author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. NELSON RAMOS
    (AC 20921)
    Lavery, C. J., and Schaller and Stoughton, Js.
    Argued February 14
    officially released July 9, 2002

      Kent Drager, senior assistant public defender, with whom, on the brief, were Andrea N. Mosley and Matthew Stachowske, certified legal interns, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Vernon Oliver and William Watson III, deputy assistant state’s attorneys, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Nelson Ramos, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and carrying a weapon in a motor vehicle in violation of General Statutes (Rev. to 1997) § 29-38. On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of the two charges, (2) the trial court improperly refused to instruct the jury that self-defense was applicable to the charge of carrying a weapon in a motor vehicle, (3) if self-defense does not apply to that charge, then in the circumstances of this case, § 29-38 violates the defendant’s right to bear arms as guaranteed by article first, § 15, of the constitution of Connecticut, (4) the trial court improperly instructed the jury regarding self-defense as it related to the charge of assault in the second degree and (5) the trial court improperly instructed the jury regarding intent with respect to the charge of assault in the second degree. We reverse in part and affirm in part the judgment of the trial court.

The jury reasonably could have found the following facts. In October, 1998, the victim, Emil Szymczak, was employed as the superintendent of an apartment building at 38 Main Street in New Britain. As part of his duties, Szymczak collected rent payments from tenants. On the evening of October 5, 1998, as he drove his car into the parking lot behind the apartment building, Szymczak saw the defendant, who resided in the building, sitting in a motor vehicle. Prior to that evening, Szymczak had attempted, without success, to collect overdue rent payments from the defendant. Szymczak walked to the defendant’s vehicle and, through the open operator’s side window, asked the defendant about the overdue rent. In response, the defendant handed Szymczak a piece of paper that presumably indicated that he was waiting for money from the state. As Szymczak was reading the paper, the defendant picked up a twenty ounce hammer that was in the vehicle and forcefully struck Szymczak with it twice on the forehead. Szymczak grabbed the hammer and struggled with the defendant for control of it. William Colon, a resident of the apartment building who witnessed the incident, called the New Britain police after both men called out to him to do so.

When the police arrived at the scene, the defendant and Szymczak were still struggling for control of the hammer. Szymczak then let go of the hammer, and Officer Brian Pearson ordered the defendant to put the hammer down. Pearson had to repeat this order three or four times before the defendant complied. Pearson also ordered the defendant to exit his vehicle. After exiting his vehicle, the defendant told Pearson that Szymczak had asked him for rent money, that he did not have as much as Szymczak wanted, and that when Szymczak kept asking for the money he hit Szymczak twice with the hammer. At that time, the defendant stated that he had not been threatened by Szymczak.

As a result of the altercation, Szymczak appeared “dazed and pale” and he suffered two bloody, golf ball-sized welts on his forehead. Despite his condition, Szymczak refused medical assistance because he said he had no health insurance and could not afford to pay for treatment. At the time of the trial, he testified that he still suffered headaches and had numbness in his arms as a result of being struck with the hammer.

The defendant subsequently was arrested and charged in a four count information with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), assault in the second degree in violation of § 53a-60 (a) (2), carrying a dangerous weapon in violation of General Statutes (Rev. to 1997) § 53-206 and carrying a weapon in a motor vehicle in violation of § 29-38. At the conclusion of the state’s case, the defendant filed a motion for a judgment of acquittal as to all counts. The court granted the defendant’s motion as to the first count, attempt to commit assault in the first degree, and the third count, carrying a dangerous weapon. With respect to the first count, the court concluded that the state had failed to present evidence that would support a finding by the trier of fact that the defendant intended to cause serious physical injury to the victim. With respect to the third count, the court concluded that there was no evidence that the defendant, at any time, had the hammer on his person. After the completion of the trial, the jury convicted the defendant of the two remaining counts. The court sentenced the defendant to two concurrent sentences of five years, execution suspended, with five years probation. This appeal followed.

I

The defendant first claims that the evidence presented at trial was insufficient to support his conviction of assault in the second degree and carrying a weapon in a motor vehicle. We agree with the defendant only as to his conviction of carrying a weapon in a motor vehicle.

“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 reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, 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 reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 224-25, 733 A.2d 156 (1999).

A

The defendant first claims that the evidence was insufficient to support his conviction of assault in the second degree. Specifically, the defendant contends that the state failed to prove that the hammer, under the circumstances in which it was used, was capable of causing death or serious physical injury and, therefore, it failed to prove, as it was required to, that the hammer, as actually used, was a dangerous instrument. We are not persuaded.

To prove the defendant guilty of assault in the second degree pursuant to § 53a-60 (a) (2), the state was required to prove beyond a reasonable doubt that the defendant, with intent to cause physical injury to Szymczak, caused such injury to Szymczak by means of a dangerous instrument. General Statutes § 53a-3 (7) defines “dangerous instrument” in relevant part as “any instrument . . . which, under the circumstances in which it is used ... is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (4), in turn, defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

As previously indicated, the state charged the defendant with attempt to commit assault in the first degree in violation of §§ 53a-59 (a) (1) and 53a-49 (a) (2). Section 53a-59 (a) (1) requires, inter aha, proof of “intent to cause serious physical injury to another person . . . by means of a deadly weapon or a dangerous instrument . . . .’’In granting the defendant’s motion for a judgment of acquittal as to the charge of attempt to commit assault in the first degree, the court found that the state failed to present evidence that would support a finding that the defendant intended to cause serious physical injury to the victim. The defendant claims on the basis of that finding and the fact that the court’s jury charge on self-defense did not include an instruction on justification for the use of deadly physical force, that the court determined that the hammer was not used in a manner that was capable of causing serious physical injury. This claim is entirely without merit.

The fact that the court concluded that the evidence was insufficient to establish that the defendant intended to cause serious physical injury to the victim does not foreclose a finding by the jury that the hammer as used was capable of causing serious physical injury. Proof of intent to cause serious physical injury is quite different from proof that a hammer is capable of causing serious physical injury. A conclusion that the hammer, when used to strike the victim on the head, was not capable of causing serious physical injury would have been truly astonishing.

“Under § 53a-3 (7), in order for an instrument to be considered dangerous, it need only be used in a manner capable of causing serious injury under the circumstances” and, therefore, “[t]he facts and circumstances need show only that the general way in which the object was used could potentially have resulted in serious physical injury.” (Emphasis added.) State v. Green, 38 Conn. App. 868, 880-81, 663 A.2d 1085 (1995). We conclude that the evidence was sufficient to establish that the hammer, as used, was a dangerous instrument. Accordingly, the evidence was sufficient to support the defendant’s conviction of assault in the second degree.

B

The defendant also claims that the evidence was insufficient to support his conviction of carrying a weapon in a motor vehicle. We agree.

