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State v. Shane K.
STATE OF CONNECTICUT v. SHANE K.*
(AC 46501)
Bright, C. J., and Moll and Suarez, Js.
Syllabus
The defendant appealed from the judgment of conviction of assault in the
third degree and two counts of criminal violation of a protective order. He
claimed, inter alia, that the trial court improperly denied his motion to
dismiss or to transfer the case for improper venue because the court, inter
alia, incorrectly had concluded that the state constitution did not mandate
that a criminal defendant be tried in the judicial district in which the offense
occurred. Held:
This court declined to consider the merits of the defendant’s constitutional
and statutory (§ 51-352c (a) and (b)) claims in light of its conclusion that
the trial court did not clearly err in finding that the defendant had committed
the charged offenses, at least in part, in the judicial district in which he
was tried.
The defendant waived his unpreserved claim that the trial court improperly
failed to instruct the jury on venue, and, as a result of such waiver, the
unpreserved claim also failed under the third prong of Golding.
Argued March 21—officially released September 17, 2024
Procedural History
Substitute information charging the defendant with
two counts of the crime of criminal violation of a protective order and one count of the crime of assault in
the third degree, brought to the Superior Court in the
judicial district of Ansonia-Milford, geographical area
number twenty-two, and tried to the jury before Hon.
H. Gordon Hall, judge trial referee; thereafter, the court
denied the defendant’s motion to dismiss or to transfer;
verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106,
136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
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State v. Shane K.
Jeremiah Donovan, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Margaret E. Kelley, state’s
attorney, and Matthew Kalthoff, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
MOLL, J. The defendant, Shane K., appeals from the
judgment of conviction, rendered after a jury trial, of
assault in the third degree in violation of General Statutes § 53a-61 (a) (1)1 and two counts of criminal violation of a protective order in violation of General Statutes
§ 53a-223.2 On appeal, the defendant claims that the
trial court improperly (1) denied his motion to dismiss
or, in the alternative, to transfer the case for improper
venue, asserting that the court incorrectly (a) concluded that the state constitution does not require a
criminal defendant to be tried in the judicial district
where the charged offense occurred and (b) applied
General Statutes § 51-352c (a) and (b),3 and (2) failed
1
General Statutes § 53a-61 (a) provides in relevant part: ‘‘A person is
guilty of assault in the third degree when: (1) With intent to cause physical
injury to another person, he causes such injury to such person or to a third
person . . . .’’
2
General Statutes § 53a-223 provides: ‘‘(a) A person is guilty of criminal
violation of a protective order when an order issued pursuant to subsection
(e) of section 46b-38c, subsection (f) of section 53a-28, or section 54-1k
or 54-82r has been issued against such person, and such person violates
such order.
‘‘(b) No person who is listed as a protected person in such protective
order may be criminally liable for (1) soliciting, requesting, commanding,
importuning or intentionally aiding in the violation of the protective order
pursuant to subsection (a) of section 53a-8, or (2) conspiracy to violate
such protective order pursuant to section 53a-48.
‘‘(c) Criminal violation of a protective order is a class D felony, except
that any violation of a protective order that involves (1) imposing any
restraint upon the person or liberty of a person in violation of the protective
order, or (2) threatening, harassing, assaulting, molesting, sexually assaulting
or attacking a person in violation of the protective order is a class C felony.’’
3
General Statutes § 51-352c provides: ‘‘(a) A criminal prosecution shall
not fail by reason of the fact that the evidence may disclose the crime to
have been committed in a town or judicial district adjoining that alleged in
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State v. Shane K.
to instruct the jury on venue. We affirm the judgment
of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of the defendant’s claims. The victim, L,
became acquainted with the defendant in 2018, and
they subsequently were married on July 15, 2018. The
defendant thereafter moved in with the victim and her
minor daughter, M, at the victim’s residence in Bridgeport (residence).
In March, 2021, the victim called the police to the
residence because ‘‘the dynamic became very toxic and
[she] needed third-party interference to remove [the
defendant] from the [residence].’’ On April 13, 2021, the
trial court, Dayton, J., issued an order of protection
against the defendant, which prohibited him, inter alia,
from assaulting, threatening, abusing, contacting, or
coming within 100 yards of the victim. Whereupon, the
defendant returned to the residence to collect his
belongings and moved out. The victim and the defendant did not speak to each other for some time after the
defendant had vacated the residence. Later, however,
while the protective order remained in effect, the victim
and the defendant reestablished communication.
the indictment or information.
‘‘(b) If any person is accused of committing any offense on the boundary
or divisional line between any of the towns or judicial districts in the state,
or so near thereto as to render it doubtful in which town or judicial district
the offense was committed, the town or judicial district which first assumes
jurisdiction by issuing process for the arrest and prosecution of the offender,
whether the name of such offender is known or unknown, shall have exclusive jurisdiction to charge, present, indict, try, convict and sentence. In such
a case, it shall only be necessary for the state, judicial district, town, city
or borough to establish the venue alleged in the information, complaint,
warrant or indictment by proving that the offense alleged was committed
on the boundary of the judicial district or town in which the accused is
being tried or so near thereto as to render it doubtful in which town or
judicial district the offense was committed.
