author: BEAR, J.

text:
    ROSEMARY ARAMONY v. DISTRICT OF CHAPMAN BEACH
    (AC 34473)
    Beach, Bear and Borden, Js.

      Argued May 29
    —officially released July 30, 2013

      Richard D. Carella, with whom was David R. Makar-ewics, for the appellant (plaintiff).

      Matthew Ranelli, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Rosemary Aramony, appeals from the judgment of the trial court finding in favor of the defendant, the district of Chapman Beach (district), on the plaintiffs claim of adverse possession. On appeal, the plaintiff claims that the court incorrectly concluded that she had not established her adverse possession claim. We affirm the judgment of the trial court.

The following facts, as found by the court after a seven day trial, and procedural history aid our review of the plaintiffs appeal. The plaintiffs grandparents, John L. Annino and Mary M. Annino, purchased a seasonal cottage, located along Long Island Sound, at 73 Chapman Avenue in Westbrook, in 1947 (lot 3). Since that time, lot 3 has remained in the plaintiffs family, and she now holds title to it. On March 25, 2008, the plaintiff brought this action to quiet title to approximately 1531 square feet of land located immediately south of and adjacent to lot 3 (disputed area). The district is the current record owner of the disputed area.

Specifically, the trial court found as follows: “[A] 2006 survey map shows the disputed area as land to the south of [l]ot 3 and abutting a beach area and Long Island Sound. The southerly boundary of [l]ot 3 is established by a series of bound stones. . . . The bound stones are described on [a] January 31, 2006 survey map as ‘BOUNDARY POINTS LABELED “B-STONE” ARE ROUGH CUT STONES WITH LETTER “B” CHISELED ON TOP. CENTER OF “B” WAS USED FOR LOCATION.’ . . . The disputed area appears as a portion of the lawn of [l]ot 3. Lot 3 is bordered on the east by First Avenue and north by Chapman Avenue, and to the west by lots 4, 5, 6 and Second Avenue. . . .

“At the southern end of the disputed area adjacent to First Avenue there is a stone and concrete wall. Going north there are three stone and mortar pillars. A hedgerow then extends up along First Avenue. The hedgerow runs along the east boundary of [l]ot 3 and the disputed area. . . . Since 1947, the plaintiff and her predecessors in title have trimmed the hedge. The hedgerow was present when the property was first acquired in 1947 by the plaintiffs grandparents. The stone pillars and hedgerow predate 1923. . . . The plaintiff has no knowledge of why the hedgerow was planted along her property and the disputed area. Likewise, she does not know why the pillars were constructed. The pillars do not inhibit pedestrian traffic. A map recorded on the Westbrook land records in April, 1933, depicts the pillars and Cedar Avenue. . . . The map identifies the pillars and discloses their purpose with the following notation: ‘Street closed at this point with concrete posts.’ . . .

“Over the years, the hedge has grown in size, been cut back and grown again. There was a point in time when the hedgerow completely covered the third pillar to the north of Long Island Sound. For a period of time, a wooden gate existed between the first and second pillars. The gate was constructed of slats of wood and with relatively large spaces between these slats. . . . The gate had a hook and eye and later a latch. The gate could be easily opened from either side by reaching through the slats and disengaging the hook or latch. The gate was removed sometime in the mid-1970s. It is unclear who built the gate and when it was put in place. The disputed area is accessible to persons from [l]ot 3, First and Second Avenues and the beach.

“The chain of title to [l]ot 3 is not in dispute. . . . On August 18, 1906, Charles Chapman conveyed the parcel to Mary Lohmes. . . . The property was next conveyed by an administrator’s deed of the estate of Mary Lohmes to Rena L. Martinson, Florence L. Shepard and Olive L. Proper dated March 7, 1936. . . . Thereafter it was conveyed by the aforementioned grantees to Warren A. Willard by deed dated December 21, 1943. . . . Thereafter, on April 2, 1947, Willard conveyed the property to John L. Armiño and Mary M. Armiño. The Armiños were the plaintiff s grandparents. . . . On July 2, 1954, John L. Armiño quitclaimed his interest in the property to his wife Mary M. Armino. John L. Armino died in 1954. . . . On September 9, 1981, Mary M. Armiño conveyed the property to her three surviving children, Sebastian M. Armiño, John L. Armino, Jr., and Rose Marie Paguni. ... At the time of the transfer, Mary M. Armino was in her early eighties. Rose Marie Paguni was the plaintiffs mother. On August 29, 1982, Sebastian M. Annino and John L. Annino, Jr., conveyed their interest in the property to Rose Marie Paguni. . . . In 1988, [Rose Marie] Paguni was diagnosed with a life threatening illness and as a result on October 5, 1988, she quitclaimed her interest to her husband Philip A. Paguni and herself jointly with survivorship. . . . [Rose Marie] Paguni died on April 8, 1989. [Philip] Paguni then became the sole owner of the parcel. . . . The plaintiff had several siblings. Her sister died in December, 1986. Her brother, Anthony Paguni, currently resides in Meriden, Connecticut. Beginning on December 30, 1996, Philip Paguni began to divest himself of the property by conveying an undivided one twenty-fifth interest to the plaintiff and Anthony Paguni. . . . These conveyances were repeated each year in 1997 through 2000. [Philip] Paguni died on October 28, 2001. In 2001, [he] had not conveyed any further interest in the property to his two children.

“The plaintiff and her brother were coexecutors of their father’s estate. On January 31, 2003, through an executor’s deed, the plaintiff and her brother conveyed the property to themselves as tenants in common. . . . Finally, on that same day, Anthony Paguni transferred his interests in the property to the plaintiff making her the sole owner of 73 Chapman Avenue, Westbrook, Connecticut. . . .

“The legal description of the property has not changed from 1906 to the present day as it pertains to the disputed area and the size of [l]ot 3. It is described as: A certain piece or parcel of land together with the summer cottage and garage thereon, same being situated in the [t]own of Westbrook, [c]ounty of Middlesex and [s]tate of Connecticut, and being a certain cottage lot at Cedar Crest, near Chapman Beach, in the southeasterly part of the [t]own of Westbrook, known as lot No. 3 (as per chart on file in the [t]own [c]lerk’s [o]ffice) bounded as follows:

“NORTHERLY: by Chapman Avenue;
“EASTERLY: by First Street;
“SOUTHERLY: by Cedar Avenue and

“WESTERLY: by land now or formerly of Angelina Saraceno, known as lot No. 4; together with the right to pass and repass to and from the water fronting said lot. The above described lot is fifty (50) feet front by one hundred (110) [sic] feet deep. The [g]rantee is restricted from placing any buildings on said lot nearer than eight (8) feet of the south line of the above described premises.

“The legal description in all of the deeds referenced [previously] do not include the disputed area. This includes the January 31, 2003 executor’s deed signed by the plaintiff and her brother. . . .

