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*********************************************** 
BELL v. COMMISSIONER OF CORRECTION—DISSENT

LAVINE, J., dissenting. Despite its thoughtful and well

reasoned analysis, I disagree with the majority’s conclusion that the respondent, the Commissioner of Correction, failed to prove that the absence of jury instructions

in accordance with State v. Salamon, 287 Conn. 509,

949 A.2d 1092 (2008), was harmless error in the present

case and, therefore, respectfully dissent.

My conclusion is informed by what I believe to be

the steady transmogrification of the relatively narrow

principles announced in Salamon, into something more

expansive, as exemplified by the present case, Banks

v. Commissioner of Correction, 184 Conn. App. 101,

A.3d (2018), which this court also releases

today, and others. Consequently, the seriousness of the

conduct involving the normal incidents of what is typically thought of as kidnapping, and its devastating

impact on victims, is being minimized because conduct

that merely facilitates another crime—rather than that

which is necessary to its completion—is being viewed

as a continuation of the conduct associated with the

other substantive offense. As will be discussed, I also

believe that an analysis of the nonexhaustive six factors

enunciated in Salamon supports affirmance of the

habeas court’s judgment.

Salamon provided a necessary corrective to the all

too familiar scenario in which the state overcharged

defendants by appending a kidnapping charge onto an

assault, frequently a sexual assault. As the majority

opinion in Salamon stated: ‘‘Unfortunately [the previous interpretation of the kidnapping law] has afforded

prosecutors virtually unbridled discretion to charge the

same conduct either as a kidnapping or as an unlawful

restraint despite the significant differences in the penalties that attach to those offenses. Similarly, our prior

construction of the kidnapping statutes has permitted

prosecutors—indeed, it has encouraged them—to

include a kidnapping charge in any case involving a

sexual assault or robbery. In view of the trend favoring

reform of the law of kidnapping that existed at the time

that our statutes were enacted, and in light of the stated

goal of the [Commission to Revise the Criminal Statutes] of creating a modern, informed and enlightened

penal code, it is highly likely that our legislature

intended to embrace . . . reform, thereby reducing the

potential for unfairness that had been created under

this state’s prior kidnapping statutes.’’ State v. Salamon,

supra, 287 Conn. 543–44.

The change brought about by Salamon was necessary

and appropriate. Permitting kidnapping to be charged

in many of these cases ignored the real core of the

criminal conduct involved—assaultive behavior—and

gave prosecutors a cudgel with which to thrash defen-
dants, who were charged with two serious crimes, when

only one had in essence been committed. This unreasonably lengthened a defendant’s exposure and provided prosecutors with enormous leverage.

But like moss climbing up a tree, Salamon’s reach

has crept steadily and now applies to situations beyond

what I believe was originally contemplated by the case.

A quick comparison of Salamon itself, and the instant

case, puts my view into context.1

In Salamon, the defendant followed the victim up a

flight of stairs. The victim fell and the defendant held

her down by her hair. The defendant punched the victim

in the mouth and attempted to thrust his fingers down

her throat as she was screaming. The victim escaped

and the defendant was arrested. Id., 515.

In its review of the law of kidnapping in Connecticut,

the court noted that ‘‘[a]mong the evils that both the

common law and later statutory prohibitions against

kidnapping sought to address were the isolation of a

victim from the protections of society and the law and

the special fear and danger inherent in such isolation.’’

Id., 536. Severe sanctions for ‘‘relatively trivial types

of restraint’’; id., 538; were to be avoided, the court

continued. The remedy proposed by the court in Salamon was as follows: ‘‘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 added.) Id., 542. It is noteworthy that the

court used the word necessary, meaning required or

essential; it did not refer to conduct which simply facilitates or makes easier the commission of the underlying crime.

