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*********************************************** 
STATE OF CONNECTICUT v. MUHAMMAD

A. QAYYUM

(AC 42456)

Bright, C. J., and Suarez and Lavery, Js.

Syllabus

Convicted, after a jury trial, of the crimes of conspiracy to sell narcotics

and possession of narcotics with intent to sell, the defendant appealed

to this court. Held:

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

his due process rights by shifting the burdens of proof and persuasion

to him to prove that he had a legitimate source of income, which was

based on his claim that the court erred in permitting a state Department

of Labor representative, R, to testify that the defendant had no reportable

wages, thereby suggesting that he earned a living selling drugs: the

defendant’s claim challenging R’s testimony was evidentiary rather than

constitutional in nature; moreover, the trial court did not abuse its

discretion in admitting R’s testimony and determining that the probative

value of the evidence of the defendant’s lack of reportable wages outweighed its prejudicial effect, as that evidence was probative of whether

the defendant was engaged in trafficking drugs and was not unduly

prejudicial because R’s testimony was not presented in a manner that

would have improperly aroused the emotions of the jurors; furthermore,

even if this court assumed that the trial court abused its discretion in

admitting R’s testimony, any error was harmless, as the defendant failed

to satisfy his burden of proving that it was more probable than not that

the admission of the testimony substantially affected the verdict.

2. The defendant’s claim that the trial court erred in admitting impermissible

expert opinion testimony from F, a police detective, on the ultimate

issue of whether the defendant intended to sell narcotics was unavailing;

that court did not abuse its discretion in admitting F’s testimony, as his

testimony concerned only general factors that he would consider when

deciding to charge a person with possession of narcotics with intent to

sell, including the general behavior of drug users and drug traffickers,

and the prosecutor did not ask F for his specific opinion about whether

the defendant possessed narcotics with intent to sell, and, therefore, F

never expressed his opinion on the ultimate issue before the jury; moreover, even if this court assumed that the trial court improperly admitted

F’s testimony, the defendant failed to satisfy his burden of proving that

the admission of F’s testimony more probably than not affected the

verdict and therefore was harmful.

Argued September 9—officially released December 22, 2020

Procedural History

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

sell narcotics and two counts of the crime of possession

of narcotics with intent to sell, and, in the second part,

with previously having been convicted of the crime of

sale of narcotics, brought to the Superior Court in the

judicial district of Litchfield at Torrington, where the

first part of the information was tried to the jury before

Danaher, J.; verdict of guilty; thereafter, the defendant

was presented to the court, Danaher, J., on a plea of

guilty to the second part of the information; judgment

of guilty in accordance with the verdict and plea, from

which the defendant appealed to this court. Affirmed.

Robert L. O’Brien, assigned counsel, with whom, on

the brief, was William A. Adsit, assigned counsel, for
the appellant (defendant).

Linda F. Currie-Zeffiro, assistant state’s attorney,

with whom, on the brief, were Dawn Gallo, state’s attorney, and David Shannon, supervisory assistant state’s

attorney, for the appellee (state).
Opinion

LAVERY, J. The defendant, Muhammad A. Qayyum,

appeals from the judgment of conviction, rendered after

a jury trial, of one count of conspiracy to sell narcotics

in violation of General Statutes §§ 53a-48 and 21a-277

(a) and two counts of possession of narcotics with

intent to sell in violation of § 21a-277 (a). On appeal,

the defendant claims that the trial court (1) violated

his due process rights by shifting the burdens of proof

and persuasion to him to prove that he had a legitimate

source of income and (2) erred by allowing impermissible expert opinion testimony regarding his intent to sell

narcotics. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to our

discussion. On April 12, 2017, Torrington Police Officer

Matthew Faulkner went to 356 Migeon Avenue in Torrington to execute a search warrant following his investigation regarding possible drug sales being conducted

from unit 1 North, the apartment of Oscar Pugh. Officer

Faulkner surveilled the residence for approximately

one hour. During that time, two people separately

arrived at Pugh’s apartment but departed quickly. Officer Faulkner also saw the defendant arrive in a dark

gray Infiniti sedan bearing Massachusetts license plates,

which the defendant had rented from Hertz. The defendant had rented cars from Hertz for sixty-three days

during the period from January, 2017, until his arrest

in April, 2017, with the rentals costing between $2500

and $2600. Officer Faulkner frequently had observed

the defendant at Pugh’s apartment over these preceding months.

