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

HENRY WATSON

(AC 41299)

DiPentima, C. J., and Keller and Noble, Js.

Syllabus

Convicted, following a jury trial, of the crimes of strangulation in the second

degree, assault in the third degree, unlawful restraint in the first degree

and threatening in the second degree, the defendant appealed to this

court. The defendant’s conviction resulted from an incident in which

the defendant, who had been hanging out and drinking beer with the

victim, accompanied the victim to his apartment, where he restrained,

assaulted and choked her over the course of several hours, in different

areas of the apartment. On appeal, he claimed, inter alia, that the trial

court improperly made the determination of whether the charges of

assault and unlawful restraint were ‘‘upon the same incident’’ as the

strangulation charge for purposes of the statute ([Rev. to 2015] § 53a64bb [b]) that provides that no person shall be found guilty of strangulation in the second degree and unlawful restraint or assault ‘‘upon the

same incident,’’ but that such person may be charged and prosecuted

for all three offenses upon the same information. Held:

1. The defendant’s unpreserved claim that the determination of whether the

charges were ‘‘upon the same incident’’ was a question of fact for the jury,

not the court, to determine was unavailing; this court has determined

previously, under similar factual circumstances, that it was proper for

the trial court, rather than the jury, to determine whether the charges

were ‘‘upon the same incident’’ for purposes of § 53a-64bb (b), and

denied the defendant’s request that the present case be heard en banc

in order to overturn that prior case law.

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

§ 53a-64bb (b) and his right to be free from double jeopardy when it

punished him for assault, unlawful restraint and strangulation, which

was based on his claim that the separate charges of assault and unlawful

restraint, as charged in the information and based on the evidence,

were not established as wholly separate claims from the strangulation:

although the defendant claimed that the fact that the information, which

alleged that all of the crimes occurred in the defendant’s apartment at

approximately 2 a.m., indicated that the charges arose from the same

incident, the record revealed numerous criminal acts committed over

the course of a longer period of time that demonstrated that the charges

did not arise from the same act or transaction, including evidence that the

victim informed the police that the defendant kept her in his apartment

against her will for approximately nine hours and that the defendant

assaulted and chocked the victim in different areas of the apartment

for a few hours of this approximately nine hour period; moreover, the

victim’s testimony established that the assault and the unlawful restraint

did not arise from the same incident as the strangulation, because even

though the conduct constituting assault and strangulation in the present

case did not occur in distinct locations, the fact that the assault and

strangulation involved distinct violent acts that resulted in distinct types

of physical injury supported the trial court’s conclusion that those

charges did not arise out of the same act or transaction, and the defendant’s conduct toward the victim established unlawful restraint on a

separate basis from his acts of strangulation, as the defendant restrained

the victim in his apartment for approximately nine hours by taking the

victim’s cell phones from her, restricting her movement to smaller areas

of the apartment and physically preventing her from escaping, none of

which occurred while the defendant was strangling the victim; accordingly, because the defendant’s double jeopardy claim was contingent

on whether the charges arose from the same act or transaction, and

because this court concluded that they did not, the defendant’s double

jeopardy claim necessarily failed.

3. The defendant could not prevail on his claim that the trial court violated

his constitutional rights to confrontation and to present a defense by
restricting his cross-examination of the victim, which was based on his

claim that he should have been allowed to question the victim regarding

past conduct, including a call she had made to the police in May, 2017,

concerning an incident of assault separate from that underlying the

charges in this case; although the defendant couched his claim in terms

of his constitutional rights, those rights entitled him only to elicit relevant

evidence, and the trial court properly determined that the evidence

regarding the May, 2017 police call was not relevant for the purposes

of impeachment, and, therefore, the defendant’s constitutional rights to

confrontation and to present a defense were not violated.

Argued May 21—officially released September 3, 2019

Procedural History

Substitute information charging the defendant with

the crimes of sexual assault in the first degree, strangulation in the second degree, assault in the third degree,

unlawful restraint in the first degree and threatening

in the second degree, brought to the Superior Court in

the judicial district of Fairfield and tried to the jury

before Kavanewsky, J.; thereafter, the court denied the

defendant’s motion to admit evidence regarding the

sexual conduct of the victim; verdict of guilty of strangulation in the second degree, assault in the third degree,

unlawful restraint in the first degree and threatening

in the second degree; subsequently, the court denied

the defendant’s motion for a judgment of acquittal as

to the charges of assault in the third degree and unlawful

restraint in the first degree and rendered judgment in

accordance with the verdict, from which the defendant

appealed to this court. Affirmed.

Alice Osedach, assistant public defender, for the

appellant (defendant).

Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were John C. Smriga, state’s attorney, and Marc R. Durso, senior assistant state’s attorney, for the appellee (state).
Opinion

KELLER, J. The defendant, James Henry Watson,

appeals from the judgment of conviction, rendered following a jury trial, of assault in the third degree in

violation of General Statutes § 53a-61 (a) (1), unlawful

restraint in the first degree in violation of General Statutes § 53a-95 (a), strangulation in the second degree in

violation of General Statutes (Rev. to 2015) § 53a-64bb

(a),1 and threatening in the second degree in violation

of General Statutes § 53a-62 (a) (1). The defendant

claims that the trial court (1) improperly determined

whether the charges of assault in the third degree and

unlawful restraint in the first degree were ‘‘upon the

same incident’’ as the charge of strangulation in the

second degree for the purposes of § 53a-64bb (b); (2)

violated § 53a-64bb (b) and his right to be free from

double jeopardy when it punished him for assault in

the third degree, unlawful restraint in the first degree

and strangulation in the second degree; and (3) violated

his right to confrontation when it restricted his crossexamination of the victim. We disagree and, accordingly, affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the

jury reasonably could have found the following facts.

