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STATE OF CONNECTICUT v. WILLIAM GEMMELL

(AC 34788)

Gruendel, Lavine and West, Js.

Argued April 10—officially released July 15, 2014

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, geographical area number twenty,

Dennis, J.)

Deborah G. Stevenson, assigned counsel, for the

appellant (defendant).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were David I. Cohen, state’s attorney, and Justina Moore, assistant state’s attorney, for

the appellee (state).
Opinion

LAVINE, J. The defendant, William Gemmell, appeals

from the judgment of conviction, rendered after a jury

trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), home invasion in violation of General Statutes § 53a-100aa (a)(1), brandishing

a facsimile firearm in a threatening manner in violation

of General Statutes § 53-206c (c), criminal violation of

a protective order in violation of General Statutes § 53a223, unlawful restraint in the second degree in violation

of General Statutes § 53a-96, and interfering with an

emergency call in violation of General Statutes § 53a183b. The defendant claims that (1) his arrest, detention, and punishment were unwarranted and, thus, violated his rights underthe state and federal constitutions,

(2) there was insufficient evidence to support his conviction, (3) the court improperly instructed the jury

with respect to home invasion, and (4) the court abused

its discretion by denying his motion for a judgment

of acquittal and his motion to dismiss. We affirm the

judgment of the trial court.

The defendant was tried before a jury in December,

2011. The jury reasonably could have found the following facts beyond a reasonable doubt. For approximately

fifteen years prior to 2008, the defendant and Kimberly

Planeta had a romantic relationship and lived together

in an apartment at 45 Maple Street in Norwalk. Their

relationship ended in 2008 when the defendant moved

to Texas. After the defendant moved, he no longer had

a key to the apartment.

On April 26, 2010, in an unrelated matter, the court,

Hudock, J., entered an order of protection against the

defendant and in favor of Planeta. Pursuant to that

protective order, the defendant was not to assault,

threaten, abuse, harass, follow, interfere with, or stalk

Planeta. He also was to stay 100 yards away from her,

her home, and wherever she resided. He was not to

have contact of any kind with Planeta, including written,

electronic or telephone communication. Nor was he to

have contact with Planeta’s home, workplace or others

with whom such contact would likely cause annoyance

or alarm to Planeta. The defendant was present in the

courtroom at the time the court entered the protective

order and stated that he understood the conditions of

the protective order.

On the evening of April 29, 2010, a surveillance camera captured the defendant surreptitiously entering 45

Maple Street (building) when an unknown person

exited the building.1 After the defendant entered the

building, he stayed in a basement room adjacent to the

laundry area.

On April 30, 2010, at approximately 6:30 p.m., Planeta

was in the basementfolding herlaundry when the defendant approached her from behind and stated, ‘‘you’re
going with me . . . .’’ The defendant walked Planeta

to the elevator and told her that he needed $3500. The

defendant displayed what appeared to be a gun, frightening Planeta. Planeta testified that she entered the

elevator because the defendant ‘‘had the gun on me.’’

The defendant and Planeta rode the elevator to the

fourth floor where her apartment was located.

In an effort to escape from the defendant, Planeta

told him that she did not want her cats to get out of

the apartment. She therefore opened the door a crack

and attempted to squeeze into her apartment. The

defendant, however, struggled with Planeta in the hallway and eventually pushed her ahead of him into the

apartment. The struggle continued inside the apartment

where the defendant pushed Planeta to the floor and

held her down. Planeta screamed for help. As a consequence, Planeta suffered bruises to her arm, and injuries

to her lip and little finger. Planeta was terrified and

asked the defendant to let her go. He refused and threatened to kill her.

When the struggle subsided, Planeta attempted to

reach the door, but the defendant barricaded it by wedging a chair under the doorknob. Planeta was able to

walk to a cordless telephone and dial 911. The defendant took the telephone from her before she could talk

to the police dispatcher. The dispatcher called back.

