Burke v. Mesniaeff

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BURKE v. MESNIAEFF—DISSENT

BISHOP, J., dissenting. As noted by the majority, the
operative complaint in this matter, filed on August 12,
2015, contains six counts, including one count alleging
intentional assault and battery.1 Following trial, the jury
determined, as revealed by answers to interrogatories
propounded to them, that the defendant, Gregory Mes-
niaeff, had, in fact, intentionally assaulted the plaintiff,
Elizabeth Burke, and that his assault caused injuries
and damages to her. The jury, however, found that the
defendant had proven his special defense of justifica-
tion and that he had acted in defense of others. Accord-
ingly, the jury found in favor of the defendant. On
appeal, the plaintiff makes two principal arguments:
that the court inappropriately instructed the jury on the
law of criminal trespass and that the evidence was
insufficient to sustain the jury’s determination that the
defendant’s wilful assault against the plaintiff was justi-
fied under the theory that he was acting in defense of
others. While the majority acknowledges the possibility
of some infirmity in the court’s trespass instruction, my
colleagues conclude that any such imperfection had no
bearing on the judgment. Additionally, the majority has
concluded that the evidence supports the jury’s determi-
nation that the defendant was acting in defense of oth-
ers. I respectfully disagree. In my view, the concept of
the plaintiff as a trespasser in a marital residence of
the parties had no place in the trial proceedings.2 That
wrong minded notion, however, coursed throughout
the evidentiary portion of the trial and was prominent
in the court’s instructions to the jury as well as in
defense counsel’s closing argument, likely confusing
the jury and, as a result, rendering its verdict unreliable.
Additionally, I part company with my colleagues
regarding their conclusion that the evidence was suffi-
cient to warrant the jury’s determination that the defen-
dant’s need to protect others on the property justified
his wilful assault upon the plaintiff. To the contrary, I
believe the record is devoid of any objective evidence
from which the defendant reasonably could have con-
cluded that others present at the residence were under
threat of harm from the plaintiff while he was engaged
in his physical assault upon her. Accordingly, I respect-
fully dissent.
In this dissenting opinion, I first discuss the court’s
instructions on trespass; next, I discuss the adequacy
of the evidence supporting the special defense relating
to the defense of others.
At the outset, I note that the majority characterizes
the plaintiff’s instructional claims on appeal as relating
only to the court’s charge on two of the defendant’s
special defenses and concludes that because the jury
did not find that the plaintiff was a trespasser, her
claim was unavailing. I do not so narrowly construe
the plaintiff’s claims; rather, I understand that the plain-
tiff has asserted on appeal that the court should not
have given any instruction on trespassing. Also, I do
not share the majority’s conclusion regarding the harm-
lessness of the court’s jury instruction on the basis, as
the majority claims, that the jury did not conclude that
the plaintiff had been trespassing while under assault
by the defendant. Indeed, I believe, respectfully, that the
court’s instruction on trespassing essentially concluded
for the jury that the plaintiff was trespassing when, as
an uninvited guest in her husband’s home, she refused
to leave when told to do so.
A fair analysis of the pleadings, evidence, and oral
argument leads me to conclude that the plaintiff’s status
as an alleged trespasser at the time and place of the
incident was bedrock to the defense of this civil assault
and battery claim. The following supports this con-
clusion
During pretrial proceedings, the defendant filed sev-
eral special defenses premised on the notion that his
assault against the plaintiff was justified as self-defense,
defense of others, or defense of property. All of these
special defenses, as alleged by the defendant, were
premised on the claim that the plaintiff was trespassing
on the defendant’s property at the time of the incident.3
In sum, the defendant’s claim that the plaintiff was a
trespasser when he assaulted her was key to his
defense. My conclusion in this regard is further but-
tressed by reference to the closing argument of the
defendant’s counsel and to the court’s instructions to
the jury.
In closing argument, after the evidentiary portion of
the trial during which there was considerable, albeit
disputed, evidence regarding the plaintiff’s status while
at the Sharon house, the defendant’s counsel stated, in
part: ‘‘She claimed at one point that she resides or
resided at the Sharon house, that it was her house. The
marital house is down in New Rochelle. This is complete
fabrication. [The defendant] said she lived there two
weeks a long time ago. That was it. It’s not her—not
her home, not her residence, never was. There’s . . .
uncontradicted testimony that [the defendant] is the
sole owner of the property. It is his house.’’ Later, the
defendant’s counsel returned to this theme when he
claimed to the jury: ‘‘No one disputes that [the plaintiff]
was told to leave the property. That’s an important
point. She was told she’s got to leave the property. [The
plaintiff] said she was told. She told that in—put that
in the police report. She refused to leave the property.
At that point, she was no longer a welcomed guest at
the house. You’ll see in our special defenses the legal
language that the judge will tell you you need to follow.
There’s reasons why the laws are written the way they
are. And for situations like this, there are laws that
apply and you’re gonna get those instructions. And you
have to decide essentially did [the defendant] handle
himself properly that day? Did he act reasonably? Did
he not use excessive force to remove her from the
property? I think the testimony and the evidence is that
he used as much force as he had to use to keep her
from getting back into the property. That was a reason-
able thing for him to do by any standard.’’
True to the defendant’s counsel’s predictions, the
court provided the jury with extensive instructions
regarding the role of trespassing in the defendant’s
defenses. Respectfully, from my perspective, the court
essentially told the jury that the plaintiff had been a
trespasser. In part, the court commented to the jury:
‘‘The defendant alleges that on December 5, 2009, the
plaintiff was trespassing on the premises and exhibiting
disorderly conduct and/or creating a disturbance. The
parties agree that the defendant did not invite the plain-
tiff to the historic tour. In addition, the defendant alleges
the plaintiff entered and/or remained on the property
after she was directed to leave by him, the owner of
the property, and that she refused to do so, among the
other claims asserted with respect to trespassing. The
plaintiff does not dispute that she was told to leave.’’
I agree with the majority’s observation, albeit in a
different legal context, that jurors are not required to
leave their common sense at the courthouse door. In
this instance, and in the absence of any charge to the
jury regarding the plaintiff’s entitlement to occupy the
premises no matter which spouse held title, I believe,
respectfully, that any reasonable juror would have con-
cluded from this charge that the plaintiff’s status as a
trespasser during the incident in question was a fore-
gone conclusion.4
The court’s instructions regarding the special
defenses continued the theme of the plaintiff as a tres-
passer. As to the special defense of justification, the
court instructed the jury as follows: ‘‘[A] person in pos-
session or control of premises is justified in using rea-
sonable physical force upon another person when and
to the extent that he reasonably believes such to be
necessary to prevent or terminate the commission or
attempted commission of a criminal trespass by such
other person in or upon such premises.’’ Thus, it is
apparent that the notion of the plaintiff as a trespasser
was central to the court’s charge on the successful
defense of justification. Justification, however, is not a
stand-alone defense. As a matter of logic and law, the
defense of justification must relate to some behavior
which is alleged to have been justified. Here, the jury
found that the defendant’s assaultive behavior was justi-
fied and that justification was premised, as instructed
by the court, on the notion of the plaintiff as a trespasser
on the defendant’s property. In short, assuming the
jury followed the court’s justification charge, the one
reasonable conclusion supported by the record is that
the defendant was justified in assaulting the plaintiff
as a means to eject her from the property titled only
in his name and after she had refused to leave when
told to do so. Thus, even though the court did not
reiterate its instructions concerning trespassing when
discussing the special defense relating to the defense
of others, the instruction regarding the plaintiff as tres-
passer in the more general defense of justification can-
not fairly be excised from our consideration of the
viability of the jury’s verdict.
As noted by the majority, at the conclusion of the
evidence portion of the trial, the court submitted inter-
rogatories to the jury, including those dealing with each
of the defendant’s special defenses. The jury’s
responses to two interrogatories were determinative of
the plaintiff’s claims. As reflected by their answers to
the interrogatories, the jury found that the defendant’s
conduct toward the plaintiff constituted intentional
assault and battery and that his intentional conduct
was a substantial factor in causing or aggravating the
plaintiff’s injuries and damages. The jury found, how-
ever, in favor of the defendant on two of his special
defenses. Specifically, the jury determined that the doc-
trines of justification and defense of others barred the
plaintiff’s recovery.
In determining that the court’s instruction on trespass
was not harmful to the plaintiff, the majority fastens
on the jury’s response to the interrogatory related to
the plaintiff’s special defense regarding wrongful con-
duct by the plaintiff. The majority concludes that
because the jury did not find that the plaintiff’s wrongful
conduct barred her recovery, the jury must have con-
cluded that the plaintiff was not trespassing when she
was assaulted by the defendant. As noted, I do not
believe this conclusion is warranted by the record. With
respect to the special defense regarding the plaintiff’s
alleged wrongful conduct, the court instructed the jury
as follows: ‘‘The defendant has also raised the defense
of ‘wrongful conduct,’ claiming that the plaintiff is
barred, in whole or in part, from pursuing her claims
under the doctrine of wrongful conduct. The defendant
alleges that on December 5, 2009, the plaintiff was tres-
passing on the premises and exhibiting disorderly con-
duct and/or creating a disturbance. The parties agree
that the defendant did not invite the plaintiff to the
historic tour. In addition, the defendant alleges the
plaintiff entered and/or remained on the property after
she was directed to leave by him, the owner of the
property, and that she refused to do so, among the
other claims asserted with respect to trespassing. The
plaintiff does not dispute that she was told to leave.
The defendant also alleges the plaintiff was exhibiting
disorderly conduct and/or creating a public distur-
bance. The defendant also alleges that the plaintiff was
assaulting and/or battering him during the incident of
December 5, 2009. Under Connecticut law, a plaintiff
may not maintain a civil action for injuries allegedly
sustained as the direct result of her knowing and inten-
tional participation in a criminal act. The wrongful con-
duct defense does not apply if you find that the plaintiff
sustained injuries and damages independent of any
wrongful conduct of the plaintiff. It further applies only
if the plaintiff has violated the law in connection with
the very transaction as to which she seeks redress or
relief.’’ Thus, the court’s reference to wrongful conduct
related to the defendant’s claim that the plaintiff had
been trespassing but also that she had been guilty of
disorderly conduct and creating a public disturbance.
Significantly, the court’s charge in this regard included
a component ignored by the majority that there must
be a nexus between the plaintiff’s alleged wrongful con-
duct and the assault for this special defense to prevail.
Thus, because the jury found that the defendant wilfully
assaulted the plaintiff, it is entirely reasonable to
deduce, from this interrogatory, that irrespective of
whether the plaintiff was guilty of trespassing or disor-
derly conduct, the defendant’s assault upon her was
not sufficiently tied to her criminal conduct for this
special defense to prevail.
Accordingly, I do not believe it is reasonable to glean
from the jury’s answer to the wrongful conduct interrog-
atory that the jury found that the plaintiff had not been
trespassing when she was being assaulted by the defen-
dant. Such a finding is neither compelled nor warranted
by the jury’s rejection of this special defense.
In sum, from my reading of the court’s instructions
and the jury’s responses to interrogatories, it is reason-
able to conclude as an overarching consideration, that
the jury was influenced by the court’s instruction on
trespass and found that the plaintiff could not recover
because, as a trespasser, she was susceptible to the
defendant’s claims regarding justification and the
defense of others.5
I am troubled by this outcome for two principal rea-
sons. As noted, I do not believe it was appropriate for
the court, under these circumstances, to give the jury
any instruction premised on the plaintiff being a tres-
passer. Secondly, even if the court could reasonably
have given an instruction on criminal trespass, the court
gave an incomplete and flawed trespass instruction by
failing to further instruct the jury on the scienter ele-
ment of trespass and on the question of whether the
plaintiff, as a nontitleholder, was nevertheless privi-
leged to be on the property in light of her marriage to
the defendant and the status of the Sharon house as a
periodically shared marital residence.
In giving its instruction, the court followed the lan-
guage of the criminal trespass statute, General Statutes
§ 53a-107 (a) (1), which states that a person commits
criminal trespass when ‘‘[k]nowing that such person is
not licensed or privileged to do so, such person enters
or remains in a building or any other premises after an
order to leave or not to enter personally communicated
to such person by the owner of the premises . . . .’’
As I read that statute, it contains multiple parts, each
necessary to the conclusion that one is a trespasser. In
order to make such a determination, a fact finder would
have to conclude (1) that a person knows he or she is
not licensed to be on property, (2) that the person must,
in fact, not be so licensed or privileged, (3) that the
person must be ordered to leave by the owner, and (4)
that the person must refuse such an order. In the present
case, the court gave no guidance to the jury as to the
meaning of the statute’s prefatory language concerning
whether a person is licensed or privileged to be on
property owned by another. And, as noted, the court did
not instruct the jury on the trespass statute’s scienter
requirement of proof that the nonowner must know
that he or she is not licensed or privileged to be on the
property in order to be guilty of trespassing. See State
v. Garrison, 203 Conn. 466, 474, 525 A.2d 498 (1987)
(‘‘[t]he actor’s knowledge that he is not privileged or
licensed to enter or to remain on the premises is a
requirement of criminal trespass’’). And yet, whether
the plaintiff was privileged or licensed to be on the
property and, if not, whether she knew so, are factors
at the crux of the question of whether the plaintiff could
be considered to have been trespassing under the then
existing circumstances.6 Rather than provide an expla-
nation of the meaning of these terms, the court dwelled,
instead, on the fact that the property was owned by
the defendant who had told the plaintiff to leave. The
jury was, therefore, left with an incomplete understand-
ing of how one can be found to be a trespasser.
Here, there was no evidence that the plaintiff tres-
passed on the property. To the contrary, there was
considerable undisputed evidence that she was licensed
and privileged to be there. The record reflects that the
parties were married in 1989 and that approximately
ten years later, the defendant purchased the subject
property in Sharon and took title in his own name. After
the Sharon house was bought, the parties purchased a
home in New Rochelle, New York, which became their
primary residence.
The record supports the conclusion that, at the time
of this incident, the parties were married and living
together. During testimony, the defendant acknowl-
edged that the plaintiff had a key to the Sharon house,
that she had a right to be on the property, and that she
kept clothing, furniture, furnishings, and kitchenware
on the premises, which she retrieved from the premises
after the incident. Laurel Powers, a friend of the plain-
tiff, also testified that the plaintiff kept clothing, furnish-
ings, and other personal belongings in the Sharon house,
which she assisted the plaintiff in retrieving after the
incident. Moreover, the plaintiff testified, without con-
tradiction, that after the Sharon house was purchased,
she selected the interior color scheme and painted the
interior of the home. Also, although the defendant dis-
puted the amount of time that the plaintiff had stayed
