State v. Brown

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STATE OF CONNECTICUT v. JOVANNE BROWN

(SC 20408)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Kahn, Ecker and Keller, Js.

Syllabus

Pursuant to statute (§§ 53a-133 and 53a-136 (a)), a person commits robbery

in the third degree when, in the course of committing a larceny, he uses

or threatens the immediate use of physical force upon another person

for the purpose of preventing or overcoming resistance to the taking

of the property or to the retention thereof immediately after the taking,

or compelling the owner of such property or another person to deliver

up the property or to engage in other conduct that aids in the commission

of the larceny.

Pursuant further to statute (§ 53a-119), ‘‘[a] person commits larceny when,

with intent to deprive another of property or to appropriate the same

to himself or a third person, he wrongfully takes, obtains or withholds

such property from an owner.’’

Convicted of the crimes of felony murder and carrying a pistol or revolver

without a permit in connection with the shooting death of the victim,

the defendant appealed to this court. After agreeing to assist in a drug

transaction in exchange for a large sum of money, the defendant met

with another individual, H, and got into the back seat of H’s car. H told

the defendant that there was a gun on the floor and that the defendant’s

role was to ‘‘make sure that nothing happened.’’ H then parked on a

street near the victim’s parked car. Sometime after their arrival, the

defendant, who never saw any money in H’s car, twice asked H if he

had brought any money with him. Thereafter, the victim entered the

front passenger seat of H’s car, discussed the details of the transaction,

which involved a substantial amount of marijuana, and returned to his

own car. H then drove around the block a few times before returning

and parking his car a second time. H exited his car to retrieve the

marijuana from the victim’s car, after which the victim got into the front

passenger seat of H’s car. The defendant, who was sitting behind the

victim at that point, used the gun on the car floor to exchange gunfire

with the victim, who was shot five times. The defendant was shot once.

H then returned to his car with the marijuana, pushed the victim out

of the car, and drove the defendant to a hospital. The next morning,

the police interviewed the defendant at the hospital. The police told the

defendant that they had viewed surveillance footage of the scene of the

shooting, but the defendant denied knowing anything about the shooting

or the victim’s death. Later that day, the police interviewed the defendant

a second time at his home. At that point, the defendant admitted that

he had participated in the drug transaction and had shot the victim, but

he claimed that the victim had shot him first, after the defendant made

a noise that startled the victim. When asked if ‘‘the intent was to rob’’

the victim of the marijuana, the defendant said ‘‘I guess so.’’ At trial,

the defendant testified and claimed that he had acted in self-defense,

reiterating that he shot the victim only because the victim, who had

been startled by a noise he made, shot at him first. The defendant further

testified that he did not intentionally kill the victim and that he took

nothing from the victim. Although the defendant had been charged with

murder, among other crimes, the jury found the defendant not guilty of

murder but guilty of the lesser included offense of intentional manslaugh-

ter in the first degree with a firearm, as well as felony murder, with

robbery in the third degree as the predicate felony, and carrying a pistol

or revolver without a permit. The trial court ultimately vacated the

conviction of intentional manslaughter in the first degree with a firearm

on the ground that the defendant could not be convicted of multiple

homicide charges for the same act. On appeal, the defendant claimed

that there was insufficient evidence to support his conviction of felony

murder, that the vacated manslaughter conviction could not be rein-

stated in the event that this court agreed that there was insufficient

evidence to support his felony murder conviction because the state

failed to prove beyond a reasonable doubt that he did not act in self-

defense, and that the prosecutor engaged in certain improprieties during

closing argument. Held:

1. The evidence was sufficient to support the defendant’s conviction of

felony murder, based on the predicate felony of robbery in the third

degree, and, because this court rejected the defendant’s insufficiency

claim, it declined to address his claim related to the vacated manslaugh-

ter conviction:

a. The jury reasonably could have concluded, beyond a reasonable doubt

and on the basis of all of the evidence, that the defendant intended

to commit a larceny, insofar as he intended to deprive the victim of

the marijuana:

The circumstantial evidence was sufficient to support the jury’s conclu-

sion that the defendant had the requisite intent to deprive the victim of

the marijuana, as the defendant knew at the time of the shooting that

H did not have the means to or intend to pay for the marijuana and that

the defendant’s role was to participate in the robbery by using a gun to

make sure ‘‘nothing happened,’’ the defendant shot the victim and then

left the scene with H and the marijuana, the defendant responded, ‘‘I

guess so,’’ when asked by the police if the plan had been to rob the

victim, and, applying common sense, the jury reasonably could have

inferred that the defendant had intended to use the gun to ensure that

the victim, upon getting into H’s car and discovering that there was no

money, would not leave the car to get the marijuana back from H and

that there would have been no reason for the victim to shoot the defen-

dant while H was retrieving the marijuana from the victim’s car unless

the victim believed that H and the defendant had intended to take the

marijuana without paying for it.

Because the jury was entitled to discredit the defendant’s exculpatory

testimony while crediting his testimony that was corroborated by other

evidence admitted at trial, the jury reasonably could have rejected the

defendant’s testimony that he had shot at the victim only after the startled

victim shot at him and reasonably could have concluded that the victim

had shot the defendant because the defendant was attempting to hold

him at bay with the gun, was about to shoot him, or already had shot

him to prevent him from interfering with H’s taking of the marijuana.

Moreover, in light of the fact that the defendant was aware, after his

first interview with the police, that the police had surveillance footage

of the scene of the shooting, that the police suspected that the car in

that footage was the same car in which the defendant arrived at the

hospital, and that the police knew that the defendant had been shot, the

jury reasonably could have found that the defendant must have realized,

after the initial police interview, that his continued insistence that he

had not shot the victim and knew nothing about the incident would

simply not be believable, and that the statements the defendant made

during his second interview with the police, in which he generally tended

to inculpate himself in the victim’s murder, were true, and the jury

reasonably could have rejected the defendant’s claim that he was prom-

ised a large sum of money and provided access to a gun to do nothing

more than sit in H’s car.

b. There was no merit to the defendant’s claim that the evidence was

insufficient to support the conclusion that he had committed a larceny

insofar as there was no evidence that the defendant himself, rather than

H, physically took the victim’s marijuana, as the jury reasonably have

concluded that the defendant wrongfully withheld the marijuana from

the victim:

Pursuant to § 53a-119, a person commits larceny when he ‘‘takes, obtains

or withholds . . . property from [its] owner,’’ the state did not limit its

theory of the defendant’s commission of larceny to any one of those

three statutory terms, the trial court included all three terms in its jury

instruction, and, accordingly, the jury could find that the defendant had

committed larceny if it found that he obtained or withheld the marijuana,

even if he did not physically take it.

Because § 53a-119 did not define the term ‘‘withholds,’’ this court consid-

ered dictionary definitions of that term, including ‘‘[t]o refrain from

giving, granting, or permitting,’’ and concluded that there was sufficient

evidence that the defendant had committed larceny in light of the mean-

ing of that term, as the defendant sat behind the victim in H’s car and

was armed with a gun, the purpose of the defendant’s involvement in

the drug transaction was to make sure ‘‘nothing happened’’ while H

retrieved the marijuana from the victim’s car, and the jury reasonably

could have inferred that the defendant was in the back seat of H’s car

with access to the gun for the purpose of ‘‘refrain[ing] from giving,

granting, or permitting’’ the victim access to the marijuana.