“The reference to ‘chart on file in the [t]own [c]lerk’s [o]ffice’ in the deeds is to a document entitled ‘[m]ap of [c]ottage [l]ots at Cedar Crest Westbrook, Conn. C.E. Chapman [proprietor.’ . . . The map depicts twelve lots. Lot 3 is shown as being bounded by First Avenue to the east, Chapman Avenue to the north and Cedar Avenue to the south. The portion of Cedar Avenue abutting [l]ot 3 is the disputed area. Beyond Cedar Avenue, and to the south is the beach and Long Island Sound. Lot 3 is shown as being 110 feet north-south and 50 feet east-west. The depiction on the map corresponds with the property description in the deeds. Specifically, the map indicates that [l]ot 3 is bounded to the south by Cedar Avenue, and is 50 x 110 feet in size. As previously stated, the deed restricts the placement of any buildings within eight feet of the southerly border with Cedar Avenue. The grantees have complied with that restriction. The grantees in the chain of title have an easement to Long Island Sound. The deeds state, ‘together with the right to pass and repass to and from the water fronting said lot.’ . . .

“Cedar Avenue was not a public road, rather it was owned by Charles Chapman. In 1916, Chapman began to convey portions of Cedar Avenue to the abutting property owners. These lots were located to the west of Second Avenue. . . . The effect of this was that these property owners now owned to the top of the bank, just north of the beach and Long Island Sound. Lots 1 through 6 continued to be bounded to the south by the Chapman parcels. . . . Ruth Chapman Broder-ick was a successor in interest to that property. She died August 29,1949. Broderick’s estate was submitted for probate and Alfred L. Burdick was appointed the administrator. . . . Through an administrator’s deed dated June 2, 1950, the Broderick estate conveyed the property to the Chapman Beach Association (hereinafter referred to as [the association]) for the sum of $12. . . . The [association] conveyed the property to the [district] by deed dated September 7, 2000. . . . This property is shown on a January 31, 2006 survey map as ‘Property of the Chapman Beach Association, Inc.’ ... It is known as [l]ot 17, which is now approximately 0.94 acres in size.

“The [association] was incorporated in July, 1941. The stated purposes for the corporation are set forth in the articles of incorporation in part as follows:

“1. To provide means for the promotion of outdoor and indoor sports, entertainments, recreation and comfort of its members and their guests;

“2. To acquire, hold, purchase, occupy, lease, mortgage and encumber with easements, sell and convey land, buildings, rights, rights of way, or other interests thereon, including bathing beaches and any rights of way or other easements therewith necessary or convenient to carry out the purposes of the [corporation.

“Bylaws of the [association] were adopted on August 28, 1977. . . . The purposes of the [association] are set forth in [a]rticle II and are consistent with those set forth in the [a]rticles of [i]ncorporation. . . . Members of the [association] are specified to be ‘[a]ny person who shall own real estate at Chapman Beach.’ . . . The bylaws provide for the assessment of dues, the election of officers, meetings of the corporation and appointment of committees. . . .

“On June 3, 2000, the town of Westbrook approved the establishment of the [district pursuant to General Statutes § 7-35. . . . The [district was formed to carry out the purposes of the [association] as previously stated and to collect much needed revenue to maintain common property. The [district held its organizational meeting on June 3, 2000. ... On September 4, 2000, the [district completed its first annual report. ... On September 7, 2000, the [association] conveyed its land holdings to the [district. . . . The [association] was dissolved in 2002. The [association] and the [district have paid the property taxes and insurance premiums on [l]ot 17.

“As a member of the [association] and the [district, the plaintiff has a right to use the disputed area. This right is shared with all other members. Members are also permitted to use other portions of lot 17. . . . There are no written rules prohibiting uses of the property. Rather, an unwritten ‘good neighbor policy’ or custom requires that members be attentive to their neighbors’ needs and uses of the common property.

“In addition, as previously stated, the deeds to [l]ot 3 have always included an easement which states ‘the right to pass and repass to and from the water fronting said lot.’ . . . Since 1947 to the present, the plaintiff and her predecessors in title have maintained [l]ot 3 and the abutting disputed area. This maintenance includes clipping the hedges, maintaining the lawn and planting bushes and flowers. The nature and extent of plantings have changed over the years, but the entire property has always been well maintained. The plaintiffs predecessors in title also built a concrete stairway leading from the disputed area down the slope to the beach. At the top of the stairway the plaintiffs father, Philip Paguni, installed a small brick landing. In 1992, [he] constructed a brick patio on the rear lawn of [l]ot 3, just north of the boundary line of the disputed area. . . .

“The plaintiffs father was by all accounts a respected resident of Chapman Beach. [Philip] Paguni occupied [l]ot 3 and used the disputed area for many years until his death in October 2002. [He] was the most active individual member of his family in matters pertaining to the maintenance and improvement of [l]ot 3 and the disputed area. [Association] residents reported encountering and interacting with him when they came upon the disputed area. [He] did not object to their presence and use of the property.

“In 1985, [association] properties were damaged by Hurricane Gloria, including damage to seawalls. The [association] lacked the [moneys] to make the repairs. In an effort to raise the funds, the members of the [association] considered selling portions of [l]ot 17 to the abutting property owners, which included the disputed area.

“The [association] had the land appraised in August, 1988. An appraisal of the disputed area was given to [Philip] Paguni for his consideration by the [president of the [association]. . . . The appraised fair market value of the disputed area was $16,000. ... At an August 27, 1989 meeting of the [association], the membership voted not to sell the common property to the abutting property owners. ... It has been a custom at Chapman Beach that abutting property owners maintain [l]ot 17, the properties fronting Long Island Sound. This has been done with the consent of the [association], the [district and the owners. This has been a mutually beneficial arrangement. The homeowners’ yards are attractive and the common property is well maintained. This has had a positive effect on property values.

“At a July 17, 1994 meeting of the [association], a discussion was held concerning the use of the [association property, specifically the properties abutting [l]ots 3 [through] 6 between First and Second Avenues. The [cjommon [property [u]se [c]ommittee was appointed to report on recommendations. The committee consisted of the owners of these parcels and other members. Philip Paguni was a member of the committee. . . . The committee met on several occasions and prepared a report and recommendations. . . . [Philip] Paguni attended some of the committee meetings at which members discussed the bound stones which identified the boundary of the common property, which includes the disputed area.

“The committee’s report indicates that ‘[a]t the first meeting, members agreed that our objective was to provide recommendations on use which ultimately would bring closure to the issue of “property use” which has fostered decisive dialogue and “we versus they” confrontations at [association meetings and individual encounters.’ . . . This is a reference to an ongoing disagreement among members about the placement of park benches on common property. The report, in relevant part, states that over the years the owners of the lots ‘have maintained the contiguous [a] ssociation property as lawn and plantings so that there are no obvious distinguishing property lines. Maintenance has been done at no cost to the [association.’ . . . Further, ‘[w]ith regard to contiguous property . . . there is a question of [association Lability since the property is used almost solely by the adjacent homeowners.’ . . . The [cjommittee recognized that ‘[t]he [association pays the taxes on the land maintained by the adjacent property owners’ and that ‘[t]he total common property of the [association which provides access to Long Island Sound makes all property on Chapman Beach more valuable.’ . . .

“The [cjommon [pjroperty [u]se [cjommittee made five alternate recommendations. First, ‘[mjaintain the “status quo” which has been established historically; that is “neighbors” maintain the land, the [association pays the taxes. The common property is used for access to the beach and Long Island Sound now and in the future.’ . . . Second, provide adjacent property owners with the option to enter a long-term lease for exclusive use. . . . Third, provide adjacent property owners with a long-term conservation easement. . . . Fourth, ‘establish, in writing, [wdth each property owner a memorandum of understanding or easement specifically indicating the] uses which maintain “good neighbor relationships . . . .’” Fifth, sell the property giving adjacent property owners the first option to purchase. . . .

