State v. Calderon-Perez

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State v. Calderon-Perez

STATE OF CONNECTICUT v.
JAYSON CALDERON-PEREZ
(AC 46643)
Alvord, Suarez and Seeley, Js.

Syllabus

Convicted, following a jury trial, of the crimes of assault in the second
degree and breach of the peace in the second degree, the defendant appealed.
He claimed, inter alia, that the trial court improperly excluded as irrelevant
a uniform arrest report that included evidence of his physical appearance
six months after the crime. Held:

The trial court abused its discretion in excluding the uniform arrest report
as irrelevant, as the central question before the jury was the identity of the
perpetrator of the assault, it was vital to the defendant’s theory of defense
of mistaken identification that he be able to dispute the notion that he was
the person depicted in a video of the perpetrator admitted into evidence,
which necessarily involved a comparison of the appearance of the perpetra-
tor in the video to that of the defendant, and the fact that the uniform arrest
report was prepared six months after the assault was a matter concerning
the weight of the evidence to be afforded by the jury, not its admissibility,
and it did not diminish its relevance to the issue of the identity of the
perpetrator.

The trial court’s erroneous exclusion of the uniform arrest report rose to
the level of a constitutional violation of the defendant’s right to present a
defense, as the information pertaining to the defendant’s appearance in
the uniform arrest report was highly probative, material and potentially
exculpatory, the record suggested that the excluded evidence was the most
compelling evidence available to the defendant to establish his misidentifica-
tion defense because it was the only evidence from an independent, objective
party that the defendant could have offered at trial concerning his appear-
ance closer to the time of the incident, the defendant took the steps necessary
to exercise his right to present a defense, and nothing in the record indicated
that there were other means by which the defendant was permitted to
adequately present his misidentification defense.

The state failed to meet its burden of demonstrating, beyond a reasonable
doubt, that the trial court’s erroneous evidentiary ruling was harmless and,
thus, the defendant was entitled to a new trial, as there was no independent
overwhelming evidence of the defendant’s guilt, the uniform arrest report
was substantially the only evidence regarding the lack of tattoos on the
defendant that he sought to present in support of his defense of mistaken
identity, and the harm resulting from the court’s exclusion of the evidence
was compounded by the prosecutor’s remarks during closing argument
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State v. Calderon-Perez
about the defendant’s appearance, some of which were based on facts that
were not in evidence.

Argued November 20, 2024—officially released August 5, 2025

Procedural History

Substitute information charging the defendant with
the crimes of assault in the second degree and breach of
the peace in the second degree, brought to the Superior
Court in the judicial district of New Britain, geographi-
cal area number seventeen, and transferred to the Supe-
rior Court in the judicial district of New Britain, geo-
graphical area number fifteen; thereafter, the case was
tried to the jury before Baldini, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court. Reversed; new trial.
Hope J. Estrella, deputy assistant public defender,
for the appellant (defendant).
Olivia M. Hally, deputy assistant state’s attorney,
with whom, on the brief, were Sharmese Hodge, state’s
attorney, and Devant Joiner, senior assistant state’s
attorney, for the appellee (state).
Opinion

SEELEY, J. The defendant, Jayson Calderon-Perez,
appeals from the judgment of conviction, rendered after
a jury trial, of assault in the second degree in violation
of General Statutes § 53a-60 (a) (6) and breach of the
peace in the second degree in violation of General Stat-
utes § 53a-181 (a) (1). On appeal, the defendant claims
that the trial court deprived him of his right to present
a defense under the sixth and fourteenth amendments
to the federal constitution by (1) excluding, as irrele-
vant, evidence of his physical appearance six months
after the crime, (2) prohibiting a defense witness from
testifying due to late disclosure, (3) preventing the
defense from presenting testimony from an expert in
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State v. Calderon-Perez

video graphics, and (4) limiting the defendant’s cross-
examination of a state’s witness. In addition, the defen-
dant claims that the prosecutor engaged in impropriety
during the state’s rebuttal closing argument, thereby
depriving the defendant of his due process right to a
fair trial under the fifth and fourteenth amendments
to the federal constitution. We conclude that the trial
court’s exclusion of evidence of the defendant’s appear-
ance six months after the crime violated the defendant’s
constitutional right to present a defense.1 Accordingly,
we reverse the judgment and remand the case for a
new trial.
The jury reasonably could have found the following
facts on the basis of the evidence presented. Early in
the morning on August 11, 2018, the victim, Bryan
Spickle, was present at a Denny’s restaurant in South-
ington (restaurant). The victim was seated at a table
with a group of three other people: Ryan McHale, Miriah
Tatro and Julie Henderson. A man (perpetrator) was
seated at a nearby table with a group of seven other
people. At some point, a verbal altercation ensued
between Henderson and members of the perpetrator’s
group. Eventually, this escalated into a physical alterca-
tion when a woman from the perpetrator’s group
approached Henderson and struck her. Henderson
stood up and began fighting with the woman that
attacked her; meanwhile, the victim also stood up and
was accosted by three members of the perpetrator’s
group, including the perpetrator, but did not physically
engage with them. The victim then made his way toward
the women who were fighting and began to reach
toward Henderson, at which point the perpetrator
‘‘sucker punched’’ the victim in the side of the head
‘‘from behind.’’ The punch knocked the victim uncon-
scious, and he fell face-first onto a table occupied by
two other restaurant patrons, Michelle Yaglowski and
1
See footnote 18 of this opinion.
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Dahnis-Shay Houser-Riley. The perpetrator then punched
the unconscious victim in the head a second time. As
a result of the assault, the victim suffered a concussion,
lacerations to both eyebrows, significant swelling to his
right eye and cheek, and bubbling and blistering on his
chest due to a skin burn.2 A few minutes later, the
perpetrator and his group left the restaurant.
Around the time the perpetrator and his group exited
the restaurant, police officers from the Southington
Police Department were dispatched to the restaurant in
response to a report of a fight.3 Upon arriving at the
scene, the responding officers approached two women
standing in the restaurant’s parking lot: Robin Angeloni,
a waitress who was attempting to point out to the offi-
cers certain vehicles that had just left the parking lot,
and Tatro, who was ‘‘hysterical’’ and ‘‘yelling’’ racial
slurs. The officers spoke with Angeloni before entering
the restaurant, and, around the same time, the victim
was transported by paramedics to a hospital. Inside the
restaurant, the officers took a statement from Houser-
Riley and learned that the assault likely was captured
by security cameras, which also would have captured
footage of the perpetrator and his group exiting the
restaurant. The investigating officer, Chad Michaud of
the Southington Police Department, obtained this secu-
rity camera footage (video) shortly thereafter.
On the basis of his review of the video, Michaud
identified the woman who had attacked Henderson and
the man who had punched the victim as suspects in
the investigation. On September 10, 2018, as part of
Michaud’s investigation, the Southington Police Depart-
ment made a post on its public Facebook page soliciting
2
The jury reasonably could have found that the skin burn to the victim’s
chest was caused by hot coffee that spilled on him during the assault.
3
Yaglowski had called 911 as the verbal altercation between Henderson
and the woman at the perpetrator’s table escalated. Megan McElhone, a
restaurant employee, also had called 911 after the physical altercation began.
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State v. Calderon-Perez

