State v. Toro

******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecti-

cut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Con-

necticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be repro-

duced and distributed without the express written per-

mission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************

STATE OF CONNECTICUT v. JOSE A. TORO

(AC 38215)

DiPentima, C. J., and Mullins and Bishop, Js.

Argued January 12—officially released May 9, 2017

(Appeal from Superior Court, judicial district of

Waterbury, Moll, J.)

James E. Mortimer, with whom, on the brief, was

Michael D. Day, for the appellant (defendant).

Peter A. McShane, state’s attorney, with whom, on

the brief, were Maureen Platt, state’s attorney, Lisa

Herskowitz, senior assistant state’s attorney, and Elena

Palermo, assistant state’s attorney, for the appellee

(state).

Opinion

MULLINS, J. The defendant, Jose A. Toro, appeals

from the judgment of conviction, rendered after a jury

trial, of attempt to commit assault in the first degree

in violation of General Statutes §§ 53a-59 (a) (1) and

53a-49 (a) (1), and breach of the peace in the second

degree in violation of General Statutes § 53a-181 (a)

(1).1 The defendant claims that the court abused its

discretion by admitting evidence of his uncharged mis-

conduct. The defendant, however, has not included an

analysis in his main appellate brief pertaining to how

this allegedly improper ruling was harmful. Conse-

quently, we conclude that the defendant’s claim is inad-

equately briefed and, therefore, unreviewable.

Accordingly, we affirm the judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history inform our review.

In February, 2013, the victim, Wilfredo Rivera, had been

dating his girlfriend, Luz Torres, for approximately four

years. Prior to their relationship, Torres had been

involved with another individual, who had been a friend

of the defendant. When that relationship ended, the

defendant sought to date Torres, but she was not inter-

ested. Instead, she began dating the victim, which upset

the defendant. The defendant then began threatening

the victim and Torres, telling them that he would kill

them if they did not end their relationship. These threats

soon escalated to physical violence.

On February 4, 2013, at approximately 8:15 a.m., the

victim took his dog for a walk on the sidewalk outside

of his Waterbury apartment. As the dog made its way

to some bushes on the side of a building, the victim let

go of its leash but followed the dog into the bushes.

As the victim exited the bushes, he saw the defendant

standing on the sidewalk holding a machete in his

hands. The victim grabbed his dog and started running

back toward his apartment. The defendant chased the

victim, repeatedly saying that he was going to kill him.

The victim was yelling as the defendant chased him,

which caused Torres to look out of the window of the

victim’s apartment. Torres observed the victim running

while being chased by another person, but she could

not see the face of the other person. A neighbor, Roberto

Millan, also heard yelling, and, when he looked out of

his window, he saw the victim and a man with a machete

engaged in a confrontation.

During the chase, the victim fell to the ground. The

defendant then swung the machete at him and hit him

on the back of his leg. The victim was able to block

the blow substantially by using a metal flashlight he

had been carrying. As a result, the victim sustained only

a minor injury to his leg. After taking the hit, the victim

managed to get on his feet, and he ran behind a vehicle.

At that point, the defendant left the scene. The victim

returned to his apartment and told Torres what had

happened, and she telephoned police.

Shortly thereafter, the defendant was arrested on sev-

eral charges, and, following a jury trial, the jury found

him guilty of attempt to commit assault in the first

degree and breach of the peace in the second degree.

See footnote 1 of this opinion. The court sentenced the

defendant to a total effective sentence of twelve years

incarceration, execution suspended after seven years,

five years of which were mandatory, followed by three

years probation. This appeal followed. Additional facts

will be set forth as necessary in consideration of the

defendant’s claim.

In this appeal, the defendant claims that the court

abused its discretion by admitting evidence of

uncharged misconduct. Specifically, he asserts that the

court erred in admitting the uncharged misconduct evi-

dence that, on February 3, 2013, the day before the

attack on the victim that is the subject of this appeal,

the defendant had chased the victim with a knife and

threatened to kill him. The defendant argues that this

evidence was unduly prejudicial and that the court

should have excluded it. He fails to argue in his main

brief to this court, however, that the trial court’s errone-

ous admission of this evidence was harmful error. Thus,

because the defendant has failed to brief adequately

how he was harmed by this allegedly improper eviden-

tiary ruling, we decline to review the defendant’s claim.