“The recommendations of the [c]ommon [property [u]se [c]ommittee were presented to a meeting of the [association] on September 1, 1996. The [association adopted the [f]irst option, maintaining the status quo. . . . [Philip] Paguni participated in the committee recommendations and did not assert a claim of ownership to the disputed area adjacent to [l]ot 3. The practice of maintaining the status quo continues to the present day .... During the years of 1947 to the present, the plaintiff and her predecessors in title have used the property as a summer home. The length of time that they spend on the property has fluctuated over the years. There were times when the house got a substantial amount of seasonal use and times when it did not. In the late 1950s, until 1964, and again in 2003 through 2005, the house was rented for weeks at a time. During these periods of time, the plaintiff and her predecessors would be absent from the property and would have no direct knowledge of other persons’ use of the disputed area. During the time that Mary [M.] Annino owned the property there would be large family parties. The children of the owners in the chain of title grew up spending time at the beach and as they got older, the demands of education and work interfered with these activities.

“The use of the disputed area, as opposed to the time spent at it, has not changed. Depending [on] who was the owner of the property at the time, flowers and shrubs have been planted, trimmed and replanted in the disputed area. At times, the plaintiff and her family used the disputed area for leisure and recreation. This included the placement of a clothes line, chairs, a patio table and children’s toys. During summer parties, it was not uncommon to park cars on the lawn including in the disputed area. Over the years, the family has occasionally placed their boat and a boat trailer in the disputed area.

“Residents of Chapman Beach never made complaints to the [association] or the [district about the use of the disputed area by the plaintiff and her predecessors. Likewise, the plaintiff and her predecessors have never informed the [association] or the [district that they object to the other residents’ use of the disputed area.

“The uses which the plaintiff and her family have made of the disputed area are consistent with the uses of [association] property located adjacent to lots 1 [through] 6 to the east and west of First Avenue by abutting property owners. . . . Historically, abutting property owners have been permitted to use [association] property as a part of their lawn.

“The land is also used for access to the beach and Long Island Sound. Residents of Chapman Beach use the common property for recreation and leisure activities. It is common knowledge among residents that they can use the property, including the disputed area. Residents walk and sit on the grass areas between First and Second Avenues. Children have played volleyball on the disputed area. It serves as a popular destination for the young people to gather. In times of stormy weather, residents have taken their boats off the beach and placed them in the disputed area. When residents organized a sailing regatta in the years of 1976 to 1984, they would congregate in the disputed area and participants would make a running start from it.

“Mary [M.] Armiño would, on occasion, object to persons being present in the disputed area and would ask them to leave. Those instances generally involved children whom the plaintiff did not recognize as children of Chapman Beach residents and occurred once or twice a year. [Mary M.] Annino mistakenly believed that she owned not only the disputed area, but also the beach. At some point in time, she was advised that she did not own the beach. She instructed other family members to keep the gate at the pillars closed. Her actions were very embarrassing to the plaintiff and her brother. Prior to the commencement of this suit, the plaintiff had not attempted to exclude persons from the disputed area.

“[Mary M.] Annino’s efforts to exclude persons [were] not successful. The residents have continued to utilize the disputed area and the remaining portion of [l]ot 17 in the maimer previously described from 1947 to the present time.”

On the basis of these factual findings, the court, in its very thorough written decision, concluded that the plaintiff had failed to prove that her predecessors in title ever had adversely possessed the disputed area. Specifically, the court found that the plaintiff and her predecessors in title had permission to possess and use the disputed area, and that this permission never had been repudiated. The court further found that other members of the district also had permission to use the disputed area and the rest of lot 17, and that Mary M. Annino’s efforts to exclude others from the disputed area were unsuccessful. Additionally, the court found that the plaintiffs predecessors in title had recognized the superior title of the district and the association. The court rendered judgment in favor of the district, and the plaintiff appealed to this court.

On appeal, the plaintiff claims that she “provided clear and positive proof that she and her predecessors adversely possessed the [disputed [a]rea.” She argues that possession occurred “almost immediately after the Armiños obtained title in 1947” and that the “court’s finding of initial permissive use . . . [was] clear error.” Additionally, the plaintiff argues: “Despite the fact that the [plaintiff s predecessors in title] possessed the [disputed [a]rea and openly used it as their own property for nearly [sixty] years, without ever seeking or obtaining the permission of the [association] or the [district, the trial court held ‘[t]he possession of the disputed area by the plaintiff and her predecessors in title was permissive, and they had a clear right to use the property.’ . . . Based on this [erroneous] finding, the court imposed the additional requirement that [the plaintiff] must show ‘some clear, positive, and unequivocal act brought home to the owner’ that [the plaintiff] is disavowing the [district’s] title and asserting an adverse claim.” (Citation omitted.) Although the plaintiff argues that neither she nor her familial predecessors in title ever sought or obtained permission to possess or use the disputed area, the court specifically found that they, like other residents, in fact, had been given permission to use the disputed area, which the plaintiff never repudiated. We conclude that the court’s finding is not clearly erroneous.

“[A]dverse possession usually is a mixed question of law and fact, depending on the circumstances and conduct of the parties as shown by the evidence. . . . Thus, [i]t is the province of the jury, or court sitting as a jury, to determine from conflicting or doubtful evidence the existence of facts necessary to constitute adverse possession . . . and that of the court to decide as a matter of law whether the facts found, or which are admitted or undisputed, fulfill the requirements of such possession. ... If there is at least some evidence, although slight, which is sufficient to be submitted to the jury, and which tends to show the existence of the essential facts alleged to constitute adverse possession, and such evidence is disputed, or, if undisputed, is of a doubtful character, the question as to the existence of such facts is one of fact for the jury and should be submitted to [it] for determination, under proper instructions from the court; or in case of a trial by the court alone, the question is one of fact for the court sitting as a jury. . . .

“Whether the facts as found by the jury constitute adverse possession is a question of law for the corut. The fact of adverse possession also is a question of law for the court and should not be submitted to the jury where the facts with regard thereto are admitted, or the evidence thereof is undisputed and susceptible of but one reasonable inference or conclusion, or where the evidence is insufficient to go to the jury on such question as where there is no evidence in the record upon which the jury could base a finding of adverse possession. . . . Consistent with this principle, this court repeatedly has recognized that [i]t is the province of the trial corut to find the facts upon which [such a] claim is based. Whether those facts make out a case of adverse possession is a question of law reviewable by [the] court. . . . The same principle has been applied in the context of other property takings. . . .

“Because a trial court is afforded broad discretion in making its factual findings, those findings will not be disturbed by a reviewing court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... A trial court’s findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court .... In applying the clearly erroneous standard of review, [a]ppellate courts do not examine the record to determine whether the trier of fact could have reached a different conclusion. Instead, we examine the trial court’s conclusion in order to determine whether it was legally correct and factually supported. . . . This distinction accords with our duty as an appellate tribunal to review, and not to retry, the proceedings of the trial court. . . .

“With respect to the standard of proof, [a]dverse possession is not to be made out by inference . . . but by clear and positive proof. . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . Application of the pertinent legal standard to the trial court’s factual findings is subject to our plenary review. . . . The burden of proof is on the party claiming adverse possession. . . . Despite extensive case law on the subject, the root of adverse possession in our law is statutory. General Statutes § 52-575 (a) establishes a fifteen year statute of repose on an action to oust an adverse possessor.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) O’Connor v. Larocque, 302 Conn. 562,572-79,31 A.3d 1 (2011). “[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner.” (Interna! quotation marks omitted.) Id., 581.