in the Sharon house, he did not deny that she sometimes
had occupied the home with him during the marriage.
Importantly, the defendant acknowledged, at trial,
that on the date of the assault, he believed that the
plaintiff had the right to be at the property because they
were married and he did not perceive her as trespassing
either when she first arrived or after he told her to
leave.7
Finally, it is noteworthy that both parties had Con-
necticut driver’s licenses at the time of this incident.
Because there was no trial evidence of any other Con-
necticut dwellings of the parties, this fact provides some
indication that each considered the Sharon house to be
a place of his and her residence.
On the basis of these facts, I do not believe there
was any basis for the court to instruct the jury on the
law of criminal trespass. In doing so, the court dwelled
only on the fact that the property had been titled in the
defendant’s name and that, as the titleholder, he, at
some point, told the plaintiff to leave and she refused.
Because I believe this partial and incomplete instruction
infected the jury’s deliberations, the jury’s verdict
lacks reliability.
My point is best illustrated by the use of an example.
Consider the following. John Jones and Mary Jones are
married and reside in a home titled solely in John’s
name. On a Sunday afternoon, John announces to Mary
that he has invited several of his male friends to come
to the house to watch a sports event on afternoon televi-
sion. Mary, however, does not like John’s friends and
detests watching sports. On hearing John’s intentions,
she strongly voices her displeasure and tells John that
his friends are not welcome. She then leaves the resi-
dence on an errand. Later when she returns, and upon
seeing John’s friends at the home, she loudly tells them
that they are not welcome and orders them to leave.
At that juncture, John reminds Mary that the house is
in his own name and tells her to vacate. When she
refuses, John calls the police and insists that Mary be
arrested for criminal trespass for her refusal to leave
the premises when ordered to do so by him. Under these
circumstances, I do not believe a serious argument can
be advanced that Mary has committed a trespass solely
on the basis that John owns the property because, not-
withstanding title ownership, Mary is licensed and privi-
leged to be in the marital residence.
To me, the facts of the example are parallel to the
circumstances we confront in this appeal, except for a
legally insignificant disagreement between the parties
as to how much time the plaintiff actually spent in the
Sharon house during the marriage leading up to the
defendant’s assault on the plaintiff. I believe the actual
amount of time each party spent at the Sharon house
is unimportant because both parties understood the
Sharon house to be a marital residence. In sum, the
defendant’s characterization of the Sharon house as a
family residence and his own state of mind that the
plaintiff was not a trespasser on the date of the incident
should put to rest any notion of the plaintiff as a tres-
passer. The jury, however, was led to believe from the
instructions that ownership was the pivot point for tres-
pass and that the plaintiff’s status as a trespasser could
justify the defendant’s assaultive behavior toward her.
The jury was given no instruction concerning the facts
and circumstances that could give rise to a nontitlehold-
er’s license or privilege to be present. In the absence
of that explanation, in this case and beyond, a spouse
without title to a marital residence dwells there only
at the sufferance of the owner of title spouse, a circum-
stance ripe for abuse and one that cannot be harmo-
nized with any reasonable public policy.
The plaintiff claims, as well, that there was insuffi-
cient evidence to support the jury’s determination that,
in assaulting the plaintiff, the defendant properly acted
in defense of others. I agree.
‘‘The defense of others, like self-defense, is a justifica-
tion defense . . . [which] operate[s] to exempt from
punishment otherwise criminal conduct when the harm
from such conduct is deemed to be outweighed by the
need to avoid an even greater harm or to further a
greater societal interest . . . . Thus, conduct that is
found to be justified is, under the circumstances, not
criminal.’’ (Internal quotation marks omitted.) State v.
Bryan, 307 Conn. 823, 832–33, 60 A.3d 246 (2013). Fur-
thermore, ‘‘in order to submit a defense of others
defense to the jury, a defendant must introduce evi-
dence that the defendant reasonably believed [the
attacker’s] unlawful violence to be imminent or immedi-
ate.’’ (Internal quotation marks omitted.) Id., 835. The
notion of a reasonable belief has two components: first,
the actor must have an actual belief of an imminent
danger to others and, second, that belief must be reason-
able. Thus, in assessing a defense of others claim, we
utilize what has come to be known as a subjective-
objective test. See id., 836; State v. DeJesus, 194 Conn.
376, 389 n.13, 481 A.2d 1277 (1984); State v. Croom, 166
Conn. 226, 229–30, 348 A.2d 556 (1974). That is, the actor
must believe that the danger is actual and imminent
and the actor’s belief must be reasonable by an objec-
tive standard.
In this appeal, the relevant evidence from the record
is that when the plaintiff approached the Sharon house,
the defendant was inside the residence with three
women who were guests on an historic house tour. The
evidence supports the conclusion that when the plaintiff
arrived on the porch, she yelled out in questioning who
the women were and that the defendant immediately
went to the plaintiff, grabbed her by the arm, and forc-
ibly led her away from the house while she continued
to loudly demand to know the identities of the women
in the house, while also screaming, ‘‘Help, help! Call
the police.’’ The evidence further reveals that once the
defendant had brought the plaintiff close to the road,
the plaintiff was either thrown or fell into a snow bank
in such a manner that Pierce Kearney, a stranger who
was then driving by the property, stopped, exited his
vehicle, and ran across the road in an effort to stop the
defendant from behavior he thought was assaultive.
The defendant assured him that the situation was all
right with the statement: ‘‘It’s okay, she’s my wife,’’ to
which Kearney responded, ‘‘No, this is over.’’ Finally,
the record reveals that the women who had remained
inside the house were upset and fearful, one testifying
that she did not know if the plaintiff might have been
armed with a weapon.
In finding this evidence sufficient to support the jury’s
determination that the defendant acted reasonably in
defense of others, the majority appears to rely on the
testimony of the tour guests, concluding that their fears
were objectively reasonable. Respectfully, I believe this
analysis is wide of the mark. The extent of fear and
hysteria of the defendant’s house tour guests is, in no
way, a measure of the reasonableness of the defendant’s
assaultive behavior. In other words, the issue at hand
is not the reaction of the houseguests or the reasonable-
ness of their fears; rather, it is the objective reasonable-
ness of the defendant’s claimed belief that the
houseguests were in imminent danger of physical harm
from the plaintiff.8 And, in this regard, the record is
bereft of any evidence that, at any time, the plaintiff,
by gesture or words, made any threats against the
houseguests. Time and time again during the trial, the
defendant was given the opportunity to state the objec-
tive basis for a reasonable belief that the houseguests
were at risk of physical harm and, time and time again,
he could offer no evidence except for his subjective
belief that his guests were in peril from the plaintiff.9
As noted, the defendant’s belief, alone, that others might
be in harm’s way is insufficient, as a matter of law, to
justify his assault upon the plaintiff. Furthermore, the
defendant’s own admissions at trial put the denial to
his defense of others special defense.10 Accordingly,
I believe, that as a matter of law, the evidence was
insufficient to warrant a verdict based on the defen-
dant’s special defense that he was acting in defense of
others when he wilfully assaulted the plaintiff.
For the reasons stated, I would reverse and remand
for retrial. Accordingly, I respectfully dissent.
1
The record reveals that the complaint in this matter was initially filed
on January 3, 2012.
2
While the plaintiff framed her claim of rightful access to the Sharon
house as a spouse’s right to marital property, she makes it clear in her
briefing that her claim relates more broadly to the notion that the evidence
amply demonstrated that the Sharon house was a residence purchased and
periodically shared by the parties during the marriage and, thus, a property
she was entitled to occupy during the marriage.
3
The relevant special defenses are as follows:
‘‘Fourth Special Defense: Wrongful Conduct
‘‘The plaintiff is barred, in whole or in part, from pursuing her claims
under the doctrine of wrongful conduct. On December 5, 2009, the plaintiff
was trespassing on the premises. The plaintiff exhibited disorderly conduct
and/or was creating a public disturbance. In addition, the plaintiff was
assaulting and/or battering the defendant. The plaintiff’s actions on Decem-
ber 5, 2009, were made knowingly and intentionally. . . .
‘‘Seventh Special Defense: Self-Defense
‘‘With respect to the allegations of December 5, 2009, any actions taken
by the defendant were in self-defense. The plaintiff was trespassing at the
time of the incident and was assaulting and/or battering the defendant.
‘‘Eighth Special Defense: Defense of others
‘‘With respect to the allegations of December 5, 2009, any actions taken
by the defendant were in defense of others. The plaintiff was trespassing
at the time of the incident and was acting in a disorderly manner.
‘‘Ninth Special Defense: Justification
‘‘At the time of the incident, the plaintiff was trespassing on the defendant’s
property. The plaintiff, knowing that she was not licensed or privileged to
do so, entered and remained on the property. Despite the defendant, who
is the owner of the property, directing her to leave, the plaintiff refused to
do so. The plaintiff then continued to exhibit disorderly conduct and/or
create a public disturbance. As such, the defendant was justified in using
reasonable force in escorting the plaintiff from the premises.’’
4
The majority notes that the court did not instruct the jury that the
defendant had to prove that the plaintiff was trespassing at the Sharon
house. Given the court’s marshaling of evidence in this regard and the
absence of any countervailing instruction on whether the plaintiff was none-
theless entitled to be on the property, the court may have considered such
a question to be unnecessary and that the only worthy questions for the jury
regarding the special defenses concerned whether the defendant’s conduct
in forcibly removing the uninvited plaintiff from his property was propor-
tional to the risk her presence and demeanor created to him, the property,
or to others.
5
Although the court’s instructions on the special defense of defense of
others was minimal, I am mindful that the defendant tied this special defense,
as he did all of his special defenses, to the notion that, at the time of the
incident, the plaintiff had been trespassing. See footnote 3 of this dis-
senting opinion.
6
In this regard, the fact that the plaintiff parked her car away from the
main driveway to the house and may have approached the house from the
rear does not bear on the question of her license or privilege to be on the
property. Neither does the suggestion that she may have known that the
defendant did not want her to come to the house that afternoon. A contrary
determination would be tantamount to saying that every time a couple’s
marital residence is titled in one partner’s name, the other partner may
come to or remain on the premise only at the whim of the title holding
spouse. Such a conclusion would defy common sense and finds no support
in public policy regarding marital relations.
7
The defendant’s notion, newly minted for this case, that the plaintiff was
a trespasser on the date of this event can fairly be attributed to the wisdom
gained with the passage of time and the ingenuity of counsel in formulating a
defense to this intentional assault. The record belies the defendant’s present
posture that the plaintiff could reasonably have been characterized as a
trespasser at the Sharon house on the date of the assault. This conclusion
is buttressed by a review of the pleadings in the parties’ marital dissolution
action filed by the defendant on March 18, 2010, approximately three months
after the assault, and approximately two years before this action was com-
menced. These pleadings contain averments and admissions by the present
defendant that contradict the notion of the plaintiff as a trespasser. See
Mesniaeff v. Burke, Superior Court, judicial district of Stamford-Norwalk,
Docket No. FA-10-4021756-S (April 17, 2014). At the outset, I note that we
may take judicial notice of court files between the same parties. See In re
Jeisean M., 270 Conn. 382, 402–403, 852 A.2d 643 (2004); Carpenter v.
Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979);
Guerriero v. Galasso, 144 Conn. 600, 605, 136 A.2d 497 (1957). In the dissolu-
tion matter, the defendant herein filed a motion on March 18, 2010, for
exclusive possession of the Sharon house in which he averred:
‘‘1. The plaintiff is presently living at the family residence located at 129/
135 North Main Street, Sharon, Connecticut.
‘‘2. The defendant has vacated the family residence located at 129/135
North Main Street, Sharon, Connecticut.
‘‘3. There are no children of the parties who reside in the family home
with the plaintiff.
‘‘Wherefore, the plaintiff prays the court for an order pursuant to Connecti-
cut General Statutes § 46b-83 prohibiting the defendant from reentering the
premises at 129/135 North Main Street, Sharon, Connecticut during the
pendency of this action or until a further order of the court.’’
The defendant’s characterization of the Sharon house as a family residence
in the marital dissolution action belies the notion that the plaintiff could,
just three months earlier, have been considered by him to be trespassing
on the property subject to his order to leave. The record of the marital
dissolution action reveals that the defendant filed two identically worded
motions on June 20, 2010, and December 7, 2010. Later, on October 11,
2012, however, after the present action was filed on January 3, 2012, the
defendant herein recast, in the dissolution action, his motion for exclusive
possession of the Sharon house, in which he newly referred to the property
as his residence and averred that his spouse lived in New York. It does not
appear from the record that any action was ever taken on any of these
motions. That history rebuts any claim, by the defendant herein, that he
considered the plaintiff to be a trespasser at the marital residence in Sharon
on December 5, 2009.
8
By way of illustration of this point, consider this different scenario: While
a defendant is dragging a plaintiff along a driveway and while there are
houseguests inside a nearby home, the plaintiff tells the defendant in a low
but menacing voice that she has a handgun in her purse and she intends,
as she struggles to get free, to go into the house to open fire on the women
inside. In this scenario, none of the houseguests hear the plaintiff’s lethal
threat. Their absence of fear would be irrelevant to a consideration as to
whether the defendant’s assaultive behavior against the plaintiff could be
justified as a reasonable reaction to the need to protect others.
9
When given the opportunity to state any objective basis for his subjective
belief that his houseguests were in threat of imminent harm from the plaintiff,
this exchange took place between the plaintiff’s counsel and the defendant:
‘‘Q. And [the plaintiff] never threatened to physically harm any of those
three women, isn’t that true?
‘‘A. No, that’s not true.
‘‘Q. Did she ever verbally say that she was going to hurt any of those
women?
‘‘A. I interpreted it that way. There was no direct statement to that effect
that I can recall, but I certainly got that impression.
‘‘Q. Did she say she was going to hurt anyone?
‘‘A. I don’t recall any such statements.
‘‘Q. Did you ever say that she never threatened them verbally?
‘‘A. I believe I may have.’’
Later, during the same cross-examination, this exchange took place:
‘‘Q. And, [the plaintiff] never threatened to hurt anyone, she never said
she was going to hurt you, isn’t that true?’’
‘‘A. I believe that’s true, yes.’’
It is noteworthy that the defendant did testify that in addition to his fears
about the plaintiff’s conduct, he was embarrassed by her behavior as well.
Pride, however, is no justification for violence.
10
During an exchange with the plaintiff’s counsel regarding the defendant’s
forcibly leading the plaintiff down the driveway, the following colloquy
took place:
‘‘Q. Okay. She was struggling with you to try to get free; is that correct?
‘‘A. I wouldn’t put it that way, but just—there was active resistance on
her part.
‘‘Q. Is active—there’s resistance, defined by you, as struggling to get free?
‘‘A. It coulda been. It doesn’t have to, though, sir.
‘‘Q. Well, I’m asking about on December 5, 2009. Did [the plaintiff’s] active
resistance consist of struggling to get away from you?
‘‘A. I don’t believe it did, no.’’
This admission by the defendant puts to lie his legal claim that his assault
was justified as a means of protecting his houseguests from harm. If, as he
acknowledged, the plaintiff was not trying to escape from his grasp, she
could not have, by any reasonable perspective, have presented any risk of
harm to others.