‘‘(c) The provisions of this section shall not impair the right of the accused
to obtain a change of venue.’’
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State v. Shane K.
On June 20, 2021, notwithstanding the protective
order, the defendant, the victim, and M stayed at a hotel
in Orange to celebrate Father’s Day together. Following
two days at the hotel, on June 22, 2021, the defendant
drove the victim and M back to the residence. That
afternoon, the defendant told the victim that he wanted
to purchase marijuana in Shelton. The defendant drove
the victim and M out of Bridgeport to a certain location
and exited the vehicle alone. After returning to the
vehicle, the defendant began driving the group back to
Bridgeport. While traveling on a highway during the
return trip, the victim and the defendant began arguing,
and, at one point, the defendant pulled over and told
the victim ‘‘to get the F out’’ of the vehicle, which the
victim refused to do. After resuming the drive, the defendant stated, ‘‘F it, I’ll just kill us all,’’ and began repeatedly veering toward the side of the highway, which the
victim countered by pushing the steering wheel back
to keep the vehicle steady. In an effort to distract the
defendant from his attempts to drive off the highway,
the victim began ‘‘talking very derogator[ily] and very
offensively about things that [the defendant] was sensitive to.’’ At that juncture, while continuing to operate
the vehicle, the defendant began punching the victim
in her face with his right hand. The defendant continued
to punch the victim until they were near or in Bridgeport. Once they had returned to the residence, the victim
and M exited the vehicle, and the defendant drove away.
The victim entered the residence and called the police
to report the assault.
The victim later provided the police with a signed,
written statement about the assault (victim’s statement). In the victim’s statement, which was marked as
state’s exhibit 10 for identification only and not offered
by the state as a full exhibit at trial, the victim stated
in relevant part that the defendant (1) began punching
her while they were in the area of exit 55 on Route 15
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State v. Shane K.
southbound and (2) continued to punch her as they
crossed over the Sikorsky Bridge and exited Route 15
via exit 52.
Following the assault, a warrant for the defendant’s
arrest was issued by the Superior Court, geographical
area number twenty-two in Milford, which is located in
the judicial district of Ansonia-Milford.4 The defendant
subsequently was arrested and charged with, inter alia,
criminal violation of a protective order in violation of
§ 53a-223 (c) (2) and assault in the second degree in
violation of General Statutes § 53a-60.
During a pretrial hearing on November 1, 2022, the
prosecutor informed the trial court, Grogins, J., of a
discussion that he had with the victim earlier that day,
which discussion ‘‘raise[d] a question in [his] mind as
to––it’s an incident that allegedly took place in a car,
that car ultimately . . . reached . . . Bridgeport, and
whether or not that car passed through Milford may
not be something that I’m able to prove at trial. It’s not
an element of an offense. I don’t believe that it is anything that impacts the [defendant’s] culpability for the
case. . . . I disclosed that to [defense counsel] earlier
today, I wanted to put that on the record lest there be
any question that it was not discussed forthwith.’’
On November 14, 2022, the state filed a long form
information (November 14, 2022 information) charging
the defendant with (1) assault in the third degree in
violation of § 53a-61 (a) (1), (2) criminal violation of a
protective order, predicated on the allegation that the
defendant failed to stay 100 yards away from the victim,
in violation of § 53a-223, and (3) criminal violation of
4
General Statutes § 51-344 provides in relevant part: ‘‘For purposes of
establishing venue, the Superior Court shall consist of the following judicial districts:
‘‘(1) The judicial district of Ansonia-Milford, consisting of the towns of
Ansonia, Beacon Falls, Derby, Milford, Orange, Oxford, Seymour, Shelton
and West Haven . . . .’’
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State v. Shane K.
a protective order, predicated on the allegation that the
defendant intentionally caused physical injury to the
victim, in violation of § 53a-223 (c) (2). The November
14, 2022 information did not specify in which judicial
district the charged offenses had occurred, but it alleged
that the respective offenses had transpired during a
drive to Bridgeport.
By way of a motion dated November 15, 2022, the
defendant moved to dismiss or, in the alternative, to
transfer the case on the basis of improper venue
(motion to dismiss or to transfer).5 In support of the
motion, the defendant cited his due process rights pursuant to the United States constitution and article first,
§ 8, of the Connecticut constitution. The defendant contended that (1) the November 14, 2022 information did
not allege that the charged offenses had occurred in
the judicial district of Ansonia-Milford, and (2) ‘‘[o]n
information and belief . . . the best the [s]tate might
claim is that the alleged crime[s] occurred somewhere
between Shelton and Bridgeport, most likely along the
Merritt Parkway6 in Stratford or Bridgeport’’; (footnote
added); with the latter two cities situated in the judicial
district of Bridgeport,7 such that the present case was
being prosecuted in the wrong venue. The defendant
5
The court, Hon. H. Gordon Hall, judge trial referee, received the original
copy of the motion to dismiss or to transfer on November 15, 2022, but the
defendant did not file the motion with the clerk’s office until November
28, 2022.
