charge.

The court also received this morning a supplemental

request to charge, and this morning the court received
the defendant’s request to charge.’’

The court then proceeded to address the state’s

request to charge, each time asking the defense for

comment with respect to each issue addressed. As to

each issue, after hearing comments from both sides,

the court stated whether it adopted the request and, if

so, the language of the instruction with the modification. The court followed the same procedure concerning the defendant’s request to charge. After the court

addressed all of the issues raised in the defendant’s

request to charge, it asked: ‘‘Anything else we should

address in the instructions?’’ Defense counsel replied:

‘‘Nothing further, Your Honor.’’ The court next

addressed the state’s supplemental request to charge,

after which it, again, asked if there was anything else

that needed to be addressed at that time. Defense counsel replied: ‘‘Nothing with regard to the jury charge,

Your Honor.’’ The written requests to charge filed by

the state6 and the defendant7 did not raise any issues

concerning either the court’s proposed charge on burglary in the second degree or its charge on threatening

in the second degree as a crime underlying the burglary

charge. Nor did either party or the court address any

issue relating to the court’s proposed charge on threatening in the second degree as alleged in count six during

the charging conference, despite the court’s repeated

requests of counsel as to whether anything further

needed to be addressed.

At the charging conference, the state did raise a claim

concerning the jury charge as to count six as it related

to the underlying offense of larceny in the sixth degree.

Specifically, the prosecutor asked whether the court

was ‘‘going to instruct the jury on the elements . . .

of larceny’’ in the sixth degree. The issue concerned

whether the court would charge the jury regarding the

element of the monetary amount needed for larceny in

the sixth degree. The court then stated: ‘‘Counsel, hold

on. The elements of count six are as follows. A person

is guilty of burglary in the second degree when such

person unlawfully enters and/or remains in a dwelling,

while a person other than a participant in the crime is

actually present in such dwelling, with intent to commit

a crime therein. . . .

‘‘For you to find the defendant guilty of this charge,

the state must prove the following elements beyond a

reasonable doubt. One, the first element is that the

defendant knowingly and unlawfully entered and/or

remained in a dwelling. A person acts knowingly with

respect to conduct or circumstances when he is aware

that his conduct is of such nature or that such circumstances exist. Dwelling means a building that is usually

occupied by a person lodging therein at night. Therefore, a structure that cannot possibly be occupied as a

lodging cannot be a dwelling.

‘‘You must also determine whether the defendant
unlawfully entered and/or remained in the dwelling. A

person unlawfully enters and/or remains in a dwelling

when he is not licensed or privileged to do so. To be

licensed or privileged, the defendant must either have

consent from the person in possession of the dwelling

or have some other right to be in the dwelling. To enter,

etcetera, etcetera.

‘‘Element two, to commit a crime therein. The second

element is that the defendant intended to commit a

crime in that dwelling. A person acts intentionally with

respect to a result when his conscious objective is to

cause such result.

‘‘Even if the defendant never actually committed a

crime in the dwelling, if the evidence establishes beyond

a reasonable doubt that [he] was [there] with such

[intent], that is sufficient to prove that the defendant

unlawfully entered and/or remained in the dwelling with

the intent to commit a crime therein. . . .

‘‘In this case, the state claims that the defendant

intended to commit the crimes of robbery in the first

degree and/or robbery in the second degree and/or

threatening in the second degree and/or a larceny in

the sixth degree. I have previously defined the crimes

of robbery in the first degree, robbery in the second

degree, and larceny. I refer you to those definitions

above.

‘‘Threatening in the second degree is defined as, etcetera, etcetera, etcetera.

‘‘If you unanimously find that the state has proved

beyond a reasonable doubt each of the elements of the

crime of burglary in the second degree, then you shall

find the defendant guilty.’’

At no point during the discussion at the charging

conference concerning count six and whether the

charge needed to include the monetary element to support an allegation of larceny as an underlying crime, or

when the court specifically referenced the threatening

charge, did the defendant raise any issue concerning

the failure of the court’s charge to address the elements

of the crime of threatening in the second degree. At

the end of the charging conference on May 20, 2019,

the court again asked if there was anything else that

needed to be addressed with respect to the jury instructions, to which defense counsel replied: ‘‘Nothing from

the defense.’’ Following a short break, the court provided counsel with a copy of the jury instructions, which

included any changes from the charging conference,

and stated that they could talk about anything further

regarding the proposed charge at 9:30 a.m. the next

morning.

After court convened on May 21, 2019, the court first

addressed some minor spelling, punctuation, and grammatical changes it had made to the charge, and then it

discussed another issue raised by the parties the previ-
ous day. When the court asked if there was anything

else that should be addressed, defense counsel stated

that she had one more concern regarding the jury

instructions, which related to the definition of serious

physical injury, and the court addressed the issue. When

the court charged the jury regarding burglary in the

second degree, it stated, in part: ‘‘[T]he state claims the

defendant intended to commit the crimes of robbery

in the first degree, and/or robbery in the second degree,

and/or threatening in the second degree, and/or a larceny in the sixth degree. I have previously defined the

crimes of robbery in the first degree, robbery in the

second degree, and larceny. I refer you to those definitions above.

‘‘Threatening in the second degree is defined in [§]

53a-62 (a) (1) of the Connecticut General Statutes as

follows. A person is guilty of threatening in the second

degree when that person, by physical threat, intentionally places or attempts to place another person in fear

of imminent serious physical injury.’’

After the court completed its charge to the jury and

the jury had exited the courtroom, the following colloquy occurred:

‘‘The Court: Before we take the luncheon recess, does

anybody have any comments on the instructions as read

to the jury?

‘‘[The Prosecutor]: None from the state, Your Honor.

‘‘[Defense Counsel]: None from the defense.’’

