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     SOJOURNAL HODGES v. COMMISSIONER OF
                 CORRECTION
                  (AC 40652)
                         Lavine, Alvord and Moll, Js.

                                    Syllabus

The petitioner, who had been convicted of attempt to commit robbery in
    the first degree with a firearm as an accessory and conspiracy to commit
    robbery in the first degree with a firearm in connection with the
    attempted robbery of a store, sought a writ of habeas corpus, claiming
    that his trial counsel provided ineffective assistance. The habeas court
    rendered judgment denying the habeas petition, from which the peti-
    tioner, on the granting of certification, appealed to this court. Held:
1. The habeas court properly determined that the petitioner’s trial counsel
    did not render ineffective assistance:
    a. The habeas court did not err in determining that the petitioner failed
    to establish that his trial counsel was ineffective in pursuing a defense
    theory of mere presence and not contesting the petitioner’s presence
    at the store at the time of the robbery; trial counsel’s decision to pursue
    a mere presence defense was a reasonable strategic decision, as the
    petitioner had admitted to trial counsel, the police, and the court that
    he was present at the scene of the attempted robbery, which rendered
    an alibi defense not viable, and it would have been inconsistent with
    the defense theory that the petitioner was merely present at the scene
    and was not a participant in the robbery for trial counsel to have chal-
    lenged an eyewitness’ identification of the petitioner or the presence
    of a firearm during the robbery.
    b. The petitioner failed to establish that his trial counsel rendered ineffec-
    tive assistance by failing to consult with and retain an expert witness
    in video forensics, as any such testimony challenging the quality of a
    surveillance video from the store and whether it depicted a firearm
    would not have been helpful to the petitioner in establishing trial coun-
    sel’s defense that the petitioner did not participate in the attempted
    robbery; trial counsel’s trial strategy was not to contest the commission
    of an attempted robbery with a firearm by an unidentified man in the
    video, as trial counsel believed that the surveillance video would aid
    the petitioner’s mere presence defense because it did not show the
    petitioner doing anything that would constitute a conspiracy, and, there-
    fore, the habeas court properly concluded that trial counsel’s decision
    not to call an expert witness in video forensics was based on a reasonable
    investigation and with adequate explanation.
2. The habeas court did not abuse its discretion by precluding the testimony
    of the petitioner’s firearm identification expert as to whether the surveil-
    lance video depicted the presence of a firearm: because the presence
    of a firearm was an essential element of the charged crimes of attempt
    and conspiracy to commit robbery with a firearm, it was an ultimate
    issue to be decided by the jury, which had viewed the surveillance video
    and heard eyewitness testimony regarding the presence of a firearm,
    and, thus, the presence of a firearm was not the type of issue that
    required expert assistance for the jury to decide; moreover, even if trial
    counsel had attempted to introduce such evidence at the petitioner’s
    criminal trial, the trial court likely would not have permitted expert
    testimony as to that ultimate issue.
       Argued October 16, 2018–officially released January 22, 2019

                              Procedural History

  Amended petition for writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland
and tried to the court, Oliver, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
  Daniel Fernandes Lage, assigned counsel, for the
appellant (petitioner).
   Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Marc C. Ramia, senior assistant state’s
attorney, for the appellee (respondent).
                         Opinion

   LAVINE, J. The petitioner, Sojournal Hodges, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court (1) improperly rejected
his claim that his trial counsel, Donald J. Cretella, Jr.,
rendered ineffective assistance and (2) abused its dis-
cretion by precluding the petitioner’s expert from testi-
fying at the habeas trial. We affirm the judgment of the
habeas court.
   The petitioner was charged with attempt to commit
robbery in the first degree with a firearm as an acces-
sory in violation of General Statutes §§ 53a-8, 53a-49,
and 53a-134 (a) (4), and conspiracy to commit robbery
in the first degree with a firearm in violation of General
Statutes §§ 53a-48 and 53a-134 (a) (4). The petitioner
informed Cretella that he was present at the scene.
Cretella pursued a mere presence defense during the
petitioner’s criminal trial and attacked allegations of
the petitioner’s involvement in the events forming the
basis for the charges. Following a jury trial, the peti-
tioner was convicted of both charges, and the trial court,
Prescott, J., sentenced the petitioner to seven years
incarceration, followed by five years special parole.
   The following facts, which the jury reasonably could
have found concerning the petitioner’s underlying
offenses, are relevant to this appeal. On June 28, 2012,
at approximately 8:15 a.m., the petitioner and an uniden-
tified man walked into Hernandez Grocery in Waterbury
(store). The petitioner wore one grey glove and covered
his face with a red hoodie that had a white patch. The
unidentified man wore a black hoodie and asked Josean
Campos, a store employee, for a single cigarette. Upon
discovering that the store did not sell loose cigarettes,
the two men left the store and stopped on the sidewalk.
