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State v. Ramon A. G.

Court of Appeals of Connecticut

June 11, 2019

STATE OF CONNECTICUT
v.
RAMON A. G.[*]

          Argued January 10, 2019

         Procedural History

         Substitute information charging the defendant with the crimes of robbery in the first degree, assault in the second degree and criminal violation of a protective order, brought to the Superior Court in the judicial district of New Britain and tried to the jury before Keegan, J.; verdict and judgment of guilty of the lesser included offense of assault in the third degree and of criminal violation of a protective order, from which the defendant appealed to this court. Affirmed.

          Jennifer B. Smith, for the appellant (defendant).

          James M. Ralls, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attor- ney, and Elizabeth Moseley, senior assistant state's attorney, for the appellee (state).

          Keller, Elgo and Moll, Js.

          OPINION

          ELGO, J.

         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.

         On the 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 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.

         At approximately nine o'clock on the evening of March 22, 2013, the victim received a text message from the defendant indicating that he wanted to meet with her.[1] 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 defendant's mother and began to walk home.

         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]here's the keys'' in an angry manner. The defendant then grabbed the victim's backpack and swung her around. With her backpack still on, the victim fell to the ground, and the defendant began kicking her 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.

         Martin 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 incident.[2]

         Officer 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, [3] 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 mother's keys. And [the defendant] stated that he didn't touch her, but that he was there and that he just was going to find and borrow his mother's keys.''

         The victim was transported by ambulance to a nearby hospital, where she received medical treatment. Photographs of injuries to her face, neck, hands, and back were taken while she was hospitalized and were admitted into evidence at trial.

         The 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 victim's backpack for the keys to his mother's vehicle. The victim, however, did not want to meet with the defendant. The defendant's cousin later returned the backpack to her with its contents secure.

         Burrus 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.[4] At trial, Burrus testified that one such message contained ‘‘something along the lines of I ain't done with you yet.''

         The 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 mother's 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 weather conditions. 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 that ‘‘I just shook my foot loose and I crossed the street and I got in the car and we left.''

         Following 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.

         I

         The 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 state.

         The following additional facts are relevant to the defendant's claim. On the first day of trial, the defendant filed a one page request to charge with the court.[5] On the second day of trial, the court noted for the record that it had received the defendant's 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 court's 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.

         When that recess concluded, the court explained to the jury: ‘‘[W]e've 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 I 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 defendant's 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.'' (Emphasis added.)

         The record before us contains a copy of the draft charge that the court provided to the parties later that night.[6] That charge statesin 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 the defense applied to either the assault or the criminal violation of a protective order counts.

         The next day, the court held a charge conference with the parties following the close of evidence. At the outset, the court indicated that it had sent a copy of its revised draft charge to the parties the previous night and inquired whether they had reviewed it; defense counsel answered affirmatively. The court also noted that ‘‘the defense did ask yesterday in chambers . . . for a lesser included [offense] of assault in the third degree on the assault second, so I have included that. . . . And the defense also asked for the self-defense under the defense of [personal] property, which is included as well.'' (Emphasis added.) The court then asked if the parties had sufficient time to review the court's proposed charge to the jury and solicited feedback thereon, at which time defense counsel asked the court to change the word ‘‘statement'' to ‘‘statements'' in a section on impeachment evidence because the defendant was claiming that multiple inconsistent statements had been made. After agreeing to that change, the court asked: ‘‘Anything else?'' Defense counsel replied, ‘‘No, Your Honor. . . . I'm all set, Your Honor. Thank you.'' The court then stated: ‘‘All right. And you both have had enough time with the charge that you feel comfortable with the court charging [the jury] today?'' Both parties answered, ‘‘Yes, Your Honor.'' The court then adjourned the proceeding for a midday recess.

         When that recess concluded, the court stated for the record that it had ‘‘sent both parties a copy of the final jury instruction in electronic form.'' The court then permitted the parties to make closing arguments. In his closing argument, defense counsel stated in relevant part that the defense of personal property ‘‘is a complete defense to robbery in the first degree.'' Counsel did not reference that defense in his discussion of either the assault or the criminal violation of a protective order offenses.

         Following closing arguments, the court provided its charge to the jury. With respect to the defense of personal property, the court instructed the jury that this defense applied to the robbery charge.[7] When it concluded, the court asked the parties if they had any objections. At that time, defense counsel stated, ‘‘No objections, Your Honor, at all.''

         On appeal, the defendant claims that the court ‘‘improperly instructed the jury that the defense of [personal] property only applied to the robbery charge.'' He argues that, on the basis of his request to charge, the court should have instructed the jury that the defense applied to the robbery and assault charges set forth in counts one and two of the information, but not to the criminal violation of a protective order charge contained in count three. The court's failure to do so, he contends, violated his constitutional rights to due process and to present a defense.

         Before we can consider the merits of that claim, we must resolve two threshold issues. Specifically, we must determine whether the defendant properly preserved that claim with the trial court. If that claim was not properly preserved, we also must ...


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