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  STATE OF CONNECTICUT v. VICTOR M. ALICEA
                (AC 40311)
                      Prescott, Bright and Eveleigh, Js.

                                   Syllabus

Convicted of two counts of the crime of assault in the first degree and of
    being a persistent dangerous felony offender in connection with his
    conduct in slashing the victim with a razor blade, the defendant appealed
    to this court. The defendant had been charged with one count each of
    intentional assault in violation of statute (§ 53a-59 [a] [1]) and reckless
    assault in violation of § 53a-59 (a) (3). The victim had argued with
    the defendant at their place of employment, a restaurant. Some of the
    altercation was caught on the restaurant’s video. The defendant called
    911 after the victim ran from the restaurant and, about forty-five minutes
    later, gave a statement to the police about the incident. After the close
    of the state’s evidence, the defendant moved for a judgment of acquittal,
    in which he alleged, inter alia, that he could not be guilty of both assault
    charges because he had engaged in one act against one victim, and each
    charge required a mutually exclusive state of mind. During argument
    on the motion, the prosecutor indicated that he did not think the defen-
    dant could be convicted of both charges. The trial court stated that the
    evidence reasonably would permit a finding of guilt on both counts and
    denied the motion for a judgment of acquittal. The defendant thereafter
    elected not to testify in his defense. On appeal to this court, the defendant
    claimed, inter alia, that the jury’s guilty verdicts of both intentional
    and reckless assault were legally inconsistent, and that the trial court
    improperly excluded from evidence his statement to the police. Held:
1. The defendant could not prevail on his claim that the verdicts of guilty
    of both intentional and reckless assault were legally inconsistent; to
    find the defendant guilty under § 53a-59 (a) (3), the jury was required
    to find that he engaged in conduct that was reckless and that created
    a grave risk of death to the victim that resulted in serious physical
    injury, which was not inconsistent with the jury’s finding under § 53a-
    59 (a) (1) that the defendant also intended to seriously injure the victim,
    and because a conviction of one offense did not require a finding that
    negated an essential element of the other offense, the offenses were
    not mutually exclusive and, therefore, not legally inconsistent.
2. This court found unavailing the defendant’s claim that his right to due
    process was violated because he was unaware that he could be convicted
    of both assault charges; on the basis of the relevant charging document,
    the theory on which the case was tried and submitted to the jury, and
    the trial court’s jury instructions regarding the assault charges, the
    defendant had notice, prior to when he had to decide whether to testify,
    that both assault charges were going to be presented to the jury sepa-
    rately and not in the alternative, and he was aware of the charges brought
    against him and how the court was going to instruct the jury regarding
    those charges, as neither the information nor the state’s argument
    informed the jury that it should find the defendant guilty on only one
    of the charges, after the court informed counsel that a guilty verdict on
    both counts was permitted under the law, the state told the court and
    defense counsel that it would be arguing consistent with that message,
    at closing argument the prosecutor told the jury that the evidence demon-
    strated that the defendant acted intentionally or, at the very least, reck-
    lessly, and did not tell the jury that it could or should find guilt only as
    to one of the those charges, and the court’s instructions to the jury were
    not based on alternative charges.
3. The trial court did not abuse its discretion by excluding from evidence
    the defendant’s statement to the police, which the defendant claimed
    was admissible under the spontaneous utterance exception to the rule
    against hearsay; the defendant did not meet his burden of proving that
    he did not have an opportunity to think about and fabricate or embellish
    his story, as he did not begin his statement to the police until approxi-
    mately forty minutes after the end of his 911 call, which lasted less than
    two minutes, and although the amount of time that passes between
    an incident and the utterance of a statement is not dispositive of its
    spontaneity, nothing in the record demonstrated error in the trial court’s
    determination that the defendant had time to fabricate and embellish
    his statement.
4. The evidence was sufficient to disprove beyond a reasonable doubt the
    defendant’s claim of self-defense; the defendant’s assertions that it was
    possible that his left hand circled the victim’s head first as he cut the
    victim’s throat and that the victim had thrown a left hook at the defendant
    before the slashing were unavailing, as the jury reasonable chose to
    credit the victim’s testimony, which was consistent with the restaurant’s
    video, that he did not strike the defendant, that he and the defendant
    were arguing, and that the defendant grabbed him and cut his throat.
             Argued April 8—officially released July 30, 2019

                             Procedural History

   Two part substitute information charging the defen-
dant, in the first part, with two counts of the crime of
assault in the first degree and, in the second part, with
being a persistent dangerous felony offender, brought
to the Superior Court in the judicial district of Windham,
geographical area number eleven, where the first part
of the information was tried to the jury before Seeley,
J.; thereafter, the court denied the defendant’s motions
to dismiss and for a judgment of acquittal; verdict of
guilty; subsequently, the defendant was presented to
the court on a plea of nolo contendere to the second
part of the information; judgment in accordance with
the verdict and plea, from which the defendant appealed
to this court. Affirmed.
  Jonathan R. Formichella, certified legal intern, with
whom was James B. Streeto, senior assistant public
defender, for the appellant (defendant).
   Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Anne F. Mahoney, state’s
attorney, and Mark A. Stabile, supervisory assistant
state’s attorney, for the appellee (state).
                          Opinion

   BRIGHT, J. The defendant, Victor M. Alicea, appeals,
following a jury trial, from the judgment of conviction
of assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (1) (intentional assault) and assault
in the first degree in violation of General Statutes § 53a-
59 (a) (3) (reckless assault). The defendant, follow-
ing a plea of nolo contendere to a part B information,
also was convicted of being a persistent dangerous fel-
ony offender pursuant to General Statutes § 53a-40 (a)
(1) (A). On appeal, the defendant claims that (1) the
jury’s verdicts of guilty on both intentional and reckless
assault were legally inconsistent, (2) the court erred in
excluding his statement to the police, given approxi-
mately forty-five minutes after the incident at issue, and
(3) the state failed to disprove his claim of self-defense.
We affirm the judgment of the trial court.