tips regarding the assault. The post contained still
images from the video of both suspects leaving the
restaurant. One month later, on October 10, 2018,
Michaud received a voicemail from an anonymous
caller stating that an employee at Henry’s Garage, in
Bethany, ‘‘looks like the male suspect . . . .’’ Because
Bethany was outside the jurisdiction of the Southington
Police Department, Michaud contacted the Connecticut
State Police for assistance in following up on the tip.
On October 12, 2018, after being briefed by Michaud,
David Merriam of the Connecticut State Police went to
Henry’s Garage to follow up on the tip. At Henry’s
Garage, Merriam spoke with Henry Sarbieski,4 the
owner of the business, showed him three photographs
of the male suspect that had been taken from the video,
which Michaud had provided to him, and asked Sar-
bieski if he knew the person in the photographs. Sar-
bieski identified the person in the photographs as the
defendant and informed Merriam that the defendant
was present at work. Merriam then spoke with the
defendant, showed him the photographs that Michaud
had provided to him, and asked the defendant if he was
the person in the photographs. Although the defendant
replied affirmatively, he expressed confusion about
being at the restaurant’s Southington location, telling
Merriam that he had been to the restaurant’s Waterbury
location. Merriam told the defendant to contact
Michaud and collected his contact information, which
he then emailed to Michaud.
After learning from Merriam that the defendant had
identified himself as the person in the photographs,
Michaud determined that ‘‘the investigation was basi-
cally concluded’’ and, subsequently, applied for a war-
rant to arrest the defendant, which was reviewed and
4
Throughout the trial court record, Sarbieski’s name is occasionally
spelled as Sabieski.
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issued by the court on January 9, 2019. The defendant
was arrested on February 11, 2019. Following his arrest,
the defendant was charged in a substitute long form
information with assault in the second degree in viola-
tion of § 53a-60 (a) (6) and breach of the peace in the
second degree in violation of § 53a-181 (a) (1). A jury
trial followed, at which the state presented testimony
from Michaud; McHale; Yaglowski; Sarbieski; Merriam;
Jessica Nocera, a legal technology specialist at the
Office of the Chief State’s Attorney; and the victim. The
defendant presented testimony from Suzanne Bobro-
wiecki, an investigator at the New Britain public defend-
er’s office, and from three waitresses at the restaurant
who had witnessed the assault: Angeloni, Megan McEl-
hone and Lindsay Matthews. At trial, Angeloni testified
that she saw the perpetrator and that the individual
was not the defendant, but she could not otherwise
describe the perpetrator. McElhone testified that she
saw the perpetrator and that he was not the defendant.
She described the perpetrator as ‘‘maybe Dominican,
Jamaican, but he was darker skinned, probably about
my height, five six, five five, not heavy, in pretty good
shape but a smaller gentleman. He was not very tall
but he was definitely dark skinned . . . .’’ Matthews
also testified that she saw the perpetrator and that he
was not the defendant, and she described the perpetra-
tor as ‘‘[p]robably about six two, I mean very, very tall
gentleman, darker complexion.’’ In summary, the three
waitresses at the restaurant who had witnessed the
assault all affirmatively testified that the defendant was
not the perpetrator, and no other eyewitness identified
the defendant as the perpetrator.
At the conclusion of trial, the case was submitted
to the jury, which found the defendant guilty of both
charges. On May 11, 2023, the court, Baldini, J., sen-
tenced the defendant to a total effective term of five
years and ten months of incarceration and four years
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State v. Calderon-Perez

and two months of special parole. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.

The defendant claims that the court abused its discre-
tion when it ruled that ‘‘evidence of the defendant’s
height and weight . . . and whether he had tattoos on
his forearms was irrelevant . . . .’’ In support of his
claim that the court improperly excluded that evidence,
the defendant argues that such evidence was ‘‘relevant
and material’’ because it ‘‘would have corroborated [his]
assertion that he was not the perpetrator . . . .’’ He
further asserts that ‘‘the court’s conclusion that [such
evidence] was irrelevant is wrong and violated his right
to present a defense.’’ The essence of the defendant’s
argument is that, because his defense was a claim of
misidentification, evidence of his appearance during his
arrest was highly relevant and material to his defense.
Finally, he contends that, because the court’s erroneous
evidentiary ruling rose to the level of a constitutional
violation, the state bore the burden of proving that the
ruling was harmless beyond a reasonable doubt and
that the state failed to do so.5 We agree with the defen-
dant that the court abused its discretion in precluding
the proffered evidence and that the ruling deprived
him of his constitutional right to present a defense.
Furthermore, we also agree that the state failed to prove
that the ruling was harmless beyond a reasonable doubt,
and, therefore, the defendant is entitled to a new trial.

We first set forth the legal principles governing our
resolution of this claim. ‘‘It is fundamental that the
defendant’s [right] . . . to present a defense [is] guar-
anteed by the sixth amendment to the United States
5
The defendant also asserts that, to the extent that the court’s ruling did
not rise to the level of a constitutional violation, it nevertheless constituted
harmful error warranting reversal and a new trial.
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constitution . . . [which is] made applicable to state
6

prosecutions through the due process clause of the
fourteenth amendment.7 . . . A criminal defendant’s
right to present a defense is the right to present the
defendant’s version of the facts as well as the prosecu-
tion’s to the jury so that it may decide where the truth
lies. . . . Therefore, exclusion of evidence offered by
the defense may result in the denial of the defendant’s
right to present a defense.’’ (Citation omitted; footnotes
added; internal quotation marks omitted.) State v. Tor-
res, 343 Conn. 208, 217, 273 A.3d 163 (2022). ‘‘[T]he
federal constitution require[s] that criminal defendants
be afforded a meaningful opportunity to present a com-
plete defense.’’ (Internal quotation marks omitted.)
State v. Tony M., 332 Conn. 810, 831, 213 A.3d 1128
(2019).
‘‘A [criminal] defendant has a constitutional right to
present a defense, but he is [nonetheless] bound by the
rules of evidence in presenting a defense. . . .
Although exclusionary rules of evidence cannot be
applied mechanistically to deprive a defendant of his
rights, the constitution does not require that a defendant
be permitted to present every piece of evidence he
wishes. . . . Accordingly, [i]f the proffered evidence is
not relevant [or is otherwise inadmissible], the defen-
dant’s right to [present a defense] is not affected, and
the evidence was properly excluded. . . . Thus, the
6
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him; [and] to have compulsory
process for obtaining witnesses in his favor . . . .’’
‘‘A defendant’s right to present a defense is rooted in the compulsory
process and confrontation clauses of the sixth amendment . . . .’’ (Internal
quotation marks omitted.) State v. Andrews, 313 Conn. 266, 272 n.3, 96 A.3d
1199 (2014).
7
The fourteenth amendment to the United States constitution, § 1, pro-
vides in relevant part: ‘‘No State shall . . . deprive any person of life, liberty
or property, without due process of law . . . .’’
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question of the admissibility of the proffered evidence
is one of evidentiary, but not constitutional, dimen-
sion. . . .
‘‘It is axiomatic that [t]he trial court’s ruling on the
admissibility of evidence is entitled to great deference.
. . . In this regard, the trial court is vested with wide
discretion in determining the admissibility of evidence,
including issues of relevance and the scope of cross-
examination. . . . Accordingly, [t]he trial court’s rul-
ing on evidentiary matters will be overturned only upon
a showing of a clear abuse of the court’s discretion.
. . . In determining whether there has been an abuse
of discretion, every reasonable presumption should be
made in favor of the correctness of the trial court’s
ruling . . . .’’ (Citations omitted; internal quotation
marks omitted.) State v. Mark T., 339 Conn. 225, 231–32,
260 A.3d 402 (2021). ‘‘If, after reviewing the trial court’s
evidentiary rulings, we conclude that the trial court
properly excluded the proffered evidence, then the
defendant’s constitutional claims necessarily fail.’’
(Internal quotation marks omitted.) State v. Espinal,
208 Conn. App. 369, 379, 264 A.3d 1003, cert. denied,
340 Conn. 916, 266 A.3d 886 (2021). With these general
principles in mind, we turn to the defendant’s first claim.
I
The first issue we must decide with respect to this
claim is whether the court abused its discretion in
excluding the challenged evidence relating to the defen-
dant’s appearance as not relevant. The state argues
that ‘‘the court reasonably concluded that the proffered
evidence was not relevant because [information about
the defendant’s appearance] from six months after the
crime is not accurate of [his] appearance at the time
of the crime.’’ We do not agree with the state.
The following additional facts guide our analysis of
this issue. At trial, the state’s theory was that the defen-
dant was the perpetrator of the assault of the victim at
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the restaurant depicted in the video, as evidenced by
the fact that the defendant and Sarbieski had identified
the defendant as the person in the still photographs
taken from the video. To counter this, the defendant’s
theory of defense was that he and Sarbieski mistakenly
had identified the defendant as the person in the still
photographs.8 That theory was supported by the fact
that Sarbieski later retracted his identification. Specifi-
cally, during direct examination of Sarbieski by the
prosecutor, Sarbieski testified that, although he initially
had identified the defendant as the person in the photo-
graphs presented to him by Merriam, upon later inspec-
tion, he ‘‘saw tattoos’’ on the person in the photographs
and noted that the defendant does not have such tat-
toos. At the request of the prosecutor, Sarbieski identi-
fied the left and right arms of the person in the photo-
graphs of the video as being tattooed.
After the close of the state’s case-in-chief and during
a discussion with the court regarding the defense’s wit-
nesses, defense counsel stated that the defense planned
on eliciting testimony from Bobrowiecki concerning an
investigation of the defendant’s case she had performed
as an investigator for the New Britain public defender’s
office. Specifically, defense counsel sought to elicit tes-
timony about ‘‘[i]dentifying information regarding [the
defendant],’’ in particular, his ‘‘height and weight at
a time more contemporaneous to the incident’’ and
‘‘whether . . . [the defendant] has any tattoos on his
forearms.’’ Defense counsel asserted that Bobrowiecki
had acquired personal knowledge of this information
by reviewing a uniform arrest report regarding the
defendant’s arrest, which Bobrowiecki had obtained
8
In his principal appellate brief, the defendant asserts that, although he
did not testify, ‘‘the defense maintained throughout trial that [he] was not
pictured in the photographs or the [video] and that any identification made
by the defendant was incorrect and based on the poor quality of the video
and the lack of information from [Merriam].’’ In support of this assertion, he
cites to Sarbieski’s testimony and to the closing argument of defense counsel.
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State v. Calderon-Perez

