Shea, J.
After a jury trial the defendant was found guilty of the crimes of assault in the third degree, a violation of General Statutes § 53a-61, sexual assault [353] in the third degree, a violation of General Statutes § 53a-72a, and unlawful restraint in the first degree, a violation of General Statutes § 53a-95. State v. McDonough, 9 Conn. App. 631, 521 A.2d 160 (1987). The Appellate Court determined that the trial court had erred in instructing the jury concerning the inferences it might draw from circumstantial evidence. The state, after this court had granted certification, appealed from the Appellate Court’s judgment reversing the judgment of the trial court. We conclude that the trial court’s error was harmless in nature. Accordingly, we reverse the judgment of the Appellate Court, and remand the case to that court with direction to reinstate the judgment of the trial court.
Although the facts that the jury could reasonably have found are set forth in State v. McDonough, supra, we summarize those pertinent to the issues in this appeal. The victim testified that on the night of the crime, she had met the defendant, who was previously known to her, while out dancing. The defendant then invited her back to his apartment, ostensibly to check on his pets and have a nightcap. After they had spent a short time there, he proceeded to assault her both physically and sexually. The victim suffered bleeding and bruising from blows to her face and body. The defendant knocked the victim to the floor, straddled her legs, pinned her arms down, punched her in the face, and attempted to undress her. He refused to let her leave the apartment and threatened her life. The victim was ultimately successful in escaping, and subsequently was taken to the police station and the hospital.
The defendant testified that he had not sexually assaulted the victim, that there had been no physical altercation, and that he had not touched the victim at all, except to wake her after she had fallen asleep in his apartment. He further testified that the victim, [354] because of her intoxicated condition, had fallen over various items of furniture in his apartment.
I
The only issues presented by this appeal are whether the Appellate Court was correct in concluding that the trial court erred in its charge to the jury on the use of circumstantial evidence in drawing inferences and that such error was not harmless under the standard applicable to constitutional errors. Initially, we note that ordinarily the defendant’s failure to except to this portion of the court’s charge would preclude review. Practice Book §§ 854, 4185. We will review his claim, however, as did the Appellate Court, because it implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The state makes no contention to the contrary.
During its charge to the jury, the court stated: “There is an application of our rule as to circumstantial evidence. Circumstantial evidence involves the offering of evidence of facts from which the jury is asked to infer the existence of and so to find proven another fact or facts. Such facts may be so found proven, but only if the jury finds: one, that the fact or facts from which the jury is asked to draw the inference has been proven by a fair preponderance of the evidence; and two, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find it is more probable than not that the fact you are asked to infer is true.”1
[355] The Appellate Court found this portion of the charge to be erroneous. “The court’s charge on circumstantial evidence allowed the jury to find facts from which an inference may be drawn, and to make the inference itself, by a fair preponderance of the evidence standard. Such an instruction is erroneous as applied to facts which are essential to proof of an element of a crime because such facts, whether basic or inferred, must be proved beyond a reasonable doubt. State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1986).” State v. McDonough, supra, 634.
We agree with the Appellate Court’s conclusion that this portion of the trial court’s instructions was erroneous. Although, as an abstract proposition, it is not illogical to draw an inference if the evidence establishes that it is probable, such an instruction in a criminal case may confuse a jury with respect to inferring a particular fact essential to prove an element of the crime. State v. Rodgers, supra, 58 n.1. Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); [356] State v. Gaynor, 182 Conn. 501, 503-504, 438 A.2d 749 (1980). We have disapproved of this type of instruction because of its potential for misleading a jury concerning the state’s burden to prove each element of the crime beyond a reasonable doubt. State v. Rodgers, supra, 57-59.
II
We have recognized that an erroneous charge is not always harmful. State v. Miller, supra, 489-92. An isolated error in an instruction may be cured by other portions of the charge, or circumstantial evidence may be so insignificant compared to direct evidence that it is clear beyond a reasonable doubt that the erroneous instruction did not affect a jury’s determination of guilt or innocence. Id.
Free access — add to your briefcase to read the full text and ask questions with AI
Shea, J.
After a jury trial the defendant was found guilty of the crimes of assault in the third degree, a violation of General Statutes § 53a-61, sexual assault [353] in the third degree, a violation of General Statutes § 53a-72a, and unlawful restraint in the first degree, a violation of General Statutes § 53a-95. State v. McDonough, 9 Conn. App. 631, 521 A.2d 160 (1987). The Appellate Court determined that the trial court had erred in instructing the jury concerning the inferences it might draw from circumstantial evidence. The state, after this court had granted certification, appealed from the Appellate Court’s judgment reversing the judgment of the trial court. We conclude that the trial court’s error was harmless in nature. Accordingly, we reverse the judgment of the Appellate Court, and remand the case to that court with direction to reinstate the judgment of the trial court.