Moreover, the jury also could have reasonably inferred that the defendant

had shot the victim as part of an effort to refrain from permitting or

allowing the victim access to the marijuana once H had effectuated the

plan to deprive the victim of the marijuana without paying for it.

c. The evidence was sufficient to establish, under §§ 53a-133 and 53a-

136a, that the defendant used or threatened the immediate use of force

for the purpose of preventing or overcoming the victim’s resistance

to the taking of the marijuana or compelling the victim to deliver up

the marijuana:

The jury reasonably could have found that H would not have gone to

retrieve the marijuana from the victim’s car unless he and the defendant

had come to an understanding that the defendant would prevent the

victim from interfering with H’s taking of the marijuana and that the

victim would have had no apparent reason to shoot the defendant unless

the defendant was using or threatening to use force to prevent the victim

from interfering with H.

2. The defendant could not prevail on his claim that the prosecutor commit-

ted certain improprieties during closing argument by arguing facts that

were not in evidence and making inferences that were unsupported by

the evidence, in violation of the defendant’s due process right to a

fair trial:

The prosecutor’s remarks that H had brought no money with which to

purchase the marijuana and that the victim was startled by the lack of

money the second time he entered H’s car were supported by the evi-

dence, insofar as the defendant twice asked H whether he had money,

never saw any money in H’s car, and responded that he ‘‘guess[ed]’’ that

it was their intent to rob the victim, and that evidence supported the

inference that H did not have any money to pay the victim for the mar-

ijuana.

Insofar as the other alleged instances of impropriety related exclusively

to the defendant’s claim on appeal in connection with his vacated man-

slaughter conviction, and because that claim was not before this court

in light of its conclusion that the evidence was sufficient to support the

defendant’s felony murder conviction, this court declined to address

those prosecutorial impropriety claims.

Argued January 12—officially released December 6, 2022

Procedural History

Substitute information charging the defendant with

the crimes of murder, felony murder, robbery in the

first degree, conspiracy to commit robbery in the first

degree, and carrying a pistol or revolver without a per-

mit, brought to the Superior Court in the judicial district

of Fairfield and tried to the jury before Russo, J.; there-

after, the court granted the defendant’s motion for a

judgment of acquittal as to the charges of robbery in

the first degree and conspiracy to commit robbery in

the first degree; subsequently, verdict of guilty of the

lesser included offense of intentional manslaughter in

the first degree with a firearm, and of felony murder

and carrying a pistol or revolver without a permit; there-

after, the court, Russo, J., vacated the conviction as

to intentional manslaughter in the first degree with a

firearm and rendered judgment of guilty of felony mur-

der and carrying a pistol or revolver without a permit,

from which the defendant appealed to this court.

Affirmed.

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

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Joseph T. Corradino,

state’s attorney, and C. Robert Satti, Jr., former supervi-

sory assistant state’s attorney, for the appellee (state).

Opinion

MULLINS, J. The defendant, Jovanne Brown, was

convicted, following a jury trial, of felony murder in

violation of General Statutes § 53a-54c, with robbery in

the third degree in violation of General Statutes § 53a-

136 (a) as the predicate felony; intentional manslaugh-

ter in the first degree with a firearm in violation of

General Statutes § 53a-55a (a);1 and carrying a pistol or

revolver without a permit in violation of General Stat-

utes § 29-35 (a).2 The trial court vacated the manslaugh-

ter conviction on the ground that the defendant could

not be convicted of multiple homicide charges for the

same act but otherwise rendered judgment in accor-

dance with the verdict.

On appeal, the defendant claims that the evidence

was insufficient to support his conviction of felony mur-

der. Specifically, he contends that there was no evi-

dence that he intended to commit a larceny, that he

committed a larceny, or that he used or threatened the

immediate use of physical force to effectuate a taking,

as required to establish that he committed robbery in

the third degree. The defendant also contends that, if

this court agrees with his claim of insufficient evidence

of felony murder, it cannot reinstate his vacated convic-

tion of the intentional manslaughter in the first degree

with a firearm charge because the state failed to prove

beyond a reasonable doubt that he did not shoot the

victim in self-defense. Finally, the defendant claims that

his conviction must be reversed because the prosecutor

engaged in prosecutorial improprieties during closing

argument. We reject the defendant’s insufficiency claim

and, therefore, need not address his claim related to the

manslaughter conviction. We also reject the defendant’s

claims of prosecutorial impropriety and, therefore,

affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On the evening of February 24, 2017, the defen-

dant received a phone call from a person known to

him as ‘‘Marley,’’ who asked the defendant whether he

would be willing to assist in a deal involving the pur-

chase and sale of three pounds of marijuana. Marley

offered to pay the defendant $2000 to do so. The defen-

dant agreed to participate in the drug deal so that he

could get the money he needed to fix his car’s trans-

mission.

Shortly after speaking with Marley, the defendant went

to the parking lot of the Duchess restaurant in Bridge-

port, where Willard Hargrove, an individual unknown

to the defendant, drove up in a white Hyundai Sonata.

Hargrove told the defendant to sit in the back seat, so

that the person who they were going to meet could sit

in the front passenger seat and discuss the drug deal.

When the defendant got into the car, Hargrove told

him that there was a gun on the floor3 and that the

defendant’s role was to ‘‘make sure the deal went right’’

or to ‘‘make sure that nothing happened.’’ He also told

the defendant that he should ‘‘wipe [the gun] down.’’

Hargrove drove to Berkshire Avenue in Bridgeport

and parked on the street. The victim, Michael Watkins,

got out of a car that was parked nearby, approached

Hargrove’s car, and got into the front passenger seat.

The defendant was sitting behind him. After discussing

the drug deal with Hargrove, the victim left the car and

returned to his own car. Hargrove then left the scene

and drove around the block a few times.

Meanwhile, Dave Depass, the person who had pro-

vided the victim with the three pounds of marijuana to

sell, was watching the transaction from the window of

his third floor apartment at the corner of Berkshire

Avenue and Orchard Street.4 When Depass saw Har-

grove leave the scene and drive around the block, he

suspected that something was amiss and called the

victim by cell phone and warned him two or three times

not to get back into Hargrove’s car when he returned.

After driving around for several minutes, Hargrove

parked his car on Berkshire Avenue again, at which

point he exited the car and went to the victim’s car to

get the marijuana. Shortly thereafter, the victim got

into the front passenger seat of Hargrove’s car. The

defendant was still sitting in the back seat. Using the

gun that was on the floor of the car, the defendant shot

the victim five times in his back. At some point during

this shooting, the defendant received a gunshot wound

to his right upper chest. The victim died from his

wounds.

After shooting the victim, the defendant crawled over

him and exited the car through the front driver side

door because the childproof safety locks on the back

doors of the Hyundai Sonata were activated. At that

point, Hargrove returned to the car carrying a bag of

marijuana,5 and the defendant told him that he had been

shot. Hargrove got into the driver’s seat, put the bag in

the back seat and pushed the victim out of the car. The

defendant then stepped over the victim and got into

the front passenger seat. Hargrove drove the defendant

to St. Vincent’s Medical Center, a hospital in Bridgeport,

helped him inside and immediately drove away.

The gun that the defendant used to shoot the victim,

a .32 caliber Smith & Wesson revolver, was later found

in an abandoned car in Bridgeport. When the police

searched the crime scene after the removal of the vic-

tim’s body, the only items of evidence they found were

a blood-like substance on the ground and the victim’s

cell phone. During a subsequent investigation, the

police were able to determine that Hargrove possessed

a white Hyundai Sonata, but they never found the car.