6
Evidence was adduced at trial indicating that Route 15 is the route
number for the Merritt Parkway.
7
General Statutes § 51-344 provides in relevant part: ‘‘For purposes of
establishing venue, the Superior Court shall consist of the following judicial
districts . . .
‘‘(3) The judicial district of Bridgeport, consisting of the towns of Bridgeport, Easton, Fairfield, Monroe, Stratford and Trumbull . . . .’’
Effective January 1, 2024, the judicial district of Fairfield was renamed
as the judicial district of Bridgeport. See Public Acts 2023, No. 23-46, § 26.
In the interest of simplicity, we consider any references in the record to the
judicial district of Fairfield as referring to the judicial district of Bridgeport.
Page 6 CONNECTICUT LAW JOURNAL 0, 0
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State v. Shane K.
further argued that, although ‘‘typically the question of
venue is procedural and not jurisdictional,’’ dismissal
of the case was warranted because the state’s disclosure
on November 1, 2022, concerning new information
about the location of the charged offenses, occurred
on the eve of trial, such that transferring the case would
delay the impending trial. In addition, the defendant
maintained that keeping the case in the judicial district
of Ansonia-Milford ‘‘would subject [him] to a different
jury pool than what he would have in Bridgeport and
could skew the ultimate result at trial in a manner that
could and should have been prevented.’’ Accordingly,
the defendant requested that the court dismiss the case
or, in the alternative, transfer the case to Bridgeport
or to the appropriate district determined by the court
following a hearing.
By way of a memorandum of law dated November
25, 2022, the state objected to the motion to dismiss or
to transfer. The state argued that venue was proper in
the judicial district of Ansonia-Milford because (1) the
arrest warrant for the defendant was supported by the
victim’s statement, in which the victim relayed that the
defendant began assaulting her on Route 15 southbound
in the area of exit 55, which is located in Milford, (2)
at trial, it intended to offer evidence of the defendant
stating that the incident in question occurred during
a trip from New Haven to Bridgeport, which would
corroborate the victim’s statement as to the path of
travel, (3) General Statutes §§ 54-1d (c)8 and 51-352c
permitted the case to be prosecuted in the judicial district of Ansonia-Milford even if the charged offenses
had occurred in full or in part in a neighboring judicial
district, such as the judicial district of Bridgeport, and
(4) location was not an essential element of the charged
8
General Statutes § 54-1d (c) provides in relevant part: ‘‘A criminal cause
shall not fail on the ground that it has been submitted to a session of
improper venue.’’
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State v. Shane K.
offenses that the state was obligated to prove. As to
the defendant’s alternative request to transfer the case
to a different venue, the state contended that the defendant could not satisfy his burden to prove that he would
not receive a fair and impartial trial in the judicial district of Ansonia-Milford. Additionally, with regard to
its disclosure on November 1, 2022, concerning the
prosecutor’s discussion with the victim, the state represented that (1) during the discussion, the prosecutor
‘‘sensed that the [victim] may be uncertain as to the
path of travel taken by the defendant seventeen months
ago,’’ (2) on the basis of the discussion, the prosecutor
expected the victim to testify at trial that the charged
offenses had occurred, at least in part, in the judicial
district of Ansonia-Milford, and (3) ‘‘[i]n an abundance
of candor,’’ it had disclosed to defense counsel that its
evidence ‘‘may be vague as to the precise locations of
[these] alleged crime[s] in transit.’’
The matter was tried to a jury on November 28 and
29, 2022. On November 28, 2022, prior to the start of
evidence, the state filed an amended long form information (operative information). The operative information, which charged the defendant with the same three
crimes as the November 14, 2022 information,9 alleged
that ‘‘the following crimes . . . took place, in full or
in part, within [the judicial district of Ansonia-Milford]
. . . .’’ That same morning, after hearing argument outside of the jury’s presence on the motion to dismiss or
to transfer, the court, Hon. H. Gordon Hall, judge trial
referee, determined that (1) the state had ‘‘facially
alleged proper venue’’ in the operative information in
compliance with the rules of practice,10 (2) venue is not
9
Count one of the operative information was identical to count one of
the November 14, 2022 information. The state made minor changes to the
allegations in support of counts two and three of the operative information
relative to the corresponding counts in the November 14, 2022 information,
which changes are immaterial for purposes of this appeal.
10
Practice Book § 36-13 provides in relevant part: ‘‘The information shall
be a plain, concise and definite written statement of the offense charged.
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State v. Shane K.
an issue ‘‘of constitutional dimension in this state,’’ but,
rather, ‘‘more an issue of convenience for the litigants,’’
and (3) the state was not required to prove venue, as
it was not an element of any of the charged offenses.
