author: SHEA, J. MIHALAKOS, J.,

text:
    SHARON MCDERMOTT v. CALVARY BAPTIST CHURCH ET AL.
    (AC 20955)
    Lavery, C. J., Mihalakos and Shea, Js.

      Argued October 15, 2001
    officially released February 19, 2002

      David A. Slossberg, with whom, on the brief, was J. Daniel Sagarin, for the appellant (plaintiff).

      J. Kevin Golger, with whom, on the brief, was George L. Holmes, Jr., for the appellee (named defendant).

      James E. Coyne, with whom, on the brief, was Robert P. Murphy, for the appellee (defendant town of Darien).
   Opinion

SHEA, J.

The plaintiff, Sharon McDermott, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, in an action to recover damages for personal injuries she sustained as a result of the defendants’ alleged negligent maintenance of their property. On appeal, the plaintiff claims that the court improperly (1) failed to instruct the jury on the issue of agency, (2) failed to instruct the jury that the defendant town of Darien (town) had a legal duty to trim branches that overhung its property, (3) instructed the jury on the legal significance of a “no parking” sign at the scene of the accident and (4) failed to set aside the jury verdict on the ground that the verdict in favor of the defendants was against the weight of the evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 26,1994, the plaintiff drove to a municipal parking lot in Darien that served a number of local businesses, including a restaurant at which the plaintiff was planning to dine that evening. The parking lot bordered property owned by the defendant Calvary Baptist Church (church). A hedgerow of maple, ash and ailanthus trees, planted on the church property, stood along the boundary between the two properties. The plaintiff parked near the boundary and, when she exited her vehicle, an overhanging branch fell from one of the ailanthus trees and struck her on the head, knocking her to the ground and causing various injuries.

The plaintiff brought an action against the church and the town, alleging, inter alia, that the defendants knew or should have known that the subject tree posed a hazard and that the defendants were negligent in that they failed to take reasonable precautions to protect persons on the premises by failing to remedy that hazardous condition. The case was tried before a jury, which found that neither defendant had been negligent and returned a verdict in favor of both defendants. This appeal followed.

I

The plaintiff raises several claims challenging the propriety of the court’s instructions to the jury. Our review of those claims is governed by well established standards. “A request to charge [that] is relevant to the issues of [a] case and [that] is an accurate statement of the law must be given. . . . However, [instructions to the jury need not be in the precise language of a request.” (Citation omitted; internal quotation marks omitted.) Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 445-46, 782 A.2d 87 (2001). “A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 592, 783 A.2d 1001 (2001) “Moreover, jury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. ... A charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Scanlon v. Connecticut Light & Power Co., supra, 446.

A

The plaintiff first claims that the court improperly failed to instruct the jury on the issue of agency. The substance of the plaintiffs claim alleges that the court’s instruction did not adequately inform the jury that the defendants could be found liable for the negligent acts or omissions of their agents. We are not persuaded.

With respect to the town, the record before us clearly indicates that the court explicitly charged the jury on the issue of municipal liability for the acts or omissions of the town’s agents. Referring to General Statutes § 52-557n, the court instructed the jury that: “A town shall be liable for damages caused by the negligent acts or omissions of any employee acting within the scope of his employment or official duties.” Thus, the court provided the jury with clear guidance on the issue of agency with respect to the town’s potential liability.

The court’s charge to the jury with respect to the church also adequately instructed the jury to evaluate the actions of the church’s agents in considering whether the church was liable for the plaintiffs injuries. The jury was instructed not only that the church was obligated to inspect its property, but also that any examination conducted on its behalf would have to be reasonable under the circumstances. The required quality and thoroughness of any such inspection was, therefore, put before the jury as an issue to consider. The court’s charge to the jury also indicated that any knowledge concerning possible hazardous conditions that would have been gleaned during a reasonable inspection should be imputed to the church. Contrary to the plaintiffs assertion, the church, under that charge, could not avoid a finding of liability by pointing to the negligent acts or omissions of a third party acting on its behalf. The absence of the express term “agent” from the court’s instructions did not alter the inquiry that the jury properly was charged to make. Therefore, after reviewing the charge as a whole, we conclude that the plaintiff was not prejudiced by the omission of the precise language that she requested and that the charge, as given, was sufficient to guide the jury in reaching a correct verdict.

B

The plaintiff next claims that the court improperly instructed the jury on the town’s obligation to remedy a hazard to the property line. The plaintiff claims that although the court charged generally on the duty of a landowner to keep its premises safe from hazard, the charge did not specifically advise that the town was required to remove a branch overhanging the property line. The plaintiff also claims that the court’s reference to the tree warden statute, General Statutes § 23-59, compounded the alleged instructional error and misled the jury by suggesting that the town merely was authorized, rather than required, to act to remedy a known hazardous condition. We disagree with both of those assertions.

Our review of the court’s charge to the jury reveals that the court properly instructed the jury that the town had an affirmative duty to remedy hazards on its property caused by hazardous conditions on adjacent property. In drawing the jury’s attention to § 23-59, the court specifically cautioned that the statute does not increase the town’s duty, but was offered to establish that the town had the ability to respond to any potential hazard that it identified. We conclude that the court’s instruction was correct in law and was in accord with the substance of the plaintiffs requested charge.

