942 A.2d 1000 (2008) 286 Conn. 191

STATE of Connecticut
v.
T.R.D.^[1]

No. 17865.

Supreme Court of Connecticut.

Argued September 7, 2007. Decided March 25, 2008.

*1005 Mary Beattie Schairer, special public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence D. Mariani, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.^[2]

VERTEFEUILLE, J.

The defendant, T.R.D., appeals from the judgment of conviction, rendered after a jury trial, of failing to register as a sex offender in violation of General Statutes (Rev. to 2003) § 54-251^[3] and General Statutes § 54-257.^[4] He was sentenced to *1006 three years imprisonment, execution suspended after one year, and five years probation.

On appeal,^[5] the defendant claims that: (1) the trial court improperly failed to canvass the defendant adequately in accordance with Practice Book § 44-3^[6] before permitting him to proceed to trial without counsel, in violation of his constitutionally protected right to counsel; (2) the trial court improperly instructed the jury regarding the elements of the crime of which the defendant was ultimately convicted; (3) he was deprived of his constitutional due process rights when he was arrested before the state took further reasonable steps to contact him; and (4) prosecutorial impropriety in the state's closing argument deprived him of his constitutional right to a fair trial. We agree with the defendant's first claim, which is dispositive of this appeal. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial. We also address the merits of the state's second and third claims because they are likely to arise on retrial. See Burns v. Hanson, 249 Conn. 809, 830, 734 A.2d 964 (1999). Because we do not believe that the defendant's claim of prosecutorial impropriety is likely to arise on retrial, we do not reach this issue.

The following facts and procedural history are relevant to this appeal. On April 2, 1998, the defendant entered pleas of nolo contendere to charges of sexual assault in the first degree in violation of General Statutes (Rev. to 1997) § 53a-70 (a)(2) and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21(2). The court accepted the defendant's pleas and sentenced him to a total effective term of twelve years imprisonment, execution suspended after five years, followed by ten years of probation.

The defendant was released from incarceration on November 15, 2002. Prior to being released from incarceration, the defendant met with the coordinator for sex offender registration at the correctional institution where he was being held, who informed the defendant of his responsibilities under the Connecticut sex offender registration law, commonly referred to as Megan's Law, General Statutes § 54-250 et seq. One such responsibility is to return address verification letters, which are sent by the sex offender registry unit (unit) of the department of public safety every ninety days. Prior to his release *1007 from incarceration, the defendant signed several forms stating that he understood his responsibilities under the registration law, and further, that he understood that noncompliance with these responsibilities would constitute a crime.

The unit sent the first letter to the defendant in its first round^[7] of ninety day address verification letters on February 8, 2003, approximately ninety days after the defendant's release from incarceration. Although the defendant did not return the first letter sent by the unit for address verification purposes, he did return the second letter, which the unit received on February 27, 2003. The defendant was thus in compliance with his registration responsibilities for the first ninety day period. The unit sent the first letter in its next round of address verification letters on May 23, 2003. When the unit did not receive a response from the defendant, it subsequently sent two additional address verification letters. After the unit did not receive a response to any of the three letters it sent in its address verification attempts for the period beginning May 23, 2003, the defendant's status changed to "failure to verify his address" and his address was considered unknown. The defendant was arrested for failure to comply with the registration requirements on February 24, 2004.

On June 9, 2004, the court appointed Attorney Christopher Sheehan to represent the defendant in response to the defendant's request for a public defender. On May 2, 2005, the defendant informed the court that he did not want Sheehan to represent him, citing his disappointment with Sheehan's lack of communication with the defendant. The judge encouraged the defendant to resolve his differences with his appointed attorney, and ordered a continuance of the case. On September 7, 2005, the defendant filed a pro se motion for a speedy trial. At a pretrial hearing on September 19, 2005, Sheehan advised the court that he did not believe it was prudent for the defendant to file the speedy trial motion, and the court agreed. The defendant decided to move forward with the motion despite Sheehan's advice, and the court granted the motion on September 19, 2005.