during the course of her investigation and which the
defendant sought to admit into evidence through her
testimony. The uniform arrest report, which was pre-
pared on February 11, 2019, approximately six months
after the incident at the restaurant, provided that the
defendant was five feet, ten inches tall, weighed 240
pounds, and did not have any tattoos.
The prosecutor objected to the admission of this evi-
dence on the ground of relevance.9 In arguing against
the objection, defense counsel emphasized that the evi-
dence was ‘‘essential information to provide [to] the
trier of fact in assessing whether or not the individual
in the video is [the defendant]’’ and that it was ‘‘essential
to the defense’s case . . . [to be] able to present testi-
mony as to the tattoo status of [the defendant].’’ After
hearing from the prosecutor and defense counsel
regarding the objection, the court ruled: ‘‘[T]here’s the
issue of what [the defendant] looked like six months
after the incident that forms the basis of the charges
against him. Certainly . . . I think we talked about the
fact that someone can change their appearance in that
amount of time and . . . I understand the issue you
brought up about tattoos. People can also get tattoos
removed. So, in terms of offering testimony about [the
defendant’s] appearance six months after this incident
through this witness, that request is denied.’’
Following the court’s exclusion of this evidence, the
jury heard testimony from several witnesses concerning
9
Specifically, the prosecutor argued in relevant part: ‘‘[Y]ou can put on
1000 pounds in six months. Maybe not 1000, but you can put on a significant
amount of weight and your body can change in six months. . . . What [the
defendant’s] height and weight looked like . . . in February of 2019, I do
not believe is relevant. The jury can watch the video and make a determina-
tion that if the gentleman they see on the video is in fact [the defendant].
Having someone come in and say the person . . . that was arrested appears
to be fifty pounds heavier than the other is not relevant . . . . There is a
passage of time. We can’t say what this gentleman did over that six month
period and how he may have changed. That’s a question for the jury to
decide . . . and not for their investigator to testify to.’’
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the height and weight of the perpetrator and whether
he had any tattoos; that is, McElhone described the
perpetrator as ‘‘[m]aybe Dominican, Jamaican . . .
darker skinned, probably about . . . five six, five five
[in height], not heavy, in pretty good shape but a smaller
gentleman’’ and ‘‘not very tall’’; and Matthews described
the perpetrator as ‘‘[p]robably about six two, I mean
very, very tall gentleman, darker complexion.’’ Defense
counsel asked Matthews if she remembered ‘‘whether
[the person who threw the punch] had tattoos on their
forearms,’’ to which she replied: ‘‘Yes, I think so.’’
The defendant’s theory of defense is apparent from
the arguments of defense counsel and the prosecutor
during closing and rebuttal closing arguments, as the
subjects of the height and weight of the perpetrator,
and whether the perpetrator had any tattoos on his
forearms, were repeatedly referenced by defense coun-
sel and the prosecutor in their summations of the evi-
dence adduced at trial and their theories of the case.
For example, defense counsel stated in relevant part:
‘‘[Sarbieski] testified that he had been shown pictures
on October 12, [2018] . . . . And on that day, he said
that he told [Merriam] that the pictures look like [the
defendant]. . . . But all he looked at, he told us, was
the face of the person in the pictures. The face. He later
noticed that the . . . person in the images, the suspect,
looked like they had tattoos on their arms and that [the
defendant] doesn’t have any tattoos on his arms. And
when he was asked to look at the video . . . [w]hat
he said was see, tattoos [on] both arms.’’
In rebuttal closing argument, the prosecutor summa-
rized the testimony of the eyewitnesses, noting specifi-
cally their testimony about the height of the perpetrator
several times. The prosecutor then stated: ‘‘What can
you reasonably infer from these three witnesses? The
person who did this is between six feet, four inches
and . . . five feet, five inches. [The defendant] was
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State v. Calderon-Perez