To prevent the defendant from discovering that she was

talking to the police, Planeta pretended to be speaking

with a telemarketer. Over a period of time, the defendant and Planeta spoke to the police a number of times.

As a consequence of Planeta’s 911 call and 911 calls

from other residents of the building, several Norwalk

police officers and members of the police department’s

special services unit came to the apartment. Officer

Carl Williams served as a hostage negotiator. During

the negotiations, the defendant stated that he would

stop Planeta if she attempted to leave. After a one and

one-half to two hour standoff, the defendant opened

the apartment door and permitted the police to enter.

The police frisked him and found a box cutter. The

police took the defendant into custody and, thereafter,

charged him with numerous crimes. Afterthe jury found

him guilty of burglary in the first degree, home invasion,

brandishing a facsimile firearm in a threatening manner,

criminal violation of a protective order, unlawful

restraint in the second degree, and interfering with an

emergency call,2

the defendantreceived a total effective

sentence of fifteen years incarceration, ten years of

which are a mandatory minimum, followed by ten years

of special parole.

I

The defendant’s principal claim is that his arrest,

detention, and punishment were unwarranted and violated his rights under article first, §§ 1, 8, and 9, of the

constitution of Connecticut,3 and the fifth, sixth, eighth,
and fourteenth amendments to the United States constitution. More specifically he claims that, as a matter of

law, (1) he could not violate a protective order that was

issued subsequent to April 30, 2010,(2) one convicted of

criminal violation of a protective order may be convicted of criminal trespass, but not home invasion, (3)

one may not be convicted of home invasion when the

home invaded is the person’s home, and (4) one may

not be convicted of home invasion that merely is incidental to a criminal violation of a protective order or

unlawful restraint. We do not agree with any of the

defendant’s claims.4

‘‘In reviewing a sufficiency of the evidence claim, we

apply a two-part test. First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom

the jury reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt. . . . On appeal, we do not

ask whether there is a reasonable view of the evidence

that would support a reasonable hypothesis of innocence. We ask, instead whether there is a reasonable

view of the evidence that supports the jury’s verdict

of guilty.’’ (Internal quotation marks omitted.) State v.

Brown, 299 Conn. 640, 646–47, 11 A.3d 663 (2011).

A

The defendant claims that his conviction of violating

a protective order on April 30, 2010, violated his constitutional rights because no protective order was issued

against him prior to April 30, 2010. We disagree.

The defendant claims that the only protective order

against him was issued on May 3, 2010. The record in

this case, however, discloses that, during Planeta’s

direct testimony, the state entered into evidence a certified copy of the protective order issued and signed by

Judge Hudock on April 26, 2010. Moreover, the state

placed into evidence a copy of the April 26, 2010 transcript of the defendant’s arraignment in the unrelated

matter during which Judge Hudock issued that protective order against the defendant. The April 26, 2010

protective order was the basis of the charge of criminal

violation of a protective order alleged in count four of

the December 1, 2011 amended long form information.

The defendant’s claim that his conviction of violating

a protective order violated his constitutional rights fails

in the face of the uncontradicted evidence presented

at trial.

B

The defendant claims that his constitutional rights

were violated when he was convicted of home invasion

in violation of § 53a-100aa (a) (1) in addition to criminal

violation of a protective order. The defendant has

asserted his claim on the basis of the following statutory
language: ‘‘[I]n accordance with section 53a-107 of the

Connecticut general statutes, entering or remaining in

a building . . . in violation of this [protective] order

constitutes criminal trespass in the first degree . . . .’’

See General Statutes §§ 54-1k (b) and 46b-38c (e).5 The

defendant acknowledges that one who violates a protective order may be convicted of criminal trespass in the

first degree under General Statutes § 53a-107, but he

contends that one who violates an order of protection

may not be prosecuted for home invasion. We disagree.

The defendant’s claim requires us to construe the

relevant statutes. Statutory construction is a question

of law and our review, therefore, is plenary. State v.

