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******************************************************STATE OF CONNECTICUT v. JEREMY D.* (AC 35058)
DiPentima, C. J., and Lavine and Dupont, Js. Argued February 4—officially released April 22, 2014 (Appeal from Superior Court, judicial district of

Waterbury, Crawford, J.) Glenn W. Falk, assigned counsel, with whom, on the brief, was Deborah M. Frankel, legal fellow, for the appellant (defendant).
BruceR. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Jason Germain, senior assistant state’s attorney, for the appellee (state).Opinion DUPONT, J. The defendant, Jeremy D., appeals from thejudgment ofconviction, rendered after atrial to the court, ofone countofsexualassaultinthefourthdegree in violation of General Statutes § 53a-73a (a) (1) (A),1

one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1),2 and one count of risk of injury to a child in violation of § 53-21 (a) (2).3 On appeal, the defendant claims that the court failed to
ensure that he knowingly, intelligently and voluntarily waived his right to ajury trial. Specifically, the defendant argues that, during its canvass of him, the court misstated relevant legal principles and did not take into account his inexperience with the criminaljustice system. He therefore claims that the court improperly refused to allow him to withdraw his waiver of a trial by jury when he informed the court that he was confused. We affirm the judgment of the trial court. The following facts are relevant to our resolution of this appeal. The defendant was charged in a substitute information on March 8, 2012, with one count ofsexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count ofsexual assault in the third degree in violation of General Statutes § 53a-72a (a) (B) (2), one count of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A), one count ofrisk ofinjury to a child inviolation of § 53-21 (a) (2), and one count of risk of injury to a child in violation of§ 53-21 (a) (1). OnMay5, 2010, the defendantpleaded not guilty and elected a trial by ajury ofsix. On March 12, 2012, the defendant appeared with counsel before the court to beginjury selection. Before jury selection began, however, the defendantalertedthe court,Damiani, J ., that he had decided to waive his right to a trial byjury and to proceed, instead, with a court trial. The following colloquy then took place: ‘‘The Court: Mr. [D.], how old are you? ‘‘The Defendant: Thirty-seven. ‘‘The Court: And how far have you gone in school? ‘‘The Defendant: Eleventh grade. ‘‘The Court: You take any drugs, alcohol, or medication today? ‘‘The Defendant: No, sir. ‘‘The Court: Now, you’re here to start trial regarding
a sexual assault case, correct? ‘‘The Defendant: Yes, sir. ‘‘The Court: And you have your attorney with you, [Howard] Lawrence. Right now, you elected a trial by
ajury ofsix. In ajury trial, you and your lawyer would have a right or a say as to who’s going to be the trier offact in your case. Potentialjurors come out, they sitinthe witness box, state’s attorneyasks questions, your lawyer asks questions. The juror then leaves and goes outside the courtroom. You then confer with your lawyer and say I don’t like that person, I like—whatever. You understand that? ‘‘The Defendant: Yes, sir. ‘‘The Court: Courttrial, whateverjudge it is, it is. You understand that? ‘‘The Defendant: Yes, sir. ‘‘The Court: In ajury trial, the state’s got to convince all sixjurors of your guilt beyond a reasonable doubt. Your lawyer only has to create a reasonable doubt in
one juror’s mind to get a hung jury. You understand that? A mistrial. ‘‘The Defendant: Yes, sir. ‘‘The Court: In a court trial there’s only one person. The state’s gotto convince that one person ofyourguilt beyond a reasonable doubt, and your lawyer’s got to create a reasonable doubt in that one person’s mind. You understand that? ‘‘The Defendant: Yes, sir. ‘‘The Court: Now, you’re charged with [a] five count information. Sexual assault in the first degree, sexual assault in the third degree, sexual assault in the fourth degree, risk of injury under subsection (1) and risk of injury subsection (2). You’re exposed to a maximum penalty of seventy years in jail, and/or a $60,000 fine, of which, if the sentence—you’re convicted and the sentences were consecutive, fifteen years cannot be suspended or reduced by the court, you understand that? ‘‘The Defendant: Yes, sir. ‘‘The Court: Do you understand all that? ‘‘The Defendant: Yes, sir. ‘‘The Court: Do you wish to be tried by a judge or by ajury? ‘‘The Defendant: Ajudge. ‘‘The Court: And that’s your free [act] and deed? ‘‘The Defendant: Yes, sir. ‘‘The Court: This choice is irrevocable, which means if you change your mind two seconds from now, it’s too late. Do you understand that? ‘‘The Defendant: Yes, sir. ‘‘The Court: You’ve talked to your lawyer about this? ‘‘The Defendant: Yes, sir. ‘‘The Court: He’s explained everythingingreatdetail? ‘‘The Defendant: Yes, sir.‘‘The Court: And you’re satisfied with his representation? ‘‘The Defendant: Yes. ‘‘The Court: Andyouwanttomake anelectionofyour own free will to go from ajury to a court trial, correct? ‘‘The Defendant: Yes, sir. ‘‘The Court: Anything further [defense counsel] on this? ‘‘[Defense Counsel]: No, that covers it, Your Honor.