Section 29-38 prohibits a person from carrying in a motor vehicle any weapon specifically named in the statute or “any other dangerous or deadly weapon or instrument” without a permit or registration. Experience has shown, and cases have recognized, that an almost infinite number of seemingly innocuous implements can, by the circumstances and manner of their use, become dangerous instruments. See, e.g., State v. Prat, 66 Conn. App. 91, 102-103, 784 A.2d 367 (2001) (baseball bat); State v. Pierce, 64 Conn. App. 208, 214, 779 A.2d 233 (2001) (crowbar); State v. Barnett, 53 Conn. App. 581, 591, 734 A.2d 991 (metal vacuum cleaner pipe, screw driver, ice pick, two by four, cane, scissors, television antenna), cert. denied, 250 Conn. 918, 738 A.2d 659 (1999); State v. Rozmyslowicz, 52 Conn. App. 149, 154, 726 A.2d 142 (1999) (steak knife). A hammer is just such an innocuous implement that is not considered a dangerous instrument unless it is intended to be used as such. See State v. Killenger, 193 Conn. 48, 55, 475 A.2d 276 (1984). Accordingly, it is not a crime to have a hammer in a motor vehicle unless it is intended to be used as a dangerous instrument or for some other illicit purpose.

In the present case, there was no evidence to suggest that the defendant ever intended to use the hammer to strike the victim until the moment he did so. While it is true that intent may be formed in an instant; see State v. Cooper, 227 Conn. 417, 444, 630 A.2d 1043 (1993); there is no evidence that the defendant was carrying the hammer in his vehicle with the intent to use it as a dangerous instrument. Accordingly, we conclude that there was insufficient evidence to support the defendant’s conviction of carrying a weapon in a motor vehicle.

II

The defendant next claims that the trial court improperly refused to instruct the jury that self-defense was applicable to the charge of carrying a weapon in a motor vehicle. Because we concluded in part I of this opinion that there was insufficient evidence to support the defendant’s conviction of carrying a weapon in a motor vehicle, it is unnecessary for us to address this claim.

III

The defendant next claims that the court improperly instructed the jury regarding self-defense in relation to the charge of assault in the second degree. Specifically, the defendant claims that, in its instructions on self-defense, the court improperly instructed the jury, in effect, that the defendant’s use of nondeadly physical force would be justified only if the defendant believed that the use of such force was “unavoidable.”

The defendant concedes that this claim was not properly preserved at trial. He maintains, however, that his claim is reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review this claim because the record is adequate for review and an allegation of an improper jury instruction on an element of self-defense is of constitutional dimension. See State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994). We conclude, however, that the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial and, therefore, the defendant’s claim fails under the third prong of Golding.

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. . . . [T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” (Internal quotation marks omitted.) State v. Amado, 254 Conn. 184, 194, 756 A.2d 274 (2000).

The court instructed the jury that “aperson is justified in the use of reasonable physical force upon another person when he reasonably believes that such force is necessary to protect himself from . . . the imminent use of force” by another person. The court explained that General Statutes § 53a-19, insofar as it is applicable to this case, provides that “a person is justified when using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the . . . imminent use of physical force and he may use such degree of force which he reasonably believes to be necessary for such purpose.” The court further explained that there “need not be an actual threat or an assault. The test is not what the other person actually intended, but what the aggressor’s act caused the defendant ... to reasonably believe . . . was his intention . . . .” The court then stated: “In other words, the danger need not have been actual if the defendant reasonably believed that the danger was actual, real, imminent or unavoidable.” (Emphasis added.) The defendant claims that the court’s inclusion of the word “unavoidable” in its charge may have misled the jury. We are not persuaded.

“It is generally agreed that one who can safely retreat is not required to do so before using nondeadly force in self-defense.” (Emphasis in original.) State v. Anderson, 227 Conn. 518, 529, 631 A.2d 1149 (1993). Indeed, § 53a-19 contains no such requirement to justify the use of nondeadly physical force in self-defense. It is the use of deadly physical force which is not justified if the necessity for using it can be avoided with complete safety by retreating, by surrendering property claimed by the other or by complying with certain demands. See footnote 9.

In the present case, the court used the word “unavoidable” in its instructions on self-defense in explaining to the jury that the danger faced by the defendant need not be real if the defendant reasonably believed that it was “actual, real, imminent or unavoidable.” It did not charge the jury that the defendant’s use of physical force was justified only if he believed that use of such force was unavoidable, and, in expressing his claim in this way, the defendant has misstated the court’s instructions on self-defense by taking a portion of the instructions out of context. Indeed, the court did not instruct the jury that the defendant had a duty to avoid the use of physical force by retreating, giving up property or acceding to demands if it could be avoided with complete safety. The word “unavoidable” was used in describing the danger perceived by the defendant, not the necessity for the use of force.

We conclude that it is not reasonably possible that the jury was misled by the court’s single use of the word “unavoidable” in its instructions on self-defense. Accordingly, the defendant’s claim fails under the third prong of Golding.

IV

The defendant’s final claim is that the court improperly instructed the jury regarding intent by reading the entire definition of intent set forth in General Statutes § 53a-3 (ll), including a portion which is not relevant to the charge of assault in the second degree. He claims that it was reasonably possible that the jury was misled by the court’s improper instruction.

Although the defendant concedes that this claim was not properly preserved at trial, he again maintains that his claim is reviewable pursuant to State v. Golding, supra, 213 Conn. 239-40. We will review this claim because the record is adequate for review and an allegation of an improper instruction on an element of an offense is of constitutional dimension. See State v. Brown, 259 Conn. 799, 806, 792 A.2d 86 (2002).

As previously stated, the standard of review for a claim of an improper instruction on an element of an offense is whether it is reasonably possible that the jury was misled. State v. Amado, supra, 254 Conn. 194.

The court instructed the jury on intent, in part, as follows: “A person is guilty of assault in the second degree when with the intent to cause physical injury to another person he causes such injury by means of a dangerous instrument or deadly weapon. . . . The first element is intent to cause physical injury. You must be satisfied that the defendant intended to cause physical injury to his victim, that is, Mr. Szymczak. This raises the issue of the defendant’s intent, that’s an important word as to that first element, and our statute provides that 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 engage in such conduct. Intentional conduct is conduct that is purposeful rather than conduct that is accidental or inadvertent.

3= =H

“Now the term ‘physical injury’ — remember I just said that the first element is an intent to cause physical injury — so physical injury the meaning of that is important. What it means is, under our statute, the impairment of physical condition or pain. No particular degree of the impairment of one’s physical condition and no particular degree of pain is required, but that’s an element, intent to cause physical injury which includes pain . . . .”

The court later instructed the jury that to convict the defendant of assault in the second degree, “the burden of the state is to prove beyond a reasonable doubt the following elements: One, that the defendant had the intent to cause physical injury to another person, Mr. Szymczak; two, that he did cause that physical injury; three, that he did so by the use of a dangerous instrument, in this case we’re talking about the hammer; and fourth, that he was not acting in self-defense. ... So if you find that the state has proven all of these elements of assault in the second degree beyond a reasonable doubt — and let me just review them just one last time. In order for you to find the defendant guilty of assault in the second degree, you must find, one, that the defendant had the intent to cause physical injury to another person; that he caused physical injury; and that he did so by using a dangerous instrument; and that the defendant was not, at the time, acting in self-defense. If you find that the state has proven all of those elements beyond a reasonable doubt, then your verdict would be guilty on this count. If, however, you do not find all of the elements proven beyond a reasonable doubt, your verdict would be not guilty.”

