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*********************************************** 
STATE OF CONNECTICUT v. MICHAEL J.

PAPINEAU

(AC 39474)

Keller, Bright and Norcott, Js.

Syllabus

Convicted of the crimes of assault in the first degree and conspiracy to

commit assault in the first degree in connection with the beating of

the victim, the defendant appealed to this court. The defendant, his

coconspirator, W, and the victim had been preparing to spend the night

in an abandoned mill when W repeatedly struck the victim with a baseball

bat. The defendant and W thereafter pushed the victim into a hole in

the floor, covered him with debris and then left the mill. The next day,

while traveling in a car together, W overheard the defendant tell the

defendant’s former wife, P, in a telephone conversation that the defendant and W had assaulted the victim in the mill. The defendant also

asked P in a text message for the phone number of a friend in Ohio

because he wanted to find out if the friend would permit him to stay

with him. The defendant told P that he intended to leave Connecticut

for a five year period because he believed that five years was the length

of the statute of limitations for the crime of attempt to commit murder. Held:

1. The defendant could not prevail on his claim that the trial court improperly

precluded W from testifying about the defendant’s telephone conversation with P:

a. The record was inadequate to review the defendant’s claim that W’s

testimony was offered to impeach P’s testimony and as circumstantial

evidence of the defendant’s state of mind in order to demonstrate that

he had not confessed to P that he was involved in the beating of the

victim; the defendant’s arguments were based on speculation concerning

how W may have testified, as the record did not contain the substance

of the excluded testimony, the defendant having failed to ask the trial

court to hear W’s responses to defense counsel’s questions outside the

presence of the jury.

b. The defendant’s unpreserved claims that W’s testimony was admissible under the residual exception to the rule against hearsay and that

the trial court’s ruling deprived the defendant of his right to present a

defense were not reviewable, defense counsel having failed to ask the

court to rule on whether his inquiries of W were proper under the

residual hearsay exception or to raise any argument concerning the

defendant’s right to present a defense; moreover, even if the trial court’s

evidentiary rulings were erroneous, the defendant could not have demonstrated harm, as W had contradicted P’s testimony and testified that

the defendant, during the telephone conversation, had not discussed

traveling to Ohio, that nothing about the telephone conversation bothered or concerned W, and that the conversation concerned normal topics

involving the defendant’s children.

2. The defendant’s unpreserved claim that the trial court improperly precluded defense counsel from eliciting testimony from the defendant’s

mother, D, that the defendant planned to travel to Massachusetts prior

to the events at issue was not reviewable: although the court sustained

the prosecutor’s objection to certain testimony from D, who answered

defense counsel’s inquiry before the court ruled on the objection, and

the prosecutor did not move to strike D’s answer after the court’s ruling,

nor did the court sua sponte order that the testimony be stricken, D’s

answer was not part of the evidence, and the defendant did not make a

proffer or advance any theory of admissibility following the prosecutor’s

objection to the question; moreover, even if the claim was reviewable,

the defendant could not demonstrate that the court’s ruling deprived

him of a fair trial, as other testimony from D and W demonstrated that

prior to the assault, the defendant and W had told D that they were

going away for Christmas, and the defendant was permitted to present

evidence that he had preexisting plans to travel to Cape Cod.

3. The trial court did not abuse its discretion by admitting into evidence a
printout of certain text messages between the defendant and P; although

the defendant claimed that the messages were not properly authenticated because the phone from which they were sent had not been in

the sole custody of the defendant at the time that the messages were

sent, the evidence was sufficient to authenticate the messages, as P

testified that she and the defendant had been in an ongoing relationship,

that the messages were part of an ongoing conversation between them,

that the messages prompted telephone conversations between them,

which the defendant did not dispute, and that she provided images of

the messages to the police, and even if the court’s ruling was improper,

it was harmless, the defendant having acknowledged that the text messages corroborated P’s testimony, which was offered without objection.

4. The evidence was sufficient to support the defendant’s conviction of

conspiracy to commit assault in the first degree; in light of the evidence

presented and the inferences drawn therefrom, the jury reasonably could

have found beyond a reasonable doubt that the defendant and W

intended to commit the crime of assault in the first degree and agreed

with one another to commit the conduct constituting the crime, and

that one or both of them engaged in overt acts in furtherance of the

conspiracy, as the jury reasonably could have inferred that the defendant

and W had a reason to be upset with the victim and planned to retaliate

against him in the mill, there was evidence that the defendant actively

participated in the crime by joining with W to push the victim into the

hole in the floor and cover him with debris, and the defendant did not

take any measures to stop the attack or to flee the scene after W violently

attacked the victim with the baseball bat, the evidence of the defendant’s

conduct before, during and after the events at issue reflected that he

and W conspired to cause serious physical injury to the victim by means

of a dangerous instrument, and the defendant’s conduct and statements

to P after the events at issue undermined his argument that he was a

bystander during those events and, instead, reflected his consciousness

of his guilt and bolstered a finding that he had been an active participant

with W in a preplanned retaliatory event.

Argued January 29—officially released June 19, 2018

Procedural History

Substitute information charging the defendant with

the crimes of assault in the first degree, conspiracy to

commit assault in the first degree and hindering prosecution in the second degree, brought to the Superior

Court in the judicial district of Windham, geographical

area number eleven, and tried to the jury before Swords,

J.; thereafter, the court granted the defendant’s motion

for a judgment of acquittal as to the charge of hindering

prosecution in the second degree; verdict and judgment

of guilty of assault in the first degree and conspiracy

to commit assault in the first degree, from which the

defendant appealed to this court. Affirmed.

James B. Streeto, senior assistant public defender,

with whom was Edward D. Melillo, certified legal

intern, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were Anne F. Mahoney, state’s attorney, and Mark A. Stabile, supervisory

assistant state’s attorney, for the appellee (state).
Opinion

KELLER, J. The defendant, Michael J. Papineau,

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

dangerous instrument in violation of General Statutes

§ 53a-59 (a) (1), and conspiracy to commit assault in

the first degree in violation of General Statutes §§ 53a59 (a) (1) and 53a-48.1 The defendant claims (1) that

the trial court erroneously precluded his half brother

from testifying about a phone conversation that transpired between the defendant and the defendant’s former wife; (2) that the court erroneously precluded him

from presenting testimony from the defendant’s mother

that, prior to the events at issue, he planned to travel

to Massachusetts; (3) the court erroneously admitted

a printout of text messages that the state failed to

authenticate; and (4) the evidence was insufficient to

support his conviction of conspiracy to commit assault

in the first degree. We 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.

During the afternoon of December 22, 2014, the defendant and his half brother, Joshua Whittington,2 were

walking along railroad tracks in Danielson, at which

time they met up with the victim, Jason Tworzydlo. For

a period of time prior to the events at issue, the victim

had lived with the defendant. As the three men walked

together, they discussed where they would sleep that

night. The defendant and Whittington indicated to the

victim that they needed a place to spend the night, and

the victim suggested that they stay in an abandoned

textile mill that was located on Maple Street in Danielson where he recently had been staying. The defendant and Whittington agreed to stay there that night.

At approximately 3 p.m., the victim left the company

of the defendant and Whittington so that he could attend

a counseling session. Meanwhile, the defendant and

Whittington explored the mill without him.

At approximately 6 p.m., the three men reunited and,

by maneuvering around a fence that surrounded the

mill and crawling through a window, they gained access

to the inside of the mill. The men carried some of their

possessions with them. Whittington was carrying a

metal baseball bat. It was very dark inside of the mill;

there were no working lights, and only a few light

sources illuminated the mill’s interior through openings

in the walls. The victim used a flashlight. The victim

showed the defendant and Whittington a dry location

in the mill where he had slept previously. The defendant

and Whittington, however, expressed their opinion that

the location did not provide ideal sleeping conditions

for all of them, so they led the victim to another location

inside of the mill, in an area of the mill that used to
house a gym. The defendant and Whittington said that

this location, which they had discovered earlier that

day, was more suitable to their needs, and the men

agreed to spend the night there.

Shortly thereafter, the victim turned away from the

defendant and Whittington, at which time Whittington

struck him in the head with his baseball bat.3 He did

so with such force that the victim felt the bat ‘‘bounce

off [his] skull’’ and ‘‘heard the ringing of metal . . . .’’

Whittington struck the victim several additional times.

When the victim asked what was happening, he was

told that he had stolen money ‘‘from them’’ on a prior

occasion. During some or all of the attack, the defendant

used the light on a cell phone to illuminate the victim.

The victim attempted to flee from the defendant and

Whittington, but they pushed him into another part of

the mill. The victim was stabbed with a sharp object.

Ultimately, the defendant and Whittington pushed the

victim into a large hole in the floor. As they stood over

the victim, he played dead for a brief time. He saw

the light of a flashlight from above and overheard the

defendant and Whittington as they discussed the

amount of blood he had lost, questioned whether he

was still alive and breathing, and expressed their belief

that he would be dead by the next morning. Whittington

stated that he wanted to throw a brick at the victim’s

head to ensure that he was dead, but he did not do so.

The defendant and Whittington covered the victim’s

body with debris, including tires and tables, before they

abandoned the victim in the mill.