The following additional facts are relevant. Prior to

trial, the state filed two notices of intent to admit

uncharged misconduct. The defendant does not chal-

lenge on appeal the court’s admission of various

uncharged misconduct evidence offered by the state in

its first notice.2

In the second notice, which is the subject of this

appeal, the state sought ‘‘to introduce testimony from

[the victim] that, on February 3, 2013, the defendant

came at [the victim] with a knife threatening to kill

him.’’ In response to the two notices, the defendant

filed a motion in limine asking the court to preclude

the state from eliciting any testimony, or offering any

evidence, as to any uncharged misconduct on the part

of the defendant, including the February 3, 2013 inci-

dent. The court denied the motion in limine, thereby

permitting the state to offer evidence of the defendant’s

prior misconduct. At trial, the state elicited the details

of the February 3, 2013 incident during its direct exami-

nation of the victim, and it relied on such testimony in

its closing argument.

On appeal, the defendant claims that the evidence

from the February 3, 2013 incident should not have

been admitted because it was unduly prejudicial. He

contends that the evidence of the February 3, 2013

incident ‘‘made the defendant appear as a knife wielding

criminal, actively attempting to stab [the victim] the

day before the operative crime,’’ and that it, therefore,

was unduly prejudicial. Moreover, according to the

defendant, the evidence of such uncharged misconduct

was particularly prejudicial because the charged con-

duct did not ‘‘far outweigh, in terms of severity, the

character of the uncharged misconduct . . . .’’ In his

main brief, however, the defendant did not present any

argument on how the court’s alleged improper admis-

sion of this evidence constituted harmful error.

The state responds that we should not review the

defendant’s claim because it is inadequately briefed.

Specifically, the state contends that because the defen-

dant fails to allege in his main brief what harm he

suffered, even if the court had abused its discretion by

admitting this evidence, he has abandoned his claim by

not adequately briefing it.

In his reply brief, the defendant presents his harmful

error analysis for the first time. He also contends in his

reply brief that he had addressed the issue of harm

adequately in his main brief. In particular, he argues

that his discussion of the court’s improper admission

of the uncharged misconduct evidence focused on his

contention that the evidence’s probative value did not

outweigh its prejudicial effect. Therefore, according to

the defendant, his argument regarding the evidence’s

prejudicial effect was the equivalent of an argument on

harmful error. We agree with the state that the defen-

dant failed to brief the issue of harm adequately and,

therefore, has abandoned this claim.3

‘‘Evidence of a defendant’s uncharged misconduct is

inadmissible to prove that the defendant committed the

charged crime or to show the predisposition of the

defendant to commit the charged crime. . . . Excep-

tions to this rule have been recognized, however, to

render misconduct evidence admissible if, for example,

the evidence is offered to prove intent, identity, malice,

motive, a system of criminal activity or the elements of

a crime. . . . To determine whether evidence of prior

misconduct falls within an exception to the general

rule prohibiting its admission, we have adopted a two-

pronged analysis. . . . First, the evidence must be rele-

vant and material to at least one of the circumstances

encompassed by the exceptions. Second, the probative

value of such evidence must outweigh the prejudicial

effect of the other crime evidence. . . . Since the

admission of uncharged misconduct evidence is a deci-

sion within the discretion of the trial court, we will

draw every reasonable presumption in favor of the trial

court’s ruling. . . . We will reverse a trial court’s deci-

sion only when it has abused its discretion or an injus-

tice has occurred.’’ (Internal quotation marks omitted.)

State v. Kalil, 314 Conn. 529, 539–40, 107 A.3d 343

(2014).

Our Supreme Court ‘‘has identified four factors rele-

vant to determining whether the admission of otherwise

probative evidence is unduly prejudicial. These are: (1)

where the facts offered may unduly arouse the [jurors’]

emotions, hostility or sympathy, (2) where the proof

and answering evidence it provokes may create a side

issue that will unduly distract the jury from the main

issues, (3) where the evidence offered and the count-

erproof will consume an undue amount of time, and

(4) where the defendant, having no reasonable ground

to anticipate the evidence, is unfairly surprised and

unprepared to meet it.’’ (Internal quotation marks omit-

ted.) State v. Hill, 307 Conn. 689, 698, 59 A.3d 196 (2013).