At about 12:50 a.m. on the morning after the shooting,

February 25, 2017, Christopher Lamaine, a lieutenant

with the Bridgeport Police Department, went to St. Vin-

cent’s Medical Center to interview the defendant. Brian

Fitzgerald, a captain with the police department, and

Vincent Larrichia, a detective, were there when Lamaine

arrived. Before interviewing the defendant, Lamaine

viewed a surveillance video recording taken from a

house on Brooks Street, adjacent to the scene of the

shooting. The video recording, which was of poor qual-

ity and repeatedly skipped, showed a white car turning

onto Berkshire Avenue and parking at approximately

9:34 p.m. on February 24, 2017. Several minutes later,

an individual exited the driver’s door and walked in the

direction of the victim’s car. A few seconds after that,

the victim approached the back of the white car and

attempted unsuccessfully to open the back door on the

passenger side.

After that unsuccessful attempt to enter the rear of

the car, the victim, at approximately 9:38 p.m., opened

the door to the front passenger seat and got in. Shortly

thereafter, the driver’s door opened, and an individual,

later identified as the defendant, got out. The video

then skipped several seconds, after which the defendant

could be seen following the car as it moved slowly

down the street.6 As the defendant approached the front

driver side door, the car stopped, and the door opened.

The defendant then ran around the front of the car. At

that point, the front passenger side door was opened

from the inside, and a body emerged from the door and

fell to the ground. The defendant stepped over the body,

which appeared to be moving, and got into the front

passenger seat. The car then left the scene.

During the interview with Lamaine, the defendant

stated that, earlier in the evening, he had left his home

on Glenwood Avenue in Bridgeport, on the city’s east

side, to walk several miles to the west side of the city

to buy $10 worth of marijuana from an acquaintance.

While he was walking, a car pulled up beside him, and

a passenger in the car shot him. After he was shot, a

white car pulled up beside him, and an individual whom

he did not know asked him if he was alright. The defen-

dant said that he was not and got into the car, at which

point the individual drove him to the hospital. Lamaine,

who suspected that the white car in which the defendant

had been driven to the hospital7 was the same white

car that was shown on the surveillance video of the

crime scene, told the defendant that he had viewed the

surveillance video.

Lamaine also told the defendant that the victim was

dead and asked the defendant if he knew what hap-

pened to the victim. The defendant denied knowing

anything about the victim’s death. Lamaine also asked

the defendant whether, if the police found the white

car in which the defendant had arrived at the hospital,

they would find his blood in the back seat. The defen-

dant stated that he had initially gotten into the back

seat of the car that picked him up and then climbed

into the front seat.

In the afternoon of February 25, 2017, Fitzgerald and

Larrichia went to the defendant’s home on Glenwood

Avenue in Bridgeport to interview him again. At that

interview, the defendant’s parents, his sister and a

cousin who identified himself as a correction officer

were present. The defendant admitted, at that point,

that he had shot the victim with a revolver. The defen-

dant also told Fitzgerald and Larrichia that the victim

shot him after he made a noise that startled the victim.

The defendant stated that he had agreed to be paid

$2000 to ‘‘make sure that nothing happened’’ during the

drug deal because he wanted the money to fix his car.

When Fitzgerald asked the defendant if ‘‘the intent was

to rob’’ the victim of the marijuana, the defendant said,

‘‘I guess so.’’

Shortly after the interview, the police arrested the

defendant. The police subsequently charged the defen-

dant with murder, felony murder with the predicate

felony of robbery in the third degree, robbery in the

first degree, conspiracy to commit robbery in the first

degree, and carrying a pistol or revolver without a per-

mit. After the prosecutor presented the prosecution’s

case at trial, defense counsel moved for a judgment of

acquittal on the charges of robbery in the first degree

and conspiracy to commit robbery in the first degree.

The trial court granted the motion. The court stated in

its ruling that ‘‘the elements of robbery in the third

degree [which is a lesser included offense of robbery

in the first degree] are: a person is guilty of robbery in

the third degree when he, in the course of committing a

larceny, uses or threatens the immediate use of physical

force [on] another person for the purpose of either

preventing or overcoming resistance to the taking of

the property, or compelling the owner of such property

or another person to deliver up the property. Here, the

court simply is constrained to find any evidence in the

record . . . that would support a finding, at this junc-

ture, that there was a prevention or overcoming resis-

tance to the taking of . . . the marijuana out of the

car or that [the victim] was compelled to deliver up

the property.’’

With respect to the charge of conspiracy to commit

robbery in the first degree, the trial court concluded

that, considered in context, the evidence that the defen-

dant had said ‘‘I guess so’’ when asked whether ‘‘the

intent was to rob’’ and that Hargrove had told the defen-

dant to wipe down the gun was not sufficient to support

the charge. Thus, the jury was left to determine the

defendant’s guilt with respect to the remaining charges,

namely, murder, felony murder with the predicate fel-

ony of robbery in the third degree, and carrying a pistol

or revolver without a permit.8

Thereafter, the defendant testified in his own defense.

He testified that, when he got into a white Hyundai at

the Duchess restaurant on the evening of February 24,

2017, he had never seen Hargrove before. The defendant

did not know where Hargrove was going when they left

the restaurant. He explained that, when they arrived

at Berkshire Avenue and parked, the victim got into

Hargrove’s car. The victim then told Hargrove that he

should go to the victim’s car to get the marijuana while

the victim retrieved the money from Hargrove’s car.

The defendant did not know the victim.

The defendant further testified that, when the victim

got into Hargrove’s car the second time, after Hargrove

and the defendant had returned from driving around

the block, the victim was startled by the rustling of

the defendant’s ‘‘puffer jacket’’ and turned toward the

defendant. The defendant then tried ‘‘to grab for what-

ever [the victim was] reaching for,’’ but, before he could

do so, the victim shot him. When the defendant tried

to leave the car, the victim would not let him and said

that he was going to kill him. The defendant then

grabbed the gun that was on the floor of the car and

shot the victim. The defendant had never seen the gun

before he got into the car. The defendant testified that

he did not intentionally kill the victim and that he took

nothing from the victim.

On cross-examination, the defendant testified that he

had no money when he got into Hargrove’s car and

never saw any money in the car, but he did not know

that there was no money in the car. Hargrove told the

defendant to sit in the back seat of the car when he got

into the car at the Duchess restaurant, but the defendant

was not ‘‘hiding’’ there. The defendant asked Hargrove

twice, after ‘‘he pulled up,’’ whether he had any money.

When the victim got into Hargrove’s car the second

time and pulled out his gun, the defendant grabbed the

gun with his left hand and wrestled with the victim,

even though the defendant, who was five feet, six inches

tall and weighed approximately 120 pounds at the time

of the shooting, was much smaller than the victim, who

was a ‘‘big’’ man, more than six feet tall.

The defendant further testified that, when Hargrove

returned to his car after the defendant shot the victim,

the defendant asked Hargrove if he could call an ambu-

lance for the victim, but Hargrove said that the victim

was already ‘‘gone . . . .’’ The defendant admitted that

he never told the police, after the shooting, that he had

asked Hargrove to call an ambulance. With respect to

the police interview at the hospital, the defendant acknow-

ledged that the police told him that, when they found

the white car that was at the scene of the shooting,

they would do a DNA analysis of any blood that they

found inside the car. The defendant denied that ‘‘the

plan . . . all along . . . was to rob [the victim] of his

property . . . .’’

After the conclusion of evidence, the trial court

instructed the jury that the defendant was claiming self-

defense with respect to the murder charge and the

lesser included offenses of that charge, and on the ele-

ments of that claim. The court further instructed the

jury that, if the jury found that the state had established

the elements of murder or the lesser included offenses

of manslaughter, it must find that the state had dis-

proved one of the elements of self-defense beyond a

reasonable doubt before it could find the defendant

guilty.