   The following facts, as reasonably could have been
found by the jury on the basis of the evidence, and pro-
cedural history assist in our consideration of the defen-
dant’s claims. The defendant and the victim, Tyrone
Holmes, worked at Burger King in the Dayville section
of Killingly (restaurant). Holmes generally worked third
shift as a porter, doing maintenance and cleaning at
the restaurant. On July 9, 2015, the defendant, who also
worked as a porter at the restaurant, was covering
Holmes’ third shift. After midnight, Holmes, accompa-
nied by his friend, Robert Falu, arrived at the closed
restaurant to drop off some supplies and to speak with
the defendant, whom, he had heard, had been talking
about him. Falu waited in or around Holmes’ vehicle
while Holmes let himself into the back entrance using
his key. Holmes then asked the defendant to step out-
side. The defendant and Holmes went outside, had a
brief discussion, and the defendant denied having talked
negatively about Holmes. Everything appeared fine to
Holmes. Holmes returned to his vehicle, retrieved some
supplies, and went back into the restaurant.
   Upon returning to the restaurant, Holmes heard the
defendant on his cell phone telling whomever was lis-
tening to get to the restaurant because the defendant
had a problem. Holmes told the defendant that they did
not have a problem, and the defendant walked away
while Holmes was trying to talk to him. Holmes followed
the defendant, who went near the fryers, and the defen-
dant repeatedly told Holmes that he was trying to save
Holmes’ life. Holmes, who was holding a set of car keys
in his hands, tossing them from one hand to the other,
became angry and the two began arguing. The defen-
dant then pulled Holmes’ head toward him and cut his
throat with a razor blade. Initially, Holmes thought the
defendant had punched him, and he assumed a fighter’s
stance. He then saw that he was bleeding, however, and
he ran from the restaurant. Some of the altercation was
caught on the restaurant’s video. Once outside, Holmes
threw his car keys to Falu and told him to start the
car. The defendant, who had followed Holmes outside,
chased him around the car twice, and said, ‘‘see what
happens when you mess with me.’’ Holmes got into the
driver’s seat of the car and drove away with Falu. After
Holmes arrived home, Holmes’ wife called 911, and she
tried to stop the bleeding from Holmes’ neck by applying
pressure with a towel. The defendant also called 911
from the restaurant.
  Holmes was taken by ambulance to Day Kimball Hos-
pital in Putnam, where he was examined by Joel Bogner,
an emergency medicine physician, who determined that
Holmes had sustained a neck laceration that was
approximately seven inches long and that the care he
needed was ‘‘beyond the capabilities of Day Kimball
Hospital . . . .’’ Holmes was given morphine sulfate
for pain and then was transferred to Hartford Hospital,
via ambulance, where he underwent surgery for the
laceration to his neck, which included the repair of a
lacerated neck muscle and his left external jugular vein.
  The defendant was arrested and later charged with
both intentional and reckless assault. The jury found
the defendant guilty of both charges,1 and, after accept-
ing the verdict, the court rendered judgment of con-
viction on both counts. The defendant also pleaded
nolo contendere to being a persistent dangerous felony
offender. The court merged the conviction of the two
assault charges and sentenced the defendant to a man-
datory minimum term of ten years of incarceration,
followed by twelve years of special parole on the count
of intentional assault as a persistent dangerous felony
offender. This appeal followed.
                             I
                            A
   The defendant first claims that the jury’s verdicts of
guilty of both intentional and reckless assault were
legally inconsistent because each charge required a
mutually exclusive state of mind. He contends that he
cannot be guilty of both intentional and reckless assault
because he engaged in but one single act, against one
single victim. The defendant relies on State v. Chyung,
325 Conn. 236, 157 A.3d 628 (2017), and State v. King,
216 Conn. 585, 583 A.2d 896 (1990), to support his claim.
The state responds that the verdicts were not legally
inconsistent in this case because a person can act both
recklessly and intentionally at the same time, as to
different results, as was concluded by our Supreme
Court in State v. Nash, 316 Conn. 651, 660–61, 114 A.3d
128 (2015). We agree with the state.
   Section 53a-59 (a) provides in relevant part: ‘‘A person
is guilty of assault in the first degree when: (1) With
intent to cause serious physical injury to another per-
son, he causes such injury to such person or to a third
person by means of a deadly weapon or a dangerous
instrument; or . . . (3) under circumstances evincing
an extreme indifference to human life he recklessly
engages in conduct which creates a risk of death to
another person, and thereby causes serious physical
injury to another person . . . .’’
  Pursuant to General Statutes § 53a-3 (11): ‘‘A person
acts ‘intentionally’ with respect to a result or to conduct
described by a statute defining an offense when his
conscious objective is to cause such result or to engage
in such conduct . . . .’’
   Pursuant to § 53a-3 (13): ‘‘A person acts ‘recklessly’
with respect to a result or to a circumstance described
by a statute defining an offense when he is aware of
and consciously disregards a substantial and unjustifi-
able risk that such result will occur or that such circum-
stance exists. The risk must be of such nature and
degree that disregarding it constitutes a gross deviation
from the standard of conduct that a reasonable person
would observe in the situation . . . .’’
   ‘‘A claim of legally inconsistent convictions, also
referred to as mutually exclusive convictions, arises
when a conviction of one offense requires a finding
that negates an essential element of another offense of
which the defendant also has been convicted. . . . In
response to such a claim, we look carefully to determine
whether the existence of the essential elements for one
offense negates the existence of [one or more] essential
elements for another offense of which the defendant
also stands convicted. If that is the case, the [convic-
tions] are legally inconsistent and cannot withstand
challenge. . . . Whether two convictions are mutually
exclusive presents a question of law, over which our
review is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Nash, supra, 316 Conn. 659.
   ‘‘[C]ourts reviewing a claim of legal inconsistency
must closely examine the record to determine whether
there is any plausible theory under which the jury rea-
sonably could have found the defendant guilty of [more
than one offense].’’ Id., 663. Nevertheless, the state is
bound by the theory it presented to the jury. See State
v. Chyung, supra, 325 Conn. 256 (where state argued
defendant engaged in only one act, rather than two,
principles of due process prohibited state on appeal
from relying on theory that defendant engaged in two
acts).
   The defendant argues that King and Chyung are simi-
lar to the present case and that Nash is inapposite. We
recently discussed the distinctions between those three
cases in State v. Daniels, 191 Conn. App. 33, 43–48,
A.3d       (2019).
  In Daniels, we first discussed our Supreme Court’s
explanation of State v. King, supra, 216 Conn. 585: ‘‘In
Nash, our Supreme Court discussed King at length and
explained: In King, the defendant had ‘claimed that his
convictions of attempt to commit murder and reckless
assault of the same victim based on the same conduct
were legally inconsistent because they required mutu-
ally exclusive findings with respect to his mental state.