In this case, prior to August, 1906, lot 3 was owned by Charles Chapman. Chapman also owned lot 17, which contains the disputed area, just south of lot 3. Lot 17 abuts the beach and Long Island Sound. In August, 1906, Chapman conveyed lot 3 to Mary Lohmes “together with the right to pass and repass to and from the water fronting said lot” (easement). The easement over the disputed area has remained in the deed to lot 3 since Chapman conveyed the property in 1906.

In July, 1941, the association was incorporated, in part, for the following purposes: “1. To provide means for the promotion of outdoor and indoor sports, entertainments, recreation and comfort of its members and their guests; [and] 2. To acquire, hold, purchase, occupy, lease, mortgage and encumber with easements, sell and convey land, buildings, rights, rights of way, or other interests thereon, including bathing beaches and any rights of way or other easements therewith necessary or convenient to carry out the purposes of the Corporation.”

On April 2,1947, John L. Armiño and Mary M. Armiño (Armiños) acquired lot 3, and, according to the plaintiff, almost immediately began their fifteen years of uninterrupted open, visible and exclusive possession of the disputed area, acting under a claim of right with the intent to use the property as their own, without the consent of the actual owner or owners. Ruth Chapman Broderick, the daughter of Charles Chapman and a successor in interest to lot 17, died on August 29, 1949, and, through an administrator’s deed, lot 17 became the property of the association on June 2, 1950, three years after the Armiños obtained title to lot 3. Following the death of her husband in 1954, Mary M. Armiño continued to own lot 3 until September 9, 1981. According to the plaintiff, it was during the years that the Armiños, or, in particular, Mary M. Armino, owned lot 3 that the adverse possession of the disputed area allegedly was established.

The plaintiff argues that although she and her predecessors in title have adversely possessed the disputed area for nearly sixty years, the court improperly focused on the later years rather than on the relevant years when the adverse possession began and the fifteen years of exclusive and hostile possession was established from 1947 to 1962. She also argues that the court improperly found that the initial possession of the disputed area was permissive and that the court thereafter used a heightened standard on the basis of this unsupported finding.

Both lot 3 and lot 17 were owned by Charles Chapman in the early 1900s. Charles Chapman then conveyed lot 3 to Mary Lohmes in mid-1906, along with an easement over lot 17, including over the disputed area. There were hedges and stone pillars on the disputed area during the time Mary Lohmes held title to lot 3. There also was a gate present on the disputed area, and there was some testimony that the Armiños had had the gate installed, but the court did not credit such testimony and concluded that it was unable to determine when or by whom the gate was installed. The title to lot 3 changed hands several times before it was conveyed to the Armiños in 1947, with the easement still intact. The plaintiff does not allege on appeal that any record owner of lot 3 had attempted to adversely possess the disputed area prior to the Armiños’ ownership of lot 3; her argument is that the fifteen years began when her grandparents, the Armiños, took title to lot 3. The prior owners of lot 3, however, each had an easement over the disputed area, and the plaintiff makes no allegation that their use of the disputed area was anything but permissive. Additionally, even if the Armiños attempted to adversely possess the disputed area from the moment they acquired title to lot 3 in 1947, the association obtained title to lot 17 in 1950, which included the disputed area, and advanced an unwritten “good neighbor policy” that permitted all association members, including the Armiños, to use the common property, including lot 17. Accordingly, even if the Armiños had not requested permission to use the disputed area in 1947, they already had permission by virtue of the deeded easement and later by virtue of the unwritten good neighbor policy of the association, which took title to lot 17 in 1950.

The plaintiff also argues, however, that even if the Armiños had permission to use the disputed area, their use went far beyond that which was permitted and amounted to actual possession. She contends that this possession served to repudiate any permission that the Armiños may have been granted initially. We disagree. The court specifically found that Mary M. Armino was unsuccessful in her attempts to keep other residents from using the disputed area and that the other residents have continued to use the disputed area to the present time. The court’s finding specifically negates the plaintiffs claim of exclusive possession because it shows that her predecessors in title lacked the necessary dominion and control over the disputed area no matter how extensive was their actual use of that area. See Bowen v. Serksnas, 121 Conn. App. 503, 508-509, 997 A.2d 573 (2010) (“In general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others. . . . Thus, the claimant’s possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use. ... It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question. . . . The use is not exclusive if the adverse user merely shares dominion over the property with other users.” [Internal quotation marks omitted.]); see also Arcari v. Dellaripa, 164 Conn. 532, 536, 325 A.2d 280 (1973) (“[t]he requisite of exclusive possession for the statutory period is not met if the adverse user merely shares dominion over the property with other users”); Short Beach Cottage Owners Improvement Assn. v. Stratford, 154 Conn. 194, 199, 224 A.2d 532 (1966) (“One of the requisites to acquiring property by adverse possession is that the claimant maintain an exclusive possession of the disputed area during the running of the fifteen-year period. . . . This condition is not met if the adverse user merely shares dominion over the property with other users. . . . Since . . . the [plaintiffs’ predecessors in title] never maintained an exclusive possession over the beach area, in that others occupied cottages on the property without the [predecessors’] permission, the conclusion that the plaintiffs failed to establish title by adverse possession was required.” [Citations omitted.]); Lisiewski v. Seidel, 95 Conn. App. 696, 702, 899 A.2d 59 (2006) (“[i]f dominion is shared, then the exclusivity element of adverse possession is absent”).

The following findings of fact made by the court are relevant to the element of exclusivity. From 1947 to the present, the plaintiff and her predecessors in title have had a summer cottage on lot 3; the exact amount of time they spent there varied over the years. At times, they spent a substantial amount of the summer there and, at other times, they spent only a short amount of time there. From the late 1950s until 1964, the cottage was rented for weeks at a time. During these periods of time, which is part of the time that the plaintiff contends ripened her adverse possession claim, the plaintiff and her predecessors in title were absent from the property and had no direct knowledge of other persons’ use of the disputed area. Other residents of Chapman Beach have used and continue to use the common property of the district for recreation and leisure activities, including the disputed area. The residents know that they can use lot 17, including the disputed area. The residents walk on the disputed area, sit on the grass, play volleyball, gather there and, during stormy weather, they have taken their boats off the beach and placed them in the disputed area. Although Mary M. Annino occasionally attempted to exclude people from the disputed area, she was not successful, and the residents continued to use the disputed area. We conclude that these findings, which have support in the record and are not clearly erroneous, lead to one conclusion, namely, that the plaintiff failed to prove, by clear and convincing evidence, that her predecessors in title had exclusive dominion and control over the disputed area for any continuous fifteen year period. Having so concluded, we need not examine the additional elements of her adverse possession claim or her additional claims of error.

The judgment is affirmed.

In this opinion the other judges concurred.

       It also is undisputed that the district and its predecessor, the association, have paid since 1950 and continue to pay the property tax and insurance premiums on lot 17.

       Also, on appeal the plaintiff does not challenge the court’s finding that the association and the district have paid the property taxes and insurance premiums on lot 17 since 1950. See, e.g., O’Connor v. Larocque, 302 Conn. 562, 584-85, 31 A.3d 1 (2011).