definitely there, maybe not there, definitely not there.
Do any of these things match what you’ve seen and
heard during testimony and in evidence? If the person
who punched [the victim] is six feet, two inches, [or]
six feet, four inches, watch the video at the end. There’s
a guy standing next to the person who assaults [the
victim]. We say it’s [the defendant]. That guy has to be
seven foot if the person standing next to him is six feet,
two inches, six feet, four inches. Or does he look as
short as five feet, five inches [or] five feet, six inches?’’
The prosecutor then turned to the issue of tattoos,
stating: ‘‘Sarbieski says he—[Merriam] says he showed
[Sarbieski] all three photos, and he says it’s [the defen-
dant] and he [identifies] him here in court. Now [Sar-
bieski] testified he doesn’t think it’s [the defendant]
now because the guy in the video has tattoos down
both arms. Watch state’s exhibit 2, camera six, when
the assault takes place. Immediately before and immedi-
ately after. I want you each to sit in front of that laptop
and watch that scene right before he’s punched and
immediately after. Pause it, stop it. Pause it, stop it.
You are going to get a . . . clear look at both of his
arms. The right and left. There will be clear photos.
There are no tattoos on his arms, members of the jury,
and you can see that in the video. Watch it closely.
Take the time to look at it.
‘‘And you heard [Sarbieski say that he has] known
[the defendant] for six to eight years. [The defendant]
does not have tattoos. He’s a good friend, a great
mechanic, and, probably assuming, a good employee.
So yeah, maybe for [Sarbieski] it’s not [the defendant]
now. But, who pointed out to [Sarbieski] about those
tattoos? Who told him hey, look at the picture, look at
the tattoos? [The defendant] showed him those pic-
tures. The one person who benefits the most from [Sar-
bieski] changing his identification shows him tattoos
that don’t exist.’’
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The prosecutor continued: ‘‘Four and a half years
have passed since this incident, members of the jury.
People change in time. I want you all to take a close
look at [the defendant] now. Look at his face. Commit it
to memory. What you’re looking at is not [the defendant]
from 2018. You’re looking at him now. The video is [the
defendant] four and a half years ago. As counsel stated,
we had a pandemic.10 The pandemic thirty was a real
thing. Right? Some of us are still trying to take that
weight off. So, look at his face. Commit it to memory.
Members of the jury, it is not the state who will have
to look at that video and decide if the person who
assaulted [the victim] on August 11, 2018, is [the defen-
dant]. It is going to be your responsibility.’’ (Footnote
added.)
We next set forth the legal principles governing this
issue. ‘‘Section 4-1 of the Connecticut Code of Evidence
provides that ‘ ‘‘[r]elevant evidence’’ means evidence
having any tendency to make the existence of any fact
that is material to the determination of the proceeding
more probable or less probable than it would be without
the evidence.’ This court has noted that ‘[r]elevant evi-
dence is evidence that has a logical tendency to aid the
trier in the determination of an issue. . . . One fact is
relevant to another if in the common course of events
the existence of one, alone or with other facts, renders
the existence of the other either more certain or more
probable. . . . Evidence is not rendered inadmissible
because it is not conclusive. All that is required is that
the evidence tend to support a relevant fact even to a
slight degree, [as] long as it is not prejudicial . . . .’ ’’
State v. Kenneth B., 223 Conn. App. 270, 281–82, 308
A.3d 82, cert. denied, 348 Conn. 952, 308 A.3d 1038
(2024); see also Conn. Code Evid. § 4-2 (providing that
10
The prosecutor was alluding to the fact that, during the defense’s closing
argument, defense counsel mentioned that the assault took place four years
ago and that ‘‘COVID has happened since then.’’
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‘‘[a]ll relevant evidence is admissible’’ unless there is
legal basis for its exclusion); State v. Isabelle, 107 Conn.
App. 597, 607, 946 A.2d 266 (2008) (‘‘[i]t is a reasonable
exercise of judicial discretion to exclude . . . evidence
the relevancy of which appears to be so slight and
inconsequential that to admit it would distract attention
which should be concentrated on vital issues of the
case’’ (internal quotation marks omitted)).
‘‘ ‘ ‘‘Relevance’’ does not exist in a vacuum. Under
traditional definitions, to be relevant, a fact must be
‘‘material,’’ a term which [Federal Rule of Evidence]
401 replaces with the phrase, ‘‘fact that is of conse-
quence to the determination of the action.’’ ’ . . . 2 C.
Fishman, Jones on Evidence (7th Ed. 1994) § 11:3, p.
260. ‘Relevant evidence,’ according to § 4-1 of the Con-
necticut Code of Evidence, is ‘evidence having any ten-
dency to make the existence of any fact that is material
to the determination of the proceeding more probable
or less probable than it would be without the evidence.’
. . . ‘To determine whether a fact is ‘‘material’’ or
‘‘consequential,’’ it is necessary to examine the issues
in the case, as defined by the underlying substantive
law, the pleadings, applicable pretrial orders, and
events that develop during the trial. Thus, the relevance
of an offer of evidence must be assessed against the
elements of the cause of action, crime, or defenses at
issue in the trial. The connection to an element need
not be direct, so long as it exists. Once a witness has
testified to certain facts, for example, his credibility is
‘‘a fact that is of consequence to [or material to] the
determination of the action,’’ and evidence relating to
his credibility is therefore relevant—but only if the
facts to which the witness has already testified are
themselves relevant to an element of a crime, cause of
action, or defense in the case.’ . . . 2 C. Fishman,
supra, pp. 260–61.’’ (Emphasis altered.) State v. Fasano,
88 Conn. App. 17, 36–37, 868 A.2d 79, cert. denied, 274
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Conn. 904, 876 A.2d 15 (2005), cert. denied, 546 U.S.
1101, 126 S. Ct. 1037, 163 L. Ed. 2d 873 (2006).
Additionally, ‘‘[i]t is black letter law that in any crimi-
nal prosecution, the state bears the burden of proving
beyond a reasonable doubt the defendant’s identity as
. . . the [perpetrator] of the crime charged. . . . State
v. Jackson, 179 Conn. App. 40, 47, 177 A.3d 1190 (2017),
cert. denied, 328 Conn. 910, 178 A.3d 1041 (2018). [T]he
question of identity of a perpetrator of a crime is a
question of fact that is within the sole province of the
jury to resolve. . . . State v. Honsch, 349 Conn. 783,
811, 322 A.3d 1019 (2024).’’ (Internal quotation marks
omitted.) State v. Makins, 232 Conn. App. 199, 208–209,
335 A.3d 67 (2025), petition for cert. filed, (Conn. June
10, 2025) (No. 240398); see also State v. Honsch, supra,
811 (‘‘[t]he question of identity of a perpetrator of a
crime . . . [is an] essential element’’ (internal quota-
tion marks omitted)); State v. Jackson, 37 Conn. App.
491, 499, 656 A.2d 1056 (1995) (‘‘[i]dentity is always an
issue in any criminal case, and the burden [is always] on
the prosecution to prove the element of identification
beyond a reasonable doubt’’ (internal quotation marks
omitted)).
Evidence that is probative of identity is especially
relevant when identity is in dispute, as it was in the
present case. See State v. Reese, 77 Conn. App. 152,
166, 822 A.2d 348 (noting that ‘‘[t]he photograph [of the
defendant taken approximately six weeks before the
crime] was relevant to show [his] appearance’’ where
‘‘identification . . . was an issue’’), cert. denied, 265
Conn. 910, 831 A.2d 252 (2003). Thus, in such cases,
evidence of a defendant’s appearance is generally con-
sidered to have strong probative value with respect to
the issue of identity.11
11
See, e.g., Shiflett v. State, 52 Ala. App. 476, 480, 294 So. 2d 444 (1973)
(photograph of defendant showing his appearance one month after crime
had probative value on issue of identity), cert. denied, 292 Ala. 749, 294 So.
2d 448, cert. denied, 419 U.S. 867, 95 S. Ct. 124, 42 L. Ed. 2d 105 (1974);
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Significantly, courts routinely have considered evi-
dence regarding whether a defendant is tattooed to be
relevant to the issue of identity.12 See, e.g., State v. Buck,
100 N.E.3d 118, 140 (Ohio App. 2017) (‘‘Courts have
found evidence that a defendant has a particular tattoo
to be relevant for various purposes. For example, tattoo
evidence may be relevant to the identification of the
defendant.’’), review denied, 152 Ohio St. 3d 1444, 96
N.E.3d 299 (2018).13 Furthermore, evidence regarding
State v. Jamison, 163 S.W.3d 552, 560 (Mo. App. 2005) (‘‘[e]vidence demon-
strating the identity of the person charged with the commission of the crime
is logically relevant’’); People v. Chiari, 220 App. Div. 2d 316, 316, 632
N.Y.S.2d 564 (‘‘[w]here defendant argued that this was a case of mistaken
identity and that he was not the man who had sold cocaine to the undercover
[police officer], his arrest photo was properly admitted to establish his
appearance at the time of the crime’’), appeal denied, 87 N.Y.2d 899, 663
N.E.2d 1259 (1995).
12
Similarly, evidence regarding a defendant’s appearance is also relevant
to identification. For example, this court previously has concluded that a
defendant’s ‘‘physical description,’’ which necessarily includes height and
weight, ‘‘may be used for identification purposes . . . .’’ State v. Davis, 160
Conn. App. 251, 268, 124 A.3d 966, cert. denied, 320 Conn. 901, 127 A.3d
185 (2015). In Davis, the issue before this court concerned whether the
evidence was sufficient to demonstrate that the defendant, who had been
convicted of operating a motor vehicle while under the influence of intoxicat-
ing liquor in connection with an incident in November, 2010, and of being
a third time offender, was the same person who previously had been con-
victed of operating a motor vehicle while under the influence to support
his conviction as a third time offender. Id., 266–67. In concluding that the
record contained ample evidence to support the defendant’s conviction, this
court pointed out that the record contained a certified copy of a judgment
of conviction in 2007, which listed a name, date of birth, and home address
matching the defendant’s information. Id., 267–68. That document also
included an attached motor vehicle summons and complaint that listed a
physical description matching that of the defendant. Id., 269. This court also
noted that the physical description of the defendant’s height, weight, and
color of his hair and eyes in the 2007 summons and complaint matched the
physical description of the defendant in his uniform arrest report. Id., 269 n.8.
13
See also People v. Skinner, 53 P.3d 720, 723 (Colo. App. 2002) (‘‘evidence
of tattoos can be relevant to the issue of identity’’); Belmar v. State, 279
Ga. 795, 798, 621 S.E.2d 441 (2005) (‘‘We have upheld the admission of a
photograph of a tattoo on the body of the defendant . . . when it is used for
purposes of identification. . . . Other courts also have admitted evidence
of tattoos . . . to aid in identification.’’ (Citations omitted.)).
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a defendant’s tattoos, such as from a photograph or
testimonial description, is generally considered rele-
vant to the issue of identity, regardless of when it was
created or perceived. See State v. Carpenter, 232 N.C.
App. 637, 642, 754 S.E.2d 478, review denied, 367 N.C.
518, 762 S.E.2d 443 (2014); Stone v. State, 635 S.W.3d
763, 770 (Tex. App. 2021); see also State v. Rios, 171
Conn. App. 1, 41, 156 A.3d 18 (‘‘[n]umerous courts have
upheld the admission of tattoo evidence after weighing
the probative value of the evidence versus its prejudicial
effects’’), cert. denied, 325 Conn 914, 159 A.3d 232
(2017). To be sure, such evidence is generally consid-
ered to be relevant to the issue of identity even if it
comes in the form of an in-person display before the
jury during trial. See, e.g., State v. Hubbard, 659 S.W.2d
551, 559 (Mo. App. 1983) (rejecting defendant’s argu-
ment that ‘‘trial court erred in requiring him to expose
his tattooed arms during the trial because such display
had no probative value, was immaterial and prejudicial’’
and concluding, instead, that ‘‘[e]vidence of [his] tattoos
was relevant as corroboration of [a witness’] identifica-
tion of [his] other physical features’’); State v. Meade,
196 W. Va. 551, 557, 474 S.E.2d 481 (1996) (‘‘ordinarily,
it is not an abuse of discretion for a trial court in a
criminal case to direct the accused to reveal or display
the accused’s tattoos to a witness and to the jury at
trial, where the accused’s tattoos are relevant to the
question of the identification of the perpetrator of the
offense and where the trial court has weighed the proba-
tive value of such evidence against the danger of unfair
prejudice’’).14
14
The state argues that we should not be persuaded by cases in which,
unlike the present case, the jury was not presented with a video of the
perpetrator. We find this argument unavailing given that a determination of
whether the person in the video had tattoos is not easily discernable and
that identity was disputed. As a result, the excluded evidence could have
assisted the jury, at least to some degree, in determining whether the defen-
dant was correctly identified as the person in the still photographs taken
from the video.
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In the present case, the central question before the
jury was the identity of the perpetrator; that is, whether
the defendant was the person depicted in the video. As
we have stated, the three waitresses at the restaurant
who had witnessed the assault all testified affirmatively
that the defendant was not the perpetrator. This meant
that the only identifications of the defendant as the
perpetrator consisted of (1) the defendant’s self-identi-
fication, which was made on the basis of the still photo-
graphs, not the video of the incident, and (2) Sarbieski’s
initial identification of the defendant as the person in
the still photographs, which he retracted at trial, testi-
fying that he was mistaken because the perpetrator,
unlike the defendant, had tattoos on his arms. It was
vital to the defendant’s theory of defense of mistaken
identification, therefore, that he be able to dispute the
notion that he was the person depicted in the video of
the perpetrator, which, necessarily, involves a compari-
son of the appearance of the perpetrator in the video
to that of the defendant.

