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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.)

Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were Stephen J. Sedensky III, 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. The respondent, the Commissioner

of Correction, appeals from the judgment of the 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 of kidnapping 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 the judgment 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 in violation of General

Statutes §§ 53a-70 (a) (1) and 53a-49 (a) (2), assault in

the third degree in violation of General 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

of the victim, dragged her along the sidewalk and forced

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 petitioner absconded upon the arrival of the 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 of these decisions, a defendant who has
been 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

commit the crime of sexual assault in the first degree. 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 of the petition was subject

to a procedural default, then he satisfied the cause and

prejudice requirement.

At the habeas trial on May 27, 2015, the parties 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.’’

On June 10, 2015, the court, Cobb, J., issued its memorandum 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 standard for kidnapping that was made retroactive

to habeas proceedings in Luurtsema v. Commissioner

of Correction, supra, 299 Conn. 740. The habeas court

granted the petition for a writ of habeas corpus, vacated

the petitioner’s conviction of kidnapping and remanded
the 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 of law pursuant to the

fourteenth amendment to the United States constitution

and article first, §§ 8 and 9, of the Connecticut constitution were violated because he was convicted of kidnapping 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 by State v. 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 of kidnapping

in the first degree. ‘‘In particular, the [criminal] trial

court did not consider whether the petitioner intended

to move or confine the victim in a way that had independent criminal significance, that is, that the victim was

restrained to an extent exceeding that which was necessary 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 of procedural default.6 For a remedy, it followed Luurtsema v.

Commissioner of Correction, 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 in Hinds

v. Commissioner of Correction, 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

apply the Salamon standard constituted harmless error.

Accordingly, a detailed review of Hinds will facilitate

our analysis of the respondent’s appeal in the case

before us.

In Hinds, the court began by noting that the hallmark

of the crime of kidnapping ‘‘is an abduction, a term

that is defined by incorporating and building upon the

definition ofrestraint.’’ Id., 66–67. It then turned to State

v. Chetcuti, 173 Conn. 165, 170–71, 377 A.2d 263 (1977),

in which the court had rejected the claim that if the

abduction and restraint of a victim are merely incidental

to another crime, that abduction and restraint cannot

support a conviction of kidnapping. Hinds v. Commissioner of Correction, supra, 321 Conn. 67. ‘‘The court
pointed 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

intent in the kidnapping statutes not to impose any time

requirement for the restraint or any distance requirement for the asportation.’’ Id. Despite a number of challenges over the years, our Supreme Court consistently

maintained that position with respect to the kidnapping

statute. Id., 67–68.

In State v. Salamon, supra, 287 Conn. 509, however,

our Supreme Court reexamined its interpretation of the

crime of kidnapping, and reached a conclusion contrary

to three decades of its prior holdings. Hinds v. Commissioner of Correction, supra, 321 Conn. 68. The court in

Salamon explained: ‘‘Upon examination of the 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

merely incidental to and necessary for the commission

of another crime against that victim. Stated otherwise,

to commit a kidnapping in conjunction with another

crime, a defendant must intend to prevent the victim’s

liberation for a longer period of time or to a greater

degree than that which is necessary to commit the other

crime.’’ (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

law that policy considerations weighed in favor ofretroactive application of Salamon to collateral attacks on

judgments rendered final before that decision was

issued.’’ Hinds v. Commissioner of Correction, supra,

321 Conn. 69. With those principles in mind, the court

addressed the issue of whetherthe petitioner’s Salamon

claim was subject to the doctrine of procedural 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 element
is absent from a jury 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 doubt that the error complained of did not contribute to the verdict obtained. . . . A jury 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

element was uncontested and supported by overwhelming 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

rise to constitutional error.’’(Citations omitted; internal

quotation marks omitted.) Id., 77–78. Following a consideration of the factors set forth in Salamon 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 of the post-Salamon cases have involved

jury trials. One exception, however, is State v. Thompson, 118 Conn.App. 140, 983 A.2d 20 (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 of that 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, if it determined that such a finding was justified

by the evidence, that the defendant . . . must have

intend[ed] to prevent the victim’s liberation for a longer

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

as required by Salamon constituted harmless error. Our

standard of review is well established. ‘‘[W]hile [t]he
underlying historical facts found by the habeas court

may not be disturbed unless the findings were clearly

erroneous . . . [q]uestions of law and mixed questions

of law and fact receive plenary review.’’ (Internal quotation marks omitted.) Id., 65; see also Farmer v. Commissioner of Correction, 165 Conn. App. 455, 459, 139