       The plaintiffs uncle, John L. Annino, Jr., initially testified that his uncle built and installed the gate, but he later admitted that he had no personal knowledge of that, and that he was “assuming” that his uncle had built and installed the gate. He maintained, however, that the gate was not present when his parents, the Armiños, purchased lot 3 in 1947, when he was fifteen or sixteen years old. At his earlier deposition, however, he had stated that he had no recollection of whether the gate had been present when his parents purchased lot 3.

       We note that the plaintiff had alleged in her complaint that the “dates of possession and use of the area claimed by adverse possession are August 18, 1906, to present.” Before the trial court, however, she instead argued that the fifteen year period for adverse possession began in 1947 when her grandparents took title to lot 3.

       The plaintiff testified that for four or five years during the 1950s and 1960s, the Armiños rented out the cottage for three to four consecutive weeks and that she did not know how the renters or the association residents used the property during that time. The plaintiffs uncle, John L. Annino, Jr., also testified that for approximately four years in the 1950s, the cottage was rented out for the entire month of August.

       For example, Patricia Ann Pandolfe testified that she has been going to Chapman Beach since she was a toddler and that her father built a summer home there in 1950, when she was approximately seven years old. In 1967, they added heat to the home, and Pandolfe began to spend more time there. Since the 1980s, she primarily has lived there year round. Pandolfe testified that she walked across the disputed area, either alone or with others, from approximately 1957 to 2007. She also testified that all of the residents knew that they had a right to use the disputed area.
      Paul K. Bransfield testified that he was a summer resident of Chapman Beach from 1967 to 1990, and that.he still goes there, but less frequently. Bransfield stated that he used the disputed area as a passway, for sailboat races, to store boats on the grass, for sunbathing and for playing games. His brother, Peter Bransfield, testified that his parents own a home at Chapman Beach and that he has been going there since his birth in 1949. Peter Bransfield further testified that he and others used the disputed area as a passway and for social purposes.
      Jacqueline W. Coppes testified that she was bom in 1934, spent her entire childhood at Chapman Beach, and purchased her own cottage there in 1969. Coppes stated that she personally knew Richard Chapman and frequently walked with him across the disputed area prior to 1947, and that she used the area for sledding in the winter. She further stated that she and others played there “all the time” during the summer and that they used the area as a passway between First and Second Avenues. Coppes also testified that they continued to use the area in this manner after it was acquired by the association in 1950, and that, even after starting her own family in 1958, she continued to pass through the disputed area and use it in the winter for sledding with her children.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    RICHARD HORRIGAN ET AL. v. TOWN OF WASHINGTON
    (AC 32364)
    DiPentima, C. X, and Lavine and Foti, Js.

      Argued October 22, 2012
    —officially released July 30, 2013

      David S. Golub, with whom were Jonathan M. Levine and Marilyn J. Ramos, for the appellants (substitute plaintiffs).

      Christopher P. Kriesen, with whom, on the brief, was Katherine L. Matthews, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

This appeal arises out of a motor vehicle accident on an early April morning that resulted in the death of seventeen year old Richard Tyler Horri-gan (decedent). His parents, the plaintiffs, Richard Hor-rigan and Kathleen Horrigan, coadministrators of the decedent’s estate, appeal from the trial court’s denial of their motion to set aside the verdict and for a new trial, as well as the trial court’s judgment rendered following the jury verdict in favor of the defendant, the town of Washington. The plaintiffs claim that (1) the jury’s finding that the open storm drain on Baldwin Hill Road was not a defect was clearly erroneous, (2) the court erred in refusing to instruct the jury that the defendant had a duty to provide a fence or rail to guard the drainage hole, (3) the court erred in refusing to instruct the jury to use a prudent person of like age standard to determine whether the decedent breached his common-law duty, and (4) the court erred in admitting into evidence the testimony of the defendant’s expert. Because our determination that the plaintiffs cannot prevail on their first claim is dispositive, we do not address the remaining claims. Accordingly, we affirm the trial court’s judgment.

The following facts reasonably could have been found by the jury. On the morning of April 9,2003, the decedent was driving himself and his younger brother from their home to school. The decedent and his brother traveled up Baldwin Hill Road in Washington and the decedent’s motor vehicle slid on a patch of black ice on a straight portion of the road. The motor vehicle slid to the side of the road because it did not have a strong grip and it eventually ended up on the road’s shoulder. The vehicle recovered some traction when it went onto the shoulder, but then “the front of the [vehicle] just sunk down, and . . . that was the end basically.” The decedent’s brother stated in the police report that “it felt like something caused the wheel maybe—(maybe a hole) to go down, and the vehicle vaulted.” After the driver’s side of the vehicle “sunk down” into the drainage hole, the motor vehicle flipped onto its roof and struck a utility pole. After the vehicle came to rest, both the decedent and his brother were in their seats, with their seat belts on, but they were both turned upside down. The decedent was unresponsive to any attempts to get him to speak and was pronounced dead at the scene.

The plaintiffs brought the underlying action in a two count complaint against the defendant pursuant to General Statutes § 13a-149 in April, 2005. In the first count, the plaintiffs alleged that the storm drain was “designed, installed and intended” to drain water from the “traveled portion of the roadway” on Baldwin Hill Road and to “prevent water from the shoulder of the roadway and from the adjacent property from flowing into the travel lanes.” The plaintiffs alleged further that the decedent’s vehicle lost traction because of ice on Baldwin Hill Road and struck the storm drain causing it to vault and collide with a utility pole. Finally, the plaintiffs alleged that as a result of the design of the storm drain, the storm drain was a defective condition and was the sole proximate cause of the decedent’s death. In the second count, the plaintiffs alleged that the defendant knew or reasonably should have known that the storm drain was a defective condition, and that the defendant failed to take reasonable action to correct or warn of such defective condition, and further that the ice on Baldwin Hill Road was a dangerous and defective condition. Returning a verdict in favor of the defendant, the jury answered fourteen interrogatories. The first of those interrogatories stated: “Do you find that, at the time of the April 9, 2003 accident involving the vehicle driven by [the decedent], Baldwin Hill Road was not reasonably safe for public travel by reason of the presence of the open storm drain on the shoulder of the road?” The jury responded: “No.”

Thereafter, the plaintiffs filed a motion to set aside the verdict and for a new trial, claiming that the court erred (1) in its charge as to whether an open storm drain on the shoulder of Baldwin Hill Road constituted a defect, (2) in failing to charge the jury that, as a matter of law, the public would be expected to use the shoulder of Baldwin Hill Road in an emergency, (3) in its charge regarding the decedent’s comparative negligence and (4) in allowing the defendant’s expert to testify. The court denied the motion. This appeal followed. Additional facts and procedural history will be set forth as necessary.

The plaintiffs’ principal claim is that the jury’s finding that the storm drain was not a defect was clearly erroneous. The plaintiffs argue that the “overwhelming evidence at trial clearly established that the uncovered and unguarded drainage hole . . . made travel unreasonably unsafe and was a ‘defect’ within the meaning of ... § 13a-149,” and that, therefore, the jury’s finding of no defect “can only be explained as a mistake, and is clearly erroneous.” We are not persuaded.