Pommer, 110 Conn. App. 608, 613, 955 A.2d 637, cert.

denied, 289 Conn. 951, 961 A.2d 418 (2008). ‘‘When construing a statute, [o]ur fundamental objective is to

ascertain and give effect to the apparent intent of the

legislature. . . . In other words, we seek to determine,

in a reasoned manner, the meaning of the statutory

language as applied to the facts of [the] case, including

the question of whether the language actually does

apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text

of the statute itself and its relationship to other statutes.

If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results,

extratextual evidence of the meaning of the statute shall

not be considered.’’ (Internal quotation marks omitted.)

State v. Miranda, 142 Conn. App. 657, 662, 64 A.3d 1268,

cert. granted on other grounds, 310 Conn. 902, 75 A.3d

29 (2013).

Both §§ 54-1k (b) and 46b-38c (e) (protective order

statutes) contain the words, ‘‘in accordance with section 53a-107 of the Connecticut general statutes, entering or remaining in a building or any other premises in

violation of this order constitutes criminal trespass in

the first degree . . . .’’ Section 53a-107 provides in relevant part: ‘‘(a) A person is guilty of criminal trespass

in the first degree when: (1) Knowing that such person

is not licensed or privileged to do so, such person enters

or remains in a building or any other premises after an

order to leave or not to enter personally communicated

to such person by the owner of the premises or other

authorized person; or (2) such person enters or remains

in a building or any other premises in violation of a

. . . protective order issued pursuant to section 46b38c, 54-1k . . . by the Superior Court; or (3) such person enters or remains in a building or other premises

in violation of a foreign order of protection . . . that

has been issued against such person . . . or (4) knowing that such person is not licensed or privileged to do

so, such person enters or remains on public land after

an order to leave or not to enter personally communicated to such person by an authorized official . . . .’’

The defendant argues that the language of § 53a-107 is
clear and unambiguous; we concur with that characterization.

Section 53a-107 requires the state to prove, in part,

that personal notice to leave has been given to a person

who, knowing that he is not licensed or privileged to

do so, enters or remains in a building or other premises.

To prove a violation under § 53a-107 (a) (1) and (4), the

state must prove that an order to leave was personally

communicated to the trespasser by the owner of the

premises or other authorized person. Under § 53a-107

(a) (2) and (3), the state need not prove that an order

to leave was communicated personally to the trespasser

by the owner of the premises or an authorized representative, as an order of protection satisfies the personally

communicated notice requirement. Under § 53a-107 (a)

(2) and (3), an order of protection constitutes personal notice.

Section 53a-107 concerns criminal trespass only, not

other conduct prohibited by an order of protection or

our General Statutes. In the present case, the defendant’s conduct in violation of the protective order went

well beyond criminal trespass, e.g., he came within 100

yards of Planeta, he threatened her with what appeared

to be a gun, and made physical contact with her. The

defendant has cited no legal authority that prohibited

the state from charging him with crimes in addition to

criminal trespass on the basis of his criminal conduct

on April 30, 2010, and we are aware of none. He merely

contends that because §§ 46b-38c and 54-1k address

criminal trespass and do not speak to home invasion,

he cannot be charged with home invasion. Although

the protective order statutes satisfy the personal notice

element of § 53a-107, the language of the protective

order statutes is not limiting with respect to other

crimes. In other words, nothing in them prohibits the

state from bringing additional charges, including home

invasion, for criminal acts. ‘‘When language used in a

statute is clear and unambiguous, its meaning is not

subject to modification or construction. . . . Absent

ambiguity, the courts cannot read into statutes, by construction, provisions that are not clearly stated.’’ (Citation omitted; internal quotation marks omitted.)

Battersby v. Battersby, 218 Conn. 467, 470, 590 A.2d 427

(1991). We conclude that the defendant’s constitutional

rights were not violated when he was convicted of home

invasion in addition to criminal violation of the protective order.

