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*********************************************** 
STATE OF CONNECTICUT v. TONY O.*

(AC 43250)

Moll, Suarez and Sheldon, Js.

Syllabus

Convicted, after a jury trial, of various crimes in connection with an altercation with his wife, W, the defendant appealed to this court. The defendant

had gone to the gas station where W was employed to obtain from her

the keys to his truck so that he could get tools he needed for work that

were stored in the truck. When he walked around the front counter

toward W and reached toward her handbag that was on a counter behind

her, she pushed him away, and a physical encounter ensued between

them during which she sustained injuries and thereafter was treated at

a hospital. S, a customer at the store, witnessed part of the altercation

and attempted to break it up. W told a police officer, who arrived minutes

after the defendant left the gas station, that the defendant had attacked

her. At trial, the police officer testified to that statement, and the defendant objected. The trial court overruled the objection and admitted the

statement into evidence as a spontaneous utterance under the applicable

provision (§ 8-3 (2)) of the Connecticut Code of Evidence. On appeal,

the defendant claimed, inter alia, that the evidence was insufficient to

support his conviction of the charges of robbery and unlawful restraint,

and that the trial court improperly admitted W’s statement to the police

officer. Held:

1. Although the evidence was sufficient to support the defendant’s conviction

of unlawful restraint in the first degree, there was insufficient evidence

to support the jury’s necessary finding that he seized W’s handbag in

the course of committing a larceny, as required to convict him of robbery

in the third degree:

a. The jury had no reasonable basis for finding that the defendant’s brief

taking of the handbag was accompanied by a felonious intent to steal

and deprive W of it permanently: although the jury was entitled to reject

the defendant’s testimony that his only purpose in seizing the handbag

was to search it for the keys to the truck, the jury was not entitled to

draw the contrary inference that his intent was to steal the handbag, as

the record provided no nonspeculative basis for that inference; moreover,

the jury could not infer the defendant’s intent because W began to struggle

with him as soon as he reached for the handbag, as her strong resistance

delayed his seizure of the handbag, which he held on to for only eight

seconds before dropping it to the floor, and, although whatever the

defendant intended when he first picked up the handbag appeared to

change once S struck him in the back and told him that the police were

on their way to the station, that inference shed no light on the intent

with which he initially took possession of the handbag, as his interest

in leaving the scene before the police arrived did not support an inference

that he initially took the handbag with the intent to steal it from W;

furthermore, the only positive evidence from which the jury might have

drawn an inference as to the defendant’s intent when he seized the

handbag was the video footage of the incident from the station’s surveillance cameras, which showed that his actions during the incident were

consistent with his testimony that his only purpose in coming to the gas

station was to get his truck keys from W.

b. There was more than enough evidence to support the jury’s findings

beyond a reasonable doubt that the defendant restrained W during their

physical altercation and exposed her to a substantial risk of physical

injury: W stated to the police officer that the defendant had attacked or

assaulted her, she told the staff at the hospital that he had punched her

and caused her to fall into a chair, where he kneed her and kicked her

in the head, and the video footage from the station’s surveillance cameras

corroborated S’s testimony that, after W was seated in the chair, he

continued to lean over her and strike her, which caused her to remain

in the chair when she attempted to get up, and it would have been

reasonable for the jury to conclude that the defendant engaged in such

conduct with the specific intent to interfere substantially with W’s liberty;
moreover, notwithstanding the defendant’s suggestion that W restrained

him as much as he restrained her, the jury reasonably could have concluded that she was restricted in her movements in a manner that interfered with her liberty, and the defendant’s admission that he assaulted

her during the incident overrode his suggestion that any restraint he

might have applied was not applied so as to expose her to a substantial

risk of physical injury, as the state presented evidence that included the

hospital record documenting her injuries, the video footage showing the

defendant’s physical struggle, and S’s account of the several times he

kneed W while she was forced to remain sitting in the chair.

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

admitted the police officer’s testimony about the initial oral statement

made to him by W:

a. The record clearly supported the trial court’s finding that the statement

by W to the police officer was admissible as a spontaneous utterance:

W was in distress and very emotional when she first spoke with the

officer, as she appeared to be crying, her breathing was heavy, and she

had red marks on her neck and face, she made her initial statement to

the officer roughly three minutes after the defendant released her from

his grasp and drove away, and the fact that she gave a fuller, more

detailed statement at the hospital showed that her initial statement to

the officer was spontaneous, unreflective and made under such circumstances as to indicate the absence of an opportunity for contrivance and

misrepresentation; moreover, on the basis of the defendant’s unqualified

admission of the assault and the overwhelming evidence that confirmed

that admission, any error by the trial court in admitting W’s statement

as a spontaneous utterance was clearly harmless, the defendant having

failed to demonstrate that its admission substantially affected the verdict.

b. The defendant’s unpreserved claim that his right to confrontation was

violated because he never was afforded the opportunity to cross-examine

W about her statement to the police officer was unavailing: evidence of

the video footage of the altercation, the hospital records that documented

W’s physical injuries, S’s description of the assault and identification of

the defendant as the perpetrator, and the defendant’s admission of the

assault overwhelmingly supported the state’s claim that he assaulted W

during their physical altercation; moreover, W’s statement was cumulative of and corroborated by that evidence, and it was not an integral

portion of the state’s case, as it was never mentioned during the state’s

closing argument to the jury.

Argued September 8, 2021—officially released March 29, 2022

Procedural History

Two part substitute information charging the defendant, in the first part, with the crimes of attempt to

commit larceny in the second degree, robbery in the

third degree, unlawful restraint in the first degree,

assault in the third degree and attempt to commit larceny in the sixth degree, and, in the second part, with

being a persistent serious felony offender and a persistent offender, brought to the Superior Court in the judicial district of Windham, geographical area number

eleven, and tried to the jury before Chaplin, J.; verdict

and judgment of guilty of robbery in the third degree,

unlawful restraint in the first degree and assault in the

third degree, and sentence enhanced for being a persistent serious felony offender and a persistent offender,

from which the defendant appealed to this court.

Reversed in part; judgment directed.

James B. Streeto, senior assistant public defender,

with whom, on the brief, was Jane L. Stream, certified

legal intern, for the appellant (defendant).

Jonathan M. Sousa, deputy assistant state’s attorney,

with whom, on the brief, were Maureen T. Platt, state’s
attorney, and Mark Stabile, former supervisory assistant state’s attorney, for the appellee (state).
Opinion

SHELDON, J. The defendant, Tony O., appeals from

the judgment of conviction, rendered against him after

a bifurcated jury trial on charges arising from a physical

altercation between himself and his wife (complainant)

at her place of work in Willimantic, on April 6, 2017.

