text:
    State of Connecticut v. James H. Sewell
    (12199)
    O’Connell, Lavery and Freedman, Js.
    Argued February 21
    decision released May 23, 1995

      James J. Ruane, with whom, on the brief, was Nancy A. DeRose, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert Katz, senior assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134, assault in the first degree in violation of General Statutes § 53a-59, burglary in the second degree in violation of General Statutes § 53a-102, and larceny in the fourth degree in violation of General Statutes § 53a-125.

The defendant claims that (1) there was insufficient evidence of serious injury to sustain the robbery and assault convictions, (2) the trial court improperly instructed the jury on the unanimous verdict requirement in the robbery and burglary counts, and (3) the trial court improperly admitted evidence that the defendant wanted to consult his attorney before agreeing to a polygraph examination. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 11, 1991, the female victim was employed in Wilton as a home health care worker for a ninety-one year old woman. About 11:30 p.m., the victim heard a knock at the kitchen door, and, thinking it was the elderly woman’s grandson, she opened the door. It was not the grandson, but a stranger, later identified as the defendant, who asked to use the telephone. When the victim directed him to a nearby pay phone, he stepped inside the door and asked where the money was kept. The defendant was holding a baseball bat in his right hand and a knife in his left. When the victim responded that she did not know where the money was kept, the defendant kicked her in the abdomen and, using his left hand, which held the knife, struck her in the face, knocking her to the floor. As she lay on the floor, he hit her head with the baseball bat. She was very dizzy and experienced pain in her head and abdomen. The victim is not sure whether she was rendered unconscious, but there is a period of time for which she cannot account. While the victim was on the kitchen floor, the defendant took about $600 from her purse.

The victim crawled to the kitchen telephone, in an attempt to summon help, but found that the phone cord had been cut. The elderly woman’s grandson arrived and found the victim in a fetal position on the kitchen floor complaining that her head felt as though it were going to explode.

An ambulance transported the victim to a hospital where she remained for eight days, three of them in the intensive care unit. Hospital records showed that during her stay she suffered numerous pseudoseizures including six on the day she was admitted.

The procedural genesis of the second and third claims is included with the analyses of those issues.

I

The defendant argues that the evidence was insufficient to sustain a conviction on the robbery and assault counts, and, therefore, that the trial court improperly failed to grant his motion for a judgment of acquittal on those counts. Proof that the victim suffered a serious physical injury is an element of both crimes. Serious physical injury is defined as "physical injury which creates a substantial risk of death, or which causes . . . serious impairment of health or serious loss or impairment of the function of any bodily organ.” General Statutes § 53a-3 (4).

Whether a victim has suffered a serious physical injury is a question of fact for the jury. State v. Rumore, 28 Conn. App. 402, 414, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). On appeal, our courts accord great deference to the jury’s factual conclusions. State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

The jury could reasonably have inferred that the victim was rendered unconscious by the blow to her head. This court has previously addressed the issue of whether unconsciousness constitutes serious physical injury. In State v. Rumore, supra, 28 Conn. App. 415, we held that “[t]he jury could properly interpret the evidence to prove that the victim’s brain was not functioning at a cognitive level when she was unconscious and, thus, was impaired.” Accordingly, we cannot say as a matter of law that the jury in the present case could not reasonably have found that the victim suffered a serious physical injury. State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987).

The trial court properly refused to direct a judgment of acquittal on the robbery in the first degree and assault in the first degree counts.

II

The defendant next contends that the trial court improperly failed to give a specific unanimity instruction in connection with the burglary and robbery charges.

The trial court instructed the jury that it could find the defendant guilty of burglary in the second degree if it found that the defendant had entered or remained unlawfully on the premises. The defendant complains that the court did not specifically instruct the jury that it had to unanimously agree either that the defendant entered the dwelling unlawfully or that he remained in the dwelling unlawfully.

The trial court also instructed the jury that it could find the defendant guilty of robbery in the first degree if it found that, in the course of commission of the robbery, the defendant had caused serious physical injury to the victim or used or threatened the use of a dangerous instrument. The defendant complains that the trial court did not specifically instruct the jury that it had to agree unanimously as to whether the defendant (1) threatened the victim with the knife, (2) hit her with the baseball bat, or (3) inflicted serious injury on her.

The trial court instructed the jury that its verdicts must be unanimous but gave no further instructions on unanimity. The defendant did not request a unanimity instruction or take exception to the charge as given. Because these claims were not preserved the defendant seeks review under the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“In recent years, our Supreme Court has delineated a test for determining the necessity of a unanimity charge. State v. Reddick, 224 Conn. 445, 453-54, 619 A.2d 453 (1993); State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991); State v. Anderson, 211 Conn. 18, 35, 557 A.2d 917 (1989). ‘We first review the instructión that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter” (Emphasis in original.) State v. Nixon, 32 Conn. App. 224, 244, 630 A.2d 74 (1993), quoting State v. Famiglietti, supra, 619.

“In the present case, the jury instructions are devoid of any indication that the trial court expressly sanctioned a nonunanimous verdict . . . .” State v. Nixon, supra, 32 Conn. App. 244. Although the court did not give a specific unanimity instruction in either the burglary or the robbery instructions, “we cannot interpret the court’s silence as sanctioning a nonunanimous verdict.” Id., 245.

“Having determined that the court never expressly sanctioned a nonunanimous verdict, our analysis of the defendant’s claim does not proceed further. [T]he court must inquire into the conceptual distinction between the alternative acts charged, and whether the state had presented evidence to support each alternative act, only if the trial court expressly sanctioned a nonunanimous verdict. . . . We conclude that the trial court’s instructions were not fundamentally unfair to the defendant and that the defendant accordingly cannot prevail under the bypass of State v. Golding, supra [213 Conn. 239-40].” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Nixon, supra, 32 Conn. App. 245.

Further analysis of this claim is not warranted.

Ill

In his final claim, the defendant argues that the trial court improperly admitted into evidence the fact that the defendant invoked his right to counsel regarding a proffered polygraphic examination. On direct examination, a police officer testified that, “I asked [the defendant] if he was willing to consent to a polygraph test, at which time he requested to speak to an attorney.”

The defendant did not object to this testimony, nor did he ask the court to give a limiting or cautionary instruction. The following day, in the jury’s absence, the court admonished counsel not to pursue the polygraph area further. The defendant still did not seek a limiting and cautionary instruction, nor did he request that the testimony be stricken.

The defendant seeks review of this unpreserved claim under the Golding doctrine. We focus on the second Golding prong to determine whether the claim is of constitutional magnitude. The defendant framed this claim in terms of the admissibility of evidence of a response to a request to take a polygraph test. Review of Connecticut polygraph cases indicates that such claims do not implicate a defendant’s constitutional rights. Instead, the cases are concerned with the admissibility of the evidence due to questions concerning its reliability. State v. Duntz, 223 Conn. 207, 238, 613 A.2d 224 (1992); State v. Plourde, 208 Conn. 455, 471, 545 A.2d 1071, cert. denied, 488 U.S. 1034,109 S. Ct. 847, 102 L. Ed. 2d 979 (1988); State v. Miller, 202 Conn. 463, 485-86, 522 A.2d 249 (1987); State v. Mitchell, 169 Conn. 161, 169, 362 A.2d 808 (1975). Thus, because this is an evidentiary and not a constitutional matter, it is not reviewable under the second Golding prong. We will not address, sua sponte, any other claims that might have been raised.

Furthermore, we will not consider this claim as plain error under Practice Book § 4185 because “[w]e do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991). Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. Id.; State v. Gaines, 36 Conn. App. 454, 460, 651 A.2d 1297 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 5Sa-lSS or of immediate flight therefrom, he . . . (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument . . . .’’(Emphasis added.) The emphasized portion of the statute was added in 1992 and represents no substantive change from the statute in effect at the time of the crime here.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious 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 })

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-125 (a) provides: “A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.”

       The defendant initially made another claim involving the absence of the trial judge during voir dire. State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994), was decided after this appeal was taken and disposes of this issue. The defendant withdrew this claim.

       The relevant portion of the trial court’s instructions on burglary in the second degree is as follows: “You must first decide whether the following elements of burglary have been proven beyond a reasonable doubt: One, that the defendant knowingly entered or remained unlawfully in the premises .... Two, that such premises constituted a building .... Three, that the unlawful entry or remaining was effected or occurred with the defendant’s intent to commit a crime in the building, a crime of robbery, larceny or assault. ... In other words, the state must prove beyond a reasonable doubt either that the defendant entered unlawfully, or that regardless of how he entered, he remained unlawfully. A person enters unlawfully in or upon premises, when the premises at the time of such entry or remaining are not open to the public, and when the defendant is not otherwise licensed or privileged to do so. . . . It doesn’t matter how he may actually have entered. If he did so without permission, he has entered unlawfully. You must further find that the unlawful entry or remaining in the premises was effected or occurred with the defendant’s intent to commit a crime in the building.”

