January 10, 2019
from the Superior Court in the judicial district of New
Britain and tried to the jury before Keegan, J.
[Copyrighted Material Omitted]
Jennifer B. Smith, for the appellant (defendant).
M. Ralls, assistant states attorney, with whom, on the
brief, were Brian Preleski, states attorney, and Elizabeth
Moseley, senior assistant states attorney, for the appellee
Elgo and Moll, Js.
Conn.App. 484] The defendant, Ramon A. G., appeals from the
judgment of conviction, rendered after a jury trial, of
assault in the third degree in violation of General Statutes
§ 53a-61 and criminal violation of a protective order in
violation of General Statutes § 53a-223 (a). On appeal, the
defendant claims that (1) the trial court improperly declined
to furnish a jury instruction on the defense of personal
property with respect to the assault charge and (2)
prosecutorial impropriety during closing argument deprived
him of his due process right to a fair trial. We affirm the
judgment of the trial court.
basis of the evidence adduced at trial, the jury reasonably
could have found the following facts. In August, 2012, the
victim began what she described [190 Conn.App. 485] at trial
as a "toxic relationship" with the defendant, which
lasted seven months and concluded in March, 2013. On March
18, 2013, a protective order was issued that prohibited the
defendant from having any contact with the victim.
approximately nine oclock on the evening of March 22, 2013,
the victim received a text message from the defendant
indicating that he wanted to meet with her. Although
initially hesitant, she ultimately agreed to do so and began
walking toward the apartment where the defendant resided with
his mother, who at that time was hospitalized. The defendant
then picked the victim up in a motor vehicle and continued to
the apartment, where they socialized with other individuals.
When some attendees became rowdy, the victim decided to
leave. As she exited the apartment, the victim took the keys
to a vehicle belonging to the defendants mother and began to
Halfway to her home, the victim "felt like something bad
was going to happen," so she tossed the keys into a bush
alongside the road, which she described at trial as
"[s]omewhere safe where I could go back for them
later." At that time, she was wearing a backpack that
contained, among other things, her cell phone, a money order,
and cash. Soon thereafter, a vehicle driven by an
unidentified person stopped in the middle of the street. The
defendant exited the vehicle and started yelling
"[w]heres the keys" in an angry manner. The
defendant then grabbed the victims backpack and swung her
around. With her backpack still on, the victim fell to the
ground, and the defendant began kicking her [190 Conn.App.
486] in the head, back, and stomach. After one particular
blow to her temple area, the victim saw "stars" and
let go of the backpack. The defendant rummaged
through its contents, returned to the vehicle with the
backpack in hand, and departed.
Martinez was inside his nearby residence at the time of the
altercation. When he looked outside, he saw a man kicking a
woman on the ground. As he testified: "I ... remember
seeing a male beating up a female .... I saw some kicking. I
saw her on the ground, and I saw someone— the male, you
know, really giving it to her, stomping on her."
Martinez immediately called 911 to report the
Marcus Burrus of the New Britain Police Department arrived at
the scene to find the victim crying, shaking, and hunched on
the ground. The victim "was bleeding from areas of her
face. She had blood on her ears, her face, [and] her
hands." While awaiting medical assistance for the
victim, Burrus answered an incoming call to her cell phone
from a contact labeled "Maria." On the basis of
prior experience and conversations with the
defendant, Burrus recognized the caller as the
defendant. During that conversation, Burrus testified that
the defendant "told [him] that he came to the area
[where the altercation transpired] and that he had confronted
[the victim] because he believed that she was in possession
of his mothers keys. And [the defendant] stated that he
didnt touch her, but that he was there and that he just was
going to find and borrow his mothers keys."
Conn.App. 487] The victim was transported by ambulance to a
nearby hospital, where she received medical treatment.
