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*********************************************** 
STATE OF CONNECTICUT v. JAMES JARMON

(AC 42357)

Alvord, Prescott and Flynn, Js.

Syllabus

Convicted, after a jury trial, of the crimes of home invasion, burglary in the

first degree, robbery in the first degree and stealing a firearm in connection with the theft of certain firearms from N’s house, the defendant

appealed to this court. Held:

1. The defendant could not prevail on his claim that the state presented

insufficient evidence to prove beyond a reasonable doubt the operability

of each of the stolen firearms, as the cumulative effect of the evidence,

when construed in a light most favorable to sustaining the jury’s verdict,

supported the jury’s ultimate conclusion that the state demonstrated

operability beyond a reasonable doubt: the evidence presented supported an inference of operability because, from that evidence, the jury

reasonably could have concluded that the guns were operable, as they

were stored in N’s bedroom in cases or bags with safety locks on and

access was restricted to the bedroom, which evinced an awareness that

the firearms were dangerous, and it was reasonable to infer that operable

firearms would trigger such concern, and the fact that N’s mother would

not permit the firearms to be stored anywhere other than securely in

the bedroom and that that ultimatum was assiduously followed by N

further supported an inference that the firearms were operable; moreover, the jury reasonably could have inferred that N’s storing of his

handgun in a nightstand beside his bed where, while asleep, he might

be most vulnerable permitted an inference that he possessed the handgun for security purposes, and the jury then could have inferred that

such a handgun was operable; furthermore, given that, at the time the

firearms were stolen, they had been in N’s possession for no longer

than one year and sixteen days from N’s earliest purchase and that the

only time the firearms left N’s bedroom was to go to the training grounds,

which the jury reasonably could have inferred was a place to fire the

guns, the guns were fired at least once during the time N possessed

them, and the jury reasonably could have inferred that the firearms were

operable upon purchase and remained operable when they were stolen.

(One judge dissenting)

2. The defendant could not prevail on his claim that the trial court erroneously admitted into evidence a letter that he had written to his mother

while incarcerated, which was intercepted by a correction officer and

forwarded to law enforcement: the defendant’s claim that the trial court

erred in determining that the correction officer followed a certain regulation when he turned over the correspondence to law enforcement was

never distinctly raised at trial and, therefore, was unpreserved and not

reviewable on appeal; moreover, the defendant did not prove that he

had an objectively reasonable expectation of privacy such that his fourth

amendment rights were violated, and, thus, there was no constitutional

violation under the third prong of State v. Golding (213 Conn. 233);

furthermore, the department regulation at issue was not void for

vagueness as applied to the defendant, as the language of the regulation

gave notice to the defendant that he could have his mail reviewed if

doing so was deemed in the interest of security, order or rehabilitation

by prison officials, and a prison official reasonably could have determined that the letter contained plans for criminal activity, such as witness tampering.

3. The defendant’s claim that his conviction of home invasion and burglary

violated his constitutional protection against double jeopardy was

unavailing; the defendant failed to show that the two charges arose out

of the same act or transaction, as the evidence allowed the defendant’s

crimes to be separated into parts, each of which constituted a completed offense.

Argued September 16, 2019—officially released January 14, 2020

Procedural History
Substitute information charging the defendant with

crimes of home invasion, burglary in the first degree

and robbery in the first degree, and with three counts of

the crime of stealing a firearm, brought to the Superior

Court in the judicial district of Waterbury and tried to

jury before Cremins, J.; verdict and judgment of guilty,

from which the defendant appealed to this court.

Affirmed.

Alice Osedach, assistant public defender, for the

appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Don E. Therkildsen, Jr., senior assistant state’s

attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, James Jarmon, appeals

from the judgment of conviction of home invasion in

violation of General Statutes § 53a-100aa (a) (1), burglary in the first degree in violation of General Statutes

§ 53a-101 (a) (3), robbery in the first degree in violation

of General Statutes § 53a-134 (a) (4), and three counts

of stealing a firearm in violation of General Statutes

§ 53a-212 (a). On appeal, the defendant claims that

(1) the state presented insufficient evidence to prove

beyond a reasonable doubt the operability of each firearm the defendant stole, (2) the trial court erroneously

admitted into evidence a letter written by the then incarcerated defendant that was intercepted by a correction

officer, and (3) the defendant’s conviction of home invasion and burglary in the first degree violated his constitutional protection against double jeopardy. We affirm

the judgment of the trial court.

The jury reasonably could have found the following

facts. On April 12, 2015, Nathaniel Garris attended a

birthday party for his nephew. At the party, Garris spoke

on the phone with the defendant, whom Garris knew all

his life and whom, though they were unrelated, Garris

referred to as his ‘‘cousin.’’ It had been about four or

five months since Garris and the defendant had seen

each other last, and the defendant wanted to ‘‘chill’’

with Garris to ‘‘catch up.’’ The two met up that same

day and went to Niko Infanti’s house.1

At Niko’s home, the defendant and Garris began playing video games in Niko’s bedroom. At one point, the

defendant observed a case in Niko’s bedroom and asked

if it contained a guitar, to which Garris responded ‘‘no,

that’s a gun.’’2 At another point, Garris retrieved a knife

out of Niko’s bedside nightstand, which also contained

Niko’s handgun. Thereafter, the defendant participated

in a few phone calls; the defendant left Niko’s bedroom

to pick up each phone call.