On appeal, the defendant claims that the court’s jury

instructions on burglary in the second degree were inadequate and constitutionally defective in that the court,

other than reading the statutory language for the crime

of threatening in the second degree, failed to instruct

the jury on the elements of threatening, as one of the

crimes underlying the burglary charge. The record, however, belies this claim. Pursuant to § 53a-62, the statute

governing threatening in the second degree, the state

had to prove beyond a reasonable doubt that the defendant made a physical threat to the victim and that he

specifically intended by his conduct to put the victim

in fear of imminent serious physical injury. See, e.g.,

State v. Ervin B., 202 Conn. App. 1, 7–8, 243 A.3d 799

(2020). In the present case, the court instructed the jury

that ‘‘[a] person is guilty of threatening in the second

degree when that person, by physical threat, intentionally places or attempts to place another person in fear

of imminent serious physical injury.’’ Just prior to that

instruction, the court also had instructed the jury that

‘‘[a] person acts intentionally with respect to a result

when his conscious objective is to cause such result.’’

The court, thus, informed the jury of the essential elements of threatening in the second degree. The defendant’s real claim, therefore, is that the court erred in

failing to define in greater detail the elements of the
crime of threatening in the second degree. Specifically,

he takes issue with the court’s failure to define the terms

‘‘physical threat’’ and ‘‘imminent,’’ as used in § 53a-62.

At no time during the proceedings relating to the jury

charge did the defendant raise this claim to the trial

court. The defendant concedes that he neither filed a

request to charge on burglary in the second degree nor

objected to the court’s instructions, and requests review

pursuant to State v. Golding, 213 Conn. 233, 239–40,

567 A.2d 823 (1989), as modified by In re Yasiel R., 317

Conn. 773, 781, 120 A.3d 1188 (2015).8 Alternatively, he

seeks review of this claim pursuant to the plain error

doctrine. See Practice Book § 60-5. The state, relying

on State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011),

counters that the defendant’s claim of instructional

error is not reviewable under Golding because the

defendant implicitly waived it. Moreover, with respect

to the defendant’s claim of plain error, the state argues

that the defendant failed to show that any error in

the court’s instructions as to threatening in the second

degree was so grievous that a failure to reverse the

judgment would result in manifest injustice. We agree

with the state.

A

We first address the issue of implied waiver under

Kitchens and set forth our standard of review and the

applicable law governing an implied waiver of a claim

of instructional error. ‘‘Whether a defendant has waived

the right to challenge the court’s jury instructions

involves a question of law, over which our review is

plenary.’’ State v. Ramon A. G., 190 Conn. App. 483,

500, 211 A.3d 82 (2019), aff’d, 336 Conn. 386, 246 A.3d

481 (2020); see also Lapointe v. Commissioner of Correction, 316 Conn. 225, 312–13, 112 A.3d 1 (2015) (even

though inquiry regarding implied waiver of jury instruction is fact intensive, appellate court’s determination

of whether to draw inference of waiver must be based

on close examination of record and particular facts

and circumstances of case, and that decision involves

question of law over which plenary review applies).

‘‘The doctrine of implied waiver is based on the idea

that counsel had sufficient notice of . . . the jury

instructions and was aware of their content . . . .’’

(Internal quotation marks omitted.) State v. Davis, 311

Conn. 468, 477–78, 88 A.3d 445 (2014).

In State v. Kitchens, supra, 299 Conn. 482–83, our

Supreme Court provided a framework for review of

whether a claim of instructional error has been waived,

and our analysis begins with that seminal decision. In

Kitchens, the defendant claimed that the trial court

improperly instructed the jury on the intent element

needed for a finding of guilty of charges of kidnapping

in the second degree and unlawful restraint in the first

degree. Id., 462. On appeal, the defendant conceded

that his claim was unpreserved and sought review pur-
suant to Golding. Id., 462–63. In addressing this claim,

our Supreme Court stated that ‘‘[i]t is well established

in Connecticut that unpreserved claims of improper

jury instructions are reviewable under Golding unless

they have been induced or implicitly waived.’’ Id., 468.

Specifically, the court explained: ‘‘[I]n the usual Golding

situation, the defendant raises a claim on appeal [that],

while not preserved at trial, at least was not waived at

trial. . . . [A] constitutional claim that has been waived

does not satisfy the third prong of the Golding test

because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party . . .

or that the alleged constitutional violation . . . exists

and . . . deprived the defendant of a fair trial . . . .’’

(Internal quotation marks omitted.) Id., 467.

In Kitchens, our Supreme Court reexamined and clarified the law in Connecticut concerning implied waiver;

id., 474; and concluded ‘‘that, when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review,

solicits comments from counsel regarding changes or

modifications and counsel affirmatively accepts the

instructions proposed or given, the defendant may be

deemed to have knowledge of any potential flaws

therein and to have waived implicitly the constitutional

right to challenge the instructions on direct appeal.

Such a determination by the reviewing court must be

based on a close examination of the record and the

particular facts and circumstances of each case.’’ Id.,

482–83. In Kitchens, the court had reminded defense

counsel two times of his right to file a request to charge,

and each time, defense counsel declined to file such a

request; two additional charge conferences were held

by the court to discuss the instructions, at which

defense counsel never raised an issue with the intent

instructions concerning kidnapping and unlawful

restraint, and stated that there was nothing further that

he wanted to discuss; and defense counsel did not take

an exception to the charge as given. Id., 498–99. Thus,

our Supreme Court concluded that, under those circumstances, ‘‘defense counsel’s repeated statements indicating his affirmative acceptance of the proposed jury

instructions after being given a meaningful opportunity

to review them constituted an implicit waiver of the

defendant’s claim of instructional error.’’ Id., 498.