C

The plaintiff next claims that the court improperly instructed the jury on the legal significance of a “no parking” sign that was visible in one of the photographs of the subject tree. We disagree.

During its deliberations, the jury sent to the court a note inquiring about the no parking sign, which prompted the court to give the jury a supplemental instruction. The note from the jury read: “In exhibit D eight, there is a parking sign that states ‘no parking.’ It is located directly in front of the tree. Was this taken into consideration? And why was it never mentioned?” The plaintiff claims that the court should have instructed the jury that the sign had no legal significance. Instead, the court suggested that the jury should accord the same weight to the sign as it was accorded during the trial.

As we previously stated, the standard of review of jury instructions is well settled. A reviewing court shall make an inquiry to determine whether it is possible that the instructions misled the jury. See Scanlon v. Connecticut Light & Power Co., supra, 258 Conn. 445-46. “Of necessity, additional instructions given in immediate response to a request are more informal and expressed with less exactness than are studiously prepared formal charges . . . .” (Internal quotation marks omitted.) State v. Williams, 199 Conn. 30, 43, 505 A.2d 699 (1986). “Nevertheless, additional charges to the jury must state the law correctly and not be misleading .... To determine the correctness of a jury charge, the charge must be read as a whole, and judged by its total effect rather than by its individual component parts.” (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 606, 662 A.2d 753 (1995).

The following additional facts are relevant to our consideration of the plaintiffs claim. The subject photograph was introduced into evidence, without any objection or request for a limiting instruction, for the purpose of showing the condition of the subject tree. In addition to the tree, the photograph also showed a sign that was in relatively close proximity to the tree. The sign read: “No Parking Loading Zone.” The plaintiff apparently was oblivious to the presence of the no parking sign and the implication that it might raise for the jury.

Evidence admitted without objection remains evidence in the case subject to any infirmities due to its inherent weaknesses. Danahy v. Cuneo, 130 Conn. 213, 217, 33 A.2d 132 (1943). Such evidence is “available for whatever it [is] worth upon its face. ... Its value [is, however,] limited to its natural probative effect.” (Citations omitted; internal quotation marks omitted.) Id.

The implication of the court’s response to the jury’s query was that because the sign was not mentioned by the parties, its relevance was minimal. Although the court’s instruction was not phrased as artfully as it could have been, its essence was that the jury should disregard the sign. Therefore, we conclude that the instruction was correct in law and that it is not reasonably possible that the jury was misled.

II

The plaintiffs final claim is that the court improperly denied her motion to set aside the verdict because the verdict in favor of the defendants was against the weight of the evidence. We disagree.

The plaintiff bases her claim on the general agreement among the witnesses that ailanthus trees are a poor choice for street-side planting, being relatively brittle and prone to shedding branches, and the testimony of the town’s tree warden that he had never inspected the subject tree.

“In reviewing a court’s refusal to set aside a verdict, we apply an abuse of discretion standard. . . . The evidence is viewed in a light most favorable to the prevailing party and to sustaining the verdict. . . . We accord great weight to the court’s decision and indulge every reasonable presumption in favor of its correctness. . . . We must determine whether the jury reasonably could have concluded, on the basis of the evidence and reasonable inferences drawn from that evidence, that the verdict . . . was proper. . . .

“A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Citations omitted; internal quotation marks omitted.) Ipacs v. Cranford, 65 Conn. App. 441, 443-44, 783 A.2d 1044 (2001).

On the basis of our review of the record, we conclude that the jury reasonably could have found that the defendants, either as principals or through their agents, did not violate the applicable standard of care and were not negligent with respect to the maintenance of their property.

“A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.” (Citation omitted.) Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). “An occupier of land is chargeable with constructive notice of defects when dealing with invitees. . . . The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it.” (Citation omitted; internal quotation marks omitted.) Kurti v. Becker, 54 Conn. App. 335, 338-39, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999). Thus, to establish liability for an injury caused by a falling tree limb, a plaintiff must establish that the landowner had either actual or constructive notice of the limb’s defective condition. A landowner, however, does not have a duty to examine its trees constantly for nonvisible decay. 62A Am. Jur. 2d, Premises Liability § 690 (1990).

The jury in this case found that the defendants were not negligent. It heard substantial testimony that could have supported a finding that the defendants lacked both actual and constructive knowledge of any defective condition of the tree limb that injured the plaintiff. Anthony Gibson, testified that in his twenty-six years as pastor of the church, he had never received any complaints about the trees. He also testified that through the years, two parishioners, Brian M. Maher and Don Miller, regularly had maintained the trees.

Maher, a licensed arborist, testified that he worked on the trees from 1986 through 1994. He testified that during the period from 1991 to 1994, he climbed the trees approximately twice a year and performed maintenance such as removing dead limbs and opening up the crowns. Maher stated that if he noticed a problem with any of the trees that he could not handle himself, he would inform Gibson of the problem.