We agree with the defendant that the portion of the statutory definition of intent relating to intent to engage in proscribed conduct is not relevant to the charge of assault in the second degree, and, therefore, the issue is whether it is reasonably possible that the jury was misled by the court’s reference to that portion of the definition. We conclude that it was not.

The defendant claims that the present case is indistinguishable from State v. DeBarros, 58 Conn. App. 673, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000), in which this court reversed the defendant’s murder conviction on the basis of an improper jury instruction. In DeBarros, the trial court read the entire statutory definition of intent to the jury, including an improper reference to intent to engage in proscribed conduct. This court determined that “[i]t is reasonably possible that the jury was misled because the probable effect of the improper charge was that it guided the jury to an incorrect verdict. The trial court not only improperly read the intent to ‘engage in conduct’ language in its initial and two supplemental charges, it also improperly referred back to that language seven times throughout its instructions to the jury.” Id., 682-83. In DeBarros, “the trial court’s improper instructions were too numerous to be rectified by the court’s proper instructions. In total, the court either read or referred back to the improper instruction ten times.” Id., 683.

This court recently examined a similar issue in State v. Rodriguez, 63 Conn. App. 529, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001). In that case, the state charged the defendant with murder. During its charge, the court improperly referred to intent to engage in proscribed conduct twice within the same sentence. “The instruction, however, properly referred to the intent to cause a result, death, on five occasions, twice when reading the statutory definition of [General Statutes] § 53a-54a (a) and three additional times as a prerequisite to finding the defendant guilty of the crime charged.” State v. Rodriguez, supra, 535. The court in Rodriguez therefore determined that it was not reasonably possible that the charge misled the jury.

The improper instruction in this case is more analogous to that of Rodriguez than DeBarros. Here, the trial court improperly referred to intent to engage in proscribed conduct only once in its instructions. Moreover, its instructions properly referred to the intent to cause a result, physical injury, on six occasions. Accordingly, we conclude that it is not reasonably possible that the jury was misled by the court’s instructions.

The judgment is reversed only as to the conviction of carrying a weapon in a motor vehicle and the case is remanded with direction to render judgment of not guilty of that crime and to vacate the portion of the defendant’s sentence associated with that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . .”

       General Statutes (Rev. to 1997) § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . .”

       We have recited these claims in the order in which we will address them, rather than in the order in which they are presented in the defendant’s brief.

       The state asserted that the defendant caused physical injury to Szymczak by means of a dangerous instrument, namely, a hammer.

       We note that during argument on the motion for a judgment of acquittal, defense counsel stated the following: “I think the way [the hammer] was used is certainly a dangerous instrument and that is why there’s the charge of assault in the second degree and not assault in the third degree. . . .
      * ** *
      “I’m not saying it wasn’t used as a dangerous instrument, again, that is why assault second is charged. . . .

        “It was not being carried as a dangerous instrument, did not become a dangerous instrument until it was used.”

       The defendant further claims that it is reasonably possible that the court’s failure to instruct the jury that self-defense is a defense to the charge of carrying a weapon in a motor vehicle misled the jury in its evaluation of self-defense as it related to the charge of assault in the second degree. In a rather convoluted argument, the defendant contends that because the court in its instructions on the charge of carrying a weapon in a motor vehicle informed the jury that possession and use of the hammer as a dangerous instrument was illegal, the jury may have been misled into concluding that “it would not be reasonable to use an illegal weapon in defense of oneself.” We reject the defendant’s argument as speculative and wholly without merit because there is absolutely no indication that the court’s instructions on self-defense were in any way misleading as to this issue.
      The defendant also claims that, if self-defense does not apply to the charge of carrying a weapon in a motor vehicle, then, in the circumstances of this case, § 29-38 violates his right to bear arms as guaranteed by article first, § 15, of the constitution of Connecticut. In view of our conclusions in parts I and II of this opinion, it is unnecessary for us to address this claim.

       Pursuant to State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; internal quotation marks omitted.) State v. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001).

       We note that the defendant did not take exception to this portion of the court’s instruction at trial and, in fact, included the quoted language in his request to charge.

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person 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; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he 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 is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, 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 justifiable if he withdraws from the encounter and effectively 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 agreement not specifically authorized by law.”

       General Statutes § 53a-3 (11) provides: “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 . . . .”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JOSEPH CALDRELLO ET AL. v. CITY OF NEW LONDON ET AL.
    (AC 21609)
    Foti, Schaller and Hennessy, Js.
    Argued April 29
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    DEAN CERUTTI v. ISS CLEANING SERVICES GROUP, INC.
    (AC 21747)
    Lavery, C. J., and Flynn and Cretella, Js.
    Argued April 29
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    JOHN HANSEN v. COMMISSIONER OF CORRECTION
    (AC 22040)
    Foti, Dranginis and Flynn, Js.
    Submitted on briefs April 26
    officially released May 28, 2002
   Per Curiam.

The denial of the petitioner’s petition for certification to appeal was not an abuse of discretion.

The appeal is dismissed.


text:
    JOSHUA RODRIGUEZ v. COMMISSIONER OF CORRECTION
    (AC 22281)
    Spear, Mihalakos and Bishop, Js.
    Submitted on briefs April 26
    officially released May 28, 2002
   Per Curiam.

The habeas court did not abuse its discretion in denying the petitioner’s request for certification to appeal.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. JOHNNY B. LEE
    (AC 21811)
    Lavery, C. J., and Flynn and Cretella, Js.
    Argued April 29
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ROMAN H. FLORES
    (AC 22269)
    Lavery, C. J., and Flynn and Cretella, Js.
    Submitted on briefs April 29
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT FROMER v. COMMISSIONER OF ENVIRONMENTAL PROTECTION ET AL.
    (AC 21914)
    Mihalakos, Flynn and Peters, Js.
    Argued May 3
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. FRANK PENSIERO
    (AC 22037)
    Lavery, C. J., and Bishop and West, Js.
    Argued May 1
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    FELIX HERNANDEZ v. COMMISSIONER OF CORRECTION
    (AC 22073)
    Lavery, C. J., and West and Hennessy, Js.
    Argued May 1
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    TROY JAYNES v. COMMISSIONER OF CORRECTION
    (AC 21761)
    Lavery, C. J., and Schaller and Dupont, Js.
    Submitted on briefs April 26
    officially released May 28, 2002
   Per Curiam.

The habeas court did not abuse its discretion in denying the petitioner’s request for certification to appeal.

The appeal is dismissed.


text:
    RICHARD LORD v. COMMISSIONER OF CORRECTION
    (AC 21926)
    Lavery, C. J., and Schaller and Dupont, Js.
    Submitted on briefs April 26
    officially released May 28, 2002
   Per Curiam.

The habeas court did not abuse its discretion in denying the petitioner’s request for certification to appeal.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. JASON M. COSTA
    (AC 20801)
    Dranginis, Flynn and McDonald, Js.
    Argued May 7
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOHN BRADLEY
    (AC 21851)
    Lavery, C. J., and Bishop and West, Js.
    Argued May 7
    officially released May 28, 2002
   Per Curiam.