In State v. Davis, supra, 311 Conn. 468, our Supreme

Court ‘‘noted that in every post-Kitchens case in which

defense counsel was given the opportunity to review the

proposed jury instructions overnight, [it has] concluded

that defense counsel had received a meaningful opportunity to review the proposed instructions under the

Kitchens test . . . .’’ (Citation omitted; internal quotation marks omitted.) Id., 480–81; see also State v. Webster, 308 Conn. 43, 63, 60 A.3d 259 (2013) (defense

counsel had meaningful opportunity to review proposed

instructions when counsel had opportunity to review
instructions overnight).

For example, in State v. Bellamy, 323 Conn. 400, 410,

147 A.3d 655 (2016), our Supreme Court concluded that

the defendant implicitly waived his claim of instructional error pursuant to Kitchens, stating: ‘‘In the present case, all of the [Kitchens] criteria were satisfied.

The trial court gave both defense counsel and the state

a copy of its proposed jury instructions four days before

the charging conference. Two of the four days fell on

a weekend, thus providing counsel with even more time

to review the instructions. The court also solicited comments from counsel regarding modifications to the

instructions during the in-chambers charging conference, during the proceedings in open court directly

after the charging conference and on the following day

immediately before instructing the jury. In addition,

when the court discussed portions of the identification

instruction on the record, defense counsel expressed

no dissatisfaction with the instruction, although he

commented on several other instructions. Counsel thus

indicated that he had read and understood the instructions in their entirety and took no issue with any part,

including the instruction on identification. Finally,

defense counsel explicitly conceded during the sentencing hearing that he had agreed with the substance of

the jury instructions before they were given and that

his only objection was to the speed with which they

had been delivered by the court.’’

The facts of the present case are squarely on point

with Bellamy and Kitchens. Here, the court provided

the state and defense counsel with a copy of its proposed jury instructions on the first day of trial, May 15,

2019, five days before the charging conference, two of

which were weekend days. The court stated on the

record that it wanted to give everyone ‘‘ample opportunity to review it, to make comments or suggestions or

additions or subtractions . . . .’’ The court held an onthe-record charging conference on May 20, 2019, during

which it addressed the instructions requested by the

state and the defendant in their written requests to

charge, giving each party the opportunity to address

each requested instruction and any proposed modifications. During that conference, the court asked defense

counsel multiple times if there were any other issues

that needed to be addressed, and each time defense

counsel replied in the negative. The defendant’s request

to charge did not raise any issue concerning either

the court’s proposed charge on burglary in the second

degree, as alleged in count six of the third substitute

information, or its charge on threatening in the second

degree as a crime underlying the burglary charge. Even

when the state raised an issue at the charging conference related to count six and the underlying larceny

charge, which was discussed at length by the parties

and the court, the defendant never alerted the court to

his claim that the jury instructions related to count six
and the underlying threatening charge improperly failed

to include the elements of threatening in the second

degree. The court again asked defense counsel at the

end of the charging conference whether anything else

needed to be addressed, to which defense counsel

replied, ‘‘[n]othing from the defense.’’ The parties were

then provided with copies of the proposed charge, with

any alterations included from the charging conference,

to review overnight. The next day, before the court

instructed the jury, defense counsel raised an issue

regarding the jury instruction on serious physical injury,

which the court addressed. Finally, after the court

instructed the jury, the court asked if counsel had any

comments on the instructions as read to the jury, to

which defense counsel replied, ‘‘[n]one from the

defense.’’

The record in the present case more than demonstrates that the Kitchens waiver criteria have been met.

On numerous occasions, the court solicited comments

from counsel regarding any issues with the proposed

instructions, and multiple times defense counsel explicitly stated that there was nothing from the defense. The

instructions were provided to counsel for review six

days prior to when the jury was charged, and, at a

minimum, counsel had the opportunity to review, overnight, the instructions as modified from the charging

conference. At no time before the final charge was given

to the jury, or after the charge, did defense counsel raise

any issue or objection concerning the jury instructions

relating to the underlying threatening charge in count

six, despite having had numerous opportunities and a

great amount of time to do so. Because it is clear from

the record that defense counsel had a meaningful opportunity to review the proposed instructions and to comment on them or suggest modifications, and counsel

affirmatively accepted the instructions as proposed and

given by repeatedly telling the court that the defense

did not have any other issues to raise concerning the

instructions, the defendant implicitly waived his right

to challenge those instructions on appeal. Accordingly,

he is not entitled to Golding review of his unpreserved

claim of instructional error.

B

One day prior to oral argument before this court,

defense counsel filed a notice with this court, pursuant

to Practice Book § 67-10, of two cases, not mentioned

in the one brief that was filed by the defendant, that

were asserted to be pertinent to the defendant’s claim of

instructional error. Specifically, defense counsel cited

State v. Brown, 299 Conn. 640, 659, 11 A.3d 663 (2011),

and State v. Ruocco, 151 Conn. App. 732, 742–43, 95

A.3d 573 (2014), aff’d, 322 Conn. 796, 144 A.3d 354

(2016), for the proposition that ‘‘the state bears the

burden of proving the defendant waived a claim of

instructional error.’’9 At oral argument before this court,
the defendant’s appellate counsel referenced the point

in the charging conference when the trial court, while

reciting the proposed charge on burglary in the second

degree as alleged in count six, stated: ‘‘Threatening in

the second degree is defined as, etcetera, etcetera,

etcetera.’’ She claimed, for the first time, that, because

there is no copy in the record of the trial court’s proposed charge, a draft of the proposed charge was never

made an exhibit, and there is not enough evidence to

determine what was in the draft of the court’s proposed

charge, the state has failed to meet its burden of providing an adequate record to show that there was Kitchens waiver.

Before we discuss the merits of this claim, a brief

discussion of the facts of Brown and Ruocco is necessary. In Brown, the defendant raised two unpreserved

claims of instructional error on appeal. State v. Brown,

supra, 299 Conn. 643. With respect to the first claim,

our Supreme Court concluded that, pursuant to Kitchens, the defendant implicitly had waived his right to

challenge the court’s instructions on intent and was not

entitled to Golding review of that unpreserved claim.