BISHOP, J., dissenting.

As noted by the majority, the operative complaint in this matter, filed on August 12, 2015, contains six counts, including one count alleging intentional assault and battery.

1

Following trial, the jury determined, as revealed by answers to interrogatories propounded to them, that the defendant, Gregory Mesniaeff, had, in fact, intentionally assaulted the plaintiff, Elizabeth Burke, and that his assault caused injuries and damages to her. The jury, however, found that the defendant had proven his special defense of justification and that he had acted in defense of others. Accordingly, the jury found in favor of the defendant. On
appeal, the plaintiff makes two principal arguments: that the court inappropriately instructed the jury on the law of criminal trespass and that the evidence was insufficient to sustain the jury's determination that the defendant's wilful assault against the plaintiff was justified under the
theory that he was acting in defense of others. While the majority acknowledges the possibility of some infirmity in the court's trespass instruction, my colleagues conclude that any such imperfection had no bearing on the judgment. Additionally, the majority has concluded that the evidence supports the jury's determination that the defendant was acting in defense of others. I respectfully disagree. In my view, the concept of the plaintiff as a trespasser in a marital residence of the parties had no place in the trial proceedings.

2

That wrong minded notion, however, coursed throughout the evidentiary portion of the trial and was prominent in the court's instructions to the jury as well as in defense counsel's closing argument, likely confusing the jury and, as a result, rendering its verdict unreliable.

Additionally, I part company with my colleagues regarding their conclusion that the evidence was sufficient to warrant the jury's determination that the defendant's need to protect others on the property justified his wilful assault upon the plaintiff. To the contrary, I believe the record is devoid of any objective evidence from which the defendant reasonably could have concluded that others present at the residence were under threat of harm from the plaintiff while he was engaged in his physical assault upon her. Accordingly, I respectfully dissent.

In this dissenting opinion, I first discuss the court's instructions on trespass; next, I discuss the adequacy of the evidence supporting the special defense relating to the defense of others.

At the outset, I note that the majority characterizes the plaintiff's instructional claims on appeal as relating only to the court's charge on two of the defendant's special defenses and concludes that because the jury did not find that the plaintiff was a trespasser, her claim was unavailing. I do not so narrowly construe the plaintiff's claims; rather, I understand that the plaintiff has asserted on appeal that the court should not have given any instruction on trespassing. Also, I do not share the majority's conclusion regarding the harmlessness of the court's jury instruction on the basis, as the majority claims, that the jury did not conclude that the plaintiff had been trespassing while under assault by the defendant. Indeed, I believe, respectfully, that the court's instruction on trespassing essentially concluded for the jury that the plaintiff was trespassing when, as an uninvited guest in her husband's home, she refused to leave when told to do so.

A fair analysis of the pleadings, evidence, and oral argument leads me to conclude that the plaintiff's status as an alleged trespasser at the time and place of the incident was bedrock to the defense of this civil assault and battery claim. The following supports this conclusion

During pretrial proceedings, the defendant filed several special defenses premised on the notion that his assault against the plaintiff was justified as self-defense, defense of others, or defense of property. All of these special defenses, as alleged by the defendant, were premised on the claim that the plaintiff was trespassing
on the defendant's property at the time of the incident.

3

In sum, the defendant's claim
that the plaintiff was a trespasser when he assaulted her was key to his defense. My conclusion in this regard is further buttressed by reference to the closing argument of the defendant's counsel and to the court's instructions to the jury.