Additional police arrived approximately one hour

after Officer Faulkner began his surveillance. The police

executed the search warrant and detained the defendant and Pugh. The defendant eventually admitted that

he had narcotics in his front pockets, and Officer Faulkner then proceeded to search them. Inside, he found

$267 in small bills, seven wax folds of heroin, and two

‘‘dubs’’ of crack cocaine.1 The police did not find any

drug paraphernalia on the defendant or in his rental car,

but a canine officer alerted on the car’s trunk and door.

The police also searched Pugh. They found six wax

folds of heroin and $2 in his pockets and a single dub

of crack cocaine in his sock. They also found seventeen

dubs of crack cocaine in between the couch cushions

where Pugh was seated, along with various items of

drug paraphernalia such as crack pipes and cut straws.

Additionally, they found a handwritten ledger documenting narcotics sales. Pugh admitted that the narcotics found on his person were his and that he was a

heavy user, but he denied that the other narcotics in

the apartment belonged to him. Other than the $2 found

on Pugh’s person, the police did not find any other
money within the apartment.

The defendant was charged by way of a substitute

long form information with one count of conspiracy to

sell narcotics in violation of §§ 53a-48 and 21a-277 (a)

and two counts of possession of narcotics with intent

to sell in violation of § 21a-277 (a). The defendant also

was charged in a part B information with having twice

been convicted of the sale of narcotics in violation of

§ 21a-277 (a). The defendant pleaded not guilty and

elected to be tried by a jury. On August 16, 2018, a jury

of six found the defendant guilty of all three counts.

Later that day, the defendant pleaded guilty to the two

counts of the part B information. On November 9, 2018,

the court sentenced the defendant to a total effective

term of twenty years of incarceration, execution suspended after twelve years, with five years of probation.

This appeal followed. Additional facts will be set forth

as necessary.

I

The defendant first claims that the trial court violated

his due process rights by shifting the burdens of proof

and persuasion to him. Specifically, he argues that the

court erred by permitting the state to present evidence

that he had no reportable wages, thereby suggesting

that he earned a living selling drugs, and thus placing

the burden on him to prove that he had a legitimate

source of income. In response, the state argues that

the defendant’s challenge to the disputed testimony

presents an evidentiary issue rather than a constitutional one and that the trial court did not abuse its

discretion in determining that the probative value of

the evidence of the defendant’s lack of reportable wages

was not outweighed by its prejudicial effect. We agree

with the state.

The following additional facts are relevant to this

claim. At trial, Pugh testified that he had known the

defendant for more than one year and that the defendant

had told him that he needed a place to sell drugs. Pugh

further testified that, in the year preceding their arrests,

the defendant would come by his apartment every few

days and that he gave Pugh a reduced price for the

drugs that Pugh used in exchange for using Pugh’s apartment to sell drugs. Pugh saw the defendant sell drugs

in his apartment but never saw the defendant use any

heroin or crack cocaine.

After the first day of evidence, defense counsel

informed the court that he objected to the state’s anticipated presentation of testimony from David Ricciuti, a

representative from the Department of Labor (department). After defense counsel questioned the relevance

of such testimony, the prosecutor responded that the

state intended to call Ricciuti to testify that the defendant had no reportable wages for the relevant time

period prior to his arrest. In response, defense counsel
preliminarily argued that such evidence was irrelevant,

not probative of any issues in the case, prejudicial, and

might ‘‘play on certain biases that people hold, implicit

biases as well.’’ The court informed the parties that it

would entertain argument on the issue the following

morning, and the prosecutor stated his intent to rely

on State v. Perry, 58 Conn. App. 65, 68–69, 751 A.2d

843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000),

in support of the admissibility of Ricciuti’s testimony.

The next morning, defense counsel did not argue that

the evidence was irrelevant. Instead, he stated that his

objection was ‘‘primarily an evidentiary objection based

on [the expected testimony] being overly prejudicial

and more prejudicial than probative’’ because it did

not demonstrate ‘‘an imminent financial burden on the

defendant.’’ Defense counsel argued that suggesting

that someone is more likely to commit a crime because

they do not have a job ‘‘inappropriately plays on biases

that people may have, it fits into a stereotype and . . .