Id., 658–59. With respect to the second claim, which

related to the court’s instructions concerning liability

under the doctrine set forth in Pinkerton v. United

States, 328 U.S. 640, 647–48, 66 S. Ct. 1180, 90 L. Ed.

1489 (1946), the court found that the case was distinguishable from Kitchens. State v. Brown, supra, 659.

Specifically, the court stated: ‘‘Because we have no

record of the charging conference or copy of the court’s

intended charge, we do not know if the trial court

expressly rejected the state’s proper request to charge

[which included an instruction on Pinkerton liability],

or included the proper instruction in the copy of the

charge that it provided to counsel, but inadvertently

omitted it from the actual charge to the jury. The elements of Pinkerton liability are well established. . . .

It is reasonable to assume, therefore, that the omission

was inadvertent. Under these circumstances, we cannot

determine from the record whether the copy of the

final instructions given to defense counsel included the

correct charge or the charge as actually given. Thus,

unlike in Kitchens, we cannot infer that defense counsel

had knowledge of any potential flaws in the court’s

Pinkerton instruction. . . . Because we cannot reasonably conclude that counsel was aware in advance

of the instructional deficiency, we will not conclude

that the defendant has waived his right to challenge the

charge on direct appeal.’’ (Citations omitted.) Id.

In Ruocco, the defendant claimed on appeal that the

trial court erred in failing to instruct the jury that it

may draw no unfavorable inferences from the failure

of the defendant to testify, as mandated by General

Statutes § 54-84 (b). State v. Ruocco, supra, 151 Conn.

App. 734. Although the state and the defendant conceded that the mandatory instruction had not been
given to the jury; id., 738–39; the state claimed that the

record was inadequate for review of the defendant’s

claim because ‘‘it [was] ambiguous as to whether the

defendant waived the mandatory instruction . . . .’’

Id., 739. In Ruocco, ‘‘[a]fter the parties presented their

closing arguments, and before adjourning for its lunch

recess, the court stated: ‘Counsel, I’ve given you each

a copy of my proposed charge. . . . [I]f you have any

questions, or concerns, or comments, I’ll be available

at 1:30 in my chambers. If I don’t see you at 1:30, I’ll

just assume that you have no comments or questions.

But we will be starting a little before 2 because I’d like

to have as much time this afternoon for the jury and

its deliberations.’ After the recess, the jury entered the

courtroom and the court gave the jury charge. The court

did not put on the record whether any party had come

to its chambers to discuss the charge. Furthermore,

there is no reference to any charge conference and no

copy of the proposed charge in the record.’’ Id.

On appeal, the parties in Ruocco disagreed as to

whether the record was adequate for review of the

defendant’s instructional error claim. Id., 740. According

to the state, there was ‘‘a possibility that the defendant

could have waived [the mandatory instruction] in an

in-chambers conference during the lunch recess’’;

(internal quotation marks omitted) id.; and the defendant, as the appellant, had the burden of providing an

adequate record. Id., 741. This court rejected the state’s

claim and concluded ‘‘that the record . . . [was] clear,

unambiguous, and adequate for review with respect

to the defendant’s claim that the court improperly

refrained from giving the no unfavorable inference

instruction. Presuming that the trial court acted properly, as we must, the record leads to the conclusion

that no off-the-record charge conference occurred. Had

an in-chambers charge conference occurred, as the

state suggests, then a court acting properly would have

summarized it on the record . . . . There is no record

of either party taking exception to the charge and no

record of the defendant waiving the mandatory instruction . . . .’’ (Footnotes omitted.) Id. We explained further that, ‘‘[i]f the state intends to argue that the defendant waived a mandatory instruction, the burden is on

the state to secure an adequate record to support that

argument’’; id., 742; as it would have been ‘‘manifestly

unjust’’ to place the burden on the defendant to secure

an adequate record to review the state’s claim. Id., 743.

We conclude that the present case is distinguishable

from both Brown and Ruocco. First, unlike the situation

in Brown, in which there was no record of a charging

conference or a copy of the court’s intended charge,

the court in the present case held an on-the-record

charging conference, in which it addressed each

requested instruction from the state and the defendant,

and gave the parties multiple opportunities to comment

on those requests and the court’s proposed charge.
Although the record does not contain a copy of the

court’s proposed charge, our Supreme Court observed

in Bellamy that ‘‘the waiver rule in Kitchens does not

require that a copy of the proposed jury instructions

be marked as an exhibit. It only requires evidence that

the trial court gave the parties a ‘copy of the proposed

jury instructions’ and that the reviewing court’s determination of implied waiver ‘be based on a close examination of the record and the particular facts and circumstances of each case.’ ’’ State v. Bellamy, supra, 323

Conn. 411.

It is also clear from the record in the present case

that, when the court was reciting the language of the

proposed instruction concerning the second degree burglary charge in count six, which was in response to an

issue raised concerning a different underlying offense,

larceny, the court used the words ‘‘etcetera, etcetera,

etcetera,’’ to skip over language in the proposed charge

that was not relevant to the issue that had been raised.

Neither party made a request to charge related to the

instruction on threatening in count six, and no claim

has been made that the court’s final instruction to the

jury regarding that offense differed in any way from

the proposed charge that had been given to the parties

on the first day of trial, except with respect to the

few grammatical and spelling corrections the court had

made on the morning of May 21, 2019. This is not a

situation, as in Brown, involving on appeal an issue of

whether the final charge to the jury differed from the

proposed instructions the parties had been given for

review, which required a review of the proposed

instructions.