Jeffrey O’Brien, aprofessional arborist, testified that the subject tree had an abundance of leaves, that those leaves possessed the proper color and form, that he did not notice any insect infestation or decay and that the stem that fell appeared to be in very good health. O’Brien also testified that although the interior of the stem contained some discoloration that was indicative of rot or decay, that decay was surrounded by two to four inches of healthy wood and would not have been visible from the exterior. He further indicated that the decay did not appear to reach the v-crotch where the tree failed. The witness also testified that neither the architecture of the subject tree nor the mere fact that it was an ailanthus would require that remedial measures be taken without some other evidence of potential problems.

The tree warden for the town, Marshall Cotta, testified that although he had never formally inspected the tree, he had observed it on many occasions and had never noticed any physical signs of decay or indications that the tree was unhealthy. He stated that the tree looked healthy and appeared to have been cared for by the church. Cotta further testified that although the ailanthus tree is not a popular variety for street-side planting and that the professional literature discourages the planting of such trees on a street or by a parking lot, he would not recommend removing preexisting trees simply because of their proximity to a subsequently constructed roadway or parking lot.

The fact that a limb fell from the tree did not require the jury to find that either or both of the defendants were negligent. The plaintiff had the burden of proving that the defendants had either actual or constructive knowledge of the tree’s defective condition, and the jury reasonably could have found, on the basis of the evidence presented, that she did not satisfy that burden. We conclude, therefore, that the court properly determined that the evidence was sufficient for the jury to decide as it did in rendering its verdict in favor of the defendants.

The judgment is affirmed.

In this opinion LAVERY, C. J., concurred.

MIHALAKOS, J.,

dissenting. I respectfully disagree with the majority and would reverse the judgment of the trial court. I believe that the majority incorrectly concludes that the court’s jury instruction was correct in law and that the plaintiff was not prejudiced by the charge.

As the majority has already stated, when a party claims that a jury charge was incorrect, we review the charge in its entirety to determine whether the charge fairly presents the case to the jury under the established rules of law such that no injustice will result to either party. After reviewing the charge in its entirety, the majority concludes that “the plaintiff was not prejudiced by the omission of the precise language that she requested and that the charge, as given, was sufficient to guide the jury in reaching a correct verdict.” I believe that she was prejudiced because without instruction about the law of agency, the jury did not have the opportunity to determine whether the defendants’ agents had actual or constructive knowledge of the dangerous condition, and, therefore, did not have the opportunity to decide if any such knowledge should be imputed to the defendants.

“Agency normally is a question of fact. . . . [T]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking. ... A principal is generally liable for the authorized acts of his agent. . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., 66 Conn. App. 397, 402, 784 A.2d 970, cert. granted on other grounds, 258 Conn. 949, 788 A.2d 98 (2001). Furthermore, “[t]he acts of an agent are imputed to his principal, and a principal may not use his agent as a shield when the agent acts within the bounds of his authority. See Son v. Hartford Ice Cream Co., 102 Conn. 696, 700-701, 129 A. 778 (1925); Mullen v. Horton, 46 Conn. App. 759, 764, 700 A.2d 1377 (1997).” Kallas v. Harnen, 48 Conn. App. 253, 260 n.5, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998). “The general rule ... is that the principal is chargeable with, and bound by, the knowledge of or notice to his agent received while the agent is acting as such within the scope of his authority and in reference to a matter over which his authority extends. The fact that the knowledge or notice of the agent was not actually communicated will not prevent the operation of the general rule, since the knowledge or notice of the agent is imputed to the principal and is therefore constructive notice . . . .”3 Am. Jur. 2d, Agency § 281 (1986). “The knowledge of his agent with respect to defects in a building may be imputed to a landlord.” Id. “The rule charging the principal with his agent’s knowledge is not necessarily restricted to matters of which the agent has actual knowledge, and . . . the principal is charged with the knowledge of that which his agent, by ordinary care, could have known, especially where the agent has received sufficient information to awaken inquiry.” Id., § 285.

With respect to the town, the majority reasons that by reading the text of General Statutes § 52-557n, the court “provided the jury with clear guidance on the issue of agency with respect to the town’s potential liability.” This reasoning is, however, flawed. First, the court referred to § 52-557n to explain the concept of governmental immunity. Section 52-557n abrogates the doctrine of governmental immunity only in certain delineated circumstances. In addition, the court read the text of the tree warden statute, General Statutes § 23-59. Because § 23-59 contains discretionary language and the court instructed that the town was not liable for the discretionary acts of its agents, I do not believe that merely reading the text of § 52-557n fairly presents the issue of agency to the jury. While I am aware that a charge to the jury is be read as a whole and that individual instructions are not to be evaluated in isolation from the overall charge, I believe that the concept of agency was not properly before the jury because of the flawed instruction.

