State v. Ramon A. G.

• Decision Date: 28 July 2020
• Docket Number: SC 20358
• Citation: 336 Conn. 386,246 A.3d 481
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. RAMON A. G.

336 Conn. 386

246 A.3d 481

STATE of Connecticut

v.RAMON A. G.^*

SC 20358

Supreme Court of Connecticut.

Argued May 6, 2020

Officially released July 28, 2020^**

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

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

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.^***

KAHN, J.

The defendant, Ramon A. G., appeals from the judgment of the Appellate Court affirming the judgment of conviction, rendered after a jury trial, of, among other crimes, assault in the third degree in violation of General Statutes § 53a-61.¹ The defendant claims that the Appellate Court incorrectly concluded that he had (1) failed to preserve his claim that the trial court violated his constitutional rights by omitting a defense of personal property instruction with respect to the charge of assault, and (2) waived that unpreserved instructional claim. See State v. Ramon A. G. , 190 Conn. App. 483, 211 A.3d 82 (2019). We disagree with the defendant and, accordingly, affirm the judgment of the Appellate Court.

The following facts and procedural history are relevant to our consideration of the present case. The victim became romantically involved with the defendant in August, 2012. That relationship deteriorated over the months that followed, and, on March 18, 2013, a judge of the Superior Court issued a protective order prohibiting the defendant from having any contact with the victim. Although the defendant had lived with the victim previously, on that particular date, he was residing in his mother's apartment. Notwithstanding the existence of the protective order, the victim visited with the defendant during a gathering at his mother's apartment approximately four days later.² The victim surreptitiously took a set of car keys belonging to the defendant's mother from that apartment and began to walk home around 10:45 p.m.³ At trial, the victim admitted to deliberately throwing those keys into a bush along her route home because she "felt like something was gonna happen ...."

Testimony from the victim and the defendant provided different accounts of the events that followed. The victim testified that she was carrying a backpack that night containing, among other things, her cell phone and some cash. The victim stated that, after she had discarded the keys, the defendant emerged from a nearby vehicle and proceeded to attack her. Specifically, the victim told the jury that the defendant was angry and began swinging her around by her backpack. The victim testified that she fell to the ground and that the defendant then kicked her repeatedly while wearing a set of tan Timberland boots. According to the victim, the defendant ultimately took the backpack and rummaged through it for his mother's keys, spilling her cell phone and some other contents on the ground. The victim testified that the defendant then left with her backpack. A bystander who witnessed this confrontation called 911.⁴ The victim was taken to the hospital, treated, and released the following morning.⁵ The victim stated that, after she returned home, the defendant sent her text messages asking to exchange the backpack for his mother's car keys. The victim testified that, although the backpack was ultimately returned, the cash that had been inside of it was gone.

The defendant, against the advice of counsel, testified in his own defense at trial. The defendant told the jury that he exited a vehicle driven by a friend, approached the victim while she was on the sidewalk, and said "please give me my mother's keys." The defendant stated that the victim "began to swing" at him, that he grabbed her hands to stop her, and that he ended up falling on the ground repeatedly because of ice. The defendant testified that he tried to get up to leave but that the victim grabbed his foot to impede him. The defendant testified that he eventually "shook [his] foot loose," crossed the street, got into his friend's car, and left. The defendant indicated that he did not take anything from the victim that evening and that he had been wearing sneakers, not boots. The defendant told the jury that the victim's injuries must have been caused by his attempts to escape and that he "never intentionally assaulted her ...."⁶

The defendant had been 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 General Statutes § 53a-223 (a). On the first day of trial, the defendant filed a one page request to charge, seeking an instruction on the defense of personal property pursuant to General Statutes § 53a-21. The defendant did not identify the evidentiary basis for this request or indicate to which charges it related. Instead, the defendant merely stated that "[t]he evidence supports this request."

The following day, the trial court indicated that it had received the defendant's request and that it wanted to discuss its preliminary instructions with counsel in chambers. After taking a recess, the trial court made the following statement on the record: "[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, [she] can do that formally tomorrow on the record." (Emphasis added.) A set of draft instructions subsequently produced by the trial court contained a defense of personal property instruction only with respect to the charge of robbery in the first degree. See footnote 8 of this opinion (quoting in part trial court's instruction to jury).

The trial court held a formal charging conference following the close of evidence on May 18, 2016. Defense counsel indicated that he had received a copy of the court's draft instructions and had been able to review it. The court specifically indicated that it had included a defense of personal property instruction as requested by the defendant and then noted the particular page on which that instruction appeared. The state then asked if the court, in crafting the instruction for defense of personal property, had drawn from particular language from the model criminal jury instructions found on the Judicial Branch website. See Connecticut Criminal Jury Instructions § 2.8-5 (B), available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited July 27, 2020). The trial court responded in the affirmative and then asked defense counsel whether he had noticed its use of the model instruction. Defense counsel responded, "I did." After the court addressed certain other issues related to its proposed instructions, it asked whether the parties had "[a]nything else." Defense counsel replied: "No, Your Honor ... I'm all set, Your Honor. Thank you." The trial court then asked defense counsel whether he had been given sufficient time to review the draft instructions, and defense counsel responded, "[y]es, Your Honor."

During his closing argument, defense counsel stated that the defense of personal property "is a complete defense to robbery in the first degree" and then reviewed the elements of that defense in detail. Although defense counsel briefly mentioned the stolen car keys when discussing assault and criminal violation of a protective order, he did not explicitly mention the defense of personal property with respect to those charges.⁷ Consistent with its draft instructions, the final version of the court's charge, electronic copies of which were provided to counsel in advance, again limited the defense of personal property instruction to the robbery count.⁸ After charging the jury, the trial court asked whether there were any objections, and defense counsel replied: "No objections, Your Honor, at all."

On May 19, 2016, the jury returned a verdict finding the defendant not guilty of robbery and assault in the second degree, but guilty of the lesser included offense of assault in the third degree, and guilty of criminal violation of a protective order. The trial court rendered a judgment of conviction in accordance with that verdict and, on August 3, 2016, imposed a concurrent sentence of seven years of imprisonment for criminal violation of a protective order and one year of imprisonment for assault in the third degree, with three years of special parole.

The defendant thereafter appealed to the Appellate Court, claiming, inter alia, that "the trial court improperly declined to furnish a jury instruction on the defense of personal property with respect to ... assault ...." State v. Ramon A. G. , supra, 190 Conn. App. at 484, 211 A.3d 82. The Appellate Court concluded that the defendant's written request to charge was insufficient to preserve his particular claim of error and that the defendant had implicitly waived appellate review of that claim under State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011). State v. Ramon A. G. , supra, at 500, 503, 211 A.3d 82. After considering an unrelated claim of error,⁹ the Appellate Court ultimately affirmed the trial court's judgment. Id., at 510, 211 A.3d 82.

We subsequently granted the defendant's petition for certification to appeal, limited to the following issues: (1) "Did the Appellate Court correctly conclude that the defendant's claim of instructional error was not...