While the defendant and Garris were in Niko’s bedroom, Kade was in the kitchen using her laptop. An

individual unknown to Kade, later identified by the

police as Brett Vaughn, ‘‘peeked his head in the back

door’’ and asked for the defendant. Kade went to Niko’s

bedroom, told the defendant that there was someone

waiting for him at the back door and returned to the

kitchen. Once Kade arrived back in the kitchen, Vaughn,

who had entered the house, grabbed her and put a gun

to the back of her head. Meanwhile, back in Niko’s

bedroom, Garris became upset with the defendant after

hearing Kade’s message because he perceived that the

defendant had invited someone over without asking

him. Garris walked out to the kitchen to see who was

there waiting for the defendant and found Vaughn standing behind a seated Kade with a gun pressed to her

head. Garris, who only knew Vaughn ‘‘from passing,’’
pleaded with him to point the gun at him rather than

Kade, to which Vaughn responded ‘‘[you’re] beat, don’t

die over something stupid.’’ Vaughn then yelled ‘‘hurry

up.’’ Christina heard the disturbance from her own

bedroom, came out to see its cause and, after observing

the scene, repeatedly told Vaughn to leave. The defendant had remained in Niko’s bedroom after Garris

walked to the kitchen and while this tumultuous scene

unfolded. He then emerged from Niko’s bedroom with

all four of Niko’s firearms in bags. The defendant and

Vaughn proceeded to leave out the back door, with

Vaughn being the first one out. As the defendant was

exiting the back door, Garris jumped on his back and

was able to retrieve one of the bags, which contained

Niko’s shotgun.

The defendant was arrested on May 20, 2015, and

charged in a substitute information on September 29,

2016. On September 30, 2016, a jury returned guilty

verdicts against the defendant for home invasion, burglary in the first degree, robbery in the first degree, and

three counts of stealing a firearm. On March 2, 2017,

the court imposed on the defendant a total effective

sentence of ten years of incarceration, followed by six

years of special parole.3 This appeal followed.

I

The defendant first claims there was insufficient evidence to support his conviction of the three counts of

stealing a firearm because no evidence was admitted

that demonstrated the operability of the stolen firearms. The defendant argues that ‘‘[o]perability, especially when the guns were never recovered and there

is no evidence the gun was fired during the incident,

has never been proven with such scant evidence.’’ The

state responds that ‘‘it was reasonable to infer that

[the guns] were operable at the time that they were

purchased’’ and that ‘‘[t]he jury could reasonably have

inferred that the firearms remained operable approximately one year later when they were stolen by the

defendant.’’ We agree with the state.

We first set forth our standard of review. ‘‘In reviewing a jury verdict that is challenged on the ground of

insufficient evidence, we employ a two part analysis. We

first review the evidence presented at trial, construing

it in the light most favorable to sustaining the facts

expressly found by the trial court or impliedly found

by the jury. We then decide whether, upon the facts

thus established and the inferences reasonably drawn

therefrom, the trial court or the jury could reasonably

have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . The evidence must be construed

in a light most favorable to sustaining the jury’s verdict.

. . . In reaching its verdict, the jury can draw reasonable and logical inferences from the facts proven and

from other inferences drawn from the evidence pre-
sented. Our review is a fact based inquiry limited to a

determination of whether the jury’s inferences drawn

were so unreasonable as to be unjustifiable.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Bradley, 39 Conn. App. 82, 90–91, 663 A.2d 1100 (1995),

cert. denied, 236 Conn. 901, 670 A.2d 322 (1996).

Section 53a-212 (a) states that ‘‘[a] person is guilty of

stealing a firearm when, with intent to deprive another

person of such other person’s firearm or to appropriate

the firearm to such person or a third party, such person

wrongfully takes, obtains or withholds a firearm, as

defined in subdivision (19) of section 53a-3.’’ A ‘‘[f]irearm’’ is defined as ‘‘any sawed-off shotgun, machine

gun, rifle, shotgun, pistol, revolver or other weapon,

whether loaded or unloaded from which a shot may

be discharged . . . .’’ (Emphasis added.) General Statutes § 53a-3 (19). ‘‘Operability of the [firearm is] an

essential element of the [crime] charged under General

Statutes [§ 53a-212 (a)] . . . .’’ State v. Carpenter, 19

Conn. App. 48, 59, 562 A.2d 35, cert. denied, 213 Conn.

804, 567 A.2d 834 (1989). ‘‘The operability of a firearm

can be proven either by circumstantial or direct evidence.’’ State v. Bradley, supra, 39 Conn. App. 91.

As in Bradley, the issue before us is ‘‘whether the

jury could have drawn reasonable inferences from the

evidence to enable it to conclude, beyond a reasonable

doubt, that the gun that the defendant possessed was

operable.’’ Id. The state points to the following evidence

in the record that would support a conclusion that the

firearms were operable. Niko lawfully bought his three

stolen firearms from sportsmen retailers between

March 27, 2014, and June 27, 2014.4 Niko kept his guns

confined to his bedroom. The three long guns were in

the open space of his bedroom, but kept inside cases

or bags and fastened with some form of safety lock.

The handgun was kept in Niko’s nightstand ‘‘in a locked

case.’’ With the exception of Garris, who slept in Niko’s

bedroom, Niko ‘‘[v]ery rarely let anybody in that room.’’

If Niko was not so diligent about keeping his firearms

in his bedroom, his mother would have put him ‘‘out

of the house in like point six seconds.’’ As such, the

firearms left Niko’s bedroom only when he took them

to the ‘‘training grounds.’’

The defendant argues that this evidence is inadequate

to prove the operability of the firearms beyond a reasonable doubt. He contends that his case is distinguishable

from a number of this court’s past decisions in which

operability was at issue. See State v. Edwards, 100

Conn. App. 565, 575–76, 918 A.2d 1008 (testimony of

witnesses describing gun used in robberies, which

matched gun found in defendant’s flight path and ballistics testing of which showed it was same gun fired

in separate shooting deemed sufficient for operability

inference), cert. denied, 282 Conn. 928, 929, 926 A.2d

666, 667 (2007); State v. Miles, 97 Conn. App. 236, 241,
903 A.2d 675 (2006) (operability proven where victim

saw defendant with small silver handgun that matched

gun introduced into evidence, defendant was only person victim saw with gun, and victim identified defendant as shooter in photographic lineup and at trial on

cross-examination); State v. Rogers, 50 Conn. App. 467,

469, 475, 718 A.2d 985 (front seat passenger displaying

gun and fire coming from passenger seat area sufficient

evidence of operability), cert. denied, 247 Conn. 942,

723 A.2d 319 (1998); State v. Hopes, 26 Conn. App. 367,

376–77, 602 A.2d 23 (testimony that defendant pointed

gun at witnesses inside restaurant, within one minute

followed witnesses outside restaurant, then witnesses

heard gunfire and ‘‘felt something pass close by their

heads’’ sufficient to prove operability of defendant’s

gun), cert. denied, 221 Conn. 915, 603 A.2d 405 (1992);

see also State v. Beavers, 99 Conn. App. 183, 190, 912

A.2d 1105 (police test of gun sufficient evidence of

operability), cert. denied, 281 Conn. 925, 918 A.2d 276

(2007); State v. Bradley, supra, 39 Conn. App. 91 (same);