. . . We agreed with this claim, explaining that King’s
conviction for attempt to commit murder required the
jury to find that he acted with the intent to cause the
death of the victim, whereas his conviction for reckless
assault required the jury to find that he acted recklessly
and thereby created a risk that the victim would die.
. . . We further explained that the statutory definitions
of intentionally and recklessly are mutually exclusive
and inconsistent. . . . Reckless conduct is not inten-
tional conduct because [a person] who acts recklessly
does not have a conscious objective to cause a particu-
lar result. . . . Thus, we observed that [t]he intent to
cause death required for a conviction of attempted
murder [under General Statutes §§ 53a-49 and 53a-54a
(a)] . . . necessitated a finding that the defendant
acted with the conscious objective to cause death . . .
[whereas] [t]he reckless conduct necessary to be found
for a conviction of assault under [§ 53a-59 (a) (3)] . . .
required a finding that the defendant acted without such
a conscious objective. . . . We concluded, therefore,
that the jury verdicts [with respect to attempt to commit
murder and reckless assault in the first degree] each
of which requires a mutually exclusive and inconsistent
state of mind as an essential element for conviction
cannot stand.’ . . . State v. Nash, supra, 316 Conn.
660–61.’’ (Emphasis in original.) State v. Daniels, supra,
191 Conn. App. 43–44.
   We then discussed State v. Chyung, supra, 325 Conn.
236: ‘‘In Chyung, the jury found the defendant guilty
of murder, in violation of § 53a-54a, and of reckless
manslaughter in the first degree with a firearm, in viola-
tion of General Statutes §§ 53a-55a (a) and 53a-55 (a)
(3), for the shooting death of his wife. . . . The court
in Chyung found that the jury’s guilty verdicts as to
both charges were legally inconsistent because the
defendant could not act both intentionally and reck-
lessly with respect to the same victim, the same act,
and the same result simultaneously. . . . Our Supreme
Court explained that to find the defendant guilty of the
crime of intentional murder, the jury was required to
find that the defendant had the specific intent to kill
the victim, his wife, but, to find the defendant guilty
of reckless manslaughter, the jury was required to find
that he acted recklessly, meaning, that he acted without
a conscious objective to cause the death of the victim,
but consciously disregarded the risk of his actions,
thereby putting the life of the victim in grave danger.
. . . The court concluded that a defendant cannot act
with a conscious disregard that his actions will create
a grave risk of death to another, while, at the same
time, specifically intending to kill that person. . . .
The defendant cannot simultaneously act intentionally
and recklessly with respect to the same act and the
same result . . . .’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) State v.
Daniels, supra, 191 Conn. App. 44–45.
   Finally, we discussed our Supreme Court’s decision
in State v. Nash, supra, 316 Conn. 651, which we found
controlling. See State v. Daniels, supra, 191 Conn. App.
45–48. As background, the defendant in Nash had
become angry with the brother of the victim. State v.
Nash, supra, 654–55. The defendant wanted to teach a
lesson to the victim’s brother, so he and a friend went
to the home of the victim’s brother, where he resided
with his family, including the victim. Id. The defendant
walked to the backyard of the victim’s home and fired
several gunshots into the second story of the home. Id.,
655. At the time of the shooting, the victim and her
sister were in a second floor bedroom. One of the bullets
penetrated through the bedroom wall and struck the
victim, who then was transported by ambulance to a
hospital, where she was treated for a gunshot wound. Id.
   We explained in Daniels: ‘‘In Nash, the jury found
the defendant guilty of, among other things, both inten-
tional and reckless assault in the first degree pursuant
to . . . § 53a-59 (a) (1) and (a) (3), respectively, and
the court rendered judgment in accordance with the
jury’s verdicts. . . . On appeal, the defendant claimed
in part that the jury’s verdicts of guilty on both inten-
tional and reckless assault were legally inconsistent
because each crime required a mutually exclusive state
of mind. . . . Our Supreme Court disagreed,
explaining that the two mental states required for inten-
tional and reckless assault in the first degree related
to different results. . . . More specifically, the court
explained, ‘in order to find the defendant guilty of [both
intentional and reckless assault in the first degree], the
jury was required to find that the defendant intended
to injure another person and that, in doing so, he
recklessly created a risk of that person’s death. In light
of the state’s theory of the case, there was nothing to
preclude a finding that the defendant possessed both
of these mental states with respect to the same victim
at the same time by virtue of the same act or acts. In
other words, the jury could have found that the defen-
dant intended only to injure another person when he
shot into [the victim’s] bedroom but that, in doing so,
he recklessly created a risk of that [victim’s] death in
light of the circumstances surrounding his firing of the
gun into the dwelling. Accordingly, because the jury
reasonably could have found that the defendant simul-
taneously possessed both mental states required to con-
vict him of both intentional and reckless assault, he
cannot prevail on his claim that the convictions were
legally inconsistent’. . . . [State v. Nash, supra, 316
Conn.] 666–68.
  ‘‘The court in Nash went on to examine and compare
§ 53a-59 (a) (1) and (a) (3): ‘Intentional assault in the
first degree in violation of § 53a-59 (a) (1) requires proof
that the defendant (i) had the intent to cause serious
physical injury to a person, (ii) caused serious physical
injury to such person or to a third person, and (iii)
caused such injury with a deadly weapon or dangerous
instrument. Reckless assault in the first degree in viola-
tion of § 53a-59 (a) (3) requires proof that the defendant
(i) acted under circumstances evincing an extreme
indifference to human life, (ii) recklessly engaged in
conduct that created a risk of death to another person,
and (iii) caused serious physical injury to another per-
son. As we previously explained, the mental state ele-
ments in the two provisions—‘‘intent to cause serious
physical injury’’ and ‘‘recklessly engag[ing] in conduct
which creates a risk of death’’—do not relate to the
same result.2 Moreover, under both provisions, the
resulting serious physical injury is an element of the
offenses that is separate and distinct from the mens
rea requirements.’ Id., 668–69. The court then held:
‘Because the defendant’s convictions for intentional and
reckless assault in the first degree required the jury to
find that the defendant acted intentionally and reck-
lessly with respect to different results, the defendant
cannot prevail on his claim that those convictions are
mutually exclusive and, therefore, legally inconsistent.’3
Id., 669.