Photo-graphs of injuries to her face, neck, hands, and back
were taken while she was hospitalized and were admitted into
evidence at trial.
victim was released from the hospital on the morning of March
23, 2013. Although a protective order remained in place, the
victim received multiple text messages from the defendant
later that morning. In those messages, the defendant
indicated that he wanted to exchange the victims backpack
for the keys to his mothers vehicle. The victim, however,
did not want to meet with the defendant. The defendants
cousin later returned the backpack to her with its contents
met with the victim at her home the following day. At that
time, the victim informed him that she had received text
messages from the defendant, which Burrus reviewed on her
phone. At trial, Burrus testified that one
such message contained "something along the lines of I
aint done with you yet."
defendant testified at trial on his own behalf and provided a
different account of the altercation. In his testimony, the
defendant admitted that he had confronted the victim on the
sidewalk as she was walking home that night. He testified
that he "said please give me my mothers keys" and
that the victim then "began to swing at [him]." The
defendant testified that, as he grabbed her hands and
"told her, please, just give me the keys," he
slipped and fell to the ground, which he attributed to wintry
The defendant further testified that, as he attempted to
"get up to leave," the victim "grabbed a hold
of [his] foot," causing him to again fall to the ground.
The defendant testified [190 Conn.App. 488] that "I just
shook my foot loose and I crossed the street and I got in the
car and we left."
that altercation, the defendant was arrested and charged with
robbery in the first degree in violation of General Statutes
§ 53a-134 (a) (3), assault in the second degree in violation
of General Statutes § 53a-60 (a) (2), and criminal violation
of a protective order in violation of § 53a-223 (a). Pursuant
to General Statutes § 53a-40b, the state also charged, in a
part B information, that the defendant committed those
offenses while on release "pursuant to [General
Statutes] § § 54-63a to 54-63g and/or [General Statutes] § §
54-64a to 54-64c ...." A trial followed, at the
conclusion of which the jury found the defendant not guilty
of robbery in the first degree and assault in the second
degree. The jury found the defendant guilty of criminal
violation of a protective order and the lesser included
offense of assault in the third degree. The defendant
thereafter pleaded guilty to the charge set forth in the part
B information. The court rendered judgment accordingly and
sentenced the defendant to a total effective sentence of
seven years incarceration, followed by three years of special
parole. From that judgment, the defendant now appeals.
defendant first claims that the court improperly declined to
furnish a jury instruction on the defense of personal
property with respect to the assault count. In response, the
state submits that the defendant both failed to preserve and
impliedly waived that claim at trial. We agree with the
following additional facts are relevant to the defendants
claim. On the first day of trial, the defendant filed a one
page request to charge with the court. On [190 Conn.App.
489] the second day of trial, the court noted for the record
that it had received the defendants request to charge. The
court then stated: "[W]hat I would like to do is try to
have a discussion about this. I think it would be easiest to
start it in chambers so that I can give you copies [of the
courts draft charge], and then come out here and summarize
on the record what we have done and what we discussed in
chambers. Because if it gets to a point where we could do
closing arguments tomorrow, I very much would like to do
closing arguments tomorrow." The court indicated that it
would "take about forty-five minutes to preliminarily
discuss the jury charge with the attorneys" in chambers
during an afternoon recess.
that recess concluded, the court explained to the jury:
"[W]eve had the opportunity to have a preliminary
discussion on the jury charge. And I have given to each
attorney a very rough draft of what I call my overinclusive
jury charge. I intend to take out the areas that do not apply
in this case, and then to also work further on the charges
with respect to the crimes that are alleged in this case. And
intend to send this out via e-mail tonight to the two
attorneys so that you will have that for review tonight.
I am going to grant the defendants request to charge the
jury on defense of personal property. I will put that in
there . And [if the prosecutor has] any objections to
it, you can do that formally tomorrow on the record."
record before us contains a copy of the draft charge that the
court provided to the parties later that [190 Conn.App. 490]
night. That charge states in relevant part:
"The evidence in this case raises the issue of the use
of force against another to defend personal property. This
defense applies to the charge of [r]obbery in the [f]irst
[d]egree." The draft charge did not indicate that ...