With respect to the church, the majority reasons that the charge was adequate for the jury “to evaluate the actions of the church’s agents in considering whether the church was hable for the plaintiffs injuries.” I do not agree. The portion of the charge to which the majority cites is limited to the duty of a landowner. See footnote 5 of the majority opinion. The court instructed that “[t]he duty of a landowner, controller, to invitees on the land includes the duty to reasonably examine his property. . . . Now, it is not claimed here that as a basic threshold, initial response as a landowner, that you have a climb up arborist examining the tree. It may have been something that might have been warranted later on if other evidence would have suggested it to the reasonably prudent landowner or not.” (Emphasis added.) This charge allows the jury to find that the church was not negligent because it had an arborist maintaining and examining the property regardless of whether the arborist was negligent in his maintenance. Hence, the charge provides no guidance to the jury in its evaluation of the actions of the agent in the consideration of liability. Rather, the practical effect of the charge is to allow the church to use its agent as a shield, which the law of agency does not condone.

Furthermore, the court’s charge regarding notice was also deficient. The court instructed the jury regarding actual and constructive notice of the defendants. The court did not instruct the jury regarding actual or constructive knowledge of the agent. Moreover, the court did not instinct the jury that if it found that the agent had knowledge of the defect, such knowledge could be imputed to the defendant and thereby fulfill the notice requirement. Although I agree with the majority that “[t]he absence of the express term ‘agent’ from the court’s instructions did not alter the inquiry” for the jury, I believe that the complete omission of the entire law of agency did alter the inquiry, and, therefore, the jury was not properly charged.

In part II of its opinion, the majority notes that the “jury in this case found that the defendants were not negligent,” and “heard substantial testimony that could have supported a finding that the defendants lacked both actual and constructive knowledge of any defective condition of the tree limb that injured the plaintiff.” The jury did hear such testimony, but only in the light of the flawed charge. The testimony, however, also supported a finding that the defendant’s agents may have been negligent and, without a proper charge on the law of agency, the jury could not find that the agents had actual or constructive knowledge, nor could it find that the agents’ knowledge should be imputed to the defendants.

First, Brian M. Maher, a parishioner and licensed arborist, testified that he never actively inspected the tree for any signs of defect. Jeffrey O’Brien, a professional arborist, testified that an arborist should be looking for defects when pruning a tree. Next, Marshall Cotta, the tree warden for the town, testified that his only observations of the tree were limited to when he used the parking lot and walked by the tree to go to a market. Finally, the experts for both parties testified that ailanthus trees are characteristically brittle and generally should not placed near roadways or parking lots for this reason.

The jury must make the threshold determination of whether these men, in their capacity as agents, had actual or constructive knowledge of a defect in the tree. If so, the jury must determine whether that knowledge should be imputed to the respective defendants. Because I believe that the charge was deficient and the case was not properly presented to the jury, I respectfully dissent.

       The town of Darien also is a defendant.

       The plaintiff requested that the following charge be delivered to the jury: “In various relationships between two or more parties, the law imposes liability upon one party for the acts of another. An agent is a person who, by agreement with another called the principal, manages some affair or does some service for the principal. Where an agency is established, the principal is liable for the acts of the agent committed on the principal’s behalf.
      “Agency means that the agent or servant is doing something for the benefit or furthering of the purposes of another party. It need not be a hired agent or servant on a salary or a definite contract. It’s a question of whether what the agent or servant has done is for the benefit of the other party.”

       We note that the existence of a principal-agent relationship between the church and the parishioners who maintained the trees on its behalf was not disputed. Similarly, the town readily conceded that the tree warden operated as its agent.

       General Statutes § 52-557n (a) (1) provides in relevant part: “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . .”

       In discussing the church’s obligations as a landowner, the court instructed the jury: “If an owner or possessor’s actions or omissions create an undue risk to others, then there has been a deviation from the reasonable standard of care. Or, more fully, a duty to take reasonable care exists in circumstances where a reasonably prudent owner or possessor, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered would occur, if reasonable care weren’t taken. . . . Now, a fallen tree claim might be pleaded solely on alleged outside visible damage or rot or decay. If this were all that were alleged here, a plaintiff would be burdened to show the following . . . that there were visible signs of decay or weakness of structure. And that the church failed to observe . . . but that reasonable care would have resulted in those signs being seen. Plaintiff would have to show that a closer look or a good inspection would have resulted in a remedy or advice to get remedy due to the extent of the decay or structural weakness being such to warrant that. And, of course, that actions weren’t taken. Here, plaintiff has argued more and I’ll mention it. Plaintiff argues that the architecture or shape of the tree, with a codominant stem, and its breed, being an ailanthus tree, and any history that the tree might have had were additional danger signals. So that it is for you to decide whether reasonable care by a tree owner would require a response to any or all factors. ... I did mention to you about the duty of reasonable care, for invitees on land, as a duty that would include inspecting your premises for dangers. . . . The duty of a landowner, controller, to invitees on the land includes the duty to reasonably examine his property. . . . Now, it is not claimed here that as a basic threshold, initial response as a landowner, that you have a climb up arborist examining the tree. It may have been something that might have been warranted later on if other evidence would have suggested it to the reasonably prudent landowner or not.”