Sheehan began conducting voir dire for the defendant's jury trial on September 26, 2005, and the defendant made no mention of representing himself. Jury selection resumed on September 30, 2005, and on that date, the defendant again informed the court that he no longer wanted Sheehan to represent him. The court discouraged the defendant from dispensing with his court-appointed attorney, and strongly encouraged the defendant to, at a minimum, retain Sheehan as standby counsel. The defendant continued to insist that he wanted to represent himself, noting: "I believe that my lawyer is not effective in representing me and I'm not gonna keep him." The defendant requested that the judge appoint a different attorney. The court declined to do so. The court then canvassed the defendant concerning his decision to waive his right to counsel and proceed pro se. The defendant indicated that he understood the implications of his decision to represent himself as outlined *1008 by the court. When the defendant again declined to have Sheehan serve as standby counsel, the court excused Sheehan from the proceedings. The defendant then conducted voir dire pro se, and subsequently represented himself at trial. The judge briefly canvassed the defendant again on October 3, 2005, minutes before opening statements were to begin. The case was tried to a jury, which found the defendant guilty of failing to register as a sex offender in accordance with §§ 54-251 and 54-257. On December 5, 2005, the trial court sentenced the defendant to three years incarceration, execution suspended after one year, and five years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the defendant first claims that his waiver of counsel could not be found knowing and intelligent in the absence of anything in the record demonstrating that the defendant knew the possible term of incarceration, which implicates the defendant's right to counsel guaranteed by the sixth amendment to the United States constitution.^[8] Specifically, the defendant claims^[9] that his waiver of counsel was not knowing, intelligent and voluntary because the trial court failed to inform him of the range of possible penalties that he would face upon conviction. The state concedes that the court's canvass did not inform the defendant that the offense with which he was charged carried a sentence of one to five years imprisonment. The state nevertheless contends that the record reveals that "the defendant clearly and unequivocally stated that he wanted to proceed pro se rather than be represented by his appointed public defender, that he was literate, competent and understanding, and that he voluntarily exercised his informed free will." We agree with the defendant.^[10]

The following additional facts are relevant to this claim. In its canvass,^[11] the *1009 trial court asked the defendant a number of questions regarding, for example, whether the defendant had considered the consequences of self-representation and whether he understood the practical consequences of proceeding pro se (e.g., that the defendant would have to conduct cross-examination by himself and decide whether to testify). The court also informed the defendant that he did not believe the defendant's decision to proceed without an attorney was a wise one.^[12] The state concedes, *1010 however, that the court never specifically advised the defendant of the range of possible penalties he faced upon conviction.

At the outset, we identify the applicable standard of review. "We review [a] trial court's determination with respect to whether the defendant knowingly and voluntarily elected to proceed pro se for abuse of discretion." State v. D'Antonio, 274 Conn. 658, 709, 877 A.2d 696 (2005).

We begin with several well settled principles regarding the constitutional right of an accused to represent himself. "The right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel. . . . State v. Wolff, 237 Conn. 633, 654, 678 A.2d 1369 (1996). When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently [forgo] those relinquished benefits. . . . State v. Frye, 224 Conn. 253, 256, 617 A.2d 1382 (1992). The state bears the burden of demonstrating that the defendant knowingly and intelligently waived his right to counsel. Id., at 260, 617 A.2d 1382." (Internal quotation marks omitted.) State v. Diaz, 274 Conn. 818, 828-29, 878 A.2d 1078 (2005).

"[Practice Book § 44-3] was adopted in order to implement the right of *1011 a defendant in a criminal case to act as his own attorney. . . . Before a trial court may accept a defendant's waiver of counsel, it must conduct an inquiry in accordance with § [44-3], in order to satisfy itself that the defendant's decision to waive counsel is knowingly and intelligently made. . . . Because the § [44-3] inquiry simultaneously triggers the constitutional right of a defendant to represent himself and enables the waiver of the constitutional right of a defendant to counsel, the provisions of § [44-3] cannot be construed to require anything more than is constitutionally mandated. . . .