   ‘‘The court in Nash provided an example of where a
single act, directed to a single victim, could result in a
conviction of both intentional and reckless assault in
the first degree. ‘For example, if A shoots B in the arm
intending only to injure B, A nevertheless may reck-
lessly expose B to a risk of death if A’s conduct also
gave rise to an unreasonable risk that the bullet would
strike B in the chest and thereby kill him. In such cir-
cumstances, a jury could find both that A intended to
injure B and, in doing so, recklessly created an undue
risk of B’s death.’ Id., 666 n.15.’’ (Citations omitted;
emphasis in original; footnotes altered.) State v. Dan-
iels, supra, 191 Conn. App. 45–48.
  In Daniels, we also explained: ‘‘We recognize that
the differences between King, Chyung, and Nash
are subtle. For example, in King, the jury necessarily
would have to have found that the defendant acted with
the specific intent to cause the death of the victim
(attempted murder), and, at the same time, acted with-
out the conscious objective to create a risk of death
for the victim (reckless assault). See State v. King,
supra, 216 Conn. 585. It is impossible to possess both
mental states simultaneously.
  ‘‘In Chyung, the jury necessarily would have to have
found that the defendant had the specific intent to kill
the victim (murder), and simultaneously, that the defen-
dant acted without the conscious objective to create a
grave risk of death for the victim (reckless manslaugh-
ter). See State v. Chyung, supra, 325 Conn. 236. Again,
it is impossible to have both intents simultaneously.
   ‘‘In Nash, however, the jury would have to have found
that the defendant intended to cause serious physical
injury to the victim (intentional assault), and, at the
same time, that the defendant acted without the con-
scious objective of creating a grave risk of death for
the victim, resulting in the victim’s serious physical
injury (reckless assault). See State v. Nash, supra, 316
Conn. 666–67. Intentional assault requires a specific
intent to cause serious physical injury; reckless
assault requires recklessly creating a grave risk of
death, which results in serious physical injury. One can
intend to cause serious physical injury to a victim, while,
at the same time, consciously disregarding the fact that
he or she is putting that victim’s life in grave danger,
ultimately resulting in serious physical injury to the
victim.’’ (Emphasis in original.) State v. Daniels, supra,
191 Conn. App. 48 n.10.
   Accordingly, to be guilty under § 53a-59 (a) (3), it
was not enough for the defendant to have engaged in
conduct that was reckless, resulting in serious physical
injury to Holmes; rather, the jury was required to find
that the defendant engaged in conduct that was reckless
and that created a grave risk of death to Holmes, ulti-
mately resulting in Holmes’ serious physical injury.
Such a conclusion is not inconsistent with the jury
finding that the defendant also intended to seriously
injure Holmes under § 53a-59 (a) (1). Put another way,
because a conviction of one offense does not require
a finding that negates an essential element of the other
offense, they are not mutually exclusive, and therefore
not legally inconsistent.
  Although the defendant has presented a well argued,
well briefed claim on this issue, we conclude that our
Supreme Court’s decision in Nash is controlling. Guided
by that decision, as well as by our recent decision in
Daniels, we conclude that the jury’s verdicts of guilty
of both intentional and reckless assault are not legally
inconsistent.
                            B
   As part of his inconsistent verdict claim, the defen-
dant also argues that ‘‘[r]eversal is mandated in this
case for a second reason.’’ He contends that the state
is bound by the theory it allegedly presented at trial,
namely, that these charges were brought in the alterna-
tive. He states that the majority in State v. Chyung,
supra, 325 Conn. 236, and the dissent in State v. King,
321 Conn. 135, 159–71, 136 A.3d 1210 (2016) (King
2016), mandate ‘‘that the state may not rely upon a
theory establishing legal consistency of verdicts when
it does not argue that theory to the jury.’’ In his reply
brief, he contends that his right to due process is impli-
cated and that he made the decision not to testify in
this case only after the state set forth its position that
these charges were in the alternative. But see id., 148
(due process analysis should not be blended with legal
consistency of verdict analysis, and each should be
evaluated independently of each other, as two separate
claims). We conclude that the defendant’s right to due
process was not violated because he was aware of the
charges brought against him and how the court was
going to instruct the jury regarding those charges.
   ‘‘A determination of whether a defendant has
received constitutionally sufficient notice of the charges
to be brought against him at trial is guided by the follow-
ing framework. A fundamental tenet of our due process
jurisprudence is that [i]t is as much a violation of due
process to send an accused to prison following convic-
tion of a charge on which he was never tried as it would
be to convict him upon a charge that was never made.
. . . [T]o uphold a conviction on a charge that was
neither alleged in an indictment nor presented to a jury
at trial offends the most basic notions of due process.
Few constitutional principles are more firmly estab-
lished than a defendant’s right to be heard on the spe-
cific charges of which he is accused. . . . Reviewing
courts, therefore, cannot affirm a criminal conviction
based on a theory of guilt that was never presented to
the jury in the underlying trial. . . .
   ‘‘Principles of due process do not allow the state, on
appeal, to rely on a theory of the case that was never
presented at trial. . . . Although we recognize that the
finder of fact may consider all of the evidence properly
before it, in order for us to uphold the state’s theory
of the case on appeal, that theory must have been not
merely before the jury due to an incidental reference,
but as part of a coherent theory of guilt that, upon
[review of] the principal stages of trial, can be character-
ized as having been presented in a focused or otherwise
cognizable sense. . . . Essentially, the state may not
pursue one course of action at trial and later, on appeal,
argue that a path [it] rejected should now be open
to [it] . . . . To rule otherwise would permit trial by
ambuscade. . . . Accordingly, on appeal, the state may
not construe evidence adduced at trial to support an
entirely different theory of guilt than the one that the
state argued at trial.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 148–49.
   Our Supreme Court in King 2016 instructed:
‘‘Whether a defendant has received constitutionally suf-
ficient notice of the charges of which he was convicted
may be determined by a review of the relevant charging
document, the theory on which the case was tried and
submitted to the jury, and the trial court’s jury instruc-
tions regarding the charges.’’ (Internal quotation marks
omitted.) Id., 149–50.