Likewise, we conclude that the defendant’s reliance

on Ruocco is misplaced. In that case, in which the state

claimed that a mandatory jury instruction may have

been waived by the defendant during an off-the-record

charging conference that may have occurred, we concluded that it would have been unfair to place the burden on the defendant to provide an adequate record to

review the state’s claim. Thus, we concluded that the

state had the burden of providing an adequate record

for its claim of waiver, which was not made on the

basis of Kitchens. The record in the present case is

adequate for this court to closely examine the particular

facts and circumstances and to make a determination

of whether an implicit waiver has occurred. See State

v. Bellamy, supra, 323 Conn. 411.

C

Having determined that the defendant is not entitled

to Golding review of his unpreserved claim of instructional error, we next address his alternative claim that

the court’s instruction amounted to plain error. See

Practice Book § 60-5. Our Supreme Court determined

in State v. McClain, 324 Conn. 802, 815, 155 A.3d 209

(2017), that a Kitchens waiver does not preclude plain
error review, and, thus, we address this claim. Although

the defendant attempts to couch his claim in constitutional terms by arguing that the court failed to instruct

the jury on the essential elements of the underlying

crime of threatening in the second degree; see State v.

Gooden, 89 Conn. App. 307, 315, 873 A.2d 243 (‘‘[t]he

trial court is constitutionally required to instruct the

jury properly on every essential element of the crime

charged’’ (internal quotation marks omitted)), cert.

denied, 275 Conn. 919, 883 A.2d 1249 (2005), and cert.

denied, 275 Conn. 918, 883 A.2d 1249 (2005); as stated

previously in this opinion, the court’s charge to the jury

did set forth the essential elements of threatening in

the second degree under § 53a-62, and the defendant’s

claim essentially challenges the court’s failure to define

the terms ‘‘physical threat’’ and ‘‘imminent’’ as set forth

in § 53a-62.

‘‘It is well established that the plain error doctrine

. . . is an extraordinary remedy used by appellate

courts to rectify errors committed at trial that, although

unpreserved [and nonconstitutional in nature], are of

such monumental proportion that they threaten to

erode our system of justice and work a serious and

manifest injustice of the aggrieved party. . . . That is,

it is a doctrine that this court invokes in order to rectify

a trial court ruling that, although either not properly

preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment

. . . for reasons of policy. . . . In addition, the plain

error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious

that it affects the fairness and integrity of and public

confidence in the judicial proceedings. . . . Plain error

is a doctrine that should be invoked sparingly. . . .

‘‘An appellate court addressing a claim of plain error

first must determine if the error is indeed plain in the

sense that it is patent [or] readily [discernable] on the

face of a factually adequate record, [and] also . . .

obvious in the sense of not debatable. . . . [A] complete record and an obvious error are prerequisites for

plain error review . . . . [An appellant] cannot prevail

under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so

harmful that a failure to reverse the judgment would

result in manifest injustice.’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v.

Moon, 192 Conn. App. 68, 97–99, 217 A.3d 668 (2019),

cert. denied, 334 Conn. 918, 222 A.3d 513 (2020).

In the present case, we must determine whether the

court’s failure to define the elements of ‘‘physical

threat’’ and ‘‘imminent’’ in its jury instructions relating

to count six and the underlying charge of threatening

in the second degree constituted plain error. First, the

defendant has not demonstrated that the word ‘‘imminent’’ as used in the statute has ‘‘ ‘anything other than
its ordinary meaning.’ ’’ State v. Walker, 9 Conn. App.

373, 378, 519 A.2d 83 (1986), cert. denied, 202 Conn.

805, 520 A.2d 1286 (1987); see also State v. March, 39

Conn. App. 267, 273, 664 A.2d 1157 (1995) (‘‘ ‘[w]hen

a word contained in an essential element carries its

ordinary meaning, failure to give the statutory definition will not constitute error’ ’’), cert. denied, 235 Conn.

930, 667 A.2d 801 (1995). Second, this court recently

addressed a sufficiency of the evidence challenge to

the ‘‘physical threat’’ requirement of threatening in the

second degree and stated ‘‘that a threat, by definition,

is an expression of an intent to cause some future

harm,’’ and that that definition was ‘‘consistent with

the dictionary definition of a threat as [a] communicated

intent to inflict harm or loss on another . . . . Black’s

Law Dictionary (11th Ed. 2019) p. 1783; see also Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003) p.

1302 (defining threat as expression of intention to inflict

evil, injury, or damage . . .).’’ (Citation omitted;

emphasis omitted; internal quotation marks omitted.)

State v. Ervin B., supra, 202 Conn. App. 8. The defendant, therefore, has not shown that the trial court’s

failure to include the definitions of ‘‘imminent’’ and

‘‘physical threat’’ in its jury charge constituted plain

error. See State v. Coltherst, 87 Conn. App. 93, 109

n.11, 110, 864 A.2d 869 (concluding that any error was

harmless when court’s jury charge included essential

elements of larceny but failed to define one of those

elements), cert. denied, 273 Conn. 919, 871 A.2d 371

(2005).

We also note that count six of the third substitute

information alleges that the defendant committed burglary in the second degree on the basis of his having

entered or having remained unlawfully in the victim’s

apartment, while the victim was present, with the intent

to commit any, some or all of the four different underlying crimes therein, namely, robbery in the first degree,

robbery in the second degree, threatening in the second

degree and larceny in the sixth degree. Because the

defendant also had been charged in counts three and

four with robbery in the first degree and robbery in

the second degree, and was found not guilty of those

charges, the guilty verdict of burglary in the second

degree in count six could have been based on a finding

either that the defendant intended to commit the crime

of threatening in the second degree or that he intended

to commit the crime of larceny in the sixth degree while

in the dwelling. Because the jury returned a general

verdict as to count six, we do not know on which underlying crime the jury based its verdict—threatening in

the second degree or larceny in the sixth degree. Moreover, the defendant has not raised on appeal any challenge to the jury instructions or the sufficiency of the

evidence relating to the underlying crime of larceny in

the sixth degree as alleged in count six.