       The court instructed the jury on robbery in the first degree as follows: “Now, the degree of robbery is robbery in the first degree, and a person is guilty of robbery in the first degree when in the course of commission of the crime, that is, the crime of robbery, he causes serious physical injury to any person who is not a participant in the crime, in this case, the victim ... or uses or threatens the use of a dangerous instrument. Here we have testimony of the use of a baseball bat and the threatened use of a knife. Robbery becomes first degree when any of these aggravating factors occurs in the course of a commission of a robbery. Remember, you will consider robbery in the first degree only after you have determined that the defendant committed robbery. Robbery in the first degree requires the occurrence of any one of the following aggravating factors, and there are two. First, causing serious physical injury to the victim — serious physical injury means physical injury which creates substantial — you’ve heard this before because it applies also to assault in the first degree. Serious physical injury means physical injury which creates a substantial risk of death, or which causes serious disfigurement, or serious impairment of health, or serious loss or impairment of a function of any bodily organ. Serious physical injury imports a meaning more than mere physical injury which is defined as impairment, a physical condition or pain. The other aspect and element of robbery in the first degree is that the person uses or threatens the use of a dangerous instrument. A dangerous instrument means any instrument, article or substance which under the circumstances in which it is used, or attempted, or threatened to be used is capable of causing death or serious physical injury .... [A]ny article or substance without limitations, and even though such are harmless under normal use, may be found by you to be a dangerous instrument if, under the circumstances of its use, or threatened or attempted use, it is readily capable of producing serious physical injury or death. To summarize with regard to robbery in the first degree; if you find beyond a reasonable doubt that a robbery was committed by [the] defendant; and in the course of its commission he caused serious physical injury to the victim, or used, or threatened the use of a dangerous instrument, you should return a verdict of robbery in the first degree. If, however, you find that the state has failed to prove beyond a reasonable doubt any of the elements of robbery, you must find the defendant not guilty.”

       Under Golding, “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.” State v. Golding, supra, 213 Conn. 239-40. “ ‘The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.’ ” State v. Cardany, 35 Conn. App. 728, 733, 646 A.2d 296 (1994), quoting State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 231 Conn. 942, 653 A.2d 82 (1994).

       The conversation took place at the defendant’s home, about one week prior to his arrest. Accordingly, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is not implicated.

       The complete reference to the plain error claim in the defendant’s brief is these two sentences. “Even if this court were to hold that the polygraph issue is not of constitutional dimension, the defendant would submit that it constitutes plain error which should be considered in the interest of justice, Practice Book, Section 4185. The consistent holdings of this court and the Supreme Court demonstrating the inadmissibility of this type of evidence establishes that in this instance plenary review should be accorded to this issue.”

       See footnote 8.

       Practice Book § 4185 provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.”


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    State of Connecticut v. Atalie C. Smith
    (12447)
    Lavery, Landau and Schaller, Js.

      Argued December 1, 1994
    decision released May 23, 1995

      Joseph S. Elder, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and James A. Prior, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant, Atalie C. Smith, appeals to this court from a judgment of conviction, after a jury trial, of possession of more than one kilogram of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b), and possession of more than four ounces of marijuana in violation of General Statutes § 21a-279 (b). The defendant claims (1) that the trial court improperly denied her motion to suppress the evidence seized from the defendant in an illegal search and seizure within the meaning of the fourth amendment, and (2) that the trial court’s instruction to the jury on constructive possession was improper. We affirm the judgment of the trial court.

As to the first claim, the following facts are set forth in the affidavit for the search warrant. On March 18, 1992, Detective James Allen of the Connecticut state police drug unit at Bradley International Airport (Bradley) received a telephone call from the federal Drug Enforcement Administration (DEA) at the Cincinnati Airport that the DEA had just arrested an individual named Elaine D. Yarborough when she was found to have been in possession of fourteen pounds of marijuana that was wrapped in plastic wrap and fabric softener sheets to mask the odor. The contraband was found in a suitcase in her possession for which she gave the arresting officer, Special Agent Joe Jones, consent to search. Yarborough had left Los Angeles on March 17, 1992, on Delta flight no. 1026 and was changing to Delta flight no. 1520 in Cincinnati, which was scheduled to arrive at Bradley on March 18,1992, at 8:50 a.m. Los Angeles is known to be a source city for marijuana. At 2:18 p.m. on the same day, Allen received a call from the DEA in Cincinnati stating that another female had been with Yar-borough and had not been interviewed by Jones. They believed the other female, whose name was Cynthia Williams, had made the second part of the flight to Bradley. Allen checked with the Delta baggage agent and located a black hardsided suitcase with the name C. Williams and an address of 346 South Elm Street, New Haven, on a name tag. The suitcase had arrived on the morning Delta flight with bag tag no. 53-91-83. The bag had not been claimed by the owner nor had any inquiry been made about it. Jones had information that Yarborough and Williams had traveled together on the trip to Cincinnati. Detective Gerald Wagner of the Connecticut state police conducted a contraband search of the suspect luggage by placing four other pieces of luggage approximately four feet apart and having his narcotics-trained canine conduct a sniff test of each piece of luggage. A positive alert was made on the defendant’s luggage. Trooper Pablo Arroyo had his narcotics-trained canine conduct the same test, which also gave an alert on the defendant’s luggage. One of the affiants on the affidavit, Detective William Flynn, stated that based on his training in airport narcotics interdiction that illegal narcotics are transported by carry on and checked baggage on commercial airlines and that drugs including marijuana are brought to Connecticut from the southwest region via commercial airlines. Flynn had the suitcase x-rayed for security reasons since it appeared that the owner had arrived on the flight but had not taken possession. The X ray showed four square packages that took up almost the entire interior of the suitcase. The suitcase gave off an odor of fabric softener and weighed fifty-one pounds. A check of the New Haven address showed there was no South Elm Street in New Haven. A check of the phone number for the suspect showed no listing and the phone number the suspect Cynthia Williams gave Delta Airlines was disconnected.

The jury could have reasonably found the following additional facts that are necessary to the disposition of this case. After the search warrant was issued, the suitcase was opened and the detectives found five bundles wrapped in plastic wrap and what appeared to be fabric softener sheets. Three of the packages contained marijuana and two of the packages contained cocaine. The detectives removed the drugs from the suitcase and instructed the Delta baggage agent to contact them if anyone arrived to claim the suitcase.

The next day, March 19, the defendant appeared at the Delta baggage claim counter, and presented the claim check to the suitcase. The baggage agent alerted the detectives, who approached the defendant. The defendant told them that her name was Cynthia Williams, and that she was there to pick up the bag she brought from California. She produced a California identification card in the name Cynthia Williams, and her airline ticket from March 18, in the same name. The detectives later learned her name is Atalie C. Smith. The defendant told the detectives that she had brought the suitcase as a favor to a friend of her brother’s and that she thought there were several thousand dollars in it. She also said that she did not claim the suitcase when her flight arrived on March 18, because she was tired.

The state introduced evidence at trial that on October 17, 1991, the defendant had been arrested at John F. Kennedy Airport in New York City for possession of a checked suitcase containing three bundles of marijuana. When the defendant was arrested in New York, she used the name Quiana Pipion and stated she thought the suitcase contained “drug money.”

The defendant testified at trial that she had boarded the Delta flight in Los Angeles under the name Cynthia Williams and had used the airline ticket under that name. She had the claim check for the suitcase stapled to her ticket and knew the claim check was for the suitcase, but said she did not claim the suitcase on March 18, because during the flight she “had thoughts and I was thinking this is not right. And I decided not to pick up the suitcase again.” She testified she “decided I didn’t want anything to do with the bags . . . I’ve made a mistake before and I don’t want to have to go through it again.” She then took a cab to New Haven.

The defendant filed a boiler plate motion to suppress claiming: “The defendant respectfully moves this Honorable Court pursuant to Sections 820 et. seq. of the Connecticut Practice Book, the fourth and fourteenth amendments to the constitution of the United States and article I, § 7, of the constitution of the state of Connecticut, to suppress as the fruits of an illegal arrest, an unlawful search and a seizure of the defendant’s effects seized at Bradley International Airport, Windsor Locks, Connecticut, on or about March 18th and 19th, 1992 and any subsequent searches and seizures of the defendant, her papers and effects, including, but not limited to, any evidence allegedly found in a certain suitcase confiscated from the Delta Airline baggage holding center, any and all tangible and intangible evidence including, but not limited to, any and all written or oral statements made by the Defendant, and any and all items seized from or about their persons and effects.”

Prior to trial, the trial court conducted a hearing on the defendant’s motion to suppress and a motion in limine. The purpose of the hearing was to address the defendant’s claim attacking the veracity of the affidavit supporting the application for the search warrant pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

The trial court found that the defendant had a reasonable expectation of privacy in the suitcase sufficient to confer standing to challenge the search authorized by the warrant. In an effort to obtain a Franks hearing, the defendant then sought to make an offer of proof “to establish that the information which is in the warrant is misleading.” After hearing the defendant’s offer of proof, the trial court held that she had not met her burden of establishing “the substantial preliminary showing to be entitled to a Franks hearing.” The denial of the defendant’s request for a Franks hearing is not a claim in this appeal. The motion to suppress was denied. The trial was held, the defendant was found guilty and this appeal was filed.