A.3d 767 (2016) (applicability of Salamon 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 also State v. Hampton, 293 Conn. 435, 460, 988 A.2d 167 (2009); Wilcox v.

Commissioner of Correction, supra, 162 Conn. App.

743; Eric M. v. Commissioner of Correction, 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 of Connecticut at Danbury, Warren Murray, Supervisory Assistant State’s Attorney forthe Judicial District

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 by means of vaginal penetration, assault

in the third degree and threatening.

On April 12, 2002, at the conclusion of the petitioner’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. in the evening, on the—on or near the 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] while
he 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 attempted to leave. And at that time 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 remove her clothing. She lowered her pants part way,

and after she did that the [petitioner] knocked her to

the ground and got on top of her 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 of their 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 a minimum of three 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 of the encounter, the victim

attempted to escape, repeatedly, and repeatedly the

[petitioner] physically stopped her from leaving and, in

fact, at one point threatened to kill her and told her that

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 a nearby area between a white house and a detached

garage, and appeared to again attempt to sexually

assault her.

‘‘At the time of the encounter between the house and

the garage, Ms. Emmanuel was flashing her lights in

the [petitioner’s]—in the victim’s direction and honking

her horn. [The petitioner] looked at her but continued
doing what he was doing. Ms. Emmanuel called the

police who arrived shortly thereafter. . . .

‘‘So, those are some preliminary findings—or general

findings of facts. 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:

A person is guilty of kidnapping in the 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

against her will, physically held her by her legs, dragged

her body from a sidewalk on West Street into a window

well of a 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

well with the victim, initiated contact between his penis

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] compelled the victim to engage in sexual

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 order to prevent him from
penetrating her vagina with it.

‘‘During the course of the 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 a reasonable doubt that the [petitioner] is guilty

of [the crime of threatening]. The [petitioner] used physical 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 of the attack, the [petitioner] told

the victim he would notrelease her until he was finished

and that he would kill her if she 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

‘‘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

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 amount to a ‘‘complete refutation’’ of the 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 of another crime, however, the confinement or

movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle

is whetherthe [confinement or movement] was so much

the part of another substantive crime that the substantive crime could not have been committed without 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

has occurred asks whetherthe confinement, movement,

or detention was merely incidental to the accompanying

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

victim was restrained to an extent exceeding that which

was necessary to accomplish or complete the other

crime. Whether the movement or confinement of the

victim is merely incidental to and necessary for another

crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence

reasonably supports a finding that the restraint was not

merely incidental to the commission of some other,

separate crime, the ultimate factual determination must

be made by the jury. For purposes of making that determination, the jury 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, whetherthe restraint was inherent in the nature

of the separate offense, whether the restraint prevented

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 of harm independent of that

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 of the elements of each 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 our holding will force a major shift in prosecutorial 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 sexual assault, is dependent on the facts and circumstances

of each case. To that end, we examine the decisions

from our SupremeCourt and this courtthat have considered the issue of whether 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, in which the defendant claimed in his direct appeal

that his convictions for kidnapping in the first degree

and conspiracy to commit kidnapping in the first degree

should be reversed on the basis of Salamon. In Hampton, 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

approximately three hours. Id. After parking 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. Mitchell then sexually assaulted her, and, afterward, both Mitchell and the defendant shot her. 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 the jury’s verdict would have been the same

in the absence of the impropriety.’’ Id., 462. It reasoned

that there was no evidence in the record that could

rationally lead a jury to a reach a contrary finding that

the restraint of the victim by the defendant was incidental to or inherent in the other crimes. Id., 463. There