"The nature of the inquiry that must be conducted to substantiate an effective waiver has been explicitly articulated in decisions by various federal courts of appeals. See, e.g., United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.1995) (court must inform defendant of charges, included offenses and possible range of punishment); United States v. Hurtado, 47 F.3d 577, 583 [ (2d Cir.) ] (factors determining valid waiver include whether defendant understood that he had choice between proceeding pro se and with assigned counsel, understood advantages of having trained counsel, and had capacity to make intelligent choice) [cert. denied, 516 U.S. 903, 116 S.Ct. 266, 133 L.Ed.2d 188 (1995)]; United States v. Van Krieken, 39 F.3d 227, 229 (9th Cir.1994) (defendant must be aware of nature of charges against him, possible penalties and disadvantages of self-representation); Government of Virgin Islands v. James, 934 F.2d 468, 471(3d Cir.1991) (waiver must be made with apprehension of nature of charges, statutory offenses included within them, range of allowable punishments thereunder, possible defenses to charges, circumstances in mitigation thereof, and all other facts essential to broad understanding of whole matter); United States v. Silkwood, 893 F.2d 245, 249 (10th Cir.1989) (same) [cert. denied, 496 U.S. 908, 110 S.Ct. 2593, 110 L.Ed.2d 274 (1990)]; United States v. McDowell, 814 F.2d 245, 251 [6th Cir.] (model inquiry includes questioning about defendant's legal background, knowledge of crimes charged, possible punishments, familiarity with Federal Rules of Evidence and Criminal Procedure, procedure for testifying, and advice that defendant would be better served by representation by trained attorney) [cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987) ]." (Internal quotation marks omitted.) State v. Diaz, supra, 274 Conn. at 829-30, 878 A.2d 1078.

"The defendant, however, does not possess a constitutional right to a specifically formulated canvass [with respect to this inquiry]. His constitutional right is not violated as long as the court's canvass, whatever its form, is sufficient to establish that the defendant's waiver was voluntary and knowing. . . . In other words, the court may accept a waiver of the right to counsel without specifically questioning a defendant on each of the factors listed in Practice Book § [44-3] if the record is sufficient to establish that the waiver is voluntary and knowing." (Internal quotation marks omitted.) Id., at 831, 878 A.2d 1078.

The defendant in the present case asserts that the state cannot meet its burden of proving that the defendant voluntarily, knowingly and intelligently waived his right to counsel. Specifically, the defendant contends that the trial court's canvass was constitutionally insufficient because the defendant was never made aware of the range of punishments that he could face upon conviction. This court recently addressed the adequacy of a canvass under almost identical factual circumstances in State v. Diaz, supra, 274 Conn. at 818, 878 A.2d 1078. In Diaz, the defendant *1012 waived his right to counsel after the trial court had canvassed the defendant in accordance with Practice Book § 44-3. The defendant thereafter represented himself at trial, and a jury ultimately found him guilty on all counts as charged. Id., at 819, 878 A.2d 1078. On appeal, the defendant claimed that his waiver of counsel was not knowing and voluntary because the trial court had failed to advise him correctly about the range of possible punishments that could be imposed upon conviction. Id., at 828, 878 A.2d 1078. We reversed the judgment of the trial court, and ruled that the defendant's waiver of counsel was not knowing and intelligent because he did not have an understanding of the range of punishment he faced upon conviction. Id., at 833-34, 878 A.2d 1078. In reversing the defendant's conviction, we were well aware that the defendant had some appreciation that he faced the possibility of a substantial period of incarceration, as the defendant had rejected the state's plea offer of fifteen years imprisonment, which had been made on the record. Id., at 826, 878 A.2d 1078. In addition, at one point during the trial in Diaz, the court informed the defendant that "[t]hese are big prison time cases," to which the defendant responded: "Yes, I understand that, Your Honor. It appears to be that way." (Internal quotation marks omitted.) Id., at 827, 878 A.2d 1078. Even in light of these cautionary words, however, we were not persuaded that the imprecise language used by the trial court was sufficient to satisfy the constitutional requirement that the defendant be advised of the range of permissible punishments he faced upon conviction, which was a period of nearly fifty years. Id., at 831, 878 A.2d 1078. Diaz controls the resolution of this issue in the present case.^[13]