In charging the jury as to larceny, the court explained
that ‘‘[a] person commits larceny when, with intent to

deprive another of property or to appropriate the same

to himself, he wrongfully takes, obtains, or withholds

such property from an owner.’’ The court further

explained that ‘‘[l]arceny in the sixth degree is a larceny

where the value of the property is less than $500.’’

The evidence in the record was sufficient for the jury

to have found that the defendant committed burglary

in the second degree by entering or remaining unlawfully in the victim’s apartment, while the victim was

present, with the intent to commit larceny in the sixth

degree while therein. The victim testified that the defendant and Moniz forced the victim into his apartment,

and that, once inside, the defendant took his money.

Although there was a discrepancy as to how much

money was stolen from the victim, either $300 or $400,

either value was less than $500. There also was evidence

in the record, including testimony, demonstrating that

the defendant and Moniz matched the descriptions of

the perpetrators given by the victim and had been apprehended a short distance from the victim’s apartment

within minutes of the larceny, that the defendant initially did not comply with requests of police officers to

stop but eventually walked back toward the officers,

that two 100 dollar bills were found on the sidewalk in

the area where the defendant had attempted to walk

away, and that two $50 bills were taken from Moniz

and tagged as evidence.

The jury returned a general verdict finding the defendant guilty as to count six of the third substitute information, and the evidence supports the defendant’s conviction of the burglary charge on the basis of larceny in

the sixth degree as the underlying crime. The defendant

conceded this in his brief when he stated: ‘‘In addition,

the [instructional] error was not harmless, even though

there was enough evidence (by [the victim’s] account)

that [the] defendant intended to commit a larceny.’’

We find the decision of the United States Supreme

Court in Griffin v. United States, 502 U.S. 46, 47, 112

S. Ct. 466, 116 L. Ed. 2d 371 (1991), instructive on this

issue. In that case, the United States Supreme Court

addressed the issue of ‘‘whether, in a federal prosecution, a general guilty verdict on a multiple-object conspiracy charge must be set aside if the evidence is

inadequate to support conviction as to one of the

objects.’’ The petitioner had been charged with conspiring to defraud the federal government, and the unlawful

conspiracy was alleged to have had two objects. Id. The

evidence introduced at trial implicated the petitioner

in the first object but did not connect her to the second

one. Id., 47–48. Nevertheless, the jury was instructed

in a manner that permitted it to return a guilty verdict

against the petitioner if it found that she had participated in either one of the two objects of the conspiracy.

Id., 48. The United States Court of Appeals for the Sev-
enth Circuit rejected the argument ‘‘that the general

verdict could not stand because it left in doubt whether

the jury had convicted her’’ as to the first or second

object of the conspiracy. Id.

In affirming the judgment, the United States Supreme

Court in Griffin explained: ‘‘It was settled law in

England before the Declaration of Independence, and

in this country long afterwards, that a general jury verdict was valid so long as it was legally supportable on

one of the submitted grounds—even though that gave

no assurance that a valid ground, rather than an invalid

one, was actually the basis for the jury’s action. . . .

[I]n the United States, with but few exceptions, the

courts have united in sustaining general judgments on

an indictment in which there are several counts stating

cognate offences, irrespective of the question whether

one of these counts is bad. . . . In criminal cases, the

general rule . . . is that if there is any one count to

support the verdict, it shall stand good, notwithstanding

all the rest are bad. And it is settled law in this court,

and in this country generally, that in any criminal case

a general verdict and judgment on an indictment or

information containing several counts cannot be

reversed on error, if any one of the counts is good

and warrants the judgment, because, in the absence

of anything in the record to show the contrary, the

presumption of law is that the court awarded sentence

on the good count only.’’ (Citation omitted; internal

quotation marks omitted.) Id., 49–50. That common-law

rule has been applied in a number of contexts, including

within the context of ‘‘a general jury verdict under a

single count charging the commission of an offense by

two or more means.’’ (Emphasis in original.) Id., 50.

The rule set forth in Griffin was first cited with

approval by our Supreme Court in State v. Chapman,

229 Conn. 529, 540–41, 643 A.2d 1213 (1994). In Chapman, our Supreme Court held that, when ‘‘the state

charges that a defendant has committed a crime in

more than one way, and those ways are charged in

the conjunctive, as they must be, and the trial court

instructs, as it must, that the state need only prove one

of its allegations, and not all, the verdict must be upheld

so long as there is sufficient evidence under any of the

allegations.’’ Id., 543. The court further explained that,

‘‘[i]n effect, we assume that the jury found the defendant

guilty under the supported allegation, rather than the

unsupported allegation.’’ Id., 543–44. Since Chapman

was decided, our appellate courts have adhered to this

general rule. See, e.g., State v. Gaines, 257 Conn. 695,

718 n.16, 778 A.2d 919 (2001); State v. Dyson, 238 Conn.

784, 795, 680 A.2d 1306 (1996); State v. Wright, 111

Conn. App. 389, 396, 958 A.2d 1249 (2008), cert. denied,

290 Conn. 907, 962 A.2d 795 (2009); State v. Torres, 82

Conn. App. 823, 833–34, 847 A.2d 1022, cert. denied,

270 Conn. 909, 853 A.2d 525 (2004); State v. Tinsley,

47 Conn. App. 716, 718–20, 706 A.2d 1008, cert. denied,
244 Conn. 915, 713 A.2d 833 (1998).

In the present case, the state cites to Griffin in its

brief and argues: ‘‘Where, as here, the state alleges in

one count several alternative ways of committing a

crime, and the ‘trial court instructs, as it must, that the

state need only prove one of its allegations, and not all,

the verdict must be upheld so long as there is sufficient

evidence under any of the allegations.’ State v. Wohler,

231 Conn. 411, 415 [650 A.2d 168] (1994); see Griffin

v. United States, [supra, 502 U.S. 56–57] (when jury

returns guilty verdict on indictment charging several

acts in the conjunctive, verdict must stand if evidence

is sufficient with respect to any one of the acts).