When he no longer heard voices or footsteps, the

victim, fearing for his survival, crawled out of the hole

into which he had been pushed, exited the mill, and

made his way to a nearby residence. Barely able to

stand, the victim knocked on the front door to summon

help. The occupant of the residence, Michael Pepe,

found the victim in a dire condition; the victim’s body

and clothing were soaked in blood. Pepe rendered assistance by wrapping the victim in bedsheets and called

911.

Police and emergency medical personnel responded

to the scene. The victim, who was in shock, sustained

a variety of significant physical injuries, some of which

were life-threatening. The victim’s injuries included, but

were not limited to, stab wounds, deformities to his

face and jaw, a hematoma under his skull, a hematoma

on his neck, a collapsed internal jugular vein, multiple

bone fractures, and a severe neck laceration. Initially,

the defendant was transported to Day Kimball Hospital

in Putnam. In light of the severity of the victim’s numerous injuries and, in particular, a life-threatening neck

wound, Joel Stephen Bogner, an emergency department

physician, determined that he should be transported to

the trauma center at UMass Memorial Medical Center in

Worcester, Massachusetts, for further treatment. With
further treatment, the victim survived the ordeal.

Immediately following the incident, the victim told

the police that he was attacked by unknown assailants

outside of the mill. The following day, on December

23, 2014, the victim identified the defendant and Whittington as his assailants, and indicated to the police that

he was afraid that they would retaliate against him.

During their investigation, the police spoke with the

defendant, who acknowledged having spent time with

the victim on the day of the assault but denied that he or

Whittington had played any role in the victim’s assault.

During the police investigation, Whittington also denied

any involvement in the victim’s assault. When asked by

the police where he kept his clothing, the defendant

responded that most of his and Whittington’s clothes

had been stolen. After meeting with the police on

December 23, 2014, the defendant had a telephone conversation with his former wife, Chelsea Papineau. During the conversation, he stated that he and Whittington

had assaulted the victim in the mill, but that he and

Whittington believed that they had ‘‘cleared their

names’’ with the police. This telephone conversation

took place while the defendant was traveling with Whittington. On December 25, 2014, the defendant sent Chelsea Papineau a text message in which he asked for the

telephone number of a friend of his, Corby Julian, who

lived in Ohio. During a telephone conversation with

Chelsea Papineau later that day, the defendant indicated that he intended to leave the state for a five year

period because, to his understanding, that was how

long it would take for the statute of limitations for the

crime of attempted murder to expire. He stated that he

wanted Julian’s telephone number because he wanted

to find out if Julian would permit him to stay with him.

After Chelsea Papineau complied with the defendant’s

request, he instructed her to delete her text messages.

Several days later, on January 2, 2015, the police

executed arrest warrants on the defendant and Whittington in Falmouth, Massachusetts. At the time of his

arrest, the defendant was wearing a pair of jeans that

was contaminated with the victim’s blood. Additional

facts will be set forth as necessary.

I

First, the defendant claims that the court erroneously

precluded Whittington’s testimony about a phone conversation that had transpired between the defendant

and Chelsea Papineau. We disagree.

The following additional facts provide context for

the defendant’s claim. During the state’s case-in-chief,

Chelsea Papineau testified that, on December 23, 2014,

she had planned for the defendant, who is her former

husband and the father of her two children, to visit

with his children at his mother’s house. At or about 3

p.m., the defendant sent Chelsea Papineau a text mes-
sage in which he stated that he was unable to visit with

his children. Chelsea Papineau testified that, at or about

5:30 p.m., she called the defendant to make other visiting arrangements. The following examination by the

prosecutor followed:

‘‘Q. And what was his response?

‘‘A. He said that he wouldn’t be able to see them; he

didn’t know when he’d be able to see them again. He

and his brother were on their way to his brother’s

father’s house in Glastonbury, Connecticut.

‘‘Q. What else did you talk about?

‘‘A. He asked me if the police had spoken to me yet,

and I told him no.

‘‘Q. What did he say to you then?

‘‘A. After I responded with no, he told me he needed

to tell me something. He didn’t know when he’d be able

to see us again.

‘‘Q. Exactly what did he say?

‘‘A. He told me that the previous night him and his

brother had met [the victim] . . . and that they went

to the mill and just lost it. He told me that they had

beat him over the head and that they had left him in

the mill.

‘‘Q. What was your response?

‘‘A. I really didn’t know how to respond at first. I

asked [about the identity of the victim]. And he told

me Jason Tworzydlo.

‘‘Q. Did you know [the victim]?

‘‘A. I did.

‘‘Q. How did you know him?

‘‘A. He lived with us for a short time.

‘‘Q. And did he indicate that he was part of this

assault?

‘‘A. Yes.

‘‘Q. How did he indicate that?

‘‘A. He just kept saying we.

‘‘Q. At any point did he say Josh and I?

‘‘A. Yes.

‘‘Q. Was there any discussion about the defendant

. . . having spoken to the police that day?

‘‘A. Yes. He said that he and, I believe, him and his

brother had spoken with the police and that they

believed that they had cleared their names.

‘‘Q. Did . . . he express any other concerns . . . ?

‘‘A. He said that they were leaving anyway.’’
Thereafter, Chelsea Papineau testified that, on the

following day, she received text messages from the

defendant in which he asked her for the telephone number of a friend, Julian, who lived in Ohio, because he

needed to talk with him. She testified that this led to

another telephone conversation with the defendant.

Chelsea Papineau testified that ‘‘[h]e told me that in

the past few months [Julian] had offered him a place

to stay if he ever needed a place to stay. And he wanted

to get a hold of [Julian] to see if that was still available

for him.’’ Chelsea Papineau testified that the defendant

expressed his belief that he would be charged with

attempted murder and that he could evade the charge if

he stayed away from Connecticut for five years. Chelsea

Papineau testified that after she provided the defendant

with Julian’s telephone number, he instructed her to

delete her text messages. Instead, she provided them

to the police.

During the defendant’s case-in-chief, Whittington testified in relevant part that on the afternoon of December

23, 2014, he and the defendant were traveling by car to

New London. Whittington testified that he overheard

a telephone conversation between the defendant and

Chelsea Papineau. The present claim is based on two

rulings made by the court during Whittington’s testimony concerning that telephone conversation.

First, defense counsel asked Whittington, ‘‘do you

recall what they said—what he said?’’ The prosecutor

objected to the inquiry on the ground that it called for

hearsay. Defense counsel stated that the inquiry ‘‘goes

to impeach [Chelsea] Papineau’’ and that it ‘‘goes to

[the defendant’s] state of mind, as well.’’ The court

sustained the objection.

Second, defense counsel asked Whittington if the

defendant said anything to Chelsea Papineau that

‘‘implicated him . . . in attacking [the victim]?’’ The

prosecutor objected on the basis of the hearsay ground

previously set forth, and the court sustained the

objection.

The following examination of Whittington by defense

counsel then occurred:

‘‘Q. Okay. How were . . . around that time period

. . . [Chelsea] Papineau and [the defendant] getting

along?

‘‘A. They were not getting along at all. She was actually trying to get him to sign over his rights to his kids

to her.

‘‘Q. And were they communicating very well? . . .

‘‘A. No. They were fighting a lot. They had just gotten

divorced and . . . she gets mad a lot. They don’t get

along even when they were together very much.

‘‘Q. All right. She . . . didn’t like [the defendant] at
all, did she?

‘‘A. No.

‘‘Q. Was there ever any discussion on . . . the drive

down between you and anybody about you and [the

defendant] going to Ohio?

‘‘A. No, there was not.

‘‘Q. And . . . in the phone conversation that [the

defendant] had, did any of it bother you or concern you?

‘‘A. No, it did not.

‘‘Q. Did it seem just like a normal conversation about

what to do with children?

‘‘A. For the most part, yes.’’

Additionally, Whittington testified that, on December

23, 2014, he and the defendant were traveling to New

London to meet with Whittington’s father. He testified

that, in accordance with plans made prior to the events

at issue, he and the defendant traveled with and spent

Christmas with Whittington’s father in Cape Cod, Massachusetts.

The defendant claims that the court’s rulings in

response to the state’s objections were erroneous. Relying on the theories of admissibility that he raised before

the trial court, he argues that Whittington’s testimony

in response to defense counsel’s inquiry would not have

constituted hearsay because it was not offered for its

truth, but for the purpose of impeaching Chelsea Papineau’s testimony concerning what the defendant had

stated to her. Also, the defendant argues that Whittington’s testimony would not have constituted hearsay

because it was offered not for its truth, but as ‘‘circumstantial evidence of [his] innocent state of mind by

demonstrating to the jury that he did not confess to his

involvement in a crime to Chelsea Papineau.’’

In addition to raising these preserved evidentiary

claims, the defendant argues that ‘‘[c]ertain other subclaims, specifically, the right to present a defense . . .

and the residual hearsay exception . . . were not referenced [at the time of the court’s ruling] but are raised on

appeal. These theories are part of the same legal claim.’’

Arguing that Whittington’s testimony would have

been admissible under the residual exception to the

hearsay rule, the defendant states in relevant part: ‘‘In

this case, the use of the defendant’s statements was

reasonably necessary. Whittington was privy to the telephone conversation and testifying against his own interests; his testimony was both critical to the defendant’s

defense, and the only available source of contradiction

of Chelsea Papineau’s critical testimony [concerning

her phone conversation with the defendant]. Further,

it was trustworthy. . . . The defendant’s statements

were [made] in the context of a phone call the day after

the assault. . . . Whittington was testifying against his
own interests . . . . He was available for cross-examination.’’ (Citations omitted.)