In the first part of the trial, the jury found the defendant

guilty on three counts of a long form information charging him, respectively, with robbery in the third degree

in violation of General Statutes § 53a-136, unlawful

restraint in the first degree in violation of General Statutes § 53a-95, and assault in the third degree in violation

of General Statutes § 53a-61. The jury found the defendant not guilty, however, on two other counts of the

information charging him, respectively, with attempt to

commit larceny in the second degree in violation of

General Statutes §§ 53a-49 and 53a-123 (a) (2), and

attempt to commit larceny in the sixth degree in violation of General Statutes §§ 53a-49 and 53a-125b. In the

second part of the trial, the same jury found the defendant guilty on both counts of a part B information charging him, respectively, with being a serious persistent

felony offender in violation of General Statutes § 53a40 (c), as a basis for enhancing his impending sentence

on the charge of unlawful restraint in the first degree,

and being a persistent offender of crimes involving

assault, stalking, threatening, harassment, and criminal

violation of a protective order in violation of General

Statutes § 53a-40d, as a basis for enhancing his

impending sentence on the charge of assault in the

third degree. The trial court, Chaplin, J., ultimately

sentenced the defendant to a total effective term of six

years of imprisonment followed by four years of special

parole.1 This appeal followed.

On appeal, the defendant claims that the trial court

erred in (1) failing to enter a judgment of acquittal on

the charge of robbery in the third degree because, inter

alia, there was insufficient evidence to support the

jury’s necessary finding beyond a reasonable doubt that

he seized the complainant’s handbag in the course of

their altercation with the intent to deprive her of it

permanently, as the state sought to prove in order to

establish that he committed robbery by using physical

force on her in the course of committing a larceny with

respect to the handbag, (2) failing to enter a judgment

of acquittal on the charge of unlawful restraint in the

first degree because there was insufficient evidence to

support the jury’s necessary findings beyond a reasonable doubt that he restrained the complainant in the

course of the altercation and did so under circumstances that exposed her to a substantial risk of physical

injury, (3) admitting as a spontaneous utterance, over

his timely hearsay objection, evidence of the nontestifying complainant’s initial oral statement to the police

accusing him of attacking her, and (4) admitting that
same initial oral statement by the complainant to the

police through the testimony of the police officer to

whom she made the statement, without affording him

the opportunity to cross-examine the complainant, in

violation of his sixth and fourteenth amendment rights

to confront the witnesses against him. We agree with

the defendant that the evidence was insufficient to support his conviction of robbery in the third degree, and

thus we reverse the judgment of conviction on that

charge and remand this case to the trial court with

direction to enter a judgment of acquittal thereon. We

disagree with the defendant, however, as to his other

claims of error, and thus affirm the judgment in all

other respects.

The jury was presented with the following evidence

on which to base its verdict in the first part of the

defendant’s trial. On the afternoon of April 6, 2017,

Officer Nicholas Sullivan of the Willimantic Police

Department was dispatched to the Valero gas station

on West Main Street in Willimantic to investigate the

report of an armed robbery at that location. Sullivan

testified that, upon arriving at the gas station at or about

3:36 p.m., he saw no evidence of an ongoing robbery but

found three women waiting for him in the convenience

store section of the station. One of the women, the

complainant, an employee of the gas station, initially

told Sullivan, who testified about her statement over

the defendant’s hearsay objection, that while she was

working at the station that afternoon, ‘‘her husband,

[the defendant], came into the store and attacked her.’’2

Sullivan testified that, when the complainant made that

initial statement to him, she was emotional and

appeared to be in distress. He recalled, more particularly, that, when they first spoke, she appeared to be

crying, her breathing was heavy, her hair was a mess,

and she had red marks on her neck and face. The second

woman was identified only as the complainant’s daughter, whom other evidence would show was in the store

when a physical altercation began between her mother

and the defendant and remained in the store for a short

time thereafter before walking outside to call the

police.3 The third woman was identified as Chrimson

Strede, a regular customer of the store, who told Sullivan and later testified that she had witnessed part of the

altercation between the complainant and the defendant

and ultimately attempted to break it up. Strede was the

only person with whom Sullivan spoke at the gas station

on the day of the incident who later testified at trial.

Sullivan testified that, in light of the complainant’s

injuries, she was initially transported to Windham Hospital, where he photographed the injuries, and she

received treatment by hospital staff. The state further

documented the complainant’s injuries by introducing

the hospital records of her treatment on the afternoon

of the incident, in which the hospital staff described

the injuries, much as Sullivan had observed them, as a
small bruise and swelling to the left side of her eye and

a subtle abrasion on the left side of her neck. The

hospital records identified the cause of the injuries, as

the complainant had reported it to hospital staff, as an

‘‘assault’’ on her by the defendant, who allegedly ‘‘came

to her job and got physical [with her].’’ The complainant

told the hospital staff, more specifically, that the defendant had ‘‘punched [her] in the face,’’ causing her to

‘‘[fall] back into a chair,’’ and then ‘‘kick[ed] and knee[d]

[her] in the head.’’

Sullivan next testified about the video surveillance

system at the gas station, which continuously recorded

video footage of activity at the station from multiple

angles both inside and outside of the convenience store.

Upon returning to the gas station to conduct further

investigation after the complainant had been treated at

the hospital, Sullivan reviewed video footage of the

incident, as recorded by the video surveillance system,

and copied it onto a zip drive, from which he later made

a second copy on a hard disk that he attached to his

report. The video footage so recorded, which had no

audio component but was marked on each frame with

the time and date on which it was recorded, was initially

played for the jury in its entirety, without interruptions

by counsel or commentary by Sullivan.

The video footage, which the prosecutor would later

describe in closing argument to the jury as ‘‘98 percent

of this case,’’ depicted the following sequence of events.

At 3:31:24 p.m. on April 6, 2017, a man identified as the

defendant walked through the front door of the store,

carrying nothing. At 3:31:33 p.m., the defendant

approached the front counter of the store, which had

a cash register on it, behind which two women, identified as the complainant and her daughter, were working.

The defendant reached over to a rear counter behind

the complainant’s daughter and picked up a pink wallet

that was lying there. At 3:31:36 p.m., the defendant

turned away from the counter while opening the wallet

and looked inside it. Shortly thereafter, however, at

3:31:39 p.m., the defendant quickly closed the wallet,

turned back toward the counter, and set the wallet back

down where he had picked it up without removing

anything from it. He then walked around the front

counter toward the complainant and reached behind

her toward a brown and white handbag lying farther

down the rear counter behind her. When he did so, at

3:31:42 p.m., the complainant stood up and forcefully

pushed him away, initiating a physical altercation

between them that would last for just over one minute

before coming to an end.

