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******************************************************LEONARDO NOGUEIRA v. COMMISSIONER OF CORRECTION (AC 38119)
DiPentima, C. J., and Mullins and Flynn, Js. Argued April 13—officially released October 11, 2016 (Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)
SarahHanna, assistant state’s attorney, with whom,

on the brief, wereStephenJ. SedenskyIII , state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellant (respondent).
Michael W. Brown, for the appellee (petitioner).Opinion DiPENTIMA, C. J. Therespondent, the Commissioner ofCorrection, appeals from thejudgment ofthe habeas court granting the petition for a writ of habeas corpus filed by the petitioner, Leonardo Nogueira. On appeal, the issue before this court is whether the habeas court properly determined that the respondent had failed to establish, beyond a reasonable doubt, that the result in the petitioner’s 2002 criminal trial for kidnapping in the first degree would have been the same had the criminal trial court applied the interpretation ofkidnapping subsequently adopted by our Supreme Court in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008).1 We disagree with the conclusion of the habeas court, and, accordingly, reverse thejudgment granting the petition for a writ of habeas corpus. The following facts and procedural history are relevant to our discussion. Following a trial to the court, the petitioner was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), attempt to commit sexual assault in the first degree inviolation ofGeneral Statutes §§ 53a-70 (a) (1) and 53a-49 (a) (2), assault in thethirddegreeinviolationofGeneral Statutes § 53a-61 (a) (1) and threatening in violation of General Statutes (Rev. to 1999) § 53a-62 (a) (1). State v. Nogueira, 84 Conn. App. 819, 820, 856 A.2d 423 (2004), cert. denied, 273 Conn. 927, 873 A.2d 1000 (2005). Following the petitioner’s conviction, the court, White, J ., sentenced him to thirty-five years incarceration. Id., 822.
These criminal charges stemmed from an incident that occurred on November 11, 2000, in Danbury when the victim was attacked by the petitioner at approximately 9 p.m. Id., 821. The petitioner grabbed the legs ofthevictim, draggedheralongthe sidewalkandforced her into a window well where he sexually assaulted her for two hours. Id. The victim escaped from the window well and fled from the petitioner, who pursued her. Id. She grabbed onto a telephone pole, but the petitioner strangled her, causing her to loosen her grip. Id. He then hauled her between two houses, and kept her in that location for a period of five to ten minutes. The petitionerabscondeduponthe arrival ofthe police. Id.2 We affirmed the judgment of conviction on direct appeal. Id., 826. Following his conviction and direct appeal, our Supreme Court ‘‘issued two watershed decisions pertaining to kidnapping crimes, State v. Salamon, [supra, 287 Conn. 509], and Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011).’’ Wilcox

v. Commissioner of Correction, 162 Conn. App. 730, 736, 129 A.3d 796 (2016). Stated succinctly, ‘‘[p]ursant to the holdings ofthese decisions, a defendant who hasbeen convicted of kidnapping may collaterally attack his kidnapping conviction on the ground that the trial court’s jury instructions failed to require that the jury find that the defendant’s confinement or movement of the victim was not merely incidental to the defendant’s commission of some other crime or crimes.’’ Id.3
The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of both his trial and appellate counsel. Following a habeas trial, the court, Nazzaro, J

., issued a memorandum of decision denying the petition. Nogueira v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-06- 4001062, 2011 WL 3890968 (July 22, 2011).4 The habeas court then denied certification to appeal. We subsequently dismissed the petitioner’s appeal. Nogueira v. Commissioner of Correction, 142 Conn. App. 906, 64 A.3d 1289, cert. denied, 309 Conn. App. 902, 68 A.3d 657 (2013).
The petitioner commenced a second habeas action and filed an amended petition for a writ of habeas corpus on April 8, 2015. In count one, the petitioner alleged that his conviction of kidnapping in the first degree violated his right to due process because there

was no specific finding by Judge White in his criminal trial that he had intended to prevent the victim’s liberation for a longer period of time than was necessary to committhe crime ofsexual assaultinthefirstdegree. In counts two and three, the petitioner alleged ineffective assistance of his first habeas counsel and his appellate habeas counsel.5 The respondent filed an answer and raised the affirmative defense of procedural default as to count one. The petitioner filed a response, arguing that (1) he was not procedurally defaulted and (2) in the alternative, if count one ofthe petition was subject to a procedural default, then he satisfied the cause and prejudice requirement.
Atthe habeastrial onMay27, 2015, theparties agreed that the court should consider the ‘‘criminal trial transcripts, direct appeal materials, first habeas trial transcripts, and pleadings and the habeas appeal materials

as well.’’ Additionally, the parties agreed that no additional testimony was necessary. Counsel for the petitioner explained that because the petitioner’s conviction occurred in a trial to the court, rather than

a jury, his claim was not a jury instruction issue, but rather a ‘‘Salamon fact-finding issue.’’
OnJune 10, 2015, the court, Cobb, J ., issueditsmemorandum of decision, concluding that the petitioner’s constitutional right to due process was violated as a result of the criminal court’s failure to apply the Salamon standardforkidnappingthatwasmade retroactive to habeas proceedings inLuurtsema v. Commissioner ofCorrection, supra, 299 Conn. 740. The habeas court grantedthepetitionforawritofhabeas corpus, vacated the petitioner’s conviction ofkidnapping andremandedthe case to the criminal trial court for a new trial on the kidnapping charge.
The habeas court stated the petitioner’s claim as follows: ‘‘[H]is rights to due process oflawpursuantto the fourteenthamendmenttotheUnitedStatesconstitution and article first, §§ 8 and 9, ofthe Connecticut constitution were violated because he was convicted ofkidnapping absent a finding by the fact finder, in this case the [criminal] trial court, that the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the crime of sexual assault, and other crimes, as now required byStatev. Salamon, supra, 287 Conn. 509.’’
The habeas court stated that it was undisputed in the present case that Judge White, in 2002, had not applied the Salamon standard, which was not part of our law until 2008, in finding the petitioner guilty ofkidnapping in the first degree. ‘‘In particular, the [criminal] trial court did not consider whether the petitioner intended to move orconfinethevictimin awaythathadindependent criminal significance, that is, that the victim was restrainedto anextentexceedingthatwhichwasnecessary to accomplish or complete the other crime, in this

case the sexual assaults and other crimes.’’ The habeas court, therefore, concluded that the petitioner had suffered a violation of his due process rights. It then rejected the respondent’s affirmative defense ofprocedural default.6 For a remedy, it followed Luurtsema v. CommissionerofCorrection, supra, 299 Conn. 740, and ordered that the case be returned to the criminal trial court for a new trial on the charge of kidnapping in the first degree. On June 22, 2015, the respondent filed a petition for certification to appeal, which the habeas court granted. This appeal followed. Additional facts will be set forth as necessary. After this court heard oral argument in the present case, our Supreme Court released its decision inHinds

v. CommissionerofCorrection, 321 Conn. 56, 136 A.3d 596 (2016). That decision contains a historical review of the changes to our kidnapping law and establishes the proper test for determining whether the failure to applytheSalamonstandardconstitutedharmless error. Accordingly, a detailed review of Hinds will facilitate

our analysis of the respondent’s appeal in the case before us. InHinds, the courtbeganbynotingthatthe hallmark of the crime of kidnapping ‘‘is an abduction, a term that is defined by incorporating and building upon the definitionofrestraint.’’ Id., 66–67. ItthenturnedtoState

v. Chetcuti, 173 Conn. 165, 170–71, 377 A.2d 263 (1977), in which the court had rejected the claim that if the abductionandrestraintofavictimaremerelyincidental to another crime, that abduction and restraint cannot support a conviction ofkidnapping. Hinds v. Commissioner of Correction, supra, 321 Conn. 67. ‘‘The courtpointed to the fact that our legislature had declined to merge the offense of kidnapping with sexual assault or with any other felony, as well as its clearly manifested intentinthe kidnapping statutes notto impose anytime requirement for the restraint or any distance requirement forthe asportation.’’ Id. Despite anumber ofchallenges over the years, our Supreme Court consistently maintainedthatpositionwith respectto the kidnapping statute. Id., 67–68.
In State v. Salamon, supra, 287 Conn. 509, however,

our Supreme Court reexamined its interpretation ofthe crime ofkidnapping, andreachedaconclusion contrary tothree decadesofitspriorholdings.Hindsv. Commissioner ofCorrection, supra, 321 Conn. 68. The court in Salamonexplained: ‘‘Uponexaminationofthe common law of kidnapping, the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy objectives animating those statutes, we now conclude the following: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim’s liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merelyincidental to andnecessaryforthe commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degreethanthatwhichisnecessaryto committhe other crime.’’ (Emphasis in original; internal quotation marks omitted.) Id., 68–69.
The court in Hinds then turned to Luurtsema v. Commissioner of Correction, supra, 299 Conn. 740, which had concluded ‘‘as a matter of state common lawthatpolicyconsiderationsweighedinfavorofretroactive application of Salamon to collateral attacks on judgments rendered final before that decision was issued.’’ Hinds v. Commissioner ofCorrection, supra, 321 Conn. 69. With those principles in mind, the court addressedtheissueofwhetherthepetitioner’sSalamon claim was subjectto the doctrine ofprocedural default7

as a result of his failure to challenge the kidnapping instruction at his criminal trial. Id., 70. Ultimately, our Supreme Court concluded that a Salamon claim, as raised by the petitioner, was not subject to procedural default. Id., 76.
The court proceeded to the question of whether the petitioner was entitled to a new trial as a result of the omission of the proper instruction on kidnapping pursuant to Salamon

. Id. It determined that the proper test to apply was the harmless error standard applied

on a direct appeal to a claim that an essential elementis absent from ajury instruction. Id., 76–77. ‘‘On direct appeal, [i]t is well established that a defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled.

