State v. Kyle A.

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          STATE OF CONNECTICUT v. KYLE A.*
                     (SC 20721)
               McDonald, D’Auria, Mullins, Ecker, Alexander,
                         Dannehy and Cradle, Js.

                                   Syllabus

Convicted, after a jury trial, of burglary in the first degree, criminal mischief
   in the first degree, and threatening in the second degree, among other
   crimes, the defendant appealed. The defendant had contacted his
   brother, A, and told A that he was coming to A’s residence despite
   A’s contrary wishes. The defendant thereafter unlawfully entered A’s
   residence. A fled the residence and sought aid from certain neighbors.
   Subsequently, the defendant damaged certain property within the residence and, while outside, repeatedly struck A’s car with a baseball bat.
   At trial, defense counsel neither requested an instruction on the burglary
   charge nor objected to the proposed instruction that the court had
   distributed to the state and defense for review. The jury returned a
   guilty verdict on all of the charges pertaining to the incident, including
   burglary. The Appellate Court affirmed the defendant’s convictions, and
   the defendant, on the granting of certification, appealed to this court.
   Held:

   The Appellate Court correctly concluded that the trial court had not
   committed plain error when it gave a jury instruction on first degree
   burglary that did not identify the crime or crimes the defendant allegedly
   was intending to commit when he unlawfully entered or remained in A’s
   residence, this court having concluded that such an omission was not
   an obvious and indisputable error so egregious that it affected the fairness
   and integrity of and public confidence in the judicial proceedings:

   When instructing a jury on the elements of burglary in the first degree
   pursuant to the applicable statute (§ 53a-101 (a) (1)), a trial court should
   name and define the elements of the crime or crimes for which there is
   evidence to support a finding of the defendant’s intent to commit in
   connection with the unlawful entry or remaining, and, although it is the
   better practice for trial courts to name the crime or crimes and define
   such elements in its instructions, this court has never clearly held that
   such an instruction is mandatory.

   Although the trial court in the present case did not name the relevant
   crimes and describe the elements thereof in its instruction on first degree
   burglary, the court’s instruction accurately recited the elements of the
   burglary charge and offered guidance on how to interpret them, making
   it clear that the intent to commit a crime within the building is a distinct
   element, which lessened the chance that the jury would have improperly
   found that the defendant’s unlawful entry itself was the crime he intended
   to commit.

   Moreover, defense counsel did not object to the part of the charge
   describing the elements of burglary in the first degree or propose an
   instruction that would have included the language of the intended
   offense.

   Furthermore, the trial court’s statement of the applicable statute did not
   mislead the jury as to what evidence it could consider, and, although the
   court’s instruction included an incomplete explanation of the elements
   of burglary in the first degree, this court concluded that it would be a
   significant departure from its precedent to hold that the trial court’s
   oversight in this regard was the kind of truly extraordinary situation
   contemplated by the plain error doctrine.

   In addition, even if there had been a patent error in the court’s instruction,
   reversal on plain error grounds would not be warranted because the
   omission did not result in a manifest injustice, the evidence having
   established that the defendant violently forced his way into A’s residence
   and caused extensive damage therein, the court having properly
   instructed the jury on the elements of first degree criminal mischief, and
  the jury having necessarily concluded that the defendant had intended
  to damage the tangible property of another by finding the defendant
  guilty of criminal mischief.

  Notwithstanding the defendant’s argument that his criminal mischief
  conviction may have been based solely on the damage he caused to A’s
  car outside of A’s residence, this court saw no reason why the jury would
  have focused exclusively on the damage to the car and ignored the
  significant destruction the defendant caused inside A’s residence, and
  the fact that the prosecutor, during closing argument, directed the jury’s
  attention to the criminal mischief charge and other possible intended
  crimes made it less likely that the jury based its verdict on noncriminal conduct.
    Argued October 25, 2023—officially released January 30, 2024