  In the present case, the information set forth two
independent charges, intentional and reckless assault,
with no indication whatsoever that the charges were
being brought in the alternative. After reviewing the
information and the transcripts of the trial, we are not
persuaded that the state tried the case or presented its
evidence in a manner that indicated that it was proceed-
ing on the theory that the charges against the defendant
were in the alternative. We acknowledge that the prose-
cutor, during argument on the defendant’s oral motion
for a judgment of acquittal, which, in part, was brought
on the ground that the charges were mutually exclusive,
held outside of the presence of the jury and after the
close of the state’s evidence, indicated to the defendant
and the court that he did not think that the defendant
could be convicted of both charges. The trial court,
however, citing Nash, immediately sought to clarify the
prosecutor’s statement. The court stated that it could
consider charging these counts in the alternative by
telling the jury that if it finds the defendant guilty on
count one, then it should find him not guilty on count
two, but that it thought, ‘‘under Nash, both do go to
the jury; if the jury comes back guilty on both, then, at
sentencing it becomes a question of either . . . merger
or vacating.’’ The prosecutor responded that he under-
stood and that he had put his stance ‘‘in [a] more stark
position than [he] actually [would] when [he] stand[s]
in front of the jury, but that’s going to be sort of the
message that [he would be] conveying.’’ The court then
denied the defendant’s motion for a judgment of acquit-
tal, stating in relevant part that, ‘‘taking [the] evidence
in the light most favorable to the state, the evidence
reasonably would permit a finding of guilty for both
count one and count two.’’ Thus, contrary to his position
on appeal, the defendant had notice, prior to the point
in time when he had to make the decision to testify,
that both charges of the information were going to be
presented to the jury separately and not in the alter-
native.
   The next day, the defendant informed the court that
he would not testify in his defense. At that time, the
court also raised the defendant’s motion for a judgment
of acquittal again, and it restated, specifically for the
record, the discussion of the previous day and the hold-
ing in the Nash case. The court then stated that the
parties had engaged in several charging conferences
and that the court previously had handed out prelimi-
nary jury instructions, and it indicated that the defense
had submitted a request to charge on self-defense. The
court also stated for the record that it had e-mailed
counsel the revised jury charge the previous evening
and that counsel had met that morning to put in the
final touches, after conducting a page by page review.
Defense counsel stated that he was ‘‘satisfied that the
language that the court intend[ed] to instruct the jury
with [was] appropriate.’’
  The prosecutor, during closing argument, went over
the elements of each count separately, and, during his
argument as to the elements of the second count, told
the jury that he believed that the evidence demonstrated
that the defendant’s conduct was intentional, and that,
if the jury ‘‘[d]id not agree with that,’’ then, ‘‘at the very
least,’’ the jury could conclude that the defendant ‘‘acted
recklessly.’’ The prosecutor continued his argument on
the elements of the second count and, thereafter, stated,
‘‘once again, if you do not agree, then I believe that, at
the least, you can conclude that [the defendant] simply
didn’t care if [Holmes] lived or died based on his action,
the slitting of the throat . . . .’’ Defense counsel’s clos-
ing argument centered on the defendant’s claim of self-
defense. During rebuttal, the prosecutor argued that
the state’s evidence demonstrated that the defendant
did not act in self-defense. The court charged the jury
on both counts and on the defendant’s claim of self-
defense. Consistent with Nash, the court did not tell
the jury that the charges were in the alternative. Rather,
the court told the jury to consider each count sepa-
rately, along with its separate consideration of whether
the state disproved the defendant’s self-defense claim
on each count. On appeal, the defendant does not claim
error in the charge.
   The defendant relies on Chyung and the dissent in
King 2016 to support his claim that his right to due
process was violated because he was unaware that he
could be found guilty of both counts. In Chyung, the
verdicts were inconsistent because the state had pro-
ceeded at trial on a one act, one result, one victim
theory for the charges of intentional murder and reck-
less manslaughter. State v. Chyung, supra, 325 Conn.
239–40; see also part I A of this opinion. Our Supreme
Court explained that these two charges, when tried on
such a theory, involve mutually exclusive states of mind,
which a defendant cannot possess simultaneously. Id.,
247–48. The state, on appeal, argued, in part, that the
conviction could be upheld on the alternative ground
that the jury could have found that the defendant did
not act both intentionally and recklessly with regard to
the same act and the same result, but that he engaged
in two separate acts, one reckless and one intentional,
with two separate results. Id., 254–55. Our Supreme
Court rejected the state’s argument on due process
grounds because the state had not presented that theory
to the jury, but, instead, had proceeded only on a one
act, one result, one victim theory throughout the trial.
Id., 255–56.
   In King 2016, the defendant was convicted of inten-
tional assault in the first degree and reckless assault
in the first degree. King 2016, supra, 321 Conn. 137.
On appeal to the Appellate Court, the defendant had
argued that the verdicts were legally inconsistent and
that the state had tried the case on a one act, one result,
one victim theory; the Appellate Court agreed. See State
v. King, 149 Conn. App. 361, 362–63, 87 A.3d 1193 (2014),
rev’d, 321 Conn. 135, 136 A.3d 1210 (2016). Following
the granting of certification to appeal, our Supreme
Court concluded that the verdicts were not legally
inconsistent because the evidence permitted the jury
to conclude that there were two acts, not one, each
with a different mental state; King 2016, supra, 144;
and because the conviction, pursuant to Nash, was not
legally inconsistent as a matter of law in that the two
mental states related to different results. Id., 142,
144–45.
   Our Supreme Court explained in King 2016 that the
issue of whether the verdicts were legally inconsistent
and whether the defendant’s right to due process was
violated by the state’s attempt to change its theory of
the case are separate issues. Id., 148. On the issue of
whether the defendant’s right to due process had been
violated because the state had prosecuted him on a
theory that each crime had been charged in the alterna-
tive and he was unaware that he could be convicted of
both, our Supreme Court held that the defendant had
sufficient notice of the charges against him. Id., 150.
The court explained that the state did not present the
evidence in a manner that related specifically to one
charge or the other charge; id., 146; the trial court told
the defendant that he could be convicted of both
charges; id.; the defendant was charged in the informa-
tion with both intentional and reckless assault; id., 139;
and the trial court, in its instructions, told the jury to
reach a verdict on both charges. Id., 154. The court also
pointed out that the state’s closing argument to the jury
was ambiguous on whether it was seeking a conviction
on only one of the charges, rather than on both. Id.,
155–56.