Thirteen seconds into the altercation, at 3:31:55 p.m.,

the defendant finally seized the handbag for which he

had been reaching behind the complainant with his

right hand. Eight seconds later, however, at 3:32:03 p.m.,

he dropped the handbag to the floor as he and the
complainant, still struggling with each other, moved

out from behind the front counter. At that point, the

complainant’s daughter picked up a cell phone from

the rear counter and walked out of the store. Nine

seconds later, at 3:32:12 p.m., the complainant placed

the defendant in a headlock, from which he broke free

by forcing her to sit down in a nearby chair. After

the complainant was seated in the chair, the struggle

continued, with the defendant leaning over the complainant while she held him with her arms and

attempted to restrain him with her legs.

The video footage also depicts that, a third woman,

later identified as Strede, drove into the gas station and

got out of her vehicle, spoke briefly with the complainant’s daughter, and then entered the store at 3:32:18

p.m. After the complainant, still seated, and the defendant, still leaning over her, exchanged multiple physical

blows in Strede’s presence, Strede approached them.

As she did so, at 3:32:33 p.m., the complainant pointed

down toward the handbag on the floor, and Strede

picked it up and tossed it onto the front counter by

the cash register. Immediately thereafter, Strede briefly

exited the store and spoke again to the complainant’s

daughter, who was still standing outside the front door,

while the defendant, who was still struggling with the

complainant, continued to strike her with his right knee.

Strede then reentered the store at 3:32:41 p.m., walked

directly to the defendant and shoved him as he was

kneeing the complainant at 3:32:45 p.m., then struck him

in the back at 3:32:47 p.m. At that point, the defendant

released his grasp of the complainant, stood up, and

walked out of the store without reaching again for the

handbag or taking anything else from the complainant

or the store.

On cross-examination, Sullivan testified that,

although he had been dispatched to the gas station on

the report of an armed robbery, he never found any

weapons at the gas station and was never told by anyone

that the defendant had wielded a weapon in the course

of the incident. He further testified that, to the best of

his knowledge, the defendant never took anything from

the complainant or the store in the course of the incident.

After Sullivan testified, the state called three more

witnesses in the first part of the trial. Lieutenant Paul

M. Hussey of the Willimantic Police Department testified that, as he and Officer James Salvatore were

returning from a firearms range on the day of the incident, they heard a bulletin advising them to be on the

lookout for the defendant. Because Hussey was familiar

with the defendant and knew where he lived, he and

Salvatore drove directly to the defendant’s residence.

Shortly after their arrival, a fellow officer, Corporal

Matthew Nixon, arrived there as well. When the officers

rang the defendant’s doorbell, the defendant answered
the door personally and correctly identified himself by

name. The officers then asked the defendant if he had

been at the gas station earlier that afternoon, and he

admitted that he had. According to Nixon, who also

later testified about his role in taking the defendant

into custody, the defendant was cooperative and fully

compliant with the officers throughout their interaction

with him that afternoon.

Finally, the jury heard testimony from Strede, who

confirmed that she had witnessed the latter portion of

the incident at the gas station, as shown on the video

recording. Strede further testified that she was familiar

with the complainant, who worked as a cashier in the

convenience store at the station, because she went

there almost every day to buy provisions for work

before the start of her evening shift at a local restaurant.

Strede recalled that, on the day of the incident, when she

pulled up to the gas station, she saw the complainant’s

daughter outside, ‘‘kinda panicking . . . .’’ Upon entering the store, Strede saw the complainant seated in a

chair, with a handbag on the floor near her and a man

Strede recognized as the defendant leaning over the

complainant and hitting her. Strede knew the defendant

because they had previously attended the same ‘‘AA

meetings’’ in town.

Strede was then questioned about what she observed

during the incident while the video footage of the incident was replayed for the jury. Strede first viewed video

footage showing her approaching the complainant as

she sat in a chair, struggling with the defendant, who

was leaning over her. When the video showed the complainant pointing to the handbag on the floor and Strede

picking it up and tossing it onto the counter by the cash

register, Strede recounted that that had happened as

‘‘[the defendant] was mentioning something about keys,

and [the complainant] was telling me to grab her purse.

And I seen her purse on the floor.’’ Strede was then

shown video footage of her exiting the store and talking

briefly with the complainant’s daughter before reentering the store, approaching the parties, and striking the

defendant in the back. Strede explained that she left

the store at that time to ask the complainant’s daughter

to call the police. When the complainant’s daughter told

her that she had already done so, Strede decided to

reenter the store to try to stop the altercation herself

before the police arrived by telling the defendant that

the police had been called and were on their way to

the gas station. She recalled that seconds after she so

informed the defendant and struck him in the back, he

released the complainant from his grasp, stood up, and

walked out of the store, empty-handed. On cross-examination, Strede testified that she knew the defendant

had come to the store that day to get some keys, but

she did not know which particular keys he was there for.

At the conclusion of Strede’s testimony, the state
rested without calling either the complainant or her

daughter to testify, whereupon the defendant moved

for a judgment of acquittal on all charges except assault

in the third degree. The court denied the motion.

The next day, the jury heard testimony from the

defendant, who was the only witness called by the

defense. He began his testimony by stating that, in 2010,

he had been convicted of three felonies. Thereafter,

concerning the present incident, the defendant testified

that in April, 2017, he was working at a homeless shelter

in Willimantic, where his duties included attending to

the needs of the guests and making repairs, as needed,

around the shelter. Prior to the incident, the defendant

said, he had lent one of his vehicles, a truck, to the

complainant because her car had recently broken down.

The defendant kept the tools he used for making repairs

at the shelter in the truck that he had lent to the complainant. On April 3, 2017, however, before the complainant returned the borrowed truck to the defendant,

she called him to tell him that ‘‘she wasn’t coming

home.’’ In response to this declaration, the defendant

testified that, ‘‘I didn’t question the reason why. I kinda

like just said okay, when you figure out what you’re

going to do, then you can let me know.’’ Three days

later, however, upon returning home from work on

April 6, 2017, seeing that the truck he had let the complainant use was still gone and realizing that he needed

the tools stored in the truck for work, he called the

complainant in an effort to get them back. Because, he

explained, the complainant did not return his calls, he

‘‘just went to the gas station to retrieve [his] keys.’’