The court further determined that (1) the defendant
had not demonstrated that he would not receive a fair
and impartial trial in the judicial district of Ansonia-Milford and (2) ‘‘venue, at least where we sit right now,
is proper’’ in light of the victim’s statement; however,
without objection from the parties, the court reserved
its decision on the motion to dismiss or to transfer so
as to permit the parties to develop the record further.
During its case-in-chief, the state called several witnesses, including the victim. The victim testified in relevant part that (1) while at the residence on the afternoon
of June 22, 2021, the defendant told her that he wanted
to purchase marijuana in Shelton, (2) the defendant
drove her and M out of Bridgeport via a highway to get
to their destination, although she could not recall any
details about the destination, had no independent recollection of the specific highway on which they had traveled, and was not certain whether they ever reached
Shelton, (3) during their return trip to Bridgeport, the
defendant briefly stopped at a gas station close to a
highway before entering the highway, although she
could not recall the name of the gas station or the
highway, and (4) the defendant began assaulting her
while driving on the highway, with the assault continuing to transpire while they passed by multiple highway
exits and crossed over a bridge that she believed, without certainty, to be the Sikorsky Bridge. The victim
further testified that she had been intoxicated at the
time of the assault, which made her ‘‘memory of what
was going on at that particular time . . . blurry . . . .’’
. . . The information shall also contain . . . (4) [a] statement that such
crime was committed in a particular judicial district or geographical area, or
at a particular place within such judicial district or geographical area . . . .’’
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State v. Shane K.
The state also called as a witness Charlotte Schmid,
an investigator for the Department of Children and Families. Schmid testified in relevant part that (1) she spoke
with the defendant following the assault on July 19,
2021, (2) she asked the defendant ‘‘about the incident
in the car,’’ which reference the defendant ‘‘seem[ed]
to understand,’’ and (3) the defendant told her that, on
the day of the aforementioned ‘‘incident,’’ he was driving with the victim and M to New Haven to get medication.
On November 29, 2022, after the state had rested its
case-in-chief, the court excused the jury and invited
additional argument on the motion to dismiss or to
transfer. The court then orally denied the motion, setting forth its reasoning on the record and further indicating that a written decision would follow, which it later
issued on December 2, 2022.11 The court determined
that both the judicial district of Ansonia-Milford and
the judicial district of Bridgeport constituted proper
venues because the record supported finding that the
alleged offenses were committed in both judicial districts. In determining that venue was proper in the judicial district of Ansonia-Milford, the court relied on (1)
the victim’s statement, which reflected that the defendant began assaulting the victim while they were on
Route 15 in Milford,12 and (2) testimony at trial indicating that, on the day of the assault, the defendant drove
the victim and M either to Shelton or to New Haven,
such that, in either scenario, they would have had to
have gone ‘‘out of their way to avoid the judicial district
of Ansonia-Milford to get back to Bridgeport.’’ The court
observed that, although the victim had testified at trial
11
In the December 2, 2022 written decision, the court stated that the
motion to dismiss or to transfer was ‘‘denied for the reasons articulated at
the [November 29, 2022] hearing and herein.’’ (Emphasis omitted.)
12
The court referenced a map admitted into evidence as state’s exhibit 7
to find that, per the victim’s statement, the defendant began assaulting the
victim while they were in Milford.
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State v. Shane K.
that she could not recall the details as to where the
assault had occurred, her trial testimony did not recant
or contradict the substance of the victim’s statement.
Furthermore, ostensibly assuming arguendo that the
record did not support a finding that the alleged
offenses occurred in the judicial district of Ansonia-Milford, the court concluded that dismissal of the case
was not warranted by operation of § 51-352c (a) and
(b) or § 54-1d (c).
Additionally, the court iterated that venue under Connecticut law is a ‘‘procedural matter’’ concerning the
convenience of the parties13 and that the defendant had
not demonstrated any prejudice as a result of his trial
being conducted in the judicial district of Ansonia-Milford. Moreover, insofar as the defendant was raising a
vicinage claim, the court stated that (1) it was unaware
of any authority providing that the vicinage clause of
the sixth amendment to the United States constitution14
applies to the states, and (2) our Supreme Court ‘‘has
not upheld a right of an accused to be tried within the
county or other territorial jurisdiction within which the
offense was committed’’ and the state constitution ‘‘contain[ed] no provision restricting the place of trial of
persons accused of a crime,’’ citing State v. Pace, 129
Conn. 570, 572,
29 A.2d 755 (1943).
13
The court noted that the defendant was not contesting the court’s jurisdiction to entertain the case and determined that, on the basis of the record,
‘‘the court ha[d] . . . all kinds of jurisdiction, personal, territorial, and subject matter jurisdiction . . . .’’
14
The sixth amendment to the United States constitution provides: ‘‘In
all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the assistance of counsel
for his defense.’’