Although the facts that the jury could reasonably have found are set forth in State v. McDonough, supra, we summarize those pertinent to the issues in this appeal. The victim testified that on the night of the crime, she had met the defendant, who was previously known to her, while out dancing. The defendant then invited her back to his apartment, ostensibly to check on his pets and have a nightcap. After they had spent a short time there, he proceeded to assault her both physically and sexually. The victim suffered bleeding and bruising from blows to her face and body. The defendant knocked the victim to the floor, straddled her legs, pinned her arms down, punched her in the face, and attempted to undress her. He refused to let her leave the apartment and threatened her life. The victim was ultimately successful in escaping, and subsequently was taken to the police station and the hospital.
The defendant testified that he had not sexually assaulted the victim, that there had been no physical altercation, and that he had not touched the victim at all, except to wake her after she had fallen asleep in his apartment. He further testified that the victim, [354] because of her intoxicated condition, had fallen over various items of furniture in his apartment.
I
The only issues presented by this appeal are whether the Appellate Court was correct in concluding that the trial court erred in its charge to the jury on the use of circumstantial evidence in drawing inferences and that such error was not harmless under the standard applicable to constitutional errors. Initially, we note that ordinarily the defendant’s failure to except to this portion of the court’s charge would preclude review. Practice Book §§ 854, 4185. We will review his claim, however, as did the Appellate Court, because it implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The state makes no contention to the contrary.
During its charge to the jury, the court stated: “There is an application of our rule as to circumstantial evidence. Circumstantial evidence involves the offering of evidence of facts from which the jury is asked to infer the existence of and so to find proven another fact or facts. Such facts may be so found proven, but only if the jury finds: one, that the fact or facts from which the jury is asked to draw the inference has been proven by a fair preponderance of the evidence; and two, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find it is more probable than not that the fact you are asked to infer is true.”1
[355] The Appellate Court found this portion of the charge to be erroneous. “The court’s charge on circumstantial evidence allowed the jury to find facts from which an inference may be drawn, and to make the inference itself, by a fair preponderance of the evidence standard. Such an instruction is erroneous as applied to facts which are essential to proof of an element of a crime because such facts, whether basic or inferred, must be proved beyond a reasonable doubt. State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1986).” State v. McDonough, supra, 634.
We agree with the Appellate Court’s conclusion that this portion of the trial court’s instructions was erroneous. Although, as an abstract proposition, it is not illogical to draw an inference if the evidence establishes that it is probable, such an instruction in a criminal case may confuse a jury with respect to inferring a particular fact essential to prove an element of the crime. State v. Rodgers, supra, 58 n.1. Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); [356] State v. Gaynor, 182 Conn. 501, 503-504, 438 A.2d 749 (1980). We have disapproved of this type of instruction because of its potential for misleading a jury concerning the state’s burden to prove each element of the crime beyond a reasonable doubt. State v. Rodgers, supra, 57-59.
II
We have recognized that an erroneous charge is not always harmful. State v. Miller, supra, 489-92. An isolated error in an instruction may be cured by other portions of the charge, or circumstantial evidence may be so insignificant compared to direct evidence that it is clear beyond a reasonable doubt that the erroneous instruction did not affect a jury’s determination of guilt or innocence. Id.
We have often said that the charge should be read as a whole in determining whether it is reasonably possible that an erroneous instruction could have misled a jury concerning the state’s burden of proof. “It is well established . . . that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).” State v. Reddick, 197 Conn. 115,132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Miller, [357] supra, 491-92; State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 479 U.S. 994,107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
The Appellate Court recognized the principle that the disputed charge should be read in the context of the charge as a whole. State v. McDonough, supra, 631. Nevertheless, it concluded that the charge as a whole was likely to mislead the jury concerning the state’s burden of proof. Id., 636. We disagree with this conclusion.
While the Appellate Court acknowledged that the charge should be read as a whole, it failed to give proper weight to a crucial portion of the trial court’s supplemental instructions, given in response to a jury request for further instructions. After the jury had begun its deliberations, it requested that the court reread its instructions on several issues including those relating to drawing inferences from circumstantial evidence. The trial court in reinstructing the jury on circumstantial evidence repeated the same misleading statements it had made in the original charge, but then clarified its meaning by giving the following supplemental instruction: “Keeping in mind that ultimately, regardless of the instructions I’ve given you on inferences, the State bears the burden of proving each element of each charge beyond a reasonable doubt. That’s something else. This is simply the charge with respect to inferences. It does not relate to the ultimate burden of proof that the State has in the case.” This instruction significantly reduced the harmfulness of the erroneous portion of the charge.