I

The defendant then sought to challenge the information contained within the four corners of the warrant application for lack of probable cause. The defendant argued that the application failed to establish the reliability of the dogs used in the sniff search of the suitcase, and that the X-ray search was an intrusion into the suitcase. The only facts introduced during the suppression hearing concerning the X ray were in the brief description of the procedure in the application for the search warrant, which was defendant’s exhibit A in the suppression hearing. No other testimony or information was adduced at the hearing. The trial court orally denied the motion to suppress. The record does not contain a memorandum of decision, a signed transcript of the proceedings, or a motion for articulation. The state filed in the appendix to its brief a limited portion of the transcript setting forth the exchange between the court and defendant’s counsel on the subject of the X ray of the suitcase. The appellant bears the responsibility of providing the court with an adequate record for review. Practice Book § 4061. The appellant has the responsibility of ensuring that the trial court has signed a copy of the transcript when the decision has been rendered orally. Practice Book § 4059. Here, the trial court neither issued a written memorandum nor signed a transcript of its oral decision.

“While we do not condone this deviation from the rule of practice, we may disregard certain procedural irregularities and treat the case as the parties have treated and presented it. We do so here.” (Internal quotation marks omitted.) Lockwood v. Professional Wheelchair Transportation, Inc., 37 Conn. App. 85, 89, 654 A.2d 1252 (1995). Review is appropriate in this case because we have been presented with the necessary factual findings on which to base a decision. Cf. State v. Salerno, 36 Conn. App. 161, 165-66, 649 A.2d 801 (1994) , cert. granted, 232 Conn. 906, 653 A.2d 193 (1995) . We limit our review as to whether within the four corners of the affidavit sufficient probable cause existed for the magistrate to issue the warrant. We will base our review on whether sufficient probable cause existed with references to the X ray excised from the affidavit. We find that even with the clause on the X ray excised, the magistrate had sufficient probable cause to issue the second warrant. We recently decided a similar issue in State v. Torres, 36 Conn. App. 488, 495-96, 651 A.2d 1327, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995), in which we stated: “The trial court’s decision is not erroneous, despite the presence of improperly obtained evidence in the affidavit, if the lawfully obtained evidence considered by itself is sufficient to establish probable cause. State v. Ostroski, 201 Conn. 534, 544-45, 518 A.2d 915 (1986); State v. Arpin, 188 Conn. 183, 190-91, 448 A.2d 1334 (1982); State v. Palangio, 24 Conn. App. 300, 306, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); State v. Rogers, 18 Conn. App. 104, 556 A.2d 1030 (1989). ‘Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.’ State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991); State v. Sivri, 231 Conn. 115, 142, 646 A.2d 169 (1994).”

In determining whether an affidavit established probable cause to issue a search warrant, the reviewing court applies the “totality of the circumstances” test set forth in State v. Barton, supra, 219 Conn. 544. The court must make “a ‘practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the “veracity” and the “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” State v. Rodriguez, 223 Conn. 127, 134-35, 613 A.2d 211 (1992).

Information in a search warrant affidavit received by one law enforcement agency from another law enforcement agency based on that agency’s observations and investigation, although hearsay, is reliable and can be given credence by the issuing magistrate. State v. Hoffler, 174 Conn. 452, 460, 389 A.2d 1254 (1978). In State v. Morrill, 205 Conn. 560, 568, 534 A.2d 1165 (1987), the Supreme Court said, “A law enforcement officer, like the general public ‘is generally presumed to be reliable, and thus no special showing of such reliability ... is necessary’ to establish probable cause.”

The affidavit contained a statement that the Connecticut state police were notified by the DEA in Cincinnati that it had arrested a woman named Elaine Yarborough when she was found in possession of a suitcase containing marijuana wrapped in plastic wrap and fabric softener sheets, that Yarborough had planned to continue on to Hartford, that a second woman named Cynthia Williams was traveling with Yarborough and would be arriving at Bradley that morning.

The Connecticut state police then went to the Delta baggage agent and found that a black suitcase with a name tag that read C. Williams had arrived on the same Delta Airlines flight as Yarborough was scheduled to be on. The baggage remained unclaimed at the baggage counter almost five and one-half hours after the flight had arrived. Two separate canine sniff searches had alerted the Connecticut state police to the presence of narcotics. In United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), the United States Supreme Court held that a canine sniff by a trained narcotics dog does not constitute a “search” within the meaning of the fourth amendment. The court noted that the sniff “does not require opening the luggage” and “does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which the information is obtained through this investigative technique is much less intrusive than a typical search.” Id. As in State v. Torres, 230 Conn. 372, 645 A.2d 529 (1994), in this case we do not have to decide whether a canine sniff was a search since it is unnecessary to have a standard in this case any higher than “a reasonable and articulable suspicion.” To determine whether the police had a reasonable and articulable suspicion that warranted the canine sniff of the luggage, we look to the totality of the circumstances surrounding it. Id., 383. Here the police had information from the DEA in Cincinnati that two women were traveling together from California, that the DEA had searched the bag of one of the women and found a large amount of marijuana and arrested her, that the arrested woman’s companion was going under the name of Cynthia Williams, that the destination for both women was Bradley, and that a piece of luggage with the name of Cynthia Williams on the tag was not claimed more than five and one-half hours after the plane had landed and that it was in the possession of the Delta Airlines baggage clerk. This information was sufficient for the police to have a reasonable and articulable suspicion to conduct the two canine sniff tests. Subsequent to the completion of the sniff tests, the police smelled an odor of fabric softener from the luggage, found the address in New Haven to be nonexistent and found that the telephone number given to Delta Airlines by Williams had been disconnected. In our plenary review of the affidavit with the paragraph that referred to the X ray of the luggage excised, we find that there are more than ample facts to sustain the magistrate’s finding of probable cause.

II

The defendant’s second claim is that the trial court improperly instructed the jury on constructive possession. The trial court gave the following instruction: “As long as the substance, the narcotic, is in a place where it is subject to the defendant’s dominion and control, where the defendant can, if she wishes, go and get it, ‘it is in her possession. ’ ” (Emphasis added.) The defendant claims that the trial court thus instructed the jury to draw a mandatory presumption that if the narcotics were in a place subject to the defendant’s dominion and control, the jury must find that the defendant possessed the narcotics. “ ‘A mandatory presumption instructs the jury that it must infer the presumed fact if the state proves certain predicate facts. . . . A mandatory presumption violates the due process clause if it relieves the state of the burden of proving an essential element of the offense.' ” State v. Williams, 199 Conn. 30, 36, 505 A.2d 699 (1986). We disagree.

A defendant is entitled to have the jury adequately and correctly instructed. State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982). The trial court’s jury instructions must, therefore, be clear, accurate, complete and comprehensible. State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). The court does not, however, view instructions in artificial isolation from the overall charge. State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). “ ‘The issue is whether, in view of the charge read as a whole, that portion of the charge to which objection has been taken can be considered a basis for finding harmful error.’ ” State v. Moss, 189 Conn. 364, 368, 456 A.2d 274 (1983). “The test to be applied to any part of a charge is whether the charge, considered in its entirety, presents the case to the jury so that no injustice will result.” State v. Mackor, 11 Conn. App. 316, 326, 527 A.2d 710 (1987).

“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence, and exercised dominion and control over it.” State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). The trial court correctly instructed the jury on this definition and included that they must find that the defendant had the requisite intent. The court instructed, “This element of possession means that the defendant knew of the narcotic character of the substance, that she knew of its presence, and that she exercised dominion and control over it. Possession as used in the criminal statutes ordinarily signifies an intentional control of a designated thing accompanied by a knowledge of its character.” (Emphasis added.)

The court then continued by defining actual and constructive possession. Later, relating the relevant law to the facts of this particular case, the court explained: “Generally it’s the state’s claim that the defendant had constructive possession of the suitcase and its contents as represented by her airline ticket and baggage claim check and that she had the knowledge of the contents of the suitcase and the nature of the contents and that she possessed the requisite intent. The state claims there is sufficient circumstantial evidence concerning her statements and her conduct from which the jury could infer her intent and knowledge. The defense on the other hand claims that the defendant was never in possession of the suitcase and its contents at any relevant time in Connecticut. The defendant further alleges that the state has not proven the requisite intent and knowledge beyond a reasonable doubt. Let me just define that, they have not proven the requisite intent relevant to the contents of the suitcase beyond a reasonable doubt.” (Emphasis added.)

The defendant argued at trial and on appeal that the jury was entitled to know that they could infer intent, that the inference was not mandatory, and that the mere fact that the defendant possessed the claim check does not in and of itself equal possession. Her contention that the trial court “failed to include the intent requirement” lacks merit in view of the court’s explanation and instruction on intent to the jury. When reviewing a claim of instructional error, this court considers the challenged language in the context of the entire charge. State v. Tucker, 226 Conn. 618, 651, 629 A.2d 1067 (1993). The defendant’s claim that the court’s instruction articulated a mandatory inference that the defendant possessed the narcotics is inaccurate.