                           Procedural History

   Substitute information, in the first case, charging the
defendant with the crimes of burglary in the first degree,
criminal mischief in the first degree, and threatening
in the second degree, substitute information, in the
second case, charging the defendant with the crime
of criminal violation of a protective order, substitute
information, in the third case, charging the defendant
with the crime of tampering with a witness, and substitute information, in the fourth case, charging the defendant with the crime of attempt to commit criminal
violation of a protective order, brought to the Superior
Court in the judicial district of Ansonia-Milford and
tried to the jury before McShane, J.; verdicts and judgments of guilty, from which the defendant appealed to
the Appellate Court, Elgo, Suarez and Sullivan, Js.,
which affirmed the trial court’s judgments, and the
defendant, on the granting of certification, appealed to
this court. Affirmed.
  Julia K. Conlin, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appellant (defendant).
   Rocco A. Chiarenza, senior assistant state’s attorney,
with whom, on the brief, was Margaret E. Kelley, state’s
attorney, for the appellee (state).
                          Opinion

   DANNEHY, J. The defendant, Kyle A., was convicted,
following a jury trial, of burglary in the first degree in
violation of General Statutes § 53a-101 (a) (1) (burglary), as well as certain other offenses, after unlawfully
entering a residence and destroying certain property
therein. We granted certification to appeal from the
judgment of the Appellate Court affirming, inter alia,
the trial court’s judgment of conviction of burglary.1 In
the present appeal, the defendant contends that the
Appellate Court incorrectly concluded that the trial
court had not committed plain error when it failed to
give a jury instruction identifying the crime that he
allegedly intended to commit when he unlawfully
entered or remained in the residence. We conclude that,
although the trial court’s instruction did not conform
to the language that this court has repeatedly endorsed,
the trial court did not commit plain error. Accordingly,
we affirm the judgment of the Appellate Court.
  The jury reasonably could have found the following
facts. At the time of the incident that led to his arrest
and conviction, the defendant had been living in Maryland but had made plans to move back to Connecticut.
He intended to stay at a residence in West Haven that
was owned by the defendant’s mother, J, but was in
the sole possession and control of the defendant’s
brother, A, who lived there with his daughter, who was
eight years old at the time of the incident.2
  The morning after he had been expected to arrive at
the residence, the defendant called A and made statements that led A to believe that he was intoxicated. A
advised the defendant that he would not be allowed
into the home if he had been drinking because A’s
daughter was there. The defendant agreed to wait until
he was no longer intoxicated before coming to the
house. In two subsequent conversations that day, A
reiterated that the defendant could not come to the
home if he was intoxicated. During their third and final
conversation, the defendant told A that he was coming
to the house ‘‘whether [A] [liked] it or not . . . .’’
   When the defendant arrived at the residence that
afternoon, only A and his girlfriend, T, were present.3
The defendant, who did not have a key, began yelling
and banging on the front door. When no one let him
in, he broke a back door window and entered the home.
A and T fled the house and sought aid from their neighbors. They then observed the defendant, who had
emerged from the house and was in the driveway,
repeatedly striking A’s car with a baseball bat.
   By the time the police arrived shortly thereafter, the
defendant had gone back into the home and began
‘‘destroying things . . . .’’ When the defendant eventually came out of the house and the police were taking
him into custody, he yelled at A that he was ‘‘going to
kill [A] when [he got] out of this,’’ a threat that he
repeated later that day at the police station. Upon
investigating the interior of the home, the police discovered shards of wood that they identified as fractured
pieces of the baseball bat, as well as a television, a
ceramic tabletop, and kitchen chairs that had been
smashed.
   The defendant was charged with burglary, criminal
mischief in the first degree (criminal mischief), and
threatening in the second degree (threatening) for his
actions during the confrontation. Following his arrest,
a criminal protective order was issued. The defendant
was subsequently charged with criminal violation of a
protective order, tampering with a witness, and attempt
to commit criminal violation of a protective order. At
trial, defense counsel neither requested an instruction
on the burglary charge nor objected to the proposed
instruction that the court had distributed to the parties
for review. The trial court instructed the jury on that
charge in relevant part: ‘‘[A] person is guilty of burglary
in the first degree when he unlawfully enters or remains
in a building with the intent to commit a crime therein
and he is armed with a dangerous instrument.
                           …
   ‘‘The second element is that the defendant unlawfully
entered or remained in the building with the intent to
commit a crime in that building. A person acts intentionally with respect to a result when his conscious objective is to cause such result. Even if the defendant never
actually committed a crime in the building, if the evidence establishes beyond a reasonable doubt that there
was such an intention, this is sufficient to prove the
defendant unlawfully entered or remained in the building with the intent to commit a crime therein. Furthermore, the necessary intent to commit a crime must be
an intent to commit either a felony or misdemeanor
in addition to the unlawful entering or remaining in
the building.’’
   The jury ultimately returned a guilty verdict on all
six charges pertaining to the incident at A’s residence
and the defendant’s subsequent behavior. The defendant then appealed to the Appellate Court from the
judgments of conviction. In that appeal, the defendant
claimed, among other things, that, when instructing the
jury on the second element of the crime of burglary—
that the defendant unlawfully entered or remained in
the building with the intent to commit a crime
therein—the trial court committed plain error when it
failed to identify (1) the crime the defendant allegedly
intended to commit, and (2) the elements of that crime.
See State v. Kyle A., 

