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State v. Toro

Court of Appeals of Connecticut

May 9, 2017

STATE OF CONNECTICUT
v.
JOSE A. TORO

          Argued January 12, 2017

         Appeal from Superior Court, judicial district of Waterbury, Moll, J.

          James E. Mortimer, with whom, on the brief, was Michael D. Day, for the appellant (defendant).

          Peter A. McShane, state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Lisa Herskowitz, senior assistant state's attorney, and Elena Palermo, assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Mullins and Bishop, Js.

          OPINION

          MULLINS, J.

         The defendant, Jose A. Toro, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (1), and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1).[1] The defendant claims that the court abused its discretion by admitting evidence of his uncharged misconduct. The defendant, however, has not included an analysis in his main appellate brief pertaining to how this allegedly improper ruling was harmful. Consequently, we conclude that the defendant's claim is inadequately briefed and, therefore, unreviewable. Accordingly, we affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history inform our review. In February, 2013, the victim, Wilfredo Rivera, had been dating his girlfriend, Luz Torres, for approximately four years. Prior to their relationship, Torres had been involved with another individual, who had been a friend of the defendant. When that relationship ended, the defendant sought to date Torres, but she was not interested. Instead, she began dating the victim, which upset the defendant. The defendant then began threatening the victim and Torres, telling them that he would kill them if they did not end their relationship. These threats soon escalated to physical violence.

         On February 4, 2013, at approximately 8:15 a.m., the victim took his dog for a walk on the sidewalk outside of his Waterbury apartment. As the dog made its way to some bushes on the side of a building, the victim let go of its leash but followed the dog into the bushes. As the victim exited the bushes, he saw the defendant standing on the sidewalk holding a machete in his hands. The victim grabbed his dog and started running back toward his apartment. The defendant chased the victim, repeatedly saying that he was going to kill him. The victim was yelling as the defendant chased him, which caused Torres to look out of the window of the victim's apartment. Torres observed the victim running while being chased by another person, but she could not see the face of the other person. Aneighbor, Roberto Millan, also heard yelling, and, when he looked out of his window, he saw the victim and a man with a machete engaged in a confrontation.

         During the chase, the victim fell to the ground. The defendant then swung the machete at him and hit him on the back of his leg. The victim was able to block the blow substantially by using a metal flashlight he had been carrying. As a result, the victim sustained only a minor injury to his leg. After taking the hit, the victim managed to get on his feet, and he ran behind a vehicle. At that point, the defendant left the scene. The victim returned to his apartment and told Torres what had happened, and she telephoned police.

         Shortly thereafter, the defendant was arrested on several charges, and, following a jury trial, the jury found him guilty of attempt to commit assault in the first degree and breach of the peace in the second degree. See footnote 1 of this opinion. The court sentenced the defendant to a total effective sentence of twelve years incarceration, execution suspended after seven years, five years of which were mandatory, followed by three years probation. This appeal followed. Additional facts will be set forth as necessary in consideration of the defendant's claim.

         In this appeal, the defendant claims that the court abused its discretion by admitting evidence of uncharged misconduct. Specifically, he asserts that the court erred in admitting the uncharged misconduct evidence that, on February 3, 2013, the day before the attack on the victim that is the subject of this appeal, the defendant had chased the victim with a knife and threatened to kill him. The defendant argues that this evidence was unduly prejudicial and that the court should have excluded it. He fails to argue in his main brief to this court, however, that the trial court's erroneous admission of this evidence was harmful error. Thus, because the defendant has failed to brief adequately how he was harmed by this allegedly improper evidentiary ruling, we decline to review the defendant's claim.

         The following additional facts are relevant. Prior to trial, the state filed two notices of intent to admit uncharged misconduct. The defendant does not challenge on appeal the court's admission of various uncharged misconduct evidence offered by the state in its first notice.[2]

         In the second notice, which is the subject of this appeal, the state sought ‘‘to introduce testimony from [the victim] that, on February 3, 2013, the defendant came at [the victim] with a knife threatening to kill him.'' In response to the two notices, the defendant filed a motion in limine asking the court to preclude the state from eliciting any testimony, or offering any evidence, as to any uncharged misconduct on the part of the defendant, including the February 3, 2013 incident. The court denied the motion in limine, thereby permitting the state to offer evidence of the defendant's prior misconduct. At ...


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