With respect to his right to present a defense argument, the defendant states in relevant part: ‘‘In this

case, the defendant’s theory of the case was that he

had gone to the abandoned mill with [the victim] and

Whittington, but he had not participated in the assault.

Chelsea Papineau’s testimony that the defendant confessed to participating in the assault was the only clear,

certain and unequivocal evidence of his participation.

Whittington’s testimony refuting that testimony was

critical to the defense theory of the case. As such, the

defendant’s constitutional right to present a defense

was implicated by its exclusion.’’ The defendant seeks

review of the right to present a defense claim under

State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823

(1989).4

We will address in turn each of the four subclaims that

constitute the present claim. We begin by addressing

the defendant’s claim under the residual exception to

the hearsay rule. We decline to review this unpreserved

evidentiary claim. ‘‘An appellant who challenges on

appeal a trial court’s exclusion of evidence is limited

to the theory of admissibility that was raised before

and ruled upon by the trial court. A court cannot be said

to have refused improperly to admit evidence during a

trial if the specific grounds for admission on which the

proponent relies never were presented to the court

when the evidence was offered.’’ (Internal quotation

marks omitted.) State v. Polynice, 164 Conn. App. 390,

401, 133 A.3d 952, cert. denied, 321 Conn. 914, 136 A.3d

1274 (2016). We recognize that, during the heat of trial,

it is typical for counsel to set forth objections and

responses thereto that may not be as complete or well

researched as the arguments set forth in an appellate

brief, but, at the very least, the arguments raised before

the trial court must sufficiently alert the court to their

legal significance. As our Supreme Court has observed,

‘‘in response to a hearsay objection, although a party

need not explicitly identify the hearsay exception that

would apply, he or she must at least reference the substance of the applicable exception in order to preserve

the claim.’’ State v. Santana, 313 Conn. 461, 468, 97

A.3d 963 (2014).

Here, defense counsel responded to the state’s hearsay objection on the grounds that defense counsel’s

inquiries would, permissibly, impeach Chelsea Papineau or demonstrate the defendant’s state of mind.

Defense counsel did not ask the court to rule on whether

the inquiries were proper under the residual hearsay

exception or make any arguments concerning the trustworthiness or necessity of Whittington’s testimony concerning the telephone conversation. Likewise, defense

counsel did not raise any arguments concerning the

defendant’s right to present a defense. Accordingly, the
claim based on the residual clause of the hearsay rule

is unpreserved. Defense counsel did not assert such

ground before the trial court.

The defendant’s other evidentiary claims based on

impeachment and state of mind are preserved, yet they

are not reviewable on the record before us. The defendant goes to great length in his brief to this court to

emphasize the significance of how Whittington possibly

may have testified in response to defense counsel’s

inquiries. He argues that Chelsea Papineau’s testimony

concerning the defendant’s statements to her was highly

damaging to the defendant’s case. Additionally, he

argues: ‘‘Whittington’s . . . testimony concerning this

telephone call was of critical importance. He was present in the car with the defendant while he spoke on

the phone with Chelsea Papineau; in fact, it was [Whittington’s] cell phone. His testimony would have directly

refuted her testimony. It would have impeached Chelsea Papineau. It would have established [that] the telephone call was innocuous, not inculpatory. Without

Whittington’s testimony, Chelsea Papineau’s characterization of the phone conversation was left to stand

uncontested, amounting, essentially, to a clear and positive corroboration of the state’s version of the assault,

in which the defendant played an active part . . . .’’

The defendant argues that it was critical for the defense

that the court permit Whittington to provide detailed

information about the conversation he overheard

because ‘‘Whittington might well have been able to

undercut the damning quality of [Chelsea Papineau’s]

testimony had he been allowed to testify. Had Whittington been allowed to testify . . . it would have

explained, refuted, or at a minimum, undercut Chelsea

Papineau’s testimony.’’

The defendant’s arguments are flawed because they

are based on speculation concerning how Whittington

may have replied to defense counsel’s inquiries. The

record does not contain the substance of the excluded

testimony, and, thus, leaves us without a basis on which

to evaluate its relevance. ‘‘In Connecticut, our appellate

courts do not presume error on the part of the trial

court. . . . Rather, the burden rests with the appellant

to demonstrate reversible error.’’ (Internal quotation

marks omitted.) Pettiford v. State, 179 Conn. App. 246,

260–61, 178 A.3d 1126 (2017), cert. denied, 328 Conn.

919, 180 A.3d 964 (2018). The defendant bears the burden of providing this court with an adequate record to

review his claims. Practice Book § 61-10. The present

claim depends on a record that reflects the substance

of Whittington’s testimony concerning the conversation

that he allegedly overheard. This is necessary not

merely to determine whether the court properly

excluded the testimony, but whether the court’s ruling

was harmful to the defense.

Although the defendant urges us to conclude that the
excluded testimony was not hearsay and was highly

relevant to the defense, the record does not provide an

adequate foundation to support such a determination.

The defendant easily could have created an adequate

record by asking the court to hear Whittington’s

responses to the questions outside of the presence of

the jury. This, however, did not occur. The defendant

is unable to demonstrate reversible error on the basis

of speculation as to how a witness might have testified

at trial because ‘‘speculation and conjecture . . . have

no place in appellate review.’’ (Internal quotation marks

omitted.) State v. Joseph, 174 Conn. App. 260, 274, 165

A.3d 241, cert. denied, 327 Conn. 912, 170 A.3d 680

(2017).

The same concerns apply to the defendant’s right to

present a defense claim. Under Golding, the defendant

bears the burden of demonstrating that the court’s

exclusion of Whittington’s testimony deprived him of

a fair trial. Even if we assume, arguendo, that the claim

is of constitutional magnitude, it nonetheless fails under

Golding’s first prong; see footnote 4 of this opinion;

because the record is inadequate to review it. Absent

a foundation in the record to reflect the substance of

the excluded testimony, we are unable to conclude that

the court deprived the defendant of a fair trial.

Alternatively, we observe that, even if we were to

presume that the court’s evidentiary rulings were erroneous and that Whittington would have testified as the

defendant claims on appeal, the record before us leads

us to conclude that the defendant would be unable to

sustain his burden of demonstrating that he was harmed

by them.5 The defendant argues that he should have

been permitted to impeach Chelsea Papineau and to

demonstrate his innocent state of mind by eliciting testimony from Whittington that he did not hear the defendant make any incriminatory statements concerning the

events in the mill and that nothing about the defendant’s

conversation reflected a guilty state of mind. Yet, as

is reflected in our discussion of the court’s rulings,

Whittington’s testimony unmistakably contradicted

Chelsea Papineau’s testimony with respect to the telephone conversation that she had with the defendant.

In contrast with Chelsea Papineau’s testimony that the

defendant admitted that he and Whittington perpetuated a brutal attack that led him to believe he could be

charged with attempted murder and led him to make

plans to leave the state immediately, Whittington testified that the defendant did not discuss traveling to Ohio.

He testified, as well, that nothing about the telephone

conversation bothered or concerned him, and he agreed

that the subject of the conversation was ‘‘normal’’ topics

involving the defendant’s children. Thus, based on what

we may glean from the defendant’s arguments on appeal

and the record he has provided this court for review,

it appears that the rulings were harmless because the

excluded testimony would have been substantially
cumulative of Whittington’s trial testimony.

Moreover, in connection with his claim that the

court’s rulings infringed on his right to present a

defense, one of our important considerations as a

reviewing court is not only the nature of the excluded

inquiry, but also whether it was adequately covered by

other questions that were allowed.6 For the reasons we

have discussed, it appears from the defendant’s arguments and the record that defense counsel unambiguously elicited from Whittington that, during the

telephone call with Chelsea Papineau, the defendant

did not make any statements of an incriminating nature.

Moreover, Whittington testified that the defendant was

traveling to Massachusetts with him in accordance with

holiday travel plans that existed prior to the events at

issue. Unaided by a proffer that would have provided

this court with a record reflecting what further details

Whittington would have provided if he had been permitted to do so, the defendant merely argues on appeal

that ‘‘[t]he details of this exchange [between the defendant and Chelsea Papineau] were critical . . . .’’ The

defendant does not demonstrate how further testimony

from Whittington would have helped the defense. In

the absence of such further details and because the

defendant was permitted to elicit testimony from Whittington that reflected the innocent tone and subject of

the telephone conversation, thereby impeaching Chelsea Papineau, it is highly unlikely that the excluded

inquiry infringed on his right to present a defense.

II

Next, the defendant claims that the court erroneously

precluded him from presenting testimony from his

mother that, prior to the events at issue, he planned to

travel to Massachusetts. We disagree.

The following additional facts are relevant to this

claim. The defense presented testimony from Denise

Papineau, the mother of the defendant and Whittington.

She testified that she was close with both of her sons.

During Denise Papineau’s direct examination by

defense counsel, the following occurred:

‘‘[Defense Counsel]: . . . I want to turn your attention to . . . December 22, 2014, that afternoon, did you

see the two of them that afternoon?