The jury found the defendant not guilty of murder

but guilty of intentional manslaughter in the first degree

with a firearm, felony murder, and carrying a pistol or

revolver without a permit. The jury found, in special

interrogatories, that the defendant had used a firearm

to commit intentional manslaughter in the first degree

with a firearm and felony murder.

At sentencing, the trial court vacated the conviction

of intentional manslaughter in the first degree with a

firearm on the ground that the defendant could not be

convicted of multiple homicide charges for the same

act. See, e.g., State v. John, 210 Conn. 652, 695–97, 557

A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L.

Ed. 2d 50 (1989), and cert. denied sub nom. Seebeck v.

Connecticut, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d

50 (1989). The trial court sentenced the defendant to an

effective sentence of forty-two years of imprisonment,

execution suspended after forty years, and five years

of probation on the remaining convictions.

This direct appeal followed. The defendant claims

that (1) there was insufficient evidence to support the

conviction of felony murder with the predicate felony

of robbery in the third degree because there was no

evidence that the defendant intended to or did commit

a larceny or that he used or threatened the immediate

use of physical force to effectuate the taking of the

marijuana, and (2) the prosecutor engaged in improprie-

ties during closing argument that deprived the defen-

dant of his right to a fair trial. We reject both claims.

I

We first address the defendant’s claim that there was

insufficient evidence to support his conviction of felony

murder.9 We disagree.

‘‘The standard of review we apply to a claim of insuffi-

cient evidence is well established. In reviewing the suffi-

ciency of the evidence to support a criminal conviction

we apply a [two part] test. First, we construe the evi-

dence in the light most favorable to sustaining the ver-

dict. Second, we determine whether [on] the facts so

construed and the inferences reasonably drawn there-

from the [jury] reasonably could have concluded that

the cumulative force of the evidence established guilt

beyond a reasonable doubt. . . .

‘‘We note that the jury must find every element proven

beyond a reasonable doubt in order to find the defen-

dant guilty of the charged offense, [but] each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the jury to conclude

that a basic fact or an inferred fact is true, the jury is

permitted to consider the fact proven and may consider

it in combination with other proven facts in determining

whether the cumulative effect of all the evidence proves

the defendant guilty of all the elements of the crime

charged beyond a reasonable doubt. . . .

‘‘Moreover, it does not diminish the probative force

of the evidence that it consists, in whole or in part, of

evidence that is circumstantial rather than direct. . . .

It is not one fact, but the cumulative impact of a multi-

tude of facts which establishes guilt in a case involving

substantial circumstantial evidence. . . . In evaluating

evidence, the [jury] is not required to accept as disposi-

tive those inferences that are consistent with the defen-

dant’s innocence. . . . The [jury] may draw whatever

inferences from the evidence or facts established by

the evidence it deems to be reasonable and logical. . . .

‘‘Ordinarily, intent can only be inferred by circum-

stantial evidence; it may be and usually is inferred from

the defendant’s conduct. . . . Intent to cause death

may be inferred from the type of weapon used, the

manner in which it was used, the type of wound inflicted

and the events leading to and immediately following

the death. . . .

‘‘Finally, [a]s we have often noted, proof beyond a

reasonable doubt does not mean proof beyond all possi-

ble doubt . . . nor does proof beyond a reasonable

doubt require acceptance of every hypothesis of inno-

cence posed by the defendant that, had it been found

credible by the [jury], would have resulted in an acquit-

tal. . . . On appeal, we do not ask whether there is a

reasonable view of the evidence that would support a

reasonable hypothesis of innocence. We ask, instead,

whether there is a reasonable view of the evidence

that supports the [jury’s] verdict of guilty.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Campbell, 328 Conn. 444, 503–505, 180 A.3d 882 (2018).

‘‘[A]n inference need not be compelled by the evi-

dence; rather, the evidence need only be reasonably

susceptible of such an inference. Equally well estab-

lished is our holding that a jury may draw factual infer-

ences on the basis of already inferred facts.’’ (Internal

quotation marks omitted.) State v. Niemeyer, 258 Conn.

510, 519, 782 A.2d 658 (2001).

To establish the elements of felony murder in the

present case, the state was required to establish that,

acting either alone or with one or more persons, the

defendant committed or attempted to commit robbery

in the third degree and, in the course of and in further-

ance of such crime, the defendant caused the death of

a person other than one of the participants. General

Statutes § 53a-54c. Thus, to secure a conviction of fel-

ony murder, the state was required to prove, beyond a

reasonable doubt, all of the elements of robbery in the

third degree. See, e.g., State v. Lewis, 245 Conn. 779,

786, 717 A.2d 1140 (1998).

Section 53a-136 (a) defines robbery in the third

degree as ‘‘robbery as defined in section 53a-133.’’ Gen-

eral Statutes § 53a-133, in turn, provides: ‘‘A person

commits robbery when, in the course of committing

a larceny, he uses or threatens the immediate use of

physical force upon another person for the purpose of:

(1) Preventing or overcoming resistance to the taking

of the property or to the retention thereof immediately

after the taking; or (2) compelling the owner of such

property or another person to deliver up the property

or to engage in other conduct which aids in the commis-

sion of the larceny.’’

General Statutes § 53a-119 provides in relevant part:

‘‘A person commits larceny when, with intent to deprive

another of property or to appropriate the same to him-

self or a third person, he wrongfully takes, obtains or

withholds such property from an owner. . . .’’ (Empha-

sis added.) ‘‘A person acts ‘intentionally’ with respect

to a result or to conduct described by a statute defining

an offense when his conscious objective is to cause

such result or to engage in such conduct . . . .’’ Gen-

eral Statutes § 53a-3 (11). ‘‘[I]ntent [can] be formed

instantaneously and [does] not require any specific

period of time for thought or premeditation for its for-

mation.’’ (Internal quotation marks omitted.) State v.

Carter, 317 Conn. 845, 857, 120 A.3d 1229 (2015).

A

The defendant first claims that the state failed to

establish that he intended to commit a larceny because

there was no evidence that he had any intent to deprive

the victim of the marijuana or to appropriate it to him-

self or to Hargrove. See General Statutes § 53a-119.

Rather, the defendant contends, the evidence compels

the conclusion that his only intent was ‘‘to sit in [Har-

grove’s] car while the victim and Hargrove conducted

the sale.’’ The state responds that the ‘‘evidence showed

that the defendant had a dishonest purpose or intention

to deprive the victim of his marijuana by assisting Har-

grove to wrongfully exercise control over it.’’

For the reasons that follow, we agree with the state

that there was sufficient evidence for the jury to find

beyond a reasonable doubt that the defendant had the

requisite intent to deprive the victim of his marijuana.

As a result, we need not address whether there was

sufficient evidence for the jury to find that the defendant

also had the intent to appropriate the marijuana to

himself or a third person. See General Statutes § 53a-

119.

The evidence showed that (1) Hargrove told the

defendant that his role was to ‘‘make sure that nothing

happened,’’ that there was a gun on the floor in the

back seat of Hargrove’s car, and that he should ‘‘wipe

[the gun] down,’’ (2) the defendant never saw any

money in Hargrove’s car, and, at some point after arriv-

ing at Berkshire Avenue, he asked Hargrove twice

whether he had any money, (3) the victim told Hargrove,

when he got into Hargrove’s car the first time, that

Hargrove should get the marijuana from the victim’s

car while the victim got the money from Hargrove’s

car, (4) Hargrove did not immediately complete the

drug transaction after meeting with the victim but,

instead, left the scene and drove around the block a

few times, (5) Depass, who had arranged the drug trans-

action, warned the victim not to get back into Har-

grove’s car when Hargrove returned from driving

around the block because Depass was concerned that

something was amiss, (6) after the victim entered Har-

grove’s car the second time, the defendant killed the

victim by shooting him five times in the back, (7) Har-

grove and the defendant left the scene with the bag of

marijuana and the victim dead or dying in the street,

and (8) when asked by the police on the day after the

shooting whether the intent was to rob the victim, the

defendant responded, ‘‘I guess so.’’