The judgment is affirmed.


text:
    IN RE MARY R.

    (AC 21626)
    Schaller, Mihalakos and Peters, Js.
    Argued May 28
    officially released June 18, 2002

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. VALENCE HAYNES
    (AC 21929)
    Flynn, Bishop and McDonald, Js.
    Argued May 29
    officially released June 18, 2002
   Per Curiam.

This case is controlled by State v. Patterson, 236 Conn. 561, 674 A.2d 416 (1996).

The judgments are affirmed.


text:
    COREY LAKIN v. DAVID LAKIN
    (AC 21168)
    Foti, Mihalakos and Daly, Js.
    Argued May 30
    officially released June 18, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ALEISTER SIBILIA
    (AC 21970)
    Foti, Dranginis and West, Js.
    Argued June 3
    officially released June 18, 2002
   Per Curiam.

The judgment is affirmed.


text:
    BENITA BRYAN ET AL. v. COMMISSIONER OF PUBLIC HEALTH ET AL.
    (AC 21646)
    Lavery, C. J., and Foti and Dupont, Js.
    Argued May 31
    officially released June 18, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. PHILLIP TATE
    (AC 21292)
    Lavery, C. J., and Foti and Dupont, Js.
    Argued May 31
    officially released June 18, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CHARLES DAVID CARR
    (AC 21940)
    Lavery, C. J., and Dranginis and Daly, Js.
    Argued June 4
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    FREDERICK B. CORNELIUS v. BANKBOSTON, N.A.
    (AC 21836)
    Lavery, C. J., and Dranginis and Daly, Js.
    Argued June 4
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    JUDITH M. WARD v. LAWRENCE J. WARD
    (AC 21477)
    Lavery, C. J., and Foti and Dranginis, Js.
    Argued June 5
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    CITICORP CREDIT SERVICES, INC. v. JOHN T. ZERBST
    (AC 22210)
    Lavery, C. J., and Schaller and Hennessy, Js.
    Submitted on briefs June 7
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    COSTAS GEORGACOPOULOS v. KEN MARINO SALES AND SERVICE, LTD.
    (AC 22429)
    Foti, Flynn and Bishop, Js.
    Submitted on briefs June 7
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    CARLOS MALDONADO v. COMMISSIONER OF CORRECTION
    (AC 22287)
    Schaller, Mihalakos and Dupont, Js.
    Argued June 12
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSE MANUEL ROBLES
    (AC 21132)
    Flynn, Bishop and Hennessy, Js.
    Argued June 12
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    BEATRICE MARTONE-ROSATO v. PHYLLIS GUARDIANO-NEIZWANGER ET AL.
    (AC 21799)
    Flynn, Bishop and Hennessy, Js.
    Argued June 12
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    MAUREEN B. O’BRIEN v. RONALD K. O’BRIEN
    (AC 21810)
    Mihalakos, Dranginis and West, Js.
    Argued June 11
    officially released July 2, 2002
   Per Curiam.

The judgment is affirmed.


text:
    OCWEN FEDERAL BANK v. JEFFREY W. NAVIN ET AL.
    (AC 22167)
    Schaller, Bishop and Peters, Js.
    Argued June 3
    officially released July 9, 2002
   Per Curiam.

The defendant Patrick J. Berkerey, a subsequent mortgagee, appeals from the judgment of foreclosure by sale rendered by the trial court. The defendant claims, inter alia, that the trial court abused its discretion in refusing to accept his appraiser’s opinion concerning the fair market value of the property and in ordering a foreclosure by sale. On the basis of our thorough examination of the record, we conclude that the trial court acted within its discretion in determining the value of the property and in ordering foreclosure by sale. The defendant has offered no plausible argument supporting his claim that the trial court abused its discretion in any respect.

The judgment is affirmed.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOSEPH J. FARRICIELLI STATE OF CONNECTICUT v. HAMDEN SALVAGE, INC. STATE OF CONNECTICUT v. HAMDEN SAND AND STONE, INC. STATE OF CONNECTICUT v. TIRE SALVAGE, INC.
    (AC 21759)
    Foti, Mihalakos and Dranginis, Js.
    Argued April 22 —
    officially released July 9, 2002

      Maureen O’Doherty, for the appellants (defendants).

      Tamberlyn Conopask, assistant state’s attorney, with whom were Margaret Gaffney Rodionovas, senior assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Robert M. Spector, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendants in these consolidated criminal cases appeal following the trial court’s denial of their motion to dismiss the charges against them. We affirm the trial court’s denial of the motion.

The following facts underlie the claim before us. In July, 1999, counsel from the office of the attorney general, on behalf of the commissioner of environmental protection (commissioner), instituted a civil action against the defendants and several other parties. The commissioner alleged that the defendants had violated various solid waste management and water pollution laws. In September, 2001, the trial court rendered judgment in the commissioner’s favor and, inter alia, ordered the defendants to complete specific remedial measures, enjoined the defendants from engaging in certain conduct and required the defendants to obtain regulatory approval before conducting certain activities. The court also imposed a $1,380,900 civil penalty under General Statutes § 22a-226 for solid waste violations and a $955,900 civil penalty under General Statutes § 22a-438 for water pollution violations.

In November, 1999, the state charged the defendants with criminal violations of several of the state’s environmental laws. In January, 2001, the defendants filed a motion to dismiss the criminal charges against them on double jeopardy grounds. The court denied the defendants’ motion, and the defendants thereafter filed this interlocutory appeal. On appeal, the defendants argue that the civil action against them arose from the same conduct on which the state based its criminal charges and that the civil action constituted a previous prosecution for any such wrongdoing. Specifically, the defendants argue that the sanctions imposed on them under § 22a-226, despite the fact that they were imposed in a civil proceeding, were criminal in nature. They argue that the double jeopardy protections afforded them by the fifth and fourteenth amendments to the constitution of the United States and article first, §§ 8 and 9, of the constitution of Connecticut, preclude the state from prosecuting the matter. We agree with the court that the continued criminal prosecution of the defendants would not violate the double jeopardy protections of the United States and Connecticut constitutions.

We first set forth our standard of review. “Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts. . . . Thus our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 308, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

It is well settled that a defendant may face both criminal and civil sanctions for the same conduct. The double jeopardy clause “protects only against the imposition of multiple criminal punishments for the same offense . . . .” (Emphasis added.) Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997). The issue before us is whether the sanctions available under § 22a-226 are civil or criminal in nature. If they fall into the latter category, the continued prosecution would violate the defendants’ double jeopardy rights.

This court, in State v. Duke, 48 Conn. App. 71, 708 A.2d 583, cert. denied, 244 Conn. 911, 713 A.2d 829 (1998), applied a two part analysis to determine if a sanction is criminal or civil in nature for purposes of double jeopardy. The first part of the analysis focuses on whether the sanction, by its nature, is punitive or remedial. Among the factors to consider in this analysis are whether “(1) it involves an affirmative disability or restraint, (2) it has historically been regarded as a punishment, (3) it comes into play only on a finding of scienter, (4) its operation will promote the traditional aims of punishment, i.e., retribution and deterrence, (5) the behavior to which it applies is already a crime, (6) an alternative purpose to which it may rationally be connected is assignable for it, and (7) it appears excessive in relation to the alternative purpose assigned.” Id., 75.