The vicinage clause of the sixth amendment to the United States constitution ‘‘guarantees the right to . . . an impartial jury of the State and district
wherein the crime shall have been committed.’’ (Internal quotation marks
omitted.) Smith v. United States, 599 U.S. 236, 244–45,
143 S. Ct. 1594,
216
L. Ed. 2d 238 (2023). ‘‘The vicinage right is . . . one aspect of the jury-trial
rights protected by the [s]ixth [a]mendment . . . .’’ Id., 245.
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State v. Shane K.
On November 29, 2022, the jury found the defendant
guilty on all counts. On February 6, 2023, the court
sentenced the defendant to a total effective sentence
of ten years of incarceration, execution suspended after
five years, followed by three years of probation. This
appeal followed. Additional procedural history will be
set forth as necessary.
I
We first turn to the defendant’s claim that the trial
court improperly denied the motion to dismiss or to
transfer because the court incorrectly (1) concluded
that the state constitution does not mandate that a
criminal defendant be tried in the judicial district where
the offense occurred and (2) applied § 51-352c (a) and
(b). For the reasons that follow, we decline to consider
the merits of these claims.
A
The defendant asserts that, contrary to the court’s
conclusion, the trial of a criminal defendant in the judicial district where the offense occurred is required by
the state constitution. The defendant contends that article first, § 19, of the Connecticut constitution, which
provides that ‘‘[t]he right of trial by jury shall remain
inviolate,’’15 encompasses such a requirement.16 A necessary predicate to this claim is that this purported constitutional requirement was violated in the present case.
15
The defendant refers to article first, § 21, of the Connecticut constitution
in identifying the right of trial by jury; however, that right is now contained
in article first, § 19. See State v. Langston, 346 Conn. 605, 633 n.11,
294 A.3d
1002 (2023) (‘‘The right to trial by jury in the 1818 constitution was contained
in article first, § 21. The 1965 constitution retained the language of the right
but relocated it to article first, § 19, where it currently remains.’’), cert.
denied, U.S. , 144 S. Ct. 698,
217 L. Ed. 2d 391 (2024).
16
We note that General Statutes § 51-352 (a) provides that ‘‘[e]ach person
charged with any offense shall be tried in the judicial district in which the
offense was committed, except when it is otherwise provided.’’ The defendant takes the position on appeal that this statute ‘‘seeks to implement a
right that is constitutional in dimension.’’
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State v. Shane K.
The defendant maintains on appeal that the record demonstrated that the charged offenses occurred in the
judicial district of Bridgeport and that there was inadequate evidence establishing that the charged offenses
happened in the judicial district of Ansonia-Milford,
where he was tried. We conclude that the court did not
err in finding that the defendant committed the charged
offenses, at least in part, in the judicial district of Ansonia-Milford. Accordingly, we decline to address the merits of the constitutional question posed by the defendant.
It is well settled that ‘‘[w]e . . . do not engage in
addressing constitutional questions unless their resolution is unavoidable. Ordinarily, [c]onstitutional issues
are not considered unless absolutely necessary to the
decision of a case . . . .’’ (Internal quotation marks
omitted.) State v. McCahill, 261 Conn. 492, 501,
811
A.2d 667 (2002); see also In re Kaleb H.,
306 Conn. 22,
26 n.3, 48 A.3d 631 (2012) (‘‘[t]his court has a basic
judicial duty to avoid deciding a constitutional issue if
a nonconstitutional ground exists that will dispose of
the case’’ (internal quotation marks omitted)).
Our analysis requires us to review the court’s factual
finding that the defendant committed the charged
offenses, at least in part, in the judicial district of Ansonia-Milford. ‘‘Appellate review of a trial court’s findings
of fact is governed by the clearly erroneous standard
of review. The trial court’s findings are binding upon
this court unless they are clearly erroneous in light of
the evidence and the pleadings in the record as a whole.
. . . A finding of fact is clearly erroneous when there
is no evidence to support it . . . or when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’’ (Internal quotation marks omitted.) Delena v. Grachitorena,
216 Conn. App. 225, 229–30,
283 A.3d 1090 (2022).
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State v. Shane K.
In denying the motion to dismiss or to transfer, the
court determined that venue was proper in the judicial
district of Ansonia-Milford, relying on the victim’s statement,17 a map of the area described in the victim’s statement, and testimony elicited at trial to support its finding that the defendant committed the charged offenses,
at least in part, in that judicial district. The victim’s
statement provided that the defendant (1) began
assaulting the victim in the area of exit 55 on Route 15
southbound and (2) continued the assault while crossing over the Sikorsky Bridge and later exiting the highway via exit 52. The map of the area described in the
victim’s statement reflected that the assault began in
Milford.18 During trial, the victim testified that she could
not recall the highway on which the assault had
occurred and that she vaguely, but without certainty,
remembered traveling over the Sikorsky Bridge during
the assault. As the court correctly noted, although the
victim could not recall at trial the details of where the
assault had occurred, none of her testimony contradicted the victim’s statement. Additionally, Schmid testified that the defendant informed her that, on the day
17
Although the victim’s statement was not admitted as a full exhibit at
trial for the jury’s consideration, the court relied on the victim’s statement
in concluding that venue was proper in the judicial district of Ansonia-Milford. The defendant did not brief a cognizable claim of error in his
appellate brief challenging the court’s reliance on the victim’s statement.