In the present case, as in Diaz, there is simply no evidence present in the record from which we could infer that the defendant had any meaningful appreciation of the period of incarceration he faced if convicted of the charges he faced. "In such circumstances, it cannot be said that the defendant `received a realistic picture from [the court] regarding the magnitude of his decision [to proceed to trial without counsel].' United States v. Fore, 169 F.3d 104, 108 (2d Cir.), cert. denied, 527 U.S. 1028, 119 S.Ct. 2380, 144 L.Ed.2d 783 (1999). In other words, the record does not establish that the defendant `knew what he [was] doing and [that] his choice [was] made with eyes open,' as the constitution requires. . . . State v. Day, 233 Conn. 813, 828, 661 A.2d 539 (1995), quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)." State v. Diaz, supra, 274 Conn. at 833-34, 878 A.2d 1078.

"The right to counsel is so basic that its violation mandates reversal even if no particular prejudice is shown and even if there is overwhelming evidence of guilt." (Internal quotation marks omitted.) State v. Frye, supra, 224 Conn. at 262, 617 A.2d 1382. We conclude that the trial court's failure to conduct an adequate canvass to ensure that the defendant's waiver of the right to counsel was made knowingly and intelligently constitutes an abuse of discretion and, accordingly, requires that the defendant be granted a new trial.

II

Because of our conclusion that this case must be retried, it is appropriate *1013 for us to give guidance on issues that are likely to arise upon retrial. See Burns v. Hanson, supra, 249 Conn. at 830, 734 A.2d 964. Thus, we will address the defendant's claim that his conviction under § 54-257 deprived him of his due process rights.^[14] Specifically, the defendant asserts that the state was obligated to take further reasonable steps to contact him after he failed to respond to all three address verification forms that the unit sent to the defendant in its second round of letters. The state responds that the defendant had actual notice that he was statutorily required to verify his address every ninety days, and that he was deprived of his liberty only after a jury trial. Accordingly, the state contends, the defendant received full due process of law. We agree with the state.

The following additional facts are necessary for our resolution of the defendant's claim. Prior to the defendant's release from prison after conviction for sexual assault in the first degree in violation of § 53a-70 (a)(2) and risk of injury to a child in violation of § 53-21(2), he was formally apprised of his registration responsibilities under the state's sex offender registry, as required by General Statutes (Rev. to 2003) § 54-256.^[15] Specifically, prior to his release, the defendant met with Scott Tetreault, the coordinator for sex offender registration, at the Brooklyn correctional institution. At that meeting, Tetreault obtained the defendant's post-release address and gave the defendant a number of forms to complete, two of which were entitled "Sex Offender Advisement of Registration Requirement" and "Sex Offender Registry — Registration Form."

The form entitled "Sex Offender Advisement of Registration Requirement" contained a section captioned "Notice To Registrant," which provided as follows: "As a person who has been convicted of any crime specified in [§ ] 54-250 . . . or as one who is required to register by [§§] 54-251 through . . . 54-255 . . . inclusive, with the State of Connecticut Sex Offender Registry, you must report in person to the [unit]. Failure to comply with this requirement is a Class D Felony. After completing the initial registration you will further be required to return address verification forms that will be mailed to you at your last known address. These address verification forms must be returned to the Department of Public Safety at P.O. Box 2794, Middletown, CT XXXXX-XXXX, by first class mail. You must also notify the Department *1014 of Public Safety Sex Offender Registry within five days of changing your address and you must notify the appropriate law enforcement authorities if you move into another state. Failure to comply with any of these requirements will make you subject to arrest for a Class D Felony." Both the defendant's and Tetreault's signatures appear at the bottom of the form.