The judgment is affirmed.

In this opinion the other judges concurred.

       The affidavit states: “(1) That the undersigned affiant, Detective William Flynn, is a sworn member of the Connecticut State Police Department and has been a member of said department for approximately twenty-three and a half years and is presently assigned to the State Police Troop ‘W’ Drug Interdiction Unit at Bradley International Airport. That the affiant Flynn has conducted and participated in numerous investigations involving the trafficking of illicit narcotics and controlled substances which have led to the arrests and convictions of those persons involved. That the affiant Flynn has attended various schools of training and seminars dealing with narcotic investigations, search and seizure and airport narcotic enforcement, affiant Flynn has become familiar with the methods and practices of narcotic violators and the deception used by them to avoid detection when transporting narcotics using commercial airlines through United States Airports.
      “(2) That the undersigned affiant, Detective G. S. Wagner, is a sworn member of the Connecticut State Police Department and has been a member of said department for approximately fifteen years and is presently assigned to the State Police at Troop ‘W’ where his duties involve criminal investigations and narcotic investigations. The affiant is also trained in the use of a narcotic detection canine and is presently assigned the canine ‘Zak.’ Both he and Zak have participated in searches for illegal narcotics both on and off the airport involving structures, vehicles, aircraft, boats and luggage and have been successful in locating illegal narcotics.
      “(3) That at all pertinent times mentioned herein, the affiants were acting in their official capacity as Law Enforcement Officers for the State of Connecticut and the facts and circumstances contained herein are related from their personal knowledge and/or observations and include information from persons with personal knowledge of the facts and circumstances contained herein who have related their knowledge to the affiants, as well as information from brother police officers who have reported their knowledge to the affiants.
      “(4) That on 3/18/92 at approx. 0830 hours Detective James Allen of the State Police Drug Interdiction Unit at Troop W, Bradley International Airport, received a phone call from the Drug Enforcement Administration Task Force at the Greater Cincinnati, Ohio, Airport, that they had just arrested a black female giving the name of Elaine D. Yarborough, DOB 6/16/68 or 11/16/69 when she had been found in the possession of approx. 14 lbs of marihuana. The marihuana was wrapped in saran wrap and fabric softener sheets in an attempt to mask the odor of the marihuana. The packages were found in a suitcase in her possession for which she had given the arresting officer, S/A Joe Jones of D.E.A., a consent to search.
      “(5) That the subject Yarborough had left Los Angeles, California, on 3/17/92 at approx. 2305 hours on board Delta flight #1026 and was changing to Delta flight #1520 in Cincinnati to arrive at Bradley International at approx. 0850 hours on 3/18/92. The Los Angeles area is a known source city for marihuana.
      “(6) That at approx. 1418 hours Detective James Allen received another phone call from Lt. Blackburn of the Greater Cincinnati Airport who stated another female had been with Yarborough but had not been interviewed by S/A Joe Jones at the time. They believed that this other female had made the second part of the flight arriving at Bradley this A.M. The name of the female was Cynthia Williams. That Detective Allen checked with the Delta Baggage agent John Satterfield and located a black Trident hard-sided suitcase with a name tag in the name of C. Williams showing an address of 346 South Elm St., New Haven, CT. The suitcase had arrived on Delta flight 1520 this A.M. bag tag no. 53-91-83 and had been unclaimed by the owner and no inquiries had been made by the owner as to where her bag was. According to S/A Joe Jones he had information that Williams and Yarborough had traveled together on this flight to Cincinnati.
      “(7) That Detective Wagner conducted a controlled search of the suspect luggage by placing four other pieces of luggage approx, four feet apart and having his narcotics trained canine ‘Zak’ conduct a sniff test of each piece of luggage. That a positive alert was obtained on the suspect luggage. Trooper Pablo Arroyo also of Troop W who also has a narcotics detection trained canine named ‘Mike’ also conducted a controlled search of the luggage as described above and also had a positive alert on the suspect baggage.
      “(8) That affiant Flynn from his specialized training in Airport Narcotics Interdiction has knowledge that one of the ways persons transport illicit narcotics is the use of carry-on and checked baggage to transport the narcotics via commercial aircraft. Also from this affiant’s experience as a narcotics investigator knows that drugs, including marihuana, are commonly brought to Connecticut from the southwest region of the country via commercial airline flights.
      “(9) That affiant Flynn had x-rayed the suitcase in question for security reasons as it appeared that the owner had arrived on the same flight as the luggage but never took possession. That upon x-ray of the suitcase there appeared to be four square packages taking up almost the entire interior of the suitcase and was a combined weight of approx, fifty-one pounds. The suitcase also gave off an odor of what seemed to be fabric softener.
      “(10) That a check of the address in New Haven was done by Trooper Pablo Arroyo with Det. Hilden Wright of the New Haven Narcotics Unit. According, to Wright there is no S. Elm St. in New Haven. A check for a phone number listed for the suspect Williams through telephone information also showed no phone number listed.
      “(11) That checking the phone number given by the suspect Cynthia Williams in her reservation with Delta Airlines, 1-310-419-7220, it was determined through a phone call that the phone had been disconnected.
      “(12) That based on the information contained herein, affiants Flynn and Wagner have probable cause to believe, and do believe, that located in the black Trident hardsided suitcase with the name tag of C. Williams 846 S. Elm St., New Haven, Delta tag number 53-91-83, there is evidence of violations of Section 21a-278 (c), Possession of Marihuana With Intent to Sell in violation of the Connecticut General Statutes.”

       The paragraph that was excised from the affidavit states: “(9) That affiant Flynn had x-rayed the suitcase in question for security reasons as it appeared that the owner had arrived on the same flight as the luggage but never took possession. That upon x-ray of the suitcase there appeared to be four square packages taking up almost the entire interior of the suitcase and was a combined weight of approx, fifty-one pounds. The suitcase also gave off an odor of what seemed to be fabric softener.” We do not rule on or decide whether the X ray evidence is improperly obtained evidence.

       The court also instructed the jury generally on intent, and that it could be inferred from the defendant’s conduct. “You may infer from the fact that the accused engaged in conduct that she intended to engage in that conduct. This inference is not a necessary one, that is you are not required to infer intent from the accused’s conduct. But it is an inference you may draw if you find it is a reasonable and logical inference.”


author: Dupont, C. J.

text:
    Anton E. Nemeth v. Gun Rack, Ltd., et al.
    (12799)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued February 21
    decision released May 23, 1995

      James H. Lee, for the appellant (plaintiff).

      F. Timothy McNamara, with whom, on the brief, were Michael T. Wade and Putnam H. Perry, for the appellees (defendants).
   Dupont, C. J.

The plaintiff appeals from a judgment denying his application for a turnover order made pursuant to General Statutes § 52-356b. The plaintiff had obtained a judgment against the defendants for money damages, which was affirmed by this court in Nemeth v. Gun Rack, Ltd., 33 Conn. App. 909, 633 A.2d 744 (1993). This appeal concerns the plaintiffs efforts to enforce that underlying judgment by levying on inventory of the corporate defendant, which was allegedly transferred to a third party in violation of General Statutes § 42a-6-110 et seq.

The plaintiff raises two issues on appeal. They are (1) whether the trial court improperly held that General Statutes (Rev. to 1993) § 42a-6-110 precluded relief and (2) whether the trial court’s conclusion that the transfer of goods from the defendant to the third party had not been concealed within the meaning of § 42a-6-110 was legally and logically correct and supported by the facts as found. Because we conclude that the plaintiff’s application for a turnover order was timely made under § 42a-6-110 and that he is not precluded from relief by that statute, we need not reach the second issue of whether this transfer was concealed.

Judgment was rendered on September 21, 1992, in favor of the plaintiff against the defendants, Gun Rack, Ltd., a firearms and firearms equipment store, and Robert Carroll and Robin Carroll, the only officers, directors and shareholders of Gun Rack, Ltd. Execution of judgment was automatically stayed for a period of twenty days, until October 12, 1992, by operation of Practice Book § 4046. On October 9,1992, two days before the stay period ended, the defendants sold Gun Rack, Ltd.’s inventory of firearms, ammunition and accessories for $10,043.93 to a third party, who paid cash. The goods were removed from the defendant’s store during a long weekend and taken to the third party’s basement. Gun Rack, Ltd., thereafter went out of business.

On October 20, 1992, the plaintiff filed a judgment lien on Gun Rack, Ltd.’s inventory with the secretary of the state pursuant to General Statutes § 52-355a.

An examination of Gun Rack, Ltd., as a judgment debtor was scheduled for March 15, 1993. On March 11,1993, however, the defendants provided the plaintiff with a series of documents that the plaintiff alleges disclosed to him for the first time the fact and the date of the sale of the store’s inventory, the consideration and the identity of the purchaser. The examination of judgment debtor was subsequently marked off the calendar.