The petitioner followed the unidentified man back into
the store. The unidentified man placed his right hand
on the store counter, while holding a pistol on its side,
and demanded that Campos give him ‘‘all the money.’’
Campos noticed that the pistol lacked an ammunition
clip and stated that he would not do so. The unidentified
man stated that he was ‘‘just joking’’ and left the store
with the petitioner following him. Campos contacted
the police, who, on the basis of Campos’ physical
description of the petitioner and his clothes, detained
the petitioner. A crime scene technician collected a
surveillance video from the store, which was admitted
as a full exhibit in the petitioner’s underlying crimi-
nal trial.
  Following his conviction, the petitioner brought a
petition for a writ of habeas corpus, in which he alleged
that Cretella was ineffective, inter alia, for failing to
investigate and pursue a valid defense and failing to
consult with experts. The habeas court, Oliver, J.,
denied the petition for a writ of habeas corpus on all
counts. The petitioner then filed a petition for certifica-
tion to appeal from the court’s judgment, which the
court granted. This appeal followed. Additional facts
will be set forth as necessary.
                             I
  The petitioner claims that the court improperly deter-
mined that Cretella did not render ineffective assistance
by (a) allegedly failing to present a competent defense
and (b) declining to consult with and retain an expert
witness in video forensics. We disagree.
   We begin by setting forth the applicable standard of
review. ‘‘The habeas judge, as the trier of facts, is the
sole arbiter of the credibility of witnesses and the
weight to be given to their testimony. . . . The applica-
tion of historical facts to questions of law that is neces-
sary to determine whether the petitioner has
demonstrated prejudice under Strickland [v. Washing-
ton, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)], however, is a mixed question of law and fact
subject to our plenary review.’’ (Citation omitted; inter-
nal quotation marks omitted.) Small v. Commissioner
of Correction, 286 Conn. 707, 717, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008).
   ‘‘As enunciated in Strickland v. Washington, [supra,
466 U.S. 687,] this court has stated: It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . . A claim of ineffective assistance
of counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . The claim will succeed only if both prongs
are satisfied.’’ (Internal quotation marks omitted.) Bry-
ant v. Commissioner of Correction, 290 Conn. 502, 510,
964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant,
558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).
   ‘‘[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Goodrum v. Commissioner of Correction, 63
Conn. App. 297, 300–301, 776 A.2d 461, cert. denied,
258 Conn. 902, 782 A.2d 136 (2001).
                            A
  The petitioner argues that Cretella rendered ineffec-
tive assistance by pursuing a flawed defense theory
of mere presence. He contends, with twenty-twenty
hindsight, that Cretella failed to contest his presence
at the store despite the claim that it was difficult to
identify him from the video. He argues that Cretella
failed to move to suppress Campos’ out-of-court and
in-court identifications of the petitioner and that he
posed questions to Campos in the underlying criminal
trial in such a manner as to concede that an attempted
robbery had occurred. We are not persuaded.
   The petitioner has failed to overcome the presump-
tion that Cretella’s decision to pursue a mere presence
defense, and not to contest the petitioner’s presence at
the scene or the unidentified man’s involvement in an
attempted robbery, represented sound trial strategy.1
The court credited Cretella’s testimony that there was
never a question that the petitioner was present at the
scene and that the petitioner told Cretella that he was
there. Cretella testified that he thought the petitioner’s
best chance for acquittal was a mere presence defense
and explained that he did not believe an alibi defense
was viable in light of the fact that the petitioner had
admitted his presence at the scene to him, and more
significantly, to the police, and to the court, Fasano,
J., via a letter. ‘‘The reasonableness of counsel’s actions
may be determined or substantially influenced by the
[petitioner’s] own statements or actions. ‘‘ Strickland
v. Washington, supra, 466 U.S. 691. Cretella’s use of a
mere presence defense was reasonable particularly in
light of the fact that the petitioner had admitted he was
present at the scene.
   Cretella’s theory of the defense was based on the
premise that the petitioner was present at the scene
but was not a participant in the attempted robbery.
Cretella testified that his theory of the defense was to
concede the underlying crime and argue that, even if
Campos and the police were to be believed, the peti-
tioner did not participate in the attempted robbery.
Cretella further testified that he did not move to sup-
press Campos’ out-of-court identification of the peti-
tioner because ‘‘we weren’t disputing that he was
there.’’2 It would not be consistent with the defense
of mere presence for Cretella to have contested the
petitioner’s presence at the scene by challenging
Campos’ identifications of the petitioner. Additionally,
Cretella’s decision not to challenge the presence of a
gun was not inconsistent with the theory of the defense,
which was premised on the notion that the petitioner
was not a participant in the robbery. ‘‘There is a strong
presumption that counsel’s attention to certain issues
to the exclusion of others reflects trial tactics rather
than sheer neglect.’’ (Internal quotation marks omitted.)