       As indicated, the court’s charge to the jury correctly stated that “[t]he duty of a landowner ... to invitees on the land includes the duty to reasonably examine his property.” The court, also instructed the jury that a property owner may be liable where, although defects went unnoticed, “reasonable care would have resulted, in those signs being seen.” (Emphasis added.)
      The dissent argues that lurking within the shadows of the court’s charge is the suggestion that a landowner may escape liability by delegating its duty to exercise reasonable care to a third party. Such a conclusion, however, contradicts the entire thrust of the court’s charge to the jury. By instructing the jury to consider whether reasonable care would have revealed any alleged defect in the tree, the court implicitly instructed the jury to evaluate whether the actions of the church’s agents were reasonable under the circumstances. If the jury found that the level of care exercised by those agents was unreasonable, it was bound by the court’s charge to find that the landowner had failed to meet its duty.

       The plaintiff requested the following charge to the jury: “Where the limb of a tree owned by an adjoining landowner hangs over a party’s property and creates a nuisance or hazard, that property owner has a duty to remove the limb up to the property line or take other possible action that will alleviate the nuisance or hazard. McDermott v. Calvary Baptist Church (order denying motion to strike, dated August 28, 1995) (Thompson, J.); Robinson v. Clapp, 65 Conn. 365 [32 A. 939] (1895). The property owner is obligated to take such steps whether or not it is the owner of the subject tree. ”

       In discussing the duty of reasonable care that the town owed to the plaintiff, the court stated: “[T]he duty that is owed by the town is the same as I’ve been describing for the church. The duty is the same. That is to keep the premises reasonably safe for those who are lawfully upon the premises. Now, each aspect here has that wrinkle that I mentioned before. . . . [F]or the town, the wrinkle had to do with the alleged danger being to a person on town property, but coming from above rather than out of the town’s ground, so to speak. From the tree of another party, a bordering landowner. But the duty I mentioned is still the same. Safety for people lawfully on the premises. That is to say, the town’s duty to keep its premises reasonably safe is not lifted from the town’s shoulders by the fact that the tree belonged to the church. The duty of reasonable care would exist with regard to your premises whether the danger comes from below, above or adjacent to the property.”

       The court charged the jury as follows regarding General Statutes § 23-59: “[General Statutes § 23-59] says the town tree warden shall have the care and control of all trees and shrubs, in whole or in part, within the limits of any public road or grounds. Such care and control shall extend to such limbs, roots or parts of trees and shrubs as extend or overhang the limits of any public road or grounds. And another provision in the statute says [that] whenever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under his control, he may cause such tree or shrub to be removed or pruned at the expense of the town.”

       We note that although the plaintiff objected to the supplemental instruction on the record, the record does not indicate that the plaintiff suggested an alternative instruction. We have, however, the supplemental charge to evaluate in light of the complete instructions to the jury. The record, therefore, is adequate to determine if the court’s instruction was improper.

       The court’s supplemental instruction on the weight to be given to the matter of the no parking sign was: “The best thing for me to say to you is that ‘[i]t would be appropriate for you to consider that this is a piece of information mentioned in no question, answer, pleading or argument, and to say it deserves somewhat similar consideration by you.’ I’m not sure that that was read sounding clearly. I’m stating that if it garnered that little attention in the questions and answers and pleadings and arguments, maybe that’s what it ought to be accorded by you. Okay?”

       Maher and Miller, the owner of an independent tree service, maintained the trees. There is no evidence in the record before us that Miller was called as a witness by either party.

       O’Brien had occasion to view the subject tree after he had been called by the church to remove one ash tree and one maple tree in the hedgerow. Upon his arrival, he also was asked to remove the ailanthus tree and did so.

       Despite the plaintiffs attempt to characterize the ailanthus’ brittleness and tendency to shed branches as incontrovertible evidence of their hazardous nature, the jury reasonably could have found that the testimony on that point did no more than establish that such trees are “messy. ” Accordingly, the jury could have concluded that the widespread admonition against planting ailanthus trees was motivated primarily by aesthetic, as opposed to safety, concerns.

       At the outset, I would like to note that the “overhanging branch” that fell and struck the plaintiff was one of two stems of a coterminous tree, and the stem was thirty to forty feet in length.

       The majority notes that both defendants concede that a principal-agent relationship existed. Although the existence of a principal-agent relationship is a threshold question that must be addressed, the inquiry does not stop there. Once the relationship has been established, the jury must determine whether the agent was negligent and, if so, whether his negligence should be imputed to the principal.

       The court’s charge to the jury states in relevant part: “[General Statutes § 52-557n] says [that] a town shall be liable for damage caused by negligent acts or omissions of any employee acting within the scope of his employment or official duties. Negligence in the pro forma functions from which the town derives a special corporate profit or benefit, 'llie town shall not be liable for damages caused by negligent acts or omissions which require the exercise of judgment or discretion.” (Emphasis added.)

       By answer dated December 31, 1998, the town asserted governmental immunity as a special defense. The jury never decided the issue of governmental immunity because it found that the town was not negligent.