See New Milford v. Standard Demolition Services, Inc., 212 Conn. App. 30,
34 n.1, 274 A.3d 911 (claims of error not briefed on appeal are deemed
abandoned), cert. denied, 345 Conn. 908,
283 A.3d 506 (2022). During oral
argument before this court, the defendant’s appellate counsel asserted for
the first time that the trial court could not rely on the victim’s statement,
as contained in the arrest warrant affidavit, in considering the issue of venue.
This claim is not properly before us, as ‘‘[i]t is well settled that a claim
cannot be raised for the first time at oral argument.’’ (Internal quotation
marks omitted.) Burton v. Dept. of Environmental Protection, 337 Conn.
781, 797 n.12,
256 A.3d 655 (2021).
18
Otis Vinston, a state police trooper through whom the state offered the
map of the area referenced in the victim’s statement, testified at trial that
the Sikorsky Bridge is located between Milford and Stratford on Route 15.
He further testified that, after the victim had called the local police to report
the defendant’s actions, ‘‘it was ultimately determined that [the assault]
happened before the Sikorsky Bridge heading southbound on Route 15.’’
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State v. Shane K.
of the assault, he had driven the victim and M to New
Haven, which, if true, would lead to the reasonable
inference that they drove through the judicial district
of Ansonia-Milford while returning to Bridgeport.
Accordingly, we conclude that there was sufficient evidence in the record supporting the court’s finding that
the defendant committed the charged offenses, at least
in part, in the judicial district of Ansonia-Milford.
In light of our conclusion that the court did not clearly
err in finding that the defendant committed the charged
offenses, at least in part, in the judicial district where
he was tried, it would serve no purpose for us to address
whether our state constitution requires a criminal
defendant to be tried in the judicial district where the
offense occurred. ‘‘Such discussion would be purely
academic because it would have no effect on the final
outcome of this case.’’ Pasco Common Condominium
Assn., Inc. v. Benson, 192 Conn. App. 479, 508 n.22,
218 A.3d 83 (2019). Accordingly, we decline to consider
the merits of the defendant’s constitutional claim.
B
The defendant also contends that the court incorrectly applied § 51-352c (a) and (b) in denying the
motion to dismiss or to transfer. Taking into account
our conclusion in part I A of this opinion that the court
did not commit clear error in finding that the defendant
committed the charged offenses, at least in part, in the
judicial district where he was tried, we need not address
the merits of this claim.
In concluding that considering the merits of the
defendant’s claim is not necessary, we construe the
court’s decision denying the motion to dismiss or to
transfer and briefly examine § 51-352c (a) and (b). As
such, our review is plenary. See CCI Computerworks,
LLC v. Evernet Consulting, LLC, 221 Conn. App. 491,
523, 302 A.3d 297 (2023) (‘‘[t]he interpretation of a trial
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State v. Shane K.
court’s judgment presents a question of law over which
our review is plenary’’ (internal quotation marks omitted)); Coleman v. Bembridge, 207 Conn. App. 28, 40,
263 A.3d 403 (2021) (‘‘[i]ssues of statutory construction
raise questions of law, over which we exercise plenary
review’’ (internal quotation marks omitted)).
In its written decision denying the motion to dismiss
or to transfer, after having determined that venue was
proper in the judicial district of Ansonia-Milford, the
court stated that ‘‘the only other venue suggested by
the [defendant] as proper [is the] judicial district of
[Bridgeport, which] borders [the judicial district of
Ansonia-Milford] in the area where [the victim] first
swore, and never denied, the offense conduct began
. . . .’’ The court proceeded to conclude that, pursuant
to § 51-352c (a) and (b), dismissal of the case was not
warranted.19
We construe the court’s application of § 51-352c (a)
and (b) to be premised on the court’s implicit assumption, for the sake of argument, that the charged offenses
did not occur in the judicial district of Ansonia-Milford
as alleged in the operative information. Indeed, the provisions of § 51-352c (a) and (b) are plainly inapposite
when, as is the case here, an offense is alleged and
found to have occurred in the judicial district where
the criminal trial is conducted. See General Statutes
§ 51-352c (a) (‘‘[a] criminal prosecution shall not fail
by reason of the fact that the evidence may disclose
the crime to have been committed in a town or judicial
district adjoining that alleged in the indictment or
information’’ (emphasis added)); General Statutes
§ 51-352c (b) (‘‘[i]f any person is accused of committing any offense on the boundary or divisional line
between any of the towns or judicial districts in the
state, or so near thereto as to render it doubtful in
19
The court did not expressly cite § 51-352c (a) or (b) on the record when
it orally denied the motion to dismiss or to transfer on November 29, 2022.