. . . ‘‘The Court: Recordwillreflectaknowing, intelligent, voluntary waiver of jury to court; matter is set for a court trial.’’ On March 19, 2012, the defendant moved to vacate his election to trial by the court in favor of ajury trial. The defendant argued that the court confused him because, duringits canvass ofhim, the courthadstated: ‘‘Your lawyer only has to create a reasonable doubt in
onejuror’s mindto get ahungjury.’’ (Emphasis added.) The defendant claimed that the court’s use ofthe word ‘‘create’’ led him to mistakenly believe that he had a burden ofproduction andpersuasion andthat, because he ‘‘is [a] layman, he was confused by the canvass.’’ In denying the defendant’s motion, Judge Damiani stated: ‘‘[Defense counsel], you want to split hairs, when you argue to ajury, and I’ve done it thousands oftimes, the statehastheburdenofproofbeyondareasonabledoubt

. . . . We know you have no burden ofproof, but they have to prove beyond a reasonable doubt

. . . . [Your motion] is denied. You have an exception.’’
The defendant then proceeded to trial before the court, Crawford, J

., andwasconvictedofsexualassault inthe fourth degree inviolation of § 53a-73a (a) (1) (A), risk of injury to a child in violation of § 53-21 (a) (2), and risk of injury to a child in violation of § 53-21 (a) (1). OnJune 1, 2012, the court sentenced the defendant to a total effective term of fifteen years incarceration, suspended afterfiveyears, withfifteenyearsprobation. This appeal followed. On appeal, the defendant claims that the court improperly determined that the waiver of his right to
ajurytrialwas done knowingly, intelligentlyandvoluntarily.4 Specifically, the defendant asserts that the court improperly refused to permit him to withdraw his waiver when he expressed his confusion concerning thecourt’sallegedmisrepresentationthatthedefendant had to ‘‘create’’ a reasonable doubt for the jury. We disagree.
Beforeaddressingthemeritsofthedefendant’sclaim,
we begin by setting forth the applicable standard of review and the legal principles governing our analysis. ‘‘The right to a jury trial in a criminal case is amongthose constitutional rights which are related to the procedure forthe determination ofguilt or innocence. The standard for an effective waiver of such a right is that itmustbe knowing and intelligent, as well asvoluntary.

. . . [W]e have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment ofa known right.

. . . This strict standard precludes a court from presuming a waiver ofthe rightto atrialbyjuryfrom asilentrecord.

. . . In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case.

. . . When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book.

. . . Our task, therefore, is to determine whether the totality of the record furnishes sufficient assurance ofa constitutionally valid waiver of the right to a jury trial.

. . . Our inquiry is dependent upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused.