On October 19, 2016, at approximately 3 p.m., the defendant and the victim were ‘‘hanging out’’ and drinking

beer on the front porch of an apartment building at 850

Hancock Avenue in Bridgeport wherein the defendant

resided. The victim stated that she needed to use the

bathroom, and the defendant stated that she could use

the bathroom in his apartment. The defendant accompanied the victim to his apartment, which was on the

second floor of the building, and the victim went into

the bathroom. When the victim tried to exit the bathroom, the defendant blocked the door and stated, ‘‘I’m

going to get some of your fucking pussy.’’

The defendant ultimately allowed the victim to leave

the bathroom, but he then blocked the victim’s access

to the front door, forcing the victim into the living room.

The defendant closed the curtains in the living room

and increased the volume on the radio that was playing.

The victim later testified that she did not try to leave

the apartment at this point because there was a ‘‘certain

way’’ to open the front door, and she did not know how

to do so.

The defendant then grabbed the victim and pushed

her onto the couch in the living room while stating

that he ‘‘wanted to get [the victim’s] pussy.’’ The victim

attempted to push the defendant off of her, but the

defendant held her down on the couch and began to

rip off her pants and underwear. The defendant also

punched and hit the victim in the face.2

Additionally, the defendant continually choked the

victim and hit her in the face. Periodically, the choking
would cause the victim to have difficulty breathing.

Whenever this happened, the victim would kick her feet

at the defendant, and the defendant would briefly let go

of her throat. Thereafter, the defendant would resume

choking her. At one point during this episode, the defendant stated ‘‘I want to kill you’’ and ‘‘I know I’m going

to pay for this.’’ The victim asked the defendant to

return her cell phones,3 which he had taken from her

prior to the first episode where he attacked her, so that

she could call her son. The defendant did not return

the victim’s cell phones to her and continued to hit her

repeatedly. In an attempt to resist the defendant, the

victim bit his pinky finger. The victim also tried to run

toward the door in order to escape from the apartment,

but the defendant prevented her from doing so by grabbing the hood of the sweatshirt she was wearing.

After attacking the victim in the living room, the

defendant brought her into his bedroom, threw her onto

the bed, and commenced a second attack, continuing

to hit and choke her. The defendant also ripped the

victim’s T-shirt off of her body and used it to choke

her. Throughout this second episode, the defendant

stated repeatedly that he wanted to kill the victim.

The defendant then took the victim back into the

living room and threw her onto a different couch than

he had thrown her onto earlier. During this third attack,

the defendant ‘‘beat [the victim] some more’’ and

choked her. Sometime thereafter, the defendant

stopped attacking the victim. Even after the defendant

stopped attacking the victim, he would not allow her

to leave the apartment.

Sometime in the early morning, on October 20, 2016,

the victim was able to convince the defendant to allow

her to leave the apartment by begging him to let her

go to the store to purchase a drink and promising that

she would return to the apartment afterward. The defendant accompanied the victim outside of the apartment

building, but she was able to run away from him.

The victim ran to a nearby gas station, where she

asked an employee if she could use the phone to call

the police because she had just been raped. The

employee did not allow the victim to use the phone, so

the victim left the gas station and continued walking

down the street away from the defendant’s apartment.

While she was walking down the street, the victim saw

an ambulance driving toward her. She waved down the

ambulance and told the paramedics in the vehicle that

she had been raped. One of the paramedics observed

that the victim ‘‘had an abrasion of approximately four

inches [on] the neck,’’ as well as abrasions and swelling

on her left eye and left ear.

The paramedics parked the ambulance at the intersection of Fairfield Avenue and Norman Street in

Bridgeport and contacted the police. The police arrived
at approximately 2:30 a.m. and spoke with the victim.

One of the police officers observed that the victim ‘‘had

some red marks around her neck and some bruising to

the face.’’ The victim directed the police to 850 Hancock

Street and informed them that the assault had occurred

in an apartment on the second floor of the building.

The police entered the building and spoke with the

defendant in his apartment. The defendant admitted

that he and the victim had sexual intercourse but

claimed that it had been consensual. While the police

were in the defendant’s apartment, they noticed a pair

of ripped women’s underwear in the garbage can and

took possession of them for evidentiary purposes. The

police also asked the defendant whether he had in his

possession the victim’s cell phones and charging cord,

because she had stated that they were ‘‘missing.’’ The

defendant gave the police the victim’s cell phones

and charger.

The police then brought the defendant down to the

front of the building, where the victim was waiting. The

victim identified the defendant as the individual who

had attacked her, and the police placed him under

arrest.

The victim then was transported to Bridgeport Hospital, where a nurse examined her and administered a

sexual assault kit. The nurse observed that the victim

‘‘had ligature marks on her neck and some red marks

and abrasions on her neck and chest.’’ The victim complained of a headache and dizziness and stated that she

had been punched in the face. The victim was prescribed Tylenol and Ibuprofen, as well as Meclizine for

dizziness and Zofran or Ondansetron for nausea.