‘‘[The Witness]: Yes. They came over in the afternoon

before I went to work. They wanted to let me know

that they were going away for Christmas and . . . I

wasn’t gonna see them for Christmas.

‘‘[Defense Counsel]: And was . . . there . . . any

other reason for letting you know about that?

‘‘[The Witness]: So I could make arrangements to see

my grandchildren.

‘‘[Defense Counsel]: And . . . who’s the mother of

the grandchildren?
‘‘[The Witness]: Chelsea [Papineau] was [the defendant’s] wife and Lexi, which was [Whittington’s] girlfriend.

‘‘[Defense Counsel]: And . . . did [Whittington] and

. . . [the defendant] talk about . . . what they . . .

were gonna do?

‘‘[The Witness]: They were supposed to go with—

‘‘[The Prosecutor]: Objection.

‘‘[The Witness]: —[Whittington’s] dad to—

‘‘The Court: Wait.

‘‘[The Witness]: —Cape Cod.

‘‘The Court: Wait, wait, wait. There’s an objection, so

you just hold on—

‘‘[The Witness]: I’m sorry.

‘‘The Court: —for a minute.

‘‘[The Prosecutor]: Hearsay.

‘‘The Court: Okay. What was the question, [defense

counsel]?

‘‘[Defense Counsel]: I asked what . . . their plans

were for Christmas.

‘‘The Court: Okay. I’m gonna sustain the objection.’’

Without making any further argument regarding

admissibility, the state’s objection, or the court’s ruling,

defense counsel proceeded in his examination of Denise

Papineau. On appeal, the defendant argues that the

court improperly precluded Denise Papineau from testifying that the defendant and Whittington had preexisting plans to vacation in Cape Cod. The defendant

argues that the testimony fell within the state of mind

and residual exceptions to the hearsay rule. See Conn.

Code Evid. §§ 8-3 (4) and 8-9. Also, the defendant argues

that the court’s ruling represented ‘‘a critical blow to

the defense,’’ as it desperately needed to refute the

state’s consciousness of guilt evidence, which included

Chelsea Papineau’s testimony that the defendant

intended on fleeing the state and evidence that the

defendant was arrested in Massachusetts.

The defendant argues that he preserved this evidentiary claim by means of ‘‘the actual proffer’’ he made

at the time of trial.7 Alternatively, the defendant argues

that the claim is of constitutional magnitude because

it implicates ‘‘the defendant’s right to present a defense

and to refute the evidence against him.’’ On this basis,

he argues that the claim, if not preserved, is reviewable

under the doctrine set forth in State v. Golding, supra,

213 Conn. 239–40,8 and that the court’s rulings deprived

him of a fair trial. Also, the defendant argues that we

should grant him relief under the plain error doctrine.

See Practice Book § 60-5.
Before considering issues of reviewability related to

this claim, we address the state’s contention that the

claim is undermined by the fact that Denise Papineau’s

testimony concerning the defendant’s plan to travel to

Massachusetts was, in fact, part of the evidence before

the jury. The state correctly observes that although

the court sustained the prosecutor’s objection, Denise

Papineau answered defense counsel’s inquiry before

the court ruled on the objection, the prosecutor did not

move to strike the testimony after the court ruled in

its favor, and the court did not sua sponte order that

the testimony be stricken. The state argues that, in light

of the court’s preliminary9 and final instructions10 to the

jury, the jury would have been left with the impression

that her answer was part of the evidence. The defendant

argues that, guided by the court’s preliminary instructions, the jury would have been left with the impression

that the answer was not part of the evidence.

Relying on this court’s analysis in State v. Holley, 160

Conn. App. 578, 626–30, 127 A.3d 221 (2015), rev’d, 327

Conn. 576, 175 A.3d 514 (2018), and binding authority

cited therein, which includes State v. Lewis, 303 Conn.

760, 779–80, 36 A.3d 670 (2012), and Hackenson v.

Waterbury, 124 Conn. 679, 684, 2 A.2d 215 (1938), we

conclude that Denise Papineau’s testimony concerning

the defendant’s plan to travel to Cape Cod was not part

of the evidence before the jury. As the state argues, the

court’s preliminary instructions reflect that any testimony that is not stricken by the court is part of the

evidence. Yet, the court’s instructions do not specifically address the situation that occurred here. The

record reflects that the prosecutor timely objected to

defense counsel’s inquiry. The witness, however, continued to testify despite the fact that the objection was

pending, and the court clearly had instructed her to

‘‘wait’’ before continuing to answer. The witness failed

to comply with the court’s instruction, leading the court,

once again, to instruct the witness to ‘‘[w]ait, wait,

wait.’’ The court stated that an objection was pending.

Then, in the jury’s presence, the court ruled in favor of

the state. In light of these unique circumstances, we

conclude that the jury would have believed that Denise

Papineau’s rushed response to defense counsel’s

inquiry was improper and, thus, that it was not part of

the evidence.11

Next, we consider whether the evidentiary claim

raised on appeal was adequately preserved. We readily

conclude that it was not. The defendant neither made

a proffer nor advanced any theory of admissibility to

the trial court following the prosecutor’s objection on

hearsay grounds. Certainly, defense counsel’s silence

did not alert the court to the present claim. ‘‘It is well

settled that this court will not entertain claims of evidentiary error that were not distinctly raised before the

trial court.’’ Wilderman v. Powers, 110 Conn. App. 819,
828, 956 A.2d 613 (2008); see also State v. Polynice,

supra, 164 Conn. App. 401 (appellant limited to theory of

admissibility raised before and ruled on by trial court).

Here, the defendant did not advance any theory of

admissibility before the trial court.

We turn now to the defendant’s right to present a

defense claim, for which he seeks review under Golding. See footnote 4 of this opinion. The defendant’s

recourse to Golding fails for several reasons. First, the

claim is not reviewable under Golding’s second prong,

which requires that the claim be of constitutional magnitude and that it allege the violation of a fundamental

right. Phrasing the claim in terms of his right to present

a defense represents the defendant’s attempt to clothe

an unpreserved evidentiary claim in constitutional garb.

‘‘Regardless of how the defendant has framed the issue,

he cannot clothe an ordinary evidentiary issue in constitutional garb to obtain appellate review.’’ (Internal quotation marks omitted.) State v. Warren, 83 Conn. App.

446, 452, 850 A.2d 1086, cert. denied, 271 Conn. 907,

859 A.2d 567 (2004). At trial, the defendant did not

advance any theories under which statements to Denise

Papineau about his travel plans should have been admitted. Here, he argues that the court’s ruling precluding

such testimony infringed on his right to refute the state’s

consciousness of guilt evidence. ‘‘It has . . . been

stated numerous times that consciousness of guilt

issues are not constitutional and, therefore, are not

subject to review under [Golding].’’ (Internal quotation

marks omitted.) State v. Guzman, 110 Conn. App. 263,

270, 955 A.2d 72 (2008), cert. denied, 290 Conn. 915,

965 A.2d 555 (2009); see also State v. Lugo, 266 Conn.

674, 691–92 and 692 n.17, 835 A.2d 451 (2003) (claim

that trial court improperly declined to allow defendant

to present evidence to refute state’s consciousness of

guilt evidence deemed to be ‘‘purely evidentiary’’ and

not subject to constitutional analysis).

Even if the claim was reviewable under Golding, the

claim would fail under Golding’s third prong because

the defendant is unable to demonstrate that he was

deprived of a fair trial. As we discussed in part I of this

opinion, an important consideration in an evaluation of

whether a trial court’s decision not to admit evidence

infringed on a defendant’s right to present a defense is

whether the defense was permitted to cover the field

of inquiry by other means. See footnote 6 of this opinion.

‘‘A defendant may not successfully prevail on a claim

of a violation of his right to present a defense if . . .

he adequately has been permitted to present the defense

by different means.’’ State v. Santana, supra, 313 Conn.

470; see also State v. Kelly, 256 Conn. 23, 76, 770 A.2d 908

(2001) (no violation of constitutional right to present

defense where subject matter of precluded testimony

was presented through other witnesses).

According to the defendant’s theory, Denise Papi-
neau’s testimony concerning the defendant’s plans to

travel to Cape Cod for Christmas was relevant to rebut

the inference that he fled to Massachusetts, where he

later was arrested, because he was conscious that he

was criminally liable for his role in the victim’s assault.12

The defendant was permitted to present evidence that

rebutted this inference. Specifically, defense counsel

was permitted to elicit testimony from Denise Papineau

that during the afternoon of December 22, 2014, prior

to the assault, the defendant and Whittington visited

with her and told her that they were ‘‘going away for

Christmas’’ and that she would not see them on Christmas. Additionally, Whittington testified that between 3

p.m. and 6 p.m. on December 22, 2014, he and the

defendant visited with Denise Papineau. He testified:

‘‘We discussed going to my dad’s and then to Cape Cod

to my cousin’s for Christmas vacation.’’ Whittington

testified that this was something that he did ‘‘almost

every year’’ and that there was ‘‘a discussion about

what’s gonna happen with the grandkids.’’

Whittington’s father, David Whittington, testified that

spending Christmas in Cape Cod with the defendant and

Joshua Whittington generally was an annual tradition.

David Whittington testified that the ‘‘plan’’ was for the

defendant and Joshua Whittington to be at his house

in New London on December 23, 2014, and they were

there by the time that he finished work on that day.