runs the risk of arousing the jury’s potential prejudices

and implicit biases . . . .’’ Defense counsel conceded

that the issue was not ‘‘of a constitutional magnitude,’’

although he did argue that admitting the evidence

‘‘would also shift the burden to [the defendant] to have

to rebut the evidence, [which] would be impermissible

or improper . . . .’’ In response, the prosecutor argued

that, when considered with other evidence, specifically

the facts that the defendant had spent several thousands

of dollars on rental cars during the months leading up

to his arrest and had $267 and narcotics in his pocket,

the evidence concerning his lack of reportable wages

was more probative than prejudicial. In particular, the

prosecutor argued that Ricciuti’s testimony, coupled

with the other evidence, would permit the jury to infer

that the defendant’s otherwise unexplained wealth

came from drug trafficking. The court, relying on this

court’s opinion in Perry, overruled the defendant’s

objection. The court reasoned that Ricciuti’s testimony

was ‘‘not simply evidence . . . that the defendant does

not have great resources. It’s some evidence that he

doesn’t have a visible source of income . . . and yet

he has funds to expend.’’ The court noted that this court

in Perry held that similar evidence was admissible and

not unduly prejudicial. The court further noted that

the evidence that the state sought to introduce was

significantly less detailed than what was offered in

Perry and, therefore, less prejudicial.

On direct examination, Ricciuti testified that the

defendant did not have any wages in either 2016 or

2017 that were reported to the department. He acknowledged, however, that some people have ‘‘under the table

jobs,’’ for which the department would have no record.

He also admitted on cross-examination that income

from self-owned businesses, Social Security disability

benefits, rental properties, and lottery winnings are not

reportable wages.
During closing argument, defense counsel reminded

the jury of Ricciuti’s testimony and commented that

the state had presented no testimony that it had checked

to see if the defendant had other sources of income.

He also emphasized that the fact that the defendant did

not have any taxable wages did not necessitate a finding

that he sold drugs because there are numerous types

of legitimate forms of income that would not need to

be reported to the department.

We now set forth our standard of review and the

relevant legal principles governing this claim. ‘‘[U]nless

an evidentiary ruling involves a clear misconception of

the law, [t]he trial court has broad discretion in ruling

on the admissibility . . . of evidence. . . . The trial

court’s ruling on evidentiary matters will be overturned

only upon a showing of a clear abuse of the court’s

discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling

. . . . Moreover, evidentiary rulings will be overturned

on appeal only where there was an abuse of discretion

and a showing by the defendant of substantial prejudice

or injustice.’’ (Internal quotation marks omitted.) State

v. Rosa, 104 Conn. App. 374, 377–78, 933 A.2d 731 (2007),

cert. denied, 286 Conn. 906, 944 A.2d 980 (2008).

‘‘[E]vidence is relevant if it has a tendency to establish

the existence of a material fact. . . . Relevant evidence

is evidence that has a logical tendency to aid the trier

[of fact] in the determination of an issue. . . . One fact

is relevant to another if in the common course of events

the existence of one, alone or with other facts, renders

the existence of the other either more certain or more

probable. . . .

‘‘Although relevant, evidence may be excluded by the

trial court if the court determines that the prejudicial

effect of the evidence outweighs its probative value.

. . . Of course, [a]ll adverse evidence is damaging to

one’s case, but it is inadmissible only if it creates undue

prejudice so that it threatens an injustice were it to be

admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging

to the defendant but whether it will improperly arouse

the emotions of the jury. . . . The trial court . . .

must determine whether the adverse impact of the challenged evidence outweighs its probative value.’’ (Internal quotation marks omitted.) Id., 378.

In Perry, this court noted: ‘‘Numerous courts have

recognized that evidence of an imminent financial burden on the defendant is admissible for the purpose of

proving motive. . . . Financial condition and employment status may be relevant to a defendant’s motive to

commit a crime and, thus, are admissible on purely

nonconstitutional evidentiary grounds.’’ (Citation omitted; internal quotation marks omitted.) State v. Perry,

supra, 58 Conn. App. 68–69. The defendant argues that
Perry limited the admissibility of such evidence to the

issue of motive and that the record shows that the state

did not proffer Ricciuti’s testimony for that purpose.

Consequently, the defendant argues, the testimony had

no probative value. Furthermore, he argues that the

admission of Ricciuti’s testimony impermissibly placed

a burden on him to prove that he had a legitimate source

for the money the state proved he had in his possession

or had recently spent. We are not persuaded.