In analyzing whether the disputed portion of the instructions was harmful, the Appellate Court also erred in concluding that circumstantial evidence was an important factor in this case. “Although the principal factual issue for each crime charged in this case [358] was not the intent of the defendant, because he denied the commission of any crime, this was nonetheless a case in which the circumstantial evidence and instructions thereon played a major role in the state’s proof.” State v. McDonough, supra, 636.
In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role. “Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, ‘we will closely scrutinize the court’s instructions’ on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.” State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987). Unlike intent, such issues as identity and whether the crime charged has occurred, are ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role. “Accordingly, we review the court’s instruction not in isolation, but in the context of the charge as a whole, to determine whether it is ‘ “reasonably possible that the jury was misled” ’ by an erroneous explanation regarding the use of circumstantial evidence.” Id.
In the case at bar, the credibility of the witnesses was the primary issue. As the Appellate Court noted: “The basic factual issue for the jury to determine was whether the defendant had committed the assaults and the restraint. The defendant admitted that he was with the victim during the evening and early morning hours in question but denied that he was the perpetrator of any crimes. The defense, therefore, was similar to an alibi defense in that the defendant did not deny that the victim sustained injuries but did deny that he was responsible for these injuries. A significant factor for [359] the jury’s consideration was the credibility to be accorded to the victim and to the defendant. The principal factual issues, therefore, were not classically dependent upon circumstantial evidence for their proof, as is true in cases where the principal factual issue is the intent or state of mind of a defendant.” State v. McDonough, supra, 635.
In this case there was substantial direct evidence of the crime from the victim and from a witness who lived in the apartment directly beneath the defendant’s apartment and who had overheard portions of the conversation between the victim and the defendant.2 The Appellate Court recognized that direct evidence from the victim and this neighbor was the heart of the state’s [360] case against the defendant: “The victim’s testimony about the actions of the defendant was direct evidence offered as the primary proof that the assaults and restraint did, in fact, take place, and that the defendant was the perpetrator of them. The state also offered the direct evidence of a witness who lived in the apartment directly beneath the defendant’s apartment. The words overheard and testified to by that witness corroborated the testimony of the victim.” Id. The victim through her testimony provided direct evidence of every element of each crime charged. In addition, the neighbor presented direct evidence corroborating the victim’s testimony.
The Appellate Court erred when it concluded that the trial court’s instructions on drawing inferences . from circumstantial evidence constituted harmful error. An erroneous instruction on circumstantial evidence need not be given constitutional significance where there is sufficient direct evidence, not implicated by the error, to establish all essential elements of the crime charged. In similar cases, where the principal issue at trial was the credibility of the victim, where there was substantial direct evidence of the crimes charged, and where intent was not seriously disputed, we have found erroneous instructions suggesting the probability standard for drawing inferences from circumstantial evidence to be harmless error. State v. Smith, 201 Conn. 659, 673, 519 A.2d 26 (1986). “Under these circumstances it was not reasonably possible that the trial court’s erroneous explanation concerning circumstantial evidence misled the jury. State v. Reddick, [supra, 132]; State v. Farrar, [7 Conn. App. 149,156, 508 A.2d 49 (1986)]. The error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967).” State v. Smith, supra, 673-74.
[361] In the present case, none of the circumstantial evidence was essential to prove an element of the crime. According to the Appellate Court: “The state’s circumstantial evidence consisted of the testimony of other witnesses who saw the victim shortly after she had left the defendant’s apartment. These witnesses testified that the victim had blood all over her face and clothes and was crying. Other circumstantial evidence relating to the elements of the crime was comprised of the victim’s hospital emergency room report, and the testimony of a police officer.” State v. McDonough, supra, 635. This evidence served only to support the victim’s credibility and to corroborate her account of the crime. Each evidentiary fact need not be proved beyond a reasonable doubt. “It is only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt.” State v. Rodgers, supra, 58 n.1.3 Therefore, the possibility that the jury, as a result of the erroneous instruction, applied a preponderance of the evidence standard in drawing inferences from the circumstantial evidence in the case could not reasonably have affected the findings of the jury that the defendant had committed the crimes of sexual assault in the third degree, unlawful restraint in the first degree, or assault in the third degree. Especially in light of the supplemental instruction given at the jury’s request, any error [362] in the instructions was harmless beyond a reasonable doubt. State v. Smith, supra, 673-74.
We reverse the judgment of the Appellate Court and remand the case to the Appellate Court with direction to reinstate the judgment of the trial court.
In this opinion Peters, C. J., concurred.