  The dissent in King 2016, on which the defendant
relies, expressed disagreement with the majority on
the issue of whether the state in closing argument
expressed to the jury that its theory of the case was
that the defendant was guilty of either intentional or
reckless assault. Id., 171 (Robinson, J., dissenting). The
dissent in King 2016, however, offers the defendant
no assistance in this case; it is the dissenting opinion.
The majority in King 2016 disagreed with the dissent’s
approach to its analysis because the dissent ‘‘relie[d]
solely on the prosecutor’s statement during closing
argument to the exclusion of the contents of the substi-
tute information and the jury instructions’’; id., 157 n.13;
and the majority, although concluding that the state’s
closing argument was ambiguous, held that ‘‘when
viewed in the context of the substitute information, the
state’s evidence at trial, and the jury instructions, the
defendant had sufficient notice that he could be con-
victed of both reckless and intentional assault. Accord-
ingly, the manner in which the defendant was convicted
satisfies the requirements of due process.’’ Id., 157–58.
  In the present case, reviewing ‘‘the relevant charging
document, the theory on which the case was tried and
submitted to the jury, and the trial court’s jury instruc-
tions regarding the charges’’; (internal quotation marks
omitted) id., 149–50; we conclude that the defendant’s
right to due process was not violated; he had sufficient
notice of the charges against him. On the basis of our
review of the transcripts, we are not persuaded that
the state proceeded on a theory that the charges were
in the alternative, and, furthermore, neither the infor-
mation nor the state’s argument informed the jury that
it should find the defendant guilty on only one of the
charges. Additionally, although the state indicated to
the court during argument on the defendant’s oral
motion for a judgment of acquittal, outside of the pres-
ence of the jury, that it would argue those charges to
the jury in the alternative, the court immediately told
both attorneys that Nash permitted a guilty verdict on
both counts because they were not inconsistent, and
the state then corrected itself and told the court and
defense counsel that it would be arguing consistent
with that message. Thus, when he made his decision
not to testify, the defendant knew that the court was
going to submit both charges to the jury and that he
could be found guilty of both charges. At closing argu-
ment, the prosecutor told the jury that the evidence
demonstrated that the defendant acted intentionally,
but, at the very least, he acted recklessly, without con-
cern for the life of Holmes. The prosecutor did not tell
the jury that it could or should find guilt only as to one
of the charges. Finally, the court’s instructions to the
jury were not based on alternative charges, and the
defendant was well aware of the court’s intent not to
charge the jury in the alternative before he chose not
to testify. The court clearly told the jury to consider
each charge and defense separately. After reviewing
the record in this case, and after considering the rele-
vant case law, we conclude that the facts of this case
are not substantively different from those in King 2016.
Applying the holding in that case, as we must, we con-
clude that the defendant’s right to due process was
not violated.
                            II
  The defendant also claims that the court erred in
excluding his statement to the police, given approxi-
mately forty-five minutes after the incident at issue.
He contends that the statement was admissible as a
spontaneous utterance,4 and that it was critical to his
self-defense claim because it demonstrated that he
thought Holmes was hostile and threatening. We are
not persuaded.5
   The following additional facts inform our review.
Approximately forty-five minutes after the incident, the
defendant gave a statement to the police. In that state-
ment, he told the police, in relevant part: ‘‘Some time
after 12:30 a.m., [Holmes] came inside into the kitchen
through the rear door. I said, ‘hey, how you doing?’ He
told me to come outside but didn’t tell me why. I fol-
lowed him outside. I put a broom by the door to keep
it from locking behind me. Once outside, [Holmes] told
me that he heard I was talking shit about him. I asked
him who told him that. He told me not to worry about
it. I told him to bring the person here so I could smack
him for lying. He told me he couldn’t do that because
it was [one] of his people. I told him I didn’t care and
that I don’t talk about him or anybody else. [Holmes]
had brought another male friend with him who was
also outside at the time.
   ‘‘He started to get hostile and told me that he wasn’t
from here and he represents Bloods. I had my spray
bottle of [degreaser] with me so I went inside [to] put
it away. [Holmes] followed me inside and he kept yelling
and accusing me. I raised [my] hands up in front of me
telling him to leave me alone. I was holding my hands
open and not in a fighting stance. I did have a razor
blade in my hands still which I use for scraping the
fryers in the [restaurant]. I told him, ‘listen, I’m trying
to save your life.’ I told him that because I suffer from
bi-polar disease and I know I can get violent when I
feel threatened. He then got into a fighting stance with
his hands clenched in a fist. [Holmes] is a big guy and
I knew that if he hit me I’d be out for the count. I then
lashed out at him with my right hand. I had the razor
blade in my hand. I cut him on the left side of his neck.
[Holmes] ran out yelling ‘the mother fucker cut me!’
[Holmes] then got in the driver side of the car and the
other male got in the passenger side. [Holmes] said he
was going to call the cops. I told him I would call them
for him because he came to [the restaurant] when he
wasn’t supposed to be there. I then called 911 to report
[the] incident. In the process of the altercation, I also
cut my right hand on the middle finger.’’
  During trial, the defendant offered this statement into
evidence on the grounds that two hearsay exceptions
applied, namely, as a spontaneous utterance and as a
statement of mental/emotional condition. The court
held that the spontaneous utterance exception did not
apply because the defendant had time to embellish and
fabricate in his statement. The court also held that the
mental state exception did not apply. On appeal, the
defendant claims that the court erred in failing to admit
the statement as a spontaneous utterance. See also foot-
note 4 of this opinion.
   ‘‘The [spontaneous] utterance exception is well estab-
lished. Hearsay statements, otherwise inadmissible,
may be admitted into evidence to prove the truth of the
matter asserted therein when (1) the declaration fol-
lows a startling occurrence, (2) the declaration refers
to that occurrence, (3) the declarant observed the
occurrence, and (4) the declaration is made under cir-
cumstances that negate the opportunity for deliberation
and fabrication by the declarant.’’ State v. Kelly, 256
Conn. 23, 41–42, 770 A.2d 908 (2001).
   ‘‘The ultimate question is whether the utterance was
spontaneous and unreflective and made under such
circumstances as to indicate absence of opportunity
for contrivance and misrepresentation. . . . While the
amount of time that passes between a startling occur-
rence and a statement in question is not dispositive,
the court is entitled to take all the factual circumstances
into account when deciding the preliminary question
of whether a statement was spontaneous. . . . The
appropriate question is whether the statements were
made before reasoned reflection had taken place.’’