The second part of the analysis comes into play if the legislature has in some way indicated its intention that the sanction be remedial in nature. In such a case, a “further inquiry is made to determine whether ‘the clearest proof has been shown that the statutory scheme is so punitive as to negate that intention.” Id.

We conclude, as did the trial court, that § 22a-226 is civil in nature and that the sanctions applicable under the statute serve predominantly remedial and compensatory interests. The statute permits the imposition of both monetary and remedial sanctions. These types of sanctions have not historically been regarded as punishment for criminal acts. The maximum monetary sanctions available under the statute, up to $25,000 per day, do not appear to be either retributive or excessive in light of the environmental concerns implicated under the statute. The statute permits the court to treat each day’s continuance of offending conduct as a separate and distinct offense, thereby permitting the ultimate award of monetary damages to be commensurate with the duration and impact of the offensive conduct. The statute does not provide for affirmative disability or restraint. Further, sanctions under the statute are not applicable only upon a finding of scienter. The statute applies to “[a]ny person who violates” an applicable solid waste law, regulation, permit or order to which it applies.

The defendants point out that the conduct to which § 22a-226 applies may also be criminal. In this case, the same conduct formed the basis for the criminal charges under General Statutes § 22a-226a. This “same conduct” consideration, however, is not dispositive and does not render criminal the sanction provided by the statute. See Hudson v. United States, supra, 522 U.S. 105. Further, the defendants argue that the sanctions impose punishment because they serve mainly retributive or deterrent goals. Section 22a-226 (b) permits the court to enjoin violators and to “order remedial measures to prevent, control or abate pollution.” General Statutes § 22a-226 (b). This demonstrates the remedial or curative character of the sanctions available under the statute. The legislature reasonably could have concluded that significant monetary sanctions were necessary to remedy environmental harm, that they would motivate violators to cease their activities, and that such sanctions would act as a general deterrent for these defendants and others who violate our solid waste management laws.

Despite the fact that the statute’s monetary penalties undoubtedly achieve a deterrent purpose, we nonetheless conclude that this effect does not cause us to view the statute as imposing a criminal sanction. Deterrence is a traditional goal of criminal punishment, but deterrence may serve civil goals and does so in this case. As the United States Supreme Court has recognized, “all civil penalties have some deterrent effect. ... If a sanction must be ‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.” (Citations omitted.) Hudson v. United States, supra, 522 U.S. 102. In an effort to enjoin violations of the solid waste management laws, to remedy any environmental destruction occasioned by such violations and to “prevent, control or abate pollution,” the imposition of the fines permitted by § 22a-226 serves legitimate remedial goals closely related to the environmental concerns protected by the statute. We do not find the sanctions available under the statute to be excessive in light of this alternate purpose of remediation costs and achieving deterrence.

Turning to the second part of our analysis, we conclude that the legislature’s intent as to this statute’s civil character is clearly evident on the face of the statute. Section 22a-226 (a) provides that a violator may be assessed “a civil penalty” to be recovered after the commencement of a “civil action” brought pursuant to the statute by the attorney general. Section 22a-226 (b) provides that a court may enjoin violators from conducting activities that contravene the provisions of the chapter and that the court may, inter alia, “order remedial measures to prevent, control or abate pollution.” The defendants have not surmounted the considerable burden of setting forth the “clearest proof’ that the sanctions imposed under the statute are “so punitive in form and effect as to render them criminal despite the legislative intent to the contrary.” State v. Duke, supra, 48 Conn. App. 78.

The denial of the motion to dismiss is affirmed.

In this opinion the other judges concurred.

       The four defendants involved in this appeal are Joseph J. Farricielli; Hamden Salvage, Inc.; Tire Salvage, Inc.; and Hamden Sand and Stone, Inc. Our use of the term defendants in this opinion refers to these four defendants.

       The zoning enforcement officer for the town of Hamden (town) also was a plaintiff in the civil action against the defendants. The town brought an action against the defendants for violations of its regulations. The court awarded the town, in addition to other equitable relief, statutory fines and penalties totaling $1,416,910.

       Specifically, the state charged that the defendants had violated General Statutes §§ 22a-208a, 22a-208c, 22a-225, 22a-226a, 22a-427, 22a-430 and 22a-438 (b).

       We compare this language with that of General Statutes § 22a-226a, which imposes criminal liability on “[ajny person who knowingly violates” an applicable law, regulation, permit or order. (Emphasis added.)


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. RONALD M. THOMPSON
    (AC 21436)
    SchaUer, Mihalakos and Bishop, Js.

      Argued March 25 —
    officially released July 9, 2002

      James O. Ruane, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Louis J. Luba, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Ronald M. Thompson, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), risk of injury to a child in violation of General Statutes § 53-21 and two counts of failure to appear in the first degree in violation of General Statutes § 53a-172. On appeal, the defendant claims that the court improperly (1) admitted constancy of accusation evidence, (2) instructed and misled the jury concerning the permissible uses of the victim’s prior out-of-court statements, (3) augmented his sentence because he chose to stand trial and (4) admitted certain expert testimony. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. At the time of the underlying events, the victim* was a minor. The victim’s residence was proximate to that of the defendant. On a warm day sometime in 1986, the victim approached the defendant outside his home as he worked on his car. She asked him if she could help him work on the car. The defendant agreed.

At some point, the victim asked for something to drink, and the defendant invited her inside his home for a glass of water. Once inside, the defendant gave the victim some water. No one else was in the defendant’s house, and no one else knew that the victim was there. The defendant then offered to show the victim some pictures he had drawn, which he kept downstairs in his bedroom. The defendant told the victim that everything would be okay and led her to his bedroom in the basement of the house. The defendant closed the bedroom door. The victim then sat down on the defendant’s water bed.

The defendant then pulled the victim’s pants down and began touching her on her thighs and her vagina. The victim became fearful and started crying, but the defendant placated her by repeatedly reassuring her that everything was okay and normal. The defendant then digitally penetrated the victim’s vagina, licked her thighs, performed cunnilingus on her and attempted to vaginally penetrate her with his penis. Sometime during the attack, the defendant lay on top of the victim to one side and kept one leg between her legs.

The defendant reassured the victim again after the assault. The defendant then led the victim upstairs to leave and told her not to speak to anyone about the encounter. He also threatened that if anyone knew about it, they would think she was a whore and he would kill her. Now frightened, the victim ran from the defendant’s house to the home of a family friend nearby.

The victim told her friend, who knew the defendant, what had happened. The victim’s friend told her that the defendant’s actions were wrong and to tell her parents. The victim did not speak of the incident to her parents or the police, however, because she was scared and ashamed that she had not stopped the defendant’s assault. The victim also begged her friend not to tell anyone because she feared that harm might come to her or her family. Nevertheless, about six months later, the victim’s friend reported the incident to the victim’s sister, who kept it secret. On September 25, 1988, the victim’s mother became aware of the incident when the victim’s sister brought it to light during a family conversation about threats the defendant had made recently against the victim, her family and her friend. The victim ran from the room and locked herself in her room and went inside her closet.