The defendant thereafter was charged with sexual

assault in the first degree in violation of General Statutes § 53a-70 (a) (1) (sexual assault), assault in the third

degree in violation of § 53a-61 (a) (1) (assault), unlawful

restraint in the first degree in violation of § 53a-95 (a)

(unlawful restraint), strangulation in the second degree

in violation of § 53a-64bb (a) (strangulation), and threatening in the second degree in violation of § 53a-62 (a)

(1) (threatening). The substitute information alleged

that all of the crimes of which he was accused had

occurred on October 20, 2016, at approximately 2 a.m.

The defendant’s case was tried before a jury in September, 2017. The jury returned a verdict in which it

found the defendant guilty of the charges of strangulation, assault, unlawful restraint, and threatening, and

not guilty of the charge of sexual assault. Before sentencing, the court ordered that the parties ‘‘submit a

memorandum of law concerning whether and to what

extent [§ 53a-64bb (b)] applies in the present case and,

if so, the appropriate remedy to be implemented by the

court at the time of sentencing.’’

On October 3, 2017, in response to the court’s order,
the defendant filed a motion for a judgment of acquittal

as to the charges of assault and unlawful restraint. On

October 25, 2017, the state filed a response to the court’s

order, in which it requested that the court impose separate sentences on each of the charges of which the

defendant was found guilty and deny the defendant’s

October 3, 2017 motion for a judgment of acquittal.

The state argued that § 53a-64bb (b) did not prohibit

punishment for each offense ‘‘because the jury reasonably could have found the defendant guilty of unlawful

restraint and assault for discrete acts that were separate

from the act of strangling the victim.’’

On December 1, 2017, the court heard argument on

the defendant’s motion for a judgment of acquittal.

Defense counsel argued: ‘‘[I]t’s our position that the

incident itself that took place at . . . 850 Hancock Avenue was one transaction. Even though the transaction

may have occurred over a time period extending an

hour, two hours, three hours . . . . [T]herefore, [the

defendant] should receive acquittals on [the counts of

assault and unlawful restraint] pursuant to [§ 53a-64bb

(b)] and be sentenced on the guilty verdict on the other

two counts.’’ In response, the state argued that the

evidence presented at trial indicated that the assault and

unlawful restraint were separate from the strangulation.

The court denied the defendant’s motion for a judgment of acquittal and concluded that, based on the

evidence presented at trial, the assault and unlawful

restraint were not ‘‘upon the same incident’’ as the

strangulation and, therefore, that § 53a-64bb (b) did not

preclude the imposition of punishment for the counts

at issue. The court sentenced the defendant on all the

charges of which the jury had found him guilty, for a

total effective term of twelve years of incarceration,

execution suspended after seven years of mandatory

incarceration, followed by three years of probation.4

This appeal followed. Additional facts will be set forth

as necessary.

I

The defendant first claims that the court improperly

determined whether the charges of assault and unlawful

restraint were ‘‘upon the same incident’’ as the charge

of strangulation for the purposes of § 53a-64bb (b). Specifically, the defendant argues that whether the crimes

were ‘‘upon the same incident’’ was a question of fact

that should have been properly submitted to and

decided by the jury, not the court.5 We disagree.

Section 53a-64bb (b) provides in relevant part: ‘‘No

person shall be found guilty of strangulation in the

second degree and unlawful restraint or assault upon

the same incident, but such person may be charged

and prosecuted for all three offenses upon the same

information. . . .’’

We note that the defendant argues that this claim is
preserved and, in the alternative, that it can be reviewed

under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d

823 (1989), as modified by In re Yasiel R., 317 Conn.

773, 781, 120 A.3d 1188 (2015).6 We conclude that the

claim was not preserved because the defendant never

objected to the court determining whether the charges

of assault and unlawful restraint were ‘‘upon the same

incident’’ as the charge of strangulation. Thus, we assess

whether Golding review is appropriate. We conclude

that the record is adequate for review, as the trial court’s

remarks are set forth in the transcript of the sentencing

hearing, and that the issue is of a constitutional magnitude because it implicates the defendant’s right to a

jury trial. See State v. Morales, 164 Conn. App. 143, 160,

136 A.3d 278, cert. denied, 321 Conn. 916, 136 A.3d

1275 (2016). We conclude, however, that the defendant

cannot prevail on his claim because there was no constitutional violation.7 See id.

In support of his claim, the defendant argues that

State v. Morales, supra, 164 Conn. App. 159–61, wherein

this court concluded that a jury is not required to determine whether crimes are ‘‘upon the same incident’’ for

the purposes of § 53a-64bb (b), is ‘‘incorrect on both

constitutional and statutory grounds.’’ After filing his

reply brief in this appeal, the defendant filed a motion

in which he requested that the present case be heard

en banc and that the panel overturn Morales. See, e.g.,

Diaz v. Commissioner of Correction, 125 Conn. App.

57, 68 n.9, 6 A.3d 213 (2010) (‘‘[T]his court’s policy

dictates that one panel should not, on its own, [overrule]

the ruling of a previous panel. The [overruling] may

be accomplished only if the appeal is heard en banc.’’