We note at the outset that defense counsel conceded

that his objection to Ricciuti’s proposed testimony was

evidentiary in nature rather than one of constitutional

magnitude. He objected to the proposed testimony only

on the ground that it was more prejudicial than probative, and, although he argued briefly that admitting such

testimony would impermissibly shift the burdens of

proof and persuasion to the defendant, he did not suggest that doing so would violate the defendant’s due

process rights. Moreover, this court previously has held

that evidence of a defendant’s financial condition or

employment status is admissible on purely nonconstitutional evidentiary grounds. See State v. Perry, supra,

58 Conn. App. 68–69; see also State v. Rosa, supra,

104 Conn. App. 376 (unpreserved claim that trial court

improperly admitted evidence showing that defendant

was unemployed at time of incident concerned evidentiary and not constitutional matter, and was not reviewable). The defendant’s attempt to turn his evidentiary

claim into a constitutional one by arguing that the

admission of Ricciuti’s testimony concerning his lack

of reportable wages violated his due process rights by

unconstitutionally shifting the burden on him to prove

he had a legitimate source of income is thus unavailing.2

‘‘Simply [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character

than calling a bull a cow will change its gender.’’ (Internal quotation marks omitted.) State v. Rosa, supra, 377.

We, thus, review the defendant’s evidentiary claim concerning the admission of Ricciuti’s testimony for an

abuse of discretion.

As to the merits of the defendant’s evidentiary claim,

we conclude that the defendant misreads Perry and

that his reliance on it is misplaced. This court did not

state in Perry that evidence of lack of employment is

relevant only to motive. We merely stated that in that

case it was relevant to motive. See State v. Perry, supra,

58 Conn. App. 68–69. We see no reason why such evidence could not be relevant to other issues such as

intent, or, as in this case, to assist the jury in determining

whether the defendant actually was engaging in the

conduct that constituted the crime. The fact that the

defendant had access to money despite having no

reportable wages, combined with the other evidence

presented by the state, makes it more likely that he

was engaged in drug trafficking to procure that money.

That evidence tends to make a fact more likely is all
that is required to make the evidence relevant. As this

court stated in a similar context: ‘‘Although evidence

of the defendant’s unemployment may [be] far from

conclusive, [e]vidence is not rendered inadmissible

because it is not conclusive. All that is required is that

the evidence tend to support a relevant fact even to a

slight degree . . . .’’ (Internal quotation marks omitted.) State v. Rosa, supra, 104 Conn. App. 378–79. Ricciuti’s testimony thus had probative value.

Furthermore, the evidence was not unduly prejudicial. Although evidence of a defendant’s chronic poverty

may improperly arouse the emotions of the jurors in

certain circumstances, ‘‘we recognize a distinction

between evidence of chronic poverty and evidence of

unemployment at a relevant time, as even a well-to-do

person may be unemployed at times.’’ State v. Rosa,

supra, 104 Conn. App. 379.

In the present case, the state presented evidence of

the defendant’s lack of reportable wages only from the

year prior to his arrest through the time of his arrest.

In addition, Ricciuti’s testimony was very brief, and he

conceded both on direct examination and on crossexamination that the defendant could have had sources

of income, other than drug trafficking, that would not

have been reported to the department. His testimony

was not presented in a manner that improperly would

have aroused the emotions of the jurors or invoked any

feelings of bias, whether explicit or implicit. For these

reasons, we agree with the state that the trial court

acted within its discretion when it admitted Ricciuti’s

testimony concerning the defendant’s lack of reportable wages.

Additionally, although it was not an abuse of discretion to admit Ricciuti’s testimony, we further note that

such admission was not harmful. ‘‘In order to establish

reversible error on an evidentiary impropriety . . . the

defendant must prove both an abuse of discretion and

a harm that resulted from such abuse. . . . When an

improper evidentiary ruling is not constitutional in

nature, the defendant bears the burden of demonstrating that the error was harmful.’’ (Citation omitted;

internal quotation marks omitted.) State v. Alexis, 194

Conn. App. 162, 170, 220 A.3d 38, cert. denied, 334

Conn. 904, 219 A.3d 800 (2019). ‘‘[W]hether [an improper

ruling] is harmless in a particular case depends upon

a number of factors, such as the importance of the

witness’ testimony in the prosecution’s case, whether

the testimony was cumulative, the presence or absence

of evidence corroborating or contradicting the testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and, of course,

the overall strength of the prosecution’s case. . . .

Accordingly, a nonconstitutional error is harmless

when an appellate court has a fair assurance that the

error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) Id.