. . . [T]he test for determining whether a constitutional error is harmless

. . . is whether it appears beyond a reasonable doubtthatthe error complained ofdid not contribute to the verdict obtained.

. . . Ajury instruction that improperly omits an essential element from the charge constitutes harmless error [only] if a reviewing court concludes beyond a reasonable doubt that the omitted elementwasuncontestedandsupportedbyoverwhelming evidence, such that the jury verdict would have been the same absent the error

. . . . The failure to charge in accordance with Salamon is viewed as an omission of an essential element

. . . and thus gives riseto constitutional error.’’ (Citations omitted; internal quotation marks omitted.) Id., 77–78. Following a consideration ofthe factors setforthinSalamon as applied to the facts, the court in Hinds concluded that the omission of the required instruction was not harmless beyond a reasonable doubt. Id., 78–81.
Before considering the present case in light of the controlling principles set forth in Hinds, we address

one characteristic distinguishing it from the majority of post- Salamon appellate cases. In this matter, the petitioner was convicted following a trial to the court, whereas most ofthe post- Salamon cases have involved jury trials. One exception, however, is State v. Thompson, 118 Conn.App. 140, 983A.2d20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010). In that case, the defendant was convicted of kidnapping in the first degree, sexual assault in the first degree and attempt to commit sexual assault in the first degree. Id., 142–43. On appeal, he argued, inter alia, that his conviction of kidnapping in the first degree should be reversed following the new interpretation ofthat crime. Id., 143. In the context of a trial to the court, we stated that ‘‘the court was required to have made a specific factual finding, ifit determinedthatsuch afindingwasjustified by the evidence, that the defendant

. . . must have intend[ed] to preventthe victim’s liberation foralonger period of time or to a greater degree than that which [was] necessary to commit the other crime.’’ (Internal quotation marks omitted.) Id., 161. We also described

a ‘‘Salamon finding’’ as ‘‘one that, when reasonably supported by the evidence, the restraint was or was not merely incidental to some other, separate crime.’’ Id., 161 n.10.
Our task, therefore, is to examine the facts of the present case through the analytical lens of Hinds v. Commissioner of Correction, supra, 321 Conn. 56, to determine if the absence of a specific factual finding

asrequiredbySalamon constitutedharmless error. Our standard of review is well established. ‘‘[W]hile [t]heunderlying historical facts found by the habeas court may not be disturbed unless the findings were clearly

erroneous

. . . [q]uestions oflaw and mixed questions oflaw andfactreceive plenaryreview.’’ (Internalquotation marks omitted.) Id., 65; see also Farmer v. Commissioner ofCorrection, 165 Conn. App. 455, 459, 139 A.3d 767 (2016) (applicability ofSalamon and whether trial court’s failure to give Salamon instruction was harmless error constitute issues of law subject to plenary review).
The issue of whether the movement or confinement of a victim merely was incidental to and necessary for another crime, such as sexual assault, is dependent

on the facts and circumstances of each case. State v. Salamon, supra, 287 Conn. 547; see alsoStatev. Hampton, 293 Conn. 435, 460, 988 A.2d 167 (2009); Wilcox v. Commissioner of Correction, supra, 162 Conn. App. 743; EricM. v. CommissionerofCorrection, 153 Conn. App. 837, 843–44, 108 A.3d 1128 (2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015). Accordingly, we begin with a detailed recitation of the facts of the present case. In a long form information dated October 25, 2001, the state charged the petitioner with kidnapping in the first degree as follows: ‘‘In the Superior Court of the State ofConnecticutatDanbury, WarrenMurray, SupervisoryAssistantState’sAttorneyfortheJudicialDistrict of Danbury, accuses [the petitioner] of the crime of Kidnapping in the First Degree. It is further charged that in the city of Danbury, Connecticut, on or about the 11th day of November 2000, the said [petitioner], abducted another person, and restrained the person abducted with the intent to sexually abuse that person in violation of Connecticut General Statutes Section 53a-92 (a) (2) (A). This crime occurred in the vicinity of West and Harmony Streets.’’ The state also charged the petitioner with sexual assault in the first degree by

means of fellatio, attempt to commit sexual assault in the first degree bymeans ofvaginalpenetration, assault in the third degree and threatening.
OnApril 12, 2002, atthe conclusion ofthepetitioner’s criminal trial, the court issued an oral decision finding him guilty on all charges. Specifically, the court stated: ‘‘I will indicate that my decision’s based on my review of the entire evidence, the testimony of all the witnesses, as well as the exhibits, and I will make some general findings of fact here. And I want to make it clear that my decision isn’t limited to the findings I’m going to make now, but I will mention some factual findings specifically, but I’ve relied on others as well. ‘‘On or about November 11, 2000, at between 8 p.m. and 9 p.m. inthe evening, onthe—on ornearthe corner of West Avenue and Harmony Street here in Danbury, the victim

. . . was walking in the direction of the Food Bag store and encountered the [petitioner] whilehe was riding on his bicycle. ‘‘At that time, the [petitioner] attempted to engage the victim in conversation. The victim indicated that she was not interested in engaging in a conversation and attemptedto leave. And atthattime the [petitioner] got off of his bicycle, physically grabbed the victim by the legs, dragged her along the ground for a distance of approximately 113 feet to a window well adjacent to a nearby church. The [petitioner] forced the victim into the window well and kept her there for a period of time between an hour-and-a-half and two hours. ‘‘Now, during that encounter, the victim was forced to removeherclothing. She loweredherpantspartway, and after she did that the [petitioner] knocked her to the ground and got on top ofher and tried to insert his penis into her vagina. As he was doing that, the victim

was struggling and screaming, scratching and clawing, but the [petitioner] use[d] superior strength to hold her down in this effort to, as I said, insert his penis into her vagina. ‘‘During the course oftheir time in the window well, the [petitioner] also grabbed the victim by the hair and forced her head down to his groin area. And on a minimum—or at aminimum ofthree times, forced her head

on—or her mouth onto his penis and inserted in—his penis was inserted into her mouth. ‘‘Also, during the course ofthe encounter, the victim attempted to escape, repeatedly, and repeatedly the [petitioner] physically stopped her from leaving and, in fact, at one pointthreatened to kill her andtold herthat he wasn’t going to let her leave until he was finished. ‘‘Well, at some point after, a dark-haired Hispanic male encountered the [petitioner] and the victim, and engaged the [petitioner] in some altercations. The victim finally managed to escape, but was chased by the [petitioner]. And at or about the corner of West Street and Harmony Street, the victim threw herself on the hood of a maroon car driven by Michelle Emmanuel, who was with her boyfriend at the time, and who saw the [petitioner] chasing after the victim. The victim at the time was screaming for help. ‘‘Michelle Emmanuel locked the doors to her car, but continued to watch what was going on. And she says that the—well, the evidence establishes that the victim again tried to get away from the [petitioner]. She ran to a nearby telephone pole or utility pole and held onto it. The [petitioner] pried her from the pole, dragged her to anearby areabetween awhite house and a detached garage, and appeared to again attempt to sexually assault her. ‘‘At the time ofthe encounter between the house and the garage, Ms. Emmanuel was flashing her lights in the [petitioner’s]—inthevictim’s direction andhonking her horn. [The petitioner] looked at her but continueddoing what he was doing. Ms. Emmanuel called the police who arrived shortly thereafter.