[Internal quotation marks omitted.]), cert. denied, 299

Conn. 926, 11 A.3d 150 (2011). A panel of this court

denied the motion. Thereafter, at oral argument before

this court, the defendant conceded that the present case

is controlled by Morales. We conclude that Morales

controls our resolution of this issue.

In Morales, as in the present case, the trial court

made factual findings as to whether the defendant’s

convictions of strangulation, unlawful restraint, and

assault were ‘‘upon the same incident’’ and, therefore,

whether the defendant could be sentenced on all three

crimes under § 53a-64bb (b). See State v. Morales,

supra, 164 Conn. App. 159, 160 n.10. The defendant in

Morales claimed that the trial court’s finding that the

convictions were not upon the same incident violated

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000), wherein the United States

Supreme Court held that ‘‘[o]ther than the fact of a

prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable

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

Morales, supra, 159–60. In Morales, this court concluded

that the trial court’s finding did not violate Apprendi
because the court ‘‘did not find any fact that enhanced

the defendant’s sentence beyond the statutory maximum permitted by the jury’s verdict.’’ Id., 161. Pursuant

to our decision in Morales, we conclude that, in the

present case, it was proper for the trial court, rather

than the jury, to determine whether the charges were

‘‘upon the same incident’’ for the purposes of § 53a64bb (b).

II

The defendant next claims that the trial court violated

§ 53a-64bb (b) and his right to be free from double

jeopardy when it punished him for assault, unlawful

restraint and strangulation. Specifically, the defendant

argues that ‘‘[t]he separate charges of assault and

unlawful restraint, as charged in the information and

based on the evidence in this case, were not established

as wholly separate claims from the strangulation.’’

We disagree.

We begin by noting that the defendant preserved this

claim for appeal by filing a posttrial motion for a judgment of acquittal on October 3, 2017, in which he

argued: ‘‘[T]o be compliant with [§ 53a-64bb (b)], the

court should modify the verdict according to required

law and direct acquittals to [the charges of assault and

unlawful restraint].’’ See State v. Brown, 118 Conn. App.

418, 422, 984 A.2d 86 (2009) (‘‘motion for judgment

of acquittal on specific charge preserves charge for

appeal’’), cert. denied, 295 Conn. 901, 988 A.2d 877

(2010). Additionally, the defendant preserved this claim

with regard to his right to be free from double jeopardy

when, on October 26, 2017, he filed a memorandum

in support of his motion for a judgement of acquittal,

wherein he stated: ‘‘Pursuant to . . . [§] 53a-64bb (b)

. . . and the double jeopardy protections provided

through the fifth and fourteenth amendments [to] the

United States constitution, and the Connecticut constitution, the defendant requests that this court enter

acquittals on the convictions rendered on the counts

of unlawful restraint . . . and assault . . . .’’ (Emphasis added.)

We next assess the defendant’s claim with regard to

§ 53a-64bb (b). Whether the defendant’s punishment for

these charges violated § 53a-64bb (b) is a question of

statutory construction over which this court has plenary

review. State v. Miranda, 142 Conn. App. 657, 661–62,

64 A.3d 1268 (2013), appeal dismissed, 315 Conn. 540,

109 A.3d 452 (2015) (certification improvidently

granted). ‘‘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. . . . The test to determine ambiguity is whether the statute, when read in

context, is susceptible to more than one reasonable

interpretation. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance

to the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed

to implement, and its relationship to exiting legislation

and to [common-law] principles governing the same

general subject matter . . . .’’ (Internal quotation

marks omitted.) State v. Buckland, 313 Conn. 205, 224,

96 A.3d 1163 (2014), cert. denied, U.S. , 135 S.

Ct. 992, 190 L. Ed. 2d 837 (2015).

The relevant text of § 53a-64bb, in which the phrase

‘‘the same incident’’ appears, provides as follows: ‘‘(a)

A person is guilty of strangulation in the second degree

when such person restrains another person by the neck

or throat with the intent to impede the ability of such

other person to breathe or restrict blood circulation of

such other person and such person impedes the ability

of such other person to breathe or restricts blood circulation of such other person.

‘‘(b) No person shall be found guilty of strangulation

in the second degree and unlawful restraint or assault

upon the same incident, but such person may be

charged and prosecuted for all three offenses upon the

same information. For the purposes of this section,

‘unlawful restraint’ means a violation of section 53a-95

. . . and ‘assault’ means a violation of section . . .

53a-61 . . . .’’

‘‘The manifest purpose of § 53a-64bb, so written, is

to make an act of strangulation in the second degree,

as defined in subsection (a) of the statute, separately

punishable as a class D felony, whether that act, as

committed in the circumstances of a given case, also

supports a conviction for assault or unlawful restraint

in any degree, or both, but not to enhance the punishment for that act beyond the five year maximum for a

class D felony even if, as proven, it is also sufficient

to constitute assault and/or unlawful restraint. By that

logic, the same incident to which the statute refers

is an incident of strangulation, necessarily involving

restraint of another person by the neck or throat either

with the intent to impede the ability of that person to

breathe or to restrict the blood circulation of such other

person and which, in fact, either impedes the ability

of such other person to breathe or restricts his blood

circulation, not an event or course of conduct in which

an act of strangulation occurs, but is preceded, followed

or even accompanied by other, separate acts of assault
or unlawful restraint not based, in whole or in part,

upon one or more acts of strangulation. . . .