In the present case, the defendant has failed to meet

his burden of demonstrating that the admission of Ricciuti’s testimony concerning his lack of reportable wages

was harmful. First, the state’s case against the defendant was strong. Pugh testified extensively about the

arrangement he had with the defendant whereby the

defendant gave Pugh a reduced price for drugs in

exchange for using Pugh’s apartment to sell them. The

state also presented evidence that drug paraphernalia

was found in Pugh’s apartment but that none was found

on the defendant or in his rental car. Moreover, the

state presented evidence that the defendant had $267

on him in small denominations, that he had seven wax

folds of heroin on him along with two dubs of cocaine,

that he had spent approximately $2500 on rental cars

in the months leading up to his arrest, and that a canine

officer twice had alerted on the defendant’s rental car,

indicating a residual odor of narcotics. The state, therefore, presented sufficient evidence that the jury reasonably and independently could have used to find the

defendant guilty of all three charges. Second, Ricciuti’s

testimony was of negligible importance to the state’s

case. As discussed previously in this opinion, the state

had a strong case, and the prosecutor referred to Ricciuti’s testimony only once during his closing argument

and not at all during his rebuttal argument. It, thus,

cannot be said that Ricciuti’s testimony was vital to the

state’s case. Third, the defendant had ample opportunity

to cross-examine Ricciuti. Ricciuti, in fact, testified on

cross-examination that income from self-owned businesses, Social Security disability benefits, rental properties, and lottery winnings were not reportable wages.

In light of these considerations, even if we were to

assume that the trial court abused its discretion in

admitting Ricciuti’s testimony, we would conclude that

any error was harmless. The defendant has failed to

meet his burden of proving that it was more probable

than not that the admission of Ricciuti’s testimony substantially affected the verdict.

II

We next turn to the defendant’s claim that the trial

court erred by admitting impermissible expert opinion

testimony. Specifically, he argues that the court impermissibly permitted the state’s expert, Scott Flockhart,

a detective in the New Milford Police Department, to

opine on the ultimate issue of the case, namely, whether

the defendant intended to sell narcotics. In response,

the state argues that the prosecutor elicited testimony

from Flockhart concerning only general factors that he

would consider when deciding to charge a person with

possession of narcotics with intent to sell. The state

further contends that such testimony was proper

because the prosecutor did not ask specifically for

Flockhart’s opinion about whether the defendant pos-
sessed the narcotics with the intent to sell them. We

agree with the state.

The following additional facts are relevant to this

claim. During trial, the state presented the expert testimony of Flockhart, who testified about his extensive

experience throughout his career dealing with narcotics. During his testimony, Flockhart explained that people who traffic narcotics frequently use rental cars to

avoid detection. He also testified that narcotics traffickers often enlist intermediaries in an effort to insulate

themselves from the actual criminal activity.

The prosecutor then attempted to ask Flockhart a

hypothetical question by asking him: ‘‘If you came

across a person with two $20 bags of crack [cocaine]

and seven bags of heroin . . . would you be able to

say whether that person possessed those drugs to use

or possessed them with an intent to sell them?’’ Defense

counsel objected to this question on the ground that it

‘‘[went] to the ultimate issue.’’ Outside the jury’s presence, defense counsel argued that the ‘‘hypothetical

mirrors the facts of the case so closely that essentially

the witness [was] being asked to give an opinion on

the ultimate issue in this case.’’ The court stated that

the question, as phrased, ‘‘[came] too close to asking

this expert as to whether he [had] an opinion as to

whether someone who’s exactly situated like [the]

defendant was engaged in possession of narcotics with

intent to sell.’’ The court cautioned the state to ‘‘[ask]

the questions in a more general way . . . .’’ Shortly

thereafter, the following exchange occurred between

the prosecutor and Flockhart:

‘‘Q. What type of factors do you look for, what type

of things do you consider [when deciding to charge

a person with possession of narcotics with intent to

sell] . . . .

‘‘A. We look [at] how the drugs are packaged [and]

quantities. [We] look for paraphernalia. If somebody is

an addict, they’re most likely gonna have some type of

paraphernalia on them.

‘‘Q. Okay. Well, in your experience, do addicts generally, are they—are they ever far from their paraphernalia?

‘‘A. Usually not, no.

‘‘Q. [As] to how it’s packaged, what are you looking

for, specifically?

‘‘A. Whether it’s . . . broken down . . . to smaller

quantities in smaller bags.