was a three hour time period from when the defendant

and Mitchell had picked up the victim to the commission
of the sexual assault and shooting. Id., 463–64. ‘‘The

passage of this substantial period of time, which was

uncontested by the defendant at trial, 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 of the marital home

where, after forcing her to the ground, he ordered her

to put on handcuffs. Id. After binding and gagging her

for a period oftime, he released herto use the bathroom,

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

of two counts of kidnapping in the first degree, unlawful

restraint in the first degree, assault in the second degree

and sexual assault in a spousal relationship, and this

court affirmed his conviction. State v. Eric M., 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 of Correction, supra,

153 Conn. App. 841–42. Both the petitioner and the

Commissioner of Correction filed motions for summary

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

harmlessness was ‘‘whetherit appears beyond a reasonable doubt that the [impropriety] complained of did 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 guilty of kidnapping, as properly defined, [and] that

any error arising from a failure to instruct the jury in

accordance with the rule in Salamon was harmless.’’

(Internal quotation marks omitted.) Eric M. 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, 23 A.3d 1248 (2011), the

defendant entered the bedroom of his former romantic

partner, D, and her new boyfriend, E. The defendant

beat E with a stick, and pulled 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 savagely assault E by using a mop handle to 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.

On appeal, the defendant claimed that he was entitled

to a new trial on the kidnapping charges as a result ofthe

failure of the court to provide the jury 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 such that no reasonable jury

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 a far greater degree than necessary to 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 a parking lot. Id. Eventually he retrieved a pistol

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 defendant then ordered her to drive

to the home of one of his friends. Id., 135. The defendant

told the victim that his friends were ‘‘going to rape her.’’

Id. The defendant held her there for more than one

hour before returning her to the parking lot. Id., 135–36.

The defendant continued terrorizing her that night and

the next morning, including running her car off the 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 of kidnapping as a result

of the defendant’s having ordered the victim to drive

from the parking lot to the friend’s house and having

held her against her will in the car. Id., 143. The evidence

of threatening consisted of his threat to kill her, repeatedly yelling 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 the jury 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 struck the victim, demanded money,

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

an individual who owed the victim money. Id., 835. After

an additional assault, the victim was left partially bound

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

hours afterthe completion of the assault.Id. In affirming

the defendant’s conviction of kidnapping, we noted:

‘‘The substantial length of the 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 of time is overwhelming evidence of the defendant’s intent to prevent the victim’s

liberation for a longer period of time than that necessary

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), a case in which the trial court granted the defendant’s motion for a judgment 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 the jury found the defendant

guilty on both counts, the court granted the defendant’s

motion for a judgment of acquittal as to the kidnapping

charge on the basis of Salamon. Id., 725. Specifically,

the trial court concluded that ‘‘no reasonable jury 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 a ten to twenty minute time period, the relatively

small size of the victim’s home, the minimal movement

from the kitchen to the bedroom, and the incidental

and minimal use of the weapon. Id., 728.

In reviewing the granting ofthe motion for a judgment

of acquittal, our Supreme Court, after noting 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 of escape more

remote. Id. The defendant could have sexually assaulted

her without threatening to kill her or without holding

the weapon to her neck, and therefore, the force used
by 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,

and movement from the kitchen door made it less 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 of the

present case, considered as a whole, support the jury’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 of the evidence adduced at

trial.’’ (Footnote omitted.) Id., 738. Our Supreme Court

noted that in the absence of even one of the 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

the cases in which a reviewing court determined thatthe

failure to apply the Salamon standard was not harmless

and required a new trial. For example, in State v. 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, inter alia, her daughter and her daughter’s brotherin-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

promised to return the money to Razek at a coffee shop;

this, however, was a ruse to get him out of the residence.

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 that Salamon 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

from the two victims as to whether it was 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 kidnapping or being an accessory to kidnapping.Id., 252. Under

these circumstances, the lack of a Salamon 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 defendanttapped the victim on the shoulder with a gun and asked her where she kept her money.

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

he attempted to escape out of a window.Id., 81–82.After

taking some of the 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.

