State v. Lemanski

S
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 STATE OF CONNECTICUT v. ROBERT LEMANSKI
                (AC 41785)
                  Bright, C. J., and Cradle and Suarez, Js.

                                   Syllabus

Convicted, after a jury trial, of the crime of operating a motor vehicle while
    under the influence of intoxicating liquor, the defendant appealed to
    this court. Held:
1. The defendant could not prevail on his unpreserved claim that his constitu-
    tional right to confrontation was violated when the trial court allowed
    C, the state trooper who arrested him, to testify that the defendant’s
    son, L, told him that the defendant had consumed two drinks on the
    night that he was arrested; even if this court assumed that C’s testimony
    was inadmissible hearsay that violated the defendant’s right to confronta-
    tion, the defendant’s claim failed under the fourth prong of State v.
    Golding (213 Conn. 233) because C’s testimony was harmless beyond
    a reasonable doubt, as the state’s case against the defendant was strong
    and L’s statement to C was cumulative and unlikely to have influenced
    the jury’s verdict.
2. The defendant could not prevail on his unpreserved claim that the trial
    court improperly instructed the jury regarding his alleged refusal to
    submit to a breath test at the time of his arrest:
    a. Contrary to the defendant’s claim, the trial court did not commit plain
    error in instructing the jury that it could ‘‘make any reasonable inference
    that follows’’ from the defendant’s alleged refusal to submit to a breath
    test, as the court’s instruction substantially complied with the applicable
    statute (§ 14-227a (e)) and did not, when read in the context of the
    court’s entire instructions, mislead the jury; moreover, the defendant
    implicitly waived his claim that the court’s instruction diluted the state’s
    burden of proof and violated his constitutional right to due process, as
    the court provided the defendant with a copy of its instructions thirteen
    days before the preliminary charge conference, the defendant had ample
    time to review the instructions, the court reviewed the instructions with
    counsel on the record, soliciting comments and proposed modifications,
    and both counsel affirmatively, and repeatedly, expressed their satisfac-
    tion with the court’s instructions.
    b. The defendant’s claim that the trial court committed plain error when
    it instructed the jury that his alleged refusal to submit to a breath test
    could be construed as consciousness of guilt because such an instruction
    was not factually supported by the evidence in view of the fact that he
    agreed to a blood test was unavailing: that court did not err in instructing
    the jury on consciousness of guilt, as C testified, without objection, that
    the defendant agreed to submit to a breath test, then changed his mind,
    vacillating several times before he requested a blood test, and, therefore,
    the court’s instruction advising the jury of its obligation to determine
    whether the defendant refused the breath test was not only proper but
    was necessary; accordingly, the court’s instructions to the jury pertaining
    to the consciousness of guilt evidence did not rise to the level of egre-
    giousness and harm that would warrant reversal under the plain error
    doctrine.
      Argued September 16—officially released November 17, 2020

                             Procedural History

  Substitute information charging the defendant with
the crime of operating a motor vehicle while under the
influence of intoxicating liquor, brought to the Superior
Court in the judicial district of Litchfield at Torrington
and tried to the jury before Noble, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
this court. Affirmed.
   Laila M. G. Haswell, senior assistant public defender,
for the appellant (defendant).
   Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Dawn Gallo, state’s attor-
ney, and Jonathan Knight, supervisory assistant state’s
attorney, for the appellee (state).
                          Opinion

   CRADLE, J. The defendant, Robert Lemanski, appeals
from the judgment of conviction, rendered after a jury
trial, of operating a motor vehicle while under the influ-
ence of intoxicating liquor in violation of General Stat-
utes § 14-227a (a) (1). On appeal, the defendant claims
that (1) his constitutional right to confrontation under
the sixth amendment to the United States constitution
was violated when the trial court improperly admitted
testimonial hearsay into evidence, and (2) the trial court
improperly instructed the jury regarding his alleged
refusal to submit to a breath test at the time of his
arrest. We affirm the judgment of the trial court.