, 259–60, 

 (2022).
  The Appellate Court affirmed the defendant’s burglary conviction, reasoning that there was no plain error
because the alleged error did not involve a failure to
include mandatory statutory language or produce a
manifest injustice. 

 260–63. Although the Appellate
Court noted that the trial court should have instructed
the jury in more detail on the second element, it ultimately concluded that the omission was ‘‘unlikely to
have guided the jury to an incorrect verdict . . . .’’ 

262–63. In reaching that conclusion, the Appellate Court
pointed to the trial court’s direction regarding intent to
commit a felony or misdemeanor, the facts reflected in
the evidence, and the prosecutor’s suggestion during
closing argument that the facts evinced the defendant’s
intent to commit three different crimes: criminal mischief, based on his destructive behavior inside of the
home, threatening A, and assaulting A. Id., 262. This
certified appeal followed.
   Before this court, the defendant renews his claim
that the trial court committed plain error by failing to
identify and explain to the jury the elements of the
crime he allegedly intended to commit while he was
inside of the house, thereby allowing the jury to craft
its own understanding of what constitutes a felony or
misdemeanor. He contends that, without more specific
guidance from the court, the jury could have decided
that any behavior it considered morally offensive—such
as his intention to confront his brother in his home—
was a crime and, therefore, improperly have found the
intent element to be satisfied on that basis. Noting that
only jury instructions carry the weight and authority of
the court, the defendant also rejects the contention that
his criminal mischief conviction, the evidence presented at trial, or the prosecutor’s references to possible
intended crimes in her closing argument could compensate for this omission. Although we share the Appellate
Court’s concerns regarding the trial court’s failure to
describe the intended crimes; State v. Kyle 

212 Conn. App. 262–63; we conclude that the defendant
has not met the exceptionally high bar for demonstrating plain error in this case.
  ‘‘It is well established that a defendant is entitled to
have the jury correctly and adequately instructed on
the pertinent principles of substantive law.’’ (Internal
quotation marks omitted.) State v. Singleton, 

, 

 (2009). In the present case, to
establish that the defendant committed burglary, the
state was required to prove that he entered or remained
unlawfully in A’s residence with intent to commit a
crime therein and was armed with a dangerous instrument. See General Statutes § 53a-101 (a) (1).
  This court has consistently observed that, when giving
a jury charge under § 53a-101 (a) (1), it is the ‘‘better
practice’’ for the trial court to instruct the jury ‘‘on the
statutory names and definitions of [the] specific crimes
for which there was sufficient evidence of an intent to
commit.’’ State v. Smith, 

, 

 (1984); see also Connecticut Criminal Jury Instructions 9.2-1, available at http://www.jud.ct.gov/JI/Criminal/
Criminal.pdf (last visited January 24, 2024).4 Such an
instruction informs the jury, the members of which
are rarely well versed in legal principles, exactly what
behavior is at issue and on what basis it should evaluate
it. It thereby mitigates the risk that the jury will confuse
conduct that is criminal with that which is merely unsavory. See, e.g., State v. Langdell, 