Unfortunately, the cases are morphing from the easy

task of concluding that holding down someone by their

hair is incidental to the ongoing assault, to attempting

to determine the defendant’s often opaque and inchoate

intent on the basis of his or her actions. Here, the

conduct at issue involved petrifying innocent victims

by pointing what appeared to be a gun at them, herding

them into a refrigerator, telling them not to leave, closing them in—thereby isolating them from the outside

world—and preventing them from communicating with

someone to get help. All the while, and for every second,

the victims were undoubtedly terrified and probably
afraid they were about to die. As the law in this area

has developed, subsequent cases have minimized or

overlooked the merely incidental to and necessity

requirements of Salamon and have watered it down to

apply to conduct that is not really merely incidental

to or necessary to commit the underlying crime, but

simply facilitates or makes completion of the underlying crime easier or more convenient. In other words,

the necessity requirement is being eviscerated. This

case provides a good illustration of this morphing.

It is true that judges and juries are often tasked with

the difficult job of evaluating an actor’s intent, but often,

the intent involved is the intent to do a particular act.

For example, a trier of fact may be asked to determine if

someone intended to inflict ‘‘physical injury’’ or ‘‘serious

physical injury’’ on another person. That, however, is

far different than the amorphous task of determining

how much time a defendant believes is necessary to

commit a crime. Determining how much time is necessary to commit a crime—or what degree of force, coercion, or restraint is needed—in the eyes of an often

violent criminal is an inherently impracticable, sometimes impossible, task. Suppose that the petitioner in

this case, Leon Bell, believed, in good faith, that keeping

someone locked up in a refrigerator is necessary, so

he can escape to a hideout in northern California. Does

this conduct meet the necessity test? Or to posit a closer

case, suppose a defendant believes it is necessary to

confine a victim until he reaches a nearby getaway car,

but not until he gets on the highway 500 yards away?

Can jurors really be expected to evaluate these sorts

of matters in a meaningful, consistent, coherent way?

Once the defendant has finished emptying a safe, or a

victim’s pockets, how can a jury be expected to determine what is in the defendant’s mind in any rational,

predictable manner as it relates to how much time is

required to complete a crime or escape? The likely

result of this trend is to permit gratuitous harm to be

inflicted on victims of robberies, and encourage a mishmash of verdicts with no principled core.

In summary, I believe the necessary correction

accomplished by Salamon is losing its moorings and

is being extended too far. I believe the necessity requirement should be resuscitated and Salamon’s application

should be restricted in some appropriate way only to

cases in which the restraint is truly part and parcel of

the underlying crime.

Even if my view is rejected, I would still affirm the

judgment of the habeas court in the present case pursuant to the nonexhaustive six factors set out in Salamon.

See, e.g., White v. Commissioner of Correction, 170

Conn. App. 415, 430–39, 154 A.3d 1054 (2017). I agree

with both the majority’s recitation of the facts for each

robbery in the present case and its narration of the law

governing the respondent’s heavy burden in the context
of this collateral proceeding.2 For the reasons that follow, however, I respectfully part ways with the majority

regarding the assessment of the Salamon factors. I

address each robbery in turn.

In the robbery of the Friendly’s restaurant in Manchester, with regard to the first Salamon factor, it was

uncontested at trial that the petitioner ordered an

employee, Cheryl Royer, into the walk-in refrigerator

after she opened the safe. It was also uncontested that

he ordered her to remain there for an indeterminate

period of time. Although the duration of Royer’s confinement for, at most, a few minutes was relatively

minor; see, e.g., State v. Hampton, 293 Conn. 435, 463–

64, 988 A.2d 167 (2009) (victim driven around more

than three hours prior to assault and attempted murder); Eric M. v. Commissioner of Correction, 153 Conn.

App. 837, 846, 108 A.3d 1128 (2014) (victim restrained,

gagged, and handcuffed for at least five hours), cert.

denied, 315 Conn. 915, 106 A.3d 308 (2015); State v.

Nelson, 118 Conn. App. 831, 861, 986 A.2d 311 (victim

restrained for several hours and was driven to several

locations after assault), cert. denied, 295 Conn. 911, 989

A.2d 1074 (2010); the nature of her confinement was

qualitatively different when compared with other cases.