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State v. Shane K.
which town or judicial district the offense was committed, the town or judicial district which first assumes
jurisdiction by issuing process for the arrest and prosecution of the offender, whether the name of such
offender is known or unknown, shall have exclusive
jurisdiction to charge, present, indict, try, convict and
sentence’’ (emphasis added)).
In short, we interpret the court’s decision to reflect
that it determined that § 51-352c (a) and (b) would
function to militate against dismissing the case only if
the record did not, in fact, support a finding that the
defendant committed the charged offenses, at least in
part, in the judicial district of Ansonia-Milford as alleged
in the operative information. Given our analysis in part
I A of this opinion upholding the court’s finding of the
same, examining the propriety of the court’s application
of § 51-352c (a) and (b) would not affect the final outcome of this case, and, therefore, ‘‘[s]uch discussion
would be purely academic . . . .’’ Pasco Common Condominium Assn., Inc. v. Benson, supra, 192 Conn. App.
508 n.22. Accordingly, we decline to consider the merits
of the defendant’s claim concerning the court’s reliance
on these statutory provisions.
II
The defendant’s remaining claim is that the trial court
improperly failed to instruct the jury on venue. We
conclude that the defendant has waived this unpreserved claim of instructional error.
The following additional procedural history is relevant to our resolution of this claim. On November 28,
2022, following the initial argument on the motion to
dismiss or to transfer, the court stated in relevant part:
‘‘I do not find any requirement that venue needs to be
proven by the state. It is not an element of any of the
offenses charged . . . .’’ The court further stated that,
subject to any objection from the parties, it would take
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State v. Shane K.
the motion to dismiss or to transfer under advisement
in order to allow the parties to develop the record
further. When the court inquired whether the parties
had any additional comments, defense counsel
responded, ‘‘I don’t think so, Your Honor.’’ The next
day, when the court invited additional argument on
the motion to dismiss or to transfer, defense counsel
responded that he had ‘‘[n]o further argument on that,
Your Honor, beyond what I argued the other day.’’ Following additional argument by the state, the court asked
defense counsel if he had ‘‘[a]nything in response,’’ to
which counsel responded, ‘‘[n]o, Your Honor.’’ In orally
denying the motion to dismiss or to transfer, the court
iterated that ‘‘the [state is] not required to prove venue,
it’s not an element of any offense that’s charged here
. . . .’’
The record indicates that, on November 18, 2022,
before resuming jury selection that day, the court
requested that the parties submit any requests to charge
by the following Tuesday, November 22, 2022. Neither
party submitted a request to charge. The record further
reflects that the court provided the parties with (1)
proposed jury instructions at some point prior to the
start of evidence, and (2) the final jury instructions on
the morning of November 29, 2022. Defense counsel
did not object on the record either to the proposed or
final jury instructions, whereas the state (1) notified
the court at the end of the first day of trial that it wanted
to address ‘‘one or two things’’ vis-à-vis the proposed
jury instructions and (2) alerted the court following
closing arguments the next day to a minor error in
the final jury instructions.20 The court charged the jury
following a lunch recess on November 29, 2022. Beyond
providing that, with respect to count two of the operative information, the state had alleged that the defendant had violated the protective order by driving the
20
The court did not hold an on-the-record charge conference.
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State v. Shane K.
victim to Bridgeport, the jury instructions did not reference the location of the charged offenses or mention
venue. Thereafter, when asked whether there were any
exceptions to the charge, defense counsel responded,
‘‘[n]o, Your Honor.’’
On appeal, the defendant maintains that his claim of
instructional error was preserved by (1) the motion to
dismiss or to transfer and (2) ‘‘the court’s ruling that
the question of proper venue would not be presented
to the jury . . . .’’ In the alternative, if his claim of
instructional error is unpreserved, the defendant
requests review pursuant to State v. Golding, 213 Conn.
233, 239–40,
567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015).21
The state argues in relevant part that the defendant’s
claim of instructional error is unpreserved, and, furthermore, that the claim has been waived. We conclude
that the defendant’s claim is unpreserved and, pursuant
to the doctrine of implied waiver, fails under the third
prong of Golding.
‘‘In the context of jury instructions, a party may preserve for appeal a claim that an instruction . . . was
. . . defective either by: (1) submitting a written
request to charge covering the matter; or (2) taking an
exception to the charge as given. . . . [S]ee . . . Practice Book § 42-16.’’22 (Citation omitted; internal quotation marks omitted.) State v. Ramon A. G., 190 Conn.
21
‘‘In Golding, our Supreme Court held that a defendant can prevail on
a claim of constitutional error not preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude alleging the violation
of a fundamental right; (3) the alleged constitutional violation . . . exists
and . . . deprived the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Roberts, 224 Conn. App. 471, 486
n.27, 312 A.3d 1086, cert. denied,
349 Conn. 912,
314 A.3d 602 (2024).
22
Practice Book § 42-16 provides: ‘‘An appellate court shall not be bound
to consider error as to the giving of, or the failure to give, an instruction
unless the matter is covered by a written request to charge or exception
has been taken by the party appealing immediately after the charge is
delivered. Counsel taking the exception shall state distinctly the matter
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State v. Shane K.