. . . In examining the record, moreover, we will indulge every reasonable presumption against waiver offundamental constitutional rights and

. . . [will] not presume acquiescence in the loss of fundamental rights.

. . . In addition, a waiver of a fundamental constitutional right [such as the right to a trial by jury] is not to be presumed from a silent record.

. . . [Rather] in determining whether a court has properly accepted a waiver ofthe right [to ajury trial], there must be some affirmative indication from the accused personally, on the record, that he or she has decided to waive the fundamental right to a jury trial [as] the defendant’s silence istoo ambiguous topermitthe inferencethathe
or she has waived such afundamental right.’’ (Citations omitted; internal quotation marks omitted.) State v. Tocco, 120 Conn. App. 768, 777–78, 993 A.2d 989, cert. denied, 297 Conn. 917, 996A.2d279 (2010). Importantly, ‘‘[a] defendant’s personal assertion of a waiver of the right to ajury trial is not conclusive evidence that the waiver was made knowingly, intelligently and voluntarily, but its absence is a fatal blow to the validity of a waiver.’’ State v. Gore, 288 Conn. 770, 782, 955 A.2d 1 (2008). ‘‘In addition to determining that a defendant who seeks to [waive a constitutional right] is competent, a trial court must satisfy itself that the waiver

. . . is knowing and voluntary.

. . . [I]n this sense, there is a heightened standard for [the waiver of a constitutional right],butitisnotaheightenedstandardofcompetence.

. . . Moreover, it is the same standard that is applicable to all criminal defendants who have been found competentto standtrial. Underthis standard, [t]he determination ofwhether there has been an intelligent waiver of [aconstitutional right] must depend, in each case, upontheparticularfacts and circumstances surroundingthat case, including the background, experience, and conduct of the accused.’’ (Internal quotation marks omitted.) State v. Tocco, supra, 120 Conn. App. 779.
We first note that the defendant addressed the court personally and stated on the record that he wanted a trial before the court in lieu of a trial by jury. The condition precedent for a constitutionally valid waiver
was therefore satisfied. See id., 778–79. We must now examine the totality of the circumstances, which include the defendant’s competence and background
as well as the court’s statements to the defendant, to determine whether the defendant’s waiver was knowingly, intelligently and voluntarily made. Although the defendant’s competence is not otherwise challenged on appeal, the defendant does argue that his lack offamiliarity with the criminal process as a ‘‘layman’’ combined with the court’s alleged misuse of the word ‘‘create’’—an argument we will address— confused him. It is thus important to note at the outset thatalackofunderstandingormereconfusionconcerning criminal proceedings does not amount to mental incompetence in determining whether a defendant was sufficiently competent to validly waive a constitutional right to a trial byjury. See State v. Paulino, 127 Conn. App. 51, 66, 12A.3d628 (2011) (‘‘althoughthe defendant did admit that he often was confused by court procedures, a lack of legal expertise is not indicative of incompetence’’).
As the defendant’s competence is not otherwise at issue, we now consider his background, conduct and experience. For that information, we look to the trial court transcripts and record as well as the court’s canvass of the defendant concerning his waiver. With respect to the court’s canvass of the defendant, the transcript of the colloquy itself reflects that the defendant responded to the court’s inquiries in an intelligible and well mannered fashion. See State v. Tocco, supra, 120 Conn. App. 780. During the court’s colloquy, the defendant represented that he was not under the influence of alcohol, drugs or medications, that he had an eleventh grade education, that he carefully had considered the issue after discussions with his attorney, and that he was confident in his decision to proceed with
a court trial. When questioned on the specifics of the waiver, the defendant reiterated multiple times that he understood the irrevocability of his decision and that he had decidedvoluntarilyto instead elect a court trial. During his trial testimony, the defendant similarly respondedtoquestionsinapoliteandcoherentmanner. There isnothinginthe recordto indicatethatthe defendant was not a man of ordinary intelligence or that he lacked meaningful life experience. See State v. Rizzo, 303 Conn. 71, 92, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).Importantly, the record reflects that the defendant
was represented by counsel, Lawrence, throughout the
course of the trial. There is also nothing in the record to indicate that the defendant had problems communicating effectivelywithLawrencebefore, during, orafter trial. In fact, the defendant reiterated during the court’s
canvass that he had discussed his decision to waive his right to ajury trial with his attorney, that his attorney had explained everything in detail, and that he was satisfied with the advice given to him by counsel. The factthatthe defendantwas representedby counsel and that he conferred with counsel concerning the right to waive his right to a jury supports the conclusion that his waiver to a trial by jury was done knowingly and intelligently. See, e.g., State v. Smith, 100 Conn. App. 313, 324, 917 A.2d 1017, cert. denied, 282 Conn. 920, 925 A.2d 1102 (2007); see also State v. Cobb, 251 Conn. 285, 373, 743 A.2d 1 (1999) (‘‘[a]lthough the presence of counsel does not by itselfmean that the defendant’s interests and rights are protected