We first note that this claim was not presented to the trial court. In their motion to set aside the verdict, the plaintiffs challenged the court’s instructions and argued there was error in the court’s charge as to whether an open storm drain was a defect. In the motion, the plaintiffs stated that “the [cjourt’s charge precluded the jury from ever finding in the plaintiffs’ favor and, in fact, mandated that the jury find that the open storm drain in question did not render Baldwin Hill Road defective.” The motion did not explicitly challenge the jury’s conclusion that there was no defect. Despite that omission, we review the jury’s finding of no defect. See Santopietro v. New Haven, 239 Conn. 207, 214-15, 682 A.2d 106 (1996).

“We are disinclined to disturb jury verdicts, and we accord great deference to the vantage of the trial judge, who possesses a unique opportunity to evaluate the credibility of witnesses. . . . The concurrence of the judgments of the [trial] judge and the jury ... is a powerful argument for upholding the verdict. . . . Furthermore, it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. ... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999). “[I]t is only in a rare case, for instance, that, as a matter of law, it can be said that the jury [is] compelled to accept as true the plaintiffs evidence supporting the essential allegations of [a] complaint, even if it appears such evidence might be uncontradicted.” Hally v. Hospital of St. Raphael, 162 Conn. 352, 358, 294 A.2d 305 (1972), citing Silva v. Hartford, 141 Conn. 126, 127-28, 104 A.2d 210 (1954); see also Nielson v. D’Angelo, 1 Conn. App. 239, 247, 471 A.2d 965, cert. dismissed, 193 Conn. 801, 474 A.2d 1259 (1984). We conclude that this is not one of those rare cases requiring reversal of the jury’s determination.

“A defect in a highway has been described as any object or condition in, upon, or near the traveled path which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result.” (Internal quotation marks omitted.) Trotta v. Branford, 26 Conn. App. 407, 410, 601 A.2d 1036 (1992). “It is true that there may be situations where the source of danger, although situated without the way, is of itself so direct a menace to travel over the way and so susceptible to protection or remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a failure to exercise reasonable care to keep the highway reasonably safe. . . . But a municipality is not an insurer against accidents occurring on its highways; its duty is not to make its streets absolutely safe for the users thereof but only to exercise reasonable care to keep them in a reasonably safe condition for travel. . . . Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances. Generally, the question whether a highway is defective is one of fact, depending on a great variety of circumstances . . . .” (Citations omitted.) Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961); see also Ferreira v. Pringle, 255 Conn. 330, 350, 766 A.2d 400 (2001) (“[w]hether the place of injury is within the . . . right-of-way Une is the threshold inquiry in determining whether the condition complained of falls under § 13a-149” [internal quotation marks omitted]); Serrano v. Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999) (“[w]hether there is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by this court unless the conclusion is one which could not be reasonably reached by the trier” [internal quotation marks omitted]).

The plaintiffs argue that “[t]he overwhelming evidence at trial clearly established that the uncovered and unguarded drainage hole on the shoulder of Baldwin Hill Road barely three feet from the paved roadway made travel unreasonably unsafe and was a ‘defect’ within the meaning of ... § 13a-149 [and that] [t]he jury’s finding to the contrary can only be explained as a mistake and is clearly erroneous.” Pursuant to Trotta v. Branford, supra, 26 Conn. App. 410, the jury needed to find that the drain “necessarily obstructed] or hindered] one in the use of the road for the purpose of traveling thereon . ...” In its charge to the jury, the court stated that, as a matter of law, the “area in which the storm drain is located is expected to be used by travelers.” Thus, the jury was given the task of determining whether the plaintiffs had met their burden to prove that the drain, while located in an area expected to be used by travelers, necessarily obstructed or hindered the use of the road.

There was sufficient evidence to support the jury’s finding that the plaintiffs did not meet this burden. “[T]he analysis under § 13a-149 centers on the word ‘defect’ and not on the word ‘road. ’ ” Ferreira v. Pringle, supra, 255 Conn. 357. Although the jury was instructed that the drain was in the traveled portion of the road, it was up to the jury to determine whether it necessarily obstructed or hindered the use of the road. There was evidence that the drain was placed off of the paved portion of the road, and that the majority of traffic was on the paved portion. Further, as in Chazen, evidence suggested that the drain was placed out of the direct line of traffic so as not to obstruct traffic. Matthew Somerset, a former worker for the defendant familiar with the storm drains on Baldwin Hill Road, testified that the drains were intended to catch surface water from the road and that they had pipes leading out of them in order to facilitate draining the road runoff. Somerset also testified that there were two wooden posts placed near the subject drain on Baldwin Hill Road. Somerset testified that these posts were roughly eight to ten inches in circumference and were buried approximately three to five feet into the ground. Using a photograph provided by the defendant’s counsel, Somerset pointed to the existing posts at the scene of the accident. Finally, Somerset testified that the posts were not placed to prevent cars from falling into the drain.

Richard Binkowski, a state police trooper and trained accident reconstructionist, described the storm drain as “kind of like a trough . . . concrete edges and a concrete back but there was no actual, if you understand, was no actual front. It was kind of like a rectangle with no front to it . . . Binkowski testified from his accident report filed in 2003 that Baldwin Hill Road is “a level roadway measuring approximately [twenty-three] feet across. There are no lane markings and no fog lines.” He testified further that, at the accident scene, there were tire tracks leading “off of the north shoulder of the roadway and traveling into and east along the soft grass and dirt shoulder.” Binkowski testified that it was approximately three feet, three inches from the side of the road to the south edge of the drain and three feet to the north edge, and that the drain was two and one-half feet wide and four feet, ten inches long. Finally, Binkowski testified that the decedent’s vehicle slid seventy four feet, ten inches before its front tire hit the drain.

On the basis of the police report of the accident, the testimony presented at trial and the multiple photographs of the accident scene introduced at trial, the jury reasonably could have concluded that the drain was, as the court instructed, “in the area . . . expected to be used by travelers,” but not in a position so as to “necessarily obstruct or hinder” the common use of the road. The evidence showed that the drain was more than three feet from the paved portion of the road and that it was placed in its position specifically for the purpose of making the paved portion of the road safer by draining excess water. Thus, the jury reasonably could have inferred that the drain was not an unaccounted for obstruction, like, for example, a pothole or an exposed culvert in the paved portion. Testimony indicated that there were wooden posts of a visible size, which identified the location of the drain to passersby. Although the court instructed the jury that the drain was in a portion of the road expected to be used by travelers, the jury reasonably could have inferred from the evidence and testimony that this use was dissimilar to the use of the paved portion of the road and that the drain was placed, like other drains on Baldwin Hill Road, in order to increase the safety of the road in general. See Chazen v. New Britain, supra, 148 Conn. 353-54 (“When our residential streets are laid out, it is common practice to provide space for purposes other than those of ordinary travel. These areas are still a part of the street, and the municipality is bound to use reasonable care to keep them in a reasonably safe condition for travelers, subject to the qualification that the duty resting on the city with regard to the maintenance of such areas and the duty resting on the traveler with regard to their use are quite different from the duties imposed with regard to a sidewalk or the traveled portion of the street.”)- Viewing the evidence in the fight most favorable to sustaining the verdict, and with great deference to the jury’s role in viewing the witnesses and evidence; see Gaudio v. Griffin Health Services Corp., supra, 249 Conn. 534; we decline to disturb the jury’s determination that the storm drain was not a defect under § 13a-149.