Applying the proper standard of review to the evi-

dence in the present case, we conclude that, although

there was no direct evidence that the defendant and

Hargrove intended to rob the victim, the circumstantial

evidence was sufficient to support the jury’s conclusion

that the defendant intended to deprive the victim of his

marijuana. Specifically, the jury reasonably could have

inferred that the defendant knew, at least from the

time that Hargrove parked on Berkshire Avenue for the

second time, that Hargrove did not intend to pay for

the marijuana and that the defendant’s role was to par-

ticipate in the robbery by using the gun to ‘‘make sure

that nothing happened.’’ The defendant then used that

gun to shoot the victim five times in the back. Afterward,

the defendant and Hargrove left with the marijuana.

Indeed, the defendant himself responded, ‘‘I guess so,’’

when asked by the police if the plan had been to rob

the victim.10

On the basis of the foregoing evidence, the jury,

applying common sense, could have inferred that the

defendant had intended to use the gun to ensure that the

victim, upon getting into Hargrove’s car and discovering

that there was no money, would not leave the car to

get his marijuana back, and that the defendant had

intentionally used or threatened to use the gun to pre-

vent the victim from interfering with the plan to deprive

the victim of the marijuana. The jury also reasonably

could have concluded that there would have been no

reason for the victim to shoot the defendant while Har-

grove was retrieving the drugs from the victim’s car

unless the victim believed that Hargrove and the defen-

dant intended to deprive him of his marijuana without

paying for it. Based on all of the foregoing, and constru-

ing the evidence in a light most favorable to sustaining

the verdict, we conclude that the jury reasonably could

have inferred from this evidence that the defendant had

the intent to deprive the victim of the marijuana.

Finally, we note that the jury reasonably could have

rejected altogether the defendant’s testimony that the

victim had been ‘‘startled’’ by a noise and, instead, con-

cluded that the victim had shot the defendant because

the defendant was attempting to hold him at bay with

the gun, was about to shoot him, or already had shot

him to prevent him from interfering with Hargrove.

Indeed, the jury was entitled to discredit the defendant’s

exculpatory testimony while crediting his testimony

that was corroborated by other evidence; see, e.g., Bar-

rila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983)

(‘‘[a] trier of fact is free to reject testimony even if it

is uncontradicted . . . and is equally free to reject part

of the testimony of a witness even if other parts have

been found credible’’ (citations omitted)); and it would

have been reasonable for it to do so. The evidence

showed that the defendant knew, after his first inter-

view with the police at the hospital, that the police had

a video recording of the scene of the shooting. The

defendant also knew that the police suspected that the

car shown in that video recording was the same car in

which the defendant arrived at the hospital, and they

knew that the defendant had been shot. Moreover, the

defendant knew that, if the police found Hargrove’s car,

they would find the defendant’s blood in the back seat

and the victim’s blood in the front seat.

Accordingly, the jury reasonably could have con-

cluded that the defendant must have realized after the

initial police interview—during which he gave false

information to the police—that his continued insistence

that he had not shot the victim and knew nothing about

the incident would simply not be believable. There were

several hours between that interview and the second

interview at the defendant’s home during which the

defendant, by himself or in consultation with others,

had the opportunity to come up with a version of events

in which he would admit that he agreed to participate

in the drug deal and that he shot the victim—for which

the police already had compelling evidence—but would

claim that he knew nothing about any plan to rob the

victim and that the shooting was in self-defense. Thus,

the jury reasonably could have concluded that the state-

ments that the defendant made during his second inter-

view with the police that were consistent with the other

evidence that the police had—which generally tended

to inculpate the defendant—were true, whereas the

statements that tended to exculpate him were not.

The defendant correctly points out that ‘‘the jury was

not free to infer the opposite of what the defendant

asserted in his statements based solely on its disbelief

of those assertions.’’ State v. Copas, 252 Conn. 318, 343

n.31, 746 A.2d 761 (2000). As we previously explained,

however, there was affirmative evidence and reason-

able inferences the jury could have drawn therefrom

that would support the conclusion that the defendant

did not intend simply to observe a drug deal between

Hargrove and the victim and that he intentionally used

or threatened the immediate use of physical force to

prevent the victim from interfering with Hargrove’s tak-

ing of the victim’s marijuana.

The defendant also relies on this court’s decision in

State v. Stovall, 316 Conn. 514, 115 A.3d 1071 (2015).

In Stovall, the defendant contended that there was

insufficient evidence to support his conviction of pos-

session of narcotics with intent to sell within 1500 feet

of a housing project when ‘‘the state failed to introduce

any evidence to prove beyond a reasonable doubt that

he intended to sell narcotics at a particular location in

or within 1500 feet of [the housing project at issue].’’

Id., 522. In support of its claim to the contrary, the state

relied on ‘‘testimony that the defendant regularly visited

[an] apartment in [the housing project] two or three

times per week, that [the housing project was] known

for drug trafficking, that the defendant made a business

arrangement with [an acquaintance] to store items in

the hallway closet in her apartment in [the housing

project], and that narcotics packaged for sale and other

materials suggesting the packaging and sale of narcotics

were recovered from the hallway closet during the

search of [the] apartment.’’ Id., 522–23.

This court concluded that, although the ‘‘evidence

provided ample support for the inference that the defen-

dant intended to store and package narcotics in [the

acquaintance’s] apartment for sale, it did not have any

probative value with respect to the intended location

of the sales, that is, whether the defendant intended to

sell the narcotics in [the] apartment or in another loca-

tion within 1500 feet of [the housing project].’’ Id., 523–

24. ‘‘The evidence was equally supportive of an

inference that the defendant intended to sell the drugs

outside of the prohibited zone or anywhere that the

opportunity presented itself. This court has concluded

that [when] the evidence is in equipoise or equal, the

[s]tate has not sustained its burden [of proof] . . . .

State v. Moss, 189 Conn. 364, 369, 456 A.2d 274 (1983);

see also United States v. Glenn, 312 F.3d 58, 70 (2d Cir.

2002) (if the evidence viewed in the light most favorable

to the prosecution gives equal or nearly equal circum-

stantial support to a theory of guilt and a theory of

innocence, then a reasonable jury must necessarily

entertain a reasonable doubt . . .).’’ (Internal quotation

marks omitted.) State v. Stovall, supra, 316 Conn. 527.

In the present case, the defendant contends that,

under Stovall, the evidence was insufficient to establish

that he intended to commit larceny because, at best, it

would equally support a finding that he participated

in the drug deal simply to ‘‘make sure that nothing

happened’’ and that he shot the victim in self-defense

or a finding that he intended to steal the victim’s mari-

juana and that he used or threatened to use physical

force to prevent the victim from interfering with Har-

grove. We disagree. For the reasons that we already stated,

viewing the evidence in a light most favorable to sus-

taining the verdict, we conclude that the jury reasonably

could have concluded beyond a reasonable doubt, on

the basis of all of the evidence, that the victim and the

defendant exchanged gunfire because the defendant was

using or threatening to use force against the victim to

carry out his intent to deprive the victim of his mari-

juana. The jury also reasonably could have rejected the

defendant’s claims that he was promised $2000 and

given a gun to do nothing more than sit in the car and

that he shot the victim during the course of a drug sale

only because the victim shot at the defendant after the

defendant startled him. Accordingly, we reject this

claim.