       The court’s charge to the jury states in relevant part: “I’m going to give [the tree warden statute] to you for two reasons. You will be able to weigh or consider this tree warden statute as you weigh . . . whether the negligence or reasonable care issues have been established. And it may also help you to see or to consider that the town would not have been . . . without the ability ... to move against the tree that they thought was hazardous. . . . [General Statutes § 23-59] says the town tree warden shall have the care and control of all trees and shrubs, in whole or in part, within the limits of any public road or grounds. Such care and control shall extend to such limbs, roots or parts of trees and shrubs as extend or overhang the limits of any such public road or grounds. And another provision in the statute says [that] whenever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under his control, he may cause such tree or shrub to be removed or pruned at the expense of the town.” (Emphasis added.)

       The court’s instruction to the jury states in relevant part: “If you were to determine in this case against either defendant that there was no condition that was known or should have been known to be hazardous or dangerous, then there would have to be a verdict for the defendant or defendants, on that issue or in this case. Now, there’s two kinds of notice here. You recall, I’ve mentioned a couple of times now, that a defendant can only be held liable if you conclude that he had notice of the problem, or a problem, in advance. . . . There’s actual notice. ... Or you might find that . . . there is constructive notice. . . . Constructive notice is die kind of notice that means the information you should have had if you were exercising reasonable care. . . . And a plaintiff needs to illustrate to you, to prove to a jury that the . . . defendant had actual or, at least, constructive notice in the trial of a premises liability case. So, if neither kind of notice existed or should be deemed to have existed in the mind of the defendant, then it has to be a defendant’s verdict.”

       Maher, in his video deposition, testified in relevant part:
      “[Plaintiffs Attorney]: Do you recall doing work specifically on the ailanthus trees?
      “[The Witness]: Yeah. Like I said before, if there was a broken branch, and every one had small broken branches one time or another, and I know I had been up in just about every ailanthus tree to flush the broken stubs and to cut deadwood while I was up there.
      “Q. How often did you work on these trees?
      “A. A couple of times a year. . . .
      “Q. When you climbed these trees, did you notice evidence of broken branches?
      “A. Yeah.
      “Q. Did you notice any trunk cracks or cracks running along the tranks of these ailanthus trees?
      “A. I can’t say that I remember.
      “Q. On this particular tree ... do you recall any cracks in the trunk of that particular tree?
      “A. I can’t recall.
      “Q. When you went and did work on these trees, were you looking for cracks?
      “A. No, I wasn’t. If I’m up in a tree and I see something I’ll go after it, but I’m not putting a magnifying glass [to it]. . . . I’m really not looking that detailed around. I’m going after a limb, and it takes physical exertion to do this and that so I’m not really—Well, I would say I’m not fine-tooth combing the trees while I’m up there.”

       O’Brien testified in relevant part:
      “[Defendant Town’s Attorney]: And when you climb up a tree to do that you’re going to prune it, but, in the business do you also, as an arborist, would you be looking around for any other of these conditions or indications of any problems that might be apparent to you?
      “[The Witness]: Absolutely.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JERRY RODRIGUEZ
    (AC 21086)
    Foti, Dranginis and Healey, Js.
    Argued December 4, 2001
    officially released February 19, 2002

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara F. Eschuk, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Jerry Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2). The defendant claims that the trial court improperly (1) found that the child victim was not competent to testify dining the trial and (2) ruled that the victim’s testimony given during a competency hearing was inadmissible evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the events giving rise to the defendant’s conviction, the victim was four years of age and the defendant was twenty-three years of age. For approximately eighteen months prior to December, 1997, the defendant resided with the victim, the victim’s mother and the victim’s brother. Although the victim usually referred to the defendant as “Daddy” or “Jerry,” the defendant is not the victim’s biological father. The defendant is the biological father of the victim’s younger brother.

The defendant continued to have a somewhat amicable relationship with the victim’s mother and often visited with her, the victim and the victim’s brother even after he no longer resided with them. In January, 1999, the victim’s mother was employed at a local video rental store; she customarily worked during the 5 p.m. until midnight shift. The victim’s maternal grandmother or a female friend of the victim’s mother often baby-sat the victim and her brother while their mother was at work.

On January 21,1999, the defendant called the victim’s mother and asked if he could baby-sit for the children while she worked that night. After the victim’s mother agreed, the defendant picked up the children from the home of their maternal grandmother, picked up the keys to the victim’s mother’s house from her and took the children to their home. When the victim’s mother arrived home from work sometime after 12:30 a.m., the children were sleeping in their beds, and the defendant was asleep on the sofa, where he spent the night.

On the evening of January 22, 1999, while the victim was using the bathroom, she complained to her mother that “her butt hurt.” When her mother inquired as to the cause, the victim told her that “Daddy put a bone in my butt, and it hurts.” On the next day, the victim’s mother called the defendant on the telephone and asked him if he, during the prior evening, had physically reprimanded the victim or if anything else had occurred to explain the victim’s statements. At trial, she testified that the defendant seemed upset and that he denied doing anything to hurt the victim. During the day on January 23, 1999, the victim complained sporadically that she felt pain. The victim’s mother bathed the victim that night and again inquired of her as to why she felt pain. The victim reiterated the explanation that she had given her mother on the previous night and, as her mother testified, “pointed inside her butt.”