State v. Zayas, 3 Conn. App. 289, 299, 489 A.2d 380

(same), cert. denied, 195 Conn. 803, 491 A.2d 1104

(1985). The defendant’s reliance on these cases to demonstrate what evidence is minimally necessary to prove

operability is unpersuasive. Each of these cases presents evidence sufficient to prove operability, but a

compilation of these cases do not define a minimum

standard of necessary evidence to establish operability.

‘‘[T]he line between permissible inference and impermissible speculation is not always easy to discern. When

we infer, we derive a conclusion from proven facts

because such considerations as experience, or history,

or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that

correlation is sufficiently compelling, the inference is

reasonable. But if the correlation between the facts and

the conclusion is slight, or if a different conclusion is

more closely correlated with the facts than the chosen

conclusion, the inference is less reasonable. At some

point, the link between the facts and the conclusion

becomes so tenuous that we call it speculation.’’ (Internal quotation marks omitted.) State v. Niemeyer, 258

Conn. 510, 518, 782 A.2d 658 (2001).

The evidence presented in this case supports an inference of operability because, from that evidence, the

jury reasonably could have concluded that the guns

were operable. Niko stored all of his firearms in his

bedroom in cases or bags and with safety locks on. He

restricted access to his bedroom. Niko’s precautions

evince an awareness that his firearms were dangerous.

It is reasonable to infer that operable firearms would

trigger such concern. Although a person might take

similar steps to secure inoperable firearms, that possibility does little to negate the likelihood of reasonable

jurors relying on their common sense understanding of

firearms to infer that Niko’s security measures reflected
that his firearms were operable. See id., 519 (‘‘an inference need not be compelled by the evidence; rather,

the evidence need only be reasonably susceptible of

such an inference’’ [internal quotation marks omitted]).

The defendant argues that regardless of the guns’

operability, ‘‘it is reasonable to infer that a mother

would not want a very young child or teenagers to have

access to two rifles and a handgun.’’ The defendant

again ignores the most obvious explanation for the position of Niko’s mother: a gun is most dangerous if operable. The defendant also implies, incorrectly, that the

jury’s refusal to draw an inference more favorable to

the defendant makes the inference they did draw an

unreasonable one. That is not so. See id., 518–19

(‘‘[p]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to

exclude every other hypothesis’’ [internal quotation

marks omitted]). The fact that Niko’s mother would not

permit his firearms being stored anywhere other than

securely in his bedroom, and that Niko assiduously

followed his mother’s ultimatum, further supports an

inference that these guns were operable.

Additionally, Niko kept his handgun in a nightstand

beside his bed. From this, the jury reasonably could

have inferred that Niko’s storing of his handgun in close

proximity to his bed where, while asleep, he might be

most vulnerable, permits an inference that he possessed

the handgun for security purposes. The jury then could

have further inferred that such a handgun was operable,

or else it would be of little security value. Niko also

kept this handgun in a locked case. As with the long

guns, this permits an inference that Niko took this safety

measure because the handgun was an operable firearm.

Lastly, Niko bought the three stolen firearms from

retailers, with the earliest purchase made on March 27,

2014. The defendant stole the guns on April 12, 2015.

Accordingly, when stolen, Niko’s firearms were in his

possession for no longer than one year and sixteen

days. Kade testified that the only time Niko’s firearms

left his bedroom was to go to the ‘‘training grounds.’’

Thus, the guns were taken to the ‘‘training grounds,’’

which the jury reasonably could have inferred was a

place to fire the guns, and that the guns were therefore

fired at least once during the year and sixteen days5

that Niko possessed them. Therefore, the jury reasonably could have inferred that the firearms were operable

upon purchase and, because Niko did take the guns to

a firing range during the limited duration of his ownership, remained operable when they were stolen.

The defendant cites to State v. Perez, 146 Conn. App.

844, 79 A.3d 149 (2013), cert. denied, 311 Conn. 909, 83

A.3d 1163 (2014), for the proposition that ‘‘a firearm

left in storage without the proper care and cleaning

can become inoperable.’’ In Perez, a firearm became

inoperable in the sixteen months between a successful
dry fire6 of the firearm by law enforcement and subsequent testing because the gun became ‘‘gummed up by

a residue in the . . . cylinder pin.’’ (Internal quotation

marks omitted.) Id., 847. The gun still was found to be

operable because ‘‘the responding officer dry fired the

gun and observed that its firing mechanism was functional shortly after the defendant possessed it . . . .’’

Id., 850. We fail to see how Perez informs our analysis

in this case. Perez is a factually distinguishable case,

and the evidence used to prove operability in that case

is not required to prove operability in this case.