B

The defendant also claims that there was insufficient

evidence to support the conclusion that he committed

a larceny because there was no evidence that he himself

took the victim’s marijuana. Rather, he claims that the

evidence compels the conclusion that, if there was a

larceny, it was Hargrove who took the marijuana. The

defendant further contends that he cannot be found

guilty as an accessory because the jury was not instructed

on accessorial liability. See, e.g., State v. Williams, 187

Conn. App. 333, 348–49, 202 A.3d 470 (2019); State v.

Holley, 160 Conn. App. 578, 592, 127 A.3d 221 (2015)

(overruled on other grounds by State v. Gore, 342 Conn.

129, 269 A.3d 1 (2022)), rev’d on other grounds, 327

Conn. 576, 175 A.3d 514 (2018).

As we explained, § 53a-119 provides in relevant part

that ‘‘[a] person commits larceny when, with intent to

deprive another of property or to appropriate the same

to himself or a third person, he wrongfully takes, obtains

or withholds such property from an owner. . . .’’ Hav-

ing concluded that there was sufficient evidence to

support a finding that the defendant had the intent to

deprive the victim of his marijuana; see part I A of this

opinion; we must determine whether there was suffi-

cient evidence to demonstrate that the defendant wrong-

fully took, obtained or withheld the marijuana from

the victim.11

At the outset, we note that § 53a-119 provides three

distinct terms that can be used to establish what action

the defendant must engage in to satisfy that element

of larceny: ‘‘takes, obtains or withholds . . . property

from an owner.’’ General Statutes § 53a-119. In interpre-

ting the meaning of these terms, we are mindful of the

‘‘basic tenet of statutory construction that the legisla-

ture [does] not intend to enact meaningless provisions.

. . . [I]n construing statutes, we presume that there is

a purpose behind every sentence, clause, or phrase used

in an act and that no part of a statute is superfluous.

. . . Because [e]very word and phrase [of a statute] is

presumed to have meaning . . . [a statute] must be

construed, if possible, such that no clause, sentence or

word shall be superfluous, void or insignificant.’’ (Internal

quotation marks omitted.) Lopa v. Brinker Interna-

tional, Inc., 296 Conn. 426, 433, 994 A.2d 1265 (2010).

The defendant asserts that the jury could not reason-

ably have found that he committed larceny because he

did not physically take the marijuana and the jury was

not instructed on accessorial liability. Therefore, the

defendant asserts, there is not sufficient evidence to

support the jury’s finding regarding the commission of

the predicate felony of robbery in the third degree under

the instruction as given. We disagree.

In the present case, although the state argued that

Hargrove physically took the marijuana, the state did

not limit its theory of the defendant’s guilt of larceny

to any one of the three statutory terms—takes, obtains

or withholds.12 Consistent therewith, the jury was not

limited to concluding that it could find the defendant

guilty of larceny only if it found that he physically took

the marijuana, as opposed to either obtaining or with-

holding the marijuana. Indeed, the jury was instructed:

‘‘To prove that the defendant was committing or attempt-

ing to commit a larceny, the state must prove beyond

a reasonable doubt that [1] the defendant wrongfully

took property, or obtained property, or withheld prop-

erty from an owner, and [2] that, at the time, he intended

to deprive the owner of the property or to appropriate

such property to himself or a third person.’’ Therefore,

in the present case, in determining whether there was

sufficient evidence to support the jury’s finding regard-

ing the defendant’s commission of the predicate felony

of robbery in the third degree, we must consider

whether there was sufficient evidence of any of these

three distinct ways of committing larceny.

We conclude that there was sufficient evidence that

the defendant committed larceny under the term ‘‘with-

holds.’’ The term ‘‘withholds’’ is not defined for pur-

poses of § 53a-119. ‘‘In the absence of a definition of

terms in the statute itself, [w]e may presume . . . that

the legislature intended [a word] to have its ordinary

meaning in the English language, as gleaned from the

context of its use. . . . Under such circumstances, it

is appropriate to look to the common understanding

of the term as expressed in a dictionary.’’ (Internal

quotation marks omitted.) Meriden v. Freedom of Infor-

mation Commission, 338 Conn. 310, 322, 258 A.3d 1

(2021); see also General Statutes § 1-1 (a). Webster’s

Third New International Dictionary defines ‘‘withhold’’

as ‘‘to hold back,’’ ‘‘keep from action,’’ ‘‘check’’ or

‘‘restrain . . . .’’ Webster’s Third New International

Dictionary (2002) p. 2627. The American Heritage Col-

lege Dictionary defines ‘‘withhold’’ as ‘‘[t]o refrain from

giving, granting, or permitting.’’ American Heritage Col-

lege Dictionary (4th Ed. 2007) p. 1574.

In the present case, the evidence established that the

defendant ‘‘was offered some money to go make sure

nothing happened during [the drug] deal.’’ The defen-

dant testified that he was promised $2000. The defen-

dant also testified that, when he got into Hargrove’s

car the first time, he was told that there was a gun in

the back seat and that he should ‘‘wipe it down . . . .’’

The defendant further testified that he had been told

that Hargrove was going to go to the victim’s car to get

the marijuana and that the victim expected to get the

money from Hargrove’s car, in which the defendant

was sitting. The evidence further established that the

defendant was never instructed to pay the victim for

the marijuana; nor did the defendant have any reason

to believe that Hargrove intended to pay the victim.

Indeed, the defendant had no money of his own and

never saw any money in the car, and Hargrove never

affirmed that he had money to pay the victim.

Therefore, the evidence established that the defen-

dant sat in the back seat of Hargrove’s car, behind the

victim, who sat in the front passenger seat, that the

defendant was armed with a gun, and that the purpose

of the defendant’s being in on the deal was to ‘‘make

sure nothing happened’’ while Hargrove got the mari-

juana from the victim’s car. On the basis of the foregoing

evidence, the jury reasonably could have inferred that

the defendant was in the back seat of Hargrove’s car

with the gun for the purpose of ‘‘refrain[ing] from giving,

granting, or permitting’’ access to the marijuana. Ameri-

can Heritage College Dictionary, supra, p. 1574. The

jury reasonably could have also inferred that the defen-

dant shot the victim as part of his effort to refrain

from permitting or allowing the victim access to the

marijuana once his cohort had effectuated their plan

to deprive the victim of the marijuana without paying

for it. On the basis of the evidence and the reasonable

inferences drawn therefrom, we conclude that there

was sufficient evidence for the jury to have found that

the defendant committed larceny.

C

The defendant finally claims that the evidence was

insufficient to establish that he used or threatened the

immediate use of physical force ‘‘for the purpose of:

(1) Preventing or overcoming resistance to the taking

of the property or to the retention thereof immediately

after the taking; or (2) compelling the owner of such

property or another person to deliver up the property

or to engage in other conduct which aids in the commis-

sion of the larceny.’’ General Statutes § 53a-133 (defin-

ing ‘‘robbery’’).13 In support of this claim, the defendant

relies on this court’s holding in State v. Coston, 182

Conn. 430, 435, 438 A.2d 701 (1980), that ‘‘[t]he fact that

the defendant committed a larceny while carrying a

concealed weapon and later assaulted the victims of

the larceny in an attempt to escape does not by itself

permit [this court] to sustain his conviction for attempted

robbery’’ because there was no evidence that the defen-

dant used the weapon with the purpose of preventing

resistance to the taking or compelling the owner to

deliver up the property. We disagree.