David Whittington testified that, that evening, his wife

transported him, the defendant, and Joshua Whittington

to her residence in Glastonbury. Thereafter, the defendant and Whittington traveled with David Whittington

and his wife to visit with relatives on Cape Cod. David

Whittington testified that while the defendant and

Joshua Whittington were at his home on December 23,

2014, he invited them to live there with the hope that

they could gain employment and ‘‘get a life.’’ He testified

that, in his view, they enthusiastically accepted that invitation.

The foregoing discussion reflects that the defendant

was permitted to present evidence that he had preexisting plans to travel to Cape Cod by means other than

the narrow inquiry that was excluded by the trial court.

Thus, the defendant is unable to demonstrate that the

court violated his right to a fair trial and, thus, his claim

fails under Golding’s third prong.13

III

Next, the defendant claims that the court erroneously

admitted a printout of text messages that the state failed

to authenticate. We disagree.

The following additional facts are relevant to this

claim. As we have discussed previously in this opinion,

Chelsea Papineau testified that, at or about 3 p.m. on

December 23, 2014, the defendant sent her a text message in which he indicated that he would not be able
to visit with his children at his mother’s house that day.

At or about 5:10 p.m. that day, Chelsea Papineau called

the defendant, and during their conversation, the defendant told her that he did not know when he would be

able to see her or the children again, that he and his

brother had assaulted the victim in the mill, and that

he and his brother had spoken with the police about

the incident. Chelsea Papineau testified that although

the defendant believed that they had ‘‘cleared their

names’’ with the police, ‘‘they were leaving anyway.’’

Chelsea Papineau testified that the next day, December 24, 2014, the defendant sent her another text message in which he asked her for the phone number of

their friend, Julian, who lived in Ohio. Chelsea Papineau

said that, following this request, she spoke to the defendant on the telephone. The defendant told her that

Julian recently had offered him a place to stay if he

ever needed a place to stay and that he wanted to see

if that invitation was still open to him. Chelsea Papineau

testified that the defendant expressed his belief that

there was a five year statute of limitation for the crime

of attempted murder and, therefore, he believed that

he needed to leave Connecticut for at least five years.

Chelsea Papineau testified that the defendant asked her

to delete her text messages. Instead, setting aside her

initial belief that ‘‘it was a joke,’’ she brought the text

messages to the attention of the state police.

At the prosecutor’s request, the court marked a four

page document as an exhibit for identification. It suffices to observe that the content of the messages is

consistent with Chelsea Papineau’s testimony about

them.14 The following examination of Chelsea Papineau

by the prosecutor followed:

‘‘Q. . . . I’m showing you a four page document

. . . . I’d ask you to look through those pages at this

time; just look through them, and then tell us whether

or not you recognize them.

‘‘A. Yes, I do.

‘‘Q. What do you recognize them to be?

‘‘A. This is the phone conversation, the text conversation from the 23rd and the 24th between [the defendant]

and myself.

‘‘Q. And how were those created? Do you recall?

‘‘A. I took a screenshot of my cell phone—

‘‘Q. And the police . . . took them.

‘‘A. —and then I e-mailed them.

‘‘Q. So, those are the text messages between you and

the defendant from the 23rd and the 24th of December

of 2014?

‘‘A. Yes.’’

When the prosecutor offered the document to be
admitted as a full exhibit, defense counsel objected on

three grounds, namely, that the document constituted

hearsay, the document bolstered the testimony of Chelsea Papineau because she already had testified about

its content and her conversations with the defendant,

and the document was not authenticated. With regard

to the latter ground, defense counsel stated that there

was no way to verify that the messages actually came

from the defendant’s telephone. The prosecutor replied:

‘‘She’s established the authenticity. These are part of a

series of conversations of the two days, both telephonic

and text. Documents and electronic evidence can corroborate a witness’ testimony and she has authenticated [them].’’

The court overruled defense counsel’s objection, stating: ‘‘This witness has adequately authenticated those

text messages as coming from the defendant. And, of

course, they’re admissible as statements of the

defendant.’’

During Chelsea Papineau’s cross-examination by

defense counsel, the following examination occurred:

‘‘Q. . . . Back on December . . . 22nd, 23rd, 24th,

did [the defendant] have a telephone?

‘‘A. No.

‘‘Q. So, he was calling you on somebody else’s

telephone?

‘‘A. His brother’s.

‘‘Q. And those texts came from his brother’s phone?

‘‘A. Yes.

‘‘Q. So, you . . . have no idea if he entered those

texts or not, do you?

‘‘A. I’m very positive it was him, but no.

‘‘Q. You . . . weren’t there when . . . it was being

done. Is that correct?

‘‘A. No, I didn’t see him physically do it. No.

‘‘Q. All right. And it’s his brother’s telephone?

‘‘A. Yes.’’

During redirect examination of Chelsea Papineau by

the prosecutor, she testified that from the time that she

divorced the defendant in August, 2014, until the time

of these text messages in December, 2014, she took

steps to keep the defendant involved in the lives of

their children. She testified that the text messages that

she described were interrelated with telephone conversations that she had with the defendant, and agreed

that the text messages and telephone conversations

were part of a single string of conversations between

her and the defendant.

Echoing the arguments that he raised before the trial
court, the defendant argues before this court that ‘‘[the]

text messages, purportedly between the defendant and

Chelsea Papineau . . . were not properly authenticated because the phone they were sent from was not

in the sole custody of the defendant at the time they

were made, and the messages in question cannot be

said with sufficient certainty to have been made by

the defendant.’’

‘‘To the extent a trial court’s admission of evidence

is based on an interpretation of the Code of Evidence,

our standard of review is plenary. For example, whether

a challenged statement properly may be classified as

hearsay and whether a hearsay exception properly is

identified are legal questions demanding plenary

review. They require determinations about which reasonable minds may not differ; there is no judgment call

by the trial court, and the trial court has no discretion

to admit hearsay in the absence of a provision providing

for its admissibility. . . .

‘‘We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion. . . . In other words,

only after a trial court has made the legal determination

that a particular statement is or is not hearsay, or is

subject to a hearsay exception, is it vested with the

discretion to admit or to bar the evidence based upon

relevancy, prejudice, or other legally appropriate

grounds related to the rule of evidence under which

admission is being sought. For example, whether a

statement is truly spontaneous as to fall within the

spontaneous utterance exception will be reviewed with

the utmost deference to the trial court’s determination.

Similarly, appellate courts will defer to the trial court’s

determinations on issues dictated by the exercise of

discretion, fact finding, or credibility assessments.’’

(Citations omitted; internal quotation marks omitted.)

State v. Saucier, 283 Conn. 207, 218–19, 926 A.2d 633

(2007).

‘‘It is axiomatic that [t]he trial court’s ruling on the

admissibility of evidence is entitled to great deference.

. . . In this regard, the trial court is vested with wide

discretion in determining the admissibility of evidence

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

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

of discretion, every reasonable presumption should be

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

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

abuse of discretion. . . . Even when a trial court’s evidentiary ruling is deemed to be improper, we must

determine whether that ruling was so harmful as to

require a new trial. . . . In other words, an evidentiary

ruling will result in a new trial only if the ruling was

both wrong and harmful. . . .
‘‘Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court.

Conn. Code Evid. § 1-3 (a). The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the

offered evidence is what its proponent claims it to be.

Conn. Code Evid. § 9-1 (a). The official commentary to

§ 9-1 (a) of the Code of Evidence provides in relevant

part: The requirement of authentication applies to all

types of evidence, including writings, sound recordings,

electronically stored information, real evidence such

as a weapon used in the commission of a crime, demonstrative evidence such as a photograph depicting an

accident scene, and the like. . . . The category of evidence known as electronically stored information can

take various forms. It includes, by way of example only,

e-mails, Internet website postings, text messages and

chat room content, computer stored records and data,

and computer generated or enhanced animations and

simulations. As with any other form of evidence, a party

may use any appropriate method, or combination of

methods . . . or any other proof to demonstrate that

the proffer is what the proponent claims it to be, to

authenticate any particular item of electronically stored

information. . . .

‘‘It is well established that [a]uthentication is . . .

a necessary preliminary to the introduction of most

writings in evidence . . . . In general, a writing may

be authenticated by a number of methods, including

direct testimony or circumstantial evidence. . . .

‘‘Both courts and commentators have noted that the

showing of authenticity is not on a par with the more

technical evidentiary rules that govern admissibility,

such as hearsay exceptions, competency and privilege.

. . . Rather, there need only be a prima facie showing

of authenticity to the court. . . . Once a prima facie

showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the

jury, which will ultimately determine its authenticity.

. . .

‘‘[T]he bar for authentication of evidence is not particularly high. . . . [T]he proponent need not rule out all

possibilities inconsistent with authenticity, or . . .

prove beyond any doubt that the evidence is what it

purports to be . . . . In addition, [a]n electronic document may . . . be authenticated by traditional means

such as direct testimony of the purported author or

circumstantial evidence of distinctive characteristics in

the document that identify the author. . . .