The defendant testified that, as he walked into the

store that afternoon, he asked the complainant about

the keys, but she told him that she was not going to

give them back to him. This response, he admitted,

led to an argument between him and the complainant,

during which he physically assaulted her. The defendant

denied, however, that he went to the gas station that

day intending to assault the complainant or to rob her

or steal anything from her. Instead, denying repeated

suggestions by the prosecutor to the contrary, the

defendant insisted that his only purpose in going to the

gas station that day was to get his truck keys from

the complainant so that he could retrieve the tools he

needed for work from the truck she had borrowed but

not yet returned. Additional facts will be set forth as

necessary.

I

THE DEFENDANT’S EVIDENTIARY

INSUFFICIENCY CLAIMS

The defendant claims on appeal that the trial court

erred in failing to enter judgments of acquittal on the

charges of robbery in the third degree and unlawful

restraint in the first degree because the evidence at
trial was insufficient to prove each essential element

of either charge beyond a reasonable doubt. Because

both claims are governed by the same standard of

review, we will first set forth that standard.

‘‘In [a defendant’s] challenge to the sufficiency of the

evidence . . . [w]hether we review the findings of a

trial court or the verdict of a jury, our underlying task

is the same. . . . We first review the evidence presented at trial, construing it in the light most favorable

to sustaining the facts expressly found by the trial court

or impliedly found by the jury. We then decide whether,

upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury

could reasonably have concluded that the cumulative

effect of the evidence established the defendant’s guilt

beyond a reasonable doubt. . . . [W]e give great deference to the findings of the trial court because of its

function to weigh and interpret the evidence before it

and to pass upon the credibility of witnesses.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Adams, 327 Conn. 297, 304–305, 173 A.3d 943 (2017).

‘‘[T]he jury must find every element proven beyond

a reasonable doubt in order to find the defendant guilty

of the charged offense, [but] each of the basic and

inferred facts underlying those conclusions need not

be proved beyond a reasonable doubt. . . . An appellate court defers to the jury’s assessment of the credibility of witnesses on the basis of their firsthand observation of their conduct.’’ (Citation omitted; internal

quotation marks omitted.) State v. Thorne, 204 Conn.

App. 249, 256–57, 253 A.3d 1021, cert. denied, 336 Conn.

953, 251 A.3d 993 (2021).

‘‘On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether

there is a reasonable view of the evidence that supports

the [trier’s] verdict of guilty.’’ (Internal quotation marks

omitted.) State v. Adams, supra, 327 Conn. 305. If we

determine that the evidence is insufficient to support

the guilty verdict and ultimate conviction, then the

defendant is entitled to a judgment of acquittal. See

State v. Quintiliano, 206 Conn. App. 712, 720, 261 A.3d

31, cert. denied, 339 Conn. 918, 262 A.3d 136 (2021).

A

Robbery in the Third Degree

The defendant first argues that the evidence was

insufficient to convict him of robbery in the third degree

in violation of § 53a-136. Section 53a-136 provides that

‘‘[a] person is guilty of robbery in the third degree when

he commits robbery as defined in [General Statutes §]

53a-133.’’ Section 53a-133, in turn, provides in relevant

part: ‘‘A person commits robbery when, in the course

of committing a larceny, he uses . . . physical force

upon another person for the purpose of: (1) . . . over-
coming resistance to the taking of the [person’s] property. . . .’’ (Emphasis added.) Under these statutes,

which the state specified in the long form information

as its basis for charging the defendant with robbery in

the third degree, the defendant could not be convicted

of that offense without proof beyond a reasonable

doubt, inter alia, that he used physical force on another

person while engaged in the commission of a larceny.

General Statutes § 53a-119 provides in relevant part:

‘‘A person commits larceny when, with intent to

deprive another of property or to appropriate the same

to himself or a third person, he wrongfully takes, obtains

or withholds such property from an owner. . . .’’

(Emphasis added.) In light of this definition, the essential elements of larceny have been held to be ‘‘(1) the

wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent

in the taker to deprive the owner of [the property]

permanently; and (3) the lack of consent of the owner.’’

(Emphasis added; internal quotation marks omitted.)

State v. Adams, supra, 327 Conn. 305–306. In the present

case, where the state based its prosecution of the defendant for robbery in the third degree on his brief seizure

of the complainant’s handbag in the course of their

physical altercation on April 6, 2017, the defendant challenges the sufficiency of the state’s evidence to prove

that he engaged in such conduct with the intent to

deprive the complainant permanently of the handbag.

The defendant testified that he had no such intent,

insisting that his only purpose in seizing the handbag

during his physical altercation with the complainant

was to search it for the keys to the truck he had loaned

her so that he could retrieve his work tools from inside

the truck. The state responds that the jury reasonably

could have discredited the defendant’s explanation of

his conduct, concluding to the contrary that he took

the handbag with the intent to steal it from the complainant, and thus to deprive her of it permanently,

because he engaged in a prolonged physical struggle

with her to overcome her resistance to its taking and

only changed his plan once Strede informed him that

the police had been called to the scene and were on

their way.

Although it is true that the jury was entitled to reject

the defendant’s testimony as to his nonlarcenous purpose in taking brief possession of the complainant’s

handbag in the course of their altercation, it is equally

true that the jury was not entitled, on that basis, to

draw the contrary inference that his intent at that time

was to steal the handbag, and thereby deprive the complainant of it permanently. In State v. Alfonso, 195 Conn.

624, 490 A.2d 75 (1985), our Supreme Court stated:

‘‘While it is true that it is within the province of the

jury to accept or reject a defendant’s testimony, a jury

in rejecting such testimony cannot conclude that the
opposite is true.’’ (Internal quotation marks omitted.)

Id., 634. Instead, the court ruled that no such contrary

inference could be drawn by the jury ‘‘without positive

evidence supporting such a conclusion.’’ Id.

In Alfonso, where the defendant challenged the sufficiency of the state’s evidence to prove that he knowingly

possessed marijuana found on premises where he and

several others were present at the time of its discovery

by the police, our Supreme Court examined the trial

court record for any positive evidence, based on the

defendant’s acts or statements in the surrounding circumstances, that might have supported a reasonable

inference that he had such guilty knowledge, despite

his denial, at the time of his alleged possession. See id.

Upon finding that there was no positive evidence from

which the jury reasonably could have drawn a nonspeculative inference that he had such guilty knowledge at

the time of his alleged possession of the marijuana, for

the marijuana was discovered in a common area, it was

not among the defendant’s possessions, and there was

no evidence that he had smoked marijuana in the past,

and another self-incriminating statement he had made

about possessing some cocaine found elsewhere on the

premises was irrelevant to his alleged possession of

marijuana, the court reversed his conviction on that

charge. See id., 634–35.