Because the evidence here was sufficient to support a

finding by the jury that the defendant intended to commit, for example, the crime of sixth degree larceny . . .

and because the trial court correctly instructed the jury

on that crime . . . any error in its instructions on

threatening was harmless beyond a reasonable doubt.’’

(Citation omitted.) The defendant never responded to

these arguments by filing a reply brief addressing the

state’s discussion of the relevance of Wohler and Griffin.

We also note that our Supreme Court and the United

States Supreme Court have discussed and distinguished

the situation involved in Griffin, in which one of the

possible grounds for conviction was not supported by

sufficient evidence, from those in which the basis for

the conviction is legally insufficient or invalid, to which

the rule in Griffin does not apply.10 See Griffin v.

United States, supra, 502 U.S. 54–60; State v. Chapman,

supra, 229 Conn. 540–41. We do not glean from the

record that the defendant has made any such claim of

legal invalidity here. Although the defendant cites to

Chapman in his brief for the proposition that a reversal

of the judgment is required ‘‘if one theory charged is

legally inadequate and cannot determine [the] basis for

conviction,’’ his brief is devoid of any analysis or argument asserting that the jury’s verdict of guilty of burglary in the second degree was based on a legally inadequate theory of recovery. On the contrary, the defendant

states in his brief that, ‘‘[w]hile there was evidence of

threats made at Moniz’ apartment, [the victim] did not

testify about any threats, physical or otherwise, at the

time [the] defendant entered or remained in his apartment before obtaining the money. Although he claimed

that, as they were leaving, [the] defendant threatened

to shoot him if he told anybody, those were mere words

and did not amount to a physical threat. Even if it

somehow did, it was not a threat of imminent physical

injury.’’ Those assertions sound more in the nature of

a sufficiency of the evidence claim, rather than one of

legal insufficiency.

Moreover, to the extent that the defendant’s claim of

instructional error can be construed as a claim that his
conviction of burglary in the second degree was based

on a legally insufficient ground, we rely on Chapman

and its progeny, and the rule of law set forth therein,

simply to demonstrate why this case does not present

the type of extraordinary situation in which plain error

can be found. If a factually supported verdict stands,

even when there is no assurance that a valid ground,

rather than an invalid one, was the basis for the jury’s

verdict, we are hard-pressed to find plain error under

the circumstances here when (1) the defendant was

charged in count six with having committed burglary

in the second degree on the basis of more than one

underlying crime, (2) one of those underlying crimes

alleged—larceny in the sixth degree—was supported

by sufficient evidence in the record, (3) the defendant’s

challenge to the jury charge on another underlying

crime—threatening in the second degree—does not

allege that the theory of conviction was contrary to the

law in that it was time barred or that the defendant’s

actions at issue were protected by the constitution, and

(4) the defendant’s claim of instructional impropriety

concerns the court’s failure to define the terms ‘‘imminent’’ and ‘‘physical threat,’’ as they relate to the underlying threatening charge, and does not allege any misstatement of law by the court, the defendant has not

cited any authority that required the court specifically

to charge the jury on those definitions other than the

model criminal jury instructions on the Judicial Branch

website; see Connecticut Criminal Jury Instructions,

available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited June 23, 2021); which are meant as

a guide for judges and attorneys and are discretionary;

State v. Reyes, 325 Conn. 815, 822 n.3, 160 A.3d 323

(2017); and the defendant failed to show that those

terms do not carry their ordinary meaning, which

weighs against finding any constitutional error in the

court’s failure to define the terms.

The defendant, therefore, has not shown that a failure

to reverse the judgment would result in manifest injustice; see State v. Moon, supra, 192 Conn. App. 99; and,

thus, his claim of plain error fails.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also raised a claim on appeal concerning his conviction,

after a trial to the court, of being a persistent felony offender in violation

of General Statutes § 53a-40 (g) and the court’s denial of his motion to

dismiss the part B information, which charged him as such on the basis of

his two prior convictions in 2000 and 2006 of possession of narcotics in

violation of General Statutes § 21a-279 (a). His motion to dismiss the part

B information was based on the fact that, pursuant to Public Acts, Spec.

Sess., June, 2015, No. 15-2 (P.A. 15-2), which became effective October

1, 2015, a conviction of possession of narcotics under § 21a-279 (a) is a

misdemeanor and no longer is a felony. Therefore, according to the defendant, his prior convictions under that statute could not be the basis for a

finding that he is a persistent felony offender. In denying the defendant’s

motion to dismiss, the trial court relied on this court’s decision in State v.

Moore, 180 Conn. App. 116, 124, 182 A.3d 696, cert. denied, 329 Conn.

905, 185 A.3d 595 (2018), in which we held that P.A. 15-2 does not apply
retroactively and which this court followed in State v. Bischoff, 189 Conn.

App. 119, 122–23, 206 A.3d 253 (2019), aff’d, Conn. , A.3d

(2021). During the pendency of the appeal in the present case, our Supreme

Court issued its decision in State v. Bischoff, Conn. , A.3d

(2021), affirming this court’s judgment that P.A. 15-2 does not apply

retroactively. At oral argument before this court, the defendant’s appellate

counsel acknowledged that we are bound by our Supreme Court’s decision

in Bischoff and that the defendant’s claim concerning his conviction as a

persistent felony offender no longer is viable. Therefore, counsel withdrew

the issue from consideration on appeal. Accordingly, we do not address

this claim.

2 The victim testified that, on the previous day, Saturday, January 27, 2018,

he withdrew $800 from the bank to pay his rent. He explained that he

withdrew the money in 100 and 50 dollar bills, so that he would not waste it.