‘‘[T]he question that must be answered in ruling on

the defendant’s challenge to his sentence is whether

the factual basis on which he [was charged with assault

and unlawful restraint] demonstrated conduct by the

defendant, wholly separate from his strangulation of

the victim . . . that established his guilt of [assault

and] unlawful restraint . . . . If there is such conduct,

then the defendant’s separate convictions and sentences in this case did not violate § 53a-64bb.’’ State v.

Miranda, supra, 142 Conn. App. 663–64.

In support of his claim, the defendant argues that the

fact that the information alleged that all of the crimes

occurred in the same location, at the same time, indicates that the charges arose from the same incident.

‘‘[W]e [however] are not limited to a review of the state’s

information in order to determine whether the defendant’s crimes arose from the same act or transaction.

Our review of the case law leads us to conclude that

the fact that the state charged him in the information

with committing the subject crimes on the same date

and at approximately the same time and place does not

dispose of this portion of the . . . analysis; rather, we

are permitted to look at the evidence presented at trial.’’

State v. Morales, supra, 164 Conn. App. 152.

In the present case, although the state alleged in the

information that the crimes occurred in the defendant’s

apartment at approximately 2 a.m. on October 20, 2016,

the record reveals numerous criminal acts committed

over the course of a longer period of time. In fact, there

was evidence that the victim informed the police that

the defendant kept her in his apartment against her will

for approximately nine hours. For ‘‘[a] few hours’’ of

this approximately nine hour period, the defendant

assaulted the victim in different areas of the apartment,

specifically, the living room and the bedroom. The

assault consisted of the defendant hitting and punching

the victim in the head and face. In addition to assaulting

the victim, the defendant repeatedly choked her with

his hands and, later, a T-shirt, which he had ripped off

of the victim’s body, making it difficult for the victim

to breathe. While the defendant was choking the victim,

he stated, ‘‘I want to kill you.’’

The defendant also argues that the victim’s testimony

‘‘described actions that were wholly intertwined with

the actions of . . . strangulation, not separate and discrete crimes.’’ We are unpersuaded by this argument

and conclude that the victim’s testimony established

that the assault and unlawful restraint did not arise

from the same incident as the strangulation.

First, we assess whether the defendant’s conduct

toward the victim established assault on a separate

basis from his act of strangulation. Section 53a-61 (a)
provides in relevant part: ‘‘A person is guilty of assault in

the third degree when: (1) With intent to cause physical

injury to another person, he causes such injury to such

person or to a third person . . . .’’ The assault in the

present case, which was comprised of the defendant

punching and hitting the victim in the head and face,

caused the victim physical injury, as demonstrated by

the bruising on her face and the abrasions and swelling

on her left eye and ear. The victim complained of a

headache and dizziness as a result of being punched in

the face and the head. Although the assault and strangulation occurred relatively close in time, ‘‘[i]t is not dispositive in a double jeopardy analysis that multiple

offenses were committed in a short time span and during a course of conduct that victimized a single person.’’

State v. Urbanowski, 163 Conn. App. 377, 393, 136 A.3d

236 (2016), aff’d, 327 Conn. 169, 172 A.3d 201 (2017).

In support of his argument that the acts constituting

assault were intertwined with the strangulation, the

defendant attempts to distinguish the facts of the present case from those in State v. Urbanowski, supra, 163

Conn. App. 391. In Urbanowski, ‘‘the defendant threw

the victim across a room in his residence, causing her

to strike her head on a wall in the kitchen. Next, the

defendant threw the victim into a porch area near the

kitchen of the residence, causing further injury to her

head. While the victim was still on the porch, the defendant repeatedly punched her in the face. Next, the

defendant dragged the victim by her feet outdoors,

down the driveway, at which time he punched and

kicked the victim about the face and head. Finally, the

defendant positioned the victim inside of her automobile, where he held her down and repeatedly strangled

her by wrapping his hands around her neck and pushing.’’ Id. This court concluded that the fact that the

assault and strangulation involved distinct violent acts

that resulted in distinct types of physical injury supported the trial court’s conclusion that the charges did

not arise out of the same act or transaction. Id., 392.

As in Urbanowski, in which the assault caused the

victim a brain injury and the strangulation caused the

victim to be unable to breathe; id.; in the present case,

the assault caused the victim a headache, dizziness,

bruising on her face and abrasions and swelling on her

left eye and ear, whereas the strangulation caused the

victim to be unable to breathe and resulted in ligature

marks around her neck. Thus, although the conduct

constituting assault and strangulation in the present

case did not occur in distinct locations, as it did in

Urbanowski, we conclude that the state presented sufficient evidence to demonstrate that the charges did not

arise upon the same act or transaction.

Next, we assess whether the defendant’s conduct

toward the victim established unlawful restraint on a

separate basis from his acts of strangulation. Section

53a-95 (a) provides: ‘‘A person is guilty of unlawful
restraint in the first degree when he restrains another

person under circumstances which expose such other

person to a substantial risk of physical injury.’’ ‘‘A person restrains another person, within the meaning of

§ 53a-95, when, inter alia, he restrict[s] a person’s movements intentionally and unlawfully in such a manner

as to interfere substantially with his liberty . . . by

confining him . . . in the place where the restriction

commences . . . without consent.’’ (Internal quotation

marks omitted.) State v. Miranda, supra, 142 Conn.

App. 664.