In this case, as in Alfonso, the element of robbery in

the third degree as to which the defendant claims that

the evidence was insufficient to convict him concerns

the mental state with which he was acting at the time he

allegedly committed that offense. A defendant’s mental

state is an element that must typically be proved by

inference from the defendant’s proven words or conduct. See, e.g., State v. Fredrik H., 197 Conn. App. 213,

219, 231 A.3d 371 (2020) (‘‘[b]ecause direct evidence of

an accused’s state of mind typically is not available, his

intent often must be inferred from his conduct, other

circumstantial evidence and rational inferences that

may be drawn therefrom’’ (internal quotation marks

omitted)), cert. denied, 338 Conn. 906, 258 A.3d 1279

(2021). Thus, the state’s ‘‘positive evidence supporting

[the] conclusion’’ that he acted with that mental state—

the intent to deprive the complainant permanently of

her handbag—must have consisted of inferences arising

either from other statements he was shown to have

made at or before the trial or from other conduct he

was shown to have engaged in before, during, or after

the incident. State v. Alfonso, supra, 195 Conn. 634.

Here, however, the jury heard no evidence of any

statements made by the defendant suggesting that he

had a different motive for taking the complainant’s

handbag during their altercation than that to which he

testified, and frequently reiterated on cross-examination, at trial. Apart from such testimony, in which he

insisted that his only purpose in coming to the gas
station that day was to get the keys to the borrowed

truck and use them to retrieve the work tools he stored

in the truck, the only other evidence of statements he

made from which any inference of intent might have

been drawn were his words, to or in the presence of

Strede as he struggled with the complainant, confirming

that he had come to the gas station that day to get his

keys. Such statements undermined the state’s claim

that he was then acting with felonious intent. No other

evidence was introduced as to any statement he had

ever made to anyone, including the complainant or her

daughter, expressing any interest on his part in the

handbag or its contents, or otherwise giving him a possible motive for stealing it from the complainant. Finally,

and tellingly, the complainant’s only descriptions of the

incident that were ever brought to the attention of the

jury were her hearsay statements to the police and

to hospital staff that the defendant had attacked or

assaulted her inside the store. These descriptions of

the defendant’s conduct during the incident, however

damning on the charges of assault and unlawful

restraint, undermined the state’s claim against him on

the charge of robbery because they made no mention

of any alleged effort or purpose on his part to steal the

handbag from the complainant in the course of the

incident.

Under these circumstances, the only positive evidence from which the jury might have drawn an inference as to the defendant’s intent when he seized the

complainant’s handbag was the video footage of the

incident. What the video footage showed, however, was

at best unhelpful to the state on that issue. To begin

with, it showed that upon entering the store on the day

of the incident, the defendant did not go initially to the

complainant’s handbag, which lay on the rear counter

behind her, but to the pink wallet lying at the far end

of that counter at that time. When the defendant picked

up the wallet and began to look inside it, he was turning

away from the counter as if to head back toward the

door of the store. Almost immediately, however, he

closed the wallet without taking anything from it and

returned it to the counter where he had picked it up

before reaching behind the complainant toward her

handbag. These actions, which are consistent with the

defendant’s testimony that his only purpose in coming

to the gas station that day was to get his truck keys

from the complainant so he could retrieve his work

tools from the borrowed truck, suggested that if he had

found what he was looking for inside the wallet, he

would simply have taken it and left the store, for he

showed no apparent interest in the wallet itself or in

any of its other contents. Only after the defendant had

looked inside the wallet and returned it to the counter

without removing anything from it did he reach behind

the complainant toward the handbag. By reasonable

inference, the defendant’s search of the handbag, had
he managed to conduct it, would have proceeded in

similar fashion to his search of the wallet, with him

looking briefly inside it until he found what he was

looking for or determined that it was not there, but

no longer.

The jury could not infer the defendant’s intent from

his reach for the handbag because the complainant rose

and began to struggle with the defendant as soon as

he reached for the handbag, impeding his course. The

complainant’s strong resistance to his efforts delayed

his seizure of the handbag and ultimately prevented

him from searching it, for it took him more than twenty

seconds to seize the handbag once his struggle with

the complainant began, and he held on to it for only

eight seconds thereafter before dropping it to the floor.

Here again, with no basis in the evidence for inferring

that the defendant had any other interest in the handbag

or its contents than that to which he testified, the record

provided no nonspeculative basis for inferring that his

true purpose in seizing it was to steal it, and thus to

deprive the complainant of it permanently.

The state further argues, not without reason, that,

whatever the defendant intended when he first picked

up the handbag appeared to change once Strede struck

him in the back and told him that the police had been

called to the scene and were on their way. Although

that inference is reasonable, it sheds no light on the

intent with which the defendant initially took possession of the handbag. Even if he abandoned his struggle

with the complainant because he feared that he might

be arrested if they came to the gas station, that would

reveal nothing about the intent with which he seized

the handbag, for regardless of that intent, he had ample

reason to believe he might be arrested if the police

came to the station because he had just physically

assaulted his wife in the presence of multiple witnesses

who knew and could readily identify him. Thus, his

interest in leaving the scene before the police arrived

did not support an inference that he initially took the

handbag with the intent to steal it from the complainant

and deprive her of it permanently.

In sum, the jury had no reasonable basis in this case

for finding that the defendant’s brief taking of the complainant’s handbag in the course of their physical altercation was accompanied by a felonious intent to steal

it from her, and thus to deprive her of it permanently.

In the absence of positive proof that he acted with that

intent, there was insufficient evidence to support the

jury’s necessary finding that he seized the handbag in

the course of committing a larceny, as required to convict him of robbery in the third degree.

B

Unlawful Restraint in the First Degree

The defendant next argues that the evidence was
insufficient to convict him of unlawful restraint in the

first degree in violation of § 53a-95. Section 53a-95 (a)

provides: ‘‘A person is guilty of unlawful restraint in

the first degree when he restrains another person under

circumstances which expose such other person to a

substantial risk of physical injury.’’ So written, § 53a95 requires proof beyond a reasonable doubt of two

essential elements before a defendant can be convicted

of unlawful restraint in the first degree: first, that the

defendant restrained another person; and second, that

he did so under circumstances exposing the other person to a substantial risk of physical harm. The defendant

claims that the state failed to establish either such

essential element beyond a reasonable doubt.

As used in § 53a-95, the term ‘‘restrain’’ is defined

by statute to mean ‘‘to restrict a person’s movements

intentionally and unlawfully in such a manner as to

interfere substantially with his liberty by moving him

from one place to another, or by confining him either

in the place where the restriction commences or in a

place to which he has been moved, without consent.’’