3 Regarding the watch, the victim testified on direct examination that he

‘‘had no idea what [the defendant and Moniz] were talking about . . . .’’

Moniz testified regarding this issue, stating that, about two weeks prior to

the incident at issue here, he had the victim over to his apartment, where

they had been drinking. A watch and chain belonging to Moniz were on a

living room table, and, according to Moniz, the victim was the only one at

his house at the time. When Moniz had his back turned to the victim, the

victim said he was leaving. After the victim left, Moniz noticed that the

watch was not there anymore. At the defendant’s apartment on January 29,

2018, Moniz confronted the victim about the watch, asking him where it

was and if he took it. Moniz testified that the victim denied stealing the

watch but, nevertheless, offered to give him money for it. Moniz testified

further that the victim told him he would give him $300 for the watch, that

the money was at the victim’s apartment, and that they finished another

drink before heading to the victim’s apartment to get the money.

4 The record shows that the victim was found to be in violation of his

probation on October 20, 2017, and that he admitted the violation and was

resentenced on January 8, 2018, which was approximately three weeks prior

to the incident at issue in this case. Defense counsel also sought to inquire

about the fact that the victim had been arrested, twice, while on probation.

The court declined the request, stating that ‘‘an arrest is not a conviction.

Anybody can be arrested.’’ The defendant does not challenge in this appeal

the court’s ruling prohibiting questions about the two arrests.

5

In his appellate brief, the defendant also claims that the court’s exclusion

of the proffered line of questioning violated his constitutional right to present

a defense. For the same reason we have rejected the defendant’s claimed

violation of his constitutional right to confrontation, we reject this claim

as well. See State v. Saucier, 90 Conn. App. 132, 142–43, 876 A.2d 572

(2005) (‘‘The defendant’s constitutional claim that he was prohibited from

presenting a defense by the court’s exclusion of the proffered evidence first

required him to show that the exclusion was improper. . . . Because we

conclude that the court did not abuse its discretion in excluding the proffered

evidence [as speculative and irrelevant], it follows that the defendant’s

constitutional right to present a defense was not violated.’’ (Citation omitted.)), aff’d, 283 Conn. 207, 926 A.2d 633 (2007).

6 The state’s written request to charge included jury instructions regarding

the police investigation, assault in the second degree as it relates to the

element of serious physical injury, consciousness of guilt and exhibits that

contained partial redactions. The state’s supplemental written request to

charge included a charge on accessory liability.

7 The defendant’s written request to charge included jury instructions

concerning reasonable doubt, the credibility of witnesses, impeachment

evidence, the prior inconsistent statements of the victim and Moniz, and a

specific unanimity charge. In his request to charge, the defendant also

objected to the state’s request to charge on assault in the second degree as

it relates to the element of serious physical injury, as well as the state’s

requests to charge as to the police investigation and consciousness of guilt.

8 Pursuant to Golding, as modified by In re Yasiel R., ‘‘a defendant can

prevail on a claim of constitutional error not preserved at trial only if all

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

the alleged claim of error; (2) the claim is of constitutional magnitude

alleging the violation of a fundamental right; (3) the alleged constitutional

violation . . . exists and . . . deprived the defendant of a fair trial; and

(4) if subject to harmless error analysis, the state has failed to demonstrate

harmlessness of the alleged constitutional violation beyond a reasonable

doubt. In the absence of any one of these conditions, the defendant’s claim
will fail. . . . State v. Golding, supra, 213 Conn. 239–40.’’ (Emphasis in

original; internal quotation marks omitted.) State v. Coleman, 199 Conn.

App. 172, 186 n.8, 235 A.3d 655, cert. denied, 335 Conn. 966, 240 A.3d

281 (2020).

9 We note that the state raised and briefed its Kitchens claim in its appellate

brief. Although the defendant filed a motion for an extension of time to file

a reply brief, which was granted, no reply brief was filed, nor did the

defendant’s principal brief address the Kitchens waiver issue. The defendant’s appellate counsel, nevertheless, filed the letter of supplemental

authority pursuant to Practice Book § 67-10 related to this issue, and the

state never objected. At oral argument before this court, the defendant’s

appellate counsel and the state addressed the supplemental authority and

the state’s assertion that the defendant’s claim of instructional error was

waived. Accordingly, although claims must be adequately briefed and, normally, we do not address claims raised for the first time at oral argument;

Bridgeport v. Grace Building, LLC, 181 Conn. App. 280, 294, 186 A.3d 754

(2018); given the defendant’s letter pursuant to § 67-10 and the absence of

an objection by the state, under the circumstances here, we will consider

the defendant’s claim concerning Brown and Ruocco.

10 In Griffin, for example, the United States Supreme Court explained:

‘‘[T]he term ‘legal error’ means a mistake about the law, as opposed to a

mistake concerning the weight or the factual import of the evidence. . . .

Jurors are not generally equipped to determine whether a particular theory

of conviction submitted to them is contrary to law—whether, for example,

the action in question is protected by the [c]onstitution, is time barred, or

fails to come within the statutory definition of the crime. When, therefore,

jurors have been left the option of relying upon a legally inadequate theory,

there is no reason to think that their own intelligence and expertise will

save them from that error. Quite the opposite is true, however, when they

have been left the option of relying upon a factually inadequate theory,

since jurors are well equipped to analyze the evidence . . . . ‘It is one thing

to negate a verdict that, while supported by evidence, may have been based

on an erroneous view of the law; it is another to do so merely on the

chance—remote, it seems to us—that the jury convicted on a ground that

was not supported by adequate evidence when there existed alternative

grounds for which the evidence was sufficient.’ ’’ (Citation omitted; emphasis

in original.) Griffin v. United States, supra, 502 U.S. 59–60.