‘‘Among the examples of methods of authenticating

evidence set forth in the official commentary to § 9-1

(a) of the Code of Evidence is that [a] witness with

personal knowledge may testify that the offered evidence is what its proponent claims it to be, and [t]he
distinctive characteristics of an object, writing or other

communication, when considered in conjunction with

the surrounding circumstances, may provide sufficient

circumstantial evidence of authenticity. Conn. Code

Evid. § 9-1 (a), commentary. An unsigned document

may be authenticated by any number of circumstances,

including its own distinctive characteristics such as its

contents and mode of expression, as well as the circumstances and context in which it was found. C. Tait & E.

Prescott, Connecticut Evidence (5th Ed. 2014) § 9.2.3.

‘‘This court has observed: The need for authentication

arises [in the context of electronic messages from social

networking websites] because an electronic communication, such as a Facebook message, an e-mail or a cell

phone text message, could be generated by someone

other than the named sender. This is true even with

respect to accounts requiring a unique user name and

password, given that account holders frequently remain

logged in to their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise

by hackers. Consequently, proving only that a message

came from a particular account, without further authenticating evidence, has been held to be inadequate proof

of authorship. . . .

‘‘[T]he emergence of social media such as e-mail, text

messaging and networking sites like Facebook may not

require the creation of new rules of authentication with

respect to authorship. An electronic document may continue to be authenticated by traditional means such as

the direct testimony of the purported author or circumstantial evidence of distinctive characteristics in the

document that identify the author. . . .

‘‘Nevertheless, we recognize that the circumstantial

evidence that tends to authenticate a communication

is somewhat unique to each medium. . . . [I]n the case

of electronic messaging . . . a proponent of a document might search the computer of the purported

author for Internet history and stored documents or

might seek authenticating information from the commercial host of the e-mail, cell phone messaging or

social networking account.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v.

Smith, 179 Conn. App. 734, 761–64, 181 A.3d 118, cert.

denied, 328 Conn. 927, A.3d (2018).

Here, the state presented sufficient evidence to demonstrate that the document at issue was what the state

claimed it to be, namely, a series of text messages

between the defendant and Chelsea Papineau on

December 23 and 24, 2014. The defendant urges us to

conclude that the record did not provide ‘‘certainty’’

that the defendant sent the text messages at issue, yet

as our discussion of the applicable legal standard

reflects, the state did not bear the burden of ruling out

any possibility that the messages did not originate with
the defendant, but was permitted to establish his

authorship by means of circumstantial evidence. Chelsea Papineau’s testimony provided strong circumstantial evidence of authorship. Chelsea Papineau was in

an ongoing relationship with the defendant, her former

husband, and she testified that these text messages

were part of an ongoing conversation between them.15

Moreover, the text messages at issue prompted telephone conversations between Chelsea Papineau and

the defendant. Although the defense disagrees with the

state about the content of those telephone conversations, the defense does not appear to dispute that they,

in fact, occurred. Chelsea Papineau testified that she

captured images of these text messages and provided

them to the state police. In these circumstances, no

additional means of authentication were necessary.

The defendant relies, in part, on Chelsea Papineau’s

testimony during cross-examination that the text messages originated from Whittington’s telephone to challenge the court’s decision to admit the exhibit. We

observe that this testimony, which came after the

court’s ruling, is not a sufficient basis on which to challenge the ruling. See, e.g., State v. Harris, 32 Conn.

App. 476, 481 n.4, 629 A.2d 1166 (‘‘[w]e are bound to

evaluate the propriety of the trial court’s rulings on the

basis of the facts known to the court at the time of its

rulings’’), cert. denied, 227 Conn. 928, 632 A.2d 706

(1993). Even if we were to consider this later testimony,

however, it does not affect our analysis. Chelsea Papineau testified that these messages were part of a series

of conversations between her and the defendant, these

conversations included telephone calls with the defendant (a person with whom she was very familiar), and

that she was ‘‘very positive’’ that the text messages were

from the defendant. In light of this evidence, it is of no

consequence to our analysis that the defendant utilized

Whittington’s telephone to send the text messages. The

circumstantial evidence provided an adequate foundation upon which to find that the defendant, not Whittington, authored the text messages.16 The defendant has

not demonstrated that the court’s ruling reflects an

abuse of its discretion.

Assuming, arguendo, that the court’s evidentiary ruling, which was not of constitutional magnitude, was

improper, we readily would conclude that it was harmless. Previously in this opinion, we set forth the standard

for harmless error. See footnote 5 of this opinion. As

the defendant acknowledges, the text messages substantially corroborated other evidence that was offered

absent objection, namely, Chelsea Papineau’s testimony. In light of this other evidence of the defendant’s

text messages to Chelsea Papineau, the defendant is

unable to demonstrate that the court’s ruling substantially affected the verdict.

IV
Finally, the defendant claims that the evidence was

insufficient to support his conviction of conspiracy to

commit assault in the first degree in violation of §§ 53a59 (a) (1) and 53a-48.17 We disagree.

The defendant argues that ‘‘[t]he evidence, even in

the light most favorable to sustaining the verdict, contains no evidence of an agreement between the defendant and [Whittington] to cause serious physical injury

to [the victim] by means of a deadly weapon. Rather,

the evidence, even if it is construed as favorably as

possible to the state, suggests a spontaneous outburst

of violence, not a planned assault. . . .

‘‘[E]ven [when viewed] in the light most favorable

to sustaining the verdict, the evidence shows that the

defendant, [the victim] and Whittington went to the

abandoned mill at [the victim’s] suggestion, that there

was no expressed preassault animosity between them,

and that nothing indicated any possibility that the

assault would break out until Whittington suddenly,

spontaneously, and without warning hit [the victim]

with a baseball bat.’’ Additionally, the defendant argues

that although the victim testified that he and Whittington appeared to be working together, he failed to

describe ‘‘coordination or communication between the

two aside from walking through the mill and trying to

find a place to sleep before the attack.’’ Moreover, the

defendant relies on Whittington’s testimony that the

defendant had no role in the attack, there had been

no conversations about harming the victim, and that

Whittington threatened to strike him when he attempted

to intervene on the victim’s behalf.

‘‘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

whether the cumulative effect of all the evidence proves

the defendant guilty of all the elements of the crime

charged beyond a reasonable doubt. . . . Moreover,

[w]here a group of facts are relied upon for proof of

an element of the crime it is their cumulative impact

that is to be weighed in deciding whether the standard
of proof beyond a reasonable doubt has been met and

each individual fact need not be proved in accordance

with that standard. It is only where a single fact is

essential to proof of an element, however, such as identification by means of fingerprint evidence, that such

evidence must support the inference of that fact beyond

a reasonable doubt. . . .

‘‘As we have often noted, however, proof beyond

a reasonable doubt does not mean proof beyond all

possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of

innocence posed by the defendant that, had it been

found credible by the trier, would have resulted in an

acquittal. . . . 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. . . . Furthermore,

[i]t is immaterial to the probative force of the evidence

that it consists, in whole or in part, of circumstantial

rather than direct evidence.’’ (Internal quotation marks

omitted.) State v. Edwards, 325 Conn. 97, 136–37, 156

A.3d 506 (2017).

Section 53a-59 (a) provides in relevant part: ‘‘A person

is guilty of assault in the first degree when: (1) With

intent to cause serious physical injury to another person, he causes such injury to such person or to a third

person by means of a deadly weapon or a dangerous

instrument . . . .’’ ‘‘To obtain a conviction for conspiracy to commit assault in the first degree in violation of

§§ 53a-48 (a) and 53a-59 (a) (1), as charged, the state

bore the burden of proving beyond a reasonable doubt

that the defendant (1) intended that conduct constituting the crime of assault in the first degree be performed,

(2) agreed with one or more persons to engage in or

cause the performance of such conduct and (3) that

any one of those persons committed an overt act in

pursuance of such conspiracy. Conspiracy is a specific

intent crime, with the intent divided into two parts: (1)

the intent to agree to conspire; and (2) the intent to

commit the offense that is the object of the conspiracy.

. . . To sustain a conviction for conspiracy to commit

a particular offense, the prosecution must show not

only that the conspirators intended to agree but also

they intended to commit the elements of the offense.’’

(Internal quotation marks omitted.) State v. Wells, 100

Conn. App. 337, 347–48, 917 A.2d 1008, cert. denied,

282 Conn. 919, 925 A.2d 1102 (2007).

‘‘[T]he existence of a formal agreement between the

conspirators need not be proved [however] because

[i]t is only in rare instances that conspiracy may be

established by proof of an express agreement to unite to

accomplish an unlawful purpose. . . . [T]he requisite

agreement or confederation may be inferred from proof

of the separate acts of the individuals accused as cocon-
spirators and from the circumstances surrounding the

commission of these acts. . . . Further, [c]onspiracy

can seldom be proved by direct evidence. It may be

inferred from the activities of the accused persons. . . .

Finally, [b]ecause direct evidence of the accused’s state

of mind is rarely available . . . intent is often inferred

from conduct . . . and from the cumulative effect of

the circumstantial evidence and the rational inferences

drawn therefrom.’’ (Citation omitted; internal quotation

marks omitted.) State v. Danforth, 315 Conn. 518, 532–

33, 108 A.3d 1060 (2015); see also State v. Smith, 36

Conn. App. 483, 486, 651 A.2d 744 (1994) (sufficient for

state to demonstrate that actors mutually agreed to

commit forbidden act), cert. denied, 233 Conn. 910, 659

A.2d 184 (1995).