The victim’s mother called the police, and the victim reported the assault that night to the police and then to her mother. Following the victim’s report, the victim’s mother also repoited subsequent incidents between the victim and the defendant, in which he harassed the victim about the assault by calling her a whore and telling her no one would believe her. Additional facts and procedural histoiy will be provided as necessary.

I

As an initial matter, we note that the defendant conceded at oral argument that each of the first three issues before us was not preserved at trial. Although the defendant seeks review on appeal under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine, we decline to review his first three claims.

A

The defendant first claims that the court improperly admitted constancy of accusation evidence from three witnesses. We decline to review his claim.

Conceding that this issue was not preserved at trial, the defendant requests Golding and plain error review. The record before us is adequate for review under the first prong of Golding. The claim fails to meet the second prong of Golding, however, because it is not of constitutional magnitude. See footnote 3. “In Connecticut, it is well established that the constancy of accusation doctrine does not violate a defendant’s sixth amendment right to confrontation.” State v. Romero, 59 Conn. App. 469, 480, 757 A.2d 643, cert. denied, 255 Conn. 919, 763 A.2d 1043 (2000). Our Supreme Court has ruled that this is a “fundamental tenet of confrontation clause jurisprudence, namely, that the clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination(Emphasis in original; internal quotation marks omitted.) State v. Troupe, 237 Conn. 284, 292, 677 A.2d 917 (1996). Although the defendant concedes that point, he argues that the testimony of three constancy of accusation witnesses exceeded the limits set by Troupe by injecting details of the sexual assault. See id., 304-305. That evidentiary claim, however, admittedly was unpreserved at trial and may not now be pursued. Further, the record clearly shows that the victim testified and was available for full and effective cross-examination. The defendant attempts to “put a constitutional tag on a nonconstitutional evidentiary ruling.” (Internal quotation marks omitted.) State v. Romero, supra, 480. That we will not do.

Similarly, the defendant seeks plain error review to no avail. He alleges that admitting the challenged constancy of accusation testimony was blatant, reversible error that affects public confidence in the judicial proceedings because the evidence prejudicially exceeded the bounds permitted under our Supreme Court’s decision in Troupe concerning such testimony. Upon review of the entire record, we conclude that plain error review is unwarranted. The defendant also has failed to show that the court’s admission of the challenged testimony was so obviously erroneous that it affected the fairness or integrity of or public confidence in the judicial proceedings. See footnote 4. The defendant has failed to show that this is one of those extraordinary situations where not granting the requested relief will result in manifest injustice. See State v. Trotter, 69 Conn. App. 1, 11-12, 793 A.2d 1172 (explaining application of plain error doctrine), cert. denied, 260 Conn. 932, 799 A.2d 297 (2002). Even if we were to grant plain error review for this nonconstitutional claim, the defendant could not show that the alleged errors likely would have affected the result of the trial. See State v. Lindstrom, 46 Conn. App. 810, 817, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997). Accordingly, we also decline to review the defendant’s claim under the plain error doctrine.

B

The defendant next claims that the court improperly instructed and misled the jury concerning the permissible uses of the victim’s prior out-of-court statements. The defendant argues that the court, having admitting constancy of accusation evidence, should have instructed the jury that the evidence could be used to impeach the victim’s credibility. We decline to review that issue.

Practice Book § 42-16 provides in relevant part: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. ...” The record reveals that defense counsel twice noted that she had no exception to the court’s instruction to the jury. In fact, defense counsel noted that she “followed [the court’s instruction] very carefully, and [the instruction] came very strictly from what my understanding of what an appropriate charge would be. We have no exception.” Additionally, the record reveals that the defendant failed to request that the court charge the jury that constancy of accusation evidence could be used to impeach the victim’s credibility.

The defendant also failed to brief adequately his claim for Golding or plain error review. Even had he done so, the defendant’s claim would fail under the second prong of Golding because the issue is evidentiary and not constitutional in nature. See footnote 3; State v. Ali, 233 Conn. 403, 422-23, 660 A.2d 337 (1995) (concluding that challenged jury instruction on uses of out-of-court statements did not, as presented, raise constitutional claim); see also State v. Liebowitz, 65 Conn. App. 788, 805 n.7, 783 A.2d 1108 (Golding review would be declined on claim if defendant treated issue as evidentiary and it was patently nonconstitutional), cert. denied, 259 Conn. 901, 789 A.2d 992 (2001). Moreover, plain error review again is unwarranted. Accordingly, we decline to review this meritless claim.

C

The defendant next claims that certain comments made by the court during sentencing proceedings show that it improperly augmented his sentence because he chose to stand trial. The defendant’s claim is deemed abandoned and is otherwise meritless.

Although the defendant has provided an adequate record for our review, he has conceded that his claim was not preserved at trial, and he does not distinctly request Golding or plain error review or provide adequate legal analyses. See footnote 5. Even had the defendant properly requested Golding review, his claim would fail to satisfy the third prong of Golding because he has not shown that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. He also has failed to demonstrate that this is an extraordinary situation for which plain error review is required. Further, even if the defendant had preserved the issue at trial, he has not met his burden of proof, in view of the totality of the circumstances, to demonstrate that the court clearly abused its broad discretion. See State v. Kelly, 256 Conn. 23, 80-83, 770 A.2d 908 (2001). Indeed, nothing in the record suggests that the court lengthened the defendant’s sentence because he chose to maintain his claim of innocence and to exercise his constitutional right to a jury trial. Accordingly, we deem the issue abandoned and otherwise without merit.

II

The defendant’s final claim is that the court improperly admitted, despite his timely objection, expert testimony regarding delayed reporting of sexual abuse. Paralleling his objection at trial, the defendant supports his claim with several arguments. The defendant contends that the expert was clearly not qualified to testify about delayed reporting, that her expertise lies elsewhere and that she has no special skill, knowledge or hands-on experience directly applicable to the subject. The defendant further contends that the expert improperly testified as to the credibility of the victim in the present case. Finally, the defendant asserts that the testimony was improper because, instead of aiding the jury in its function, the testimony served only to confuse the jury. We disagree.

The following additional facts and procedural history are relevant to our determination of the defendant’s claim. At trial, the state called Diane Edell, a trainer and consultant on issues of child sexual abuse, to testify as to why a victim might delay the reporting of a sexual assault. Edell testified that her expertise was derived in part from her position as the medical director of a hospital’s pediatrics department for six and one-half years. Edell noted that one of the department’s functions was to evaluate children who made allegations of sexual abuse. Edell testified that when she was with the department, she performed more than 400 forensic interviews, or “interviews ... of children who had made allegations of sexual abuse.” Edell also stated that she screened “literally thousands of calls from state agencies and police departments making requests for [such evaluations].” Additionally, Edell testified that she underwent intensive training in her area in California and Oregon, attended approximately forty related conferences and conducted training sessions concem-ing the assessment of child sexual abuse allegations for supervisors within the department of children and families. Finally, Edell testified that she previously had been an expert witness in court proceedings regarding other children’s issues, and her qualifications include both a master’s degree in social work and a master’s degree in public health. The state offered Edell as “an expert in the area of forensic interviews and child sexual abuse investigations.” Following avoir dire of Edell, the defendant objected to the admission of her testimony on the grounds that it was overly prejudicial, she had no relevant special skill or knowledge and the testimony commented on something commonly known to the layperson. The court, noting that it was satisfied with the qualifications of the expert witness, overruled the defendant’s objection.