There was testimony before the jury about the height
and build, or weight, of the perpetrator, as well as
whether the perpetrator had tattoos on his arms. More-
over, the height, weight, and tattoos of the perpetrator
undeniably were connected to the defendant’s theory
of defense that he was not the person depicted in the
video, which rendered them material to the issue of
identity in this case. See State v. Mark T., supra, 339
Conn. 242 (‘‘[t]he degree to which any evidence is mate-
rial and relevant must be assessed in light of the fact or
issue that it was intended to prove’’ (internal quotation
marks omitted)). As we have stated, evidence is relevant
when it tends to support a relevant fact, even to a slight
degree; see State v. Kenneth B., supra, 223 Conn. App.
282; it ‘‘is not rendered inadmissible just because it is
circumstantial or not conclusive’’; State v. Hamilton,
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352 Conn. 317, 354, A.3d (2025); and its rele-
vance must be assessed against, inter alia, the elements
of the defense at issue in the trial. See State v. Fasano,
supra, 88 Conn. App. 36–37. The defendant’s defense
was that he was not the person who committed the
assault because, primarily, the perpetrator had tattoos
on his forearms and the defendant does not have tattoos
on his forearms. To support that defense, he wanted
to present evidence demonstrating that he did not have
any such tattoos six months after the incident at the
restaurant.