General Statutes § 53a-91 (1). This element requires

proof not only that the defendant actually restricted

the complainant’s movements in such a manner as to

interfere substantially with her liberty, without her consent, but that he did so intentionally, that is, with the

‘‘conscious objective’’ of causing that result. General

Statutes § 53a-3 (11). Here again, we note that,

‘‘[b]ecause direct evidence of an accused’s state of mind

typically is not available, his intent often must be

inferred from his conduct, other circumstantial evidence and rational inferences that may be drawn therefrom. . . . For example, intent may be inferred from

the events leading up to, and immediately following,

the conduct in question . . . the accused’s physical

acts and the general surrounding circumstances.’’

(Internal quotation marks omitted.) State v. Fredrik H.,

supra, 197 Conn. App. 219.

A person restrains another under circumstances

exposing her to a substantial risk of physical injury

when his intentional and unlawful restriction of her

movements in the manner specified in § 53a-95 exposes

her to a substantial risk of suffering ‘‘impairment of

physical condition or pain,’’ as physical injury is defined

in § 53a-3 (3). Although a person shown to have been

restrained within the meaning of § 53a-91 (1) need not

be shown to have suffered actual physical injury as a

result of such restraint to establish this second element

of unlawful restraint in the first degree, proof that the

restraint did in fact cause her to suffer physical injury

is sufficient to establish that she was restrained under

circumstances exposing her to a substantial risk of such

injury. See State v. Jordan, 64 Conn. App. 143, 148, 781

A.2d 310 (2001) (‘‘jury finding of actual physical injury

encompasses the statutory requirement of mere exposure to physical injury necessary to obtain a conviction
of unlawful restraint in the first degree’’).

In this case, the state sought to prove that the defendant restricted the complainant’s movements in such

a way as to interfere substantially with her liberty during

their physical altercation on April 6, 2017, and thereby

restrained her, by forcing her down into a chair, leaning

over her, striking her repeatedly, and forcing her to

remain in the chair as their struggle continued. The

defendant disagrees, contending that the evidence fails

to show that he restrained the complainant, intentionally or otherwise, at any time. To the contrary, he claims,

she is the one who restrained him, for video footage

of the altercation assertedly shows that she initiated

the physical struggle between them when he first

reached for her handbag, she put him in a headlock

and held him up against a wall as they stood next to

one another and continued to struggle, and once she

was sitting in the chair, she grabbed him and held him

down with her arms and legs until the incident ended.

Claiming that the complainant both had and made use

of the opportunity to strike and to hold onto him during

the incident, the defendant argues that her movements

were essentially unrestricted by his proven conduct.

Considering the evidence in the light most favorable

to sustaining the jury’s guilty verdict, we agree with the

state that there was more than enough evidence to

support the jury’s findings beyond a reasonable doubt

that the defendant restrained the complainant during

their physical altercation on April 6, 2017, and that he

thereby exposed her to a substantial risk of physical

injury. To begin with, the complainant’s statements to

Sullivan and the hospital staff were that the defendant

had attacked or assaulted her. She further told the staff

at the hospital that the defendant had punched her and

caused her to fall into a chair, where he kneed her and

kicked her in the head. Although no witness other than

the defendant testified to what happened in the first

part of the parties’ altercation, Strede testified, and the

video corroborated her testimony, that, after the complainant was seated in the chair, the defendant continued to lean over her and to strike her, causing her to

remain in the chair when she attempted to get up. This

testimony reasonably could have supported a finding

by the jury that, at least by the time the complainant

was sitting in the chair, the defendant was intentionally

preventing her from standing up and getting away from

him, thereby restricting her movements in a way that

interfered substantially with her liberty. Although the

defendant may also have had other purposes in mind

when he was restricting the complainant’s physical

movements at that time, it would have been reasonable

for the jury to conclude that he engaged in such conduct

with the specific intent to interfere substantially with

her liberty. See State v. Fredrik H., supra, 197 Conn.

App. 219 (holding that defendant’s actions designed

to accomplish purposes other than restraining another
person may be sufficient to establish intent element of

unlawful restraint if he is shown to have engaged in

such actions with specific intent to interfere substantially with other person’s liberty).

With respect to the defendant’s suggestion that his

altercation with the complainant involved only mutual

combat, where she restrained him as much as he

restrained her, the video footage reasonably could have

been found to show, as Strede testified, that the defendant assaulted the complainant and leaned over her to

keep her down once she was seated in the chair. Here,

then, as in State v. Luster, 48 Conn. App. 872, 713 A.2d

277, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998),

in which a similar claim of innocence was made by a

defendant whose alleged victim was able to struggle

with and resist him despite his efforts to force her

down on a bed, ‘‘[t]he jury . . . reasonably could have

concluded that the victim was restricted in her movements in a manner that interfered with her liberty.’’

Id., 881.

Finally, as to the defendant’s suggestion that any

restraint he might have applied to the complainant was

not applied in such circumstances as to expose her to

a substantial risk of physical injury, that suggestion

must be rejected for several reasons, not the least of

which is the defendant’s own admission that he

assaulted the complainant in the course of the incident.4

See State v. Cotton, 77 Conn. App. 749, 776, 825 A.2d

189 (‘‘evidence of the defendant’s assault on the victim

in the parking lot was ample to support a factual determination that by his behavior, the defendant exposed

the victim to a substantial risk of physical injury’’), cert.

denied, 265 Conn. 911, 831 A.2d 251 (2003). In addition

to the defendant’s own admission, the state presented

evidence that included the hospital record documenting

the complainant’s injuries, the video footage showing

that he physically struggled with the complainant for

more than one minute, and Strede’s account of the

several times he kneed the complainant while she was

forced to remain sitting in the chair. The jury reasonably

could have concluded from this evidence that the defendant restrained the complainant under circumstances

that exposed her to a substantial risk of physical injury.

On the basis of the foregoing, the evidence was sufficient to support the defendant’s conviction of unlawful

restraint in the first degree.

II

THE DEFENDANT’S EVIDENTIARY AND

CONFRONTATION CLAUSE CLAIMS

The defendant’s additional claims of error concern

the court’s admission of hearsay testimony from Sullivan concerning the nontestifying complainant’s initial

oral statement to him, in which she accused the defendant of attacking her.
A

Evidentiary Challenge to Admissibility of Complainant’s

Initial Oral Statement to Police

As a Spontaneous Utterance

We first address the defendant’s claim that the challenged statement was improperly admitted as a spontaneous utterance, over his timely hearsay objection,

under § 8-3 (2) of the Connecticut Code of Evidence.

