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STATE v. GEISLER5/11/1990
an immediate hazard, then the statute is applicable, to give the right-of-way to the approaching car coming from the opposite direction, namely the one that [the victim] was driving."
The defendant claims first that the trial court should not have included any reference to 14-242 in its charge because that statute was not involved in this case, and that its inclusion either lowered the state's burden of proof or confused the jury on the element of causation. A review of the charge as a whole reveals that this claim is without merit.
In reviewing a challenge to a jury instruction, we must look at the charge as a whole, without looking at any one portion in isolation. State v. Quintana, 209 Conn. 34, 51, 547 A.2d 534 (1988); State v. Ostalaza, supra, 48. Our review of the charge as a whole here reveals that, in its instruction on causation, the trial court instructed the jury that if it found that the defendant was the cause of the victim's injuries, it must find that his operation of the vehicle was the "predominant producing cause of the accident." The trial court then proceeded to instruct the jury that the state had to prove beyond a reasonable doubt that the defendant was driving while intoxicated and that the injury caused by the defendant was a consequence of that intoxication.
The defendant alternatively claims that if the trial court was correct in including reference to 14-242 in its jury instructions, then it improperly failed to give a "complete" instruction as that approved in Affinito v. Daniels, 179 Conn. 388, 389, 426 A.2d 782 (1979). He claims that the trial court failed to provide adequate guidance to the jury on his theory of defense by failing to give the second half of the
Affinito instruction, that is, that if the jury found that the victim's car was not so close to the intersection when the defendant's car was about to turn left, a reasonably prudent person would believe that if the turn was made, no real immediate danger of collision existed, then the defendant had the right-of-way. See id.; Randazzo v. Pitcher, 17 Conn. App. 471, 474, 553 A.2d 1158 (1989). The second half of the Affinito charge was unnecessary here because the defendant at no time raised as a theory of defense that he had the right-of-way. Our review of the instructions as a whole reveals that the trial court adequately instructed the jury on the defendant's theory of defense, which was that the victim was travelling at an excessive rate of speed and that he was inattentive.
B
The defendant next claims that the trial court should not have included in its subsequent instruction on 14-227a (a)(2) that, where a person's BAC is .10 or more, under the influence is conclusively established. He argues that the jurors could have misapplied this "conclusive" standard to their determination of the "under the influence" element of 53a-60d.
A review of the record in this case reveals that it does not support this claim. State v. Golding, supra. The trial court clearly instructed the jury on the elements of 53a-60d separately from its instructions on the elements of 14-227a (a)(2). It further instructed them on the distinct meaning of "under the influence" as used in each section. Because the instructions in this case are clear, it is presumed that the jury followed those instructions. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989). There is no merit to the instructional claims.
The judgment is reversed as to the conviction of operating while under the influence of liquor under General Statutes 14-227a (a)(2) and of assault in the second
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