Our review of the record does not persuade us that

the jury made unreasonable inferences regarding operability. To the contrary, the cumulative effect of the

evidence in this case, when construed in a light most

favorable to sustaining the jury’s verdict, supports the

jury’s ultimate conclusion that the state has demonstrated operability beyond a reasonable doubt. See

State v. Bradley, supra, 39 Conn. App. 90.7

II

The defendant next claims that the trial court erroneously admitted into evidence a letter the defendant

wrote to his mother while incarcerated, which was

intercepted by a correction officer and forwarded to

law enforcement. The defendant argues that (1) the

‘‘court erred in determining that the correction officer

followed the [department of correction (department)

regulation8

] when he turned over the correspondence’’

(footnote added); (2) ‘‘[t]he defendant maintained a reasonable expectation of privacy in his letter written to

[his] mother,’’ making its seizure a violation of the fourth

amendment to the United States constitution; and (3)

the department regulation ‘‘regarding inmate correspondence is void for vagueness as applied to this

case.’’

The following additional facts are relevant to this

issue. At trial, on September 29, 2016, the state offered

into evidence a letter written by the then incarcerated

defendant to his mother, which was intercepted by a

correction officer and forwarded to law enforcement.

After reviewing the contents of the letter, the court was

prepared to admit the letter as an admission by the

defendant. Conn. Code. Evid. § 8-3 (1) (A). Defense

counsel objected to the letter’s admission, stating that

‘‘when someone is incarcerated in a Connecticut facility, they are stripped of most of their expectation of

privacy, but not all’’ and that ‘‘I think [the department]

has put a limit on themselves that not just anybody can

open a letter at their own discretion.’’ Defense counsel

requested the opportunity to voir dire a department

representative ‘‘to see whether or not this opening of

a letter came at the direction of a unit manager by a

person in writing.’’ The court permitted the voir dire

of Correction Officer Evan Charter. After the voir dire

concluded, defense counsel argued that the department
‘‘did not follow the directive. Just because someone is

in a category of high bond or pretrial doesn’t necessarily

. . . further substantial interest[s] of security, order

or rehabilitation.’’ The court asked defense counsel,

‘‘[w]ould you agree [that the regulation] was followed

in this situation?’’ Defense counsel responded, ‘‘I would

agree [Officer Charter] followed [the regulation].’’ The

court ‘‘allow[ed] the letter to come in,’’ and defense

counsel stated, ‘‘I still stand by my objection . . . .’’

Additional facts will be set forth as necessary.

A

We begin with the defendant’s claim that ‘‘[t]he trial

court erred in determining that [Officer Charter] followed the [regulation] when he turned over the correspondence’’ to law enforcement. We conclude that the

defendant never distinctly raised this claim at trial. It

is therefore unpreserved and unreviewable on appeal.

The regulation governs the review of an inmate’s

outgoing general correspondence.9 The regulation

authorizes the ‘‘Unit Administrator’’ to select ‘‘specific

inmate(s)’’ or inmates ‘‘on a random basis’’ to have their

outgoing general mail reviewed if there is ‘‘reason to

believe that such reading is generally necessary to

further the substantial interests of security, order or

rehabilitation.’’ The regulation further directs the ‘‘Unit

Administrator’’ to designate in writing the ‘‘person(s)’’

who will review inmate mail. Under the regulation,

those designated ‘‘person(s)’’ are given the authority

to restrict, confiscate, return to the inmate, retain for

further investigation, refer for disciplinary proceedings

or forward to law enforcement officials any outgoing

general correspondence that ‘‘contain[s] or concern[s]’’

a list of nine prohibited inmate actions. See Regs., Conn.

State Agencies § 18-81-31 (a).

The focus of the defendant’s voir dire of Officer Charter was on the decision to review the defendant’s mail

in the first instance, not on whether the mail could be

provided to law enforcement. Defense counsel’s initial

objection to the court was that the department ‘‘put

a limit on themselves that not just anybody can open

a letter at their own discretion.’’ Defense counsel

requested the voir dire ‘‘to see whether or not this

opening of a letter came at the direction of a unit manager by a person in writing.’’ During voir dire, Officer

Charter testified that he did not make the initial decision

to review the defendant’s general outgoing mail.10 After

voir dire, defense counsel argued that the regulation

was not followed because reviewing the mail of a high

bond or pretrial inmate ‘‘doesn’t necessarily . . . further substantial interest[s] of security, order or rehabilitation.’’ The voir dire did not explore Officer Charter’s decision to forward the defendant’s letter to law

enforcement after a review of the letter.

Now, on appeal, the defendant claims that ‘‘[t]he trial
court erred in determining that [Officer Charter] followed the [regulation] when he turned over the correspondence.’’ This claim, challenging Officer Charter’s

authority and decision to turn the defendant’s letter

over to law enforcement pursuant to the regulation, is

a claim that was not distinctly raised at trial. As such,

it is unpreserved and not reviewable. See Practice Book

§ 60-5; State v. Morquecho, 138 Conn. App. 841, 851, 54

A.3d 609, cert. denied, 307 Conn. 941, 56 A.3d 948 (2012).

In his reply brief, the defendant claimed for the first

time that ‘‘[t]here is no doubt that [the] trial counsel

was objecting on the basis that the correction officer

was not authorized to read the defendant’s outgoing

letter solely on the basis that he was being held on a

high bond.’’ We decline to review this claim because

‘‘arguments cannot be raised for the first time in a reply

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

Myers, 178 Conn. App. 102, 106, 174 A.3d 197 (2017).

B

The defendant’s second claim with respect to the

letter is that his fourth amendment rights were violated.

The defendant did not distinctly raise this claim at trial11

but seeks review under State v. Golding, 213 Conn. 233,

239–40, 567 A.2d 823 (1989), as modified by In re Yasiel

R., 317 Conn. 773, 120 A.3d 1188 (2015).12 For the purposes of this decision we assume that the record is

adequate, and we agree that the claim is of a constitutional magnitude. There is, however, no constitutional

violation. See State v. Martin, 77 Conn. App. 778, 800,

825 A.2d 835 (‘‘[t]he defendant has failed to cite any

authority, nor have we found any, for the proposition

that a pretrial detainee has a reasonable expectation

of privacy in his telephone calls and mail after being

informed that his calls and mail would be monitored’’

[emphasis in original]), cert. denied, 266 Conn. 906, 832

A.2d 73 (2003). During the voir dire, Officer Charter

testified that all inmates are notified that their calls and

mail may be monitored upon entry into a facility.13 The

defendant presented no evidence that he lacked such

notice. Accordingly, the defendant did not prove that

he had an objectively reasonable expectation of privacy.