   The jury reasonably could have found the following
facts. On the night of December 30, 2016, Connecticut
State Trooper Matthew Costella was on general patrol
in the areas of Harwinton and Burlington. At approxi-
mately 9 p.m., he was sitting in his police cruiser in a
church parking lot at the intersection of Routes 4 and
118, when he observed a passing motor vehicle that did
not have its rear registration plate illuminated. Costella
pulled out behind the vehicle, onto Route 4 heading
eastbound toward Burlington, and followed it for
approximately one mile, when he observed the vehicle
cross over the white fog line. On the basis of his observa-
tions, the registration plate light infraction and the man-
ner of operation of the vehicle, Costella turned on the
emergency lights of his cruiser and pulled the vehicle
over to the right side of the road. Another vehicle also
pulled over ahead of the vehicle that Costella was
stopping.
  Costella approached the vehicle and asked the opera-
tor, the defendant, for his license, registration and insur-
ance, to which the defendant responded, ‘‘That’s a lot
of questions.’’ Costella then asked the defendant where
he was coming from and the defendant stated that he
was coming from Harwinton. When Costella asked
where in Harwinton, the defendant responded that he
was coming from the New Milford area, but then stated
that he was coming from Torrington where he had
played golf with his son, Steven Lemanski. During the
foregoing exchange, the defendant searched for the
documents that Costella had requested. Costella
requested them a second time and referred the defen-
dant to his wallet, which was located in plain sight on
the passenger seat.
   Costella asked the defendant if he had had anything
to drink, and the defendant responded, ‘‘no, nothing.’’
Costella noticed that the defendant’s speech was
slurred and his eyes were glassy. He advised the defen-
dant that he could smell alcohol on his breath. When
Costella asked the defendant if he had any medical
conditions, the defendant responded that he did not.
Costella conducted a test that he referred to as a ‘‘brief’’
or ‘‘modified’’ horizontal gaze nystagmus test, looking
for an involuntary jerking of the eyes, to determine
if the defendant had been drinking. Costella told the
defendant that he could see his eyes bouncing.
  Costella asked the defendant if he knew who was in
the vehicle that had pulled over ahead of them, and the
defendant told Costella that it was Steven Lemanski.
At Costella’s request, the defendant used his cell phone
to call Steven Lemanski and asked him to back his
vehicle up to them. Once Steven Lemanski had backed
up, Costella approached his vehicle and asked him if
the defendant had any medical conditions, and he told
Costella that the defendant did not. Steven Lemanski
confirmed that they had been playing golf in Torrington
and, when Costella asked if the defendant had con-
sumed any alcohol that night, Steven Lemanski told
him that the defendant had two drinks while he was
with him.
   After speaking with Steven Lemanski, Costella
returned to his cruiser and called for backup so that
he could conduct the standard field sobriety tests to
determine if the defendant was intoxicated. After two
additional troopers arrived, Costella performed three
field sobriety tests—the horizontal gaze nystagmus test,
the walk and turn test and the one leg stand test. When
the defendant emerged from his vehicle, Costella
observed that he was having trouble maintaining his
balance. The defendant failed to perform any of the
three tests to standard. On the basis of his observation
of the defendant’s operation of his vehicle, his observa-
tions of the defendant after he stopped the vehicle, and
the results of the field sobriety tests, Costella deter-
mined that the defendant was under the influence of
alcohol. Costella arrested him and transported him to
the state police barracks for processing.