, 

 (2009) (‘‘[w]ithout being aware of the elements
of the intended crime, a juror might mistakenly convict
a defendant on faulty assumptions about what is criminal and what is not’’).
    Relying primarily on this authority, the defendant in
the present case contends that the trial court committed
plain error when it failed to instruct the jury on the
statutory names and elements of the crimes that he
allegedly intended to commit when he entered A’s residence. ‘‘[The 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.’’ (Internal quotation marks omitted.) State v.
Blaine, 

, 

 (2019). ‘‘It is
axiomatic that, [t]he plain error doctrine . . . is not
. . . a rule of reviewability. It is a rule of reversibility.
. . . Put another way, plain error review is reserved
for only the most egregious errors. When an error of
such magnitude exists, it necessitates reversal.’’ (Citation omitted; internal quotation marks omitted.) State
v. McClain, 

, 813–14, 

 (2017).
‘‘[I]t is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party
seeking plain error review must demonstrate that the
claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal.’’ State v. Coward, 

, 

 (2009).5
   ‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernable on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable.’’ (Internal quotation marks omitted.) State v. Sanchez, 

,
77, 

 (2013). ‘‘Although a complete record
and an obvious error are prerequisites for plain error
review, they are not, of themselves, sufficient for its
application. . . . [I]n addition to examining the patent
nature of the error, the reviewing court must examine
that error for the grievousness of its consequences in
order to determine whether reversal under the plain
error doctrine is appropriate.’’ (Internal quotation marks
omitted.) 

 Thus, we employ a two-pronged test to
determine whether plain error has occurred: ‘‘the defen-
dant must establish that (1) there was ‘an obvious and
readily discernable error,’ and (2) that error ‘was so
harmful or prejudicial that it resulted in manifest injustice.’ ’’ State v. 

. Our review
of the Appellate Court’s decision with respect to
whether to reverse a trial court’s judgment under the
plain error doctrine is plenary. 

.
   When instructing the jury on the elements of § 53a-
101 (a) (1), trial courts should name and define the
elements of the crimes for which there is evidence to
support a finding of an intent to commit, as the model
criminal jury instructions call for. The trial court in
the present case failed to do so. For several reasons,
however, we cannot conclude that the trial court’s omission was an obvious and indisputable error so egregious
that it ‘‘affects the fairness and integrity of and public
confidence in the judicial proceedings.’’ (Internal quotation marks omitted.) State v. Jamison, 

,
596, 

 (2016).
   Beginning with the first prong of the standard, the
trial court’s instruction accurately recited the elements
of the burglary charge and offered guidance on how to
interpret them. The court further made clear that the
intent to commit a crime within the building is a distinct
element, thereby lessening the chance that the jury
would improperly find that the defendant’s unlawful
entry itself was the crime that he intended to commit.6
See, e.g., State v. 

 (noting
that ‘‘jury could not have been misled into using evidence of the defendant’s entry of and presence in the
shop building to find that the defendant intended to
commit a crime therein’’). We also observe that, although
defense counsel raised several objections during the
charging conference, he did not object to the part of
the charge describing the elements of burglary or propose an instruction that would have included the language of the intended offense.7
   Additionally, although our courts have repeatedly
noted that it is the better practice for trial courts to
include the elements of the intended crime when
instructing the jury on the elements of § 53a-101 (a)
(1), to date, we have never clearly held that such an
instruction is mandatory. See, e.g., State v. Zayas, 

, 

 (1985); State v. 

; State v. Patterson, 

, 

, cert. denied, 

, 

 (1994). Moreover, although the model jury instruction reflects this language, as a general rule, we have
declined to require the use of those instructions by
trial courts and have emphasized their ‘‘discretionary’’
nature. State v. Reyes, 

, 821–22 n.3, 

 (2017). We therefore cannot conclude that
the trial court’s failure to identify the specific intended
crime and its elements when it instructed the jury on
the elements of § 53a-101 (a) was an indisputable, obvi-
ous error.
   Finally, we emphasize that it has been especially rare
for a jury instruction to be so clearly improper that our
courts have deemed plain error review necessary to
correct it. See State v. Kelly, 

, 58 n.18, 

 (2001). This court has done so when the trial
court has affirmatively misstated the law; see State v.
Preyer, 