The plaintiffs further claim that the court erred in refusing to instruct the jury that the defendant had a duty to provide a fence or rail to guard the storm drain, refusing to instruct the jury to use a prudent person of like age standard to determine whether the decedent breached his common-law duty, and admitting into evidence the testimony of the defendant’s expert. In order for a plaintiff to prevail in an action brought under § 13a-149, the jury must find a defective condition as alleged in the complaint. Because the jury here did not do so, no purpose will be served in addressing the plaintiffs’ other claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs mistakenly commenced this action as the parents and next friends of the decedent. On July, 5, 2005, the court granted their motion to be substituted as the plaintiffs in their capacities as coadministrators of the decedent’s estate.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefore. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       Although the jury did not find that the open storm drain constituted a defect pursuant to § 13a-149, the jury did find that on the day of the accident, Baldwin Hill Road was not reasonably safe for public travel due to the presence of ice. The jury also found that the failure of the decedent to use due care in the operation of his vehicle was aproxímate cause of his injuries.

       This claimed instructional error is not raised in this appeal.

       The motion’s opening sentence states: “The plaintiffs, though counsel, hereby move to set aside the jury’s verdict in favor of the defendant and, further, move for a new trial upon the grounds that the verdict is contrary to the law and against the weight of the evidence.”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. THOMAS ANDREW BROWN
    (AC 33969)
    Robinson, Keller and SchaUer, Js.
    Argued April 23
    —officially released July 30, 2013

      Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Terence D. Mariani, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Thomas Andrew Brown, appeals from the judgment of conviction rendered after a trial to the court of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-71 (a) (l). On appeal, the defendant claims that the evidence was insufficient to establish that he (1) possessed the requisite level of intent and (2) had taken a substantial step toward the commission of the crime. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the present appeal. On April 30, 2009, Ron Blanchard, a detective in the Naugatuck Police Department, entered into an Internet chat room using the screen name “Samantha Millerl3.” On April 30, 2009, the defendant engaged Miller in an online conversation, lasting approximately forty-five minutes, using the screen name “Chevy c2d 1970. ” During the first conversation, the defendant initiated a friend invite, which prompted his screen name to change to “Tom Brown.” At the outset, the defendant stated that he was a twenty-one year old male and asked Miller her age and whether she was single. Miller responded that she was fourteen years old and did not have a boyfriend. Less than ten minutes into the conversation, after a very brief discussion regarding Miller’s general interests, the defendant inquired into Miller’s previous sexual encounters. The defendant specifically inquired as to whether Miller had touched her own genitals or engaged in cunnilingus. The defendant also stated to Miller that these sexual acts would be “more fun when a guy does it to [you].” Toward the end of the conversation, Miller told the defendant that she lived near Waterbury, and the defendant responded that he lived in Southington.

On the evening of April 30, 2009, the defendant initiated a second online conversation with Miller, which lasted approximately three hours. During this conversation the defendant again initiated a sexually suggestive conversation by inquiring as to what Miller was wearing, whether she was becoming aroused by the conversation and the size of her breasts. The defendant indicated that he would like to engage in cunnilingus with Miller and asked, “would [you] let me lick it clean for [you]?” Miller responded affirmatively “that [would] be so nice.” The defendant continued the suggestive conversation, stating that he wished Miller were lying in his bed and asked whether Miller took some form of birth control or whether he would have to wear condoms. The defendant specifically stated that he did not like using condoms but that he would use them for Miller.

Toward the end of this second conversation, the defendant expressed his desire to meet Miller and asked, “so when can [I] come kiss you?” The defendant suggested that he meet Miller on Tuesday, May 5, 2009, while Miller’s mother was not home. Miller stated that she would leave school at 2 p.m. and that her mother would not return home from work until 9 p.m. The defendant asked Miller whether they would be alone and what she wanted to do while they were together. The defendant affirmatively stated that he would be willing to do more than just kissing if Miller would like. At this point, the defendant suggested that Miller “get some sex toys” and offered to provide them to her.

On the following days, May 1 and 2, 2009, the defendant sent Miller two messages each day while she was not online, attempting to initiate a conversation; Miller did not respond to any of these messages. On May 3, 2009, the defendant began his third online conversation with Miller. The defendant again mentioned meeting Miller on May 5, 2009, and began another sexually suggestive conversation by asking Miller what type of underwear she was wearing and if she would allow him to remove it. The defendant requested that Miller wear a particular color of thong underwear to their meeting and offered to bring her the sex toys, asking if she would use them while he was present. The defendant once more expressed his desire to perform cunnilingus on Miller stating, “I [know where you] want me [to] kiss [you] . . . down there.”

On May 4, 2009, while Miller was not online, the defendant sent Miller thirteen messages over the course of approximately two hours in an attempt to initiate another conversation. When Miller later responded to the defendant’s messages, the two confirmed that they would meet the following day, on May 5, 2009. The defendant and Miller agreed to meet at a shopping plaza in Naugatuck, located twenty-one miles from the defendant’s home, around 2 p.m. The defendant continued to express his desire to kiss Miller and suggested that they go to Miller’s home after they meet. The defendant once more requested that Miller wear a particular color of thong underwear and asked whether she would show it to him and if he could take it with him. The defendant also asked Miller if she would become aroused when he kissed her on her “hip right [below] the strap for [her] panties” and stated that he would “show [her] [tomorrow].” Toward the close of this conversation, the defendant stated “we [have to] behave lol (no we [don’t])” and then told Miller, “[just] no [sex though] ... [I] don’t [know] if [you’re] ready [for] that . . . [I’ll] give [you] anything [you] want besides that.”

On May 5, 2009, Blanchard saw the defendant’s vehicle parked behind the plaza where the defendant and Miller had agreed to meet. Blanchard approached the defendant’s vehicle and asked the defendant who he was and why he was parked in that location. The defendant responded that he was there to meet Miller, a fourteen year old female he had met on the Internet. Blanchard then arrested the defendant and, upon searching the trunk of the defendant’s car, found the sex toys the defendant had described in his conversations with Miller. After his arrest, the defendant gave a statement to the police admitting that he and Miller had inappropriate conversations, that he agreed to meet with Miller and that he would bring the sex toys to Miller at the meeting. The court found the defendant guilty of attempt to commit sexual assault in the second degree and imposed a total effective sentence of ten years, execution suspended after eighteen months, and ten years of probation. This appeal followed.

On appeal, the defendant asserts that the record contains insufficient evidence to support the court’s conclusion that he possessed the intent required for conviction of attempt to commit sexual assault in the second degree and that he took a substantial step in furtherance of committing this crime. We are not persuaded.

We begin our analysis by setting forth the applicable standard of review. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] 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. . . .

“[A]s 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 [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Shah, 134 Conn. App. 581, 587-88, 39 A.3d 1165 (2012).

“[S]exual assault in the second degree is a general intent crime that requires only that the actor possess a general intent to perform the acts that constitute the elements of the offense. . . . Thus, under § 53a-71 (a) (1) . . . the state must prove only that the accused knowingly engaged in sexual intercourse with a person who, in fact, had not attained the age of sixteen.” (Internal quotation marks omitted.) State v. Nero, 122 Conn. App. 763, 776, 1 A.3d 184 (2010); see also General Statutes § 53a-71. “Under § 53-49 (a), [a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” (Internal quotation marks omitted.) State v. Nero, supra, 777. “It is well established that [t]he question of intent is purely a question of fact. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment ... a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the [finder of fact] to decide.” (Internal quotation marks omitted.) State v. Shah, supra, 134 Conn. App. 591.