In the present case, the defendant restrained the victim in his apartment for approximately nine hours, during which time the victim could not leave because she

did not know how to open the front door. Moreover,

the defendant had taken the victim’s cell phones from

her and would not allow the victim to call her son or

otherwise seek help. During that nine hour period, the

defendant also restricted the victim’s movement to

smaller areas of the apartment. Specifically, when the

victim initially came up to the apartment to use the

bathroom, the defendant stood in front of the bathroom

door, making it impossible for her to leave the room.

When the defendant finally moved aside and allowed

the victim to exit the bathroom, he blocked the front

door, forcing the victim to remain in the living room.

When the victim tried to escape from the apartment,

the defendant prevented her from leaving by grabbing

the hood of the sweatshirt she was wearing. None of

this conduct occurred while the defendant was strangling the victim.

The defendant argues that Miranda and Morales,

wherein this court concluded that there was sufficient

evidence to support a charge of unlawful restraint on

a separate basis from a charge of strangulation, are

distinguishable from the present case. In Miranda,

there was evidence that the defendant confined the

victim to a bathroom by pointing a flame in her direction. Id., 664–65. In Morales, the defendant restrained

the victim by ‘‘grabb[ing] her’’ when she tried to escape

through the front door. State v. Morales, supra, 164

Conn. App. 156. Although the defendant in the present

case used his body, rather than a flame, to block the

victim’s exit, his actions, like those of the defendant

in Miranda, made it impossible for her to leave the

bathroom. Thus, contrary to the defendant’s argument,

we conclude that Miranda is factually similar to the

present case. Additionally, like the defendant in

Morales, who grabbed the victim when she tried to

escape, there was evidence that the defendant in the

present case physically prevented the victim’s attempt

to escape the apartment through the front door by grabbing the hood of the sweatshirt she was wearing. Thus,

we find the defendant’s attempts to distinguish these

cases unavailing and conclude that the evidence presented at trial was sufficient to support the court’s
finding that the charges of assault and unlawful restraint

were based on separate acts.

We next turn to an evaluation of the defendant’s

argument that the court violated his right to be free

from double jeopardy when it sentenced him for assault,

unlawful restraint, and strangulation.

‘‘A defendant’s double jeopardy challenge presents a

question of law over which we have plenary review.

. . . The double jeopardy clause of the fifth amendment

to the United States constitution provides: [N]or shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb. The double jeopardy

clause is applicable to the states through the due process clause of the fourteenth amendment. . . . This

constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments

for the same offense in a single trial. . . .

‘‘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. Urbanowski, supra, 163 Conn. App.

387–88.

The defendant’s double jeopardy claim, like his claim

that the court violated § 53a-64bb (b), is contingent

upon whether the charges arose from the same act or

transaction. See State v. Miranda, supra, 142 Conn.

App. 665–66. Because we have concluded that the

charges at issue in the present case did not arise from

the same act or transaction, namely the incident of

strangulation, the defendant’s double jeopardy claim

necessarily fails. The assault and unlawful restraint

could have been established through acts distinct from

the throttling of the victim.

III

Finally, the defendant claims that the court violated

his constitutional rights to confrontation and to present

a defense by restricting his cross-examination of the

victim. Specifically, the defendant argues that he should

have been allowed to question the victim regarding past

conduct, including a call she made to the police in May,

2017, concerning a separate incident of assault from

that underlying the charges in this case. We disagree.

The following additional facts are relevant to the

present claim. On September 19, 2017, the defendant

filed a motion to admit evidence regarding the sexual

conduct of the victim pursuant to General Statutes § 54-

86f.8 The defendant argued that the evidence he sought

to introduce was being ‘‘[o]ffered on the issue of the

credibility of the [victim]’’ and was ‘‘[s]o relevant and

material to a critical issue in the case that excluding it

would violate [his] constitutional rights.’’
On September 25, 2017, before the victim began her

testimony, the court heard argument on the motion. At

this time, defense counsel proffered: ‘‘During some of

our investigation of the [victim] in this case, it’s come

to our knowledge [that] there have been situations in

the recent past where [the victim] has done this kind

of conduct before, where she has basically lived with

individuals for a couple of weeks with the lifestyle that

[involves] a lot of drinking and drugs, and once the

drinking and drugs sort of run out, there’s a dispute

between the parties who are engaged in the drinking

and drugs, and sometimes the police are called and

charges are filed. I have one incident—it’s not an incident report but just a teletype where she called the

police [in May, 2017].’’ Defense counsel clarified that

the May, 2017 incident did not involve the defendant.

The court stated that it would defer ruling on the motion

until the state completed its direct examination of

the victim.

After the state completed its direct examination of

the victim, the defendant renewed his motion outside of

the presence of the jury. At this point, defense counsel

proffered that he had obtained a copy of the police

dispatch report of the victim’s May, 2017 police call.

Defense counsel further stated: ‘‘[The victim] called the

police and . . . told [the police dispatcher] that she

was punched two days ago and bitten by a party she

knows . . . . [T]he [police] dispatcher indicated that

she sounded . . . intoxicated. . . . [The victim]

call[ed] twenty minutes later, indicating that she was

okay and didn’t want an officer [dispatched].’’ Defense

counsel argued that the evidence ‘‘goes to [the victim’s] credibility.’’