, 198–200, 

 (1985)
(concluding that trial court committed plain error when
it incorrectly instructed jury that cohabitation was not
defense to charge of sexual assault in first degree);
and when it has failed to comply with a statute that
mandates a particular instruction. See State v. Ruocco,

, 801–802, 

 (2016) (concluding
that trial court committed plain error when it failed to
instruct jury, as required by statute, that it could not
draw unfavorable inferences from defendant’s failure
to testify). We do not suggest that there are no other
circumstances in which an instruction could constitute
plain error, but the reluctance with which we have
chosen that course underscores that plain error is
reserved for only the most egregious defects. In the
present case, the trial court’s statement of the governing
statute did not mislead the jury as to what evidence it
could consider, and the instruction included an accurate though incomplete explanation of the elements of
burglary. It would be a significant departure from this
court’s precedent to hold that the trial court’s oversight
is the kind of ‘‘truly extraordinary’’ situation contemplated by the plain error doctrine. (Internal quotation
marks omitted.) State v. Jamison, supra, 

.
   Even if we were to conclude that there was a patent
error in the trial court’s instruction, such a conclusion
still would not warrant reversal on plain error grounds
because the court’s omission did not result in a manifest
injustice. See, e.g., State v. 

 (defendant must prove both obviously and readily
discernable error and manifest injustice to prevail on
claim of plain error). In support of his claim to the contrary, the defendant argues that, unlike in State v. 

, reversal is required because the
facts of the present case are ‘‘capable of varying interpretations, some criminal but others noncriminal,
though perhaps morally offensive . . . .’’
  In Zayas, the defendant was apprehended after dark
on the front porch of another person’s house, carrying
a screwdriver that matched two sets of pry marks on
the sill of a storm window that had been pushed upward.

. In its instruction to the jury, the trial
court did not specify that the defendant had intended
to commit larceny when he attempted to unlawfully
enter the house. 

. The defendant argued that,
by failing to identify the intended crime suggested by
the evidence, the court had allowed the jury to find him
guilty on the basis of noncriminal conduct. 

 This
court, however, observed that ‘‘[c]ommon experience
tells us that an unlawful entry into a dwelling at night
is not without purpose,’’ noted that pry marks on a
windowsill ‘‘bespeak criminal purpose,’’ and stated that
to ‘‘any person of ordinary intelligence, the expected
by-product of a surreptitious unlawful entry into the
home of another is theft.’’8 

 617–18. Therefore, the
court concluded that there was no explanation for the
defendant’s behavior that would not satisfy the intent
element.9 

.
  The defendant contends that, unlike the situation presented in Zayas, the evidence in the present case would
support a finding that he entered the house seeking
only to confront his brother, and the jury could have
improperly ascribed criminal intent to that conduct. To
accept this premise, however, would require this court
to ‘‘find plain error without regard to the evidence in
the case . . . .’’ State v. Sanchez, supra, 

.
   In the present case, the evidence established that
the defendant had violently forced his way into A’s
residence and caused extensive damage with a baseball
bat once inside. The court properly instructed the jury
on the elements of criminal mischief, and the jury found
the defendant guilty of that separate charge. By finding
the defendant guilty of criminal mischief, the jury necessarily concluded that he intended to cause damage to
the tangible property of another. See General Statutes
§ 53a-115 (a) (1). Although the defendant argues that
his criminal mischief conviction may have been based
solely on the damage he inflicted on his brother’s car
and, therefore, would not have been relevant to his
intent to commit a crime inside of the residence, we
see no reason why the jury would have focused exclusively on the damage to the car and ignored the significant destruction that the defendant wrought inside the
residence, which multiple witnesses testified exceeded
the $1500 in damages necessary to prove first degree
criminal mischief.10 The likelihood that the jury ignored
the substantial evidence of the defendant’s criminal
behavior within the home, only to determine that he
was guilty because they found that he had damaged A’s
car or found his plan to confront his brother distasteful,
is far too remote for this court to conclude that a manifest injustice occurred.
   The defendant correctly observes that a trial court’s
failure to instruct the jury on an element of an alleged
crime is not cured by the presence of evidence sufficient
to secure a conviction on that charge. See State v.
Anderson, 