The next day, the victim’s mother took the victim to local police headquarters to report the victim’s complaints. The victim’s mother then took the victim to a nearby hospital, where emergency medical personnel examined her. The victim reiterated her allegations about the defendant. On January 27, 2000, Judith Kanz, a certified pediatric nurse practitioner and an expert in evaluating children complaining of sexual abuse, examined the victim. The victim reported to Kanz an account of sexual abuse consistent with her earlier statements. Kanz also testified that, during her physical examination of the victim, she found a “borderline abnormal” dilation of the victim’s rectum and that this finding caused concern as to whether something had penetrated her rectum. Joanne Iurato, a licensed clinical social worker who specializes in the field of abused children, also interviewed the victim. She testified that the victim told her that her mother’s boyfriend, whom she identified as “Daddy” or “Jerry,” had “put a bone in her butt and [that] it appeared to look like a piece of meat.” On the basis of the evidence and expert testimony adduced at trial, the jury could reasonably have found that the defendant had sexually assaulted the victim.

I

The defendant first challenges the court’s ruling that the victim was not competent to testify at trial. The defendant argues that the court (1) abused its discretion when it concluded that the victim was not a competent witness and (2) improperly rendered that decision after conducting a preliminary hearing, in violation of General Statutes § 54-86h, to determine the victim’s competency, rather than considering the issue after the victim was called to testily during the evidentiary phase of the trial.

The record reflects that after the completion of jury selection but prior to trial, the defendant filed a motion captioned “Motion to Suppress and Strike Testimony of Minor Child as Being the Unreliable Product of Improperly Suggestive Interview Techniques and Therapy.” At a pretrial hearing in which the court heard argument relevant to several motions, the court inquired of counsel as to how they wanted the court to proceed in considering the defendant’s motion to suppress. The court decided to conduct the hearing at that time, rather than conducting the hearing during trial. The defendant concedes, as he must, that he did not object to the court’s decision to conduct the hearing at that time.

The court thereafter heard testimony from the victim’s mother and the victim. After the victim testified, both the prosecutor and victim’s guardian ad litem acknowledged that the victim was not a competent witness. The defendant’s attorney agreed with that assessment and stated: “I don’t see how the court can find that she is a competent witness . . . .” Later that day, at the court’s suggestion, the proceedings reconvened in a different courtroom wherein the victim was not able to see the defendant, but the defendant was able to monitor the proceedings via a one way mirror. The court, the prosecutor and the defendant’s attorney undertook a further examination of the victim. At the conclusion of the examination, the prosecutor argued that the victim was a competent witness. The court concluded that the victim was not competent, and the defendant did not object to that ruling.

The parties agree that this issue was not preserved at trial. When a party raises a claim for the first time on appeal, our review of the claim is limited to review under either the plain error doctrine as provided by Practice Book § 60-5, or the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). hi his appellate brief, the defendant did not seek review of this claim under either of those doctrines. The defendant agrees that this is an unpreserved evidentiary claim and that, as such, it is not a claim for which Golding review is appropriate. See State v. Paris, 63 Conn. App. 284, 294-95, 775 A.2d 994, cert. denied, 257 Conn. 909, 782 A.2d 135 (2001).

“As this court has previously noted, it is not appropriate to engage in a level of review that is not requested.” State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). At oral argument before this court, however, the defendant nevertheless argued that we should afford this claim plain error review. We do not agree. Plain error review “is reserved for those truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 241, 710 A.2d 732 (1998). Neither the timing of the court’s competency evaluation nor the court’s ruling implicates such concerns. Accordingly, we decline to review the defendant’s claim.

II

The defendant next claims that the court improperly excluded from the jury’s consideration the victim’s testimony during the competency hearing and certain statements concerning that testimony made by the victim to her guardian ad litem. We disagree.

The following additional facts are necessary for our resolution of this issue. At the conclusion of the state’s case, the defendant moved for a judgment of acquittal. After the court denied that motion, the defendant’s counsel informed the court that he wanted to introduce into evidence a copy of the transcript of the victim’s testimony during the pretrial competency hearing and to introduce certain testimony from Sheila Prats, an attorney and the victim’s guardian ad litem.

As part of the defendant’s offer of proof, Prats testified that on the morning of the competency hearing, she, the defendant’s counsel, the prosecutor and the victim’s advocate met with the victim in the office of the victim advocate. Prats recalled that during the meeting, the victim asked everyone present to close their eyes. The victim then drew a picture. When asked about its significance, the victim answered that she depicted herself and Jeriy, and that Jerry had “the bone” in his hand.

The record reflects that during the competency hearing, the defendant’s counsel inquired of the victim as to the picture that she had drawn earlier that morning. The victim stated that the picture depicted herself and “Papito,” instead of Jerry. She also stated that it depicted Papito holding an ice cream cone, instead of Jerry holding “a bone.” Prats further recalled that after the competency hearing, she privately asked the victim if she had told lies about Jerry. Prats testified that the victim looked at her, pointed her finger at her and said, “Listen, I said what I said.”