C

The defendant’s next claim is that his conviction of

home invasion was unwarranted because the home he

invaded was his own. The defendant contends that

because he was homeless and some of his possessions

were found in the laundry room of the building, the

building was his home.6 The defendant’s claim lacks

merit.
Count two of the amended long form information

alleges that ‘‘on or about April 30, 2010, at approximately 7:08 p.m. in the area of Maple Street, the said

[defendant] unlawfully entered a dwelling, with intent

to commit a crime therein, while a person other than

a participant in the crime was actually present in such

dwelling, to wit . . . Planeta, and, in the course of committing the offense he attempted to commit a felony

against another person who was actually present in

such dwelling . . . .’’

Section 53a-100aa codifies the crime of home invasion and provides in relevant part: ‘‘(a) 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 . . . .’’ The statute provides

that the crime of home invasion is committed, in part,

when a ‘‘person enters or remains unlawfully in a dwelling . . . .’’ (Emphasis added.) General Statutes § 53a100aa (a). The ‘‘enters’’ element of the crime does not

contain the word home.

Moreover, dwelling is a defined term under our law.

‘‘The following definitions are applicable to this part

. . . ‘dwelling’ means a building which is usually occupied by a person lodging therein at night, whether or

not a person is actually present . . . .’’ General Statutes

§ 53a-100 (a) (2). The defendant’s claim admits that he

was not living in Planeta’s apartment. To the extent

that his claim is predicated on his belief that he was

living in the basement of the building, count two of

the information charged him with unlawfully entering

Planeta’s dwelling.

For the foregoing reasons, we conclude that the

defendant was not wrongly convicted of home invasion

because the home he invaded was his own, as he contends. The jury found beyond a reasonable doubt that

he unlawfully entered Planeta’s apartment or dwelling.

Moreover, contrary to his claims, the defendant’s conviction in no way violates the state’s policy toward the

homeless or his right to privacy; it was predicated on

his criminal behavior. See footnote 6 of the opinion.

D

The defendant claims that his conviction of home

invasion violated his constitutional rights because his

criminal conduct in Planeta’s dwelling merely was incidental to the violation of the protective order or unlawful restraint. He contends that his claim is controlled

by our Supreme Court’s holding in State v. Salamon,
287 Conn. 509, 949 A.2d 1092 (2008). We disagree that

Salamon provides guidance, much less controls our

analysis.

In Salamon, our Supreme Court addressed a more

narrow issue predicated on that court’s priorinterpretations of our kidnapping statutes. Id., 531. The court

found the intent language of the statutes to be ambiguous. Id., 534. It stated that ‘‘in accordance with the

statutory definitions of the terms abduct and restrain,

our decisions have established that a defendant may be

convicted of kidnapping upon proof that he restrained a

victim when that restraint is accompanied by the requisite intent. Those previous decisions, however, have

not explored the parameters of that intent, in particular,

how the intent to prevent [a victim’s] liberation . . .

that is, the intent necessary to establish an abduction,

differs from the intent to interfere substantially with [a

victim’s] liberty . . . that is, the intent necessary to

establish a restraint.’’(Citations omitted; internal quotation marks omitted.) Id.

Our Supreme Court provided a judicial gloss to differentiate the intent necessary to commit kidnapping from

the intent necessary to commit unlawful restraint. The

court stated that ‘‘[o]ur legislature, in replacing a single,

broadly worded kidnapping provision with a gradated

scheme that distinguishes kidnappings from unlawful

restraints by the presence of an intent to prevent a

victim’s liberation, intended to exclude from the scope

of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and

necessary for the commission of another crime against

that victim. Stated otherwise, to commit a kidnapping

in conjunction with another crime, a defendant must

intend to prevent the victim’s liberation for a longer

period of time or to a greater degree than that which

is necessary to commit the other crime.’’ Id., 542. The

court’s holding was grounded on an analysis of the

kidnapping statutes and did not establish a statutory

gloss applicable to other crimes.