. . . ‘‘So, those are some preliminary findings—or general findings offacts. As I indicated, I want to make it clear those aren’t the only facts that I’m relying on in making my decision, but I will mention those things specifically.

. . . ‘‘Now, the [petitioner] is charged with the crime of kidnapping in the first degree in violation of § 53a-92 (a) (2) of the Penal Code, which provides as follows: Apersonis guiltyofkidnappinginthe first degree when he abducts another person and he restrains the person abducted with the intent to abuse her sexually.

. . . ‘‘In this case, the credible evidence establishes beyond a reasonable doubt that the [petitioner] abducted the victim, unlawfully restrained her, and restrained her with the intent to sexually abuse her. The [petitioner], without the victim’s consent, and againstherwill, physicallyheldherbyherlegs, dragged herbody from a sidewalk on West Street into awindow well ofa nearby church and forced her to remain there for close to two hours while he repeatedly forced his penis into her mouth. He told her that he would not let her leave until he was finished and said he would kill her if she did not stop screaming.
‘‘In addition, the [petitioner], while in the window wellwiththevictim, initiated contactbetweenhispenis and her vagina in an attempt to engage in sexual intercourse with her. The evidence clearly establishes each of the elements of kidnapping in the first degree, and the court therefore finds the [petitioner] guilty of that charge. That’s the first count.

. . . ‘‘The credible evidence in this case establishes that the [petitioner] compelledthevictimto engageinsexual intercourse in the form of fellatio and that the sexual intercourse in the form of fellatio was accomplished by the use of force against the victim. ‘‘When the [petitioner] and the victim were in the window well together for nearly two hours, the [petitioner] on three occasions held the victim by the hair, physically forced her head down to his groin area and inserted his penis into her mouth. The victim screamed for help, struggled with the [petitioner], and repeatedly tried to escape, but the [petitioner] used violence to prevent her from leaving, as he repeatedly forced her to engage in sexual intercourse by way of fellatio.

. . . ‘‘The [petitioner] dragged the victim against her will from an area on West Street into a window well of a nearby church and threw her to the ground after she lowered her pants. He then held her down by placing his body on top of her, and initiated contact between her vagina and his penis without her consent. When the [petitioner’s] penis touched the victim’s vagina, the victim was moving around in orderto prevent him frompenetrating her vagina with it. ‘‘During the course ofthe attack the [petitioner] told the victim that if she did not stop screaming he would kill her and that he would not release her until he was finished. When the victim repeatedly tried to escape from the window well, the [petitioner] physically prevented her from leaving.

. . . ‘‘During the encounter between the [petitioner] and the victim, the [petitioner] dragged the victim’s body along the ground, pulled her hair, threw her to the ground, bit her breasts, choked her, physically fought with her, and attempted to insert his penis into her vagina. As a result of the [petitioner’s] conduct, the victim suffered numerous scrapes, bruises, abrasions, trauma, and experienced pain. The [petitioner’s] conscious objective to engage in the aforementioned conduct, causing physical injury to the victim, was his desire to sexually assault her—or, I should say, the [petitioner’s] motivation in consciously engaging in the conduct that I mention, was to sexually assault her.

. . . ‘‘In this case, the credible evidence establishes beyond areasonable doubtthatthe [petitioner] is guilty of[the crime ofthreatening]. The [petitioner] usedphysical force to keep the victim in the church window well for close to two hours while he forced her to perform oral sex on him and attempted to have vaginal intercourse with her, all against her will and without her consent. ‘‘During the course ofthe attack, the [petitioner] told thevictimhewouldnotreleaseheruntilhewasfinished and that he would kill herifshe did not stop screaming. The victim repeatedly tried to escape from the [petitioner], but was unable to do so because he used violence to stop her. When the [petitioner] told the victim he would kill her, it was his conscious objective to place her in fear of imminent serious physical injury. She was frightened by the [petitioner’s] conduct, and his actions in sexually assaulting her and physically assaulting her indicated his intent and ability to carry out his threat.’’
Certain evidence not mentioned in the court’s oral decision describing the window well is pertinent to our analysis. One of the police officers testified that the window well in question was eight feet long, two feet and four inches wide, and four and one-half feet deep. The bottom of the window well was lined with rocks. This testimony was not challenged or refuted during the trial.
We now return to the seminal case of State v. Salamon, supra, 287 Conn. 509, which established the new interpretation of our kidnapping statutes. In that case,
our Supreme Court concluded that the legislature ‘‘intendedto excludefromthe scope ofthemore seriouscrime ofkidnappinganditsaccompanyingseverepenalties those confinements or movements of a victim that merely are incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.’’ Id., 542. It also noted that its holding did not amountto a ‘‘complete refutation’’ ofthe principles established in our prior kidnapping law. Id., 546. ‘‘First, in order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement. When that confinement or movement is merely incidental to the commission ofanother crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle iswhetherthe [confinementormovement] wassomuch the part of another substantive crime that the substantive crime couldnothave been committedwithout such acts

. . . . In other words, the test

. . . to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping hasoccurredaskswhethertheconfinement, movement,
ordetentionwasmerelyincidentaltotheaccompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.

. . . ‘‘Conversely, a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victimwas restrainedto anextentexceedingthatwhich

was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merelyincidentalto and necessaryfor another crime will depend on the particular facts and circumstances ofeach case. Consequently, when the evidence reasonably supports afinding that the restraint was not merely incidental to the commission of some other, separate crime, theultimate factual determinationmust be made bythejury. Forpurposes ofmakingthat determination, thejury should be instructed to consider the various relevant factors, including the nature and duration of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whethertherestraintwasinherentinthenature ofthe separate offense, whetherthe restraintprevented the victim from summoning assistance, whether the restraint reduced the defendant’s risk of detection and whether the restraint created a significant danger or increased the victim’s risk ofharm independent ofthat posed by the separate offense. (Citations omitted;emphasis in original; footnotes omitted; internal quotation marks omitted.) Id., 546–48.
The court in Salamon also affirmed the general principle that an individual could be charged with and convicted of more than one crime arising from the same act or acts, so long as all ofthe elements ofeach crime

were proven. Id., 548. Last, it noted the limited applicability of the new rule established: ‘‘[O]ur holding is relatively narrow and directly affects only those cases in which the state cannot establish that the restraint involved had independent significance as the predicate conduct for a kidnapping. We therefore do not anticipate that ourholdingwillforce amajorshiftinprosecutorial decision making.’’ Id.
As previously stated, the question of whether the movement or confinement of a victim merely was incidental to and necessary for another crime, such as sexualassault, is dependentonthefacts andcircumstances of each case. To that end, we examine the decisions fromourSupreme Courtandthiscourtthathaveconsidered the issue ofwhether the failure to apply Salamon constituted harmless error. We first discuss the cases that have determined that the absence of the Salamon rule amounted to harmless error, and then consider those that reached a contrary conclusion and required

a new trial.
We begin with State v. Hampton, supra, 293 Conn. 438, inwhichthe defendant claimed in his direct appeal that his convictions for kidnapping in the first degree andconspiracyto commitkidnappinginthe firstdegree should be reversed on the basis ofSalamon

. InHampton, the defendant was with his friend, James Mitchell, who received a telephone call from the victim requesting a ride home. Id., 439. After picking her up, the three individuals went to a restaurant. Despite telling the victim that he would drive her home, Mitchell began angrily asking her about her brother. Id. Despite the pleas of the victim, the defendant and Mitchell refused to take her home and instead drove around for approximatelythree hours. Id. Afterparking at a closed gas station, where it was dark, Mitchell ordered her out of the car and the defendant pointed a shotgun at her face. Id. Mitchellthen sexuallyassaultedher, and, afterward, bothMitchell andthe defendant shother. Id., 440.
On appeal, our Supreme Court agreed with the state that the failure to give the Salamon instruction was harmless because it was clear ‘‘beyond a reasonable doubt that thejury’s verdict would have been the same in the absence ofthe impropriety.’’ Id., 462. It reasoned that there was no evidence in the record that could rationally lead ajury to a reach a contrary finding that the restraint ofthevictimbythe defendantwas incidental to or inherent in the other crimes. Id., 463. There

was a three hour time period from when the defendant andMitchellhadpickedupthevictimtothecommissionof the sexual assault and shooting. Id., 463–64. ‘‘The passage of this substantial period of time, which was uncontested bythe defendant attrial, clearly shows the defendant’s intent to prevent the victim’s liberation for

a longer period of time or to a greater degree than that necessary to commit the subsequent crimes. His restraint of the victim was not incidental to any additional offenses.’’ (Emphasis in original.) Id., 464.
In Eric M