On direct examination, Edell testified that delayed reporting occurs when “a child who is engaged in an act of some sexual contact and does not immediately tell.” Edell explained that children might delay reporting sexual abuse due to fear of an implied or express threat of reprisal against them or their families, or that they might be taken away from their families. She noted that some children fear that reporting will disrupt the family or cause them to be punished or stigmatized. Edell further stated that delay might result from an older child’s shame or embarrassment concerning the assault. Moreover, Edell testified that delay might result from children assuming the blame for the assault or because they have a relationship with their attacker. When presented with a hypothetical question encompassing the facts of this case, Edell testified that those facts could be considered a delayed reporting situation. She also stated that the most likely person for a child to tell is a friend and that this report often does not get relayed to anyone else. Edell testified that often, disclosure of an assault is accidental and occurs when a child starts crying, blurts it out in a fight or is overheard telling someone else who does not act on the report. Edell noted that it generally is accepted that more than 25 percent of persons abused once before the age of eighteen do not report the incident to anybody until well after the incident, with 50. percent of those persons not reporting until five years after the incident. Finally, she noted that it is considered atypical for children to report an assault immediately “to somebody who [is] able to do something about it.” The witness also confirmed, in response to a question from the court, that there is nothing unusual or uncommon about a child’s reporting an assault to a friend or peer promptly, but not to a parent or close relative for as long as two years.

Our standard of review concerning evidentiary rulings is well established. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s 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. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 392, 788 A.2d 1221 (2002). “Concerning expert testimony specifically, we note that the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . .

“[Of course, a predicate to the admissibility of such testimony is its relevance to some issue in the case.] Releyant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 123-24, 763 A.2d 1 (2000).

The court did not abuse its discretion in admitting Edell’s testimony on the subject of delayed reporting in child sexual abuse cases. On an issue similar to the one before us, our Supreme Court ruled that expert testimony that is focused on explaining delayed reporting is acceptable and helpful to a jury in interpreting the meaning of a delay when gauging a victim’s credibility. See State v. Ali, supra, 233 Conn. 434—35. Further, our Supreme Court held in Ali that expert testimony of that type might disabuse the jury of “some widely held misconceptions ... so that it may evaluate the evidence free of the constraints of popular myths.” (Internal quotation marks omitted.) Id., 434. Although the facts in Ali centered on the rape of an adult woman, that principle holds no less true in cases of child sexual abuse, especially where delayed reporting is concerned. That precept is predicated on our Supreme Court’s recognition of the fact that trauma experienced by minor victims of sex abuse is beyond the understanding of the average person. See State v. Spigarolo, 210 Conn. 359, 378, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

Additionally, we previously have recognized the importance of admitting expert testimony regarding delayed reporting: “It is natural for a jury to discount the credibility of a victim who did not immediately report alleged incidents of abuse whether or not the defense emphasizes the delay in cross-examination. Thus, testimony that explains to the jury why a minor victim of sexual abuse might delay in reporting the incidents of abuse should be allowed as part of the state’s case-in-chief.” State v. Cardany, 35 Conn. App. 728, 732, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994).

Here, there is ample evidence on which the court reasonably could have ruled that Edell was qualified as an expert in the area of child sexual abuse. Edell testified that she spent more than six years directing a pediatrics program that evaluated allegations of sexual abuse and screened thousands of telephone calls related to such abuse. She stated that she personally conducted more than 400 interviews with alleged victims of child abuse. After recounting her education and other intensive formal training in the area, she testified that she still trains state employees on numerous aspects of child sexual abuse, including the reporting or not reporting of such abuse.

Further, it is clear that Edell did not comment on the credibility of the victim in this case. “The distinction between testimony about the general behavior of victims and an opinion as to whether the instant victim is telling the truth is critical.” (Internal quotation marks omitted.) State v. Ali, supra, 233 Conn. 432. Although the defendant cites Edell’s responses to hypothetical questions in support of his assertion, nothing in the record indicates that that the expert witness did anything other than give her general opinion as to the hypotheticals before her. Moreover, after the disclosure of her qualifications, the remainder of Edell’s testimony focused permissibly on the general behavior of the victims of child sexual abuse in relation to delayed reporting. As such, we cannot conclude that the testimony of the expert witness here served to confuse the jury. Rather, we conclude that Edell’s testimony was relevant and material because it served to assist the jury concerning the credibility of victims such as the one in this case. In fact, as in Ali, the admission of the expert testimony here was proper because Edell has special knowledge on delayed reporting, her testimony focused on a subject unfamiliar to the average person, and such testimony reasonably could have aided the jury in determining relevant issues. See id., 434. Accordingly, we conclude that the court did not abuse its wide discretion in ruling on the admissibility of Edell’s expert testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       On July 13, 2000, the defendant was sentenced to serve eight years for sexual assault in the second degree, eight years for risk of injury to a child to be served concurrently with the first conviction, one year for failure to appear in the first degree to be served consecutively and one year for failure to appear in the first degree to be served concurrently with the third conviction. The defendant received, therefore, a total effective sentence of nine years of incarceration foEowed by four years of parole. The defendant also was ordered to receive sex offender and substance abuse counseling and treatment, and to register as a sex offender for ten years.

       In the spirit of General Statutes § 54-86e, and to protect the victim’s legitimate privacy interests, neither the victim’s name nor those of her friend and her famEy wiE be mentioned in this opinion.

       In Golding, our Supreme Court held that “a defendant can prevalí on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       “[T]he plain error doctrine, which is now codified at Practice Book § 60-5, provides in relevant part: ‘The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Trotter, 69 Conn. App. 1, 11-12, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002). “Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Internal quotation marks omitted.) State v. Lindstrom, 46 Conn. App. 810, 817, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997).

       “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Baris v. Southbend, Inc., 68 Conn. App. 546, 550-51, 791 A.2d 713 (2002). The defendant failed to raise distinctly either Golding or plain error review in relation to his claim, although he did request plain error review at oral argument. He also does not analyze the issue in constitutional or plain error terms.

       We note that unlike the circumstances in State v. Ali, supra, 233 Conn. 417-25, the court here instructed the jury that the constancy of accusation evidence may be used to either corroborate or not corroborate the victim’s in-court testimony. The court instructed the jury that “[t]he testimony as to out-of-court statements of the victim is to be considered by you in determining the weight and credibility of the victim’s testimony. ... To the extent you find that what [the victim] has said outside the courtroom is consistent with her testimony as given in court, you may find her testimony in court to be corroborated and supported. To the extent that you find what she has said outside the courtroom is inconsistent with her testimony in court, you may consider such inconsistency ... in evaluating her testimony ... in the courtroom.” The court then instructed the jury that “[i]n determining whether these out-of-court statements by [the victim] are corroborated or not corroborated . . . you should consider all the circumstances under which they were made . . . .” (Emphasis added.) Prior to that instruction, the court also instructed the jury that it could accept all, some or none of a particular witness’ testimony and that the same rule applied if it appeared that a witness had testified falsely or inconsistently with a prior out-of-court statement.