The petitioner isolated Royer in an enclosed space that

was shielded from public view, the location of which

was entirely separate from the safe in the manager’s

office. In other words, the situs and isolating nature

of Royer’s confinement is a significant feature of the

Manchester robbery.3

I acknowledge that, on the one hand, relatively short

durations of restraint over limited distances can make

it difficult to conclude, as a matter of law, that an alleged

kidnapping was not incidental to another crime. See,

e.g., White v. Commissioner of Correction, supra, 170

Conn. App. 432–33. But on the other hand, a kidnapping

conviction does not require any minimum or fixed

period of confinement or degree of movement. See State

v. Salamon, supra, 287 Conn. 546. Confinement for one

minute can be as terrifying as confinement for hours,

depending on the circumstances. The petitioner isolated Royer in a separate space within Friendly’s that

was secreted from public view and where she was certain not to be seen or found. He ordered her to remain

there for either fifteen minutes or until he came back

to get her. He also left her in the refrigerator after he fled

the restaurant. In effect, Royer’s isolation amounted to

a ‘‘second level of restraint . . . .’’ Nogueira v. Commissioner of Correction, 168 Conn. App. 803, 842, 149

A.3d 983 (asportation of victim to window well, ‘‘essentially a deep hole,’’ limited victim’s escape routes), cert.

denied, 323 Conn. 949, 169 A.3d 792 (2016); see also

State v. Salamon, supra, 536 (‘‘[a]mong the evils that

both the common law and later statutory prohibitions

against kidnapping sought to address were the isolation

of a victim from the protections of society and the
law and the special fear and danger inherent in such

isolation’’ [emphasis added]). Such conduct is overwhelming evidence of the petitioner’s intent to restrain

Royer to a greater degree and for a longer period of

time than was necessary to accomplish the robbery.

See State v. Winot, 294 Conn. 753, 768, 988 A.2d 188

(2010) (intent may be inferred from circumstances and

‘‘[a]n accused’s own words . . . constitute particularly

compelling, direct evidence of his intent’’).

With regard to the second Salamon factor, the

respondent argues that Royer’s confinement helped to

facilitate the petitioner’s escape and that he already

had completed the robbery before ordering Royer into

the refrigerator. The petitioner argues that the confinement of Royer was part of the ongoing robbery and

therefore was not a separate, distinct act.

When the circumstances could be viewed as being

part of ‘‘a continuous, uninterrupted course of conduct’’; Hinds v. Commissioner of Correction, 321 Conn.

56, 79, 136 A.3d 596 (2016); I recognize that this tends

to weigh in favor of having a jury decide whether the

accused possessed the requisite level of intent to be

found guilty of a kidnapping under Salamon. See, e.g.,

id.; White v. Commissioner of Correction, supra, 170

Conn. App. 433–35. Nevertheless, Salamon makes clear

that ‘‘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.’’

(Emphasis added.) State v. Salamon, supra, 287 Conn.

547. ‘‘[T]he guiding principle is whether the [confinement or movement] was so much the part of another

substantive crime that the substantive crime could not

have been committed without such acts . . . .’’

(Emphasis added; internal quotation marks omitted.)

Id., 546.

Even if the jury, in accordance with Salamon, had

been instructed to consider whether the confinement

of Royer occurred during the commission of the robbery, the verdict would have been the same because

such confinement had independent legal significance.

See, e.g., 51 C.J.S. 319, Kidnapping § 26 (2010) (‘‘in the

case of robbery, where the confinement of a victim is

greater than that which is inherently necessary to rob

them, the confinement while part of the robbery is also a

separate criminal transgression’’). The petitioner could

have taken the money from the safe after Royer opened

it. Instead, he compelled her to enter the refrigerator,

an entirely separate and enclosed space, after she

opened the safe, and left her there when he fled. At

most, her confinement made the robbery easier to commit. See, e.g., State v. Ward, 306 Conn. 718, 739–41, 51
A.3d 970 (2012) (suggesting that confinement or movement not merely incidental when it makes underlying

crime easier to commit). And on appeal, both parties

agree that the petitioner left Royer in the refrigerator

to help him escape. See, e.g., State v. Crenshaw, 313

Conn. 69, 84–85 n.9, 95 A.3d 1113 (2014) (kidnapping

continues until liberty restored). The state even argued

this same theory to the jury.4 Ordering Royer into the

refrigerator and telling her to stay there, therefore, was

neither incidental to nor necessary for the robbery.