In his brief, the defendant has failed to identify any

ambiguity with respect to the crimes of home invasion

and criminal violation of a protective order to warrant

application of the judicial gloss identified by our

Supreme Court in Salamon. Moreover, as the state

points out, an element of the crime of home invasion

requires that the state prove that the defendant committed or attempted to commit a felony against a nonparticipant in the crime who is present in the dwelling. In

other words, the home invasion statute contemplates

the commission of anotherfelony against the nonparticipant in the dwelling during the unlawful entry. Salamon and its judicial gloss do not apply to the crime of

home invasion, and therefore the defendant’s claim

fails.
II

The defendant’s second claim is that there is insufficient evidence to support his conviction of (1) burglary

in the first degree and (2) home invasion. We do not

agree.

‘‘In reviewing a sufficiency of the evidence claim, we

apply a two-part test. First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom

the jury reasonably could have concluded that the

cumulative force of the evidence established guilt

beyond a reasonable doubt. . . .

‘‘We note that the jury must find every element proven

beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the jury to conclude

that a basic fact or an inferred fact is true, the jury is

permitted to consider the fact proven and may consider

it in combination with other proven facts in determining

whetherthe cumulative effect of all the evidence proves

the defendant guilty of all the elements of the crime

charged beyond a reasonable doubt.’’ (Citation omitted;

internal quotation marks omitted.) State v. Otto, 305

Conn. 51, 65, 43 A.3d 629 (2012).

An appellate court may not second-guess a jury’s

credibility determinations. See State v. Russell, 101

Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284

Conn. 910, 931 A.2d 934 (2007). In reviewing the evidence, ‘‘the reviewing court [is] bound by the jury’s

credibility determinations and all reasonable inferences

the jury could have drawn from the evidence.’’ (Emphasis in original.) Saleh v. Ribeiro Trucking, LLC, 303

Conn. 276, 290, 32 A.3d 318 (2011).

A

Burglary in the First Degree

In count one of the amended long form information,

the state accused the defendant of burglary in the first

degree and charged that in ‘‘Norwalk on or about April

30, 2010, at approximately 7:08 p.m. in the area of Maple

Street, [the defendant], unlawfully entered a building

with intent to commit a crime therein and in the course

of committing the offense, recklessly inflicted bodily

injury to [Planeta] in violation of General Statutes § 53-

101 (a) (2).’’ (Emphasis added.)

Section 53a-101 provides in relevant part: ‘‘(a) A person is guilty of burglary in the first degree when . . .

(2) such person enters or remains unlawfully in a building with intent to commit a crime therein and, in the

course of committing the offense, intentionally, knowingly or recklessly inflicts or attempts to inflict bodily
injury on anyone . . . . (c) Burglary in the first degree

is a class B felony . . . .’’

After the reviewing the evidence presented in this

case, we conclude that the jury reasonably could have

found beyond a reasonable doubt that the defendant

entered the building illegally. The building was a

secured building requiring a special key that had to be

obtained from the building superintendent. According

to the superintendent, Alan Raymond, the defendant

was not a resident of the building on April 29, 2010,

when he was observed by a security camera sneaking

into the building when someone exited. The April 26,

2010 protective order required that the defendant stay

away from Planeta’s home and wherever she resided.

Moreover, the jury reasonably could have found that

the defendant intended to violate the protective order

and, during the course of that crime, he struggled with

Planeta and recklessly caused injury to her arm, lip,

and little finger.

The defendant argues that the amended long form

information charges that his unlawful entry took place

on April 30, 2010, and the evidence adduced at trial

indicates that he entered the building on April 29, 2010.

The defendant’s argument is unavailing. ‘‘[I]t is a wellestablished rule in this state that it is not essential in

a criminal prosecution that the crime be proved to have

been committed on the precise date alleged, it being

competent ordinarily for the prosecution to prove the

commission of the crime charged at any time prior to

the date of the complaint and within the period fixed

by the statute of limitations.’’ (Internal quotation marks

omitted.) State v. Morrill, 197 Conn. 507, 552, 498 A.2d

76 (1985).

A defendant is ‘‘bound to meet any evidence admissible under the allegation which might be offered, and

under the allegation it was competent to prove that the

crime was committed on any day prior to the filing of

the information and within the statute of limitations.’’