. v. Commissioner of Correction, supra, 153 Conn. App. 839, the petitioner and the victim were in the process of ending their marriage. The petitioner lured the victim into the basement ofthe marital home where, after forcing her to the ground, he ordered her to put on handcuffs. Id. After binding and gagging her foraperiodoftime, hereleasedhertousethebathroom, and then sexually assaulted her. Id., 839–40. The victim

was able to run out of the bathroom, but was tackled and choked unconscious by the petitioner, at which point she fell through a glass storm door. Id., 840. The petitioner then tied her to a bed, where the victim was able to call the police. Id. The petitioner was convicted oftwo counts ofkidnappinginthefirstdegree, unlawful restraintinthefirstdegree, assaultinthe seconddegree and sexual assault in a spousal relationship, and this court affirmed his conviction. Statev. EricM ., 79 Conn. App. 91, 829 A.2d 439 (2003), aff’d, 271 Conn. 641, 858 A.2d 767 (2004).
The petitioner then commenced a habeas action, arguing that his constitutional right to due process was violated because had the jury in his criminal trial been given a Salamon instruction, it would not have found him guilty of two counts of kidnapping in the first degree. Eric M

. v. Commissioner ofCorrection, supra, 153 Conn. App. 841–42. Both the petitioner and the CommissionerofCorrectionfiledmotions forsummary judgment, and the habeas court granted the latter’s motion. Id., 842. It concluded that there was sufficient evidence in the record to show that the restraints imposed on the victim were not incidental to any other crime, and, therefore the failure to give the Salamon instruction was harmless beyond a reasonable doubt. Id.
On appeal, we noted that the test for determining harmlessnesswas ‘‘whetheritappearsbeyondareasonable doubtthatthe [impropriety] complained ofdid not contribute to the verdict obtained.’’ (Internal quotation marks omitted.) Id., 845. We also noted the observation in Luurtsema v. Commissioner of Correction, supra, 299 Conn. 769–70, that ‘‘courts will be able to dispose summarily of many cases where it is sufficiently clear from the evidence presented at trial that the petitioner

was guiltyofkidnapping, asproperlydefined, [and] that any error arising from a failure to instruct the jury in accordance with the rule in Salamon was harmless.’’ (Internalquotationmarks omitted.)EricM

. v. Commis-sioner of Correction, supra, 153 Conn. App. 845. In reviewing the facts from the criminal trial, we noted that the petitioner had sexually assaulted the victim for a few minutes, while the restraint had lasted for approximately five hours. Id., 846. Thus, under these facts, the failure to give the Salmon instruction was harmless beyond a reasonable doubt. Id., 847.
In State v. Jordan, 129 Conn. App. 215, 217, 19 A.3d 241, cert. denied, 302 Conn. 910, 23A.3d 1248 (2011), the defendant entered the bedroom ofhis former romantic partner, D, and her new boyfriend, E. The defendant beat E with astick, andpulled D back into the bedroom by her hair. Id. He then incapacitated D by striking her in the head with the stick. Id. The defendant continued to savagelyassaultEbyusingamophandleto sodomize him while D was directed to clean the blood off the walls. Id., 217–18. The defendant threatened D with

a gun and struck E in the head with it. Id., 218. He subsequently was convicted of one count of burglary, two counts of kidnapping in the second degree, two counts of assault in the first degree and one count of sexual assault in the first degree. Id., 216.
Onappeal, the defendantclaimedthathewas entitled toanewtrialonthekidnappingchargesasaresultofthe failure ofthe court to provide thejury with a Salamon instruction. Id., 219. The state countered that although such an instruction was required, the court’s failure to do so amounted to harmless error ‘‘because the state offered sufficient evidence suchthatno reasonablejury could have concluded that the restraint of the victims by the defendant was merely incidental to the other crimes of assault and sexual assault.’’ Id.
The defendant argued that ‘‘the entire forty-five minute confinement of the victims was comprised of the defendant’s assaultive action. There was, therefore,

no period of time during which the victims were restrained for a greater degree than was necessary to commit the assaults.’’ Id., 222. We iterated that, even subsequent to Salamon, the crime of kidnapping does not require a minimum period of confinement. Id. Instead, we determined that the evidence reasonably could not support the conclusion that the restraint of the victims by the defendant was merely incidental to the assaults and the sexual assault. Id. Specifically, we concluded that he had restricted the movement of the victims to afargreater degree thannecessaryto assault them. Id. Further, while he was assaulting one victim, the other was not free to leave, and when neither was being assaulted, he controlled their movement by not allowing them to leave. Id., 222–23.
In State v. Strong, 122 Conn. App. 131, 134, 999 A.2d 765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010), the defendant was convicted of a multitude of crimes, included kidnapping in the first degree and threatening in the second degree. The victim and the defendant,whose marriage was ‘‘plagued by violence,’’ had separated. Id. The defendant requested the victim to meet him in aparking lot. Id. Eventually he retrieved apistol and threatened to kill her if she did not follow his instructions. Id., 134–35. After ordering her to drive to
a desolate area, the defendantthen ordered herto drive tothehome ofone ofhisfriends. Id., 135. The defendant toldthe victimthat his friends were ‘‘goingto rape her.’’ Id. The defendant held her there for more than one hourbefore returning herto the parking lot. Id., 135–36. The defendant continued terrorizing her that night and the nextmorning, includingrunning hercar offthe road when she was driving to work. Id., 136.
On appeal, we considered the issue of whether the lack of the Salamon instruction, under these facts, amounted to harmless error. Id., 139. In answering that question in the affirmative, we concluded that the verdict would have been the same in the absence of the claimed impropriety. Id., 142. Specifically, we pointed to the overwhelming evidence ofkidnapping as aresult of the defendant’s having ordered the victim to drive from the parking lot to the friend’s house and having heldheragainstherwillinthe car. Id., 143. The evidence ofthreatening consisted ofhis threat to kill her, repeatedlyyelling at her, and the threat that his friends would sexually assault her. Id. ‘‘The defendant’s prolonged restraint of the victim in her car while forcing her to drive

. . . and while forcing her to remain in the car reasonably could not be considered merely incidental to either of the threatening charges.’’ Id. Put another way, there was no evidence that rationally could have led thejury to conclude that the restraint was inherent in or incidental to the threatening. Id.
In State v. Nelson, 118 Conn. App. 831, 833, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010), the defendant was convicted of the crimes of kidnapping, assault and burglary. As the victim entered his apartment, he was ambushed by the defendant and an accomplice, and was bound at the hands and feet. Id., 834. The assailants struckthevictim, demandedmoney, and tortured him by burning his face and abdomen. Id. After approximately one hour, the assailants placed the victim in an automobile and drove around looking for

anindividualwho owedthevictimmoney. Id., 835. After

an additional assault, thevictimwas leftpartiallybound in his automobile near a high school. Id., 836. These events occurred over nearly five hours. Id.
On appeal, we agreed with the defendant that the jury should have received the Salamon instruction. Id., 860. The state argued that this error was harmless because the victim had been restrained for several hoursafterthecompletionoftheassault. Id. Inaffirming the defendant’s conviction of kidnapping, we noted: ‘‘The substantial length ofthe victim’s restraint following the assaultive conduct by the defendant is signifi-cant to our analysis. The defendant’s restraint during such a substantial amount oftime is overwhelming evidence of the defendant’s intent to prevent the victim’s liberationforalongerperiodoftimethanthatnecessary for the commission of any other crime. Stated otherwise, after reviewing all of the evidence presented, we do not believe that a rational jury could find that the defendant’s restraint of the victim was inherent in, or incidental to, assault or any other crime.’’ Id., 861.
We also are guided by our Supreme Court’s decision in State v. Ward, 306 Conn. 718, 725–26, 51 A.3d 970 (2012), acase inwhichthe trial courtgrantedthe defendant’s motion for ajudgment of acquittal following the jury’s finding of guilt on the charges of sexual assault in the first degree and kidnapping in the first degree. In Ward, the victim was alone in her rural home when the defendant, who was nearly double her size, requested water for his overheated vehicle. Id., 722. When he returned for additional water, he pushed open the door, grabbed a metal knife sharpening tool, wrapped his arms around the victim and threatened to kill her if she did not follow his instructions. Id. 723. With the sharpening tool held to the victim’s neck, the defendant dragged her down the hallway and into the master bedroom. Id. Once there, he pushed the victim onto the bed, removed some of her clothes, and then pulled her to the floor. Id., 723–24. He then sexually assaulted her. Id., 724.
The trial court provided the jury with the Salamon instruction. Id., 726. After thejury found the defendant guilty onboth counts, the court grantedthe defendant’s motion for ajudgment ofacquittal as to the kidnapping charge on the basis of Salamon