On March 31,1993, the plaintiff filed an application for a turnover order pursuant to § 52-356b. The plaintiff alleged that the corporate defendant transferred all of its inventory to a third party, in bulk and not in the ordinary course of business. The plaintiff sought to transfer possession of the defendant store’s inventory from the transferee to himself, and alleged that the transfer of the inventory was ineffective as against him because there had been no compliance with the notice provisions of the Bulk Sales Act; General Statutes (Rev. to 1993) § 42a-6-110; and, therefore, the goods remained exposed to a property execution.

The hearing for this turnover application was held on June 4, 1993. The trial court ruled for the defendants and the transferee in an oral decision and held, without expressly finding, that there had been a bulk sale, but that, even if there had been a transfer in violation of the Bulk Sales Act, § 42a-6-110 required the plaintiff to bring an action and to complete a levy of the goods within six months of the transfer, unless concealment of the transfer were pleaded. The court also ruled that since the plaintiff had failed to allege concealment in his pleadings, and had failed to produce sufficient evidence to prove concealment, the plaintiff was precluded from raising that claim.

On July 2,1993, the plaintiff filed a second, amended application for turnover, with affirmative allegations of concealment of the transfer. A hearing was held on August 11,1993, at which the trial court decided that its decision rendered at the June 4, 1993 hearing was an “ancillary matter on procedural grounds,” and, “therefore,” the amended application for “turnover order” alleging concealment could proceed. A hearing on the amended application for turnover order was held on August 18,1993. The transcript of this hearing, and both parties’ briefs in this court, indicate that the court and the parties treated this hearing as an extension of the June 4, 1993 hearing. The purpose of the second hearing was for the court expressly to determine whether there had been a bulk transfer, and if there had been a bulk transfer, whether the transfer had been concealed from the plaintiff.

After hearing testimony from the plaintiff, the transferee, and the defendant Robin Carroll, the court ruled that there had been a bulk sale, and that there had been “absolutely no compliance” with the Bulk Sales Act, but that the transfer had not been concealed. The court reinstated its original ruling that the plaintiff’s claim was barred by § 42a-6-110 because the plaintiff did not complete a levy within six months of the transfer.

Before beginning our analysis, we must determine whether the date of the first or the second turnover application should be used for purposes of applying § 42a-6-110, the Bulk Sales Act’s statute of limitations. The transfer took place the weekend of October 9,1992. The plaintiff’s first turnover application was filed on March 31,1993, which is well within six months of the transfer. If, however, the appropriate date to consider is July 2,1993, the date of the second turnover application, then the plaintiff’s application was filed more than six months after the date of transfer, and he is precluded from relief under the Bulk Sales Act. We conclude that this second application was akin to an amended pleading in the same case and that the appropriate date to consider for purposes of the Bulk Sales Act’s statute of limitations is March 31,1993. We treat the applications in the same manner as did the court and the parties. See Steele v. Stonington, 225 Conn. 217, 622 A.2d 551 (1993).

General Statutes (Rev. to 1993) § 42a-6-110 provides in relevant part: “No action under this article shall be brought nor levy made more than six months after the date on which the transferee took possession of the goods unless the transfer has been concealed. . . .” The use of the word “nor” in the statute indicates a continuing negation, involving two independent clauses. Actions and levies, therefore, are two separate types of proceedings under this statute. The trial court, however, characterized the plaintiff’s turnover application as an “action” under General Statutes (Rev. to 1993) § 42a-6-110 and read the language “[n]o action . . . shall be brought nor levy made” to mean that unless a party brings an action, secures a judgment and executes on that judgment by completing a levy of the transferred goods, all within six months of the bulk transfer, relief is precluded. We disagree with this interpretation.

First, we do not agree that an application for a turnover order is an “action” as used in § 42a-6-110. Under the Uniform Commercial Code (UCC), “ '[a]ction’ in the sense of a judicial proceeding includes recoupment, counterclaim, set-off, suit in equity and any other proceedings in which rights are determined.” General Statutes § 42a-l-201 (1). In the present case, however, the plaintiff's rights against the defendants had been determined prior to the bulk transfer. The plaintiffs application for a turnover order, therefore, was a mechanism for collecting the already acquired judgment against the defendants, not a mechanism for determining the plaintiff’s rights against the defendants.

We find further support for our construction of “action” in the UCC comments to § 42a-6-110, which state that “[t]he main sanction for non-compliance with the Article is that the transfer ‘is ineffective against any creditor of the transferor.’ . . . This means, e.g., that a judgment creditor of the transferor may levy execution on the property. ... In such a case, which may be expected to be frequent, no ‘action under this Article’ will be necessary. The action will have been'brought and prosecuted to judgment on whatever the claim was. The only thing done ‘under this Article’ will be the levy and resulting sale.” Because an application for a turnover order is a postjudgment proceeding, not an action, we are concerned here with the meaning of the phrase “levy made,” rather than the phrase “action brought.”

Neither the UCC nor the General Statutes define the term “levy.” The UCC comment to § 42a-6-110, however, notes that “[t]he short statute of limitations is . . . made applicable to levies as well as actions. 'Levy,’ which is not a defined term in the code, should be read broadly as including not only levies of execution proper but also attachment, garnishment, trustee process, receivership, or whatever proceeding, under the state’s practice, is used to apply a debtor’s property to payment of his debts.” An examination of the statutory scheme of postjudgment proceedings in Connecticut and an examination of the legislative history of § 42a-6-110 et seq. sheds little light on what “levy made” means for purposes of the Bulk Sales Act’s statute of limitations. We turn, therefore, to the canons of statutory construction and the common law definition of “levy” to aid us in our analysis of whether § 42a-6-110 precluded the plaintiff in this case from relief because the “levy made” was untimely.

First, we note that § 42a-6-110 is a statute of limitations. The term “limitation of action” has been defined to mean “a bar to the remedy on the plaintiff’s cause of action occasioned by the lapse of time since the cause of action arose.” 51 Am. Jur. 2d, Limitation of Actions § 2 (1970). A statute of limitations is “[t]he policy of the state as expressed in a statute . . . prescribing the period of time within which an action or proceeding in law or in equity must be brought.” Ballentine’s Law Dictionary (3d Ed. 1969). A statute of limitations, therefore, is intended to prevent the assertion of stale claims. It looks to the commencement of a cause of action rather than to the completion of a cause of action. Indeed, the limitations for the commencement of actions are usually entirely separate from the limitations on execution of judgments. The limitations on the execution of judgments are concerned with the commencement, not the completion, of collection proceedings. See General Statutes § 52-598 (providing that party generally has twenty years to seek execution of judgment).

The phrase “nor levy made,” therefore, must be construed to be consistent with the purpose of § 42a-6-110, which is to limit the time period in which a judgment creditor can assert his right to have the debtor’s property applied to payment of the debt. We must also bear in mind the purpose of the UCC, which is to promote commerce. See Lieb v. Dept of Health Services, 14 Conn. App. 552, 558, 542 A.2d 741 (1988).

Goods are levied as part of the process of execution of a judgment. “Execution is a remedy afforded by law for the enforcement of a judgment, its object being to obtain satisfaction of the judgment on which the writ is issued.” 30 Am. Jur. 2d, Executions and Enforcement of Judgments § 43 (1994). “The execution of a writ of execution consists of two acts, the levy, or taking property into the possession of the sheriff for sale, and the execution sale itself.” Id., § 213. “The levy of a writ of execution is an act in the course of a judicial proceeding. It has been described as an act of dominion over specific property by an authorized officer of the court which, but for the writ under which he proceeds, would be a trespass, conversion, or other unlawful invasion of a property right, and which results in the creation of a ’legal right to subject the debtor’s interest in the property to the satisfaction of the debt of his judgment creditor . . . .’’Id. “At common law a levy on goods consisted of an officer’s entering the premises where they were and either leaving an assistant in charge of them or removing them after taking an inventory. Today courts differ as to what is a valid levy, but by the weight of authority there must be an actual or constructive seizure of the goods.” Ballentine’s Law Dictionary (3d Ed. 1969). “A levy on personal property is generally defined as a seizure of the property. Thus, in most jurisdictions, it is essential to the completion of a levy of execution upon personal property that there be a seizure, either actual or constructive, of the property.” 30 Am. Jur. 2d, Executions and Enforcement of Judgments § 234 (1994). “An execution officer has been held to have done all that is required to effect a levy on the contents of a judgment debtor’s store, where he went to the store, saw the goods, asserted his right to them by virtue of his levy within the hearing of the judgment debtor, and indorsed on the execution the fact that a levy had been made.” Id., § 238.

“Complimentary to the plaintiff/execution creditor’s responsibilities with regard to a levy of execution is the sheriff’s duty to execute the writ according to the plaintiff’s instructions. The sheriff must follow the creditor’s reasonable instructions regarding the time and manner of making the levy and must abide by special instructions to make an immediate levy, if practicable, when plaintiff demonstrates necessity.” Id., § 217. “The courts have applied different standards with regard to the time within which a sheriff must levy an execution. Thus, it has been held that the execution officer should levy promptly, or on the earliest convenient day. . . . [OJther courts . . . simply [require] a sheriff or other officer to exercise reasonable diligence in levying an execution.” Id., § 219.