       As revealed by the trial transcript, defense counsel obj ected to the admission of the expert testimony, and the court ruled on that objection as follows:
      “[Defense Counsel]: Your Honor, I’m going to object.
      “The Court: Object to what?
      “[Defense Counsel]: I’m going to object to the use and the admissibility of this witness’ testimony as promulgated by the state.
      “The Court: Well, are you objecting to her testimony as an expert, an expert permitted by the court to render an opinion in that field in which she claims to have expertise?
      “[Defense Counsel]: I’m objecting on several grounds. One of them . . . is that I don’t think that her field is an area of expertise that’s required in this case. I also don’t believe that she has any factual information to add to this case, and I don’t believe that what she’s going to testify to is something that is within the necessity of an expert opinion. I believe that it’s within common understanding. I think Your Honor has been alerted to the issue.
      “The Court: Do you want to be heard?
      “[Prosecutor]: Yes, Your Honor. I would claim it. I think that it’s something that is not within the usual realm of understanding and that we do not have the experience that she has that there are common beliefs, but as we know, common beliefs may be false and an expert is necessary in this field.
      “The Court: Well, the objection is—do you want to be heard further?
      “[Defense Counsel]: Briefly, Your Honor. It’s very much a matter of discretion whether the court may allow expert testimony. The pins of analysis are that the witness has a special skill or knowledge directly applicable to a matter on the issue in the case, and the other issue is whether or not that skill or knowledge is not common to the average person. I have argued before, Your Honor, that the subject matter is something that is well within the common understanding of persons if they take the testimony to be credible. In addition, I can’t imagine that—I think that since she does not have insight into the particulars of this case, I believe that her testimony would be overly prejudicial and that—
      “The Court: Well, you heard of hypothetical questions, have you not?
      “[Defense Counsel]: Yes, I have, Your Honor.
      “The Court: Based on evidence that’s already been submitted in a trial?
      “[Defense Counsel]: Yes, Your Honor.
      “The Court: And you don’t think that that would be proper in this instance?

        “[Defense Counsel]: In that I think it’s prejudicial effect would outweigh any probity.
      “The Court: Well, you can address any question posed by the state’s attorney that you feel. . . is prejudicial to an extreme such that it outweighs any probative value, but I’m satisfied with the qualifications that I’ve heard and the general objection that you make to the testimony of this witness is overruled.”

       We note as well that Edell testified that she cochairs a subcommittee of the governor’s task force on justice for abused children and that she still occasionally engages in forensic interviews of children. Further, during cross-examination, Edell explained that she currently trains employees of the department of children and families on the common characteristics of child abuse, why children disclose or do not disclose such abuse, and other aspects related to children, families and offenders in the context of child sexual abuse.


author: PER CURIAM.

text:
    JULIE M. COWLES v. ROGER L. COWLES
    (AC 22107)
    (AC 22108)
    Lavery, C. J., and Schaller and Dupont, Js.
    Submitted on briefs April 26 —
    officially released July 9, 2002

      Kenneth J. Bartschi, Wesley W. Horton and Robert D. Zaslow filed a brief for the appellant (plaintiff).

      F. Timothy McNamara filed a brief for the appel-lee (defendant).
   Opinion

PER CURIAM.

The dispositive issue in this consolidated appeal is whether there is evidence in the record to support the trial court’s finding that the plaintiffs counsel agreed to further waive the provisions of General Statutes § 51-183b beyond the time specified in the parties’ previously stipulated agreement. We conclude that the court’s finding of waiver was clearly erroneous and, accordingly, reverse the judgment of the trial court.

On June 18, 1998, the plaintiff filed a dissolution action, seeking alimony, counsel fees and the distribution of the marital assets. A three day trial was held before the court, ending on September 1, 2000. At the court’s request, the plaintiff filed a report on October 2, 2000.

On February 7, 2001, the court approved an agreement of the parties extending the period to render judgment until March 1, 2001. Believing that it was accommodating the plaintiff, however, the court did not issue a memorandum of decision until March 20, 2001. Notice was sent to the parties on the following day.

The plaintiff thereafter filed several procedural motions. Her counsel filed a motion to withdraw for an irretrievable breakdown in the attorney-client relationship, which was granted on April 11, 2001, and a motion for an extension of time to appeal, which also was granted. The plaintiff filed a pro se motion to rear-gue on April 10, 2001, which was denied. The plaintiffs new counsel filed a motion to set aside the judgment on May 24, 2001, which was denied on June 18, 2001. After oral argument on June 20, 2001, the court again denied the motion to set aside the judgment.

On July 10, the plaintiff filed two appeals, contesting the dissolution judgment and the court’s denial of her motion to set it aside. We consolidated the appeals upon the plaintiffs motion.

General Statutes § 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.” The one hundred twenty day period begins to run from the date that the parties file posttrial briefs or other material that the court finds necessary for a well reasoned decision. See Frank v. Streeter, 192 Conn. 601, 604-605, 472 A.2d 1281 (1984); Northeast Savings, F.A. v. Scherban, 47 Conn. App. 225, 231-32, 702 A.2d 659 (1997), cert. denied, 244 Conn. 907, 714 A.2d 2 (1998). In this case, that date was October 2, 2000, when the plaintiff filed her report. The parties, by written stipulation approved by the court, extended the deadline to March 1, 2001.

A judgment rendered beyond the time period specified by § 51-183b implicates the “court’s power to continue to exercise jurisdiction over the parties before it.” Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990). A late judgment is voidable rather than void. Id. If the parties waive the statute’s provisions, the court may issue a binding judgment. Id. If a party seasonably objects, however, the judgment is voided. Id.; see also Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 104, 669 A.2d 620, cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996).

Mindful that waiver is a question of fact; see New Milford Savings Bank v. Jajer, 244 Conn. 251, 261 n.15, 708 A.2d 1378 (1998); and that we review the court’s action to see if it was clearly erroneous; see, e.g., Majernicek v. Hartford Casualty Ins. Co., 240 Conn. 86, 96, 688 A.2d 1330 (1997); we conclude that the court improperly found that the plaintiff had waived the provisions of § 51-183b beyond the stipulated time period. Although the court believed that it was accommodating the plaintiff in rendering the judgment when it did, that belief is not corroborated by the record, perhaps because the plaintiff changed attorneys shortly after the judgment was rendered. Additionally, the plaintiff seasonably objected by filing a motion to reargue on April 10,2001, seeking to set aside the judgment because she did not consent to its lateness. Accordingly, the judgment is void.

The judgment is reversed and the case is remanded for a new trial.

       The defendant argues that the appeal from the dissolution judgment should be dismissed as untimely. See Practice Book § 66-1. Although the appeal is clearly late, the proper vehicle to dispose of this case would have been a motion to dismiss in accordance with Practice Book § 66-8. See Bio-Polymers, Inc. v. D’Arrigo, 23 Conn. App. 107, 109 n.2, 579 A.2d 122 (1990).