The defendant also signed a form captioned "Sex Offender Registry — Registration Form" at the meeting with Tetreault. The bottom of this form contained the following information, with the underlined text included: "Full registration requires all of the following: completion of this form, a full set of fingerprints and a photograph taken at the time of registration, and a blood sample taken for the purposes of DNA analysis. Failure to complete ALL registration requirements is a Class D felony." Both the defendant's and Tetreault's signatures appear on this form. After the meeting, Tetreault forwarded the aforementioned forms to the unit. The unit received both forms containing the defendant's signature on November 15, 2002, the same day the defendant was released from incarceration.

In accordance with its policy on address verification, the unit sent the first letter in its first round of correspondence on February 8, 2003, approximately ninety days after the defendant was released from incarceration. This letter was not returned.^[16] The unit then sent a second letter to the defendant in an effort to verify his address. The second paragraph of this letter provides, with the bold face text included: "The . . . [unit] is required to verify your residence address every [ninety] days. This verification of your address will be accomplished via the mail every [ninety] days until you are relieved of your registration requirement. You must return this address verification letter within ten (10) days of the postmark. The address that appears with your name at the top of this letter is the address of record for you. If you move you must notify the [unit], in writing, within five (5) days of such a change. If the address is incorrect as it appears, make the necessary corrections in the residence address correction space below."

On February 27, 2003, the unit received from the defendant a completed copy of the second letter. In the space on the form following the words "[r]esidence address correction," the defendant wrote the word "same." The defendant's signature appears at the bottom of the form, followed by the date of February 25, 2003, and his telephone number. The defendant's signature appears below a paragraph stating: "My current address is correct as it appears above. I understand that failure to comply with any of the registration requirements, including the address verification and above listed notifications, is a Class `D' Felony."

The unit sent the first letter in its next round of address verification letters on May 23, 2003. When this letter was not returned by the defendant, the unit subsequently sent two additional letters, on June 13, 2003, and June 24, 2003, respectively. When neither of these letters was returned to the unit, the unit identified the defendant's status as "failure to verify his *1015 address," and the address was considered unknown. The defendant was arrested for failure to comply with the registration requirements on February 24, 2004. Three days after his arrest, on February 27, 2004, the unit received a typewritten letter from the defendant, dated February 25, 2004, informing it that his address had remained the same.

We begin with the standard of review. Whether the defendant was deprived of his due process rights is a question of law, to which we grant plenary review. See State v. Long, 268 Conn. 508, 520-21, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004).

The defendant asserts^[17] that the state was obligated to make further attempts to contact him before arresting him, and relies on Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), in support of his claim. In Flowers, the United States Supreme Court addressed the issue of whether, "when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner's property." Id., at 223, 126 S.Ct. 1708. The commissioner of state lands attempted to inform a taxpayer of his tax delinquency by mailing two certified letters to the address that was the object of the delinquency. Id., at 223-24, 126 S.Ct. 1708. Although both letters were returned "unclaimed," the commissioner argued that the two letters were a constitutionally adequate attempt at notice. Id., at 224, 126 S.Ct. 1708. The Arkansas Supreme Court agreed, and affirmed the trial court's ruling, holding that attempting to provide notice by certified mail satisfied due process under the circumstances presented. Jones v. Flowers, 359 Ark. 443, 454, 198 S.W.3d 520 (2004). The United States Supreme Court reversed, noting that while "[d]ue process does not require that a property owner receive actual notice before the government may take his property," more was required under the circumstances presented. Jones v. Flowers, supra, 547 U.S. at 226, 126 S.Ct. 1708. Specifically, because the notice was returned undelivered, the state had a duty to take further action because no one "who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed." Id., at 229, 126 S.Ct. 1708. Thus, the knowledge that something had "gone awry" required the state to depart from its usual method of providing reasonable notice. Id., at 226, 126 S.Ct. 1708.