In closing argument, after the evidentiary portion of the trial during which there was considerable, albeit disputed, evidence regarding the plaintiff's status while at the Sharon house, the defendant's counsel stated, in part: "She claimed at one point that she resides or resided at the Sharon house, that it was her house. The marital house is down in New Rochelle. This is complete fabrication. [The defendant] said she lived there two weeks a long time ago. That was it. It's not her-not her home, not her residence, never was. There's ...

uncontradicted testimony that [the defendant] is the sole owner of the property. It is his house." Later, the defendant's counsel returned to this theme when he claimed to the jury: "No one disputes that [the plaintiff] was told to leave the property. That's an important point. She was told she's got to leave the property. [The plaintiff] said she was told. She told that in-put that in the police report. She refused to leave the property. At that point, she was no longer a welcomed guest at the house. You'll see in our special defenses the legal language that the judge will tell you you need to follow. There's reasons why the laws are written the way they are. And for situations like this, there are laws that apply and you're gonna get those instructions. And you have to decide essentially did [the defendant] handle himself properly that day? Did he act reasonably? Did he not use excessive force to remove her from the property? I think the testimony and the evidence is that he used as much force as he had to use to keep her from getting back into the property. That was a reasonable thing for him to do by any standard."

True to the defendant's counsel's predictions, the court provided the jury with extensive instructions regarding the role of trespassing in the defendant's defenses. Respectfully, from my perspective, the court essentially told the jury that the plaintiff had been a trespasser. In part, the court commented to the jury: "The defendant alleges that on December 5, 2009, the plaintiff was trespassing on the premises and exhibiting disorderly conduct and/or creating a disturbance. The parties agree that the defendant did not invite the plaintiff
to the historic tour. In addition, the defendant alleges the plaintiff entered and/or remained on the property after she was directed to leave by him, the owner of the property, and that she refused to do so, among the other claims asserted with respect to trespassing. The plaintiff does not dispute that she was told to leave."
I agree with the majority's observation, albeit in a different legal context, that jurors are not required to leave their common sense at the courthouse door. In this instance, and in the absence of any charge to the jury regarding the plaintiff's entitlement to occupy the premises no matter which spouse held title, I believe, respectfully, that any reasonable juror would have concluded from this charge that the plaintiff's status as a trespasser during the incident in question was a foregone conclusion.

4

The court's instructions regarding the special defenses continued the theme of the plaintiff as a trespasser. As to the special defense of justification, the court instructed the jury as follows: "[A] person in possession or control of premises is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises." Thus, it is apparent that the notion of the plaintiff as a trespasser was central to the court's charge on the successful defense of justification. Justification, however, is not a standalone defense. As a matter of logic and law, the defense of justification must relate to some behavior which is alleged to have been justified. Here, the jury found that the defendant's assaultive behavior was justified and that justification was premised, as instructed
by the court, on the notion of the plaintiff as a trespasser on the defendant's property. In short, assuming the jury followed the court's justification charge, the one reasonable conclusion supported by the record is that the defendant was justified in assaulting the plaintiff as a means to eject her from the property titled only in his name and after she had refused to leave when told to do so. Thus, even though the court did not reiterate its instructions concerning trespassing when discussing the special defense relating to the defense of others, the instruction regarding the plaintiff as trespasser in the more general defense of justification cannot fairly be excised from our consideration of the viability of the jury's verdict.

As noted by the majority, at the conclusion of the evidence portion of the trial, the court submitted interrogatories to the jury, including those dealing with each of the defendant's special defenses. The jury's responses to two interrogatories were determinative of the plaintiff's claims. As reflected by their answers to the interrogatories, the jury found that the defendant's conduct toward the plaintiff constituted intentional assault and battery and that his intentional conduct was a substantial factor in causing or aggravating the plaintiff's injuries and damages. The jury found, however, in favor of the defendant
on two of his special defenses. Specifically, the jury determined that the doctrines of justification and defense of others barred the plaintiff's recovery.

In determining that the court's instruction on trespass was not harmful to the plaintiff, the majority fastens on the jury's response to the interrogatory related to the plaintiff's special defense regarding wrongful conduct by the plaintiff. The majority concludes that because the jury did not find that the plaintiff's wrongful conduct barred her recovery, the jury must have concluded that the plaintiff was not trespassing when she
was assaulted by the defendant. As noted, I do not believe this conclusion is warranted by the record. With respect to the special defense regarding the plaintiff's alleged wrongful conduct, the court instructed the jury as follows: "The defendant has also raised the defense of 'wrongful conduct,' claiming that the plaintiff is barred, in whole or in part, from pursuing her claims under the doctrine of wrongful conduct. The defendant alleges that on December 5, 2009, the plaintiff was trespassing on the premises and exhibiting disorderly conduct and/or creating a disturbance. The parties agree that the defendant did not invite the plaintiff to the historic tour. In addition, the defendant alleges the plaintiff entered and/or remained on the property after she was directed to leave by him, the owner of the property, and that she refused to do so, among the other claims asserted with respect to trespassing. The plaintiff does not dispute that she was told to leave. The defendant also alleges the plaintiff was exhibiting disorderly conduct and/or creating a public disturbance. The defendant also alleges that the plaintiff was assaulting and/or battering him during the incident of December 5, 2009. Under Connecticut law, a plaintiff may not maintain a civil action for injuries allegedly sustained as the direct result of her knowing and intentional participation in a criminal act. The wrongful conduct defense does not apply if you find that the plaintiff sustained injuries and damages independent of any wrongful conduct of the plaintiff. It further applies only if the plaintiff has violated the law in connection with the very transaction as to which she seeks redress or relief." Thus, the court's reference to wrongful conduct related to the defendant's claim that the plaintiff had been trespassing but also that she had been guilty of disorderly conduct and creating a public disturbance. Significantly, the court's charge in this regard included a component ignored by the majority that there must
be a nexus between the plaintiff's alleged wrongful conduct and the assault for this special defense to prevail. Thus, because the jury found that the defendant wilfully assaulted the plaintiff, it is entirely reasonable to deduce, from this interrogatory, that irrespective of whether the plaintiff was guilty of trespassing or disorderly conduct, the defendant's assault upon her was not sufficiently tied to her criminal conduct for this special defense to prevail.

Accordingly, I do not believe it is reasonable to glean from the jury's answer to the wrongful conduct interrogatory that the jury found that the plaintiff had not been trespassing when she was being assaulted by the defendant. Such a finding is neither compelled nor warranted by the jury's rejection of this special defense.

In sum, from my reading of the court's instructions and the jury's responses to interrogatories, it is reasonable to conclude as an overarching consideration, that the jury was influenced by the court's instruction on trespass and found that the plaintiff could not recover because, as a trespasser, she was susceptible to the defendant's claims regarding justification
and the defense of others.

5

I am troubled by this outcome for two principal reasons. As noted, I do not believe it was appropriate for the court, under these circumstances, to give the jury any instruction premised on the plaintiff being a trespasser. Secondly, even if the court could reasonably have given an instruction on criminal trespass, the court gave an incomplete and flawed trespass instruction by failing to further instruct the jury on the scienter element of trespass and on the question of whether the
plaintiff, as a nontitleholder, was nevertheless privileged to be on the property in light of her marriage to the defendant and the status of the Sharon house as a periodically shared marital residence.

In giving its instruction, the court followed the language of the criminal trespass statute, General Statutes § 53a-107 (a) (1), which states that a person commits criminal trespass when "[k]nowing that such person is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises ...." As I read that statute, it contains multiple parts, each necessary to the conclusion that one is a trespasser. In order to make such a determination, a fact finder would have to conclude (1) that a person knows he or she is not licensed to be on property, (2) that the person must, in fact, not be so licensed or privileged, (3) that the person must be ordered to leave by the owner, and (4) that the person must refuse such an order. In the present case, the court gave no guidance to the jury as to the meaning of the statute's prefatory language concerning whether a person is licensed or privileged to be on property owned by another. And, as noted, the court did not instruct the jury on the trespass statute's scienter requirement of proof that the nonowner must know that he or she is not licensed or privileged to be on the property in order to be guilty of trespassing. See

State

v.

Garrison

,

203 Conn. 466

, 474,

525 A.2d 498

(1987) ("[t]he actor's knowledge that he is not privileged or licensed to enter or to remain on the premises is a requirement of criminal trespass"). And yet, whether the plaintiff was privileged or licensed to be on the property and, if not, whether she knew so, are factors at the crux of the question of whether the plaintiff could be considered to have been trespassing under the then
existing circumstances.

6

Rather than provide an explanation of the meaning of these terms, the court dwelled, instead, on the fact that the property was owned by the defendant who had told the plaintiff to leave. The jury was, therefore, left with an incomplete understanding of how one can be found to be a trespasser.

Here, there was no evidence that the plaintiff trespassed on the property. To the contrary, there was considerable undisputed
evidence that she was licensed and privileged to be there. The record reflects that the parties were married in 1989 and that approximately ten years later, the defendant purchased the subject property in Sharon and took title in his own name. After the Sharon house was bought, the parties purchased a home in New Rochelle, New York, which became their primary residence.

The record supports the conclusion that, at the time of this incident, the parties were married and living together. During testimony, the defendant acknowledged that the plaintiff had a key to the Sharon house, that she had a right to be on the property, and that she kept clothing, furniture, furnishings, and kitchenware on the premises, which she retrieved from the premises after the incident. Laurel Powers, a friend of the plaintiff, also testified that the plaintiff kept clothing, furnishings, and other personal belongings in the Sharon house, which she assisted the plaintiff in retrieving after the
incident. Moreover, the plaintiff testified, without contradiction, that after the Sharon house was purchased, she selected the interior color scheme and painted the interior of the home. Also, although the defendant disputed the amount of time that the plaintiff had stayed in the Sharon house, he did not deny that she sometimes had occupied the home with him during the marriage.

Importantly, the defendant acknowledged, at trial, that on the date of the assault, he believed that the plaintiff had the right to be at the property because they were married and he did not perceive her as trespassing either when she first arrived or after he told her to leave.

7

Finally, it is noteworthy that both parties had Connecticut driver's licenses at the time of this incident. Because there was no trial evidence of any other Connecticut dwellings of the parties, this fact provides some indication that each considered the Sharon house to be a place of his and her residence.

On the basis of these facts, I do not believe there was any basis for the court to instruct the jury on the law of criminal trespass. In doing so, the court dwelled only on the fact that the property had been titled in the defendant's name and that, as the titleholder, he, at some point, told the plaintiff to leave and she refused. Because I believe this partial and incomplete instruction infected the jury's deliberations, the jury's verdict lacks reliability.

My point is best illustrated by the use of an example. Consider the following. John Jones and Mary Jones are married and reside in a home titled solely in John's name. On a Sunday afternoon, John announces to Mary that he has invited several of his male friends to come to the house to watch a sports event on afternoon television. Mary, however, does not like John's friends and detests watching sports. On hearing John's intentions, she strongly voices her displeasure and tells John that his friends are not welcome. She then leaves the residence on an errand. Later when she returns, and upon
seeing John's friends at the home, she loudly tells them that they are not welcome and orders them to leave. At that juncture, John reminds Mary that the house is in his own name and tells her to vacate. When she refuses, John calls the police and insists that Mary be arrested for criminal trespass for her refusal to leave the premises when ordered to do so by him. Under these circumstances, I do not believe a serious argument can be advanced that Mary has committed a trespass solely on the basis that John owns the property because, notwithstanding title ownership, Mary is licensed and privileged to be in the marital residence.