I

The defendant first argues that this court should look to his direct statements of actual intent. According to the defendant, the evidence contained in the record indicates that on the date of his arrest he intended only to kiss Miller. In support of this argument, the defendant points to the conversation in which he told Miller explicitly “no [sex though] . . . [I’ll] give [you] anything [you] want besides that.” We are not persuaded.

“[A]n outright declaration of intent is not required in order to sustain the defendant’s conviction.” State v. Shah, supra, 134 Conn. App. 591. Although the defendant can point to a single statement in which he explicitly states he will not have sex with Miller, this does not foreclose the possibility that he intended to engage in other acts of a sexual nature with Miller. The court reasonably could have inferred from the context of this statement that the defendant was referring solely to penile-vaginal intercourse. Indeed, when previously referring to “sex,” the defendant stated that he did not like wearing condoms, but would do so to assuage Miller’s expressed fears of becoming pregnant. See footnote 2 of this opinion. By contrast, the defendant continually and clearly expressed his desire to perform cunnilingus on Miller without reservation or restriction. General Statutes § 53a-65 provides, for the purposes of the offense charged, that “sexual intercourse” includes cunnilingus. Accordingly, the court reasonably could have inferred that the defendant did intend to engage in sexual intercourse with Miller.

The defendant further asserts that he lacked the requisite intent because his online conversations with Miller were nothing more than idle talk. The evidence in the record belies this assertion. The state presented evidence that the defendant had engaged in and initiated a series of sexually explicit conversations with Miller in which he specifically and repeatedly expressed his desire to perform cunnilingus, an act in which Miller was willing to engage. Additionally, the defendant began planning a meeting with Miller on the first day they began communicating after she consented to this act. In fact, the defendant drove to the prearranged location to meet Miller a mere five days after their first conversation and planned to take her to her home where the two would have privacy for approximately seven hours, while ensuring that his entry and exit would be unobserved by Miller’s mother and neighbors. During this first meeting, the defendant stated that he hoped that Miller would use the sex toys he provided while he observed and that he would like to remove Mller’s underwear and intended to kiss her on the hip below the strap of her panties. The police seized several sex toys, matching those described by the defendant during his conversations with Miller, from the defendant’s car at the time of his arrest. In light of the graphic, sexual conversations and the defendant’s aforementioned conduct, the court could reasonably have inferred that the defendant intended to engage in sexual intercourse with Mller on the date he was arrested. We, therefore, conclude that the evidence viewed in the light most favorable to sustaining the verdict was sufficient to support the court’s conclusion that the defendant possessed requisite intent.

II

The defendant finally argues that the record contained insufficient evidence to support the court’s conclusion that he took a substantial step in furtherance of the crime. We are not persuaded.

“[A] substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime, and thus the finder of fact may give weight to that which has already been done as well as that which remains to be accomplished before the commission of the substantive crime. ... In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in the context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.” (Internal quotation marks omitted.) State v. Shah, supra, 134 Conn. App. 589. This court previously has held, consistent with our Supreme Court’s holding in State v. Sorabella, 277 Conn. 155, 182, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006), that “the conduct of a suspect who, for the purpose ultimately of having sex with a person whom the suspect believes to be a child, travels to a prearranged location to meet that child, is sufficient to constitute a substantial step in furtherance of the planned sex crime.” (Internal quotation marks omitted.) State v. Shah, supra, 590; see also State v. Nero, supra, 122 Conn. App. 783.

In the present case, the defendant engaged in a series of explicit Internet conversations with an individual whom he believed to be a fourteen year old girl. The defendant suggested meeting in person on the first day he began communicating with Miller and arranged to spend several hours with Miller at her residence, which he ensured would be private and that his entry to and exit therefrom would remain unobserved. The defendant then traveled to the prearranged location, a mere five days after his initial conversation with Miller, with the intent of meeting her. From the aforementioned conduct, the court reasonably could have found that the defendant intended to engage in sexual intercourse with Miller and that he drove to the prearranged location for that illicit purpose. See State v. Nero, supra, 122 Conn. App. 783 (travel for purpose of having sex is substantial step). We conclude that these facts, viewed in the light most favorable to sustaining the verdict, were sufficient to constitute a “substantial step.” Accordingly, the defendant’s claim of insufficiency relating to his conviction of attempt to commit sexual assault in the second degree must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state, in a substitute long form information, charged the defendant with one count of attempting to commit sexual assault in the second degree in violation of §§ 53a-49 (a) (2) and 53a-71 (a) (1), one count of attempt to commit risk of injury to a child in violation of § 53a-49 (a) (2) and General Statutes § 53-21 (a) (2), and one count of attempt to entice a minor by computer to engage in sexual activity in violation of § 53a-49 (a) (2) and General Statutes § 53a-90a. The defendant does not challenge his convictions of attempt to commit risk of injury to a child or attempt to entice a minor by computer to engage in sexual activity.

       Although “Samantha Miller” is a purely fictional character, for simplicity, we use the name “Miller” to refer to Blanchard when using this persona. See State v. Shah, 134 Conn. App. 581, 583 n.2, 39 A.3d 1165 (2012).

       Blanchard testified regarding the general substance of the online conversations he had with the defendant. Transcripts of these conversations were admitted into evidence as full exhibits, and their substance is undisputed.

       The following colloquy occurred during the online conversation regarding the defendant’s use of condoms:
      “Tom Brown: so either [you] take birth control or [you] use rubbers lol
      “[Samantha Miller]: [I] don’t take [birth control]
      “Tom Brown: [I figured] that

      “Tom Brown: [I] don’t like [condoms] hun
      “[Samantha Miller]: why
      “Tom Brown: [I] don’t like how they feel on me “[Samantha Miller]: but [you] would have [to]
      “Tom Brown: no we could have a baby together lol

      “[Samantha Miller]: no
      “Tom Brown: [I’m old enough] lol but I know what we need to do baby
      “[Samantha Miller]: what
      “Tom Brown: I [know] I would have to use a [condom] baby

      "Tom Brown: I would use one for [you] baby.”

       In rendering judgment, the court specifically found the following: “Detective Blanchard, who [was] acting as Samantha Millerl3, communicated online with the defendant for a period of time from April 30 to May 5. [Blanchard] testified about this sexually explicit content of his online conversations with the defendant, printouts of the conversations that the state introduced into evidence are part of the court file as frill exhibits. They reveal that [Miller] affirmatively stated her age .... The defendant also expressly acknowledged that [Miller] was a minor and was fourteen years of age.

      “The finding is that the evidence is sufficient to establish beyond a reasonable doubt that the defendant intended to engage in sexual intercourse as defined in the statute with [Miller]. The defendant arranged to meet [Miller] in person, drove from Southington to Naugatuck on May 5, 2009, to execute the plan. The evidence clearly was sufficient to establish beyond a reasonable doubt that the defendant intended to have sexual intercourse with [Miller], again, as defined in the statute, on meeting her in Naugatuck. . . .
      “Conduct of a defendant who for purposes of ultimately having sexual intercourse as defined in the statute with a person whom they suspect to be a child and they travel to a prearranged location to meet that child that is sufficient to establish beyond a reasonable doubt a substantial step in the furtherance of the planned sex crime as defined.”

       In response to the defendant’s first inquiry regarding Miller’s willingness to engage in cunmiingus, she responded “that [would] be so nice.”