We concluded in part I A of this opinion that the jury

reasonably could have found that Hargrove would not

have gone to retrieve the marijuana from the victim’s

car unless he and the defendant had come to an under-

standing that the defendant would prevent the victim

from interfering with Hargrove. We also concluded that

the victim would have had no apparent reason to shoot

the defendant unless the defendant was using or threat-

ening to use force to prevent the victim from interfering

with Hargrove. Thus, the evidence was sufficient to

establish that the defendant used or threatened the

immediate use of physical force for the purpose of

overcoming the victim’s resistance to the taking of the

marijuana or to the retention thereof immediately after

the taking.14

II

The defendant next claims that he was deprived of

his due process right to a fair trial when the prosecutor

engaged in prosecutorial improprieties during closing

argument by arguing facts that were not in evidence

and making inferences that were unsupported by the

evidence. We are not persuaded.

The defendant contends that the prosecutor improp-

erly relied on facts that were not in evidence or made

unsupported inferences on four occasions. First, the

defendant claims that, during the prosecutor’s main

closing argument to the jury, the prosecutor improperly

argued that ‘‘[t]he defendant has agreed that there was

a drug deal that was going to go down, that they showed

up with no money.’’ (Emphasis added.) Second, he claims

that the prosecutor improperly argued that the defen-

dant did not know that he was shot, thereby suggesting

that he was not acting in self-defense when he shot the

victim. Third, he argues that, during rebuttal argument,

the prosecutor improperly argued that the victim was

startled when he got into Hargrove’s car the second

time because there was no money in the car.15 Fourth,

he claims that the prosecutor improperly stated, during

rebuttal argument, that Depass ‘‘assume[d] that [the

victim] had a gun because he had it in the past,’’ when

Depass testified, instead, that the victim told him that

he had a gun.

‘‘[I]n analyzing claims of prosecutorial [impropriety],

we engage in a two step analytical process. The two

steps are separate and distinct: (1) whether [improper

conduct] occurred in the first instance; and (2) whether

that [improper conduct] deprived a defendant of his due

process right to a fair trial. Put differently, [improper

conduct] is [improper conduct], regardless of its ulti-

mate effect on the fairness of the trial; whether that

[improper conduct] caused or contributed to a due pro-

cess violation is a separate and distinct question . . . .

As we have indicated, our determination of whether

any improper conduct by the [prosecutor] violated the

defendant’s fair trial rights is predicated on the factors

set forth in State v. Williams, [204 Conn. 523, 540, 529

A.2d 653 (1987)], with due consideration of whether that

[improper conduct] was objected to at trial.’’ (Internal

quotation marks omitted.) State v. Warholic, 278 Conn.

354, 361–62, 897 A.2d 569 (2006). ‘‘These factors include

the extent to which the [improper conduct] was invited

by defense conduct or argument, the severity of the

[improper conduct], the frequency of the [improper con-

duct], the centrality of the [improper conduct] to the

critical issues in the case, the strength of the curative

measures adopted, and the strength of the state’s case.’’

Id., 361.

‘‘As we previously have recognized, prosecutorial

[impropriety] of a constitutional magnitude can occur

in the course of closing arguments. . . . When making

closing arguments to the jury, [however] [c]ounsel must

be allowed a generous latitude in argument, as the limits

of legitimate argument and fair comment cannot be

determined precisely by rule and line, and something

must be allowed for the zeal of counsel in the heat of

argument. . . . Thus, as the state’s advocate, a prose-

cutor may argue the state’s case forcefully, [provided

the argument is] fair and based [on] the facts in evidence

and the reasonable inferences to be drawn therefrom.

. . . Moreover, [i]t does not follow . . . that every use

of rhetorical language or device [by the prosecutor] is

improper. . . . The occasional use of rhetorical

devices is simply fair argument.’’ (Internal quotation

marks omitted.) State v. Martinez, 319 Conn. 712, 727,

127 A.3d 164 (2015).

We first address the defendant’s claim that the prose-

cutor’s argument that Hargrove had no money with him

was improper because it was supported by no evidence.

We already concluded that the evidence that the defen-

dant asked Hargrove twice whether he had money, that

the defendant never saw any money in Hargrove’s car,

and that the defendant responded ‘‘I guess so’’ to Fitz-

gerald’s inquiry whether ‘‘the intent was to rob’’ the

victim supports the inference that Hargrove did not

have any money to pay the victim for the marijuana.

See part I A of this opinion. Accordingly, we reject this

claim. For the same reason, we reject the defendant’s

claim that the prosecutor improperly argued that the

victim was startled when he entered Hargrove’s car the

second time because he saw that there was no money.

With respect to the defendant’s claim that the prose-

cutor improperly argued that the defendant did not

know that he had been shot when he shot the victim, this

claim appears to relate exclusively to the defendant’s

claim, with respect to his intentional manslaughter in

the first degree with a firearm charge, that the state

failed to prove beyond a reasonable doubt that he was

not acting in self-defense, which we need not address

because we rejected his insufficiency claims. See part

I of this opinion. In turn, because the self-defense claim

is not before us, we need not address this claim of

prosecutorial impropriety. We reach a similar conclu-

sion with respect to the defendant’s claim that the pros-

ecutor improperly argued that Depass testified that he

had ‘‘assume[d] that [the victim] had a gun because he

had it in the past,’’ when, in fact, Depass testified that

the victim told him that he had a gun. Because the

defendant contends that the claim relates solely to his

claim of self-defense, we need not address it.

The judgment is affirmed.

In this opinion the other justices concurred.

1

We note that the parties indicated in their original briefs that the defen-

dant had been convicted of manslaughter in the first degree in violation of

General Statutes § 53a-55 (a) (1). We further note that, when the jury returned

its verdict, the court clerk asked only whether it had found the defendant

guilty of manslaughter in the first degree in violation of § 53a-55 (a) (1).

The judgment file also indicated that the defendant had been convicted of

manslaughter in the first degree, but it referred to § 53a-55a. At sentencing,

the prosecutor clarified that the defendant had been convicted of manslaugh-

ter in the first degree with a firearm in violation of § 53a-55a, and defense

counsel agreed. Notwithstanding the confusion in the parties’ representa-

tions and the record, given this clarification at sentencing, it is clear that

the defendant was convicted of manslaughter in the first degree with a

firearm in violation of § 53a-55a (a).

2

Initially, the state had also charged the defendant with, inter alia, robbery

in the first degree in violation of General Statutes § 53a-134 (a) (2) and

conspiracy to commit robbery in the first degree in violation of General

Statutes § 53a-48 and § 53a-134 (a) (2). After the prosecutor rested the state’s

case-in-chief, the trial court granted defense counsel’s motion for a judgment

of acquittal on those charges.

3

Some of the evidence presented at trial suggested that Marley may have

told the defendant about the gun. Although the defendant testified that

Hargrove had told him that there was a gun on the floor in the back seat,

Brian Fitzgerald, a captain with the Bridgeport Police Department, testified

that, when he interviewed the defendant on the day after the shooting, the

defendant had told him that ‘‘[h]e was supposed to pick up the gun that

was [going to] be inside a car that he was picked up in . . . .’’ Fitzgerald

also testified that the defendant had indicated that, ‘‘when he was picked

up in [Hargrove’s white Hyundai Sonata] . . . there would be a gun in

the car.’’ Thus, Fitzgerald’s testimony arguably suggests that the defendant

indicated that Marley had told him, before Hargrove picked the defendant

up at the Duchess restaurant, that there would be a gun in the car.

4

Earlier in the evening, Depass explained to the victim that he had made

a deal to sell the marijuana for $9600. Depass had also given the victim a

bag containing the marijuana and watched him place it in his car. At some

point in the evening, the victim told Depass that he was carrying a gun.