. . . [t]he fact of counselbeingpresentandhavingadvisedthe defendant [concerning jury waiver] is a factor to be considered in determining the question of the need for or sufficiency of any admonition given by the court’’ [internal quotation marks omitted]), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
We turn next to the court’s statements during its colloquy with the defendant. In questioning the defendant, the court explained the difference between ajury trial, including defense counsel’s ability to influence jury selection, and a court trial, which the defendant confirmed he understood. The court confirmedthatthe defendant had discussed his decision to proceed with
acourttrialwithhisattorneyandinquiredastowhether he was satisfied withhis counsel’s explanation. Importantly, the court unambiguously stated that the waiver oftherightto atrialbyjurywasanirrevocable decision, ‘‘which means if you change your mind two seconds from now, it’s too late.’’ The defendant replied to the court’s inquiries immediately, confirmed that he understood every aspect ofthe waiver repeatedly, and twice confirmed that he was freely choosing a court trial before the court granted the defendant’s waiver. See State v. Tocco, supra, 120 Conn. App. 781 (‘‘[t]he defendant’s immediate and unequivocal replies to the court’s inquiries reflected his strong desire to proceed to trial before the court, not ajury’’). Atthe end ofthe canvass, the court asked defense counsel if he had anything further, to which he responded, ‘‘No, that covers it, Your Honor.’’ The issue of waiver was thus clearly addressed bythe trial court, as evidenced bythe defendant’s explicitandunambiguousresponsetothe court’s inquiries that he had chosen to proceed to trial before the court instead of before ajury.
In examining the totality of the circumstances, weconclude that the defendant knowingly, intelligently and voluntarily waived his right to a trial by jury and, instead, elected to proceed with a court trial. The court conducted a canvass of the defendant, on the record, which determined that the defendant understood his rightto atrial byjury and also confirmedthat he understood the irrevocability and relevant differences in electingtoinsteadproceedwithacourttrial. Therecord
as a whole indicates that the defendant did have a sufficient understanding ofhis right to proceed to trial before ajury such that he could have waived that right in a constitutionally appropriate manner. We therefore disagree with the defendant’s argument that the court failed to ensure a knowing, intelligent and voluntary waiver of his right to ajury trial.
The defendant next argues that the court improperly refusedto allowhimto withdrawhis election ofacourt trial on the ground that it had misstated relevant legal principlesduringitscanvass. Specifically,thedefendant asserts that the court’s use of the word ‘‘create’’ in describing the burden of proof in a criminal trial confused him because it may have caused him ‘‘to [believe] that his attorney