Similarly, with regard to the third Salamon factor,

the petitioner’s restraint of Royer by isolating her in

the refrigerator was not the type of restraint inherent

in the nature of a robbery.5 Some degree or type of

restraint, though technically not an element of a robbery, is almost always necessary to rob someone. See

General Statutes §§ 53a-91 (1) and 53a-133; see also

State v. Fields, 302 Conn. 236, 247–48, 24 A.3d 1243

(2011). But I agree with the habeas court that the petitioner’s confining of Royer in the refrigerator was not

necessary to rob the Friendly’s in Manchester. See, e.g.,

State v. Jordan, 129 Conn. App. 215, 223, 19 A.3d 241

(absence of Salamon instruction was harmless where

defendant ‘‘controlled [the victims’] movement and prevented them from leaving’’ while he was not assaulting

them and, therefore, actions were not merely incidental

to assaults and sexual assault), cert. denied, 302 Conn.

910, 23 A.3d 1248 (2011). Therefore, the specific

restraint at issue here—confining Royer inside the

refrigerator—is compelling evidence that the petitioner

intended to restrain her for a period of time exceeding

that which was necessary to commit the robbery.

Royer was also the only individual in the restaurant

after closing at 1 a.m. Significantly, Royer’s isolation in

a separate and enclosed refrigerator prevented her from

discerning what was happening, or summoning assistance, and reduced the petitioner’s risk of detection.

See State v. Ward, supra, 306 Conn. 736–38. And

although the petitioner places great emphasis on the

fact that Royer ‘‘[was] not locked in the [refrigerator]

nor unable [to] seek help,’’ this argument is unpersuasive with regard to the fourth and fifth Salamon factors.

The petitioner explicitly stated to Royer that he had a

gun and ordered her to remain inside the refrigerator.

No reasonable juror, under those circumstances, could

conclude that such restraint did not prevent Royer from

summoning assistance or did not reduce the petitioner’s

risk of detection. Accordingly, the omitted element

regarding the petitioner’s intent to prevent Royer’s liberation for a longer period of time or to a greater degree

than was necessary to commit the Manchester robbery

‘‘was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the

same absent the error . . . .’’ (Internal quotation marks

omitted.) Hinds v. Commissioner of Correction, supra,

321 Conn. 77–78.6
The facts and circumstances surrounding the Glastonbury robbery largely mirror those of the Manchester

robbery, with one noteworthy difference. On April 14,

2001, the petitioner ordered Tricia Smith, the only

Friendly’s employee at the Glastonbury location at 6

a.m., to open the restaurant’s safe and to then enter

the walk-in refrigerator for an indefinite period of time.

The undisputed evidence at trial further demonstrated

that the petitioner took the money from the safe and

left Smith inside the refrigerator when he fled. Both

parties agree that this conduct facilitated his escape.

Unlike the Manchester robbery, however, Smith testified that she heard the petitioner say something that

she could not make out approximately two minutes

after the petitioner ordered her to enter the refrigerator.

The record does not provide any elucidation as to what

the petitioner said, or if it was directed at Smith.

Notwithstanding this latter distinction, I believe that

the record contains overwhelming and undisputed evidence that the petitioner intended to prevent Smith’s

liberation for a longer period of time or to a greater

degree than was necessary to commit the Glastonbury

robbery. I view this as a somewhat closer call than the

Manchester robbery, but conclude nonetheless that the

failure to provide an incidental restraint instruction in

accordance with Salamon was harmless. See id.

Much like the Manchester robbery, the nature and

situs of Smith’s confinement is a key feature of the

Glastonbury robbery when assessing the Salamon factors. With regard to the first and second Salamon factors, the petitioner’s confinement of Smith essentially

amounted to a ‘‘second level of restraint’’; Nogueira v.

Commissioner of Correction, supra, 168 Conn. App.

842; that restricted her movement to an extent

exceeding that which was necessary to remove the

money from the open safe. See State v. Salamon, supra,

287 Conn. 547. Although it was undisputed at trial that

Smith’s confinement was also for a relatively short

period of time, it had independent legal significance.