Harrington v. Richter, 562 U.S. 86, 109, 131 S. Ct. 770,
178 L. Ed. 2d 624 (2011). We conclude that the court
properly determined that, in light of the surrounding
circumstances, Cretella’s decision to pursue a mere
presence defense was sound trial strategy and did not
amount to ineffective assistance of counsel.
                            B
   The petitioner argues that the court improperly con-
cluded that Cretella did not perform deficiently by
declining to consult with and retain an expert to provide
testimony on video forensics. Specifically, the peti-
tioner argues that the quality of the surveillance video
was poor and that an expert could explain how anoma-
lies within the video footage could make it falsely
appear as if an item, such as a firearm, were present.
We are not persuaded.
   The following additional facts are relevant. Lindsay
Hawk, a recorded evidence analyst, testified at the
habeas trial that she examined the video and deter-
mined that limitations in quality existed. She testified
that the video contained an anomaly called ‘‘banding,’’
which occurred on the edge of the unidentified man’s
right sleeve when he placed his right hand on the store
counter. Hawk further testified that there were too few
frames per second causing the video to become jumpy,
and opined that ‘‘you can’t magically have a gun in one
frame and not have it in another frame’’ and that ‘‘[y]ou
can’t just see a gun in one frame’’ in order for the viewer
to believe that the unidentified man had a gun.
   ‘‘[T]here is no requirement that counsel call an expert
when he has developed a different trial strategy. . . .
[T]here is no per se rule that requires a trial attorney to
seek out an expert witness.’’ (Citation omitted; internal
quotation marks omitted.) Davis v. Commissioner of
Correction, 186 Conn. App. 366, 379,       A.3d     (2018).
‘‘[T]he failure of defense counsel to call a potential
defense witness does not constitute ineffective assis-
tance unless there is some showing that the testimony
would have been helpful in establishing the asserted
defense.’’ (Internal quotation marks omitted.) Kellman
v. Commissioner of Correction, 178 Conn. App. 63,
77–78, 174 A.3d 206 (2017).
   The petitioner has not shown that Hawk’s testimony
challenging the quality of the video would have been
helpful in establishing Cretella’s defense that the peti-
tioner did not participate in the attempted robbery.
Cretella testified that he thought the video supported
the defense of mere presence because it showed the
petitioner doing ‘‘nothing that would constitute a con-
spiracy.’’ There was no allegation that the petitioner
possessed a gun, and Campos provided a detailed
account to the jury of the unidentified man’s use of a
gun. Hawk’s testimony would not have been helpful to
the petitioner because Cretella’s strategy was not to
contest the unidentified man’s commission of an
attempted robbery with a firearm and Cretella thought
the video aided in the petitioner’s defense. We conclude
that the court properly concluded that Cretella’s deci-
sion not to call an expert witness in video forensics was
based on a reasonable investigation and with adequate
explanation and, therefore, did not constitute defi-
cient performance.
                            II
   The petitioner also claims that the court abused its
discretion by precluding the testimony of the petition-
er’s firearm identification expert as to whether the video
footage depicted the presence of a firearm. Specifically,
the petitioner argues that his expert was to provide
information based on his years of experience regarding
whether a firearm was depicted in the video and that
the trier of fact needed assistance in determining that
issue. We are not persuaded.
   The following additional facts are relevant. At the
habeas trial, the petitioner sought to have Gary Barwi-
kowski testify as an expert in firearms identification.
As a foundation for his testimony, Barwikowski testi-
fied that, on the basis of his years of experience as a
law enforcement officer, an officer in the United States
Army, and as a firearm instructor for S.W.A.T. units,
he could opine as to whether an individual’s physical
movements are consistent with the handling, carrying,
demonstrating, displaying, sheathing, and/or bran-
dishing of a firearm. The respondent objected. The peti-
tioner’s habeas counsel stated that Barwikowski would
testify that he can determine conclusively that the
unidentified man was not in possession of a firearm in
the video. The court concluded that Barwikowski could
not testify on the ultimate issue of whether a firearm
was depicted in the video.
   ‘‘The applicable standard of review for evidentiary
challenges is well established. We review the trial
court’s decision to admit evidence, if premised on a
correct view of the law . . . for an abuse of discretion.
. . . We will make every reasonable presumption in
favor of upholding the trial court’s ruling, and only upset
it for a manifest abuse of discretion. . . . When an
improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [A] nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict.’’ (Internal quotation marks omitted.) State
v. Beavers, 290 Conn. 386, 396–97, 963 A.2d 956 (2009).