. . . would be unable to create a reasonable doubt in the mind of ajuror, and therefore he decidedtoforgoajurytrial.’’Insupportofhisargument, the defendant cites numerous cases in which burden shifting language in jury instructions or closing arguments have warranted new trials and also relies on General Statutes § 54-82b (b) for additional support.5 Although we agree that § 54-82b (b) does provide the defendant with the right to challenge the validity ofhis waiver under certain circumstances, the record does not indicate that the mere use of the word ‘‘create’’ in the court’s canvass of the defendant rendered him so confused that he was ‘‘not fully cognizant of his rights

. . . .’’ General Statutes § 54-82b (b). We do note that in State v. Fernandez, 27 Conn. App. 73, 83, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992), this court opined: ‘‘The defendant requested the court to instruct thejury that the defendant’s evidence ‘need only be sufficient to create a reasonable doubt. Hence, when assessing circumstantial evidence offered by the defense, you see if it creates a reasonable doubt.’

. . . An instruction that the jury should determine whether the defendant has created a reasonable doubt carries with it a substantial and totally unjustifiable risk of diluting the constitutional requirement that the burden of proving the defendant guilty rests squarely on the state andthatthe defendantbears no burden ofproving himselfinnocent.’’ (Citation omitted; emphasis in original.) Given the totality ofthe circumstances in the present matter, however, we conclude that the court’s use of the word ‘‘create’’ in its canvass of the defendant, although not the clearest term it could have employed,
was not sufficiently confusing so as to conclude that it impermissibly shifted the burden of proof onto thedefendant. It is important to note that, in its canvass ofthe defendant, the court used the term ‘‘create’’ with respect to both jury trials and court trials. Therefore, the word ‘‘create’’ was used in a neutral manner such that any claimedmistake was inconsequential. Furthermore, and as the state also points out on appeal, both
ourSupreme Courtandthis courthave utilizedtheterm ‘‘create’’ in describing a defendant’s trial strategy. See Statev.Findlay, 198Conn. 328, 344, 502A.2d921 (‘‘[t]he defense counsel attempted to paint afavorable portrait ofthe defendant in order to create a reasonable doubt in the minds of the jury’’), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Buster, 27 Conn. App. 263, 274, 606 A.2d 9 (1992) (‘‘[i]n his case-in-chief, the defendant sought to create a reasonable doubt as to his guilt by presenting evidence from several witnesses’’), aff’d, 224 Conn. 546, 620 A.2d 110 (1993). Ourconclusion is onlyreinforced giventhe fact,
asnoted, thatthedefendantwasrepresentedbycounsel at all relevant times. Accordingly, the defendant’s argument must fail.
The judgment is affirmed.
In this opinion the other judges concurred.

* In accordance with our policy ofprotecting the privacy interests ofthe victims ofsexual abuse and the crime ofrisk ofinjury to a child, we decline to use the defendant’s full name or to identify the victim or others through whomthevictim’sidentitymaybeascertained. SeeGeneralStatutes § 54-86e.

1 General Statutes § 53a-73a (a) provides in relevant part: ‘‘A person is guilty ofsexual assaultinthe fourth degree when: (1) Suchpersonintentionally subjects another person to sexual contact who is (A) under thirteen years of age and the actor is more than two years older than such other person

. . . .’’

2 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child

. . . shall be guilty of a class C felony for a violation of subdivision (1)

. . . .’’

3 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

. . . (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child

. . . shall be guilty of

. . . a class B felony for a violation of subdivision (2)

. . . .’’

4 The defendant relies on his right to a trial byjury under both the sixth amendment to the constitution of the United States as well as article first, §§ 8 and 19, as amended by article four ofthe amendments, ofthe constitution of Connecticut. For purposes of this appeal, however, the defendant doesnotclaimthathisrightsunderthe state constitutionare more extensive than his rights under the constitution of the United States.

5 General Statutes § 54-82b (b) provides for the withdrawal of ajury trial waiverundercertaincircumstances: ‘‘Incriminalproceedingsthejudge shall advise the accused of his right to trial byjury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but ifajudge acting on motion made by the accused within ten days afterjudgment finds that such waiver was made when the accused

was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration ofjustice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.’’