To me, the facts of the example are parallel to the circumstances we confront in this appeal, except for a legally insignificant disagreement between the parties as to how much time the plaintiff actually spent in the Sharon house during the marriage leading up to the defendant's assault on the plaintiff. I believe the actual amount of time each party spent at the Sharon house is unimportant because both parties understood the Sharon house to be a marital residence. In sum, the defendant's characterization of the Sharon house as a family residence and his own state of mind that the plaintiff was not a trespasser on the date of the incident should put to rest any notion of the plaintiff as a trespasser. The jury, however, was led to believe from the instructions that ownership was the pivot point for trespass and that the plaintiff's status as a trespasser could justify the defendant's assaultive behavior toward her. The jury was given no instruction concerning the facts and circumstances that could give rise to a nontitleholder's license or privilege to be present. In the absence of that explanation, in this case and beyond, a spouse without title to a marital residence dwells there only at the sufferance of the owner of title spouse, a circumstance ripe for abuse and one that cannot be harmonized with any reasonable public policy.

The plaintiff claims, as well, that there was insufficient evidence to support the jury's determination that, in assaulting the plaintiff, the defendant properly acted in defense of others. I agree.

"The defense of others, like self-defense, is a justification defense ... [which] operate[s] to exempt from punishment otherwise criminal conduct when the harm from such conduct is deemed to be outweighed by the need to avoid an even greater harm or to further a greater societal interest .... Thus, conduct that is found to be justified is, under the circumstances, not criminal." (Internal quotation marks omitted.)

State

v.

Bryan

,

307 Conn. 823

, 832-33,

60 A.3d 246

(2013). Furthermore, "in order to submit a defense of others defense to the jury, a defendant must introduce evidence that the defendant reasonably believed [the attacker's] unlawful violence to be imminent or immediate." (Internal quotation marks omitted.) Id., at 835,

60 A.3d 246

. The notion of a reasonable belief has two components: first, the actor must have an actual belief of an imminent danger to others and, second, that belief must be reasonable. Thus, in assessing a defense of others claim, we utilize what has come to be known as a subjective-objective test. See id., at 836,

60 A.3d 246

;

State

v.

DeJesus

,

194 Conn. 376

, 389 n.13,

481 A.2d 1277

(1984) ;

State

v.

Croom

,

166 Conn. 226

, 229-30,

348 A.2d 556

(1974). That is, the actor must believe that the danger is actual and imminent and the actor's belief must be reasonable by an objective standard.

In this appeal, the relevant evidence from the record is that when the plaintiff approached the Sharon house, the defendant was inside the residence with three women who were guests on an historic house tour. The evidence supports the conclusion that when the plaintiff arrived on the porch, she yelled out in questioning who the women were and that the defendant immediately
went to the plaintiff, grabbed her by the arm, and forcibly led her away from the house while she continued to loudly demand to know the identities of the women in the house, while also screaming, "Help, help! Call the police." The evidence further reveals that once the defendant had brought the plaintiff close to the road, the plaintiff was either thrown or fell into a snow bank in such a manner that Pierce Kearney, a stranger who was then driving by the property, stopped, exited his vehicle, and ran across the road in an effort to stop the defendant from behavior he thought was assaultive. The defendant assured him that the situation was all right with the statement: "It's okay, she's my wife," to which Kearney responded, "No, this is over." Finally, the record reveals that the women who had remained inside the house were upset and fearful, one testifying that she did not know if the plaintiff might have been armed with a weapon.

In finding this evidence sufficient to support the jury's determination that the defendant acted reasonably in defense of others, the majority appears to rely on the testimony of the tour guests, concluding that their fears were objectively reasonable. Respectfully, I believe this analysis is wide of the mark. The extent of fear and hysteria of the defendant's house tour guests is, in no way, a measure of the reasonableness of the defendant's assaultive behavior. In other words, the issue at hand is not the reaction of the houseguests or the reasonableness of their fears; rather, it is the objective reasonableness of the defendant's claimed belief that the houseguests were in imminent danger of physical harm from the plaintiff.

8

And, in this
regard, the record is
bereft of any evidence that, at any time, the plaintiff, by gesture or words, made any threats against the houseguests. Time and time again during the trial, the defendant was given the opportunity to state the objective basis for a reasonable belief that the houseguests were at risk of physical harm and, time and time again, he could offer no evidence except for his subjective belief that his guests were in peril from the plaintiff.

9

As noted, the defendant's belief, alone, that others might be in harm's way is insufficient, as a matter of law, to justify his assault upon the plaintiff. Furthermore, the defendant's own admissions at trial put the denial to his defense of others special defense.

10

Accordingly,
I believe, that as a matter of law, the evidence was insufficient to warrant a verdict based on the defendant's special defense that he was acting in defense of others when he wilfully assaulted the plaintiff.

For the reasons stated, I would reverse and remand for retrial. Accordingly, I respectfully dissent.

The record reveals that the complaint in this matter was initially filed on January 3, 2012.

While the plaintiff framed her claim of rightful access to the Sharon house as a spouse's right to marital property, she makes it clear in her briefing that her claim relates more broadly to the notion that the evidence amply demonstrated that the Sharon house was a residence purchased and periodically shared by the parties during the marriage and, thus, a property she was entitled to occupy during the marriage.

The relevant special defenses are as follows:

"Fourth Special Defense: Wrongful Conduct

"The plaintiff is barred, in whole or in part, from pursuing her claims under the doctrine of wrongful conduct. On December 5, 2009, the plaintiff was trespassing on the premises. The plaintiff exhibited disorderly conduct and/or was creating a public disturbance. In addition, the plaintiff was assaulting and/or battering the defendant. The plaintiff's actions on December 5, 2009, were made knowingly and intentionally....

"Seventh Special Defense: Self-Defense

"With respect to the allegations of December 5, 2009, any actions taken by the defendant were in self-defense. The plaintiff was trespassing at the time of the incident and was assaulting and/or battering the defendant.

"Eighth Special Defense: Defense of others

"With respect to the allegations of December 5, 2009, any actions taken by the defendant were in defense of others. The plaintiff was trespassing at the time of the incident and was acting in a disorderly manner.

"Ninth Special Defense: Justification

"At the time of the incident, the plaintiff was trespassing on the defendant's property. The plaintiff, knowing that she was not licensed or privileged to do so, entered and remained on the property. Despite the defendant, who is the owner of the property, directing her to leave, the plaintiff refused to do so. The plaintiff then continued to exhibit disorderly conduct and/or create a public disturbance. As such, the defendant was justified in using reasonable force in escorting the plaintiff from the premises."

The majority notes that the court did not instruct the jury that the defendant had to prove that the plaintiff was trespassing at the Sharon house. Given the court's marshaling of evidence in this regard and the absence of any countervailing instruction on whether the plaintiff was nonetheless entitled to be on the property, the court may have considered such a question to be unnecessary and that the only worthy questions for the jury regarding the special defenses concerned whether the defendant's conduct in forcibly removing the uninvited plaintiff from his property was proportional to the risk her presence and demeanor created to him, the property, or to others.

Although the court's instructions on the special defense of defense of others was minimal, I am mindful that the defendant tied this special defense, as he did all of his special defenses, to the notion that, at the time of the incident, the plaintiff had been trespassing. See footnote 3 of this dissenting opinion.

In this regard, the fact that the plaintiff parked her car away from the main driveway to the house and may have approached the house from the rear does not bear on the question of her license or privilege to be on the property. Neither does the suggestion that she may have known that the defendant did not want her to come to the house that afternoon. A contrary determination would be tantamount to saying that every time a couple's marital residence is titled in one partner's name, the other partner may come to or remain on the premise only at the whim of the title holding spouse. Such a conclusion would defy common sense and finds no support in public policy regarding marital relations.

The defendant's notion, newly minted for this case, that the plaintiff was a trespasser on the date of this event can fairly be attributed to the wisdom gained with the passage of time and the ingenuity of counsel in formulating a defense to this intentional assault. The record belies the defendant's present posture that the plaintiff could reasonably have been characterized as a trespasser at the Sharon house on the date of the assault. This conclusion is buttressed by a review of the pleadings in the parties' marital dissolution action filed by the defendant on March 18, 2010, approximately three months after the assault, and approximately two years before this action was commenced. These pleadings contain averments and admissions by the present defendant that contradict the notion of the plaintiff as a trespasser. See

Mesniaeff

v.

Burke

, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA-10-4021756-S,

2014 WL 2245632

(April 17, 2014). At the outset, I note that we may take judicial notice of court files between the same parties. See

In re Jeisean M.

,

270 Conn. 382

, 402-403,

852 A.2d 643

(2004) ;

Carpenter

v.

Planning & Zoning Commission

,

176 Conn. 581

, 591,

409 A.2d 1029

(1979) ;

Guerriero

v.

Galasso

,

144 Conn. 600

, 605,

136 A.2d 497

(1957). In the dissolution matter, the defendant herein filed a motion on March 18, 2010, for exclusive possession of the Sharon house in which he averred:

"1. The plaintiff is presently living at the family residence located at 129/135 North Main Street, Sharon, Connecticut.

"2. The defendant has vacated the family residence located at 129/135 North Main Street, Sharon, Connecticut.

"3. There are no children of the parties who reside in the family home with the plaintiff.

"Wherefore, the plaintiff prays the court for an order pursuant to Connecticut General Statutes § 46b-83 prohibiting the defendant from reentering the premises at 129/135 North Main Street, Sharon, Connecticut during the pendency of this action or until a further order of the court."

The defendant's characterization of the Sharon house as a family residence in the marital dissolution action belies the notion that the plaintiff could, just three months earlier, have been considered by him to be trespassing on the property subject to his order to leave. The record of the marital dissolution action reveals that the defendant filed two identically worded motions on June 20, 2010, and December 7, 2010. Later, on October 11, 2012, however, after the present action was filed on January 3, 2012, the defendant herein recast, in the dissolution action, his motion for exclusive possession of the Sharon house, in which he newly referred to the property as his residence and averred that his spouse lived in New York. It does not appear from the record that any action was ever taken on any of these motions. That history rebuts any claim, by the defendant herein, that he considered the plaintiff to be a trespasser at the marital residence in Sharon on December 5, 2009.

By way of illustration of this point, consider this different scenario: While a defendant is dragging a plaintiff along a driveway and while there are houseguests inside a nearby home, the plaintiff tells the defendant in a low but menacing voice that she has a handgun in her purse and she intends, as she struggles to get free, to go into the house to open fire on the women inside. In this scenario, none of the houseguests hear the plaintiff's lethal threat. Their absence of fear would be irrelevant to a consideration as to whether the defendant's assaultive behavior against the plaintiff could be justified as a reasonable reaction to the need to protect others.

When given the opportunity to state any objective basis for his subjective belief that his houseguests were in threat of imminent harm from the plaintiff, this exchange took place between the plaintiff's counsel and the defendant:

"Q. And [the plaintiff] never threatened to physically harm any of those three women, isn't that true?

"A. No, that's not true.

"Q. Did she ever verbally say that she was going to hurt any of those women?

"A. I interpreted it that way. There was no direct statement to that effect that I can recall, but I certainly got that impression.

"Q. Did she say she was going to hurt anyone?

"A. I don't recall any such statements.

"Q. Did you ever say that she never threatened them verbally?

"A. I believe I may have."

Later, during the same cross-examination, this exchange took place:

"Q. And, [the plaintiff] never threatened to hurt anyone, she never said she was going to hurt you, isn't that true?"

"A. I believe that's true, yes."

It is noteworthy that the defendant did testify that in addition to his fears about the plaintiff's conduct, he was embarrassed by her behavior as well. Pride, however, is no justification for violence.