Moreover, not only did the prosecutor in this case
utilize the testimony about the height, weight, and tat-
toos of the perpetrator in his closing argument to assert
the state’s position that the defendant’s appearance
matched that of the perpetrator, but he also specifically
pointed out that the trial was taking place four and one-
half years after the incident at the restaurant and that
the jury should, thus, account for weight gain due to
the COVID-19 pandemic, which occurred in the interim.
Consequently, evidence of the defendant’s height and
weight, and whether he had tattoos on his forearms
when he was arrested six months after the incident,
which was much closer in time to the assault than when
the trial occurred, was relevant to the issue of identity
and the defendant’s theory of defense. The court’s ruling
precluding the evidence was based on its conclusion
that the proffered evidence was not relevant because,
within six months, a person’s appearance can change
and tattoos can be removed. The fact that the informa-
tion was recorded six months following the assault,
however, was a matter concerning the weight of the
evidence to be afforded by the jury, not its admissibility,
and that does not diminish its relevance to the issue of
the identity of the perpetrator, which was the central
issue at trial.
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The court’s concern that, during the course of six
months, a person’s appearance can change and tattoos
can be removed, also involves a reasonable, common-
sense inference that the jury could have drawn when
considering the evidence. See State v. Patrick M., 344
Conn. 565, 576, 280 A.3d 461 (2022) (‘‘[t]he jury is permit-
ted to rely on its common sense, experience and knowl-
edge of human nature in drawing inferences . . . and
may draw factual inferences on the basis of already
inferred facts’’ (internal quotation marks omitted));
State v. Torres, 82 Conn. App. 823, 831, 847 A.2d 1022
(‘‘Jurors do not live in a fishbowl. . . . In considering
the evidence . . . [j]uries are not required to leave
common sense at the courtroom door . . . .’’ (Internal
quotation marks omitted.)), cert. denied, 270 Conn. 909,
853 A.2d 525 (2004); see also, e.g., People v. Harland,
251 P.3d 515, 519 (Colo. App. 2010) (rejecting ‘‘argument
that [the victim’s] description of the [defendant’s] teddy
bear tattoo was not probative of identity’’ and recogniz-
ing that ‘‘[a]ny discrepancy between [the victim’s]
description of the tattoo . . . and the [other] evidence
[about the tattoo] . . . was for the jury to weigh’’),
cert. denied, Docket No. 10SC563, 2011 WL 51758 (Colo.
January 3, 2011). Because the issue of whether the
perpetrator had tattoos on his arms was raised before
the jury through the testimony of Sarbieski and Mat-
thews, it follows that whether the defendant had tattoos
on his arms was highly relevant to the issue of identity.
See, e.g., Stone v. State, supra, 635 S.W.3d 770 (‘‘[e]vi-
dence of [the defendant’s] back tattoos,’’ namely, ‘‘a
photograph of [his] back tattoos’’ taken at undisclosed
time, ‘‘was relevant to his identity because no witness
at the crime scene could identify [him], and the witness
. . . described a tattooed man’’); see also State v. Car-
penter, supra, 232 N.C. App. 642 (photographs of defen-
dant’s tattoo taken six months after his arrest ‘‘were
relevant to proving his identity as the perpetrator’’).
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Evidence tending to show that the perpetrator’s appear-
ance was inconsistent with the defendant’s appearance,
including whether the former had tattoos whereas the
latter did not, was, therefore, ‘‘relevant and material
to’’ a ‘‘defense theory [that] related to a central and
critical question before the jury,’’ namely, whether the
defendant was correctly identified as the perpetrator.
State v. Wright, 320 Conn. 781, 821, 135 A.3d 1 (2016).
It is also significant that the three waitresses who
witnessed the assault all testified that the defendant was
not the person who assaulted the victim. See Thomas
v. State, 811 P.2d 1337, 1343 (Okla. Crim. App. 1991)
(‘‘in light of the witness’ inability to identify [the defen-
dant] . . . the testimony concerning the [defendant’s]
tattoo must be considered relevant evidence’’), cert.
denied, 502 U.S. 1041, 112 S. Ct. 895, 116 L. Ed. 2d 798
(1992). Therefore, at a minimum, the admission of the
uniform arrest report, which stated that the defendant
did not have tattoos on his arms at the time of his arrest,
would have had at least a slight logical tendency to aid
the jury in its determination of whether the defendant
was correctly identified as the person in the video. See
State v. Kenneth B., supra, 223 Conn. App. 282. The
uniform arrest report also may have influenced the
jury’s determination of guilt given that the state lacked
any physical or direct evidence implicating the defen-
dant in the assault of the victim. Again, the issue of
whether the defendant had tattoos removed between
the time of the incident at the restaurant and his arrest
six months later was a matter for the jury to consider in
determining what weight, if any, to give such evidence.
We, therefore, conclude that the court abused its
discretion in determining that the proffered evidence of
the defendant’s appearance, as described in the uniform
arrest report, was not relevant and excluding it on
that basis.
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II
Having determined that the court abused its discre-
tion in excluding the evidence as irrelevant, we next
must determine whether the improper evidentiary rul-
ing rose to the level of a constitutional violation of
the defendant’s right to present a defense. See State v.
Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).
The following legal standards guide our resolution
of this issue. ‘‘[W]hether a trial court’s [exclusion of
evidence offered by a criminal defendant] deprives
[him] of his [constitutional] right to present a defense
is a question that must be resolved on a case by case
basis. . . . The primary consideration in determining
whether a trial court’s ruling violated a defendant’s right
to present a defense is the centrality of the excluded
evidence to the claim or claims raised by the defendant
at trial. . . . Moreover, [a] defendant may not success-
fully prevail on a claim of a violation of his right to
present a defense if he has failed to take steps to exer-
cise the right or if he adequately has been permitted
to present the defense by different means.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Leniart, 198 Conn. App. 591, 603–604, 233 A.3d 1183,
cert. denied, 335 Conn. 971, 240 A.3d 1055 (2020).
Although ‘‘[i]t is well established that [t]he federal
constitution require[s] that criminal defendants be
afforded a meaningful opportunity to present a com-
plete defense,’’ our appellate courts have not expressly
set forth what that guarantee entails. (Internal quotation
marks omitted.) State v. Hedge, 297 Conn. 621, 634, 1
A.3d 1051 (2010). A review of our case law indicates
that this right encompasses, at least, the presentation
of evidence that is exculpatory, material, or otherwise
central to a claim raised by the defendant at trial; see,
e.g., State v. Wright, supra, 320 Conn. 821 (trial court’s
exclusion of evidence that was relevant and material
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to ‘‘defense theory [that] related to a central and critical
question before the jury’’ violated defendant’s constitu-
tional right to present defense); State v. Cerreta, 260
Conn. 251, 264, 796 A.2d 1176 (2002) (trial court’s erro-
neous exclusion of evidence amounted to constitutional
violation because ‘‘[t]he excluded evidence not only
was relevant to the primary issue at trial, namely, the
identity of the perpetrator, it was central to the defen-
dant’s claim of innocence’’ and ‘‘crucial to his defense’’);
State v. Leniart, supra, 198 Conn. App. 603 (‘‘[t]he pri-
mary consideration in determining whether a trial
court’s ruling violated a defendant’s right to present a
defense is the centrality of the excluded evidence to
the claim or claims raised by the defendant at trial’’
(internal quotation marks omitted)); and, perhaps also,
evidence that is simply admissible and relevant. See
State v. Morgan, 70 Conn. App. 255, 265, 797 A.2d 616
(‘‘[a] defendant’s right to present a defense guarantees
his or her right, to be exercised within limits, to present
relevant evidence’’ (emphasis in original)), cert. denied,
261 Conn. 919, 806 A.2d 1056 (2002). Accordingly, our
Supreme Court has recognized that ‘‘[t]he defendant’s
right to present a defense ‘would be an empty one if the
[s]tate were permitted to exclude competent, reliable
evidence . . . when such evidence is central to the
defendant’s claim of innocence.’ ’’ State v. Cerreta,
supra, 264–65, quoting Crane v. Kentucky, 476 U.S. 683,
690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986); see also
United States v. Scheffer, 523 U.S. 303, 315, 118 S. Ct.
1261, 140 L. Ed. 2d 413 (1998) (observing that ‘‘[t]he
exclusions of evidence that [the United States Supreme
Court] [has] declared unconstitutional . . . signifi-
cantly undermined fundamental elements of the defen-
dant’s defense’’); Pennsylvania v. Ritchie, 480 U.S. 39,
56, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987) (‘‘at a minimum
. . . criminal defendants have . . . the right to put
before a jury evidence that might influence the determi-
nation of guilt’’).
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In light of these principles, the essential question in
the present case of whether the defendant was afforded
a meaningful opportunity to present a complete defense
involves a determination of whether the court’s exclu-
sion of the uniform arrest report significantly under-
mined a central aspect of the defendant’s defense. See
State v. Cerreta, supra, 260 Conn. 264–65; see also
United States v. Scheffer, supra, 523 U.S. 315. If the
evidence was central to the misidentification defense
the defendant sought to present and might have influ-
enced the jury’s determination of guilt, the court’s erro-
neous exclusion of the evidence amounted to a violation
of the defendant’s constitutional right to present a
defense. See State v. Cerreta, supra, 264–65; see also
Pennsylvania v. Ritchie, supra, 480 U.S. 56. Conversely,
if the excluded evidence was not central to a theory
advanced by the defendant or to a critical issue in the
case, or if its substance was, or could have been, pre-
sented to the jury by other means, the defendant’s con-
stitutional right to present a defense was not violated.
See State v. Leniart, supra, 198 Conn. App. 603–604.
Our analysis begins with an examination of the theo-
ries presented by the state and the defendant at trial
to determine the fundamental components of the defen-
dant’s misidentification defense. The state’s theory of
the case was that the defendant was the perpetrator
based on the facts that he identified himself as the
person in the still images of the perpetrator from the
video that had been shown to him by Merriam and that
Sarbieski did the same. In contrast, the defense’s theory
of the case was that the defendant and Sarbieski incor-
rectly had identified the defendant as the person in the
still images of the perpetrator primarily on the basis
that the perpetrator had tattoos and the defendant does
not have tattoos, as indicated on the uniform arrest
report. The defendant also sought to admit, through the
uniform arrest report, evidence pertaining to his height
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and weight, which could have been used to contradict
testimony of witnesses describing the height and weight
of the perpetrator. It follows, therefore, that evidence
pertaining to those factors—height, weight, and tat-
toos—was central to a critical issue in the case, namely,
the identity of the defendant as the perpetrator.
In the present case, the defendant sought to admit the
uniform arrest report and testimony from Bobrowiecki
relating to the report, which constituted the only evi-
dence offered by the defendant to establish one of the
fundamental components of his misidentification
defense—that he does not have tattoos. See State v.
Wright, supra, 320 Conn. 821 (‘‘[m]ore troubling, the
excluded testimony was the only evidence the defense
presented to support its theory of the case’’). Indeed,
defense counsel stated to the court that ‘‘the tattoo
status of [the defendant]’’ was ‘‘essential to the
defense’s case . . . .’’ See State v. Smith, 85 Conn.
App. 96, 110–11, 856 A.2d 466 (2004) (recognizing that
evidence that is ‘‘relevant and central to [a defendant’s]
claim that he was misidentified as the complainant’s
attacker . . . is crucial to his defense’’ (citation omit-
ted)), aff’d, 280 Conn. 285, 907 A.2d 73 (2006); see also
State v. Timothy C., 237 W. Va. 435, 445, 787 S.E.2d 888
(2016) (court’s exclusion of ‘‘identity-related’’ evidence
violated defendant’s right to present defense ‘‘because
[his] defense was his innocence,’’ and, therefore,
excluded evidence ‘‘was critical to his defense’’).
Indeed, in State v. Cerreta, supra, 260 Conn. 251,
our Supreme Court held that an erroneous evidentiary
ruling amounted to a constitutional violation under cir-
cumstances similar to those of the present case. Id.,
264. In Cerreta, which involved a killing during a home
invasion, the defendant raised a third-party culpability
defense and ‘‘attempted to present to the jury evidence
that the police had found hair and fingerprints at the
crime scene that did not belong to the defendant.’’ Id.,
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262. After first determining that the trial court’s exclu-
sion of the evidence as irrelevant was improper because
the evidence ‘‘was exculpatory and probative’’; id.; our
Supreme Court held that the erroneous ruling was con-
stitutional in nature because ‘‘[t]he excluded evidence
not only was relevant to the primary issue at trial,
namely, the identity of the perpetrator, it was central
to the defendant’s claim of innocence . . . [and] was,
in essence, the most compelling evidence available to
the defendant and was crucial to his defense.’’ Id., 264.
In the present case, the information pertaining to the
defendant’s appearance in the uniform arrest report was
highly probative, material and potentially exculpatory,
because if a juror had determined from the video and
testimony offered that the perpetrator had tattoos, the
existence of a uniform arrest report prepared by an
independent party stating that the defendant does not
have tattoos could have ‘‘ ‘create[d] a reasonable doubt
[about the defendant’s guilt] that did not otherwise exist
. . . .’ ’’ Miller v. Angliker, 4 Conn. App. 406, 421, 494
A.2d 1226, cert. denied, 197 Conn. 809, 499 A.2d 59
(1985), quoting United States v. Agurs, 427 U.S. 97, 112,
96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). Lastly, the record
suggests that the excluded evidence was the most com-
pelling evidence available to the defendant to establish
this element of his defense, as, by all indications, it was
the only evidence from an independent, objective party
that the defendant could have offered at trial concerning
his appearance closer to the time of the incident. See
State v. Wright, supra, 320 Conn. 821; State v. Cerreta,
supra, 260 Conn. 264–65.
Consequently, the court’s exclusion of the uniform
arrest report hindered the defendant’s ability to present
his misidentification defense. As a result, the defendant
presented an incomplete defense, and his ability to put
the key aspect of his misidentification theory before
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the jury was relegated to references during closing argu-
ment to testimony from Sarbieski, a witness for the
state who had a connection to the defendant. See Kos
v. Lawrence + Memorial Hospital, 334 Conn. 823, 843,
225 A.3d 261 (2020) (statements made by counsel during
closing argument are not evidence). That is contrary
to the principle that the constitutional right to present
a defense ‘‘is the right to present the defendant’s version
of the facts . . . to the jury so that it may decide where
the truth lies’’; (internal quotation marks omitted) State
v. Torres, supra, 343 Conn. 217; which entails a ‘‘mean-
ingful opportunity to present a complete defense.’’
(Internal quotation marks omitted.) State v. Tony M.,
supra, 332 Conn. 831; see People v. Cerda, 40 N.Y.3d
369, 378, 223 N.E.3d 308, 199 N.Y.S.3d 887 (2023) (trial
court’s erroneous evidentiary ruling violated defen-
dant’s constitutional right to present defense because,
‘‘[b]y permitting defense counsel to suggest to the jury
that there were alternative innocent explanations . . .
yet excluding the most viable evidence to support that
premise, the trial court’s ruling deflated the strength of
the defense’’).
There is one final issue we must examine in our
determination of whether the exclusion of the evidence
rose to the level of a constitutional violation. Specifi-
cally, our case law also directs that a court’s erroneous
ruling cannot be considered a constitutional violation of
a defendant’s right to present a defense if the defendant
‘‘failed to take steps to exercise the right or if he ade-
quately has been permitted to present the defense by
different means.’’ (Internal quotation marks omitted.)
State v. Leniart, supra, 198 Conn. App. 603–604; see
State v. Santana, 313 Conn. 461, 471, 97 A.3d 963 (2014)
(evidentiary claim was nonconstitutional because ‘‘the
defendant could have pursued other avenues’’ to estab-
lish his third-party culpability defense); State v. Osi-
manti, 299 Conn. 1, 17, 6 A.3d 790 (2010) (evidentiary