App. 483, 493, 211 A.3d 82 (2019), aff’d,
336 Conn. 386,
246 A.3d 481 (2020).
As the defendant concedes, defense counsel neither
submitted a written request to charge on the issue of
venue nor objected to the jury instructions as charged.
Insofar as the defendant maintains that his claim of
instructional error was otherwise preserved by way of
either (1) the motion to dismiss or to transfer or (2)
the court’s ‘‘ruling’’ regarding venue, we disagree. There
is nothing in the motion to dismiss or to transfer that
reasonably could have alerted the court that the defendant sought a jury instruction on venue. Additionally,
we disagree with the defendant’s contention that the
court issued a ‘‘ruling that the question of proper venue
would not be presented to the jury . . . .’’ In denying
the motion to dismiss or to transfer, the court determined that venue was not an element of the charged
offenses for the state to prove, which determination
the defendant did not dispute before the trial court.23
We discern no ruling in the record by the court wholly
precluding the submission of venue to the jury, which
is no surprise given that the defendant did not make
any such request at any point during the criminal proceedings. For these reasons, we conclude that the
defendant’s claim of instructional error is unpreserved.
objected to and the ground of exception. The exception shall be taken out
of the hearing of the jury.’’
23
During closing argument, defense counsel argued in relevant part: ‘‘The
[victim’s] recall wasn’t very good about the details of [the] trip home, what
bridge she claims to have gone over, what highway they were on, what
route they took, where they went and where they stopped. Now the state
has suggested to you that those kinds of things are not elements of the
offenses that are charged in this case. At the same time, while it may not
be or they may not be elements of the offense[s], that testimony is a fact
and it’s something that you can consider in determining the credibility of
[the victim] or determining the credibility of any witness. So, while it may
not be an element that the state has to show, what bridge, where it started,
where it ended, the fact that somebody know[s] or wouldn’t know or didn’t
know, those kinds of things are things that you can consider in judging their
credibility.’’ (Emphasis added.)
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State v. Shane K.
In light of our conclusion that the defendant’s claim
of instructional error is unpreserved, we next consider
whether the defendant waived his right to challenge
the court’s jury instructions, which presents a question
of law subject to plenary review. See State v. Ramon
A. G., supra, 190 Conn. App. 500.
‘‘Our analysis begins with the seminal decision of
State v. Kitchens, 299 Conn. 447,
10 A.3d 942 (2011),
in which our Supreme Court established a framework
under which we review claims of waiver of instructional
error . . . . In Kitchens, the court emphasized that
waiver involves the idea of assent . . . and explained
that implied waiver occurs when a defendant had sufficient notice of, and accepted, the instruction proposed
or given by the trial court. . . . More specifically, the
court held that when the trial court provides counsel
with a copy of the proposed jury instructions, allows
a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications
and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have
knowledge of any potential flaws therein and to have
waived implicitly the constitutional right to challenge
the instructions on direct appeal. . . . The court further explained that [s]uch a determination by the
reviewing court must be based on a close examination
of the record and the particular facts and circumstances
of each case.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) State v. Ramon A.
G., supra, 190 Conn. App. 500–501. ‘‘In Kitchens, our
Supreme Court explained that the doctrine of implied
waiver, when applicable, bars recourse under Golding,
as [a] constitutional claim that has been waived does
not satisfy [its] third prong . . . because, in such circumstances, we simply cannot conclude that injustice
[has been] done to either party . . . or that the alleged
constitutional violation . . . exists and . . . deprived
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State v. Shane K.
the defendant of a fair trial . . . .’’24 (Internal quotation
marks omitted.) Id., 503 n.13.
The record demonstrates that the defendant failed
(1) to submit a written request to charge, (2) to raise
any objection on the record to the court’s proposed
jury instructions, which were provided in advance, or
(3) to take exception to the jury instructions immediately after the court had delivered the charge. Thus,
despite being given ample opportunity, the defendant
did not pursue the venue instruction that he now claims
that the court improperly failed to charge. Under these
circumstances, we conclude that the defendant has
waived his claim of instructional error. See, e.g., State
v. Robert B., 200 Conn. App. 637, 649,
240 A.3d 1077
(2020) (defendant waived claim of instructional error
when he failed to submit request to charge, to ask court
to include instruction at issue after he had reviewed
court’s proposed charge, or to take exception to charge
as given). We further conclude that, as a result of said
waiver, the defendant’s unpreserved claim of instructional error fails under the third prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
24
We may analyze the defendant’s claim under the third prong of Golding
without addressing Golding’s first two prongs. See State v. Jan G., 329
Conn. 465, 472–73,
186 A.3d 1132 (2018).