The state objected to the admission of the evidence,

and the court sustained the state’s objection, stating:

‘‘I don’t think that it is relevant in any respect to the

issues the jury has to determine in this case. It’s well

after the fact here, and it’s just . . . putting her in the

light of somebody who drinks, calls the police, maybe

changes her mind. It just has nothing to do with anything

in this case. . . . And I just don’t see the value of it

for purposes of the jury deciding what the facts are

here and its prejudicial value compared to any probative

value . . . [is] extremely high.’’

As a preliminary matter, we set forth the applicable

standard of review. ‘‘When a trial court improperly

excludes evidence in a criminal matter, the defendant’s

constitutional rights may be implicated. It is fundamental that the defendant’s rights to confront the witnesses

against him and to present a defense are guaranteed

by the sixth amendment to the United States constitution. . . . In plain terms, the defendant’s right to present a defense is the right to present the defendant’s

version of the facts as well as the prosecution’s to the

jury so that it may decide where the truth lies. . . .
The right of confrontation is the right of an accused in

a criminal prosecution to confront the witnesses against

him. . . . The primary interest secured by confrontation is the right to cross-examination . . . .

‘‘Nevertheless, [i]t is well established that a trial court

has broad discretion in ruling on evidentiary matters,

including matters related to relevancy. . . . Accordingly, the trial court’s ruling is entitled to every reasonable presumption in its favor . . . and we will disturb

the ruling only if the defendant can demonstrate a clear

abuse of the court’s discretion. . . . Further, [w]e have

emphasized in numerous decisions . . . that the confrontation clause does not give the defendant the right

to engage in unrestricted cross-examination. . . . A

defendant may elicit only relevant evidence through

cross-examination. . . . The court determines

whether the evidence sought on cross-examination is

relevant by determining whether that evidence renders

the existence of [other facts] either certain or more

probable.’’ (Citations omitted; internal quotation marks

omitted.) State v. Thomas, 177 Conn. App. 369, 384–85,

173 A.3d 430, cert. denied, 327 Conn. 985, 175 A.3d 43

(2017); see also State v. Rivera, 169 Conn. App. 343,

380, 150 A.3d 244 (2016) (‘‘[a] defendant . . . may

introduce only relevant evidence, and, if the proffered

evidence is not relevant, its exclusion is proper and the

defendant’s right [to present a defense] is not violated’’

[internal quotation marks omitted]), cert. denied, 324

Conn. 905, 152 A.3d 544 (2017).

We now turn to our analysis of the defendant’s claim.

As previously mentioned, he claims that the court violated his constitutional rights to confrontation and to

present a defense by excluding evidence of the victim’s

prior conduct. Although the defendant couches his

claim in terms of his constitutional rights, those rights

entitle the defendant only to elicit relevant evidence,

and thus, we begin this inquiry by assessing whether

the evidence at issue in the present case was relevant

for the purposes of impeachment, as the defendant

argued at trial.

We conclude that the evidence sought regarding the

victim’s May, 2017 police call was not relevant for the

purposes of impeachment. Contrary to the defendant’s

argument that this call showed that the victim engaged

in a pattern of accusing individuals of assault and subsequently recanting such accusations, we observe that

there was no proffered evidence that the victim

recanted her statement to the police concerning the

May, 2017 incident. When the victim called back the

police shortly after her initial report, she stated that

she was ‘‘okay’’ and did not want a police officer to be

dispatched. In stating that she did not want the police

to respond to her call, the victim did not, in any way,

deny that the assault had happened or state that she

had fabricated her earlier report. Rather, the victim
indicated that she had changed her mind about pursuing

the matter with law enforcement.9

‘‘It is axiomatic that the defendant bears the burden

of establishing the relevance of the proffered testimony

and that unless a proper foundation is established, the

evidence is not relevant.’’ (Internal quotation marks

omitted.) State v. Grant, 68 Conn. App. 351, 358, 789

A.2d 1135 (2002). We conclude that the defendant failed

to meet that burden and, therefore, that the court properly determined the evidence regarding the May, 2017

police call to be irrelevant. Thus, the defendant’s constitutional rights to confrontation and to present a defense

were not violated.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Hereinafter, unless otherwise indicated, all references to § 53a-64bb in

this opinion are to the 2015 revision of the statute.

2 The victim testified that during each of the three episodes in which she

was attacked, the defendant had nonconsensual vaginal intercourse with

her. We note that the jury acquitted the defendant of the charge of sexual

assault in the first degree in violation of General Statutes § 53a-70 (a) (1).

3 The victim had two cell phones, however, one was out of prepaid minutes

and, therefore, was inoperable.

4 Specifically, the court sentenced the defendant on the assault to one

year of incarceration, execution suspended, followed by three years of

probation; on the unlawful restraint to five years of incarceration, execution

suspended after three years of mandatory incarceration, followed by three

years of probation; on the strangulation to five years of incarceration, execution suspended after four years of mandatory incarceration, followed by

three years of probation; and on the threatening to one year of incarceration,

execution suspended, followed by three years of probation. The court

imposed all of the sentences to run consecutively.