‘‘Q. Smaller quantities would mean what, [regarding]

that decision-making process?

‘‘A. Would lead towards the possession with the intent

to sell, because that’s usually how it’s broken up for

street level distribution.
‘‘Q. What else would you look for?

‘‘A. You would take a look at [the person’s hygiene]

. . . track marks on their arms . . . [and] if they’re

gonna be getting dope sick.

* * *

‘‘Q. What about money, is that a consideration at all?

‘‘A. Yes.

‘‘Q. Could you tell the jury how that would weigh in?

‘‘A. Most addicts when they go to buy . . . their drug

of choice . . . usually [they] go with an amount of

money to buy a certain amount of that drug . . . if

they have $100 on [them], they aren’t gonna go and buy

just $20 worth. . . .

‘‘Q. Yes or no—well, if you found a large amount of

money on a person versus a negligible amount of

money, how would that factor into your decision?

‘‘A. Most addicts aren’t gonna have a large amount

of money. . . .

‘‘Q. And what about the denominations of money,

would that factor into your decision at all . . . ?

‘‘A. Yes.’’

Defense counsel did not object to any of the questions

asked in this exchange. Following cross-examination,

the prosecutor elicited additional testimony from Flockhart in which Flockhart testified that he does not focus

on a single factor when deciding whether to charge a

person with possession of narcotics with intent to sell

but, rather, that he looks at all these things in the

aggregate.

‘‘An expert witness ordinarily may not express an

opinion on an ultimate issue of fact, which must be

decided by the trier of fact. . . . Experts can [however]

sometimes give an opinion on an ultimate issue where

the trier, in order to make intelligent findings, needs

expert assistance on the precise question on which it

must pass.’’ (Internal quotation marks omitted.) Hodges

v. Commissioner of Correction, 187 Conn. App. 394,

404, 202 A.3d 421, cert. denied, 331 Conn. 912, 203 A.3d

1246 (2019). ‘‘A trial court has broad discretion in admitting expert testimony concerning the sale of illicit

drugs.’’ (Internal quotation marks omitted.) State v. Nelson, 17 Conn. App. 556, 565, 555 A.2d 426 (1989). For

example, ‘‘[e]xpert witnesses may testify that certain

behavior by a defendant or his possession of particular

items is conduct similar to that engaged in by the typical

drug dealer. . . . A police officer, who is qualified as

an expert witness, may even testify that, in light of

the officer’s personal observations of his conduct, it

appeared that a defendant was engaged in narcotics

sales.’’ (Citation omitted.) State v. Vilalastra, 207 Conn.

35, 45, 540 A.2d 42 (1988). It also is proper for a prosecu-
tor ‘‘to ask [a] police officer whether, in his expert

opinion it is the common practice of drug sellers . . .

to work with the items found. . . . An expert may give

his opinion about the quantity of narcotics that a drug

dealer might possess.’’ (Citation omitted.) State v. Nelson, supra, 566.

In the present case, we agree with the state that

the trial court did not abuse its discretion in admitting

Flockhart’s testimony.3 During trial, Flockhart merely

testified about the general behavior of drug users and

drug traffickers. For example, Flockhart testified that

drug users usually do not have large sums of money

on them and that they are never far from their drug paraphernalia.

He also testified that, based on his experience, drug

traffickers will often break down their narcotics into

smaller packages to make distribution easier. Such testimony about the conduct of drug users and traffickers

is entirely permissible. See State v. Vilalastra, supra,

207 Conn. 45; State v. Nelson, supra, 17 Conn. App. 566.

Moreover, following defense counsel’s objection, the

prosecutor never asked Flockhart for his particularized

opinion on the significance of the defendant’s possession of money and drugs, and none of Flockhart’s

answers to the prosecutor’s questions can be classified

as an expression of his opinion on that topic. Flockhart,

therefore, never expressed his opinion on the ultimate

issue before the jury, namely, whether the defendant

intended to sell narcotics. Accordingly, we conclude

that the trial court did not abuse its discretion when it

permitted Flockhart’s testimony.

Furthermore, even if we were to assume that the

admission of Flockhart’s testimony was an abuse of

discretion, the defendant again has failed to show that

its admission was harmful. ‘‘The improper admission

of opinion testimony that answers a question that a jury

should have resolved for itself is not of constitutional

significance and is a type of evidentiary error. . . . If

the testimony is deemed to have answered a question

that was solely for the jury’s determination, the burden

is on the defendant to show that the admission more

probably than not affected the outcome of the verdict.’’