. Id., 725. Specifically, the trial court concludedthat ‘‘no reasonablejury could have found under [the facts adduced at trial] that the defendant kidnapped the victim as defined by our statutes.’’ (Internal quotation marks omitted.) Id., 725–26. The trial court emphasized that the incident occurred during atento twentyminute time period, the relatively small size ofthe victim’s home, the minimal movement from the kitchen to the bedroom, and the incidental and minimal use of the weapon. Id., 728.
Inreviewingthegrantingofthemotionforajudgment ofacquittal, our Supreme Court, afternoting that it was
a close case, concluded that the jury, having received the Salamon instruction, reasonably could have found that the confinement or movement of the victim was not merely incidental to the sexual assault. Id., 736. Specifically, it noted that the victim could not escape from the defendant, who was twice her size and who held her very tightly. Id. The movement of the victim from the kitchen door made the chance ofescape more remote. Id. The defendantcouldhavesexuallyassaulted her without threatening to kill her or without holding the weapon to her neck, and therefore, the force usedby the defendant exceeded that which was necessary to commit the sexual assault. Id. The conduct of the defendant was intended to frighten and subdue the victim so as to prevent her from struggling, seeking assistance or attempting to escape. Id. Further, the use of the weapon increased the risk of harm to the victim, andmovementfromthe kitchen doormade itless likely that the criminal conduct would be detected. Id., 736– 37. Last, had the defendant intended to move her to a location more comfortable for him, he could have placed her on the bed; instead, he eventually pulled her to the floor before sexually assaulting her. Id., 737.
‘‘In short, although the defendant did not confine the victim for a lengthy period of time or move her a significant distance, the facts and circumstances ofthe present case, considered as a whole, support thejury’s determination that the restraint of the victim was not merely incidental to or an inherent part of the sexual assault. Our decision is not based on any single fact, but on the cumulative effect ofthe evidence adduced at trial.’’ (Footnote omitted.) Id., 738. Our Supreme Court noted that in the absence ofeven one ofthe facts relied upon by the state in its argument, it may have reached

a different result. Id., 738 n.12.
To complete our analysis of the parameters of the harmless error inquiry under Hinds, we now turn to thecasesinwhichareviewingcourtdeterminedthatthe failureto applytheSalamon standardwas notharmless andrequiredanewtrial. Forexample, inStatev. Fields, 302 Conn. 236, 238, 24 A.3d 1243 (2011), the defendant

was convicted, inter alia, of two counts of kidnapping in the second degree and one count of assault in the first degree. One of the victims, Marilyn Cortes, ended

an abusive relationship with the defendant and lived with, interalia, herdaughterandherdaughter’sbrotherin-law, Taoufik Razek. Id., 239–40. The defendant entered Cortes’ new residence without permission and stole $500. Id., 240–41. The next day, the defendant promisedto returnthe moneyto Razekatacoffee shop; this, however, wasarusetogethimoutoftheresidence. Id., 241–42. The defendant then went to the residence and forced Cortes at gunpoint to the bedroom, where he bound her wrists and covered her mouth with duct tape. Id., 242. He then drove Cortes to a gas station to pick up an accomplice, and then returned to the residence. Id.
Razek subsequently returned to the residence and

was physically assaulted by the defendant. Id., 242–43. The defendant then struck Cortes in the face after she had been prevented by the accomplice from calling the police. Id., 243. After the defendant threatened to kill Razek, a towel was wrapped over Razek’s head and he

was placed into the backseat of a car. Id. Razek managed to escape from the car and call the police. Id., 243–44.On appeal, the defendant argued that he was entitled to a new trial with respect to the kidnapping charge as to Razek as a result of the court’s failure to instruct the jury in accordance with Salamon

. Id., 244–45. Our Supreme Court rejected the state’s argument thatSalamon did not apply and turned to the issue of harmlessness. Id., 248–50. In rejecting the state’s argument, the court noted that there was conflicting testimony fromthe two victims as to whetheritwas the defendant

or the accomplice who forcibly moved Razek to the

car. Id., 250. If the jury had credited Cortes’ version of events, it might have found the defendant guilty of kidnapping solely on the basis of the restraint during the actual assault. Id., 251. It further noted that the state had charged the defendant with the kidnapping of Razek, and not with conspiracy to commit kidnappingorbeinganaccessorytokidnapping. Id., 252. Under these circumstances, the lack ofaSalamon instruction

was not harmless beyond a reasonable doubt. Id., 253.
In State v. Flores, 301 Conn. 77, 79–80, 17 A.3d 1025 (2011), the defendant was convicted of numerous offenses, including kidnapping in the first degree and robbery in the first degree. The defendant and two accomplices, wearing dark clothes and ski masks, entered the bedroom of the victim and her boyfriend. Id., 80–81. The defendanttappedthevictimontheshoulderwithagunandaskedherwhere she kepthermoney. Id., 81. The defendant attempted to cover her mouth with duct tape, but she resisted. Id. The victim, who knew the defendant socially and deduced his identity, believed his statement that he was not going to hurt her. Id. One of the defendant’s accomplices placed the gun in the mouth of the victim’s boyfriend, and the other accomplice struck the boyfriend in the head after heattemptedtoescapeoutofawindow. Id., 81–82.After taking some ofthe possessions from the apartment, the defendant and his accomplices left. Id., 82. The time frame of the incident was between five and twenty minutes. Id.
Onappeal,thestateconcededthataSalamoninstruction should have been given, but argued that it was harmless error. Id., 83. In reviewing this claim, our Supreme Court noted that, due to the manner in which the state had charged the defendant, the kidnapping charge applied only to the victim, and not the victim’s boyfriend. Id., 85. Additionally, the state did not claim thattheperiod ofrestraint exceededthetime necessary to commit the robbery, so its appellate argument was limited to the issue of the amount of force used to restrain the victim. Id. Because the victim was not bound or moved physically during the commission of therobbery, whichlastedfornomorethanfiveminutes, and was released immediately upon the conclusion of the robbery, our Supreme Court determined that it would have been reasonable for a jury to find, ifinstructed properly, that the restraint did not rise to the level ofa kidnapping apart from the armed robbery. Id., 87. In short, under the facts and circumstances presented, ‘‘at what point the force used to commit the robbery [became] so excessive as to have independent criminal significance [was] a quintessential question of fact for determination by the jury.’’ Id., 89.
In Epps v. Commissioner of Correction, 153 Conn. App. 729, 731, 108 A.3d 1128 (2014), the petitioner had been convicted of kidnapping and assault. The petitioner and the victim had been engaged, but the victim wanted to end the relationship after learning that the petitioner had contracted a sexually transmitted disease. Id., 732. While in the petitioner’s van, the victim ended the relationship, at which time he pulled herinto the backseat and attempted to choke her several times. Id. Eventually, she returned to the front seat, at which time the petitioner poured gasoline on her and set her

on fire. Id. The petitioner testified that he only had hit her in self-defense and that after he left the van, the victim had set herself on fire. Id., 733.
In his habeas petition, the petitioner claimed error in his criminal trial because the jury had not received the Salamon instruction. Id. In addressing the issue of prejudice as a result of inadequate kidnapping instructions, we applied the harmless error standard subsequently mandated by our Supreme Court in Hinds v. Commissioner of Correction, supra, 321 Conn. 256. Epps v. Commissioner ofCorrection, supra, 153 Conn. 740. In concludingthatthe state had notmet its burden,

we stated: ‘‘This is not a case in which the allegations that gave rise to the kidnapping charge, or any of the charges, were uncontested and supported by overwhelming evidence. Although the incident endured longer than it took to commit the assault, the evidence is not undisputed or overwhelming that the victim’s movements were restricted by the petitioner during all

orportions ofthat incident, ifat all. The victim testified that the petitioner repeatedly held her down, by sitting