On appeal,the state conceded that a Salamon instruction 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

that the period of restraint exceeded the time 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

the robbery, which lasted for no more than five minutes,

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, if
instructed properly, that the restraint did not rise to

the level of a 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 her into

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 of Correction, supra, 153 Conn.

740. In concluding that the state had not met 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

or portions of that incident, if at 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 of the 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 of which consisted of the

testimony of the petitioner versus the testimony of the

victim. Such is not a task that 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 in the first
degree 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 victim previously had purchased drugs on credit from the defendant but had not

yet paid for them. Id. The defendant refused the victim’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 of a nearby building. Id. The victim, after receiving

several punches, complied with the defendant’s demand

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 either physically injure or violate 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 of fact, ‘‘was required to have made

a specific factual finding, if it determined that such a

finding was justified by the evidence, that the defendant

in this matter must have intend[ed] to prevent the victim’s liberation for a longer period of time orto a greater

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 conclude that the evidence before us does notreasonably 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 of the alleged impropriety. The state’s evidence

was not so overwhelming that it would prevent a converse finding by the fact finder as to whether the defendant’s restraint of the victim was inherent in, or merely

incidental to, 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 of Correction,

supra, 321 Conn. 56. As we previously detailed, our

Supreme Court eliminated the application of the 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

located nearby. Id., 61. The victim cut through a parking

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 her waist and the

other briefly over her mouth. Id., 62. Afterthreatening to

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

her mouth. Id. He forced her to 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.

Addressing the issue of harmlessness, the court noted

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 of the petitioner’s kidnapping conviction.’’ Id., 76–77. It stated that if the 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] and bringing her to 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 of yards 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] in very close proximity to an occupied residence

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 not perform in the 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 of the movement

from the parking lot to the grassy area and, aside from

the brief moment when the petitioner placed his hand

over her mouth, the victim’s physical ability to summon

help was impaired solely due to the nature of the sexual

assault. Id., 87. It also quoted, with approval, from a

decision by the Superior Court: ‘‘Although no minimum

period of restraint or degree of movement is necessary

for the crime of kidnapping, an important facet of cases

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

of restraint or greater degrees of movement demarcate

separate offenses. . . . Thus . . . multiple offenses

are more readily distinguishable—and, consequently,

more likely to render the absence of a Salamon instruction harmless—when the offenses are separated by

greater time spans, or by more movement or restriction

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 a jury for it to

make its factual determinations regarding whether the

restraint is merely incidental to another, separate crime.

In those scenarios, where kidnapping and multiple

offenses occur closerin time to one another, it becomes

more difficult to distinguish the confinement or

restraint associated with the kidnapping from another

substantive crime. The failure to give a proper Salamon

instruction in those scenarios is more likely to result

in harmful error precisely because of the difficulty in

determining whether each crime has independent criminal significance.’’ (Citations omitted; internal quotation

marks omitted.) Id., 92–93; see also Wilcox v. 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 from this 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-half feet deep9 and lined with rocks. The petitioner

kept herin the window well for a period of time between

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 her vagina. The victim struggled
and 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

petitioner grasped the victim’s hair and forced his 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 victim jumped onto

the hood a car located at the corner of West Street and

Harmony Street. The victim pleaded for help from the

occupants of the 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 that the present case is more analogous

to the cases where a reviewing court concluded that

the lack of the Salamon instruction was harmless error

and distinguishable from those cases14 in which the

absence of the 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 enunciated in that case. We iterate that ‘‘[a] defendant may be

convicted of both kidnapping and another substantive

crime if, at any time priorto, during or afterthe commission of that other crime, the victim is moved or confined

in a way that has independent criminal significance,

that is, the victim was restrained to an extent exceeding

that which was necessary to accomplish or complete

the other crime. . . . For the purposes of making that

determination, the [fact finder should] considerthe 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, whether

the restraint was inherent in the nature of the separate

offense, whetherthe restraint prevented 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 of harm independent of that posed by the

separate offense.’’ State v. Salamon, supra, 287 Conn.