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claims were nonconstitutional because defendant was
permitted to present other evidence to support defense
theory).15
The record in the present case shows that the defen-
dant took the steps necessary to exercise his right to
present a defense, which, as discussed, requires that a
defendant is permitted to present his ‘‘version of the
facts . . . to the jury so that it may decide where the
truth lies.’’ (Internal quotation marks omitted.) State v.
Torres, supra, 343 Conn. 217. The version of the facts
that the defendant sought to present to the jury was
simple—that he had been misidentified as the person
15
In arguing on appeal that the defendant’s claim is evidentiary in nature,
the state has not asserted that the defendant ‘‘failed to take steps to exercise
the right’’ or that ‘‘he adequately has been permitted to present the defense
by different means.’’ (Internal quotation marks omitted.) State v. Leniart,
supra, 198 Conn. App. 603–604. Rather, the state merely contends that ‘‘the
jury had before it ample evidence of the defendant’s appearance at the time
of the crime in the form of evidence from the video that the defendant was
the individual in the video who assaulted the victim. As discussed . . . the
jury had: (1) the surveillance video which showed the defendant punching
the victim twice in the head; (2) the defendant himself at the trial; (3) the
testimony of Merriam whom the defendant identified himself in front of;
(4) the three photographs from the video that Merriam showed the defendant;
(5) the testimony of [Sarbieski] who also identified the defendant from the
same three photographs; (6) the testimony of three waitresses who were
all present during the assault; and (7) Angeloni’s identification of the defen-
dant.’’ We find no merit to this contention.
First, the state’s argument that the jury had evidence of the defendant’s
appearance from the video of the perpetrator or the photographs taken
from the video presumes that the defendant is the perpetrator. Second, the
prosecutor specifically pointed out to the jury that four and one-half years
had passed since the incident and that, because ‘‘[p]eople change in time’’
and the video was from four and one-half years ago, the jurors should look
at the defendant’s face and commit it to memory, as ‘‘[t]he [COVID-19]
pandemic thirty was a real thing,’’ which suggested that the defendant’s
appearance may have changed due to significant weight gain during the
COVID-19 pandemic. Moreover, two of the three waitresses gave descrip-
tions of the perpetrator, and all three testified that the defendant was not
the perpetrator. Angeloni did not identify the defendant as the perpetrator;
on the contrary, she testified that she saw the perpetrator, that the perpetra-
tor was not the defendant, and that she otherwise could not describe the
perpetrator.
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who assaulted the victim. The defendant attempted to
present this version of the facts by offering the uniform
arrest report into evidence through the testimony of
Bobrowiecki.
Moreover, nothing in the record indicates that there
were other means by which the defendant adequately
was permitted to present his misidentification defense.16
The uniform arrest report was the only independent
documentary evidence that was offered at trial showing
the defendant’s height and weight and that he did not
have tattoos, at least at the time he was arrested. See
Scrimo v. Lee, 935 F.3d 103, 120 (2d Cir. 2019) (defen-
dant ‘‘was deprived of his constitutional right to present
a complete defense’’ because ‘‘[i]n circumstances in
which . . . the marginal evidence pointing to the
defendant over another person is flimsy, and the excluded
evidence was the only independent source of facts
essential to proving the defense’s theory that the other
person committed the crime, we must conclude that the
wrongfully excluded testimony would have introduced
reasonable doubt where none otherwise existed’’
(emphasis added)). The fact that Sarbieski testified,
during the state’s case-in-chief, that the defendant did
not have tattoos, by itself, cannot be construed as ade-
quate other means by which to present the defendant’s
theory of defense. Sarbieski was the defendant’s long-
standing employer and, as the prosecutor pointed out to
the jury, a ‘‘good friend’’ of the defendant. His testimony
about the defendant’s lack of tattoos, as juxtaposed
against evidence from an objective and independent
third party, the uniform arrest report, was not evidence
of equivalent value to the defendant. See State v. Osi-
manti, supra, 299 Conn. 17 (exclusion of evidence of
16
We note that there is nothing in the record indicating that the jury was
otherwise able to view the defendant’s forearms at trial, that is, whether,
for example, the defendant wore short sleeves, and the state has not briefed
any such claim on appeal.
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victim’s conviction for violation of protective order and
of inquiry into victim’s history of domestic violence,
which was offered to prove victim’s ‘‘violent character,’’
when defendant claimed self-defense, was nonconstitu-
tional because defendant ‘‘was able to introduce evi-
dence to that effect in the form of the victim’s lengthy
criminal record and gang affiliations, as well as through
his cross-examination of [a witness]’’); State v. Papi-
neau, 182 Conn. App. 756, 780–82, 190 A.3d 913 (exclu-
sion of testimony from defendant’s mother concerning
innocent explanation for defendant’s flight—that prior
to crime, he planned to travel to Massachusetts—was
not constitutional in nature because ‘‘the defendant was
permitted to present evidence that he had preexisting
plans to travel to [Massachusetts] by means other than
the narrow inquiry that was excluded,’’ namely, through
testimony of two other witnesses), cert. denied, 330
Conn. 916, 193 A.3d 1212 (2018). Therefore, we cannot
conclude that the defendant was adequately permitted
to present his misidentification defense through the
evidence that was admitted at trial.
In sum, no reasonable review of the record could
lead to the conclusion that the defendant was ‘‘ade-
quately . . . permitted’’; (internal quotation marks
omitted) State v. Leniart, supra, 198 Conn. App. 604; ‘‘a
meaningful opportunity to present a complete defense’’;
(internal quotation marks omitted) State v. Cerreta,
supra, 260 Conn. 260; as the court prevented him from
presenting relevant and material evidence that sup-
ported his version of the facts, that he considered to
be ‘‘essential’’ to his misidentification theory of defense,
and that was central to the critical issue of identity.
See State v. Torres, supra, 343 Conn. 217; State v. Cer-
reta, supra, 264–65. Accordingly, we are convinced that
the court’s erroneous exclusion of the uniform arrest
report rose to the level of a constitutional violation, as
it resulted in the exclusion of evidence that was material
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to the central issue of identity and to the defendant’s
defense of misidentification.
III
Because we have determined that the court’s exclu-
sion of the proffered evidence constituted an abuse of
discretion that is of constitutional magnitude, we next
must ‘‘consider whether the exclusion of the evidence
was harmless beyond a reasonable doubt’’ to determine
whether a new trial is warranted. State v. Wright, supra,
320 Conn. 825. In such cases, ‘‘the state has the burden
of proving the constitutional error was harmless beyond
a reasonable doubt. . . . Whether a constitutional vio-
lation is harmless in a particular case depends upon
the totality of the evidence presented at trial. . . . If
the evidence may have had a tendency to influence the
judgment of the jury, it cannot be considered harmless.’’
(Citation omitted; internal quotation marks omitted.)
State v. Carpenter, 275 Conn. 785, 832, 882 A.2d 604
(2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164
L. Ed. 2d 309 (2006).
The state argues that the court’s erroneous ruling
was harmless because ‘‘any relevance to the defendant’s
physical description in the arrest report was slight and
would likely have been inconsequential because the
jury had before it ample evidence of the defendant’s
appearance at the time of the crime in the form of
evidence from the video,’’ which shows the perpetrator
of the crimes. This argument presumes that the defen-
dant is the person depicted in the video. See footnote
15 of this opinion. Therefore, the state asserts that ‘‘[t]he
proffered evidence . . . would not have strengthened
the defense’s case or weakened the state’s case in any
appreciable way due to the ample evidence the jury
had before it on the identity of the suspect.’’ We con-
clude that the state has not met its burden of demonstra-
ting harmless error.
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An appellate court ‘‘cannot hold a constitutional vio-
lation harmless unless [it is] ‘able to declare a belief
that it was harmless beyond a reasonable doubt.’ ’’ State
v. Cerreta, supra, 260 Conn. 265. That is to say, it must
appear ‘‘beyond a reasonable doubt that the [error]
complained of did not contribute to the verdict
obtained. . . . If the evidence may have had a tendency
to influence the judgment of the jury, it cannot be con-
sidered harmless. . . . That determination must be
made in light of the entire record [including the strength
of the state’s case without the evidence admitted in
error]. . . . Additional factors that [our Supreme Court
has] considered in determining whether an error is
harmless in a particular case include the importance
of the challenged evidence to the [defendant’s] case,
whether it is cumulative, the extent of cross-examina-
tion permitted, and the presence or absence of corrobo-
rating or contradicting evidence or testimony. . . . In
other words, we [must be] satisfied beyond a reasonable
doubt that the result would be the same without the
admission of the assumedly improper evidence. . . .
This inquiry is an objective one and requires us to con-
sider the quality and quantity of both the inadmissible
evidence and the admissible evidence that remains to
support the verdict of the jury.’’ (Citations omitted;
internal quotation marks omitted.) State v. Sayles, 348
Conn. 669, 682–83, 310 A.3d 929 (2024); see also State
v. Sweet, 214 Conn. App. 679, 698, 280 A.3d 1243 (‘‘[t]his
court has held in a number of cases that when there is
independent overwhelming evidence of guilt, a constitu-
tional error would be rendered harmless beyond a rea-
sonable doubt’’ (internal quotation marks omitted)),
cert. denied, 345 Conn. 920, 284 A.3d 983 (2022).
As case law indicates, when identity is a disputed
issue, as in the present case, evidence of a person’s
appearance is not only relevant but is indeed highly
material. See State v. Smith, supra, 85 Conn. App.
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110–11; State v. Reese, supra, 77 Conn. App. 166; see
also footnote 11 of this opinion. The state’s assertion
that any harm resulting from the exclusion of the evi-
dence was inconsequential in light of the video, which
it contends is strong evidence of the defendant’s guilt,
ignores the fact that the defendant’s theory was that
he was incorrectly identified as the person in the still
photographs taken from the video. The video itself was
not entirely clear, and, thus, it was not undisputed that
the defendant was the person in the video. Moreover,
the three waitresses who witnessed the assault at the
restaurant all affirmatively testified that the defendant
was not the perpetrator. Thus, in the present case, there
was no ‘‘independent overwhelming evidence of guilt
. . . .’’ (Internal quotation marks omitted.) State v.
Sweet, supra, 214 Conn. App. 698. For this reason, any
evidence tending to show a difference between the
appearance of the defendant and the perpetrator cap-
tured in the video certainly could have affected the
strength of the state’s case and the defendant’s defense,
which, in turn, may have had a tendency to influence
the jury’s verdict. See State v. Carpenter, supra, 275
Conn. 832. Thus, evidence in the form of the uniform
arrest report was of significant value to the defendant’s
defense because it constituted independent evidence
concerning his appearance, as opposed to testimony
from Sarbieski, who had a relationship with the defen-
dant. For these same reasons, the uniform arrest report
would not have been cumulative evidence. See State v.
Sayles, supra, 348 Conn. 682–83.
In addition, the court’s erroneous ruling excluded
what was substantially the only evidence regarding the
lack of tattoos on the defendant that the defendant
sought to present in support of his defense of mistaken
identity. See State v. Wright, supra, 320 Conn. 821. When
a court’s ruling results in the exclusion of essentially
the only relevant evidence a defendant seeks to present
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in support of his primary defense theory—and the evi-
dence is material to a disputed issue in the case—it is
not reasonable to believe that, had the defendant been
permitted to introduce such evidence, it would not have
had any tendency to influence the jury’s verdict. For
instance, if any juror deduced from his or her analysis
of the video that the perpetrator had tattoos, the pres-
ence of a uniform arrest report stating that the defen-
dant did not have tattoos may have created reasonable
doubt with respect to the conclusion that the perpetra-
tor in the video was the defendant, as opposed to the
testimony from Sarbieski, which the jury could have
discounted as being from someone who was partial to
the defendant and which had no independent corrobo-
ration. The trial court’s exclusion of the uniform arrest
report deprived the defendant of a meaningful opportu-
nity to present a complete defense of misidentification,
and the jury should have been allowed to hear and
assess the excluded information and to reach a verdict
after weighing all the relevant evidence.
The present case is akin to State v. Smith, supra, 85
Conn. App. 96, in which this court held that the trial
court’s erroneous exclusion of evidence was a constitu-
tional violation warranting reversal because ‘‘[t]he
exclusion of the evidence . . . interfere[d] with [the
defendant’s] right to use a defense of misidentification
and, therefore, could not be harmless.’’ (Emphasis
added.) Id., 110. In Smith, this court reasoned that,
‘‘[w]hen the excluded evidence is relevant to the pri-
mary issue at trial, namely, the identity of the attacker,
and central to the defendant’s plea of not guilty and is
the most compelling evidence available to the defen-
dant, it is crucial to his defense, and the [exclusion] of
such evidence conflicts with the defendant’s right to
present a defense.’’ Id., 110–11. Those circumstances
are analogous to the present case, in which the defen-
dant’s identity was the primary issue at trial, and in
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which, as in Smith, ‘‘the evidence the defendant sought
to have admitted would not [have] exonerate[d] him
unequivocally, but it would [have] be[en] relevant and
central to his claim that he was misidentified as the
complainant’s attacker.’’ (Emphasis added.) Id., 110.
Thus, because the court’s erroneous ruling in the pres-
ent case interfered with the defendant’s right to use his
chosen defense of misidentification, we are unable to
conclude that the court’s error was harmless. See id.,
110–11.
Finally, even though we do not address the defen-
dant’s prosecutorial impropriety claims17 in light of our
determination that the defendant was denied his consti-
tutional right to present a defense and, thus, that a new
trial is warranted, we nevertheless point out that, in
assessing the harmfulness of the court’s improper evi-
dentiary ruling, we must view the entire record, which
necessarily includes comments made by the prosecutor
in rebuttal closing argument related to the defendant’s
appearance. See State v. Hamilton, supra, 352 Conn.
337–38 (our Supreme Court determined that trial court’s
improper admission into evidence of witness’ two inter-
views with police, in which witness identified defendant
as person in surveillance footage, was harmful and that
conclusion was ‘‘buttressed by the way [the witness’]
two interviews were used by the prosecutor during
closing arguments’’). The record shows that the prose-
cutor utilized testimony about the height, weight, and
tattoos of the perpetrator in his closing argument to
assert the state’s position that the defendant’s appear-
ance matched that of the perpetrator and, further, sug-
gested to the jury that it should not believe Sarbieski’s
testimony that the defendant does not have tattoos
because the defendant is a good friend and employee
of Sarbieski. In addition, the prosecutor specifically
17
See footnote 18 of this opinion.
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mentioned that the trial was taking place four and one-
half years after the incident at the restaurant and that
the jury should, thus, account for weight gain due to
the COVID-19 pandemic, which occurred in the interim.
Specifically, the prosecutor stated: ‘‘Four and a half
years have passed since this incident, members of the
jury. People change in time. I want you all to take a
close look at [the defendant] now. Look at his face.
Commit it to memory. What you’re looking at is not
[the defendant] from 2018. You’re looking at him now.
The video is [the defendant] four and a half years ago.
As [defense] counsel stated, we had a pandemic. The
pandemic thirty was a real thing. Right? Some of us
are still trying to take that weight off.’’ (Emphasis
added.)

