March 14, 2019
information charging the defendant with the crimes of public
indecency, breach of the peace, improper use of a marker,
registration or license, and illegal operation of a motor
vehicle while his driver's license was under suspension,
and with two counts of failure to appear in the second
degree, brought to the Superior Court in the judicial
district of Danbury, geographical area number three, where
the court, Russo, J., denied the defendant's
motion to sever the failure to appear charges; thereafter the
matter was tried to a jury; verdict and judgment of guilty,
from which the defendant appealed to this court.
Ost Seifert, assigned counsel, for the appellant (defendant).
Jennifer F. Miller, assistant state's attorney, with
whom, on the brief, were Stephen J. Sedensky III, state's
attorney, and Deborah Mabbett, senior assistant state's
attorney, for the appellee (state).
Lavine, Moll and Bishop, Js.
defendant, Jose Luis Rodriguez, appeals from the judgment of
conviction, rendered following a jury trial, of public
indecency in violation of General Statutes § 53a-186 (a)
(2), breach of the peace in the second degree in violation of
General Statutes § 53a-181 (a) (5), improper use of a
marker, registration, or license in violation of General
Statutes § 14-147 (c), illegal operation of a motor
vehicle while his driver's license was under suspension
in violation of General Statutes § 14-215 (a), and two
counts of failure to appear in the second degree in violation
of General Statutes § 53a-173 (a) (1). The defendant
claims on appeal that the court improperly (1) admitted
evidence of uncharged misconduct, (2) instructed the jury on
the uncharged misconduct evidence, and (3) denied his motion
to sever the public indecency, breach of the peace, and motor
vehicle charges from the failure to appear charges. We affirm
the judgment of the trial court.
jury reasonably could have found the following facts beyond a
reasonable doubt. At 2 a.m. on September 14, 2006, a waitress
at Blue Colony Diner (diner) in Newtown called the police
because the defendant had exposed his penis and appeared to
be masturbating. When police officers arrived at the diner,
the waitress directed them to the table where the defendant
was seated. Although the defendant told police that someone
named ‘‘Steve'' dropped him off at the
diner, the police found a set of keys on his person that
matched an Oldsmobile in the diner parking lot. The police
ran the license plate on the Oldsmobile through their
database system and discovered that it belonged to a
different vehicle and was registered to another individual.
The police also learned that the operator's license of
the defendant had been suspended indefinitely.
defendant was charged with public indecency, breach of the
peace in the second degree, and motor vehicle violations. He
failed to appear on May 2, 2007, and July 17, 2009, and was
arrested and charged for both failures.
public indecency, breach of the peace, and motor vehicle
charges were consolidated with the failure to appear charges
for trial. The defendant filed a motion to sever the failure
to appear charges from the other charges; the motion was
heard and denied by the court. Trial commenced on June 6,
2017. The defendant was convicted of all charges and
sentenced to a total effective sentence of two years of
imprisonment, execution suspended after one year and two
days, and three years of probation. The defendant then
appealed from the judgment of conviction.
defendant first claims that the court improperly admitted
evidence of three instances in which he was arrested but not
charged for exposing himself to a waitress at either a diner
or restaurant. The state argues that the defendant did not
preserve this evidentiary claim. We agree with the state.
Alternatively, the defendant claims that he is entitled to
plain error reversal. We disagree.
trial, the state offered evidence of the defendant's
uncharged misconduct pursuant to § 4-5 (c) of the
Connecticut Code of Evidence and argued that it was
admissible to prove his intent to expose himself for sexual
gratification, the lack of mistake or accident, motive, and a
common plan or scheme involving a pattern of sexual behavior.
The state also offered the uncharged misconduct under §
4-5 (b) of the Connecticut Code of Evidence to show
propensity for sexual misconduct. The defendant's counsel
did not object; in response to the state's proffer of
uncharged misconduct evidence, he stated: ‘‘I
would have to leave it to the court's discretion, in that
regard . . . .''
standard for the preservation of a claim alleging an improper
evidentiary ruling at trial is well settled. This court is
not bound to consider claims of law not made at the trial. .
. . In order to preserve an evidentiary ruling for review,
trial counsel must object properly. . . . In objecting to
evidence, counsel must properly articulate the basis of the
objection so as to apprise the trial court of the precise
nature of the objection and its real purpose, in order to
form an adequate basis for a reviewable ruling. . . . Once
counsel states the authority and ground of [the] objection,
any appeal will be limited to the ground asserted. . . .
requirements are not simply formalities. They serve to alert
the trial court to potential error while there is still time
for the court to act. . . . Assigning error to a court's
evidentiary rulings on the basis of objections never raised
at trial unfairly subjects the court and the opposing party
to trial by ambush. . . . [A] party cannot present a case to
the trial court on one theory and then seek appellate relief
on a different one . . . . For this court to . . . consider
[a] claim on the basis of a specific legal ground not raised
during trial would amount to trial by ambuscade, unfair both
to the [court] and to the opposing party. . . . Thus, because
the sina qua non of preservation is fair notice to the trial
court; see, e.g., State v. Ross, 269 Conn.
213, 335-36, 849 A.2d 648 (2004) (the essence of the
preservation requirement is that fair notice be
given to the trial court of the party's view of the
governing law [emphasis in original]); the determination of
whether a claim has been properly preserved will depend on a
careful review of the record to ascertain whether the claim
on appeal was articulated below with sufficient clarity to
place the trial court on reasonable notice of that very same
claim.'' (Citations omitted; internal quotation marks
omitted.) State v. Jorge P., 308 Conn. 740,
753-54, 66 A.3d 869 (2013).
defendant argues on appeal that his counsel
‘‘somewhat ambiguously objected and, inter alia,
stated that ‘propensity evidence is, extremely, potent
evidence.' '' Leaving an evidentiary ruling to
the court's judgment falls well short of making an
objection. So does an observation about the potency of
evidence. On the basis of our review of the record, we
conclude the defendant did not object to the court's
admission of the uncharged misconduct evidence at all, and
certainly not with sufficient clarity so as to provide fair
notice to the trial court. We therefore decline to review the
defendant further argues that even if his claim is
unpreserved, he is entitled to plain error reversal on the
ground that the uncharged misconduct evidence was not
otherwise admissible and the prejudicial impact of the
evidence outweighed its probative value. We disagree.
plain error] doctrine, codified at Practice Book § 60-5,
is an extraordinary remedy used by appellate courts to
rectify errors committed at trial that, although unpreserved,
are of such monumental proportion that they threaten to erode
our system of justice and work a serious and manifest
injustice on the aggrieved party. [T]he plain error doctrine
. . . is not . . . a rule of reviewability. It is a rule of
reversibility. That is, it is a doctrine that this court
invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised at all
in the trial court, nonetheless requires reversal of the
trial court's judgment, for reasons of policy. . . . In
addition, the plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and
integrity of and public confidence in the judicial
proceedings. . . . Plain error is a doctrine that should be
invoked sparingly. . . . Implicit in this ...