, 

 (1989). This
principle, however, is inapposite to the present case
because the trial court did instruct the jury on each
element of burglary, just not with the degree of specificity that the defendant now argues was necessary. ‘‘An
omission, or an incomplete instruction, is less likely to
be prejudicial than a misstatement of the law.’’ (Internal
quotation marks omitted.) State v. Kurvin, 

, 

 (1982). The evidence presented
at trial and the prosecutor’s references to criminal mischief and other possible intended crimes in her closing
argument do not have the same effect as an instruction
from the court, but the fact that the prosecutor directed
the jury toward considering these offenses makes it
all the less likely that the jury based its verdict on
noncriminal conduct and, consequently, that the trial
court’s omission resulted in a manifest injustice requiring reversal.
   During oral argument before this court, the state
maintained that, in certain circumstances, it may be
difficult to discern the intended crime or crimes. That
may be so, but it is not the role of the jury to determine
or select a particular crime or crimes. That obligation
rests with the state. Here, the facts and circumstances
of the case and the state of our case law prevent us
from concluding that the trial court committed plain
error. In the future, however, the failure of our courts
to instruct the jury on the elements of a crime so identified by the state will constitute an obvious error that
will warrant reversal if it results in a manifest injustice.
   The judgment of the Appellate Court is affirmed.
   In this opinion the other justices concurred.
   * In accordance with federal law; see 

 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,

, 

, 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.
   1
     We granted certification to appeal, limited to the following issue: ‘‘Did
the Appellate Court correctly conclude that the trial court’s instruction on
burglary in the first degree was not reversible error under the plain error
doctrine?’’ State v. Kyle A., 

, 

 (2022).
   2
     We declined to grant certification on the issue of whether the state’s
evidence was insufficient to prove burglary, a claim that rested largely on
J’s testimony that she had given the defendant permission to stay at the
residence and the defendant’s contention that A could not abrogate J’s
permission for him to be there.
   3
     A had taken the precaution of bringing his daughter to a relative’s house.
   4
     The model instruction provides in relevant part: ‘‘In this case, the state
claims that the defendant intended to commit <insert crime>. <Refer to
the count in which this crime was charged or, if uncharged, give the
elements of the crime.>.’’ Connecticut Criminal Jury Instructions, supra,
instruction 9.2-1.
   5
     This court has acknowledged that, by imposing such an exacting standard, it is ‘‘willing to take the appellate risk of sanctioning a legally flawed
trial court judgment’’ and that errors harmful enough to warrant reversal
upon plenary review may be allowed to stand under the plain error rubric.
Santopietro v. New Haven, 

, 

 (1996).
   6
     The court instructed the jury that ‘‘the necessary intent to commit a
crime must be an intent to commit either a felony or a misdemeanor, in
addition to the unlawful entering or remaining in the building.’’ (Emphasis added.)
   7
     We appreciate that, as the defendant has sought relief under the plain
error doctrine, it is already apparent that he did not preserve this claim.
Our observation is not meant to highlight defense counsel’s failure to object
but, rather, to emphasize that the evidence in this case so overwhelmingly
supported the defendant’s criminal intent that the absence of the intended
offense from the court’s instruction did not suggest a clear and obvious error.
   8
     On appeal, reviewing courts may consider the evidence presented at
trial to assess whether an instruction was specific enough to provide the
jury with a clear understanding of the offense. See, e.g., State v. 

 195 Conn. 617–18 (discussing adequacy of jury instruction in light of
facts of case).
   9
     We expressly noted that we did not approve of the trial court’s instruction, which omitted the intended offense; State v. 

 195 Conn.
617–18; furthermore, our holding in Zayas should not be interpreted to
mean that an instruction cannot be defective, as a matter of law, for failing
to define the intended offense. But see State v. Serrano, 

,
245 n.13, 

, cert. denied, 

, 

 (2005).
   10
      Officer Eurico Dias of the West Haven Police Department conducted a
walkthrough of the home after the incident and estimated the damage to
be $3800. J testified that she received an insurance payout of approximately
$5000 for the damage.