The state disagrees, asserting that the statement was

properly admitted under the spontaneous utterance

exception to the rule against hearsay and that, even if

its admission on that basis was erroneous, that error

does not require reversal of his conviction because the

defendant has failed to establish that the statement was

harmful to his defense. We agree with the state.

We begin by setting forth the relevant standard of

review. ‘‘As a general rule, hearsay is inadmissible

unless an exception from the Code of Evidence, the

General Statutes or the rules of practice applies. . . .

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

based on an interpretation of the [Connecticut] Code

of Evidence, our standard of review is plenary. For

example, whether a challenged statement properly may

be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding

plenary review. They require determinations about

which reasonable minds may not differ; there is no

judgment call by the trial court . . . . We review the

trial court’s decision to admit evidence, if premised on

a correct view of the law, however, for an abuse of

discretion.’’ (Citation omitted; internal quotation marks

omitted.) State v. Vega, 181 Conn. App. 456, 463–64,

187 A.3d 424, cert. denied, 330 Conn. 928, 194 A.3d

777 (2018).

‘‘An out-of-court statement offered to prove the truth

of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.

. . . Among the recognized exceptions to the hearsay

rule is the spontaneous utterance exception, which

applies to an utterance or declaration that: (1) follows

some startling occurrence; (2) refers to the occurrence;

(3) is made by one having the opportunity to observe the

occurrence; and (4) is made in such close connection

to the occurrence and under such circumstances as to

negate the opportunity for deliberation and fabrication

by the declarant. . . . [T]he ultimate question is

whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate

absence of opportunity for contrivance and misrepresentation. . . . Whether an utterance is spontaneous

and made under circumstances that would preclude

contrivance and misrepresentation is a preliminary

question of fact to be decided by the trial judge. . . .

The trial judge exercises broad discretion in deciding
this preliminary question, and that decision will not be

reversed on appeal absent an unreasonable exercise of

discretion.’’ (Internal quotation marks omitted.) State

v. Pugh, 176 Conn. App. 518, 523–24, 170 A.3d 710, cert.

denied, 327 Conn. 985, 175 A.3d 43 (2017), quoting State

v. Wargo, 255 Conn. 113, 127–28, 763 A.2d 1 (2000); see

also Conn. Code Evid. § 8-3 (2).

Here, the defendant claims that the record was insufficient to establish that the complainant was under the

stress or excitement caused by the incident when she

gave the statement to the police. He bases this claim

on the state’s alleged failure to establish either the exact

time at which the statement was made in relation to

the end of the complainant’s physical altercation with

him or the exact circumstances in which the complainant made the challenged statement, particularly,

whether the statement was made spontaneously, without prompting, in the immediate aftermath of the incident, or made more self-reflectively, in response to less

immediate, nonemergency police interrogation. We

conclude that the record clearly supports the trial

court’s finding that the statement was made spontaneously and that the defendant has not demonstrated how

that ruling was an ‘‘unreasonable exercise of discretion.’’ (Internal quotation marks omitted.) State v. Pugh,

supra, 176 Conn. App. 524. This is because, although

the record does not establish exactly how much time

elapsed between the end of the incident mentioned in

the statement and the making of the statement, the

state presented ample evidence, through the testimony

of Sullivan, to demonstrate that the complainant was

still under sufficient emotional stress resulting from the

incident at the time she made the statement as to make

it unlikely that the statement was the product of contrivance or misrepresentation on her part.5 As described

by Sullivan when she first spoke to him, the complainant

‘‘appeared in distress, her hair was a mess, she appeared

to be crying, she was breathing heavy. . . . [S]he

appeared to be in a stressful situation prior and she was

just breathing heavy, a little anxious, very emotional.’’

On the basis of the evidence presented, it was reasonable for the court to conclude that the complainant’s

statement to Sullivan was a spontaneous utterance. Not

only was the complainant ‘‘in distress’’ and ‘‘very emotional’’ when she first spoke with Sullivan, but she made

her initial oral statement to him shortly after he arrived

at the gas station at 3:36 p.m., roughly three minutes

after the defendant released her from his grasp and

drove away. Additionally, the fact that the complainant

arrived at the hospital at 4:02 p.m. and later gave a

fuller, more detailed statement regarding the events at

the gas station shows that her initial statement to Sullivan ‘‘was spontaneous and unreflective and made under

such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.’’ (Internal

quotation marks omitted.) State v. Pugh, supra, 176
Conn. App. 523.

Even if we were to assume, however, that the trial

court erred in admitting the complainant’s initial oral

statement as a spontaneous utterance, the defendant

would not be entitled to a new trial on that basis, for

he has failed to demonstrate that admission of the statement, allegedly a nonconstitutional evidentiary error,

substantially affected the verdict. See, e.g., State v.

Edwards, 325 Conn. 97, 133, 156 A.3d 506 (2017) (defendant bears burden of demonstrating nonconstitutional

evidentiary error was harmful). ‘‘Whether the error was

harmless depends on a number of factors, such as the

importance of the evidence to the state’s case, whether

the evidence was cumulative of properly admitted evidence, the presence or absence of corroborating evidence, and, of course, the overall strength of the state’s

case.’’ State v. Culbreath, 340 Conn. 167, 192, 263 A.3d

350 (2021). Although the complainant’s challenged

statement identified the defendant by name and generally described his actions at the gas station as an attack,

there was overwhelming additional evidence that

proved those facts as well. The complainant’s statement

merely corroborated the defendant’s own admission

that he had assaulted the complainant at the station,

as well as the other unchallenged evidence, such as the

video footage of the entire incident that showed the

defendant’s conduct throughout the incident. On the

basis of the defendant’s unqualified admission of the

assault, and the state’s overwhelming evidence confirming that admission, any error in admitting the complainant’s initial oral statement was clearly harmless.

B

The Defendant’s Confrontation Clause Claim

Finally, we turn to the defendant’s constitutional

claim that admission of the nontestifying complainant’s

initial oral statement to the police accusing him of

attacking her violated his sixth and fourteenth amendment rights to confront the witnesses against him

because he never was afforded the opportunity to crossexamine her about that statement, either before or during trial. The defendant concedes, as he must, that this

claim was not preserved at trial, and thus he requests

that we review it under State v. Golding, 213 Conn. 233,

239–40, 567 A.2d 823 (1989), as modified by In re Yasiel

R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). In response,

the state asserts that the defendant’s claim should not

be reviewed under Golding because the record does

not clearly establish that the statement was testimonial

in nature and thus that its admission without affording

him the opportunity to cross-examine the complainant

constituted a constitutional violation, and, even if

admission of the statement in these circumstances constituted a constitutional violation, that violation should

not result in reversal of the defendant’s conviction

because it was harmless beyond a reasonable doubt in
light of the abundance of other evidence, including the

defendant’s own admission, that he assaulted the complainant at the gas station in Willimantic on April 6, 2017.