   Upon arriving at the barracks, Costella advised the
defendant of his rights and informed him that he would
be requested to submit to a blood, breath or urine test,
which must be administered within two hours of the
time of his operation of the motor vehicle.1 The defen-
dant asked that he be allowed to contact an attorney,
and he was permitted to call his wife to ask her for a
telephone number of an attorney. Costella also looked
up an attorney on the Internet at the defendant’s request
and provided him with telephone books so he could
look up other attorneys. The defendant was unable to
contact an attorney, and Costella asked him to submit
to a breath test. The defendant first indicated that he
did not want to take a breath test, then changed his
mind and agreed to take a breath test, then changed
his mind again and stated that he did not want to take
a breath test. The defendant eventually told Costella
that he wanted to take a blood test. Because the admin-
istration of a blood test must be done at a hospital,
blood tests generally are not offered due to the two
hour window during which the test must be conducted.
Costella thus continued to offer the defendant a breath
test, while the defendant continued to request a blood
test. Eventually another officer, Trooper Matthew Cash-
man, also offered the defendant a breath test, and the
defendant refused.
   The defendant was charged with and tried for
operating a motor vehicle while under the influence
of intoxicating liquor in violation of § 14-227a (a) (1).
Following trial, the jury found him guilty, and the court
sentenced him to six months of incarceration, execu-
tion suspended after ten days, and eighteen months of
probation. This appeal followed.
                             I
   The defendant first claims that his sixth amendment
right to confrontation was violated when the court
allowed Costella to testify that Steven Lemanski told
him that the defendant had consumed two drinks on
the night that he was arrested.2 We disagree.
   The defendant claims that Costella’s testimony
regarding Steven Lemanski’s statement constituted tes-
timonial hearsay, the admission of which violated his
constitutional right to confrontation and deprived him
of a fair trial. The defendant did not object to Costella’s
testimony regarding Steven Lemanski’s statement at
trial. Because the defendant’s claim is unpreserved, we
review it pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),3 as the
defendant requests in his appellate brief. Even if we
assume, arguendo, that Costella’s testimony regarding
Steven Lemanski’s statement was inadmissible testimo-
nial hearsay that violated the defendant’s right to con-
frontation, we conclude that his claim fails under the
fourth prong of Golding because any alleged violation
was harmless.
   ‘‘Whether a constitutional violation is harmless in a
particular case depends upon the totality of the evi-
dence presented at trial. . . . If the evidence may have
had a tendency to influence the judgment of the jury,
it cannot be considered harmless. . . . Whether such
error is harmless in a particular case depends upon
a number of factors, such as the importance of the
[evidence] in the prosecution’s case, whether the [evi-
dence] was cumulative, the presence or absence of evi-
dence corroborating or contradicting the [evidence]
. . . and, of course, the overall strength of the prosecu-
tion’s case. . . . Most importantly, we must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . The state bears the burden of
proving that the error is harmless beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v.
Smith, 156 Conn. App. 537, 561–62, 113 A.3d 103, cert.
denied, 317 Conn. 910, 115 A.3d 1106 (2015).
   Here, the state’s case against the defendant was
strong. Costella testified that, when he initially
approached the defendant’s vehicle, he noted a strong
and distinct odor of alcohol emanating from the defen-
dant, the defendant’s eyes were glassy and his speech
was slurred. The defendant had difficulty recounting
where he was driving from and locating the documents
that Costella requested, even though his wallet was in
plain sight on the passenger seat. The defendant also
failed all three of the field sobriety tests administered
by Costella. The state presented expert testimony that,
when an individual fails those three field sobriety tests,
the likelihood of the impairment of that individual is
between 91 percent and 95 percent. The video recording
from the dashboard camera of Costella’s cruiser was
admitted into evidence, so the jury was able to observe
the defendant when Costella stopped him, when he
exited his vehicle and while he performed the field
sobriety tests. Furthermore, Costella testified only that
Steven Lemanski told him that the defendant had two
drinks. He did not say that the defendant was intoxi-
cated, what he drank, or when he consumed such
drinks. Consequently, Steven Lemanski’s statement was
less probative than the evidence the jury heard and
saw about the defendant’s appearance, condition and
conduct at the time his vehicle was pulled over by
Costella. Because there was ample other evidence on
which the jury could have based its guilty verdict, Ste-
ven Lemanski’s statement to Costella, at most, was
cumulative and was unlikely to have influenced the
jury’s verdict. We thus conclude that the admission of
Costella’s testimony regarding Steven Lemanski’s state-
ment that the defendant had consumed two drinks on
the night of his arrest was harmless beyond a reasonable
doubt. The defendant’s claim thus fails under the fourth
prong of Golding.