The petitioner left Smith inside the refrigerator after

taking the money from the safe, and Smith did not exit

the refrigerator until a few minutes after the petitioner

left the restaurant. See, e.g., State v. Crenshaw, supra,

313 Conn. 84–85 n.9. Again, at most, confining Smith

inside the refrigerator made the robbery easier to commit, but was by no means ‘‘necessary.’’ See, e.g., State

v. Ward, supra, 306 Conn. 739–41.

With regard to the third Salamon factor, Smith’s confinement was not so much a part of the robbery that

the offense could not have been completed without it.

State v. Salamon, supra, 287 Conn. 546. The petitioner

could have taken the money from the safe immediately

after Smith opened it. Instead, he secreted Smith inside

a refrigerator outside of public view and effectively

controlled her movements for an indeterminate period
of time. See, e.g., State v. Jordan, supra, 129 Conn. App.

223. And with regard to the fourth and fifth Salamon

factors, Smith’s isolation prevented her from summoning assistance, reduced the petitioner’s risk of

detection, made it impossible for her to see or be seen

by a third party, and undoubtedly was terrifying to her.7

Regardless of what the petitioner might have said while

Smith was inside the refrigerator, no reasonable juror

could conclude that confining Smith inside the refrigerator was merely incidental to and necessary for the

Glastonbury robbery. Simply put, the confinement of

Smith in the refrigerator had independent criminal significance. See Nogueira v. Commissioner of Correction, supra, 168 Conn. App. 843.

Considering all the facts and circumstances, I conclude that no reasonable fact finder, even if properly

instructed in accordance with Salamon, could find that

the restraint of Royer and Smith was merely incidental

to or a necessary part of either robbery. The uncontested and overwhelming evidence before the jury demonstrated that the petitioner intended to prevent the

victims’ liberation for a longer period of time or to

a greater degree than was necessary to commit the

robberies. See Hinds v. Commissioner of Correction,

supra, 321 Conn. 77–78. Accordingly, the habeas court

properly concluded that the absence of a Salamon

instruction was harmless and, therefore, correctly

denied the petitioner’s second petition for a writ of

habeas corpus. I therefore respectfully dissent.

1 For a comprehensive review of post-Salamon cases, see Nogueira v.

Commissioner of Correction, 168 Conn. App. 803, 149 A.3d 983, cert. denied,

323 Conn. 949, 169 A.3d 792 (2016).

2 The respondent’s burden of proving that the absence of Salamon instructions, beyond a reasonable doubt, did not contribute to the verdict obtained;

see, e.g., Hinds v. Commissioner of Correction, 321 Conn. 56, 77–78, 136

A.3d 596 (2016) (absence of Salamon instruction is 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’’ [internal

quotation marks omitted]); is akin to the respondent demonstrating entitlement to a directed verdict on the same facts. See, e.g., State v. Fields, 302

Conn. 236, 253 n.17, 24 A.3d 1243 (2011) (properly instructed jury reasonably

could conclude ‘‘that the defendant’s restraint of [the victim] lasted for a

period of time that was longer than necessary for the commission of the

assault, [but] the state has failed to establish that the jury reasonably could

not have reached a contrary conclusion’’ [emphasis in original]); State v.

Flores, 301 Conn. 77, 87, 17 A.3d 1025 (2011) (‘‘the test is whether there is a

reasonable possibility that a properly instructed jury would reach a different

result’’); Nogueira v. Commissioner of Correction, 168 Conn. App. 803, 845,

149 A.3d 983 (‘‘[u]nder the facts and circumstances of this case, we conclude

that a reasonable fact finder, under the 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’’ [emphasis added]), cert.

denied, 323 Conn. 949, 169 A.3d 792 (2016); see also Bagley v. Adel Wiggins

Group, 327 Conn. 89, 102, 171 A.3d 432 (2017) (‘‘[a] trial court should direct

a verdict only when a jury could not reasonably and legally have reached

any other conclusion’’ [internal quotation marks omitted]).