The postjudgment remedies outlined in chapter 906 of the General Statutes and Connecticut case law comport with these general definitions. In Connecticut, goods may be levied only after a judgment creditor whose debt has not been satisfied seeks judicial remedy, usually in the form of a writ of execution. See General Statutes § 52-350a et seq.; Burchett v. Roncari, 181 Conn. 125, 128, 434 A.2d 941 (1980). Therefore, a levy cannot be “made” until a judgment creditor seeks relief pursuant to the postjudgment remedies provided by chapter 906.

This court must construe statutes so that “absurdity and mischief may be avoided.” (Internal quotation marks omitted.) Ford Motor Credit Co. v. B. W. Beardsley, 208 Conn. 13, 20, 542 A.2d 1159 (1988). Furthermore, “[i]n the construction of statutes of limitation, the courts may, where the legislature has not sufficiently manifested its intention, consider the reasonableness of the result of a particular construction in the light of the practical effect of the adoption of a different construction.” 51 Am. Jur. 2d, Limitation of Actions § 52 (1970). Because executing a judgment can be a complicated and often lengthy process, it is unreasonable to construe the phrase “levy made” in § 42a-6-110 to mean that the judgment debtor’s goods must actually or constructively be seized within six months of a bulk transfer of the judgment debtor’s goods.

The plaintiff’s case here illustrates the unreasonableness of such an interpretation. The plaintiff sought a writ of execution almost immediately after the stay of the judgment expired in October, 1992, only to have it returned unsatisfied three months later in February, 1993. Shortly thereafter, the plaintiff learned of the bulk transfer of the judgment debtor’s goods in October, 1992, and filed his application for a turnover order in March, 1993. The first hearing on that application was not held until more than six months after the transfer, in June, 1993, and the second hearing was held in August, 1993, making it impossible for the plaintiff to commence and complete a levy on the goods. The trial court ruled that this impossibility precluded relief for this plaintiff. We disagree, and conclude that the plaintiff’s assertion of his right to apply the goods to the debt is all that can reasonably be required under this statute. Adopting the trial court’s interpretation of the statute would be analogous to holding that a personal injury suit brought within two years of the injury is barred because the case cannot be tried to completion and a judgment executed and satisfied within two years of the injury.

Furthermore, if we adopted the court’s reasoning, a writ of execution validly issued on the last day within a limitations period would have to be carried into execution and the goods levied immediately on that day or the judgment could not be enforced at all. Again, the result is the thwarting of a judgment creditor’s rights by the crowded civil dockets, over which the judgment creditor has no control. The vagaries of scheduling cases in terms of obtaining a judgment and a judgment lien should not oust a plaintiff of a statutory right he would otherwise have had.

We, therefore, interpret § 42a-6-110 to mean that one must either bring an action, where there is no underlying judgment, within six months of the bulk transfer or seek to levy the goods within six months of the transfer where there has been a judgment obtained prior to the bulk transfer. We construe the phrase “nor levy made” as speaking to the latest point in time when a judgment creditor can assert a right, not to the latest point in time when that right can be effectuated.

This interpretation is not inconsistent with the UCC’s policy of promoting commerce because the transferee is put on notice within six months of the transfer to him that he may not have clear title. “Statutes of limitation are not to be used as technical devices to avoid liability where the defendant has received timely notice of an impending complaint and has in no way been prejudiced by the passage of time.” Goodyear Tire & Rubber Co. v. Tabs, Inc., 26 UCC Reporting Service 1290, 1293-94 (App. Sess. 1979). Our interpretation also promotes commerce because the normal limitations on seeking execution of judgments are considerably shortened in favor of the transferee. See, e.g., General Statutes §§ 52-355a (c) and 52-598.

In the present case, therefore, we hold that by filing his application for a turnover order within six months of the bulk transfer, the plaintiff is not precluded from relief by § 42a-6-110.

The judgment is reversed and the case is remanded for a new hearing on the application for a turnover order.

In this opinion the other judges concurred.

       General Statutes § 52-356b provides in relevant part: “(a) If an execution is issued, the judgment creditor may apply to the court for an order in aid of the execution directing the judgment debtor, or any third person, to transfer to the levying officer either or both of the following: (1) Possession of specified personal property that is sought to be levied on; or (2) possession of documentary evidence of title to property of, or a debt owed to, the judgment debtor that is sought to be levied on.
      “(b) The court may issue a turnover order pursuant to this section, after notice and hearing or as provided in subsection (c), on a showing of need for the order. If the order is to be directed against a third person, such person shall be notified of his right pursuant to section 52-356c to a determination of any interest claimed in the property.
      “(c) The court may issue a turnover order against a judgment debtor, without notice or hearing, upon affidavit by the judgment creditor or another competent affiant stating facts from which the court concludes that there is a reasonable likelihood that the judgment debtor is about to remove the property from the state or is about to fraudulently dispose of the property with intent to hinder, delay or defraud his creditors. The court shall expeditiously hear and determine any motion by the judgment debtor to dissolve such an ex parte order.”

       The defendants are Gun Rack, Ltd., Robert Carroll and Robin Carroll. The individual defendants were not named in the application for turnover order and are not involved in this appeal from the denial of that application for turnover order. A prejudgment remedy of attachment secured the personal liability of the individual defendants and did not involve Gun Rack, Ltd.

       The third party named in the plaintiff’s application is Michael Mieiukewicz, the person to whom the defendants transferred the goods that are the subject of the plaintiff’s turnover application.

       General Statutes (Rev. to 1993) § 42a-6-110 was part of the Bulk Sales Act, General Statutes (Rev. to 1993) § 42a-6-101 et seq., which was repealed on October 1,1993. The legislature has provided, however, in General Statutes § 42a-6-110b that “[rjights and obligations that arose under sections 42a-6-101 to 42a-6-110a, inclusive, and section 42a-9-lll before their repeal on October 1,1993, remain valid and may be enforced as though those sections had not been repealed.” We, therefore, consider this case under the Bulk Sales Act. Neither party has contested the trial court’s finding that there was a bulk transfer under General Statutes (Rev. to 1993) § 42a-6-101 et seq.

       As soon as the stay expired, the plaintiff attempted to collect the judgment by a series of executions.

       The plaintiff testified that he learned in October, 1992, that the goods were no longer in the store, but he assumed that they were still in the possession of the defendants.

       We note that the language implemented by the Connecticut legislature differs from the language recommended in the Uniform Commercial Code § 6-110, “limitation op actions,” which provides: “(1) Except as provided in subsection (2), an action under this Article . . . must be commenced within one year after the date of the bulk sale.
      “(2) If the buyer . . . conceals the fact that the sale has occurred, the limitation is tolled and an action under this Article may be commenced within the earlier of (i) one year after the person bringing the action discovers that the sale has occurred or (ii) cne year after the person bringing the action should have discovered that the sale has occurred, but no later than two years after the date of the bulk sale. Complete noncompliance with the requirements of this Article does not constitute concealment.”


author: Hennessy, J.

text:
    State of Connecticut v. Scott Hermann
    (12328)
    Heiman, Spear and Hennessy, Js.

      Argued January 9
    decision released May 23, 1995

      Howard A. Lawrence, with whom was Lawrence S. Dressier, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   Hennessy, J.

The defendant, Scott Hermann, appeals from his conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), risk of injury to a child in violation of General Statutes § 53-21, and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal, (2) denied his motion to sever the trial on interfering with an officer from the trial on sexual assault and risk of injury, (3) failed to declare a mistrial for the state’s loss of potentially exculpatory evidence, (4) admitted into evidence a tape-recorded statement of the defendant for both substantive and impeachment purposes, (5) refused to allow the defendant to discredit his brother’s testimony by questioning him as to his drug and alcohol use, and (6) failed to exclude evidence of domestic violence. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. In the spring of 1991, the eight year old victim lived with her mother, her older sister, her six year old brother, the defendant, and the defendant’s fifteen year old brother. The defendant was the boyfriend of the victim’s mother. On the evening of April 15,1991, the victim’s mother and the defendant argued, and the victim’s mother told the defendant to leave the house. The defendant left, but returned before the victim’s mother left for work. The victim’s mother worked from 11 p.m. to 7 a.m. at a nursing home, and the defendant was usually responsible for the care of the children while the victim’s mother was at work.

When the victim’s mother left for work, the defendant remained in the house with the victim, the victim’s six year old brother and the defendant’s brother. The victim fell asleep on the couch while watching television. She was awakened when the defendant removed her clothing and laid on top of her. She told the defendant that she was cold and he dressed her and carried her into her bedroom. After looking in on her several times, the defendant gave the victim something to drink to help her get to sleep. Thereafter, when the victim was drowsy but still awake, the defendant returned to the room, taped the victim’s mouth and hands, placed the victim on the bedroom floor and removed her pants and underwear. He placed himself on top of her and put his fingers into her vagina.