                            II
   The defendant also claims that the court improperly
instructed the jury regarding his alleged refusal to sub-
mit to a breath test. The defendant’s challenge to the
court’s instruction to the jury regarding his alleged
refusal to submit to a breath test is twofold. First, he
argues that the court improperly instructed the jury that
it could ‘‘ ‘make any reasonable inference that follows’ ’’
from his refusal to take a breath test. Second, he con-
tends that the court erred in instructing the jury on
consciousness of guilt based on his alleged refusal to
submit to a breath test. We are not persuaded.
  On February 1, 2018, the court e-mailed counsel a
copy of the instructions that it intended to give to the
jury. On February 14, 2018, the court held a preliminary
charge conference on the record, during which it indi-
cated its intention to instruct the jury on consciousness
of guilt. The court held a final charge conference, also
on the record, the following day. Both parties expressly
indicated that they were satisfied with the court’s
instructions; neither sought any changes, nor voiced
any objection.
   Later that same day, the court instructed the jury. The
court explained, inter alia: ‘‘You may draw reasonable
inferences from the facts you find established in the
case, the inferences that you draw, however, must not
be from a guess upon the evidence, but they must be
from a fact or facts which the evidence has established.
In drawing inferences from the established facts, you
should use your reason and common sense. The infer-
ences that you draw must be logical and reasonable
and not the result of speculation or conjecture.’’
  As to consciousness of guilt, the court instructed the
jury as follows: ‘‘This is a limiting instruction. In any
criminal trial, it is permissible for the state to show
that conduct or statements made by a defendant after
the time of the alleged offense may have been influ-
enced by the criminal act; that is, the conduct or state-
ments show a consciousness of guilt. For example, acts
or statements made in an attempt to avoid detection
of a crime or responsibility for a crime or [were] influ-
ence[d] by the commission of the criminal act. Such
acts or statements do not, however, raise a presumption
of guilt. If you find the evidence proved and also find
that the acts or his statements were influenced by the
criminal act and not by any other reason, you may, but
are not required to infer from this evidence that the
defendant was acting from a guilty conscience. The
state claims that the defendant was acting from a
guilty conscience.
   ‘‘The state claims that the following conduct is evi-
dence of consciousness of guilt . . . the defendant’s
refusal to submit to the Breathalyzer test while at the
police station. It is up to you as judges of the facts to
decide whether the defendant’s acts or statements, if
proved, reflect the consciousness of guilt and to con-
sider such in your deliberations and conformity with
these instructions.’’
  The court instructed the jury in detail on the elements
of operating a motor vehicle while under the influence
of intoxicating liquor and then summarized that ‘‘the
state must prove beyond a reasonable doubt that [1]
the defendant was operating a motor vehicle at the time
and place alleged, and [2] he was under the influence
of intoxicating liquor.’’ The court also explained: ‘‘Evi-
dence of the defendant’s refusal to submit to a breath
test has been introduced. If you find that the defendant
did refuse to submit to such a test, you may make any
reasonable inference that follows from that fact.’’ After
instructing the jury, the court asked counsel if they had
any exceptions or issues with the final charge, and both
expressly confirmed that they did not.