(Citations omitted; internal quotation marks omitted.)
Id., 60–61.
   The defendant contends that he established the
admissibility of his statement by meeting the four part
test for admissibility. See id., 41–42. He argues in rele-
vant part: ‘‘The trial court’s conclusion that the defen-
dant had time to fabricate information contained in the
voluntary statement was erroneous. The defendant did
not have time to fabricate or embellish after the alterca-
tion. . . . [T]he defendant’s statement was made only
forty-five minutes after the altercation. This was not
enough time to fabricate critical facts that would lead
to his acquittal, particularly as he was occupied with
the 911 call during a substantial [portion] of that time.’’
He also argues that the statement ‘‘is corroborated by the
surveillance footage,’’ thereby demonstrating its reli-
ability. The state contends that the court’s exclusion of
the statement was not an abuse of discretion. We agree
with the state.
   The record reveals that the defendant called 911
within minutes of the altercation, at 12:48 a.m. Contrary
to the defendant’s argument that the 911 call took up
‘‘a substantial [portion]’’ of the time between the inci-
dent and his statement to the police, the defendant’s
phone call to 911 lasted less than two minutes. The
defendant did not begin his statement to the police until
1:30 a.m., approximately forty minutes after his 911 call
ended. Although we are mindful that the amount of
time that passes between an incident and the utterance
of a statement is not dispositive of its spontaneity, the
trial court in the present case determined that the defen-
dant had time to fabricate and embellish his statement.
There is nothing in the record that demonstrates error
in that finding. Accordingly, the defendant has not met
his burden of proving that he did not have an opportu-
nity to think about and fabricate or embellish his story.
The court did not abuse its discretion in excluding the
statement. See State v. Kelly, supra, 256 Conn. 61
(defendant failed in burden of proving court abused
discretion in concluding that one and one-half hour
time frame between incident and utterance was enough
time to fabricate story).
                            III
   The defendant also claims that the state failed to
disprove his claim of self-defense. He argues: ‘‘In this
case, the defendant was confronted, while alone and
at night, by a dangerous former drug dealer and poten-
tial gang member, in an enclosed space from which he
was unable to easily escape. At trial, the defendant
asserted that he cut [Holmes] in self-defense, as Holmes
was the initial aggressor and was acting in a menacing
manner.’’ He contends that ‘‘the state’s evidence did not
disprove beyond a reasonable doubt that the defendant
acted in self-defense.’’ The state argues that it presented
sufficient evidence to disprove the defendant’s self-
defense claim and to establish that the defendant was
not justified in using deadly physical force against
Holmes. We agree with the state.
   ‘‘On appeal, the standard for reviewing sufficiency
claims in conjunction with a justification offered by the
defense is the same standard used when examining
claims of insufficiency of the evidence. . . . In
reviewing a sufficiency of the evidence claim, we apply
a two part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt . . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict. . . . Moreover, we
do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis
of innocence. We ask, instead, whether there is a rea-
sonable view of the evidence that supports the jury’s
verdict of guilty.’’ (Citations omitted; internal quotation
marks omitted.) State v. Revels, 313 Conn. 762, 778, 99
A.3d 1130 (2014), cert. denied,        U.S.     , 135 S. Ct.
1451, 191 L. Ed. 2d 404 (2015).
   ‘‘The rules governing the respective burdens borne
by the defendant and the state on the justification of
self-defense are grounded in the fact that [u]nder our
Penal Code, self-defense, as defined in [General Stat-
utes] § 53a-19 (a) . . . is a defense, rather than an affir-
mative defense. See General Statutes § 53a-16. Whereas
an affirmative defense requires the defendant to estab-
lish his claim by a preponderance of the evidence, a
properly raised defense places the burden on the state
to disprove the defendant’s claim beyond a reasonable
doubt. See General Statutes § 53a-12. Consequently, a
defendant has no burden of persuasion for a claim of
self-defense; he has only a burden of production. That
is, he merely is required to introduce sufficient evidence
to warrant presenting his claim of self-defense to the
jury. . . . Once the defendant has done so, it becomes
the state’s burden to disprove the defense beyond a
reasonable doubt.’’ (Emphasis in original; internal quo-
tation marks omitted.) State v. Revels, supra, 313
Conn. 778–79.
  Under § 53a-19 (a), ‘‘a person is justified in using
reasonable physical force upon another person to
defend himself . . . from what he reasonably believes
to be the use or imminent use of physical force, and
he may use such degree of force which he reasonably
believes to be necessary for such purpose . . . .’’
  Under § 53a-19 (b), ‘‘a person is not justified in using
deadly physical force upon another person if he or she
knows that he or she can avoid the necessity of using
such force with complete safety (1) by retreating,
except that the actor shall not be required to retreat if
he or she is in his or her dwelling, as defined in section
53a-100, or place of work and was not the initial aggres-
sor . . . .’’
   Under § 53a-19 (c), ‘‘a person is not justified in using
physical force when (1) with intent to cause physical
injury or death to another person, he provokes the use
of physical force by such other person, or (2) he is the
initial aggressor, except that his use of physical force
upon another person under such circumstances is justi-
fiable if he withdraws from the encounter and effec-
tively communicates to such other person his intent to
do so, but such other person notwithstanding continues
or threatens the use of physical force, or (3) the physical
force involved was the product of a combat by agree-
ment not specifically authorized by law.’’
   In order to determine whether the state produced
sufficient evidence to disprove beyond a reasonable
doubt the defendant’s claim of self-defense, we first
must set forth the defendant’s theory of self-defense.
The defendant’s theory of self-defense was that he took
reasonable steps to defend himself, given the threaten-
ing behavior of Holmes. The defendant relied on the
following evidence. Holmes showed up at the restau-
rant, after hours, in violation of the employee handbook,
with another person. Holmes had been drinking earlier
that night.6 Holmes asked the defendant to go outside,
where he confronted him about allegations he had
heard. The defendant denied the allegations and went
back into the restaurant, calling his wife on the phone
to tell her that he was having a problem and needed
assistance. The defendant sounded very concerned.