We begin our analysis of the evidence by focusing

on the defendant’s undisputed relationship with Whittington, who testified that he was the sole perpetrator

of the violent assault. The evidence reflects that it was

not a coincidence for the defendant and Whittington to

be together in the mill on the night of December 22,

2014. They were half brothers who, according to

defense witnesses, shared a close relationship. This

type of relationship, while not dispositive, makes it less

likely that they acted independently in the mill and

more likely that they acted in unison. See State v. Henderson, 83 Conn. App. 739, 748–49, 853 A.2d 115 (evidence of nature of relationship between alleged

coconspirators relevant to issue of existence and object

of conspiracy), cert. denied, 271 Conn. 913, 859 A.2d

572 (2004).

The evidence supported a finding that, prior to the

attack in the mill, the defendant and Whittington were

upset with the victim because they believed that he had

stolen money from one or both of them on a prior

occasion. The defendant and Whittington knew that,

later that night, the victim would return to the darkened,

abandoned mill because they had made plans to meet

him there. After making arrangements to spend the

night in the mill with the victim, the defendant and

Whittington had an opportunity to explore the mill in

the victim’s absence and found a favorable location in

the mill in which to retaliate against him. Whittington

arrived at the mill while carrying a dangerous instrument, namely, a metal baseball bat.18

The evidence demonstrated that, once the three men

were alone in the mill, it was Whittington who began

the altercation by striking the victim in the back of the

head when he had turned away from him. There was

evidence that the defendant did not attempt to stop

the altercation and did not flee the scene. Whittington

struck the victim repeatedly with the bat, and there was

evidence that the victim had been stabbed repeatedly.

The evidence is undisputed that the three men were

alone inside of the mill, and Whittington denied that
he stabbed the victim.19 The victim testified that the

defendant and Whittington seemed to be working

together as he was pushed into the hole in the floor.

This was corroborated by Whittington’s testimony that

he and the defendant had dragged the victim in the mill.

Then, the defendant and Whittington threw debris on

top of him. Once he was in the hole, the victim overheard the defendant and Whittington discuss his dire

condition before abandoning him in the mill.

After they left the victim, the defendant and Whittington provided false information to the police about the

events at issue to conceal their participation in the

crime. The defendant told the police that his clothing

had been stolen. The defendant and Whittington did

not go their separate ways following the assault, but

remained together.20 Ultimately, they left the state

together. In his conversation with Chelsea Papineau,

the defendant did not express remorse or indicate that

he was a bystander to the events at issue, but acknowledged to his former wife that he and Whittington had

beaten the victim violently in the mill and had left him

there. The defendant, believing that he faced an

attempted murder charge, indicated his intention to flee

to Ohio for at least five years in an attempt to evade

criminal liability for the events that transpired in the

mill.

The foregoing subordinate facts, which the jury reasonably could have found, and the rational inferences

drawn therefrom, support a finding beyond a reasonable doubt that the defendant and Whittington intended

to commit the crime of assault in the first degree, agreed

with one another to commit the conduct constituting

the crime, and that one or both of them engaged in

overt acts in furtherance of the conspiracy.

The jury reasonably could have inferred that the

defendant and Whittington had a reason to be upset

with the victim prior to the attack.21 The jury reasonably

could have inferred that, following their initial meeting

with the victim, they planned to retaliate against him

in the mill.22 Whittington, not the victim, initiated the

assault by utilizing the baseball bat that he brought with

him to the mill. The evidence suggested that Whittington

waited for an opportune moment in which to strike the

victim with the bat, and that he and the defendant had

planned to lure the victim to their choice of location

inside of the mill, where they could push the victim

into the hole in the floor. The joint efforts of the defendant and Whittington in this location reflected that it

was not a spur of the moment occurrence, as the defendant argues. There was evidence to support a finding

that the defendant actively participated in the crime by

joining with Whittington to push him into the hole in

the floor and cover him with debris. See, e.g., State v.

Forde, 52 Conn. App. 159, 168, 726 A.2d 132 (commission of single act in furtherance of conspiracy sufficient
to demonstrate knowing participation), cert. denied,

248 Conn. 918, 734 A.2d 567 (1999).

It is significant to our analysis of intent and whether

an agreement existed that, according to the victim’s

testimony, the defendant did not take any measures to

stop the attack or to flee the scene after Whittington

violently used a baseball bat to strike the victim repeatedly. The defendant did not express surprise or outrage,

nor at any point in time did he insist that help be summoned. Instead, the jury reasonably could have found

that the defendant was an active participant in the

attack by utilizing the light on Whittington’s cell phone

to illuminate the victim while Whittington struck him

with the baseball bat, stabbing the victim repeatedly,

working with Whittington to drag the victim into the

hole in the floor, and covering the victim’s badly injured

body with debris. Thereafter, the defendant and Whittington discussed the effects of their attack as the victim

was lying in the hole. The evidence supported a finding

that the defendant remained on the scene during the

multiple phases of the attack, helping to injure the victim severely, until the victim was incapacitated. Thereafter, the defendant left the mill just as he had arrived

at the mill, in unison with Whittington. The defendant’s

coordinated conduct with Whittington strongly

reflected his participation in a plan to retaliate against

the victim by inflicting serious injury. See State v. Millan, 290 Conn. 816, 828, 966 A.2d 699 (2009) (‘‘[a] coconspirator’s conduct at the scene can provide the requisite

evidence of an agreement’’); State v. Elsey, 81 Conn.

App. 738, 747, 841 A.2d 714 (‘‘the jury could have based

at least part of its decision regarding the conspiracy

charges on the defendant’s decision to come to the

scene of the crime with the coconspirators, stay at the

scene while the crimes were committed and leave the

scene with the coconspirators’’), cert. denied, 269 Conn.

901, 852 A.2d 733 (2004).

The defendant’s conduct and his statements to Chelsea Papineau following the incident not only reflected

his consciousness of his guilt, but strongly bolstered a

finding that he intended for the victim to sustain serious

physical injury and that he had been an active participant with Whittington in a preplanned retaliatory event.

‘‘Although mere presence at a crime scene, standing

alone, generally is insufficient to infer an agreement,

a defendant’s knowing and willing participation in a

conspiracy nevertheless may be inferred from his presence at critical stages of the conspiracy that could not

be explained by happenstance . . . .’’ (Internal quotation marks omitted.) State v. Rosado, 134 Conn. App.

505, 511, 39 A.3d 1156, cert. denied, 305 Conn. 905, 44

A.3d 181 (2012). The defendant’s actual participation

in the assault and his conduct following the assault

undermines his argument that he merely was a

bystander during the events at issue. The defendant
relies almost exclusively on Whittington’s testimony. In

accordance with our well settled standard of review,

we focus on the evidence that supported the jury’s

finding of guilt. The defendant attempts to portray Whittington as the sole perpetrator, yet the evidence of the

defendant’s conduct before, during, and after the events

at issue reflect that he and Whittington conspired to

cause serious physical injury to the victim by means of

a dangerous instrument. See State v. Williams, 94 Conn.

App. 424, 433, 892 A.2d 990 (defendant’s conduct before,

during, and following incident may shed light on his

state of mind), cert. denied, 279 Conn. 901, 901 A.2d

1224 (2006).

In light of the foregoing, we reject the defendant’s

argument that the evidence was insufficient to convict

him of conspiracy to commit assault in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The court granted the defendant’s motion for a judgment of acquittal

with respect to one count of hindering prosecution in the second degree in

violation of General Statutes § 53a-166.

The court imposed a total effective sentence of fourteen years imprisonment, five years of which are mandatory, followed by six years of special

parole.

2 Unless, for clarity, we refer to Joshua Whittington by his full name,

generally we will refer to him in this opinion as ‘‘Whittington.’’

3 Whittington testified for the defense. His version of events was that he

became angry with the victim because he believed that, on a prior occasion,

the victim took money from him and the defendant. He testified that he

alone physically attacked the victim with a baseball bat in the mill, that it

was a ‘‘spur of the moment’’ decision on his part, and that the defendant,

who was present with him and the victim in the mill, fled the scene without

harming the victim. He testified that after he had struck the victim several

times, the defendant attempted to take the bat away from him. He and the

defendant struggled briefly, but he ordered the defendant to ‘‘get [the] heck

out of there’’ and ‘‘gestured that [he] was gonna hit him next.’’

4 As modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),

the Golding doctrine provides that ‘‘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

omitted; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.

‘‘The defendant bears the responsibility for providing a record that is

adequate for review of his claim of constitutional error. . . . The defendant

also bears the responsibility of demonstrating that his claim is indeed a

violation of a fundamental constitutional right. . . . Finally, if we are persuaded that the merits of the defendant’s claim should be addressed, we will

review it and arrive at a conclusion as to whether the alleged constitutional

violation . . . exists and whether it . . . deprived the defendant of a fair

trial.’’ (Citations omitted.) Id., 240–41.

5

‘‘When an improper evidentiary ruling is not constitutional in nature, the

defendant bears the burden of demonstrating that the error was harmful.

. . . [A] nonconstitutional error is harmless when an appellate court has a

fair assurance that the error did not substantially affect the verdict. . . .