State v. Ferris, 81 Conn. 97, 99–100, 70 A. 587 (1908).

Moreover, the amended long form information alleged

that the unlawful conduct occurred ‘‘on or about April

30, 2010.’’ The defendant cannot prevail on his claim

that the state presented insufficient evidence to convict

him of burglary in the first degree.

B

Home Invasion

Count two of the amended long form information

accused the defendant of home invasion and charged

that in Norwalk ‘‘on or about April 30, 2010, at approximately 7:08 p.m. in the area of Maple Street, the [defendant] unlawfully entered a dwelling, with intent to

commit a crime therein, while a person other than a

participant in the crime was actually present in such

dwelling, to wit . . . Planeta, and, in the course of com-
mitting the offense he attempted to commit a felony

against another person who was actually present in

such dwelling in violation of . . . § 53a-100aa (a) (1).’’

Section 53a-100aa provides in relevant part: ‘‘(a) 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 . . . 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 . . . . (c) Home invasion is a class A

felony . . . .’’

On the basis of our review of the evidence, we conclude that there was sufficient evidence presented at

trial for the jury reasonably to have found beyond a

reasonable doubt that the defendant unlawfully entered

Planeta’s apartment or dwelling after he struggled with

her and pushed her into the apartment. Given the evidence of the defendant’s conduct, the jury reasonably

could have found that in entering the apartment he

intended to violate the protective order and to obtain

money from Planeta by use of force, if necessary. The

defendant brandished a facsimile firearm, which supports a reasonable inference that he intended to use

force and commit a crime. The jury also reasonably

could have found that the defendant violated the protective order by entering Planeta’s apartment, a felony.

See General Statutes § 53a-223.

Although the jury found the defendant not guilty of

attempt to commit robbery, it reasonably could have

found that the defendant not only intended, but also

attempted, to commit a robbery in Planeta’s apartment.

He brandished the facsimile of a gun to compel Planeta

to walk down the hall from the laundry room to the

elevator after he stated that he wanted her to give him

$3500. ‘‘A person commits robbery when, in the course

of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the

purpose of . . . (2) compelling the owner of such property . . . to deliver up the property or to engage in

other conduct which aids in the commission of the

larceny.’’ General Statutes § 53a-133. Robbery, regardless of degree, is a felony. See General Statutes §§ 53a134 (b), 53a-135 (b) and 53a-136 (b). We, therefore,

conclude that there was sufficient evidence by which

the jury reasonably could have found the defendant

guilty of home invasion.

III

The defendant also claims that the court improperly

instructed the jury with respect to home invasion and

thereby misled the jury. We disagree.
In count two of the amended long form information,

the state accused the defendant of home invasion and

charged that ‘‘at the city of Norwalk on or about April

30, 2010, at approximately 7:08 p.m. in the area of Maple

Street, [the defendant] unlawfully entered a dwelling,

with intent to commit a crime therein, while a person

other than a participant in the crime was actually present in such dwelling, to wit . . . Planeta, and, in the

course of committing the offense he attempted to commit a felony against another person who was actually

present in such dwelling in violation of . . . § 53a100aa (a) (1).’’

Section 53a-100aa (a) 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 . . . alone . . . such person . . . 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 . . . .’’

(Emphasis added.)

The defendant submitted a request to charge on

December 5, 2011, and an amended request to charge

on December 7, 2011. With respect to the charge of

home invasion, the defendant requested that the court

instruct the jury, in part: ‘‘For you to find the defendant

guilty of this charge, the state must prove the following

elements beyond a reasonable doubt. . . . The first element is that the defendant knowingly and unlawfully

entered a dwelling while the dwelling was occupied.’’

(Emphasis in original.)

On December 7, 2011, the court provided the parties

with a copy of its proposed charge and heard argument

on the defendant’s requested charge. The court denied

the defendant’s request and instructed the jury in relevant part: ‘‘The defendant is charged in count two with

home invasion. . . . The first element is that the defendant knowingly and unlawfully entered a dwelling. . . .