The victim’s cries awakened her younger brother who came to the bedroom and saw the defendant on the floor on top of his sister. The boy returned to bed after being told to do so by the defendant. The defendant removed the tape from the victim’s face and left the house for a few minutes. The victim went into the bathroom, examined herself and found that she was bleeding from the vagina. She then called her mother’s place of employment but before the phone was answered she heard the defendant returning. She hung up, went to her bedroom, locked the door and eventually fell asleep. The next morning, when the victim’s mother returned home from work, the victim’s brother told his mother what he had seen and heard. The victim’s mother awakened the victim and, after the victim told her what had happened, called the police.

I

The defendant initially claims that the trial court improperly denied his motion for judgment of acquittal because there was no evidence that he engaged in sexual intercourse with the victim as defined in General Statutes § 53a-65 (2). The relevant portion of § 53a-65 (2) provides that “[p]enetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.” The defendant argues that because Webster’s Third New International Dictionary, defines manipulate to mean “to treat, work or operate with the hands,” and because a finger is a part of a hand, a finger cannot be “an object manipulated by the actor” under § 53a-65 (2). The defendant would have us conclude that digital penetration of a victim’s vagina does not constitute sexual intercourse as defined in § 53a-65 (2). We are not persuaded.

Our decision in State v. Grant, 33 Conn. App. 133, 634 A.2d 1181 (1993), is dispositive of this claim. In Grant, we held that “[t]he general purpose of the statute in question is to protect children from being sexually violated. The statute proscribes sexual intercourse — the act of penetration, however slight. Thus, the statutory purpose is met regardless of what particular object is used to accomplish that penetration. Further, the statute elsewhere specifically prohibits penetration using other parts of the actor’s body. It would be unreasonable to conclude that penetration by the actor’s tongue or penis constitutes sexual intercourse, while penetration by a finger does not. Statutes should be construed so as not to reach an absurd or unreasonable result. State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980).” Id., 141. The trial court was correct in denying the defendant’s motion for judgment of acquittal.

II

The defendant next claims that the court improperly denied his motion for a separate trial on the charge of interfering with an officer. He argues that the trial court’s refusal to sever the interfering charge from the charges of sexual misconduct resulted in substantial injustice and extreme prejudice to him. We disagree.

The following additional facts are necessary to dispose of this claim. The morning after the victim was assaulted, a surgical glove was found in the upper bunk of the bunkbed in the victim’s room. Because of her job, the victim’s mother had a box of surgical gloves to which the defendant had access. As part of the state’s case-in-chief, Detective Paul Hemingway testified that the surgical glove found in the victim’s bedroom possibly had been worn by the defendant when he assaulted the victim.

Following his arrest, after being transported to the police station and in the presence of police officers, the defendant reached into his trousers, removed a surgical glove and, despite the efforts of the officers to prevent him from doing so, flushed the glove down the toilet. This conduct by the defendant is the basis for the interfering charge.

The trial court, in accordance with Practice Book § 828, is authorized to order separate trials if the joindei of offenses in a single trial will prejudice the defendant. “ ‘In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988).’ ” State v. Jennings, 216 Conn. 647, 657, 583 A.2d 915 (1990). The trial court’s role is to determine whether severance is required to avoid the risk that, although evidence admitted on one charge might not persuade the jury of the accused’s guilt on that charge, the cumulative effect of all the evidence will persuade the jury of the accused’s guilt on all the charges. State v. Boscarino, 204 Conn. 714, 721-22, 529 A.2d 1260 (1987).

The factors to be considered by the trial court in determining whether severance is necessary include: “(1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial.” (Internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” State v. Jennings, supra, 216 Conn. 658. Applying these factors to the present case, we find that the defendant was not prejudiced by the denial of his motion to sever.

First, the sexual assault and risk of injury counts involve activity between the defendant and an eight year old at the place where both resided. The interfering count involves an altercation between the defendant and police at the police station. The two sets of charges are separate and easily distinguishable. Second, we held in State v. Grant, supra, 33 Conn. App. 138, that counts involving sexual assault and risk of injury to children are not necessarily so brutal and shocking as to mandate severance, even from charges of a similar nature, if the jury is properly instructed to consider the counts separately. Third, the six day trial with testimony from eighteen witnesses was not so long or so complex that the charge of interfering could become confused with the sexual assault charges. See State v. Jennings, supra, 216 Conn. 659-60 (trial of five days with fourteen witnesses not unduly long or complex); State v. Herring, supra, 210 Conn. 97 (trial of eight days with twenty-three witnesses not unduly long or complex).

We also note that “where evidence of one incident can be admitted at the trial of the other incidents, separate trials would provide the defendant no significant benefit, and under such circumstances he would ordinarily not be substantially prejudiced by joinder.” State v. Crosby, 36 Conn. App. 805, 810, 654 A.2d 371 (1995). The defendant’s argument here is that the introduction of evidence concerning the disposal of the glove at the police station, combined with Hemingway’s testimony that the glove found in the victim’s bedroom was possibly used during the sexual assault, impermis-sibly caused the jury to connect him with the sexual assault charges and deprived him of a fair trial. Nevertheless, the defendant’s destruction of the glove following his arrest was germane to his identity as the perpetrator; see State v. Crosby, supra, 810-11; and to his consciousness of guilt; see State v. Sivri, 231 Conn. 115, 130, 646 A.2d 169 (1994); and would have been admissible in the sexual assault prosecution even if the interfering charge had been tried separately. In this situation, we find no prejudice in the trial court’s denial of the motion to sever the trial of the interfering charge from the trial on the sexual assault and risk of injury charges.

Moreover, any likelihood of prejudice in the joinder of these offenses for trial was removed by the instructions to the jury. “[Although a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissable other crimes] evidence . . . where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved.” (Citations omitted; internal quotation marks omitted.) State v. Jennings, supra, 216 Conn. 660. In this case, any possible prejudice due to the joinder of offenses for trial was unquestionably ameliorated by the trial court’s explicit instruction that the jury should consider the offenses separately. We conclude that the court did not abuse its discretion in denying the defendant’s motion to sever the sexual assault and interfering charges.

Ill

The defendant next claims that the trial court should have dismissed the prosecution in light of the state’s failure to preserve potentially exculpatory evidence. The defendant argues that the state’s loss of such evidence violated his federal and state constitutional rights to due process pursuant to the holding in Arizona v. Youngblood, 488 U.S. 51, 55, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). We will not review this claim.

This claim is raised for the first time on appeal. Our review of this claim, therefore, is limited to either plain error review; see Practice Book § 4185; or review pursuant to the constitutional bypass doctrine of Evans-Golding. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant fails, however, to request review of this claim under either of these doctrines.

As this court has previously noted, it is not appropriate to engage in a level of review that is not requested. Baker v. Cordisco, 37 Conn. App. 515, 522 n.4, 657 A.2d 230 (1995); State v. Carter, 34 Conn. App. 58, 91-92, 640 A.2d 610, cert. granted on other grounds, 229 Conn. 919, 644 A.2d 915 (1994); State v. Johnson, 26 Conn. App. 433, 438, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992); but see State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995). Accordingly, we decline to review this unpreserved claim of error.

IV

The defendant next contends that the trial court improperly allowed into evidence a statement he made to the police at the time of his arrest. The defendant argues that (1) the trial court improperly denied his motion to suppress the statement, (2) the trial court improperly admitted the statement for both substantive and impeachment purposes, and (3) the admission of the statement was error where the state had previously agreed not to seek admission of the statement for any purpose. We find no merit in any of these claims.

A

The defendant argues that the trial court improperly denied his motion to suppress the tape-recorded statement. He claims his waiver of his Miranda rights was not knowing and voluntary because he had not been informed that he was being questioned in connection with the sexual assault of the victim. We disagree.

The defendant concedes that he was given his Miranda warnings. He argues, however, that he provided a statement to the police only because he believed that he was being questioned about an argument he had had with the victim’s mother the previous evening. He bolsters his argument by pointing out that as soon as he was informed that he was being detained in connection with the sexual assault of the victim, he refused to sign a transcription of the tape-recorded statement or to cooperate further in answering questions. The defendant argues that he waived his Miranda rights with regard to his argument with the victim’s mother but insists that he exercised his rights with regard to the sexual assault allegations. As a result, the defendant contends that the trial court improperly refused to suppress his statement.

The gravamen of this claim is that because the defendant was not informed as to the specific offense with which he was charged, the Miranda warnings were rendered a nullity. The flaw in this argument is that there is no requirement that the police inform an arrested person of the specific charges against him or her after they give the arrestee Miranda warnings. Colorado v. Spring, 479 U.S. 564, 577, 107 S. Ct. 851, 95 L. Ed. 2d 954 (1987). Because Miranda warnings were given and the defendant does not claim that his statement was coerced in any other way, he cannot prevail on this claim.

B

The defendant next contends that the trial court improperly allowed his tape-recorded statement into evidence for substantive as well as impeachment purposes. He claims that the reliability criteria given by our Supreme Court in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), as a prerequisite for the admissibility of a prior inconsistent statement for substantive purposes were not present. We disagree.