5

Depass testified that he saw Hargrove enter the victim’s car and remove

the container of marijuana.

6

The quality of the video recording was not sufficient to allow the identifi-

cation of facial features. Other evidence, including the defendant’s own

testimony that he had shot the victim, established, however, that the defen-

dant was the person who got out of the car and then followed the car as

it moved down the street.

7

Surveillance video taken at the entrance to the hospital showed a white

car pulling up to the entrance and two men exiting from the car. The video

also showed Hargrove and another person, later identified as a bystander,

supporting the defendant as he entered the hospital. Depass testified that,

after the victim was shot, he went to the Bridgeport police station, where

he viewed the surveillance video. He recognized one of the persons who

was supporting the defendant as the person he saw removing the marijuana

from the car on Berkshire Avenue.

8

At oral argument before this court, counsel for the defendant suggested

that the trial court may have violated the defendant’s double jeopardy rights

when it submitted the felony murder charge to the jury after it had ruled that

there was insufficient evidence to support the predicate felony of robbery

in the third degree. There was also some discussion at oral argument about

the possibility that the guilty verdict on the felony murder charge was legally

inconsistent with the trial court’s ruling. Because the defendant did not

raise either of these claims in his brief, we do not address them. See, e.g.,

J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 328 n.20, 71

A.3d 492 (2013) (‘‘it is well settled that arguments cannot be raised for the

first time at oral argument’’).

9

Although this claim was not raised at trial, ‘‘it is entitled to review under

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)], because any

defendant found guilty on the basis of insufficient evidence has been

deprived of a constitutional right, and would therefore necessarily meet

the four prongs of Golding.’’ (Footnote omitted; internal quotation marks

omitted.) State v. Rodriguez-Roman, 297 Conn. 66, 73, 3 A.3d 783 (2010).

10

The defendant testified that he asked Hargrove twice, between the time

that they first arrived on Berkshire Avenue and the time that they parked

there a second time, whether he had any money, and that he never saw any

money in Hargrove’s car. The jury reasonably could have concluded that,

if there was no money visible in Hargrove’s car when Hargrove parked a

second time on Berkshire Avenue, there was no money. Indeed, it would

have made little sense for Hargrove to conceal the money in the car or to

carry it with him to the victim’s car if he intended to pay the victim for the

marijuana. Thus, the evidence supports the inference that the defendant

knew, before Hargrove left the car, that there was no money, that the plan

all along had been to rob the victim, and that the defendant’s role was to

participate in the robbery. It is well established that ‘‘intent [can] be formed

instantaneously and [does] not require any specific period of time for thought

or premeditation for its formation.’’ (Internal quotation marks omitted.)

State v. Carter, supra, 317 Conn. 857.

At the very least, the defendant’s testimony that he never saw any money

in Hargrove’s car supports the inference that the victim did not see any

money when he got into the car, as there is no apparent reason why the

money would have been visible to the victim but not to the defendant. In

turn, this supports an inference that Hargrove had no intention of paying

for the marijuana. Finally, although the defendant’s response of ‘‘I guess

so’’ to Fitzgerald’s inquiry whether ‘‘the intent was to rob’’ the victim does

not necessarily suggest that that was the defendant’s intent from the outset,

it does support the reasonable inference that the defendant knew, at some

point during the events leading up to the shooting, that Hargrove intended

to rob the victim, and, therefore, that the defendant’s role was to facilitate

the robbery. See, e.g., State v. Green, 261 Conn. 653, 668, 804 A.2d 810 (2002)

(‘‘the jury is not barred from drawing those inferences consistent with guilt

and is not required to draw only those inferences consistent with innocence’’

(internal quotation marks omitted)).

11

After oral argument before this court, we requested supplemental briefs

on the following issues: (1) ‘‘Given that the jury was instructed on all the

statutory elements of felony murder, and the predicate felony of robbery

in the third degree, analyze whether the defendant’s claim that the evidence

was insufficient to support his conviction on the predicate felony of robbery

in the third degree is more properly framed as a claim that the trial court

improperly failed to instruct the jury on the statutory definitions of ‘appro-

priate,’ set forth in General Statutes § 53a-118 (a) (4) (A), and ‘obtain,’ set

forth in § 53a-118 (a) (2). See State v. Russell, 101 Conn. App. 298, 327 and

n.30, 922 A.2d 191 [cert. denied, 284 Conn. 910, 931 A.2d 934] (2007).’’ And

(2) ‘‘[i]f the defendant’s claim is more properly characterized as a claim of

instructional error, was the trial court’s failure to instruct the jury on the

definitions set forth in § 53a-118 (a) (2) and (4) (A) error and, if so, was

the error harmful? See State v. Spillane, 255 Conn. 746, 757–58, 770 A.2d

898 (2001).’’

After reviewing the supplemental briefs, we conclude that it would not be

appropriate to construe the defendant’s sufficiency claim as an unpreserved

claim of instructional error. Although we acknowledge that it may have

been preferable for the jury to be instructed on the statutory definitions of

these terms; see, e.g., id., 755; neither party requested that the jury be charged

on the statutory definitions or objected to the instructions on that basis.

Moreover, because we find that there was sufficient evidence for the jury

to find that the defendant committed larceny under the term ‘‘withholds,’’

which is not statutorily defined, we need not address this issue. We thus

address the defendant’s sufficiency claim as it was raised on the merits.

Nevertheless, we do caution trial judges to ensure that jury instructions

include statutory definitions of the terms used in statutes defining crimi-

nal offenses.

12

On appeal to this court, the state also does not limit its theory of the

defendant’s guilt to any one of these terms but asserts that the evidence

was sufficient to support the defendant’s conviction under any of these

three terms. Because we conclude that there was sufficient evidence for

the jury to find that the defendant committed larceny under ‘‘withholds,’’

we need not address the other means of committing larceny under § 53a-119.

13

In support of this claim, the defendant points out that the trial court

granted defense counsel’s motion for a judgment of acquittal on the charge

of robbery in the first degree because the court concluded that the state

had failed to prove that ‘‘there was a prevention or overcoming resistance

to the taking of . . . the marijuana out of the car or that [the victim] was

compelled to deliver up the property,’’ and, therefore, the state failed to

establish that the defendant committed robbery in the third degree. As we

already explained, the defendant has raised no claim that the trial court

violated his double jeopardy rights by submitting the felony murder charge,

with the predicate felony of robbery in the third degree, to the jury, or

that his conviction on the felony murder charge is invalid because it was

inconsistent with the trial court’s judgment of acquittal on the charge of

robbery in the first degree. See footnote 8 of this opinion. We conclude,

therefore, that we may consider all of the evidence presented at trial that

the jury considered in determining whether the evidence was sufficient to

establish that the defendant used or threatened to use physical force for

the purposes set forth in § 53a-133.

14

Because we conclude that the evidence was sufficient to establish that

the defendant committed robbery, we need not address the defendant’s

claim that the evidence was insufficient to establish that he attempted to

commit robbery.

15

Specifically, the prosecutor argued that, on the night of the shooting,

‘‘the defendant was there as muscle. And, as part of the role of muscle, is

it reasonable to believe that a conversation occurred that wasn’t testified

to by the [defendant]? [The defendant’s] story is, and I’d suggest that he

wasn’t [going to] change that, that [the victim] gets in the car, and he’s

startled. Remember, [the judge] talked about you can believe some, all or

none of what’s said; you can believe that [the victim] was startled. Was it

reasonable to believe that he was startled when he found out that there

was [$9600] worth of drugs in that car behind him, he was told not to get

in the car, and, when he gets in there, he finds out there’s no money? There’s

no money. That would startle him.’’