See State v. Houghtaling, 326 Conn. 330, 341, 163 A.3d

563 (2017) (‘‘[t]he burden of proving the existence of

a reasonable expectation of privacy rests [with] the

defendant’’ [internal quotation marks omitted]), cert.

denied, U.S. , 138 S. Ct. 1593, 200 L. Ed. 2d 776

(2018).14 The defendant’s claim fails under Golding’s

third prong.

C

The defendant’s third claim with respect to the letter

is that the regulation is void for vagueness as applied

to this case.15 This claim also was unpreserved but

because the record is adequate and vagueness claims

implicate the due process clause of the federal constitu-
tion, we review it under Golding. State v. Thomas W.,

115 Conn. App. 467, 471–72, 974 A.2d 19 (2009), aff’d,

301 Conn. 724, 22 A.3d 1242 (2011). The defendant,

however, cannot establish a constitutional violation.

The defendant argues that ‘‘[he] had inadequate

notice that his letter would be used against him and he

was the victim of arbitrary and discriminatory enforcement.’’ The state argues that the regulation ‘‘carries no

penal consequences’’ and, even if the regulation does

implicate due process, the defendant had ‘‘fair notice

that his outgoing general correspondence may be subject to review, and that such correspondence may be

forwarded to law enforcement officials . . . if . . . it

contained a plan for criminal activity . . . .’’ In his reply

brief, the defendant responds that ‘‘[t]he state, without

citing to authority, simply dismisses this claim by contending that since [the regulation is nonpenal] . . .

there is no implication of the due process clause.’’

(Internal quotation marks omitted.)

‘‘[T]he United States Supreme Court has stated that

[t]he degree of vagueness that the Constitution tolerates

. . . depends in part on the nature of the enactment.

. . . [P]erhaps the most important factor affecting the

clarity that the Constitution demands of a law is

whether it threatens to inhibit the exercise of constitutionally protected rights.’’ (Internal quotation marks

omitted.) Thalheim v. Greenwich, 256 Conn. 628, 641,

775 A.2d 947 (2001). ‘‘The constitutional requirement

of definiteness applies more strictly to penal laws than

to statutes that exact civil penalties.’’ State v. Rivera,

30 Conn. App. 224, 229, 619 A.2d 1146, cert. denied, 225

Conn. 913, 623 A.2d 1024 (1993). ‘‘The words ‘penal’

and ‘penalty,’ in their strict and primary sense, denote

a punishment, whether corporal or pecuniary, imposed

and enforced by the State for a crime or offense against

its laws.’’ Plumb v. Griffin, 74 Conn. 132, 134, 50 A. 1

(1901); see also 82 C.J.S., Statutes § 529 (2019) (‘‘[i]n

common use, however, the term ‘penal statutes’ has

been enlarged to include all statutes which define an

offense and prescribe a punishment’’). ‘‘[C]ivil statutes

. . . may survive a vagueness challenge by a lesser

degree of specificity than in criminal statutes . . . .’’

(Internal quotation marks omitted.) Sweetman v. State

Elections Enforcement Commission, 249 Conn. 296,

323, 732 A.2d 144 (1999).

The defendant fails to demonstrate that this regulation is penal and should receive closer scrutiny. See

State v. Rivera, supra, 30 Conn. App. 229. Regardless,

the defendant’s claim fails even under the more exacting

standard of review that applies to penal laws. ‘‘To demonstrate that [a statute] is unconstitutionally vague as

applied to him, the [defendant] . . . must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the

victim of arbitrary and discriminatory enforcement.’’
(Internal quotation marks omitted.) State v. Winot, 294

Conn. 753, 759, 988 A.2d 188 (2010). The defendant

cannot carry his burden.

The regulation states in relevant part that ‘‘[a]ll outgoing general correspondence shall be subject to being

read at the direction of the Unit Administrator . . . in

writing . . . for either a specific inmate(s) or on a random basis if the Commissioner or Unit Administrator

has reason to believe that such reading is generally

necessary to further the substantial interests of security, order or rehabilitation.’’ Regs., Conn. State Agencies § 18-81-31 (a). This language gave notice to the

defendant that he could have his mail reviewed if doing

so was deemed in the interest of security, order or

rehabilitation by prison officials. The regulation was

followed when the defendant, as a high bond and pretrial detainee, was identified in writing as an inmate to

have his mail reviewed. See Washington v. Meachum,

238 Conn. 692, 726, 680 A.2d 262 (1996) (‘‘the United

States Supreme Court [has] recognized the expertise

of prison officials and that the judiciary is ‘ill equipped

to deal with the increasingly urgent problems of prison

administration,’ and [has] emphasized that courts

should afford ‘deference to the appropriate prison

authorities’ ’’). The regulation further provides that outgoing mail could be ‘‘forwarded to law enforcement

officials, if such review discloses correspondence or

materials which contain or concern . . . Plans for

criminal activity.’’ Regs., Conn. State Agencies § 18-81-

31 (a) (4). This language provided sufficient notice to

the defendant that his letters could be forwarded to

law enforcement if they contained plans for criminal

activity. In the defendant’s letter to his mother, he wrote

‘‘mom find out how the [victims] feel about the [whole]

situation. [S]ee if they [are] still in CT or [if] they moved

to AZ try to talk to them tell them how sorry I am tell

them if [anything] Britt’s [girl] is willing to give them

[$5000] after we come home. See if they want to take

the stand. I need you to do this now.’’ A prison official

reasonably could have determined that the letter contained plans for criminal activity, such as witness tampering. See General Statutes § 53a-151. The regulation

is not void for vagueness as applied to the defendant.16

III

The defendant’s final claim is that the charges of

home invasion17 and burglary18 are the same offense,

making his conviction of both offenses a violation of

his constitutional protection against double jeopardy.