The defendant's reliance on Flowers is misplaced. First, the defendant in the present case had actual notice of his obligation to verify his address continually with the unit as part of his responsibilities as a convicted sex offender. Moreover, unlike the situation in Flowers, the sender in the present case — the unit — had no indication that the letters that it had sent to the defendant's address never actually reached the defendant. To the contrary, because the other individuals whose names were listed immediately before and after the defendant's on the registry list received and returned their letters, the *1016 unit had every reason to believe that the defendant had received the letters. Moreover, the evidence also showed that three days after his arrest, the unit received a typewritten letter generated by the defendant himself, dated February 25, 2004, indicating that his address remained the same. Accordingly, under the facts of this case, we conclude that the defendant was not deprived of due process because the state did not take additional steps to contact him before seeking his arrest.

Our conclusion is supported by a recent opinion of the Illinois Supreme Court, People v. Molnar, 222 Ill.2d 495, 306 Ill.Dec. 116, 857 N.E.2d 209 (2006). In Molnar, the court considered the Illinois Sex Offender Registration Act, which is similar to our statutory scheme in that it requires the state police to send nonforwardable letters to the offender for address verification purposes. Id., at 500-501, 306 Ill.Dec. 116, 857 N.E.2d 209. Under the Illinois statute, the sex offender must complete, sign and return the forms within ten days after the letter is mailed. Id., at 501, 306 Ill.Dec. 116, 857 N.E.2d 209. The defendant in Molnar claimed, inter alia, that the state's registration statute was unconstitutional because the state police were not required to notify a registrant that he had violated the statute. Id., at 505, 306 Ill.Dec. 116, 857 N.E.2d 209. The trial court agreed with the defendant, and held that a municipal ordinance imposing a registration requirement on a convicted felon was unconstitutional as applied. Id., at 507, 306 Ill.Dec. 116, 857 N.E.2d 209. The Illinois Supreme Court reversed, however, holding that the statute was constitutional because the defendant had actual knowledge of the registration requirements. Id., at 513, 306 Ill.Dec. 116, 857 N.E.2d 209. Specifically, the court cited as evidence of the defendant's knowledge the fact that upon registration, "[t]he defendant signed and initialed the registration form that again notified him of his duties under the [Sex Offender] Registration Act" and the fact that the registration form itself "notified the defendant that a violation of any provision of [that act] would result in a[ten] year extension of the registration period and would constitute a[c]lass 4 felony." Id.

We find the conclusion of the Illinois Supreme Court in a case with similar facts to be persuasive. In the present case, the record demonstrates that the defendant had actual notice of his duty to register as a sex offender. Specifically, eight days before he was released from incarceration, the defendant was formally apprised of his responsibilities under the registry statutes by Tetreault. Notably, one of the forms he signed contained the statement: "After completing the initial registration you will further be required to return address verification forms that will be mailed to you at your last known address. . . . Failure to comply with any of these requirements will make you subject to arrest for a[c]lass D felony." Additionally, approximately ninety days after he was released from prison, the defendant returned a letter sent by the unit in its first round of address verification attempts, evidence indicating that he had sufficient capacity to comply with his statutory obligations. We thus reject the defendant's claim that the state failed to take further reasonable steps to contact him before arresting him for his failure to comply with his registration obligations.

III

The defendant also claims that the trial court improperly instructed the jury.^[18] Specifically, the defendant *1017 asserts that the trial court improperly failed to include an element of mens rea in its instruction regarding §§ 54-251 and 54-257, and that the defendant was entitled to a jury instruction that the state must prove that the defendant had a duty to return the address verification forms and that he actually knew of this duty.^[19] The state responds that the trial court's charge on the elements of failure to register as a sex offender was correct in law because failure to register is a strict liability offense, and because the issue of whether the defendant knew he was obligated to verify his address is not an element of the offense. We agree with the state.

"Our analysis begins with a well established standard of review. When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper." (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).

"It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984). Consequently, the failure