During an exchange with the plaintiff's counsel regarding the defendant's forcibly leading the plaintiff down the driveway, the following colloquy took place:

"Q. Okay. She was struggling with you to try to get free; is that correct?

"A. I wouldn't put it that way, but just-there was active resistance on her part.

"Q. Is active-there's resistance, defined by you, as struggling to get free?

"A. It coulda been. It doesn't have to, though, sir.

"Q. Well, I'm asking about on December 5, 2009. Did [the plaintiff's] active resistance consist of struggling to get away from you?

"A. I don't believe it did, no."

This admission by the defendant puts to lie his legal claim that his assault was justified as a means of protecting his houseguests from harm. If, as he acknowledged, the plaintiff was not trying to escape from his grasp, she could not have, by any reasonable perspective, have presented any risk of harm to others.

LAVINE, J.

In this personal injury action, the plaintiff, Elizabeth Burke, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, her former husband Gregory Mesniaeff. On appeal, the plaintiff claims that (1) the court improperly charged the jury on the defendant's special defense of justification and (2) the special defense of defense of others was legally and factually barred. We affirm the judgment of the trial court.

The following relevant evidence was presented to the jury. The plaintiff and the defendant married one another in 1989. On December 5, 2009, the date of the incident that is the subject of the present appeal (incident), the parties resided together in their home in New Rochelle, New York. The defendant, however, purchased a house in Sharon in 1998 and recorded the
deed in his name alone. According to the defendant, the plaintiff never lived in the Sharon house, except for two weeks in August, 2002. The plaintiff, however, testified that the parties spent extensive amounts of time at the Sharon house. She testified that she had painted the interior of the house in a color scheme that she had selected, had a key to the house, and kept clothing and other personal belongings there.

The defendant was a member of a historic preservation organization called The Questers. The Questers facilitated a tour of the Sharon house that the defendant arranged to take place between 2:30 and 4 p.m. on December 5, 2009. The defendant intentionally did not tell the plaintiff about the tour, did not invite her to attend, and did not want her to attend because she was not a member of The Questers. He also was "afraid that there could be some problems if she was there."

1

The plaintiff, however, learned of the tour the morning of December 5, 2009, when she went online to find out when the Sharon Christmas tree lighting ceremony was to take place. While she was online, she saw The Questers' posting regarding the tour of the Sharon house. The plaintiff was concerned about the cleanliness of the Sharon house because the defendant set cleaning limits. She telephoned the defendant at his Manhattan office, but was unable to reach him. According to the plaintiff, the parties had plans to attend a Christmas party in Manhattan that evening, but the defendant denied having such plans.

Although it snowed on December 5, 2009, the plaintiff drove to Sharon because the defendant had been "lying to [her] about everything and [she] knew that when
[she] met him in Manhattan later that night, he would deny that such a tour took place. And [she] couldn't take the lying anymore and he would deny it and [she] was hoping to talk to him and figure out why he was lying to [her] about everything." On her way to Sharon, the plaintiff called some of her friends to advise them that she was going to surprise and confront the defendant about his alleged lying. She also stopped at Powers' greenhouse and told Laurel Powers and Eddie Powers that the defendant "had been physically violent with [her] before and there was a possibility that that could happen again so [she] wanted them to make sure that they heard from [her] and to check on [her]." As a safety precaution, the plaintiff planned to arrive at the end of the tour when people were still in the house.

The plaintiff arrived at the Sharon house at approximately 4:15 p.m. Three women, Anne Teasdale, Suzanne Chase Osborne, and Lauren Silberman, were taking part in the tour when she arrived. The plaintiff did not park her car in the driveway, but near the guest cottage and walked down the driveway to the Sharon house. She entered the house by the back entry. Teasdale testified that, when the plaintiff walked into the house, she was yelling. According to one of the guests, the plaintiff
was out of control when she entered the house, shrieking and yelling, "who is that woman and what is she doing in my house." One guest "didn't know if our lives were in danger [or if the plaintiff] had a gun and she was going to go after [the defendant]."

The defendant testified that when the plaintiff entered the house, she was enraged, repeatedly screaming in a shrill voice: "Who is that woman? Why is she in my house?" The defendant confronted the plaintiff and stated, "you are leaving now." The plaintiff admitted that the defendant asked her to leave. The defendant took the plaintiff by the upper right arm and walked her down the driveway. Out a window, one of the guests
saw the defendant holding the plaintiff by the arm. While they were walking down the driveway, the plaintiff attempted to break from the defendant's grasp and return to the house. The plaintiff was screaming, and one of the guests "was really worried about our safety, my safety, everyone's safety."

According to the defendant, while he and the plaintiff were walking down the driveway, the plaintiff resisted and attempted to strike him in the face. He admitted that he restrained the plaintiff from returning to the Sharon house where the guests remained. He also admitted that he caused bruises to the plaintiff's upper arm, but he denied that he caused other injuries to the plaintiff.

The plaintiff's version of the incident differs from that of the defendant. She denied that she tried to strike the defendant. According to her, the defendant grabbed her by the arm, pulled her away from the Sharon house, put her in a headlock, and dragged her down the driveway and up the sidewalk toward the Sharon Center School. While he was dragging her, the defendant forcefully threw the plaintiff to the ground several times and pulled her up by her arm. The plaintiff screamed: "Help, help! Call the police!" The defendant denied throwing the plaintiff to the ground but testified that the plaintiff slipped once or twice on the snow and that he helped her up.

At the time, Pierce Kearney and his wife were driving by on their way to the Christmas tree lighting ceremony on the Sharon green. Kearney saw the plaintiff being pushed into the snow. He slowed down, opened the window, and heard the plaintiff calling for someone to call the police. Kearney thought that the defendant was handling the plaintiff in an aggressive fashion. He got out of his vehicle and approached the parties, who then separated. The defendant stated to him, "It's okay, she's
my wife." Kearney got between the parties and stated, "No, this is over." Kearney's wife called the police. The defendant left the sidewalk, returned to the Sharon house, and departed with the tour guests.

The plaintiff commenced the present action on December 6, 2011.

2

Trial commenced on August 4, 2015. Following the presentation of evidence, the court held a charge conference on the record, at which time the court heard considerable argument from the parties' counsel with respect to its proposed instructions. The parties, however, agreed on the interrogatories that were submitted to the jury.

3

The jury returned a defendant's verdict on August 18, 2015. Although the jury
found that the defendant's conduct toward the plaintiff on December 5, 2009, constituted intentional assault and battery and was a substantial factor in causing the plaintiff's injuries, it also found that the plaintiff's recovery was barred by the special defenses of justification and defense of others. See footnotes 3 and 6 of this opinion. The court rendered judgment in favor of the defendant, and the plaintiff appealed.

4

The plaintiff's claims on appeal center on the court's jury charge. We therefore set forth the applicable standard of review. "Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and ... are not to be judged in artificial isolation from the overall charge.... The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict ... and not critically dissected in a microscopic search for possible error.... The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict.... We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial....

"Our standard of review on this claim is whether it was reasonably probable that the jury was misled....

The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Internal quotation marks omitted.)

Opotzner

v.

Bass

,

63 Conn. App. 555

, 558-59,

777 A.2d 718

, cert. denied,

257 Conn. 910

,

782 A.2d 134

(2001), cert. denied,

259 Conn. 930

,

793 A.2d 1086

(2002).

To determine whether the court properly charged the jury, we look to the law regarding a court's instructions. "Jury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case." (Internal quotation marks omitted.)

Cooks

v.

O'Brien Properties, Inc.

,

48 Conn. App. 339

, 350,

710 A.2d 788

(1998). "[P]leadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.... The purpose of a complaint, special defense or counterclaims is to limit the issues at trial, and such pleadings are calculated to prevent surprise." (Citation omitted; internal quotation marks omitted.)

Shapero

v.

Mercede

,

77 Conn. App. 497

, 503,

823 A.2d 1263

(2003). We therefore briefly review the allegations of the parties' pleadings as they form the framework of the court's jury charge.

The plaintiff amended her complaint several times. Although she filed the operative complaint at the close of evidence to conform her alleged injuries to the evidence, the relevant allegations are consistent with her
March 20, 2015 amended complaint. It alleges six counts against the defendant: intentional assault and battery, reckless assault and battery, negligent assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and reckless infliction of emotional distress. The plaintiff also alleged that, as a direct and proximate result of the defendant's assault and battery, she sustained numerous injuries, including injuries to her left arm, neck, lower back, hip, and leg, and experienced depression, anxiety, and an aggravation of her lupus condition.

5

The allegations that
are relevant to the plaintiff's instructional claim are that the defendant was the owner of the Sharon house and that she was married to him on the date of the incident.

On May 1, 2015, the defendant filed an amended answer and special defenses in response to the plaintiff's amended complaint dated March 20, 2015. He admitted that he was the owner of the Sharon house and that he was married to the plaintiff on the date of the incident. He denied the allegations as to his conduct and that he caused the plaintiff's alleged injuries. He also alleged thirteen special defenses, some of which were equitable in nature. The plaintiff moved to strike the equitable special defenses, and on May 28, 2015, the defendant filed nine amended special defenses. In four of his special defenses, the defendant alleged that at the time of the incident the plaintiff was

trespassing

.

6

The plaintiff did not file a request to revise or a motion to strike the trespassing allegations, but merely filed a single general denial of all of the special defenses.

I

The plaintiff claims that the court improperly charged the jury with respect to the defendant's special defense of justification by incorporating a charge on criminal trespass.

7

More specifically, the plaintiff
claims that (1)
as a matter of law, she could not have been trespassing on marital property, (2) the defendant failed to plead that his special defenses relied on a criminal statute, and (3) it was plain error for the court not to include an instruction on the duty to retreat and the mere words doctrine. We conclude that the jury was not misled by the court's instruction, and, therefore, the plaintiff's claim fails.

The plaintiff takes issue with the following portion of the court's charge. "The defendant has also raised the defense of 'wrongful conduct,' claiming that the plaintiff
is barred, in whole or in part, from pursuing her claims under the doctrine of wrongful conduct.

"The defendant alleges that on December 5, 2009, the plaintiff was trespassing on the premises and exhibiting disorderly conduct and/or creating a disturbance. The parties agree that the defendant did not invite the plaintiff to the historic tour. In addition, the defendant alleges the plaintiff entered and/or remained on the property after she was directed to leave by him, the owner of the property, and that she refused to do so, among other claims asserted with respect to trespassing. The plaintiff does not dispute that she was told to leave. The defendant also alleges that the plaintiff was exhibiting disorderly conduct and/or creating a public disturbance. The defendant also alleges that the plaintiff was assaulting and/or battering him during the incident of December 5, 2009.

"Under Connecticut law, a plaintiff may not maintain a civil action for injuries allegedly sustained as the direct result of her knowing and intentional participation in a criminal act. The wrongful conduct defense
does not apply if you find that the plaintiff sustained injuries and damages independent of any wrongful conduct of the plaintiff. It further applies only if the plaintiff has violated the law in connection with the very transaction as to which she seeks redress or relief."

A

The plaintiff claims that the court improperly gave a criminal trespass charge because, as a matter of law, she could not trespass at the Sharon house because it was marital property.