Thus, the defendant argues that his conviction of burglary in the first degree must be vacated.19 We disagree.

‘‘Double Jeopardy analysis in the context of a single

trial is a two-step process. First, the charges must arise

out of the same act or transaction. Second, it must be

determined whether the charged crimes are the same

offense. Multiple punishments are forbidden only if
both conditions are met.’’ (Internal quotation marks

omitted.) State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605

(2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185

L. Ed. 2d. 811 (2013). ‘‘At step one, it is not uncommon

that we look to the evidence at trial and to the state’s

theory of the case . . . in addition to the information

against the defendant, as amplified by the bill of particulars. . . . If it is determined that the charges arise out

of the same act or transaction, then the court proceeds

to step two, where it must be determined whether the

charged crimes are the same offense. . . . At this second step, we [t]raditionally . . . have applied the

Blockburger20 test to determine whether two statutes

criminalize the same offense, thus placing a defendant

prosecuted under both states in double jeopardy:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses

or only one, is whether each provision requires proof

of a fact which the other does not. . . . In applying

the Blockburger test, we look only to the information

and bill of particulars—as opposed to the evidence presented at trial—to determine what constitutes a lesser

included offense of the offense charged. . . . Because

double jeopardy attaches only if both steps are satisfied

. . . a determination that the offenses did not stem

from the same act or transaction renders analysis under

the second step unnecessary.’’ (Citations omitted; footnote added; internal quotation marks omitted) State v.

Porter, 328 Conn. 648, 662, 182 A.3d 625 (2018).

The defendant was charged in a substitute information with home invasion in violation of § 53a-100aa (a)

(1)21 and burglary in the first degree in violation of § 53a101 (a) (3)22 as both the principal and as an accessory

under General Statutes § 53a-8 (a). The state’s theory

of the case was that the home invasion occurred based

on ‘‘[Vaughn] go[ing] over there and bring[ing] a gun

with him. Then he enters in that house to commit a

crime to help the larceny. He puts a gun to Kade’s

head,’’ and the burglary occurred when the defendant

remained in the house at night with the intent to steal

Niko’s firearms.

Under step one, ‘‘[t]he same transaction . . . may

constitute separate and distinct crimes where it is susceptible of separation into parts, each of which constitutes a completed offense. . . . [T]he test is not

whether the criminal intent is one and the same and

inspiring the whole transaction, but whether separate

acts have been committed with the requisite criminal

intent and are such as are made punishable by the

[statute]. . . . When determining whether two charges

arose from the same act or transaction, our Supreme

Court has asked whether a jury reasonably could

have found a separate factual basis for each offense

charged.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Bennett, 187
Conn. App. 847, 853, 204 A.3d 49, cert. denied, 331 Conn.

924, 206 A.3d 765 (2019). In Bennett, the defendant

was charged under the same subsections of the statues

criminalizing home invasion and burglary in the first

degree as the defendant in the present case. Id., 848.

This court concluded in Bennett that the two crimes

could be separated into parts. ‘‘[T]he burglary charge

arose from the distinct and separate act of entering the

dwelling at night with the intent to commit a larceny,

while the home invasion charge arose from the separate

act of threatening the use of physical force against

[the victim] after the defendant and [the codefendant]

entered the home and were committing the larceny.’’

(Emphasis in original.) Id., 855; see also State v. Schovanec, 326 Conn. 310, 328–29, 163 A.3d 581 (2017).

In the present case, the evidence allows the defendant’s crimes to be separated into parts. While the

defendant and Garris were playing video games in

Niko’s bedroom, the defendant inquired as to what

Niko’s cases contained, and Garris responded that

Niko’s guns were stored in the cases. Later, the defendant took multiple phone calls, leaving Niko’s bedroom

for each one. After these phone calls, Vaughn, who was

unknown to Kade and not well known to Garris, showed

up at the back door of the house. Kade went to Niko’s

bedroom and told the defendant that someone was

there to see him. This upset Garris because the defendant had not first asked Garris about Vaughn’s coming over.

After both Kade and Garris left Niko’s bedroom for

the kitchen, the defendant remained alone in Niko’s

bedroom. Lastly, when Vaughn had a gun pressed to

Kade’s head and Garris was pleading with Vaughn to

point the gun at him, Vaughn yelled ‘‘hurry up,’’ which

the jury reasonably could infer was directed at the

defendant. On the basis of the foregoing, the jury reasonably could have concluded that the defendant formulated the intent to take Niko’s firearms before

Vaughn’s arrival when he was in Niko’s bedroom,

learned of the guns’ existence and participated in

numerous phone calls that he took outside of Garris’

presence. In other words, the defendant had remained

in Niko’s house unlawfully with the intent to commit

a larceny prior to Vaughn’s arrival. The jury also reasonably could have determined that the home invasion

occurred when Kade returned back to the kitchen and

Vaughn grabbed her and pressed a handgun to the back

of her head. That act, to which the jury reasonably could

have convicted the defendant as being an accessory,

constituted the separate act of threatening the immediate use of physical force element for robbery, which is

an element of the offense of home invasion. See General

Statutes § 53a-133.23

Because the defendant failed to show that the two

charges arose out of the same act or transaction, there
is no need to proceed to step two and perform a Blockburger analysis. See State v. Porter, supra, 328 Conn.

663 n.11. The defendant’s double jeopardy argument

fails.

The judgment is affirmed.

In this opinion PRESCOTT, J., concurred.