The second element is that the defendant specifically

intended to commit a crime in that dwelling. . . . The

third element is that when the defendant entered the

dwelling, a person other than a participant in the crime

was actually present in the dwelling. . . . The fourth

element is that in the course of committing the offense,

the defendant committed or attempted to commit a

felony against the person of another person other than

a participant in the crime who was actually present in

such dwelling. . . . In summary, the state must prove

beyond a reasonable doubt that the defendant knowingly and unlawfully entered a dwelling and that he

specifically intended to commit a crime in the dwelling,

and that another person other than a participant of the

crime was actually present in the dwelling.’’7

(Empha-
sis added.)

‘‘Our review of the defendant’s claim requires that

we examine the [trial] court’s entire charge to determine

whether it is reasonably possible that the jury could

have been misled by the omission of the requested

instruction. . . . While a request to charge that is relevant to the issues in a case and that accurately states

the applicable law must be honored, a [trial] court need

not tailor its charge to the precise letter of such a

request. . . . If a requested charge is in substance

given, the [trial] court’s failure to give a charge in exact

conformance with the words of the request will not

constitute a ground for reversal. . . . As long as [the

instructions] are correct in law, adapted to the issues

and sufficient for guidance of the jury . . . we will not

view the instructions as improper. . . . Additionally,

we have noted that [a]n [impropriety] in instructions

in a criminal case is reversible . . . when it is shown

that it is reasonably possible for [improprieties] of constitutional dimension . . . that the jury [was] misled.’’

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

299 Conn. 447, 454–55, 10 A.3d 942 (2011).

Ourreview of the court’s charge reveals that the court

accurately stated the applicable law, which was adapted

to the issues in this case. In any event, we discern no

material difference between the court’s charge and the

language contained in the defendant’s requestto charge.

We conclude, therefore, that it was not reasonably possible that the court’s instructions regarding home invasion misled the jury.

IV

The defendant last claims that the court abused its

discretion by denying his oral motion for a judgment

of acquittal offered following the presentation of all

the evidence. He also claims that the court improperly

denied his written motion to dismiss filed prior to trial.8

The substance of the defendant’s claim is that the court

applied the incorrect standard when ruling on the

motions, and that the evidence would not reasonably

permit a finding of guilty as to home invasion and burglary in the first degree. We see no merit in the defendant’s claim.

On December 7, 2011, following the conclusion of

evidence, the court, in ruling on the defendant’s motion

for a judgment of acquittal stated, in part: ‘‘And with

respect to all of the charges—at this point, I’ll leave

out the home invasion charge—the court finds that

there is sufficient evidence for all of those charges to

go to the jury.’’ The court then discussed the legislative

history of the home invasion statute and stated that the

elements of the home invasion statute were clear to

the court, and that the statute is distinguishable from

the burglary statute. The court concluded: ‘‘And based

upon my reading of the statute, the motion forjudgment
of acquittal with respect to that count is also denied

considering the evidence that has been presented. I

think there is sufficient evidence for that matter to be

considered by the jury.’’

The defendant claims that the court improperly

applied a sufficiency of the evidence standard when

ruling on his motions to dismiss and for judgment of

acquittal. Practice Book § 42-40, entitled ‘‘Motions for

Judgment of Acquittal; In General,’’ provides in relevant

part: ‘‘After the close of the prosecution’s case in chief

or at the close of all the evidence, upon motion of the

defendant . . . the judicial authority shall order the

entry of a judgment of acquittal as to any principal

offense charged . . . for which the evidence would not

reasonably permit a finding of guilty. . . .’’ On the basis

of our review of the court’s ruling on the defendant’s

motions, we conclude that the court applied the proper

standard of review by concluding that there was sufficient evidence presented by the state to submit the

charges against the defendant to the jury.9

The judgment is affirmed.

In this opinion the other judges concurred.