on top of her and pinning her down with his knees to restrain her, even when he was not hitting or choking her. The petitioner disputed those allegations. In proceeding through an iteration ofthe evidence presented at trial, and the permissible inferences that may be drawn from that evidence, concerning the duration of the subject incident, the actions of the petitioner and the actions of the victim, the commissioner is asking this court to weigh that evidence, little of which was undisputed, and the majority ofwhich consisted ofthe testimony of the petitioner versus the testimony ofthe victim. Such is not ataskthat is properly ours to undertake.’’ Id., 741.
In State v. Thompson, supra, 118 Conn. App. 142–43, the defendant, following a court trial, was convicted of kidnapping in the first degree, sexual assault inthe firstdegree and attempt to commit sexual assault in the first degree. The defendant, a drug dealer, entered the vehicle driven by the victim, who was seeking to purchase drugs. Id., 143–44. The victimpreviously hadpurchased drugs on credit from the defendant but had not yetpaidforthem. Id. The defendantrefusedthevictim’s offer to pay him, slapped her, and ordered her to pull the vehicle over. Id., 144. After the defendant removed the keys from the ignition, the victim attempted to flee but was grabbed by the defendant and pulled to the side ofanearby building. Id. The victim, after receiving severalpunches, compliedwiththedefendant’sdemand that she remove her clothes. Id. The defendant then sexually assaulted her. Id. The entire episode lasted fifteen to twenty minutes. Id. The defendant forced the victim into the passenger’s seat and drove on several streets. Id. At some point, the victim escaped. Id., 144–45.
On appeal to this court, the defendant claimed that his conviction of kidnapping should be reversed on the basis of Salamon and its progeny. Id., 154. After reviewing the relevant cases from our Supreme Court;

see id., 154–60; we noted that our review was limited to the defendant’s conduct up to the completion of the sexual assault because § 53a-92 (a) (2) requires the intent to eitherphysically injure orviolate or abuse the victim sexually. Id., 160–61. Thus, under the facts of the case, our analysis was limited to the conclusion of the sexual assault. Id. We further noted that the trial court, as the finder offact, ‘‘was required to have made

a specific factual finding, if it determined that such a findingwasjustifiedbythe evidence, thatthe defendant in this matter must have intend[ed] to prevent the victim’sliberationforalongerperiodoftime orto agreater degree than that which [was] necessary to commit the other crime.’’ (Internal quotation marks omitted.) Id., 161.
We determined that this court could not supply the required findings. Id., 162. ‘‘Put simply, we are unable to concludethatthe evidencebeforeusdoesnotreasonably support a finding that the defendant’s restraint of the victim was or was not so inextricably linked to the underlying crime itself.

. . . Contrary to the state’s contention, it is not clear beyond a reasonable doubt that the verdict would have been the same in the absence ofthe allegedimpropriety. The state’s evidence

was not so overwhelming that it would prevent a converse finding bythe fact finder as to whetherthe defendant’s restraint ofthe victim was inherent in, or merely incidentalto, the sexual assault.’’ (Citation omitted.) Id.
We conclude our review of the relevant cases, with facts that fairly can be described as a literal parade of horribles, with Hinds v. Commissioner ofCorrection, supra, 321 Conn. 56. As we previously detailed, our Supreme Court eliminated the application ofthe proce-dural default doctrine in cases involving a collateral attack on a final judgment rendered prior to the Salamon decision. Id., 76. We also, however, must consider the facts, as well as the reasoning that supported the conclusion that the lack of the Salamon instruction

was not harmless error. In Hinds, the victim left a grocery store and was walking to a friend’s apartment locatednearby. Id., 61. Thevictim cutthrough aparking lot where she was followed by the petitioner, causing her to run. Id., 61–62. The petitioner pursued and grabbed her, putting one hand around herwaist andthe otherbrieflyoverhermouth. Id., 62. Afterthreateningto kill the victim if she screamed, he threw her to the ground and dragged her by the legs to a grassy area, behind a bush, where it was darker. Id. The petitioner sat on the victim’s chest with his legs outside her arms
so that she could not move, and ordered her to open hermouth. Id. He forced herto perform fellatio on him, and after ejaculating in her mouth, patted her on the cheek and told her that she could leave. Id. The victim, frozen in fear, remained; so the petitioner entered his vehicle and left. Id. During his trial, the jury was not given the Salamon instruction. See id. Addressingtheissue ofharmlessness, the courtnoted that it was required to ‘‘consider the legal parameters set forth in Salamon, and the standard for assessing whether the omission of such guidance to the jury requires reversal ofthe petitioner’s kidnapping conviction.’’ Id., 76–77. It stated that ifthe evidence regarding

a defendant’s intent was susceptible to more than a single interpretation, then the question was one for the fact finder. Id., 79. ‘‘The petitioner’s actions in the present case were a continuous, uninterrupted course of conduct lasting minutes. The petitioner could not accomplish the sexual assault without grabbing [the victim] andbringing herto the ground. He released [the victim] as soon as the sexual assault was completed. Thus, the essential fact is the movement of [the victim]. [The victim’s] asportation from the spot where she was grabbed to the site of the sexual assault, however, appears to be a matter ofyards and accomplished in a matter of seconds. Although that movement took [the victim] from the lit parking lot to the adjacent dark ground by a bush, an act that undoubtedly reduced the risk of detection in one regard, it also brought [the victim] inverycloseproximityto anoccupiedresidence in the lot adjacent to the parking lot. There is no evidence that the risk of harm to [the victim] was made appreciably greater by the asportation in and of itself. A properly instructed jury reasonably could conclude that the petitioner’s intention in moving [the victim] from the lit lot to the dark, grassy area was to prevent her from being able to get a good look at his face, because he could notperform inthe lit space, or simply to avoid the hard paved surface while kneeling on the ground.’’ (Footnotes omitted.) Id., 79–80.The court later noted that the victim’s ability to escape was not diminished as a result ofthe movement from the parking lot to the grassy area and, aside from the brief moment when the petitioner placed his hand

overhermouth, the victim’s physical abilityto summon help was impaired solely due to the nature ofthe sexual assault. Id., 87. It also quoted, with approval, from a decision bythe Superior Court: ‘‘Although no minimum period ofrestraint or degree ofmovement is necessary forthe crime ofkidnapping, an important facet ofcases where the trial court has failed to give a Salamon instruction and that impropriety on appellate review has been deemed harmless error is that longer periods ofrestraint or greater degrees ofmovement demarcate separate offenses.

. . . Thus

. . . multiple offenses

are more readily distinguishable—and, consequently,

more likelyto renderthe absence ofaSalamon instruction harmless—when the offenses are separated by greatertime spans, orby more movement orrestriction of movement. Conversely, multiple offenses occurring in a much shorter or more compressed time span make the same determination more difficult and, therefore,

more likely to necessitate submission to ajury for it to make its factual determinations regarding whether the restraintismerelyincidentaltoanother, separate crime. In those scenarios, where kidnapping and multiple offenses occurcloserintimeto one another, itbecomes

more difficult to distinguish the confinement or restraint associated with the kidnapping from another substantive crime. The failure to give aproperSalamon instruction in those scenarios is more likely to result in harmful error precisely because of the difficulty in determiningwhethereachcrimehasindependentcriminal significance.’’ (Citations omitted; internal quotation marks omitted.) Id., 92–93; see also Wilcoxv. Commissioner of Correction, supra, 162 Conn. App. 743–46. Against this backdrop we now consider the present
case. As made abundantly clear by our review of the precedents fromthis court and our Supreme Court, this determination requires a detailed consideration of the facts and circumstances relating to the criminal conduct. Here, the criminal trial court found that the petitioner encountered the victim on a street corner, got off his bicycle, physically grabbed the victim by the legs, dragged her along the ground for approximately 113 feet to the window well of a nearby church.8 The petitioner forced the victim into a window well, which, according to the uncontested evidence, was four and one-halffeet deep9 and lined with rocks. The petitioner keptherinthewindowwellforaperiodoftimebetween ninety and one hundred and twenty minutes.
While in the window well, the petitioner forced the victim to lower her pants, at which time he knocked her to the ground. He got on top of her and attempted to insert his penis into hervagina. The victim struggledand screamed10 while scratching and clawing the petitioner. Her attempts at self-defense, however, were unsuccessful, as the petitioner used his superior strength to hold the victim down during his attempt at sexual assault by way of vaginal penetration.11 The petitionergraspedthe victim’s hairand forcedhis penis inside her mouth on three separate occasions during the encounter. The victim testified that the total time of oral penetration was five minutes, and this was not contradicted at any point by the petitioner.
The criminal trial court found that the victim repeatedly tried to escape and that the petitioner repeatedly prevented her from doing so. At some point, a third party interrupted the petitioner, and, at this point the victim was able to escape from the window well. While being chased by the petitioner, the victimjumped onto the hood a car located at the corner ofWest Street and Harmony Street. The victim pleaded for help from the occupants ofthe car, and then, in an effort to get away from the petitioner, ran to a nearby telephone pole and held onto it. At that point, the petitioner pried her off,12 dragged her to a nearby area between a house and detached garage, and again attempted to sexually assault her. The police arrived shortly thereafter,13 at which point the petitioner fled from the scene. We conclude thatthe present case is more analogous to the cases where a reviewing court concluded that the lack oftheSalamon instruction was harmless error and distinguishable from those cases14 in which the absence ofthe Salamon instruction or finding required

a new trial. In order to reach this conclusion, we carefully have reviewed and considered both the facts and the legal reasoning of the precedent cited herein. We

are satisfied that the respondent has met his burden.15
To answer the question of whether the absence of the Salamon standard constituted harmless error requires us to examine the factors and principles enunciatedinthatcase. Weiteratethat‘‘[a] defendantmaybe convicted of both kidnapping and another substantive crimeif, atanytimepriorto, during orafterthe commission ofthatothercrime, thevictimismovedorconfined in a way that has independent criminal significance, thatis, thevictimwas restrainedto an extent exceeding that which was necessary to accomplish or complete the other crime.