  Because the defendant did not challenge the court’s
instructions at trial, he seeks relief for portions of his
claim under Golding on the ground that a constitutional
violation deprived him of a fair trial. See footnote 3 of
this opinion. For other portions of his claim, he seeks
relief under the plain error doctrine. ‘‘The plain error
doctrine is . . . reserved for truly extraordinary situa-
tions where the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . That is, it
is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment,
for reasons of policy. . . . [Thus, an appellant] cannot
prevail under [the plain error doctrine] . . . unless he
[or she] demonstrates that the claimed error is both so
clear and so harmful that a failure to reverse the judg-
ment would result in manifest injustice. . . . Further-
more, even if the error is so apparent and review is
afforded, the defendant cannot prevail on the basis of
an error that lacks constitutional dimension unless he
[or she] demonstrates that it likely affected the result of
the trial.’’ (Citations omitted; internal quotation marks
omitted.) State v. Harris, 198 Conn. App. 530, 540, 233
A.3d 1197 (2020). With these principles in mind, we
address the defendant’s specific instructional claims
in turn.
                             A
   The defendant first claims that the trial court erred in
instructing the jury that it could ‘‘make any reasonable
inference that follows’’ from his alleged refusal to take
a breath test. As to this instruction, the defendant claims
that (1) the court committed plain error in so instructing
the jury because it was ‘‘contrary to [§ 14-227a (e)]
because it failed to explain precisely what the jury may
infer and what it may not infer from such refusal,’’ and
(2) the court’s instruction diluted the state’s burden to
prove every element of its case beyond a reasonable
doubt and, thus, violated his constitutional right to due
process because it ‘‘allowed the jury to infer solely from
the refusal evidence that the defendant was under the
influence.’’ We are not persuaded.
                             1
   The defendant claims that the trial court’s instruction
that the jury could draw any inference from the defen-
dant’s alleged refusal to submit to a breath test was plain
error because it was inconsistent with the language of
§ 14-227a (e), which provides in relevant part: ‘‘In any
criminal prosecution for a violation of subsection (a)
of this section, evidence that the defendant refused to
submit to a blood, breath or urine test requested in
accordance with section 14-227b shall be admissible
. . . . If a case involving a violation of subsection (a)
of this section is tried to a jury, the court shall instruct
the jury as to any inference that may or may not be
drawn from the defendant’s refusal to submit to a
blood, breath or urine test.’’ (Emphasis added.) The
defendant argues that the ‘‘plain meaning [of the statute]
is to direct trial courts to explain precisely what the
jury may or may not infer. The court must make clear
that the jury may infer only that the defendant had a
guilty conscience, not that he is in fact guilty based
solely on the refusal.’’
   This court addressed this issue in State v. Gordon,
84 Conn. App. 519, 854 A.2d 74, cert. denied, 271 Conn.
941, 861 A.2d 516 (2004). In Gordon, the trial court
instructed the jury, inter alia, as follows: ‘‘Evidence of
the defendant’s refusal to submit to a test, to a breath
test, has been introduced. If you find that the defendant
did refuse to submit to such a test, you may make any
reasonable inference that follows from that fact.’’ Id.,
530. The defendant argued that ‘‘the instruction permit-
ted the jury to draw the conclusion that he refused to
submit to the test and to consider that fact alone when
determining guilt’’ and ‘‘failed to impress on the jury
the requirement that even when making permissible
inferences, to find the defendant guilty, it must have
found that the state proved guilt beyond a reasonable
doubt.’’ Id. In rejecting the defendant’s claim, this court
explained: ‘‘We have held that [General Statutes (Rev.
to 1999)] § 14-227a (f), now (e), permits the jury to draw
reasonable inferences regarding a defendant’s refusal
to submit to a Breathalyzer test. See State v. McCarthy,
63 Conn. App. 433, 437, 775 A.2d 1013, cert. denied, 258
Conn. 904, 782 A.2d 139 (2001). In McCarthy, we also
recognized that as long as the court in its instruction
properly identified as permissible the inference the jury
could draw and clearly instructed as to the state’s ulti-
mate burden of proof, it was unimportant that the
court’s language in the instruction did not mirror the
statutory language. Here, the court instructed the jury
that you may make any reasonable inference, even
though the statutory language states that the court shall
instruct the jury as to any inference that may or may
not be drawn . . . . We conclude that it was not possi-
ble for the jury to be misled into believing the presump-
tion was mandatory from the language used by the
court.’’ (Citation omitted; emphasis in original; internal
quotation marks omitted.) State v. Gordon, supra, 531.