5 The defendant also appears to argue, as part of this claim, that the

court’s determination of whether the charges were ‘‘upon the same incident’’

involved instructional error in that the trial court should have instructed the

jury on § 53a-64bb (b), so that the jurors could have made the determination

themselves. The defendant in State v. Morales, 164 Conn. App. 143, 156 n.7,

157 n.8, 136 A.3d 278, cert. denied, 321 Conn. 916, 136 A.3d 1275 (2016),

made a similar argument, contending that, by failing to instruct on § 53a64bb (b), the court committed instructional error. In Morales, this court

concluded that the defendant waived any claim of instructional error under

State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). State v. Morales,

supra, 156 n.7, 159–60 n.9. Similarly, in the present case, we conclude that,

to the extent that the defendant has raised a claim of instructional error

on appeal, he has waived this claim under Kitchens; see State v. Kitchens,

supra, 482–83 (‘‘when the trial court provides counsel with a copy of the

proposed jury instructions, allows a meaningful opportunity for their review,

solicits comments from counsel regarding changes or modifications and

counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and

to have waived implicitly the constitutional right to challenge the instructions

on direct appeal’’).

In the present case, the defendant never requested that the jury be

instructed on § 53a-64bb (b). The court first provided counsel with a copy

of its proposed draft charge on September 27, 2017. The draft charge, like

the court’s final charge delivered to the jury, did not contain an instruction

pursuant to § 53a-64bb (b). The next day, the court twice solicited comments

from counsel regarding the proposed charge. Defense counsel did not object

to the proposed charge at either point that day. Thereafter, when the court

instructed the jury, defense counsel again failed to object to the instructions

as given or request that the court instruct the jury on § 53a-64bb (b).

On appeal, the defendant argues that he did not request that the jury be

instructed on § 53a-64bb (b) or object to the instructions as given because

the case was tried shortly after this court’s decision in Morales was officially

released and ‘‘the trial court would not have charged the jury that it was
to determine whether the charges occurred ‘upon the same incident,’ even

if the defendant had made such a request.’’ The defendant, however, has

failed to provide any support for his argument that because he believed the

court would refuse to instruct the jury on § 53a-64bb (b), his failure to object

does not support a Kitchens waiver. To the contrary, this court previously

has recognized that ‘‘[a] trial court has no independent obligation to instruct,

sua sponte, on general principles of law relevant to all issues raised in

evidence . . . . Rather, it is the responsibility of the parties to help the

court in fashioning an appropriate charge.’’ (Internal quotation marks omitted.) State v. Crawley, 93 Conn. App. 548, 568, 889 A.2d 930, cert. denied,

277 Conn. 925, 895 A.2d 799 (2006). As such, we conclude that any instructional error claimed by the defendant was waived under Kitchens.

6

‘‘Under [the Golding] test, [a] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are

met: (1) the record is adequate to review the alleged claim of error; (2) the

claim is of constitutional magnitude alleging the violation of a fundamental

right; (3) the alleged constitutional violation . . . exists and . . . deprived

the defendant of a fair trial; and (4) if subject to harmless error analysis,

the state has failed to demonstrate harmlessness of the alleged constitutional

violation beyond a reasonable doubt. In the absence of any one of these

conditions, the defendant’s claim will fail. The appellate tribunal is free,

therefore, to respond to the defendant’s claim by focusing on whichever

condition is most relevant in the particular circumstances.’’ (Emphasis in

original; internal quotation marks omitted.) State v. Dunbar, 188 Conn. App.

635, 644–45, 205 A.3d 747, cert. denied, 331 Conn. 926, 207 A.3d 27 (2019).

7 The defendant also argues that, even if this court declines to review this

claim under Golding, it should do so under the plain error doctrine or this

court’s supervisory authority. We disagree.

We first note that plain error is a doctrine of reversibility, not reviewability.

See State v. Jamison, 320 Conn. 589, 595–97, 134 A.3d 560 (2016). For the

reasons set forth in part I of this opinion, we conclude that it was not error,

let alone obvious error, for the court to determine that the charges of assault

and unlawful restraint were not ‘‘upon the same incident’’ as the charge of

strangulation. See id. Thus, the defendant has failed to demonstrate that

this court should afford him relief under the plain error doctrine.

We likewise decline to exercise our supervisory authority to review this

claim because we conclude that the defendant has failed to demonstrate

that this claim is one that is relevant to the perceived fairness of the judicial

system as a whole. See State v. Elson, 311 Conn. 726, 771, 91 A.3d 862 (2014).

8 Although the defendant’s motion was titled ‘‘Motion to Admit Evidence

of Sexual Conduct,’’ and cited § 54-86f, which contains the exceptions to

the rape shield statute, the evidence he sought to introduce did not relate

specifically to the victim’s sexual conduct. In fact, at argument on the motion,

defense counsel stated ‘‘I don’t really intend to focus on . . . [the victim’s]

sexual history.’’ Moreover, when the victim called the police in May, 2017,

she did not allege that she had been sexually assaulted. Rather, she alleged

that someone had punched and bitten her.

9 The state also argues in its brief that the May, 2017 police call was

irrelevant to the facts at issue in the case because it occurred almost seven

months after the events giving rise to the present case and because it involved

an individual other than the defendant. We, however, note that we must

evaluate relevancy in accordance with the theory of admissibility and/or

relevancy argued at trial, not on appeal. See State v. Papineau, 182 Conn.

App. 756, 769–70, 190 A.3d 913, cert. denied, 330 Conn. 916, 193 A.3d 1212

(2018). Thus, we must assess the relevance of the May, 2017 police call

exclusively for the purposes of impeachment.