1 On April 12, 2015, Garris was residing at Niko’s house and sleeping in

the same bedroom as Niko, whom he described as his ‘‘best friend, like a

brother.’’ Also living at the house then was Niko’s mother, Michelle Infanti;

Niko’s siblings, Christina Infanti, Jesse Infanti, Michael Collins and Kade

Collins; and Christina’s eight year old daughter, all of whom ‘‘treated [Garris]

just like family.’’ Niko, his mother and Jesse were all absent from the house

that evening as they were looking at houses in Arizona. For ease of reference,

Niko, Christina and Kade will be referred to by their first names throughout

this opinion.

2 The record reflects that Niko lawfully had possessed four firearms: a

twelve gauge, Maverick Arms shotgun; a .22 caliber, Henry Repeating Rifle

Company rifle; a seven millimeter, Savage rifle; and a nine millimeter, Heckler & Koch handgun.

3 The defendant received ten years of incarceration followed by six years

of special parole on his home invasion conviction, a concurrent ten years

of incarceration on his burglary in the first degree conviction, another concurrent ten years of incarceration on his robbery in the first degree conviction, and concurrent two year sentences of incarceration on his conviction

of each charge of stealing a firearm.

4 Niko’s Henry Repeating Rifle Company rifle was purchased on March

27, 2014, his Heckler & Koch handgun was purchased on May 12, 2014, and

his Savage rifle was purchased on June 27, 2014.

5 Two of the firearms were owned for slightly less than a year and sixteen

days, but for ease of discussion we use the longer timespan.

6

‘‘The Officer removed the ammunition from the loaded gun and . . .

squeeze[ed] the trigger and activat[ed] the hammer . . . .’’ State v. Perez,

supra, 146 Conn. App. 847.

7 The defendant also argues that ‘‘[t]he state presented no expert evidence

that would have permitted the jury to properly infer from the circumstantial

evidence that the state presented that the missing guns had been operable

at the time they were taken beyond a reasonable doubt.’’ The defendant

cites to no authority, and we are aware of none, that supports the position

that expert evidence is necessary to prove operability of a firearm under

the facts of this case.

8 The regulation at issue is § 18-81-31 of the Regulations of Connecticut

State Agencies. See footnote 8 of this opinion. In his brief, the defendant

interchangeably references the regulation and the department administrative

directive 10.7, § 4 (F) (1) (directive). The directive is, in part, authorized by

the regulation, and the language relevant to the issue of inmate mail review

is substantially similar in both the regulation and directive. Hereinafter, we

will refer only to the regulation.

9 Section 18-81-31 of the Regulations of Connecticut State Agencies provides in relevant part: ‘‘(a) Review, Inspection and Rejection. All outgoing

general correspondence shall be subject to being read at the direction of

the Unit Administrator, by person(s) designated in writing by such Administrator, for either a specific inmate(s) or on a random basis if the Commissioner or Unit Administrator has reason to believe that such reading is

generally necessary to further the substantial interests of security, order or

rehabilitation. Outgoing general correspondence may be restricted, confiscated, returned to the inmate, retained for further investigation, referred

for disciplinary proceedings or forwarded to law enforcement officials, if

such review discloses correspondence or materials which contain or concern: (1)The transport of contraband in or out of the facility. (2) Plans to

escape. (3) Plans for activities in violation of facility or departmental rules.

(4) Plans for criminal activity. (5) Violations of Sections 18-81-28 through

18-81-51, inclusive, of the Regulations of the Connecticut State Agencies or

unit rules. (6) Information which if communicated would create a clear and

present danger of violence and physical harm to a human being. (7) Letters

or materials written in code. (8) Mail which attempts to forward unauthorized

correspondence for another inmate. (9) Threat to the safety or security of

staff, other inmates or the public. The initial decision to take action provided

for in this Subsection except to read, which shall be at the discretion of
the Unit Administrator, shall be made by the designee of the Unit Administrator. Such designee shall not be the same person who made the initial mailroom review. . . .’’

10 Section 18-81-31 (a) of the Regulations of Connecticut State Agencies

provides in relevant part that ‘‘[a]ll outgoing general correspondence shall

be subject to being read at the direction of the Unit Administrator, by

person(s) designated in writing by such Administrator . . . .’’ (Emphasis

added.) The following testimony was elicited from Officer Charter on examination by the prosecutor and defense counsel:

‘‘[The Prosecutor]: And why was [the defendant’s] letter reviewed?

‘‘[Officer Charter]: He was a member of the A-1 High Bond Unit. . . .

‘‘[The Prosecutor]: Was he also in any kind of status?

‘‘[Officer Charter]: Unsentenced pretrial.

‘‘[The Prosecutor]: Does that affect when you review something?

‘‘[Officer Charter]: Generally we do review all outgoing for the pretrial

unit, A1 Unit, the High Bond Unit.’’ . . .

‘‘[Defense Counsel]: So according to the [regulation], it says that all outgoing general correspondence shall be subject to being read at the direction

of the unit manager. Who is the unit manager?

‘‘[Officer Charter]: That would be the warden. . . .

‘‘[Defense Counsel]: And it appears to say the unit manager, in your case

the warden, can designate in writing someone to open the mail, correct?

‘‘[Officer Charter]: Correct.

‘‘[Defense Counsel]: Is that you?

‘‘[Officer Charter]: Yes.

‘‘[Defense Counsel]: Was that done in writing?

‘‘[Officer Charter]: Yes. . . .’’

11 Defense counsel began his objection to the letter’s admission into evidence by stating that ‘‘when someone is incarcerated in a Connecticut

facility, they are stripped of most of their expectation of privacy, but not

all.’’ After defense counsel requested, and the court granted, a voir dire of

Officer Charter, the prosecutor stated: ‘‘[I]t’s now turning into a miniature

suppression hearing which I have no objection to.’’ We disagree with the

defendant, who argues that these statements adequately raised his fourth

amendment claim. Defense counsel never sufficiently put the court on notice

that the purpose of the voir dire was to mount a fourth amendment claim.

See State v. Faison, 112 Conn. App. 373, 380, 962 A.2d 860 (trial counsel’s

‘‘general exhortation[s]’’ were inadequate to preserve claims presented on

appeal), cert. denied, 291 Conn. 903, 967 A.2d 507 (2009).