. . . For the purposes of making that determination, the [factfindershould] considerthevarious relevant factors, including the nature and duration ofthe victim’s movement or confinement by the defendant, whether that movement or confinement occurred duringthe commission ofthe separate offense, whether the restraint was inherent in the nature ofthe separate offense, whethertherestraintpreventedthevictimfrom summoning assistance, whether the restraint reduced the defendant’s risk of detection and whether the restraint created a significant danger or increased thevictim’s risk of harm independent of that posed by the separate offense.’’ State v. Salamon, supra, 287 Conn. 547–48; see alsoHinds v. CommissionerofCorrection, supra, 321 Conn. 78–79. Here, the petitioner pulled the victim to the ground and dragged her 113 feet to the window well, but it is unclear how long this process took, as the evidence indicates that the victim was resisting this movement. The petitioner’s movement of the victim in this case is distinguishable from the facts in Hinds, where the victimwasmoved‘‘onlyamatterofyards,’’whichoccurred in a matter ofseconds. Hinds v. CommissionerofCorrection, supra, 321 Conn. 80. Furthermore, while the events ofHinds were described as a ‘‘continuous, uninterrupted course of conduct lasting minutes’’; id., 79; in the present case, the petitioner’s criminal conduct continued for nearly two hours and was interrupted by both the actions of a third party and the victim’s attempts to escape. Moreover, the petitioner dragged the victim more than 100 feet from the site of their initial encounter to the window well, and then moved her from the telephone pole to the area between the white house and detached garage. In contrast to the facts of Hinds, there was no evidence that one area
was lit or that there was an occupied building. See id., 80. Additionally, the risk of harm to the victim in the present case was appreciably greater as a result of the movement to the restrictive area within the window well, whichwas linedwithrocks. Cf. Hindsv. Commissioner ofCorrection, supra, 80. This movement to the window well also served to reduce the likelihood of detection. Nor could a reasonable fact finder conclude thatthe windowwellwas more conducive forthe crime of sexual assault. See State v. Ward, supra, 306 Conn. 737.
Most significantly, the asportation of the victim to the window well diminished her ability to escape.16 See Hindsv. CommissionerofCorrection, supra, 321 Conn. 87. The victim was placed in an area, essentially a deep hole, that served as a secondary restraint on her movement, the first being the physical restraint by the petitioner. The confines ofthewindowwellseverelylimited the victim’s escape routes. By limiting the direction in which she couldflee, the petitionerhad agreaterability to control her movement. Additionally, even when the five and one-half foot tall victim was able to escape from the physical custody of the petitioner, the depth of the window well, which measured four and onehalf feet, appreciably debilitated her ability to escape because ofthe inherent and obvious difficulty in climbing out.17 In other words, the window well served as a second level ofrestraint on the victim, orchestrated by the petitioner, and a reasonable fact finder could not conclude that this additional restraint was necessary to complete the crime of sexual assault or attempt to commit sexual assault. See id., 92; see also State v.Wilcox, supra, 162 Conn. App. 748; EricM

. v. Commissioner of Correction, supra, 153 Conn. App. 846–47; State v. Jordan, supra, 129 Conn. App. 222–23. Moreover, a fact finder reasonably could not conclude that the confinement of the victim in the window well was merely incidental to and necessary for the commission of the sexual assault charges. Simply put, the confinement ofthe victim in the window well had independent criminal significance. Furthermore, afterthevictimwasableto escapefrom the window well, the petitioner chased after her. The victim threw herself on the hood of a car and then clutched atelephone pole, atwhichpointthe petitioner ordered her to let go of the telephone pole, grabbed her arms, and choked the victim until she was left with

no choice but to release her grip. The petitioner then dragged the victim to an area between the white house and detached garage and again attempted to sexually assault her. These additional acts by the petitioner furtherevidence anintentto frightenthevictim, toprevent herescape, andto restrainhermorethanwasnecessary to sexually assault her or attemptto committhat crime.
The facts ofthe present case also are distinguishable from those found in Salamon, DeJesus and Sanseverino, the trilogy of cases in which our Supreme Court reconsidereditsinterpretationofourstatutesanddetermined that restraint incidental to the commission of another offense no longer constituted the crime of kidnapping. In State v. Salamon, supra, 287 Conn. 514–15, the fifteen year old victim disembarked atrain in Stamford after falling asleep. The defendant followed her into a stairwell in the train station. Id., 515. The defendantgrabbedthevictimbythebackofherneck, causing her to fall to the ground and injure her elbow. Id. The defendant then positioned himself next to the victim and held her down by the hair. Id. After the victim screamed, the defendant punched her in the mouth and attempted to place his fingers in her throat. Id. The victimwasableto escape. Id. Ajuryfoundthe defendant guilty of kidnapping in the second degree, unlawful restraint in the first degree and risk ofinjury to a child. Id., 512–13.
In State v. DeJesus, supra, 288 Conn. 423–24, the defendant, a manager of a supermarket, instructed the victim to go into a room in the upper level ofthe store. The defendant entered the room, removed the victim’s pants and underwear and instructed her to sit on a desk. After ignoring the victim’s statement that she did not want to do this, the defendant sexually assaulted the victim. Id., 423. Afterward, the victim moved away from the defendant, put on her clothes, and left the

room. Id. The defendant was convicted of two counts of sexual assault in the first degree and one count of kidnapping in the first degree. Id., 420–21.
In State v. Sanseverino, supra, 291 Conn. 581, thedefendant, the owner of a bakery, followed the victim, G, into the back room and grabbed her. He pushed the victim against the wall and forced her arms over her head. Id. The victim could not move because the defendantpressedhisbodyagainsther. Id. Afterpullingdown herpants, andthenhis,thedefendantsexuallyassaulted the victim. Id. He then released the victim. Id. The defendant subsequently was convicted of kidnapping in the first degree and sexual assault in the first degree. Id., 583.
In Salamon, DeJesus and Sanseverino, the jury reasonably could have found that the restraint of the victims was incidental to the commission of another offense, and therefore the convictions of kidnapping could not stand. In this case, however, the petitioner’s restraint and movement ofthe victim had independent criminal significance to support his conviction of kidnapping. Moreover, we are mindful of our Supreme Court’s observations thattheSalamonrule didnot constitute a‘‘complete refutation’’;Statev. Salamon, supra, 287 Conn. 546; of the principles in its prior kidnapping jurisprudence and that its holding was ‘‘relatively narrow and directly affects only those cases in which the state cannot establish that the restraint involved had independent significance as the predicate conduct for

a kidnapping.’’ Id., 548.
Under the facts and circumstances of this case, we concludethatareasonablefactfinder, undertheproper interpretation of our kidnapping law, could not find that the restraint of the victim was merely incidental to oraninherentpartofthesexualassaultcrimes. Given the uncontested and overwhelming evidence before the criminal trial court, we conclude that that judgment would have been the same hadJudge White applied the law set forth in Salamon

. The evidence presented by the state, considered as a whole; see State v. Ward, supra, 306 Conn. 738; would prevent a finding that the restraint inthis case was inherent in, ormerelyincidental to, the crimes ofsexual assault and attempt to commit sexual assault. See State v. Thompson, supra, 118 Conn. App. 162. The failure of the criminal trial court to make the Salamon finding was harmless error. The judgment is reversed and the case is remanded with directionto denythepetitioner’s amendedpetition for a writ of habeas corpus. In this opinion the other judges concurred.