(Citation omitted.) State v. Wright, 47 Conn. App. 559,

563, 707 A.2d 295, cert. denied, 244 Conn. 917, 714 A.2d

8 (1998).

Here, the state presented ample evidence independent of Flockhart’s testimony from which the jury reasonably could have concluded that the defendant

intended to sell the narcotics in his possession. As previously observed, Pugh testified extensively about his

dealings with the defendant. Officer Faulkner also corroborated Pugh’s testimony by testifying that he had

observed the defendant coming and going from Pugh’s

apartment for months, and another police officer testified that a canine officer had alerted for drugs on the
trunk and door of the defendant’s rental car. Moreover,

the state presented evidence that the defendant had

spent approximately $2500 on rental cars in the months

leading up to his arrest, despite having no reportable

income, and that the police found $267 in small bills

on the defendant when they arrested him. Although

the defendant argues that Pugh’s testimony should be

discredited because he was a compromised witness,

witness credibility is solely the function of the jury, and

it was well within the jury’s province to find Pugh’s

testimony credible. See State v. Michael T., 194 Conn.

App. 598, 621, 222 A.3d 105 (2019) (‘‘it is the [jury’s]

exclusive province to weigh the conflicting evidence

and to determine the credibility of witnesses’’ (internal

quotation marks omitted)). Accordingly, we conclude

that, even if we were to assume that the trial court

improperly admitted Flockhart’s testimony, the defendant has failed to meet his burden of proving that the

admission of his testimony more probably than not

affected the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Officer Faulkner testified at trial that a ‘‘dub’’ is a piece of crack cocaine

weighing .2 grams.

2 Although the state has not raised the issue of preservation, we also note

that the defendant’s claim that the court erred by permitting Ricciuti to

testify about his lack of reportable wages in violation of his due process

rights was not preserved properly. ‘‘Appellate review of evidentiary rulings

is ordinarily limited to the specific legal [ground] raised by the objection

of trial counsel. . . . To permit a party to raise a different ground on appeal

than [that] raised during trial would amount to trial by ambuscade, unfair

both to the trial court and to the opposing party.’’ (Internal quotation marks

omitted.) State v. Stenner, 281 Conn. 742, 755, 917 A.2d 28, cert. denied,

552 U.S. 883, 128 S. Ct. 290, 169 L. Ed. 2d 139 (2007). Here, defense counsel

conceded that his objection to Ricciuti’s testimony was evidentiary in nature,

and failed to make any argument that the admission of such testimony

would violate the defendant’s constitutional rights. Consequently, the court

ruled on the admissibility of Ricciuti’s testimony on purely evidentiary

grounds. The defendant’s claim on appeal that the admission of such testimony violated his due process rights is thus unpreserved. See id. (holding

that defendant’s constitutional claim was unpreserved when defendant

objected on different, evidentiary basis during trial). Although a defendant

is entitled to review of an unpreserved constitutional claim pursuant to

State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), we have

concluded that the defendant’s claim is not constitutional in nature. Accordingly, we review the defendant’s claim concerning Ricciuti’s testimony on

the merits of the evidentiary ground raised at trial.

3 Although the state also has not raised the issue of preservation for this

claim, we note that the defendant’s claim that the trial court improperly

admitted Flockhart’s testimony was not preserved properly. Defense counsel

objected to the prosecutor’s initial line of questioning when he attempted

to ask Flockhart a hypothetical that closely mirrored the facts of the case.

Defense counsel, however, failed to object to the customs and behavior

questions that the prosecutor asked after the court instructed him to ask

his questions in a more general way. Because defense counsel failed to object

to this line of questioning, the defendant’s claim concerning Flockhart’s

testimony following his counsel’s objection is unpreserved. See State v.

Cromety, 102 Conn. App. 425, 430, 925 A.2d 1133 (defendant’s claim concerning testimony of expert witness was unpreserved evidentiary claim that was

not reviewable because defendant failed to object timely to testimony), cert.

denied, 284 Conn. 912, 931 A.2d 932 (2007). Although we are not required

to review unpreserved evidentiary claims; see State v. Omar, 136 Conn.

App. 87, 98–99, 99 n.3, 43 A.3d 766, cert. denied, 305 Conn. 923, 47 A.3d 883

(2012); we, nevertheless, address the defendant’s claim on its merits.