‘‘It is well settled that, absent structural error, the

mere fact that a trial court rendered an improper ruling

does not entitle the party challenging that ruling to

obtain a new trial. An improper ruling must also be

harmful to justify such relief. . . . The harmfulness of

an improper ruling is material irrespective of whether

the ruling is subject to review under an abuse of discre-

tion standard or a plenary review standard. . . . When

the ruling at issue is not of constitutional dimensions,

the party challenging the ruling bears the burden of

proving harm.’’ (Internal quotation marks omitted.)

State v. Baker, 168 Conn. App. 19, 36, 145 A.3d 955,

cert. denied, 323 Conn. 932, 150 A.3d 232 (2016).

‘‘[W]hether [an improper ruling] is harmless in a par-

ticular case depends upon a number of factors, such

as the importance of the witness’ testimony in the prose-

cution’s case, whether the testimony was cumulative,

the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material

points, the extent of cross-examination otherwise per-

mitted, and, of course, the overall strength of the prose-

cution’s case. . . . Most importantly, we must examine

the impact of the . . . evidence on the trier of fact and

the result of the trial. . . . [T]he proper standard for

determining whether an erroneous evidentiary ruling

is harmless should be whether the jury’s verdict was

substantially swayed by the error. . . . Accordingly, a

nonconstitutional error is harmless when an appellate

court has a fair assurance that the error did not substan-

tially affect the verdict.’’ (Internal quotation marks omit-

ted.) State v. Eleck, 314 Conn. 123, 129, 100 A.3d 817

(2014).

‘‘It is a fundamental rule of appellate review of eviden-

tiary rulings that if [the] error is not of constitutional

dimensions, an appellant has the burden of establishing

that there has been an erroneous ruling which was

probably harmful to him.’’ (Internal quotation marks

omitted.) State v. Gonzalez, 272 Conn. 515, 527, 864

A.2d 847 (2005); see also State v. Kirsch, 263 Conn.

390, 412, 820 A.2d 236 (2003) (‘‘in order to establish

reversible error on an evidentiary impropriety, the

defendant must prove both an abuse of discretion and

a harm that resulted from such abuse’’). ‘‘We do not

reach the merits of [a] claim [where] the defendant

has not briefed how he was harmed by the allegedly

improper evidentiary ruling.’’ State v. Baker, supra, 168

Conn. App. 35; see also In re James O., 160 Conn. App.

506, 526, 127 A.3d 375 (‘‘[E]ven if we assume, without

deciding, that . . . the exhibits in question were

improperly admitted into evidence, the respondent has

failed adequately to brief how she was harmed by the

erroneous admission. Because the respondent has

failed to brief the issue of harmfulness, we deem the

claim abandoned and, accordingly, decline to review

it.’’), aff’d, 322 Conn. 636, 142 A.3d 1147 (2016).

Additionally, ‘‘[i]t is well settled that this court does

not address claims raised for the first time in a reply

brief.’’ BTS, USA, Inc. v. Executive Perspectives, LLC,

166 Conn. App. 474, 498 n.7, 142 A.3d 342, cert. denied,

323 Conn. 919, 150 A.3d 1149 (2016); see also Bovat v.

Waterbury, 258 Conn. 574, 585 n.11, 783 A.2d 1001

(2001) (‘‘[i]t is a well established principle that argu-

ments cannot be raised for the first time in a reply

brief’’ [internal quotation marks omitted]).

In the present case, the defendant did not address in

his main brief how the allegedly improper admission

of uncharged misconduct evidence harmed him. To the

extent that he argues that he effectively addressed this

issue by analyzing how it was an abuse of discretion

for the court to admit evidence whose probative value

did not outweigh its prejudicial effect, we disagree.

The defendant conflates the distinct concepts of

whether the prejudicial effect of evidence outweighs

its probative value and harmful error. The former con-

cerns a trial court’s consideration of whether the prof-

fered evidence would be improper for the jury to

consider, while the latter concerns a reviewing court’s

retrospective consideration of whether or how the alleg-

edly improper admission of evidence corrupted the

jury’s verdict.