   As this court held in Gordon, and, earlier in McCar-
thy, we conclude that the court’s instruction to the
jury that it could ‘‘make any reasonable inference that
follows’’ from the defendant’s alleged refusal to submit
to a breath test substantially complied with § 14-227a
(e), and, when read in the context of the entirety of
the court’s instructions, which explained the elements
that the state was required to prove beyond a reasonable
doubt, did not mislead the jury. We thus conclude that
the court did not err in so instructing the jury or that
such an alleged error ‘‘was of such monumental propor-
tion that it threatened to erode our system of justice
. . . or that it resulted in harm so grievous that funda-
mental fairness requires a new trial.’’ (Internal quotation
marks omitted.) State v. Juan V., 191 Conn. App. 553,
574, 215 A.3d 1232, cert. denied, 333 Conn. 925, 217
A.3d 993 (2019).4 Accordingly, the defendant’s claim of
plain error is unavailing.
                            2
   The defendant also claims that the court’s instruction
permitting the jury to ‘‘make any reference that follows’’
from his alleged refusal to submit to a breath test diluted
the state’s burden of proof and, consequently, violated
his right to due process. The state contends that the
defendant implicitly waived this claim at trial. We agree
with the state.
   In State v. Kitchens, 299 Conn. 447, 10 A.3d 942
(2011), our Supreme Court held: ‘‘[W]hen the trial court
provides counsel with a copy of the proposed jury
instructions, allows a meaningful opportunity for their
review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively
accepts the instructions proposed or given, the defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal. Such a determination by the reviewing court
must be based on a close examination of the record and
the particular facts and circumstances of each case.’’
Id., 482–83.
   In this case, the parties were given the court’s pro-
posed instructions on February 1, 2018, thirteen days
prior to the preliminary charge conference on February
14, 2018. During that conference, which was held on
the record, the court reviewed the instructions with
counsel, proceeding page by page, and soliciting from
counsel any questions or concerns about them. Both
counsel voiced their satisfaction with each portion of
the instructions as the court and counsel reviewed them
together. The next day, the court provided counsel with
a final copy of its intended instructions to the jury and
held a final charge conference on the record. After the
court noted on the record the minor edits that were
made to the instructions, it asked if either counsel had
any questions regarding those changes; both counsel
indicated that they did not. The court then asked, once
again, whether either counsel had ‘‘any additional
request to charge any issues, changes, objections,
exceptions, corrections to the final jury instructions.’’
Both counsel indicated that they did not. After
instructing the jury, the court asked counsel if they had
any exceptions or issues with the final charge, and both
confirmed that they did not.
  Because the court provided the defendant with a copy
of its instructions thirteen days before the preliminary
charge conference, he had ample time to review them.
The court reviewed the instructions with counsel on
the record, soliciting comments and proposed modifica-
tions, and both counsel affirmatively, and repeatedly,
expressed their satisfaction with the court’s instruc-
tions. We therefore conclude that the defendant implic-
itly waived his claim that the court’s instruction diluted
the state’s burden of proof and violated his constitu-
tional right to due process.5 His claim therefore fails
under Golding.
                             B
   The defendant also contends that the court commit-
ted plain error when it instructed the jury that his
alleged refusal to submit to a breath test could be con-
strued as consciousness of guilt because such an
instruction was not factually supported by the evidence
in view of the fact that he agreed to a blood test. We
disagree.