   Section 7-3 (a) of the Connecticut Code of Evidence
provides: ‘‘Testimony in the form of an opinion is inad-
missible if it embraces an ultimate issue to be decided
by the trier of fact, except that, other than as provided
in subsection (b), an expert witness may give an opinion
that embraces an ultimate issue where the trier of fact
needs expert assistance in deciding the issue.’’ ‘‘An
expert witness ordinarily may not express an opinion
on an ultimate issue of fact, which must be decided by
the trier of fact. . . . Experts can [however] sometimes
give an opinion on an ultimate issue where the trier, in
order to make intelligent findings, needs expert assis-
tance on the precise question on which it must pass.
. . . Thus, expert opinion as to the ultimate issue in a
case is admissible only when necessary for the trier of
fact to make sense of the proffered evidence, rendering
the situation . . . of such a nature as to require an
expert to express an opinion on the precise question
upon which the court ultimately had to pass.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Beavers, supra, 290 Conn. 414–15.
   The presence of a firearm was an ultimate issue in the
petitioner’s underlying criminal trial. It is an essential
element of the charged crimes of attempt and conspir-
acy to commit robbery with a firearm.3 The presence
of a firearm is not the type of issue that requires expert
assistance in order for the jury to make sense of the
evidence. The jury viewed the video and heard Campos’
detailed testimony regarding the presence of a firearm.
We are unwilling to conclude that the habeas court
abused its discretion in not permitting Barwikowski
to testify to this ultimate issue. Even if Cretella had
attempted to introduce such evidence at the petitioner’s
criminal trial, it is likely that the court would not have
permitted an expert to testify as to an ultimate issue.
Accordingly, the habeas court properly concluded that
the petitioner failed to demonstrate that Cretella ren-
dered deficient performance when he declined to retain
such an expert.
      The judgment is affirmed.
      In this judgment the other judges concurred.
  1
      The petitioner also argues that Cretella was ineffective because he devel-
oped his defense theory prior to watching a surveillance video provided to
him by the state. The petitioner cannot prevail on his argument. The court
found that Cretella testified credibly that he reviewed the discovery provided
by the state, which included the surveillance videotape, when he received
it. We conclude that the habeas court properly determined that trial counsel’s
investigation was reasonable under the circumstances.
    2
      The petitioner also challenges Cretella’s cross-examination of Campos
on the ground that it was ‘‘poor’’ and ‘‘misfired on exposing Campos’ inconsis-
tencies.’’ We conclude, after a review of the relevant criminal trial transcripts,
that the court properly concluded that Cretella’s cross-examination of
Campos ‘‘effectively exposed inconsistencies in [Campos’] testimony and
supported counsel’s mere presence defense,’’ and that the petitioner failed
to overcome the strong presumption that trial counsel’s cross-examination
tactics were reasonable trial strategy. ‘‘An attorney’s line of questioning on
examination of a witness clearly is tactical in nature. [As such, this] court will
not, in hindsight, second-guess counsel’s trial strategy.’’ (Internal quotation
marks omitted.) Velasco v. Commissioner of Correction, 119 Conn. App.
164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
    As recited in the habeas court’s memorandum of decision, Cretella’s cross-
examination of Campos included the following exchange:
    ‘‘Q. What does [the petitioner] say during that time?
    ‘‘A. Nothin.
    ‘‘Q. Did he ever say anything the entire time?
    ‘‘A. No. . . .
    ‘‘Q. Not at all?
    ‘‘A. No.
    ‘‘Q. You’ve never heard him speak ever?
    ‘‘A. No.
   ‘‘Q. All right. Did he ever point a gun at you?
   ‘‘A. No.
   ‘‘Q. Did he ever try to steal anything?
   ‘‘A. No.
   ‘‘Q. Did he ever tell the guy, yeah, get him?
   ‘‘A. No.
   ‘‘Q. Did he ever—you know, did he pat him on the butt—
   ‘‘A. I didn’t—
   ‘‘Q.—say, nice job, go get him?
   ‘‘A.—I don’t know.
   ‘‘Q. No, you didn’t see that?
   ‘‘A. I was behind the counter, I—
   ‘‘Q. Did he dap him?
   ‘‘A. No.’’
   3
     Both offenses relate to the underlying substantive offense of robbery in
the first degree with a firearm. General Statutes § 53a-134 (a) (4) provides
in relevant part: ‘‘A person is guilty of robbery in the first degree when, in
the course of the commission of the crime of robbery as defined in section
53a-133 or of immediate flight therefrom, he or another participant in the
crime . . . displays or threatens the use of what he represents by his words
or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other
firearm . . . .’’
