The opinion
Landau, J.,
dissenting in part and concurring in part. I respectfully dissent from the portion of the majority opinion reversing the defendant’s conviction of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and threatening in violation of General Statutes § 53a-62 (a) (1). The majority concludes that the amendment to the defendant’s information after the completion of jury selection, substituting subdivision (1) of § 53a-61 (a) for subdivision (2) of that statute and substituting subdivision (1) of § 53a-62 (a) for subdivision (3) of that statute resulted in charging an additional or different offense and thereby implicitly prejudiced the defendant’s defense because he lacked proper notice of the new charge. I agree with the majority’s conclusion that the amendment resulted in charging the defendant with an additional or different offense, but conclude that the defendant was not prejudiced by the amendment and that his conviction should be upheld.
“ ‘After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information ... at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced . . . .’Practice Book § 624; State v. Jacobowitz, 182 Conn. 585, 590 , 438 A.2d 792 (1981); State v. Ignatowski, 10 Conn. App. 709, 714 , 525 A.2d 542 , cert. denied, 204 Conn. 812 , 528 A.2d *604 1157 (1987); State v. Cole, 8 Conn. App. 545, 550 , 513 A.2d 752 (1986). ‘The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself.’ State v. Jacobowitz, supra, 590 .” State v. Welch, 25 Conn. App. 270, 273 , 594 A.2d 28 , cert. granted, 220 Conn. 924 , 598 A.2d 366 (1991). The due process concerns of Practice Book § 624 are aimed at protecting “a defendant’s right to fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense.” State v. Parker, 25 Conn. App. 619, 622 , 595 A.2d 939 (1991), quoting State v. Cole, supra.
As a threshold for permitting amendments to an information, the state must demonstrate good cause for the amendment. See Practice Book § 624. Once the state has done this, the defendant bears the burden of demonstrating that there is a different or additional offense being charged and that he is prejudiced by this amendment. Although Practice Book § 624 is not a model of clarity, I conclude that the defendant bears this burden because to conclude otherwise would require the state to prove two negatives, (1) that a different or additional offense was not charged and (2) that the defendant will not be prejudiced, an impracticable and Sisyphean, if not impossible task. See, e.g., Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 516 , 512 A.2d 199 , appeal dismissed, 479 U.S. 1023 , 107 S. Ct. 781 , 93 L. Ed. 2d 819 (1986). In Griffin Hospital , the defendant commission cut $160,000 from the hospital budget on the ground that the hospital had adequate “in house expertise, the expense of which is already in the hospital’s budget, to develop the majority of the plan.” The trial court concluded that the commission’s finding of ade *605 quate expertise within the hospital to develop the long range plan was unsupported by the evidence. On appeal, the commission argued that the trial court acted improperly in not placing the burden on the hospital to prove that its management personnel did not possess the requisite expertise. The Supreme Court disagreed and concluded that “[t]he hospital could not reasonably have been expected to prove the negative, i.e., that its management personnel were inadequate to perform the proposed functions”; id., 516 ; and that the trial court properly placed the burden of proving that the hospital management personnel did not possess the requisite expertise on the commission.
On appeal, the party challenging the trial court action, in this case the defendant, bears the burden of demonstrating that the trial court acted improperly. See State v. Bergin, 214 Conn. 657, 679 , 574 A.2d 164 (1990) (defendant failed to show how he would be prejudiced by an amendment to the information, pursuant to Practice Book § 623, prior to commencement of trial). In order for the defendant to prevail on his claim he must prove, not only that a different or additional offense was charged by the amendment, but also that the amendment prejudiced the preparation of his defense. I conclude that the defendant has failed to sustain his burden of proof as to this second element.
The outcome of this case, regarding the issue of prejudice, I would argue, is guided by our Supreme Court decision in State v. Wallace, 181 Conn. 237 , 435 A.2d 20 (1980). In Wallace , the state amended the defendant’s information after the commencement of trial by deleting subdivision (2) of General Statutes § 53a-134 (a) and substituting in its place subdivision (4) of the same statute. 1 The court concluded that “the *606 amended information did not charge an additional or different offense. Both the original and amended information charged the defendant with the same crime of robbery in the first degree. Moreover, since the defendant’s defense at the trial was one of alibi, no substantive rights of the defendant were prejudiced. The defendant did not dispute the commission of the crime charged, he simply claimed that he was not the one who committed it.” Id., 239.
The majority attempts to distinguish Wallace on the grounds that (1) the statute at issue in that case is different from the statutes at issue in this case because all subdivisions of General Statutes § 53a-134 (a) require the same mental state, but each subdivision of the statutes at issue in the subject case requires a different mental state and (2) the trial court found that the amendment did not charge the defendant with a different or additional offense. The majority concludes that the issue of prejudice to the defendant’s preparation of his defense need be addressed only if no additional or different offenses are charged. With respect to the prejudice created by the amendment, the majority, upon a reading of Wallace , concludes that the defendant in that case was not prejudiced by the amendment because he relied on an alibi defense and therefore did not dispute whether the robbery for which he was convicted was committed as charged in the original information (by the use of a deadly weapon) or as charged in the amended information (by the threat of the use of a firearm). In this case, because of its conclusion that the amendment charged the defendant with different or additional offenses, the majority never reaches the *607 prejudice prong of Practice Book § 624.1 disagree with their failure to reach this issue.
Regarding the issue of prejudice, I believe that the present case presents a scenario identical to that presented in Wallace . In both cases, the theories of defense presented at trial were wholly unrelated to and unaffected by the context of the amendments. In Wallace , the amendment involved the means by which the offense was perpetrated while the theory of defense was alibi — that the defendant was elsewhere at the time the crime was committed. In this case, while the defendant did not argue that he was in another place at the time the crime was committed, his defense at trial was that the victim consented to the sexual intercourse, and that this consent negated any need for an assault or threat, and, thus, that these offenses were never committed. His theory of defense was not that he did not commit the offense with the charged state of mind. Thus, as in Wallace , where the specific conduct alleged did not implicate the defendant’s alibi theory of defense, the particular state of mind charged in the information here did not implicate the defendant’s theory of defense that he did not commit the charged acts, regardless of the accompanying mental state. The defendant has failed to demonstrate how this amendment prejudiced his opportunity to prepare an adequate defense; see State v. Parker, supra; and, therefore, how the due process concerns of Practice Book § 624 have been implicated.
I would, therefore, affirm the defendant’s conviction of assault in the third degree and threatening.
General Statutes § 53a-134 provides in relevant part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission *606 of the crime ... he or another participant in the crime ... (2) is armed with a deadly weapon; or . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”