Thus, despite the court’s ruling precluding the defen-
dant from introducing evidence concerning his height,
weight and the existence of any tattoos six months after
the incident, as set forth in the uniform arrest report,
at the trial, which occurred more than four years after
the incident, the prosecutor made comments that
attempted to explain any difference in the appearance
of the perpetrator in the video and the defendant’s
appearance at trial. See People v. Cerda, supra, 40
N.Y.3d 378 (when defendant was deprived of constitu-
tional right to present defense, ‘‘[t]he prejudice . . .
was compounded when the prosecutor emphasized to
the jury on summation that evidence of such alternative
theories ‘doesn’t exist,’ despite knowing full well the
findings in the precluded forensic reports’’). Conse-
quently, the harm resulting from the court’s exclusion
of the evidence, as we have outlined in this opinion,
could only have been compounded by the prosecutor’s
remarks about the defendant’s appearance, some of
which were based on facts concerning the COVID-19
pandemic that were not in evidence.
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Accordingly, for the foregoing reasons, the state has
failed to meet its burden of demonstrating, beyond a
reasonable doubt, that the court’s error was harmless.
We, therefore, conclude that the defendant is entitled
to a new trial.18
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.

18
‘‘Generally speaking, if we reverse a judgment and remand the case for
a new trial, we sometimes choose to review other claims that are likely to
arise on retrial.’’ State v. Norman P., 169 Conn. App. 616, 618 n.2, 151 A.3d
877 (2016), aff’d, 329 Conn. 440, 186 A.3d 1143 (2018). We decline to address
the defendant’s prosecutorial impropriety claims, as well as his claim that
the court improperly prohibited a defense witness from testifying due to
late disclosure, as they are not likely to arise on remand. See State v.
Culbreath, 340 Conn. 167, 199 n.18, 263 A.3d 350 (2021); State v. Gordon,
206 Conn. App. 70, 72, 259 A.3d 676, cert. granted, 339 Conn. 913, 262 A.3d
135 (2021) (appeal withdrawn April 8, 2022); State v. Fernando V., 170 Conn.
App. 44, 46 n.1, 153 A.3d 701 (2016), aff’d, 331 Conn. 201, 202 A.3d 350
(2019). The defendant’s remaining evidentiary claims are that the court
erroneously precluded the defendant from presenting testimony from an
expert in video graphics and limited defense counsel’s cross-examination
of Nocera, a legal technology specialist, concerning the nature of metadata.
The defendant sought to admit the testimony of those witnesses to help the
jury to understand his theory of the case—that he had misidentified himself
‘‘due to the poor quality of the [photographs taken from the] video,’’ which,
itself, was of poor quality, ‘‘including, but not limited to, the low pixel rate,
the low frame rate, the compression rate, the wipeout of certain colors, and
the size of the camera’s lens.’’ We cannot say that these claims are likely
to arise on retrial in light of our remand for a new trial and our determination
that the court improperly excluded the uniform arrest report, as the eviden-
tiary record on retrial may be different from the one before this court. See
State v. Robert R., 340 Conn. 69, 92, 262 A.3d 810 (2021); State v. Jackson,
334 Conn. 793, 822, 224 A.3d 886 (2020). We, therefore, decline to address
these evidentiary claims.