Holmes followed the defendant into the restaurant and
was confronting him in a threatening manner. The
defendant again tried to walk away. Holmes followed
him and the two ended up face to face, with Holmes
holding his keys in his hand, behaving aggressively.
Feeling threatened, the defendant, using a razor blade
that he used to clean the fryers at work, struck Holmes
to protect himself from what he believed to be an immi-
nent physical attack.7
  We next consider the evidence produced by the state,
viewed in a light consistent with the jury’s verdict, to
disprove the defendant’s claim of self-defense. Holmes
and the defendant had words outside the restaurant,
where they resolved Holmes’ issue with the defendant.
The defendant returned to the inside of the restaurant
and called his wife to tell her he was having a problem.
When Holmes returned to the restaurant, the defendant
did not go into the bathroom and lock the door. He did
not call the police or 911. Instead, he moved around
the restaurant, often with his back to Holmes, and then
moved near the fryer. The defendant then repeatedly
told Holmes that he was trying to save Holmes’ life.
Holmes was yelling at the defendant, tossing his keys
from hand to hand, but he did not strike the defendant.
The defendant, holding a razor blade that was used to
clean the fryer, then reached out, grabbed Holmes by
the neck or back of the head, pulled Holmes’ head
closer to him, and cut Holmes’ throat with the razor
blade. Holmes then fled the restaurant, bleeding from
his neck. The defendant ran after him into the parking
lot, chased Holmes around the car twice, and said, ‘‘see
what happens when you mess with me.’’
   Although the defendant, on appeal, concedes that the
restaurant’s video does not show Holmes striking the
defendant, he argues that although ‘‘[i]t is possible the
defendant’s left hand circles Holmes’ head first [as he
cut Holmes’ throat]; it is also possible, from the move-
ments of the parties, that Holmes threw a left hook
at the defendant’s ribs before this happened.’’ On
appeal, we do not entertain possibilities inconsistent
with the jury’s verdict. Although the defendant argues
that he was afraid of the larger, more muscular Holmes,
who ‘‘possibly’’ hit him in the ribs, and that his fear
justified his use of deadly force, the jury reasonable
chose to credit the testimony of Holmes. Holmes testi-
fied that he did not strike the defendant, that he and
the defendant were arguing, and that the defendant,
then, reached out, grabbed him, and cut his throat. This
testimony also was consistent with the video. Viewing
the evidence in the light most favorable to sustaining
the verdict, as we must, we conclude that the state
produced evidence that was sufficient to disprove
beyond a reasonable doubt the defendant’s defense.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     The defendant filed a motion for a judgment of acquittal and a motion
for a new trial, arguing that the jury’s verdict was legally inconsistent because
each charge requires a mutually exclusive state of mind. The court denied
the motions.
   2
     The defendant argues that the Supreme Court clarified in Chyung that
the result of the crime is synonymous with ‘‘injury to the victim.’’ See State
v. Chyung, supra, 325 Conn. 246. According to the defendant, this means
that because Holmes suffered only one injury from one act, both charges
against the defendant related to the same result, and he, therefore, could
not be convicted of both charges. The defendant essentially is arguing that
Chyung overruled Nash regarding the meaning of ‘‘the same result.’’
Although we acknowledge that our Supreme Court stated in Chyung that
‘‘a defendant cannot simultaneously [act] intentionally and recklessly with
regard to the same act and the same result, i.e., the injury to the victim’’;
(internal quotation marks omitted) id.; the defendant has taken this one
sentence out of context. The statement is a quote from the court’s earlier
decision in State v. King, supra, 216 Conn. 593. In Nash, the court thoroughly
discussed and distinguished King. See State v. Nash, supra, 316 Conn.
658–66. The court, in Nash, then concluded that even though the charges
under § 53a-59 (a) (1) and (a) (3) related to the same injury to the same
victim, they did not relate to the same result and were not legally inconsistent
because the charges involved different mens rea that were not inconsistent
with each other. Id., 668–69. Given this history, we are unpersuaded that
in 2017 the Supreme Court in Chyung intended effectively to overrule, sub
silentio, Nash, a decision issued just two years earlier, merely by quoting
a 1999 decision that it went to great lengths to distinguish in Nash.
   3
     In Nash, our Supreme Court also carefully explained: ‘‘We emphasize that
our conclusion that the defendant’s convictions of intentional and reckless
assault in the first degree were not mutually exclusive does not mean that
a defendant lawfully may be punished for both offenses. . . . [T]he trial
court in the present case merged the two assault convictions for purposes
of sentencing and sentenced the defendant only on his intentional assault
conviction. The defendant has not claimed that this approach violates his
right against double jeopardy.’’ (Citation omitted.) State v. Nash, supra, 316
Conn. 669–70 n.19.
   4
     The defendant also offered the statement as a statement against penal
interest and as a statement of his then-existing mental or emotional condi-
tion. He concedes that neither claim is viable under existing Supreme Court
precedent; he stated in his appellate brief that he raised these grounds on
appeal only for the sake of ‘‘future review.’’ Accordingly, they need not
be addressed.
   5
     The defendant contends that the court’s exclusion of his statement to
the police denied him the constitutional right to present a defense. We
disagree. See State v. Kelly, 256 Conn. 23, 59 n.19, 770 A.2d 908 (2001)
(disagreeing with claim that exclusion of defendant’s statement to father
raises constitutional question, and concluding, instead, that claim was evi-
dentiary in nature, subject to review under abuse of discretion standard).
‘‘Evidentiary matters are generally not constitutional in nature and will be
overturned only upon a showing of abuse of discretion.’’ Id.
   6
     Holmes testified that he drank three Heinekens at approximately 9 or
10 p.m. that evening. His medical records from Hartford Hospital showed
the presence of alcohol in his blood, but Dr. Bogner could not testify with
confidence regarding a level of intoxication because he was not aware of
whether Hartford Hospital used the same conversion tables as Day Kimball
Hospital. Dr. Bogner did state, however, that if both hospitals used the same
conversion tables, that Holmes’ blood alcohol level would have been 0.064
percent, which is less than the legal limit of 0.08 percent. The records also
showed the presence of opiates in Holmes’ bloodstream, but Dr. Bogner
testified that this may have been due to the administration of morphine
while he was at Day Kimball Hospital.
   7
     In his 911 call after the incident, which was admitted into evidence, the
defendant reported that Holmes had threatened his life, and that he cut
Holmes with a razor while defending himself.