   Faced with the same issue in State v. Barlow, 30
Conn. App. 36, 618 A.2d 579 (1993), this court reasoned:
‘‘[W]e cannot conclude that the trial court abused its
discretion by allowing the jury to consider testimony
on the issue of whether the defendant refused to take
the breath test. As [General Statutes (Rev. to 1991)]
§ 14-227a (f) [now (e)] makes abundantly clear, evi-
dence that the defendant refused to submit to a . . .
breath . . . test . . . shall be admissible provided that
the requirements of subsection (b) of [General Statutes
§ 14-227b] have been satisfied. Whether the defendant
refused to take the breath test was an issue of fact for
the jury. . . . Accordingly, the trial court did not abuse
its discretion by submitting this factual issue to the jury.
   ‘‘Furthermore, the trial court prudently instructed the
jury on interpreting the evidence surrounding the
attempted breath test. [General Statutes (Rev. to 1991)]
§ 14-227a (f) [now (e)] provides that [i]f a case involving
a violation of subsection (a) of this section is tried to
a jury, the court shall instruct the jury as to any infer-
ence that may or may not be drawn from the defendant’s
refusal to submit to a . . . breath . . . test. In
instructing the jury, the trial court explained that the
jury was free to draw any reasonable inferences in the
event that it found refusal. The court proceeded to
caution the jury that evidence of refusal by itself cannot
support a guilty verdict. In short, on these facts, we are
unable to discern an abuse of discretion by the trial
court.’’ (Citation omitted; emphasis in original; footnote
omitted; internal quotation marks omitted.) Id., 43–44.
  As in Barlow, we cannot conclude that the trial court
erred in instructing the jury on consciousness of guilt.
Costella testified that the defendant agreed to submit to
a breath test, then changed his mind, vacillating several
times before he requested a blood test. That evidence
was admitted without objection from the defendant
and, accordingly, the jury was entitled to consider it.
The court’s instruction advising the jury of its obligation
to determine whether the defendant refused the breath
test, therefore, was not only proper, but it was neces-
sary. See State v. Rodriguez, 192 Conn. App. 115, 123,
217 A.3d 21 (2019). Accordingly, we conclude that the
court did not err in so instructing the jury. We further
conclude that the instructions pertaining to the con-
sciousness of guilt evidence do not rise to the level of
egregiousness and harm that would warrant reversal
under the plain error doctrine.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     See General Statutes § 14-227b (c).
  2
     Neither the state nor the defendant called Steven Lemanski as a witness
at trial.
   3
     Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.
   4
     We note that the instruction given by the trial court in this case and in
Gordon is identical to that prescribed by the Judicial Branch’s model criminal
jury instructions. See Snell v. Norwalk Yellow Cab, Inc., 332 Conn. 720, 763,
212 A.3d 646 (2019) (‘‘language used in model jury instructions, although
instructive in considering the adequacy of a jury instruction . . . is not
binding on this court (citation omitted)).
   5
     Although we do not reach the substance of this claim, we note that it
too was rejected in State v. Gordon, supra, 84 Conn. App. 519. The court
reasoned: ‘‘When determining whether a charge diluted the state’s burden
of proof, we do not look at the charge in isolation, but examine it within
the context of the entire charge. . . . The court clearly and repeatedly
instructed the jury that the state had the burden of proving each and every
element beyond a reasonable doubt. The language directly following the
challenged instruction specifically reminded the jury that to find the defen-
dant guilty, it needed to find that the state proved each element beyond a
reasonable doubt. In light of the instructions as a whole, we conclude that
it was not reasonably possible that the jury was misled as to the state’s
burden of proof.’’ (Citation omitted.) Id., 532–33. The court concluded: ‘‘We
disagree with the defendant’s contention that the challenged language, cou-
pled with the court’s instruction on the permissible inference the jury could
draw under [General Statutes (Rev. to 1999)] § 14-227a (f), now (e), diluted
the state’s burden to prove the defendant’s guilt on each element of the
offense beyond a reasonable doubt.’’ Id., 532.

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