547–48; see also Hinds v. Commissioner of Correction,

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 victim was moved ‘‘only a matter of yards,’’ which occurred

in a matter of seconds. Hinds v. Commissioner of Correction, supra, 321 Conn. 80. Furthermore, while the

events of Hinds 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, which was lined with rocks. Cf. Hinds v. Commissioner of Correction, supra, 80. This movement to the

window well also served to reduce the likelihood of

detection. Nor could a reasonable fact finder conclude

that the window well was more conducive for the 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

Hinds v. Commissioner of Correction, 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 of the window well severely limited

the victim’s escape routes. By limiting the direction in

which she could flee, the petitioner had a greater ability

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 of the inherent and obvious difficulty in climbing out.17 In other words, the window well served as a

second level of restraint 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; Eric M. 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 of the victim in the window well had independent

criminal significance.

Furthermore, afterthe victim was able to escape from

the window well, the petitioner chased after her. The

victim threw herself on the hood of a car and then

clutched a telephone pole, at which point the 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 further evidence an intent to frighten the victim, to prevent

her escape, and to restrain her more than was necessary

to sexually assault her or attempt to commit that crime.

The facts of the present case also are distinguishable

from those found in Salamon, DeJesus and Sanseverino, the trilogy of cases in which our Supreme Court

reconsidered its interpretation of our statutes and determined 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 a train in Stamford after falling asleep. The defendant followed her

into a stairwell in the train station. Id., 515. The defendant grabbed the victim by the back of her neck, 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

victim was able to escape.Id. A jury found the defendant

guilty of kidnapping in the second degree, unlawful

restraint in the first degree and risk of injury 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 of the 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, the
defendant, 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 defendant pressed his body against her. Id. After pulling down

her pants, and then his,the defendant sexually assaulted

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 of the victim had independent

criminal significance to support his conviction of kidnapping. Moreover, we are mindful of our Supreme

Court’s observations that the Salamon rule did not constitute a ‘‘complete refutation’’; State v. 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

conclude that a reasonable fact finder, underthe proper

interpretation of our kidnapping law, could not find

that the restraint of the victim was merely incidental

to or an inherent part of the sexual assault crimes. Given

the uncontested and overwhelming evidence before the

criminal trial court, we conclude that that judgment

would have been the same had Judge 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 in this case was inherent in, or merely incidental to, the crimes of sexual 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 direction to deny the petitioner’s amended petition

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

of procedural 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.

Following publication of the Hinds decision on the Judicial Branch website,

we ordered the parties, sua sponte, to file simultaneous supplemental briefs,
addressing the effect of the Hinds decision on the 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

underthe procedural default doctrine fail.’’ The respondent further explained

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 of our

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

of a struggle, of a dragging of the body, of the 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 of Correction, 153 Conn. App. 729, 108

A.3d 1128 (2014), the habeas court concluded that the petitioner had satisfied

the cause and actual prejudice prongs, and therefore was not procedurally

defaulted. With respect to the latter, the court stated: ‘‘Having reviewed the

entire record in this case, the court is not satisfied beyond a reasonable 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 of the [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 of the 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

by the absence of the application of the [criminal] trial court of the Salamon

charge on kidnapping. In addition, the court rejects the respondent’s affirmative defense of procedural default finding that the petitioner has established

cause for not raising the issue in his direct appeal, and prejudice, in that
the absence of the 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 of issues in habeas corpus proceedings that counsel did not raise

at trial or on appeal for reasons of tactics, 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

what amounted to a deep hole in the ground. Additionally, the depth reduced

the risk of detection of the petitioner’s criminal conduct. These factors were

not present in Hinds v. Commissioner of Correction, 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 of Correction, 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 of Correction, supra, 165 Conn. App. 462 (victim restrained

for six to seven hours following assault); Eric M. v. Commissioner of Correction, 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 (defendant restrained victim for prolonged period

and made two brief threats 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 of the 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 third party was
the victim able to get out of the window well. The petitioner, however, was

able to quickly hunt her down and resume his felonious conduct.