1 In his main and reply briefs, the respondent also argued that the habeas court improperly (1) considered the petitioner’s due process claim before addressing the cause and prejudice test to defeat the affirmative defense ofprocedural default and (2) determined that the petitioner had established ‘‘good cause’’ for failing to raise his Salamon claim on direct appeal. After oral argument, our Supreme Court released its decision in Hinds

v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016), which

we will discuss extensively. The Hinds decision held that the petitioner’s Salamon claim was not subject to the procedural default doctrine. Id., 76. Followingpublication oftheHinds decision on the Judicial Branch website,

we orderedthe parties, sua sponte, to file simultaneous supplementalbriefs,addressingthe effect oftheHinds decision onthe present case. We received the briefs from the parties on May 9, 2016. In the respondent’s supplement brief, he stated: ‘‘Assuming the holding of Hinds is final, it is binding. Thus the [respondent’s] claims in his main and reply briefs that the habeas court incorrectly applied the standards undertheproceduraldefaultdoctrinefail.’’Therespondentfurtherexplained that Hinds was decided incorrectly and did not ‘‘withdraw his claims addressed in his main and reply briefs.’’ As an intermediate appellate court, we, of course, are bound by the decisions of our Supreme Court. See State v. Madera, 160 Conn. App. 851, 861–62, 125 A.3d 1071 (2015); State v. Grant, 149 Conn. App. 41, 54, 87 A.3d 1150, cert. denied, 312 Conn. 907, 93 A.3d 158 (2014). We agree with the respondent that his claims regarding the procedural default doctrine must fail in the present case. The only issue left, therefore, is whether the respondent established that the court’s failure to apply the Salamon standard in the petitioner’s 2002 criminal trial was harmless error.
2 In State v. Nogueira, supra, 84 Conn. App. 820, the issue before this court was whether the denial of a motion to suppress the out-of-court identification of the petitioner by the victim violated his due process right to a fair trial. Therefore, our recitation of these facts originated from the victim’s testimony at the hearing on the motion to suppress. In this opinion,

we will set forth the facts found by the criminal trial court that supported the petitioner’s conviction.

3 Other cases during this time period that altered the interpretation ofour kidnapping statutes include State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), and superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 579, 969 A.2d 710 (2009), overruled in part by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012).

4 Judge Nazzaro determined, in the context of the issue raised in the petitioner’s first habeas trial, that there was more than incidental restraint in this case. Specifically, he stated: ‘‘[T]here was overwhelming evidence ofa struggle, ofa dragging ofthe body, ofthe pleas for help, the screaming, the re-assaults if you will, the oral violation of the victim, the attempted vaginal violation, the constant withholding of the liberty of the victim, so there is no question there is sufficient evidence of guilt on all the charges.’’ Nogueira v. Warden, supra, 2011 WL 3890968, *10. He later noted in the memorandum of decision that ‘‘because of the abundance of evidence that the restraint was far more than incidental,’’ an appeal based on State v. Salamon, supra, 287 Conn. 509, would not have succeeded. Nogueira v. Warden, supra, 2011 WL 3890968, *13.

5 The petitioner subsequently abandoned his claims of ineffective assistance of his prior habeas counsel.

6 On the basis our decisions in Hinds v. Commissioner of Correction, 151 Conn. App. 837, 97 A.3d 986 (2014), aff’d, 321 Conn. 56, 136 A.3d 596 (2016), and Epps v. Commissioner ofCorrection, 153 Conn. App. 729, 108 A.3d 1128 (2014), thehabeascourtconcludedthatthepetitionerhadsatisfied the cause and actual prejudice prongs, and therefore was not procedurally defaulted. With respect to the latter, the court stated: ‘‘Having reviewed the entirerecordinthis case, the courtisnotsatisfiedbeyondareasonable doubt that the omitted element was uncontested or supported by overwhelming evidence, such that the jury verdict would have been the same had the correct instruction on the charge of kidnapping applied by the [criminal] trial court. Although the incident took place over an extended period of time, the evidence and findings ofthe [criminal] trial court indicate that the victim was assaulted during that time, except for short periods when he

was interrupted or the victim escaped. When the victim escaped and was caught by the petitioner, he again restrained her and assaulted her during that time until the police arrived. Thus, given the proximity in time and location of the restraint and abduction to the sexual assault and other charges, there is a reasonable probability that absence ofthe proper charge prejudiced the petitioner and subsequently impacted the trial. Although the evidence supporting the other charges was overwhelming, this cannot be said of the charge of kidnapping, making it a question properly for a jury

or trier of fact to decide.’’ It then concluded that ‘‘the petitioner’s due process rights were violated bythe absence ofthe application ofthe [criminal] trial court oftheSalamon charge on kidnapping. In addition, the courtrejectsthe respondent’s affirmative defense ofprocedural default finding that the petitioner has established

cause for not raising the issue in his direct appeal, and prejudice, in thatthe absence ofthe proper kidnapping instruction significantly impacted the trial such that the petitioner suffered actual prejudice.’’

7 The court in Hinds noted that the procedural default standard set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), had been adopted in Connecticut. ‘‘Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.

. . . [T]he cause and prejudice test is designed to prevent full review ofissues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons oftactics, inadvertence or ignorance

. . . . The cause and prejudice requirement is not jurisdictional in nature, but rather a prudential limitation on the right to raise constitutional claims in collateral proceedings.’’ (Citation omitted; internal quotation marks omitted.) Hinds v. Commissioner of Correction, supra, 321 Conn. 71.

8 The victim also testified that she struggled ‘‘[t]he whole time, at every moment’’ during the time period that the petitioner dragged her to the window well. This testimony was not contested by the petitioner.

9 The depth of the window well is significant because the victim testified that she was five and one-half feet tall, so being placed in this window well made escape substantially more difficult as she not only had to break away from the physical restraint of the petitioner, but also had to climb out of whatamountedto adeep hole inthe ground. Additionally, the depthreduced the risk ofdetection ofthe petitioner’s criminal conduct. These factors were not present in Hinds v. Commissioner ofCorrection, supra, 321 Conn. 59.

10 The victim stated that she implored the petitioner to ‘‘leave her alone’’ and to let her go, but he instructed her to ‘‘shut up’’ and ordered her not to cry. Again, this testimony was not disputed during the criminal trial.

11 The victim testified that she tried on several occasions to get out, but that she was not able. She also stated that the petitioner punched her and threatened to kill her. During this point, she pleaded with the petitioner to not ‘‘hurt me anymore.’’

12 The victim testified that while she clung to the telephone pole, the petitioner demanded that she let go, and then pulled on her arms in an effort to remove her from the pole before strangling her, which caused her to release her grip.

13 The victim indicated that period of time was ‘‘not even five or ten minutes

. . . .’’

14 See State v. Fields, supra, 302 Conn. 253; State v. Flores, supra, 301 Conn. 83; Epps v. Commissioner ofCorrection, supra, 153 Conn. App. 742; State v. Thompson, supra, 118 Conn. App. 161.

15 We note that we were not presented with a case in which the time of the underlying offense was brief and was either preceded or followed by

an extended period of restraint. See, e.g., State v. Hampton, supra, 293 Conn. 435 (victim restrained for three hours prior to assaults); Farmer v. Commissioner ofCorrection, supra, 165 Conn. App. 462 (victim restrained forsixto sevenhoursfollowingassault);EricM

. v. CommissionerofCorrection, supra, 153 Conn. App. 846 (sexual assault lasted few minutes and entire period of restraint occurred during a period spanning at least five hours); State v. Kirby, 137 Conn. App. 29, 51, 46 A.3d 1056 (defendant assaulted victim with stun gun in her home and then took victim for circuitous drive on back roads of New London County with time spent at his home), cert. denied, 307 Conn. 908, 53 A.2d 222 (2012); State v. Strong, supra, 122 Conn. App. 131 (defendantrestrainedvictim forprolongedperiod and made two briefthreats to kill victim and permit his friends to sexually assault her); State v. Nelson, supra, 118 Conn. App. 831 (significant period of restraint following assault). Although the events of the present case lasted for a period of up to two hours, the facts do not indicate any demarcation between the time of the assault and the overall incident. In other words, under the record before us, we are unable to determine the amount of time in which the sexual assault and attempt to commit sexual assault occurred vis-a `-vis the overall period of time of the incident.

16 The placement ofthe victim in the window well also served to frighten and subdue her to prevent her from summoning assistance despite the fortunate and timely arrival of the third parties in this case. See State v. Ward, supra, 306 Conn. 736. It also made detection less likely. Id., 737.

17 The victim testified that when the petitioner briefly left to fight with a third party, she tried to get out of the window well, but the depth impeded her departure and allowed the petitioner to throw her back down. Only following another altercation between the petitioner and the thirdpartywasthe victim able to get out ofthe window well. The petitioner, however, was able to quickly hunt her down and resume his felonious conduct.