12 Under Golding, ‘‘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.’’ (Footnote omitted; emphasis in original.) State v. Golding, supra, 213 Conn. 239–40, as modified by In re Yasiel

R., 317 Conn. 773, 120 A.3d 1188 (2015).

The state argues that the defendant’s failure to file a pretrial motion to

suppress the letter is a waiver of this claim pursuant to Practice Book §§ 41-

2, 41-3 and 41-4. In light of our conclusion that the defendant’s claim does

not rise to the level of a constitutional violation, we do not determine

whether the defendant’s claim is waived.

13 Officer Charter testified as follows:

‘‘[The Prosecutor]: When an inmate goes in a correctional facility, are

they informed their mail is going to be monitored?

‘‘[Officer Charter]: Yes.

‘‘[The Prosecutor]: How’s that done?

‘‘[Officer Charter]: There’s an acknowledgement form they sign.

‘‘[The Prosecutor]: Everybody does that?

‘‘[Officer Charter]: Absolutely. It’s part of the admission package.’’

14 The defendant analogizes his case to United States v. Cohen, 796 F.2d

20, 24 (2d Cir. 1986), cert. denied, 479 U.S. 854, 107 S. Ct. 189, 93 L. Ed. 2d

122 (1986), cert. denied sub nom. 479 U.S. 1055, 107 S. Ct. 932, 93 L. Ed.

2d 982 (1987) to argue that his fourth amendment rights were violated. In

Cohen, an inmate’s fourth amendment rights were found to be violated by

a search of his cell, but the case is distinguishable because that search was

ordered by a prosecutor to obtain information for a superseding indictment.

Id. In the defendant’s case, the review of his mail was authorized by prison
officials for reasons of security, order or rehabilitation. See part II C of this

opinion; cf. United States v. Cohen, supra, 24 (‘‘[i]n this case it is plain that

no institutional need is being served’’).

15 The defendant argues the regulation’s vagueness violates his state and

federal due process rights. The defendant did not, however, provide a separate analysis under the Connecticut constitution, so we limit our discussion

to the federal constitution. State v. Ellis, 232 Conn. 691, 692 n.1, 657 A.2d

1099 (1995).

16 The defendant also argued that his state and federal rights to protected

speech, to a familial relationship and to prepare and present a defense were

violated. The defendant’s briefing does not make it clear whether these

claims, particularly the first amendment claim to free speech, are intended

to stand on their own or are encompassed within the broader void for

vagueness argument. If they are intended as independent claims, they are

inadequately briefed and we are not required to review them. See State v.

Monahan, 125 Conn. App. 113, 122, 7 A.3d 404 (2010), cert. denied, 299

Conn. 926, 11 A.3d 152 (2011). If the defendant’s first amendment argument

is part of his vagueness claim, it makes no difference to our conclusion

because that claim fails even under the standard of review most favorable

to the defendant.

17 The defendant was charged with home invasion in violation of General

Statutes § 53a-100aa (a) (1), which provides in relevant part: ‘‘A person is

guilty of home invasion when such person enters or remains unlawfully 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, and, in the

course of committing the offense: (1) Acting either alone or with one or

more persons, such person or another participant in the crime commits or

attempts to commit a felony against the person of another person other than

a participant in the crime who is actually present in such dwelling . . . .’’

18 The defendant was charged with burglary in the first degree in violation

of Section 53a-101 (a) (3), which provides in relevant part: ‘‘A person is

guilty of burglary in the first degree when . . . (3) such person enters or

remains unlawfully in a dwelling at night with intent to commit a crime

therein.’’

19 The defendant’s double jeopardy claim was not raised at trial, but the

parties agree that it is reviewable under Golding. See State v. BumgarnerRamos, 187 Conn. App. 725, 744, 203 A.3d 619, cert. denied, 331 Conn. 910,

203 A.3d 570 (2019).

20 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.

306 (1932).

21 Count one of the substitute information states that the defendant committed home invasion ‘‘in that on or about April 12, 2015, at approximately

9:23 p.m., at or near 78 Eastwood Avenue, Waterbury, Connecticut, [the

defendant], did enter or remain unlawfully in a dwelling, while a person

other than a participant in the crime was actually present in such dwelling,

with intent to commit a crime therein, and in the course of committing the

offense: acting with another person, such person and another participant

in the crime committed a felony (to wit: robbery) against the person of

another person other than a participant in the crime who is actually present

in such dwelling.’’

22 Count two of the substitute information states that the defendant committed burglary in the first degree ‘‘in that on or about April 12, 2015,

at approximately 9:23 p.m., at or near 78 Eastwood Avenue, Waterbury,

Connecticut, [the defendant], did enter and remain unlawfully in a dwelling

at night with intent to commit a crime therein.’’

23 The defendant’s argument that he ‘‘had not been remaining unlawfully

in [Niko’s home], he had been an invited guest’’ and that ‘‘[t]he gathering

of the guns, the unlawful remaining all occurred at the same time when

Vaughn arrived with a gun’’ is unavailing. There was sufficient evidence for

the jury to reasonably conclude that the defendant was remaining unlawfully

in the house with the intent to commit larceny prior to Vaughn’s arrival,

which allows for the home invasion and burglary in the first degree crimes

to be separated into parts.

The defendant’s argument is unsupported by State v. Holmes, 182 Conn.

App. 124, 127, 189 A.3d 151, cert. denied, 330 Conn. 913, 193 A.3d 1210

(2018). The defendant cited to Holmes’ procedural history, which recited a

trial court decision to vacate the conviction of burglary in the first degree

as a lesser included offense of home invasion. Id. There was no claim made

in Holmes to challenge the propriety of that decision and, as such, this court

neither discussed the factual background for the home invasion and burglary
charges nor discussed whether they could reasonably be separated into

parts. Therefore, Holmes is unhelpful to the defendant’s argument.