1 The superintendent for the building described it as a ‘‘secure building,’’

meaning that a nonresident seeking to enter had to page a resident to

gain entry.

2 The jury found the defendant not guilty of attempt to commit robbery

in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a134 (a) (4), and assault in the third degree in violation of General Statutes

§ 53a-61 (a) (1).

3 The defendant failed to provide a separate analysis of his claims under

the constitution of Connecticut. We therefore decline to review those claims.

See State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992).

4 The parties disagree as to whether the defendant’s claims, as articulated

in his brief, were preserved for review. We need not determine whether the

claims were preserved. The state points out that, in his motion to dismiss

filed prior to trial, the defendant stated that ‘‘[t]here is insufficient evidence

or cause to justify the bringing or continuing of such information or the

placing of the defendant on trial on count two of the information.’’ The

state concedes that to the extent that the defendant’s claims challenge the

sufficiency of the evidence, they are reviewable. We agree and review the

defendant’s claims only for the sufficiency of evidence. See State v. Rodriguez-Roman, 297 Conn. 66, 73, 3 A.3d 783 (2010) (defendant found guilty

on basis of insufficient evidence has been deprived of constitutional right).

5

In his brief, the defendant refers to § 54-1k, which is entitled ‘‘Issuance

of protective orders in cases of stalking, harassment, sexual assault, risk

of injury to or impairing morals of a child.’’ The state has countered that

the subject protective order was issued pursuant to General Statutes § 46b38c, entitled ‘‘Family violence response and intervention units. Local units.

Duties and functions. Protective orders. Electronic monitoring pilot program. Pretrial family violence education program; fees. Training program.’’

In the present case, the statute under which the protective order was issued

is not determinative, as the quoted language concerning criminal trespass

is contained in both §§ 54-1k (b) and 46b-38c (e).

6

In his brief, the defendant raised a right to privacy claim and also states

that ‘‘the state necessarily considered him to be a ‘homeless’ person, when it

claimed he had ‘no fixed address,’ and was ‘squatting’ there [in the basement].

Even as a ‘homeless’ ‘squatter,’ however, the defendant still retained his

Constitutionalrights, including the right not to be punished unless warranted

by law. That’s because it is the policy of the state to protect the Constitutional

rights of homeless people, and that policy necessarily includes the right not

to be convicted for ‘home invasion’ when the ‘home’ invaded was his ‘home,’

however temporary.’’ In order to resolve the defendant’s claim, it is unnecessary for us to determine whether the basement of the building was the
defendant’s claimed home. The defendant’s conviction of home invasion

was predicated on his entering Planeta’s apartment or dwelling.

7 The court also instructed the jury, in part, that ‘‘[a]s a matter of law,

violation of a protective order and attempt to commit robbery in the first

degree are both felonies.’’

8 The court heard argument on the defendant’s motions and denied them

at the conclusion of evidence.

9 We feel constrained to express our disapproval of inappropriate and

intemperate language contained in the conclusion of the defendant’s principal brief, which amounts to a wholesale ad hominem attack on the trial

court. In contending that the court abused its discretion by ruling as it did

in a number of ways, appellate counsel stated in part: ‘‘Basically, the trial

court didn’t do its job. The judge failed to conduct appropriate research

into the law, or legislative history, before deciding on the motions. . . .

This is not justice. This is not what a court is required to do. . . . A judge

is supposed to view the evidence with fairness, know or find out what the

law requires, to apply the facts to the law, to come up with a just decision.

That didn’t happen here. . . . Without judicial diligence, the system fails,

not just for one individual, but also for society as a whole. That diligence

did not happen here. The law was not known or understood, the facts were

not applied appropriately to the law, and the standards of review were not

followed.’’ (Citations omitted.)

Issues properly raised on appeal are to be based on claims of law presented

at trial, not the personal opinion of appellate counsel. Such remarks are

unseemly and do nothing whatever to advance the defendant’s claims and

arguments. In our view, as indicated in this opinion, the trial court properly

ruled on the matters before it.