[Our] determination [of whether] the defendant was harmed by the trial

court’s . . . [evidentiary ruling] is guided by the various factors that we

have articulated as relevant [to] the inquiry of evidentiary harmlessness
. . . such as the importance of the . . . testimony [to the defense], whether

the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony . . . on material points . . . and, of

course, the overall strength of the state’s case. . . . Most importantly, we

must examine the impact of the evidence on the trier of fact and the result

of the trial.’’ (Internal quotation marks omitted.) State v. Rodriguez, 311

Conn. 80, 89, 83 A.3d 595 (2014).

6

In evaluating a claim of this nature, ‘‘[w]e first review the trial court’s

evidentiary rulings, if premised on a correct view of the law . . . for an

abuse of discretion. . . . If, after reviewing the trial court’s evidentiary

rulings, we conclude that the trial court properly excluded the proffered

evidence, then the defendant’s constitutional claims necessarily fail. . . .

If, however, we conclude that the trial court improperly excluded certain

evidence, we will proceed to analyze [w]hether [the] limitations on impeachment, including cross-examination, [were] so severe as to violate [the defendant’s rights under] the confrontation clause of the sixth amendment . . . .

In evaluating the severity of the limitations, if any, improperly imposed on

the defendant’s right to confront, and thus impeach, a witness, [w]e consider

the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality

of the cross-examination viewed in relation to the issues actually litigated

at trial. . . . In conducting our analysis, we are mindful that trial judges

retain wide latitude insofar as the [c]onfrontation [c]lause is concerned to

impose reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is repetitive or only marginally

relevant. . . . [W]e have upheld restrictions on the scope of cross-examination where the defendant’s allegations of witness bias lack any apparent

factual foundation and thus appear to be mere fishing expeditions. . . . We

consider de novo whether a constitutional violation occurred.’’ (Citations

omitted; internal quotation marks omitted.) State v. Halili, 175 Conn. App.

838, 852–53, 168 A.3d 565, cert. denied, 327 Conn. 961, 172 A.3d 1261 (2017).

7 Presumably, in referencing a proffer, the defendant relies on what Denise

Papineau stated following defense counsel’s question.

8 See footnote 4 of this opinion.

9 Prior to the presentation of evidence, the court instructed the jury in

relevant part: ‘‘Now, during the trial, counsel on each side may object when

the other side offers testimony or evidence which counsel believes is not

admissible . . . . If, during the course of the trial, the court sustains an

objection by one attorney to a question asked by the other, you should

disregard the question, and you must not speculate as to what the answer

would have been. So, also, if any testimony is ordered stricken, you should

disregard that testimony and must not give it any weight whatsoever in

your deliberations.’’

10 During its charge, the court instructed the jury that it was to consider

the evidence, including the sworn testimony of witnesses, and that ‘‘any

testimony that has been excluded or stricken’’ was not evidence.

11 Following the evidentiary ruling, it would have been better practice for

the court sua sponte to have ordered that the witness’ answer be stricken

from the evidence or for the prosecutor to have moved to strike the answer

after he had obtained a favorable ruling. Such steps would have provided

a greater degree of clarity for the jury and for this court in its evaluation

of the evidence.

12 We observe that the excluded evidence at issue in the present claim

did not tend to refute the other highly incriminating consciousness of guilt

evidence that was presented by the state, which demonstrated that the

defendant, fearing arrest on an attempted murder charge, planned to relocate

to Ohio for at least five years. This other consciousness of guilt evidence,

as well as the fact that the defense was permitted to present ample evidence

concerning the defendant’s plans to travel to Cape Cod, leads us to conclude

that, even if the court erroneously precluded the narrow inquiry at issue in

this claim, such error was harmless beyond a reasonable doubt under Golding’s fourth prong. See footnote 4 of this opinion.

13 In light of our determination that the excluded evidence was cumulative

of other evidence that the defendant was permitted to present to the jury,

we are not persuaded that the court’s ruling reflected that a serious and

manifest injustice occurred in the present case. Accordingly, we reject the

defendant’s recourse to the plain error doctrine. See State v. Myers, 290

Conn. 278, 289, 963 A.2d 11 (2009) (discussing appellant’s burden to satisfy

plain error doctrine).
14 There are fifteen incoming text messages in the document and seven

outgoing text messages. One of the incoming messages dated, ‘‘Yesterday

2:53 PM,’’ states: ‘‘Hey I can’t make it to my mom’s today. I’ll try to figure

something out.’’ Another incoming text, dated ‘‘Today 4:21 PM,’’ states: ‘‘Hey

do you have corby’s number? And so u don’t worry were keeping the phone

off w the SD card out unless we have to use the phone.’’ An outgoing text

message replies, ‘‘Why do u want it?’’ An incoming message states, ‘‘Call

me and ill talk to you.’’ The last incoming message states: ‘‘Just remember

to delete ur messages.’’

15 A review of the subject matter of the text messages reflects that, in part,

they concerned the topic of the defendant’s children with Chelsea Papineau.

16 We observe that, following the state’s prima facie showing of authenticity, arguments concerning the authorship of the text messages were fodder

for the jury’s consideration. As our review of the facts underlying this claim

reveals, defense counsel availed himself of an opportunity to challenge

the state’s evidence by eliciting testimony during his cross-examination of

Chelsea Papineau to establish that the text messages came from Whittington’s telephone and that she did not physically observe the defendant using

Whittington’s telephone to send her the messages at issue.

17 At trial, the defendant moved for a judgment of acquittal with respect

to this charge. The court denied the motion.

18 The victim testified that, once he, the defendant, and Whittington were

inside the mill, he was using a flashlight, and that the defendant and Whittington were using ‘‘a flashlight that was . . . on their phone.’’ The victim

testified that, after he was struck by the baseball bat, he dropped his flashlight. He testified that, both prior to and following the time that he was

struck, the defendant was using a cell phone light and that ‘‘[t]hat light

never went out.’’ He testified that that light source was shining on him

while Whittington was striking him repeatedly. Thus, it would have been

reasonable for the jury to find that the defendant illuminated the victim

while Whittington struck him.

19 Considering the undisputed evidence that Whittington struck the victim

in the back of the head with a baseball bat and continued to assault him

with the bat in the poorly illuminated mill, it is understandable that the

victim was unable to shed much light on which of his assailants had stabbed

him. The victim testified, in relevant part: ‘‘As I turned my head . . . I was

hit in the head with a baseball bat numerous times. I was trying to get away.

Being pushed toward the darker part of the mill, I then felt like I was being

stabbed. All the time asking . . . why is this happening? What are you guys

doing? And then I was pushed into a hole.’’

20 Whittington testified, in part, that, following the events in the mill, he

tried to conceal his actions in the mill by washing his boots in a river and

that the defendant washed his boots in the river, as well.

21 The defendant argues that he and Whittington did not have a motivation

to conspire against the victim on the basis of the stolen money because

Whittington did not learn that the victim had stolen the money until seconds

prior to the assault. This is not an accurate view of the evidence. First, we

observe that, although the defendant denied any involvement in the assault

and told the police that he ‘‘never had any problem with [the victim],’’ he

nonetheless stated that he had ‘‘heard rumors about [the defendant] robbing

people who he was staying with in the past.’’ Both the victim and Chelsea

Papineau testified that the victim had stayed with the defendant in the past.

Second, during direct examination by defense counsel, the following

examination of Whittington occurred:

‘‘Q. And so did something happen between you and [the victim inside of

the mill]?

‘‘A. We—I discussed with him because I was told by a mutual friend,

Kevin—I don’t know his last name, but he told me that [the victim] had

taken my money before, so I confronted [the victim] about it and I kept at

him, and I got closer to him and asked him, you know, if he took my money.

He finally admitted to me he did, and I got angry and I got up in his face.

He kind of tried to push me away and I snapped, and I had hold of a bat

and I hit him in the head with the bat and when he had fell over, I kept

hitting him.

‘‘Q. Let me . . . stop you right there. Now, before that, had there been

any discussion about the money?

‘‘A. He knew we were missing the money and we weren’t thinking it was

him at the time, so there was no real big discussion about it.

‘‘Q. Did . . . you and [the defendant] . . . have any discussions about

trying to get [the victim] . . . or try to hurt him or anything like that?
‘‘A. No. We actually found out that day it was . . . that we were told

that day it was him when we were meeting back up with him at [Sunnyside

Farms] by our mutual friend.

‘‘Q. But was there any plans to . . . get revenge or anything like that?

‘‘A. No. We . . . had no plans. It was spur of the moment.’’ (Emphasis

added.)

The jury could accept or reject Whittington’s testimony in whole or in

part. Setting aside Whittington’s testimony that he and the defendant had

not planned to retaliate against the victim, a reasonable view of Whittington’s

testimony reflects that, in the hours prior to the attack, the defendant and

Whittington learned information from a third party that caused them to

strongly suspect that, on a prior occasion, the victim had stolen money from

them. Whittington’s testimony reflects that he aggressively confronted the

victim and became violent once he had obtained a confession from the victim.

22 The defendant attempts to undermine a finding that any planning

occurred by relying on the undisputed evidence that the victim first suggested that the three men spend the night in the abandoned mill. Simply

because the victim first suggested that the men spend the night in the mill

does not make it any less plausible that, during the afternoon hours of

December 22, 2014, the defendant and Whittington had ample time in which

to conspire to assault the victim therein.