State v. Rodriguez

192 Conn.App. 115

217 A.3d 21

STATE of Connecticut

v.Jose Luis RODRIGUEZ

AC 40837

Appellate Court of Connecticut.

Argued March 14, 2019

Officially released August 27, 2019

Conrad Ost Seifert, assigned counsel, for the appellant (defendant).

Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Deborah Mabbett, senior assistant state's attorney, for the appellee (state).

Lavine, Moll and Bishop, Js.

LAVINE, J.

The defendant, Jose Luis Rodriguez, appeals from the judgment of conviction, rendered following a jury trial, of public indecency in violation of General Statutes § 53a-186 (a) (2), breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (5), improper use of a marker, registration, or license in violation of General Statutes § 14-147 (c), illegal operation of a motor vehicle while his driver's license was under suspension in violation of General Statutes § 14-215 (a), and two counts of failure to appear in the second degree in violation of General Statutes § 53a-173 (a) (1). The defendant claims on appeal that the court improperly (1) admitted evidence of uncharged misconduct, (2) instructed the jury on the uncharged misconduct evidence, and (3) denied his motion to sever the public indecency, breach of the peace, and motor vehicle charges from the failure to appear charges. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts beyond a reasonable doubt. At 2 a.m. on September 14, 2006, a waitress at Blue Colony Diner (diner) in Newtown called the police because the defendant had exposed his penis and appeared to be masturbating. When police officers arrived at the diner, the waitress directed them to the table where the defendant was seated. Although the defendant told police that someone named "Steve" dropped him off at the diner, the police found a set of keys on his person that matched an Oldsmobile in the diner parking lot. The police ran the license plate on the Oldsmobile through their database system and discovered that it belonged to a different vehicle and was registered to another individual. The police also learned that the operator's license of the defendant had been suspended indefinitely.

The defendant was charged with public indecency, breach of the peace in the second degree, and motor vehicle violations. He failed to appear on May 2, 2007, and July 17, 2009, and was arrested and charged for both failures.

The public indecency, breach of the peace, and motor vehicle charges were consolidated with the failure to appear charges for trial. The defendant filed a motion to sever the failure to appear charges from the other charges; the motion was heard and denied by the court. Trial commenced on June 6, 2017. The defendant was convicted of all charges and sentenced to a total effective sentence of two years of imprisonment, execution suspended after one year and two days, and three years of probation. The defendant then appealed from the judgment of conviction.

I

The defendant first claims that the court improperly admitted evidence of three instances in which he was arrested but not charged for exposing himself to a waitress at either a diner or restaurant. The state argues that the defendant did not preserve this evidentiary claim. We agree with the state. Alternatively, the defendant claims that he is entitled to plain error reversal. We disagree.

At trial, the state offered evidence of the defendant's uncharged misconduct pursuant to § 4-5 (c) of the Connecticut Code of Evidence and argued that it was admissible to prove his intent to expose himself for sexual gratification, the lack of mistake or accident, motive, and a common plan or scheme involving a pattern of sexual behavior. The state also offered the uncharged misconduct under § 4-5 (b) of the Connecticut Code of Evidence to show propensity for sexual misconduct. The defendant's counsel did not object; in response to the state's proffer of uncharged misconduct evidence, he stated: "I would have to leave it to the court's discretion, in that regard ...."

"[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial.... In order to preserve an evidentiary ruling for review, trial counsel must object properly.... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.... Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted....

"These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act.... Assigning error to a court's evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.... [A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one .... For this court to ... consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.... Thus, because the sina qua non of preservation is fair notice to the trial court; see, e.g., State v. Ross , 269 Conn. 213, 335–36, 849 A.2d 648 (2004) (the essence of the preservation requirement is that fair notice be given to the trial court of the party's view of the governing law [emphasis in original] ); the determination of whether a claim has been properly preserved will depend on a careful review of the record to ascertain whether the claim on appeal was articulated below with sufficient clarity to place the trial court on reasonable notice of that very same claim." (Citations omitted; internal quotation marks omitted.) State v. Jorge P. , 308 Conn. 740, 753–54, 66 A.3d 869 (2013).

The defendant argues on appeal that his counsel "somewhat ambiguously objected and, inter alia, stated that ‘propensity evidence is, extremely, potent evidence.’ " Leaving an evidentiary ruling to the court's judgment falls well short of making an objection. So does an observation about the potency of evidence. On the basis of our review of the record, we conclude the defendant did not object to the court's admission of the uncharged misconduct evidence at all, and certainly not with sufficient clarity so as to provide fair notice to the trial court. We therefore decline to review the defendant's claim.

The defendant further argues that even if his claim is unpreserved, he is entitled to plain error reversal on the ground that the uncharged misconduct evidence was not otherwise admissible and the prejudicial impact of the evidence outweighed its probative value. We disagree.

"[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... Implicit in this very demanding standard is the notion ... that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review." (Internal quotation marks omitted.) State v. Sanchez , 308 Conn. 64, 76–77, 60 A.3d 271 (2013).

The trial court's admission of the uncharged misconduct evidence in this case does not warrant relief under the plain error doctrine because the alleged error is not so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. On the record, the court explained to counsel why it concluded that the uncharged misconduct evidence was admissible¹ and also addressed any possible prejudice by instructing the jury regarding the manner in which it was allowed to consider the evidence.² We therefore reject the defendant's claim that the court committed plain error by admitting the uncharged misconduct evidence.

II

The defendant claims that he is entitled to plain error reversal for a second reason—that the court improperly instructed the jury on the uncharged misconduct evidence. We disagree.

The defendant concedes that he failed to file a request to charge or object to the court's proposed instructions and acknowledges waiver pursuant to State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011). The defendant argues, however, that he is nonetheless entitled to plain error reversal pursuant to State v. McClain , 324 Conn. 802, 815, 155 A.3d 209 (2017). We have reviewed the record and conclude that the defendant is not entitled to plain error reversal because the jury instructions pertaining to the uncharged misconduct evidence do not rise to the level of egregiousness and harm that would warrant reversal under the plain error doctrine. "[An appellant] cannot prevail under [the plain error doctrine] ... unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in...