8

The gist of the plaintiff's claim is that because on the date of the incident she was married to the defendant, who owned the Sharon house, she had a right to be on the premises and, therefore, could not trespass. We need not determine whether the plaintiff had a right to be on the premises because the jury did not find that she was trespassing. The portion of the charge to which the plaintiff takes exception pertains to the defendant's fourth special defense: wrongful conduct. See footnotes 6 and 7 of this opinion. The jury found that the plaintiff's recovery was not barred by the doctrine of wrongful conduct. See footnote 3 of this opinion. In common parlance, trespassing is understood to be a form of wrongful conduct. We therefore construe the jury's findings to indicate it decided that the plaintiff was not trespassing. Even if we were to assume, which we do not, that the jury was misled by the inclusion of the criminal trespass charge in the court's instruction, the plaintiff was not harmed because the jury found that her recovery was not barred by the doctrine of wrongful conduct.

B

The plaintiff claims that it was improper for the court to include the charge of criminal trespass in its instruction because she did not have notice of the statute on which the defendant was relying. We agree with the plaintiff that our rules of practice provide that when a special defense is "grounded on a statute, the statute shall be specifically identified by its
number." Practice Book § 10-3 (a). The plaintiff, however, has not demonstrated that she was harmed by the court's instruction that used the term criminal trespass. As discussed, the jury did not find that her claims were barred by the defendant's wrongful conduct special defense.

As previously noted, there was considerable disagreement between the parties with respect to the court's proposed jury instruction. During the charge conference, counsel for the plaintiff informed the court that the defendant's justification special defense was grounded in the defense of premises statute, which includes criminal trespass.

9

The plaintiff's counsel, therefore, objected to the court's proposed trespass charge on the ground that a spouse cannot trespass on marital property and that the defendant had failed to allege the statute number in his special defense as required by the rules of practice.

The following colloquy then took place between the court and counsel for the plaintiff:

"The Court: [Y]ou know ... I wish there had been a motion to strike. I mean ... look at some of these things and I'm saying that's ... but you know ...

we're late in the day.... [W]e've had a trial. We've had pleadings now that have survived all that.

"[The Plaintiff's Counsel]: And it was late, and I didn't want ... I was going to have to go and ... and wait another six months to a year to get a new trial date if I pursued the motion to strike. That was ... and so a decision was made and ... my decision was made but that it's now up to ... the court to charge the things out. Okay. So, I had ... to go, and I had to make a tactical decision of delaying this trial for an extended period of time to be able to go and ... have motions for summary judgment, motions [to] strike, and things like that, or to go to trial and have the trial judge at this moment in time have to make the tough calls on the fly as opposed to ... in your chambers with ... the leisure of four months to be able to go and do it."

10

Counsel for the defendant argued that it was disingenuous of the plaintiff's counsel to make an issue of the statute number when the plaintiff failed to file a request to revise or a motion to strike. The defendant's counsel stated: "I think they have a duty to raise it, Your Honor ... previously ... if they're going to raise it today. They amended their complaint yesterday mid-trial, and now they're saying, well, we couldn't put in the statute that for months now we've been saying the same thing. And with respect to marital property, I think that is incorrect. This isn't marital property. The property was bought in his name, titled in his name."

The court was not persuaded by the arguments of the plaintiff's counsel, noting that although it was the
defendant's duty to plead the statute number, both parties had offered evidence on the issue of trespass. The court ruled
that it was not going to exclude the trespass charge, as trespass was alleged several times in the defendant's special defenses, which was sufficient to put the plaintiff on notice. Despite its concern that the parties had not adhered to the rules of practice,

11

the court observed that the rules of practice are not to be applied so strictly as to work an injustice.

12

The court, therefore, charged the jury on the defendant's special defenses, including criminal trespass.

13

"Although Practice Book § 10-3 (a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory.... [When] the [opposing party] is sufficiently apprised of the nature of the action ... the failure to comply with the directive of Practice Book § 10-3 (a) will not bar recovery." (Internal quotation
marks omitted.)

Colon

v.

Board of Education

,

60 Conn. App. 178

, 188 n.4,

758 A.2d 900

, cert. denied,

255 Conn. 908

,

763 A.2d 1034

(2000) ; see also

Spears

v.

Garcia

,

66 Conn. App. 669

, 676,

785 A.2d 1181

(2001), aff'd,

263 Conn. 22

,

818 A.2d 37

(2003).

Although this is a civil action, the first count of the plaintiff's complaint alleges a criminal act, to wit: "the [d]efendant wilfully, intentionally and maliciously assaulted and battered the [p]laintiff." In response, the defendant alleged trespass in a number of his special defenses and, in his ninth special defense, that the plaintiff exhibited disorderly conduct and/or was creating a public disturbance. See footnote 6 of this opinion. Notably, the plaintiff was on notice of the defendant's defense, and her counsel made a tactical decision not to file a request to revise or a motion to strike any of the defendant's special defenses.

We conclude that the jury was not misled by the use of the word

trespass

in the court's charge. Although the court mentioned the commission of a criminal trespass, which it then defined, as an example of a justification defense permitting the use of reasonable physical force, the court went on to instruct the jury that the three justification defenses that the defendant alleged were self-defense, defense of others, and wrongful conduct as to the incident on December 5, 2009. See footnote 7 of this opinion. The fact that the court only charged on these three special defenses is
further supported by the jury interrogatories, as the jury was not asked to determine whether the plaintiff's recovery was barred by the special defense of justification based on the defense of one's premises.

With respect to the court's instruction on the special defenses of defense of others and self-defense, the court properly did not advise the jury that the defendant had to prove that the plaintiff was trespassing as an element
of either of these special defenses. In fact, the court never mentioned the word trespassing in its instructions on these two special defenses.

As to the special defense of wrongful conduct, the court clearly instructed the jury that it would have to find that, during the incident on December 5, 2009, the plaintiff knowingly and intentionally participated in one of four criminal acts by criminally trespassing, exhibiting disorderly conduct, creating a public disturbance, or assaulting the defendant.

The jury answered interrogatories indicating that it had found that the plaintiff's claims were not barred by the special defenses of self-defense and wrongful conduct, but were barred by the special defense of defense of others. Because the court charged that the special defense of wrongful conduct required proof that the plaintiff had knowingly and intentionally participated in a criminal act by either criminally trespassing, exhibiting disorderly conduct, creating a public disturbance or assaulting the defendant, the jury, in finding that the defendant had failed to prove this special defense, concluded that the plaintiff had not violated the law, which necessarily included finding that she had not committed criminal trespass. Therefore, the plaintiff cannot prevail on this claim of an improper jury instruction.

C

The plaintiff claims that the court improperly charged the jury by failing to instruct that the defendant had a duty to retreat in the Sharon house because she was a codweller. See

State

v.

Shaw

,

185 Conn. 372

, 382,

441 A.2d 561

(1981), cert. denied,

454 U.S. 1155

,

102 S.Ct. 1027

,

71 L.Ed.2d 312

(1982). The plaintiff's claim is predicated on her belief that she dwelled in the Sharon house. We need not determine, however, whether she
dwelled in the Sharon house. The plaintiff did not preserve this claim at trial and seeks reversal of the judgment pursuant to the plain error doctrine. The plaintiff cannot prevail because the duty to retreat exception on which she relies pertains to the use of deadly force, which is not an issue in this case.

General Statutes § 53a-19 provides in relevant part that "(a) ... a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose ... (b) ... a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he or she is in his dwelling ...." "The dwelling exception to the duty to retreat does not apply, however, if the actor is threatened by another person who also dwells in the same place." (Internal quotation marks omitted.)

State

v.

James

,

54 Conn. App. 26

, 33,

734 A.2d 1012

, cert. denied,

251 Conn. 903

,

738 A.2d 1092

(1999). The court, therefore, properly did not charge the jury that the defendant had
a duty to retreat.

14

II

The plaintiff's last claim is that the defense of others special defense was legally and factually barred because there was insufficient evidence that the defendant was acting in defense of others when he assaulted her. When
reviewing sufficiency of the evidence claims we must determine "

in the light most favorable to sustaining the verdict

, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict ...." (Emphasis in original; internal quotation marks omitted.)

Gaudio

v.

Griffin Health Services Corp.

,

249 Conn. 523

, 534,

733 A.2d 197

(1999).

The defense of defense of others is codified in General Statutes § 53a-19 (a). "The defense of others, like self-defense, is a justification defense. These defenses operate to exempt from punishment otherwise criminal conduct when the harm from such conduct is deemed to be outweighed by the need to avoid an even greater harm or to further a greater societal interest." (Internal quotation marks omitted.)

State

v.

Bryan

,

307 Conn. 823

, 832-33,

60 A.3d 246

(2013). "[T]he defendant bears the initial burden of producing sufficient evidence to raise the issue[s] of self-defense [and defense of others], this burden is slight."

State

v.

Terwilliger

,

105 Conn. App. 219

, 224 n.5,

937 A.2d 735

(2008), aff'd,

294 Conn. 399

,

984 A.2d 721

(2009).

"[I]t is not the function of this court to sit as a seventh juror when we review the sufficiency of the evidence ... rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict .... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.... In other words, [i]f the jury

could

reasonably have reached its conclusion, the verdict must stand ...." (Emphasis added; internal quotation marks omitted.)

Mann

v.

Regan

,

108 Conn. App. 566

, 579,

948 A.2d 1075

(2008).

On the basis of our review of the evidence, we conclude that there was sufficient evidence upon which
the jury reasonably could have reached its verdict that the defendant was acting in defense of others when he escorted the plaintiff from the Sharon house. Prior to arriving at the Sharon house, the plaintiff told some of her friends that she was going to the Sharon house during a house tour to surprise and confront the defendant about his "lying." When she arrived at the Sharon house, she did not park in the driveway but at the guest cottage. She entered the house from the rear and began to scream, "who is that woman and what is she doing in my house." The plaintiff was enraged and tour guests were fearful of her behavior. At least one guest was worried that the plaintiff may have had a gun.

15

The defendant told the plaintiff to leave and escorted her from the house. The plaintiff
resisted the defendant's escort and attempted to strike him and to break loose from his hold to return to the house. Under those circumstances, the jury reasonably could have found that the defendant's response was reasonable in the face of the plaintiff's unexpectedly entering the house and shouting in a loud and aggressive manner.

16

Moreover,
the jury reasonably could have found that the defendant took the plaintiff by the arm to escort her from the house and used reasonable physical force in the defense of others. On the basis of our review of the record, notwithstanding the fact that the charge to the jury was less than perfect, we conclude that the jury's verdict is supported by the evidence and by its common sense evaluation of what happened during the incident. The plaintiff's claim of insufficient evidence therefore fails.

17

The judgment is affirmed.

In this opinion KELLER, J., concurred.

The parties had been experiencing marital difficulties for approximately one year prior to the incident. In the week before to the incident, the plaintiff consulted a divorce attorney. Subsequent to the incident, the defendant commenced an action for the dissolution of the parties' marriage; the parties were divorced at the time of trial in the present matter.

The plaintiff placed the writ of summons and complaint in the hands of a marshal on December 2, 2011, pursuant to General Statutes § 52-593a.

The court submitted the following interrogatories to the jury. The jury's responses to the interrogatories are key to our resolution of the plaintiff's claim that the court's instruction misled the jury. The plaintiff's verdict form included, in part, the following questions; the jury's answers are in brackets.