The following additional facts are relevant to the resolution of this issue. At trial, the state requested to play for the jury the defendant’s tape-recorded statement taken at the police station following his arrest. The state claimed that the defendant’s testimony at trial was inconsistent with this prior recorded statement. The court allowed the tape-recorded statement to be played and instructed the jury: “The statement that is going to be heard on tape is not necessarily offered for the truth of what is contained therein, but for whatever purpose the jury may see fit insofar as prior testimony is concerned, the testimony of the defendant and others in the course of the trial.” Although, as the state points out, this instruction is ambiguous, we find it unnecessary to decide whether the statement was admitted for substantive purposes because, even if it was, such use was permissible under State v. Whelan, supra, 200 Conn. 743.

A prior inconsistent statement can be used for substantive purposes only if (1) the statement is written and is signed by the declarant, (2) the declarant has personal knowledge of the facts stated, and (3) the declarant testifies at trial and is subject to cross-examination. Id., 753. Although the Whelan decision implicated use of a prior written statement, not prior tape-recorded statements, it noted in dicta that prior tape-recorded statements possess indicia of reliability and trustworthiness sufficient to allow their use for substantive purposes even if they are not signed and in writing. Id., 754 n.9. This dicta became controlling law in later cases. See State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993); State v. Alvarez, 216 Conn. 301, 313, 579 A.2d 515 (1990). “Although the general rationale of Whelan concerning written statements also applies to tape-recorded statements . . . the requirement that such statements be signed is unnecessary because the recording of the witness’ voice imparts the same measure of reliability as a signature.” (Citation omitted.) State v. Woodson, supra, 21.

The defendant does not contest that the tape-recorded statement was based on personal knowledge or that he testified about the statement in court and was subject to both direct and cross-examination. In fact, the defendant explicitly testified that the tape-recorded statement had inaccuracies in it and that these inaccuracies were the reason for specific inconsistencies with his in-court testimony. In these circumstances, we conclude that the tape-recorded statement was properly used for substantive purposes and the jury was properly allowed to determine for itself whether to credit the defendant’s trial testimony or his prior inconsistent statement.

C

The defendant also argues that the court improperly admitted the defendant’s tape-recorded statement into evidence where the state had agreed not to seek the admission of the statement. The defendant claims that by allowing the tape to be played to the jury the court displayed favoritism to the state because it allowed the state to renege on a promise made in chambers not to introduce the recorded statement. The record is devoid of any evidence as to what, if any, agreement the state made concerning the admission of the statement. This court will not speculate on what is not in the record. Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995); State v. Rosedom, 34 Conn. App. 141,145-46, 640 A.2d 634 (1994). Therefore, the defendant cannot prevail upon this claim.

V

The defendant next argues that the court abused its discretion in not allowing him to impeach his brother’s credibility by cross-examining him about alcohol use with a priest in East Haven. The defendant claims the trial court, by sustaining the state’s objections to questions on this subject, improperly infringed on his right to present a defense. We disagree.

The following additional facts are relevant to the resolution of this issue. At trial the defendant developed the theory that his fifteen year old brother was the perpetrator of the sexual abuse of the victim. Through both direct and cross-examination, it was revealed that the defendant and other persons had purchased and otherwise supplied drugs and alcohol for his brother. In his cross-examination of his brother, the defendant asked whether a priest in East Haven had ever provided alcohol to him or drank alcoholic beverages with him in the past. The trial court sustained the state’s objection to each question.

“A witness may be cross-examined regarding specific acts of misconduct only if they bear a specific significance upon the issue of the witness’s veracity. . . . ‘ “Whether to permit cross-examination as to particular acts of misconduct . . . lies largely within the discretion of the trial court.” ’ ” (Citations omitted.) State v. Avis, 209 Conn. 290, 304, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989). Absent a showing of a clear abuse of discretion, we will not reverse the trial court’s ruling on such evidentiary matters.

Both the state and the defense elicited ample testimony as to the drinking and drug use of the defendant’s brother on the night of the sexual assault of the victim and in general. When the state objected to the two questions at issue, the defendant made no offer of proof as to the relevance of his brother’s alleged alcohol use with a priest in East Haven. We conclude that without any claim as to the significance of this issue to the veracity or credibility of the witness, the trial court did not abuse its discretion in prohibiting such a line of questioning.

VI

The defendant’s final argument is that the trial court improperly failed to exclude evidence of domestic violence in the defendant’s household. The gravamen of the defendant’s argument is that the testimony of a clinical social worker regarding domestic violence in the defendant’s household was impermissible because it served to identify the defendant as fitting the profile of a child abuser and child molester. We disagree.

At trial, Craig Newton, codirector of the victimol-ogy program at Yale-New Haven Hospital, was called to testify as part of the state’s case-in-chief. Newton’s professional responsibilities include psychosocial evaluations of victims, and the determination of their safety upon discharge to the home environment. On direct examination, Newton acknowledged that he was not aware of any allegations of physical abuse of the children in the defendant’s home. Newton added, however, that “domestic violence is family violence, so the children are always part of the violence.” The state also elicited testimony that Newton was aware of possible financial stress in the defendant’s household, and Newton further commented that financial stress and domestic violence go hand in hand.

The defendant’s argument that Newton’s statements concerning domestic violence' served to identify the defendant as fitting a profile of a child abuser and child molester is not supported by the record. Newton was never qualified as an expert and he never testified that the defendant was a child abuser or molester. The bulk of Newton’s testimony, based on his observations of the victim during the interview, tended to corroborate the fact that the victim had in fact been sexually abused and to support his assessment that it might not be safe for the victim to return to the defendant’s household. His testimony also served to discredit the testimony of the victim’s mother that the victim did not know who had assaulted her, by supporting the inference that the victim’s mother’s financial concerns might be more pressing than her concern for her daughter’s safety from future abuse. We conclude that the trial court did not abuse its discretion in allowing Newton to testify as to domestic violence in the defendant’s household.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-65 (2) provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       Although Grant involved a prosecution under General Statutes § 53a-71, not § 53a-70, our holding in Grant turned on the definition of sexual intercourse in § 53a-65 (2) and is controlling in this case.

       The defendant also claims that the trial court improperly refused to instruct the jury that digital penetration was not proscribed by General Statutes § 53a-65 (2). The holding in Grant is also dispositive of that claim and, therefore, we will not discuss it further.

       Practice Book § 828 provides: “If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may, upon his own motion or the motion of the defendant, order separate trials of the counts or provide whatever other relief justice may require.”

       The morning after the sexual assault, while the victim was being examined at the hospital emergency room, a long strand of blond hair was found on her buttocks and placed in a sex crimes investigation kit. Forensic tests determined that this hair was not similar to that of the defendant, and the results of these tests were made known to the defendant during discovery. During trial, as the defendant prepared to question his younger brother, who he suggested was the perpetrator of the sexual abuse of the victim, it was discovered that the hair was missing.

       Practice Book § 4185 provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.”

         Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       For the same reason, we will not address the defendant’s argument that the state was guilty of prosecutorial misconduct in its misrepresentations of the promise made in chambers.

       The questions were: “Did you ever have occasion to drink in a church at East Haven?” and “[Have you ever been] given any alcoholic beverages by any priest in East Haven?”


author: Per Curiam.

text:
    Stephen Ericson v. Perreault Spring and Equipment Company et al.
    (13516)
    Landau, Heiman and Schaller, Js.
    Argued April 26
    decision released May 30, 1995

      Jeremy D. Booty, for the appellants (defendants).

      Ross Lessack, with whom on the brief was Edward T. Dodd, Jr., for the appellee (plaintiff).
   Per Curiam.

The defendants appeal from the decision of the compensation review board of the workers’ compensation commission reversing the order of the commissioner for the fifth district and remanding the case to the commissioner for further proceedings. On remand, the commissioner is ordered to determine the allocation of a year-end bonus of approximately $19,000, paid by the defendant employer to the plaintiff, in determining the plaintiff’s average weekly wage for the twenty-six week period immediately preceding the week during which the plaintiff’s injury occurred and to set the correct rate of compensation.

“It is axiomatic that appellate review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the compensation review division. Matey v. Estate of Dember, 210 Conn. 626, 629-30, 556 A.2d 599 (1989); Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 409-12, 521 A.2d 566 (1987); Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156-57, 520 A.2d 186 (1987); Rapasi v. Jenkins Bros., 16 Conn. App. 121, 122-23, 546 A.2d 965, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). The finality of the decision of the review [board] is called into question in this case because of the review [board’s] order of a remand for further administrative proceedings. The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed. Matey v. Estate of Dember, supra, 630.” Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990).

Here, the defendants conceded at oral argument that the remand to the commissioner requires proceedings that are more than ministerial and involve the exercise of the commissioner’s independent judgment and discretion. The plaintiff agreed, as do we. Thus, this appeal fails to meet the test for the existence of a final judgment in an appeal from the compensation review board. See id., 556.

The appeal is dismissed.