3 The majority highlights the conflicting evidence between Royer’s testimony and the petitioner’s statement to police regarding how long the petitioner instructed Royer to remain inside the refrigerator. See footnote 9 of the

majority opinion. I acknowledge this conflict and agree with the majority’s

reading of this court’s decision in Epps v. Commissioner of Correction, 153

Conn. App. 729, 104 A.3d 760 (2014), appeal dismissed, 327 Conn. 482, 175
A.3d 558 (2018) (certification improvidently granted).

Under the specific facts of both robberies in the present case, however,

I disagree that any such conflict between the evidence introduced at trial,

along with the limited distance of the movement of either Royer or Tricia

Smith, an employee at the other Friendly’s restaurant in Glastonbury that

was robbed, is dispositive with respect to the respondent’s burden. The very

nature of the confinement—a key consideration under the first Salamon

factor—suffered by both Royer and Smith at the petitioner’s hands is qualitatively different than in any Connecticut case that I am aware of, besides

the opinion which this court also releases today. See Banks v. Commissioner

of Correction, supra, 184 Conn. App. 101. How long the petitioner instructed

Royer or Smith to remain inside the respective refrigerators arguably does

bear on his intent to restrain them for a period of time exceeding that which

was necessary to commit the respective robberies. Additionally, the time

that either victim remained inside the refrigerators—i.e., the duration of

their confinement—is also a relevant consideration. And so is the distance

between the refrigerators and the safes. Nonetheless, I believe the very

nature of the confinement in both robberies outweighs such considerations.

In other words, the nature of the confinement is central to this court’s

analysis and is different from any Connecticut appellate case that I am

aware of dealing with the issue presently before this court.

4 During closing arguments before the jury, the prosecutor argued that

the petitioner placed Royer in the refrigerator to facilitate his escape. The

prosecutor stated in relevant part: ‘‘Cheryl Royer told you her intent was

not to go back into that restaurant that night. It was certainly not to go into

a walk-in freezer. . . . She was met by someone who threatened her, threatened her with the use of force, ordered her back inside, and then continued

to restrain her by forcing her to go into the refrigerator. And the intent in

doing that, to me, clearly inferred this was to enable him to escape, to

delay her, to keep her in the refrigerator until he could get away from the

restaurant and be less likely to be caught.’’ (Emphasis added.)

5 The majority concludes that the third Salamon factor supports the petitioner. See Bell v. Commissioner of Correction, 184 Conn. App. 150, 170,

A.3d (2018). I respectfully disagree and believe the majority’s assessment of this factor illustrates how Salamon is slowly breaking free of its

moorings. Salamon instructs that ‘‘[t]he guiding principle is whether the

[confinement or movement] was so much the part of another substantive

crime that the substantive crime could not have been committed without

such acts . . . .’’ (Emphasis added; internal quotation marks omitted.) State

v. Salamon, supra, 287 Conn. 546. Simply put, the question is whether the

confinement or movement was part and parcel of the other substantive

offense. From this vantage point, I do not believe that a reasonable juror

could conclude that the confinement in refrigerators of Royer and Tricia

Smith, an employee at the other Friendly’s restaurant in Glastonbury that

was robbed, was part and parcel of either robbery, such that they could not

have been committed without such confinement.

6 Because the undisputed evidence at trial demonstrated that there was

not a risk of the refrigerator door locking behind Royer, the habeas court

concluded that placing Royer in the refrigerator did not create a significant

danger or increase her risk of harm independent of that posed by the robbery.

To the extent that this factor slightly weighs in favor of the petitioner, it is

clearly outweighed by the remaining factors that demonstrate the petitioner’s

intent to prevent Royer’s liberation for a longer period of time or to a greater

degree than was necessary to commit the Manchester robbery. See, e.g.,

White v. Commissioner of Correction, supra, 170 Conn. App. 438.

7 Much like the evidence in the Manchester robbery, the evidence at trial

did not demonstrate that Smith’s confinement in the refrigerator created a

significant danger or increased her risk of harm independent of that posed

by the robbery. To the extent that the sixth Salamon factor weighs slightly in

favor of the petitioner, it is clearly outweighed by the other Salamon factors.