"1.

Assault and Battery (Answer All)

1. Assault and Battery (Answer All)a. We find that the conduct of [the defendant] on December 5, 2009 constituted intentional assault and battery.

"Yes __[X]___ No ____

b. We find that the conduct of [the defendant] on December 5, 2009 constituted reckless assault and battery.

"Yes ____ No __[X]___

c. We find the conduct of [the defendant] on December 5, 2009 constituted negligent assault and battery.

"Yes ____ No __[X]___

2. Infliction of Emotional Distress (Answer All)a. We find that the conduct of [the defendant] on December 5, 2009 constituted intentional infliction of emotional distress.

"Yes ____ No __[X]___

b. We find that the conduct of [the defendant] on December 5, 2009 constituted negligent infliction of emotional distress.

"Yes ____ No __[X]___

3. Proximate CauseWe find that the conduct of [the defendant] on December 5, 2009 was a substantial factor in causing or aggravating the injuries and damages of [the plaintiff].

"Yes __[X]___ No ____

(If you answered no, you must render a Defendant's Verdict, using the Defendant's verdict form.)4. Defendant's Defenses (Answer all)a. We find Plaintiff's recovery is barred by the doctrine of justification

"Yes __[X]___ No ____

b. We find Plaintiff's recovery is barred by the doctrine of self-defense

"Yes ___ No __[X]___

c. We find Plaintiff's recovery is barred by the doctrine of defense of others

"Yes __[X]___ No ____

d. We find Plaintiff's recovery is barred by the doctrine of wrongful conduct

"Yes ____ No __[X]___...."

The plaintiff did not file a motion to set aside the verdict.

The plaintiff presented evidence that she incurred damages of $267,512.95 for medical care and treatment.

The defendant's relevant special defenses alleged in part:

"Fourth Special Defense: Wrongful Conduct

"The plaintiff is barred, in whole or in part, from pursuing her claims under the doctrine of wrongful conduct. On December 5, 2009, the plaintiff was

trespassing

on the premises. The plaintiff exhibited disorderly conduct and/or was creating a public disturbance. In addition, the plaintiff was assaulting and/or battering the defendant....

"Seventh Special Defense: Self Defense

"With respect to the allegations of December 5, 2009, any actions taken by the defendant were in self-defense. The plaintiff was

trespassing

at the time of the incident and was assaulting and/or battering the defendant.

"Eighth Special Defense: Defense of others

"With respect to the allegations of December 5, 2009, any actions taken by the defendant were in defense of others. The plaintiff was

trespassing

at the time of the incident and was acting in a disorderly manner.

"Ninth Special Defense: Justification

"At the time of the incident, the plaintiff was

trespassing

on the defendant's property. The plaintiff, knowing that she was not licensed or privileged to do so, entered and remained on the property. Despite the defendant, who is the owner of the property, directing her to leave, the plaintiff refused to do so. The plaintiff then continued to exhibit disorderly conduct and/or create a public disturbance. As such, the defendant was justified in using reasonable force in escorting the plaintiff from the premises." (Emphasis added.)

The following portion of the court's charge is at the center of the plaintiff's claims on appeal: "Justification is a general defense to the use of physical force. The use of physical force upon another person that results in actual injury, while usually a criminal assault, is not criminal if it is permitted or justified by a provision of law or statute.

"Therefore, when one is accused of committing an assault claims that he or she acted under a legal justification, the jury must examine the circumstances and discover whether the act was truly justified. The court's function in instructing the jury is to tell the jury the circumstances which the use of physical force against another person is legally justified.

"Justification defenses focus on the defendant's reasonable beliefs as to circumstances and the necessity of using force. The jury must view the situation from the perspective of the defendant. However, the defendant's belief ultimately must be found to be reasonable.

For example, a person in possession or control of premises is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises. A person commits criminal trespass when, knowing that such person is not licensed or privileged to do so, such person enters or remains in a building or any other premises, after an order to leave, or after an order not to enter, that was personally communicated to such person by the owner of the premises

.

"The claim focuses on what the defendant reasonably believes under the circumstances and presents a question of fact. The jury's initial determination requires the jury to assess the veracity of witnesses, often including the defendant, and to determine whether the defendant's account of his belief at the time of the confrontation is in fact credible. The jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant's circumstances.

"The defendant's conduct must be judged ultimately against that of a reasonably prudent person. It is not required that the jury find that the victim, was in fact, using or about to use physical force against the defendant....

"The defendant raised the issues of self-defense and defense of others as to the incident on December 5, 2009. After you have considered all of the evidence in this case, if you find that the plaintiff has proved her claims you must go on to consider whether or not the defendant acted in self-defense of himself or of others.

"A person is justified in the use of force against another person that would otherwise be illegal if he is acting in the defense of himself or others under certain circumstances. The statue defining self-defense reads in pertinent part as follows:

" '[A] person is justified in using reasonable physical force upon another person to defend himself from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose.'

"The statute requires that, before a defendant uses physical force upon another person to defend himself, he must have two 'reasonable beliefs.' The first is a reasonable belief that physical force is then being used or about to be used upon him. The second is a reasonable belief that the degree of force he is using to defend himself from what he believes to be an ongoing or imminent use of force is necessary for that purpose.

"A defendant is not justified in using any degree of physical force in self-defense against another if he provokes the other person to use physical force against him. Also, a defendant is not justified in using any degree of physical force in self-defense against another if he is the initial aggressor. A defendant cannot use excessive force in his self-defense or defense of others....

"The defendant has also raised the defense of 'wrongful conduct,' claiming that the plaintiff is barred, in whole or in part, from pursuing her claims under the doctrine of wrongful conduct.

"The defendant alleges that on December 5, 2009, the plaintiff was trespassing on the premises and exhibiting disorderly conduct and/or creating a disturbance. The parties agree that the defendant did not invite the plaintiff to the historic tour. In addition, the defendant alleges the plaintiff entered and/or remained on the property after she was directed to leave by him, the owner of the property, and that she refused to do so, among other claims asserted with respect to trespassing. The plaintiff does not dispute that she was told to leave. The defendant also alleges that the plaintiff was exhibiting disorderly conduct and/or creating a public disturbance. The defendant also alleges that the plaintiff was assaulting and/or battering him during the incident of December 5, 2009.

"Under Connecticut law, a plaintiff may not maintain a civil action for injuries allegedly sustained as the direct result of her knowing and intentional participation in a criminal act. The wrongful conduct defense does not apply if you find that the plaintiff sustained injuries and damages independent of any wrongful conduct of the plaintiff. It further applies only if the plaintiff has violated the law in connection with the very transaction as to which she seeks redress or relief." (Emphasis added.)

"Marital property" is a term of art reserved for the distribution of assets in an action for marital dissolution. General Statutes § 46b-81 provides in relevant part that the court may assign to either party "all or any part of the estate of the other spouse" in a marital dissolution proceeding. See also General Statutes §§ 46b-36 and 46b-37 ;

Porter

v.

Thrane

,

98 Conn. App. 336

, 342 n.6,

908 A.2d 1137

(2006) (neither husband nor wife acquires by virtue of marriage interest in real property of other during other's lifetime). We need not determine whether the Sharon house was marital property.

Defense counsel cited General Statutes § 53a-20, which provides in relevant part: "A person in possession or control of premises ... is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent ... the commission or attempted commission of a criminal trespass by such other person in or upon such premises ...."

The record discloses that the defendant first pleaded trespass in his answer and special defenses dated March 27, 2015. Trespass appears in four of his special defenses. The plaintiff filed a general denial of the special defenses on July 15, 2015, without having moved to strike any of the special defenses.

It is not the role of the trial court to frame the issues for trial but to admit legally and logically relevant evidence in accordance with the pleadings; see, e.g.,

State

v.

Hunter

,

62 Conn. App. 767

, 775,

772 A.2d 709

(2001) ; and to assist the jury in applying the law correctly to the facts they might find established.

State

v.

Blango

,

102 Conn. App. 532

, 543,

925 A.2d 1186

, cert. denied,

284 Conn. 913

,

931 A.2d 932

(2007). The issues raised in this appeal are largely of the parties' own making in that they failed to comply with our rules of practice. See

Suntech of Connecticut, Inc.

v.

Lawrence Brunoli, Inc.

,

173 Conn. App. 321

, 333-34 n.15,

164 A.3d 36

(2017).

See Practice Book § 60-1 ; see also

Connecticut Light & Power Company

v.

Lighthouse Landings, Inc.

,

279 Conn. 90

, 103-104,

900 A.2d 1242

(2006) (rules are to be interpreted liberally in cases where strict adherence will work surprise or injustice).

In his appellate brief, the defendant has pointed out that his special defenses initially were filed in March, 2015, and that the justification special defense, as well as others, included the words trespass and disorderly conduct. The court found that the plaintiff had notice of the subject statute and that she had failed to file a motion to strike, when she could have brought the issue to the attention of the court before the parties presented evidence as to whether she was trespassing at the Sharon house. The plaintiff does not claim that she objected to the presentation of evidence regarding trespass.

The plaintiff also claimed that the court should have instructed the jury that mere words cannot justify the use of force in defense of others. The plaintiff admits that she did not request this charge. The claim therefore has not been preserved, and we decline to review it. See

State

v.

Angell

,

36 Conn. App. 383

, 393-94,

651 A.2d 263

(1994), aff'd,

237 Conn. 321

,

677 A.2d 912

(1996).

We cannot conclude that the guest's concern was unreasonable given the prevalence of gun violence in our society, including domestic disputes. Jurors do not leave their common sense and life experience at the courthouse door. See

State

v.

Koslik

,

80 Conn. App. 746

, 756,

837 A.2d 813

, cert. denied,

268 Conn. 908

,

845 A.2d 413

(2004).

Plainly, there was sufficient evidence in the form of testimony for the jury to have concluded that the defendant acted in defense of others. He testified that as he escorted the plaintiff from the house, he "felt she was trying to run back into the house and confront the guests," and that his guests "were terrified." According to his testimony, one of the guests had a "look of horror and fear" on her face.

During their deliberations, the jury asked to review the testimony of two of the defendant's guests. The defendant was afraid that the plaintiff was going to do harm to them. Teasdale testified that she "didn't know if [their] lives were in danger. I didn't know if she had a gun and she was going to go after him.... I felt trapped in that house, and I didn't know what was going on. I was concerned for our safety.... I didn't know what was going on out there, and I was really worried about our safety, my safety, everyone's safety." Osborne testified that she "was scared" of the plaintiff. When the defendant returned to the house, he told the guests that for their "safety I'm taking you to the train now." Osborn also testified that "we were all shaking. We were just kind of recapping how terrifying it was to be just completely ambushed by someone."

The plaintiff also claims that the court's charge subverted Connecticut's well established policy against domestic violence. The plaintiff failed to raise this claim in the trial court; we therefore decline to consider it. "As our Supreme Court has explained, [t]he reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial-after it is too late for the trial court or the opposing party to address the claim-would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party." (Internal quotation marks omitted.)

U.S. Bank National Assn.

v.

Iaquessa

,

132 Conn. App. 812

, 815,

34 A.3d 1005

(2012). Nonetheless, it should go without saying that by affirming the judgment of the trial court, this court in no way would ever condone domestic violence or unjustified violence of any sort.