It is well established that ‘‘a defendant can prevail

on a claim of constitutional error not preserved at trial

only if all of the following conditions are met: (1) the

record is adequate to review the alleged claim of error;

(2) the claim is of constitutional magnitude alleging

the violation of a fundamental right; (3) the alleged

constitutional violation . . . exists and . . . deprived

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

error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond

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

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

tribunal is free, therefore, to respond to the defendant’s

claim by focusing on whichever condition is most relevant in the particular circumstances. . . . [T]he first

two [prongs of Golding] involve a determination of

whether the claim is reviewable . . . and under those

two prongs, [t]he defendant bears the responsibility for

providing a record that is adequate for review of his

claim of constitutional error. . . . [T]he second two

[prongs of Golding] . . . involve a determination of

whether the defendant may prevail.’’ (Citations omitted;

emphasis omitted; internal quotation marks omitted.)

State v. Vega, supra, 181 Conn. App. 484–85. Consistent

with this approach to analyzing the appropriateness of

reviewing an unpreserved constitutional claim under

Golding, we will first determine if, under the fourth

prong of Golding, the state has demonstrated that any

constitutional error that may have resulted from the

admission of the nontestifying complainant’s initial oral

statement to the police was harmless beyond a reasonable doubt.

‘‘[W]hether a defendant is entitled to any remedy for

a violation of his right to confront witnesses depends

on whether the violation is legally harmless.’’ Id., 485.

‘‘It is well established that a violation of the defendant’s

right to confront witnesses is subject to harmless error

analysis . . . .’’ (Internal quotation marks omitted.)

State v. Campbell, 328 Conn. 444, 512, 180 A.3d 882

(2018); see also State v. Pugh, supra, 176 Conn. App.

528–30 (conducting harmless error analysis to resolve

confrontation clause claim).

‘‘[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. . . . [Our

Supreme Court] has held in a number of cases that

when there is independent overwhelming evidence of

guilt, a constitutional error would be rendered harmless

beyond a reasonable doubt. . . . [W]e must examine

the impact of the evidence on the trier of fact and the

result of the trial. . . . If the evidence may have had
a tendency to influence the judgment of the jury, it

cannot be considered harmless. . . . That determination must be made in light of the entire record [including

the strength of the state’s case without the evidence

admitted in error]. . . . Additional factors that we have

considered in determining whether an error is harmless

in a particular case include the importance of the challenged evidence to the prosecution’s case, whether it is

cumulative, the extent of cross-examination permitted,

and the presence or absence of corroborating or contradicting evidence or testimony.’’ (Citations omitted;

internal quotation marks omitted.) State v. Edwards,

334 Conn. 688, 706–707, 224 A.3d 504 (2020).

As previously noted, it is significant to our analysis

that the complainant’s out-of-court statement accusing

the defendant of attacking her did not serve as an integral portion of the state’s case against the defendant.

Instead, the role it served was merely cumulative, for

it was corroborated not only by the video footage of

the entire incident, which clearly showed the defendant

striking the complainant, and by records from the hospital documenting her resulting physical injuries, but also

by Strede’s independent description of the assault and

identification of the defendant as the perpetrator and,

importantly, the defendant’s own admission of the

assault. See State v. Smith, 289 Conn. 598, 628–29, 960

A.2d 993 (2008) (concluding that admission of statement, even though improper, was ultimately harmless

error because statement was cumulative). In light of this

evidence, which overwhelmingly supported the state’s

claim that the defendant assaulted the complainant in

the course of their physical altercation on April 6, 2017,

the state never mentioned the complainant’s challenged

statement in its closing argument to the jury. For all of

these reasons, we conclude that, even if the admission

of the complainant’s statement to Sullivan violated the

defendant’s constitutional right to confrontation, any

error in its admission was harmless beyond a reasonable doubt. See State v. Edwards, supra, 334 Conn. 713.

Therefore, the defendant’s claim fails under Golding’s

fourth prong.

III

CONCLUSION

We agree with the defendant that the evidence was

insufficient to sustain his conviction of robbery in the

third degree. Accordingly, we reverse his conviction on

that charge and remand this case to the trial court with

direction to enter a judgment of acquittal thereon. We

disagree with the defendant, however, as to his other

claims of error, and thus affirm the challenged judgment

in all other respects.

The judgment is reversed as to the conviction of

robbery in the third degree and the case is remanded

with direction to enter a judgment of acquittal on that
charge; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of family violence, we decline to identify the complainant or others

through whom the complainant’s identity may be ascertained. See General

Statutes § 54-86e.

1 The defendant’s separate concurrent sentences on the three underlying

charges of which the jury found him guilty, as enhanced, where appropriate,

by the jury’s guilty verdict on the part B information, were as follows: on

the charge of robbery in the third degree, a term of three years of imprisonment; on the charge of unlawful restraint in the first degree, a term of six

years of imprisonment followed by four years of special parole; and on the

charge of assault in the third degree, a term of three years of imprisonment.

2 The defendant objected to the admission of this statement on the grounds

that it was hearsay and lacked foundation. The state argued that the complainant’s statement to Sullivan was a spontaneous utterance, and the court

overruled the defendant’s objection.

3 As the complainant and the defendant are married, the complainant’s

daughter is also the defendant’s stepdaughter.

4 When the defendant testified at trial, the following colloquy took place

on direct examination:

‘‘Q. Tell us what occurred, what happened in the—at—what we saw in

the video.

‘‘A. When I got to the gas station, me and my wife we ended up getting

into an argument and then we ended up getting into an altercation and I

ended up hitting my wife.

‘‘Q. So you did in fact assault her?

‘‘A. Yes, I did.’’

5

‘‘[T]here is no identifiable discrete time interval within which an utterance becomes spontaneous; [e]ach case must be decided on its particular

circumstances.’’ (Internal quotation marks omitted.) State v. Kirby, 280

Conn. 361, 375, 908 A.2d 506 (2006); see State v. Slater, 285 Conn. 162,

179–80, 939 A.2d 1105 (despite it being unclear how much time had passed,

victim’s emotional state, appearing visibly shaken, supported court’s finding

that statement was spontaneous utterance ‘‘made under circumstances that

had negated the opportunity for deliberation or fabrication’’), cert. denied,

553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).