Prejudicial effect is measured in terms of whether

specific evidence would arouse the jurors’ emotions,

distract the jury, consume an undue amount of time,

or unfairly surprise the defendant. State v. Hill, supra,

307 Conn. 698. In contrast, the harm inquiry is broader

in scope because it ultimately looks at the ‘‘impact of

the . . . evidence on the trier of fact and the result of

the trial.’’ State v. Eleck, supra, 314 Conn. 129. Thus,

harm is measured by examining a different set of consid-

erations, ‘‘such as the importance of the [improper evi-

dence] in the prosecution’s case, whether the [improper

evidence] was cumulative, the presence or absence of

evidence corroborating or contradicting the [improper

evidence] on material points, the extent of cross-exami-

nation otherwise permitted, and, of course, the overall

strength of the prosecution’s case.’’ (Internal quotation

marks omitted.) Id.

Accordingly, although in some cases the two con-

cepts may overlap with one another to some extent,

prejudicial effect and harm are not necessarily equiva-

lent and must be briefed separately. State v. Baker,

supra, 168 Conn. App. 35–36. Indeed, it is not inconsis-

tent for a reviewing court to conclude that, although

evidence was unduly prejudicial, and thus improperly

admitted at trial, its improper admission nevertheless

was harmless. See, e.g., State v. Silva, 201 Conn. 244,

250, 513 A.2d 1202 (1986) (‘‘The trial court is required

to balance the probative value against the prejudicial

effect of [uncharged misconduct] evidence . . . and to

exclude the evidence unless the former outweighs the

latter. . . . We can find little, if any, probative value

in the [uncharged misconduct evidence that was admit-

ted in this case]. . . . Although the trial court erred

in admitting [that] evidence, we think the error was

harmless . . . .’’ [Citations omitted.]); State v. Bell, 152

Conn. App. 570, 581–82, 99 A.3d 1188 (2014) (‘‘[T]he

probative value of the uncharged misconduct testimony

in this case was outweighed by its prejudicial effect.

. . . We therefore conclude that the court improperly

admitted [that] testimony . . . . That determination

does not, however, end our discussion . . . [because]

[w]e [ultimately] conclude that its admission was harm-

less.’’ [Citations omitted.]); see also State v. Bell, 113

Conn. App. 25, 42, 964 A.2d 568 (‘‘The defendant claims

that [the] testimony had minimal probative value, which

was outweighed by its prejudicial impact. We agree but

find the admission harmless.’’), cert. denied, 291 Conn.

914, 969 A.2d 175 (2009).

It is only in his reply brief to this court that the

defendant presents a harmful error analysis, i.e., how

the allegedly improper admission of uncharged miscon-

duct evidence substantially affected the verdict. As pre-

viously noted, we will not consider arguments raised

for the first time in a reply brief. See Bovat v. Waterbury,

supra, 258 Conn. 585 n.11; BTS, USA, Inc. v. Executive

Perspectives, LLC, supra, 166 Conn. App. 498 n.7.

Accordingly, we decline to review the defendant’s claim

because he has not addressed the issue of harm ade-

quately in his main brief.

The judgment is affirmed.

In this opinion the other judges concurred.

1

The jury found the defendant not guilty of assault in the third degree in

violation of General Statutes § 53a-61 (a) (1). The jury was unable to reach

a verdict on the charge of carrying a dangerous weapon in violation of

General Statutes § 53-206 (a), and the court declared a mistrial on that count.

2

Pursuant to the first notice, the state presented evidence at trial that,

(1) prior to February 4, 2013, the defendant repeatedly harassed the defen-

dant and Torres with numerous calls and text messages threatening to hurt

or kill them, and (2) after the incident in question, he knocked on the

window of the victim’s apartment with a cane, frightening Torres.

3

The state also argues that the court did not abuse its discretion in

admitting this evidence because it was not unduly prejudicial and, further-

more, it was not harmful error for the court to admit it. Because we conclude

that the defendant’s claim is unreviewable, we do not address this argument.