The defendant sought the admission into evidence of the victim’s testimony and her statements on the day of the competency hearing, for the truth of the matters asserted therein, as evidence that the victim recanted her allegations against the defendant. The court asked both parties to file written memoranda on the issue. The defendant claimed that this evidence was properly admissible under three exceptions to the hearsay rule: (1) the exception for the former testimony of an unavailable witness, (2) the exception for prior inconsistent statements and (3) the residual or catch-all exception. The court thereafter ruled that the hearsay evidence was not admissible because it was not reliable.

“On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Jurgensen, 42 Conn. App. 751, 754, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996). Hearsay is an out-of-court statement that is offered to establish the truth of the matters contained therein; State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); and generally is inadmissible unless an exception to the general rule applies. State v. Wargo, 255 Conn. 113, 127, 763 A.2d 1 (2000).

To satisfy the requirements for the former testimony exception to the hearsay rule, a movant must satisfy a two part test. The witness must be unavailable, and the former testimony must be determined to be reliable. State v. Lapointe, 237 Conn. 694, 737, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). The reliability prong of the test requires that the issues testified about in the prior proceeding must be the same or substantially the same as the issues testified about in the present proceedings. State v. Parker, 161 Conn. 500, 503-504, 289 A.2d 894 (1971). Also, the party seeking the admission of the prior statement must demonstrate that the adverse party had the opportunity to conduct a full and complete examination of the declarant in regard to the statement. See State v. Atkins, 57 Conn. App. 248, 255, 748 A.2d 343, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000); see also State v. Malone, 40 Conn. App. 470, 476-79, 671 A.2d 1321 (discussing admission of prior inconsistent statements in light of criminal defendant’s right, under state, federal constitutions, to opportunity to cross-examine adverse witnesses), cert. denied, 237 Conn. 904, 674 A.2d 1332 (1996).

The court found, and the record reflects, that the state did not have the opportunity, during the competency hearing, to fully and completely examine the victim due to her unwillingness or inability to answer questions on the day of the competency evaluation. The court properly concluded that the victim’s former testimony did not bear an adequate indicia of reliability. Such evidence therefore did not qualify for admission under the prior testimony exception to the hearsay rule.

The defendant next argues that the court should have admitted the statements into evidence under the exception to the hearsay rule for prior inconsistent statements. The admissibility of a prior inconsistent statement depends on the satisfaction of the following four requirements: (1) the statement must be in writing, (2) the statement must be signed by the declarant, (3) the declarant must possess personal knowledge of the facts contained therein, and (4) the declarant must testify at trial and be subject to cross-examination. Conn. Code Evid. § 8-5 (1); State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The court properly refused to admit the statements under the exception to the hearsay rule for prior inconsistent statements. The victim did not actually testify at trial; she answered questions during a hearing wherein the court concluded that she was not a competent witness. She was not subject to cross-examination. As the court explained, during the competency hearing “the witness consistently expressed in a variety of ways her unwillingness to discuss the subject matter . . . her recharacterization of what she drew was consistent with her prior behavior here in this courthouse and merely reflective of her unwillingness or inability to discuss the subject matter of this case.” Obviously, the court, having witnessed the victim’s demeanor and testimony firsthand, was in a far superior position from which to evaluate the reliability of the victim’s statements than is this court, which can review only the printed record of the victim’s appearance before the trial court. Accordingly, we afford the court’s observations and opinion a great deal of deference.

The defendant also argues that the evidence should have been admitted under the residual exception to the hearsay rule. “The residual, or catch-all, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 805, 717 A.2d 1140 (1998).

Our review of the record supports the court’s assessment of the victim’s testimony and demeanor on the day of the competency hearing. As the court aptly noted, the victim, for whatever reason, was unwilling to participate in a dialogue with either of the attorneys who addressed her, did not remain focused on the questions asked of her and would not speak seriously in regard to the allegations she made against the defendant. Given those facts, it was logical for the court to conclude that the victim’s testimony and statements made on the day of the hearing were “not imbued with guarantees of reliability and trustworthiness sufficient to support [their] admission.” State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990). Accordingly, we conclude that the court did not abuse its broad discretion when it refused to admit the evidence under the residual exception to the hearsay rule.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1999) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       General Statutes § 54-86h provides: “No witness shall be automatically adjudged incompetent to testily because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

       Evaluating a witness’ ability to testify reliably is a matter peculiarly within the discretion of the trial court, and its rulings in that regard will be disturbed only in a clear case of abuse of that discretion or of some error in law. State v. Bronson, 258 Conn. 42, 54, 779 A.2d 95 (2001). We note that the defendant not only did not object to the court’s ruling to suppress the victim’s testimony but that he sought the hearing and outcome that he now challenges on appeal. The fact that he acquiesced in the court’s procedure to conduct the hearing and the fact that he sought its eventual outcome weakens the strength of his argument that the court’s ruling caused him harm.

       The defendant argues, and the record reflects, that he challenged the court’s decision regarding the victim’s competency, although not the timing of the court’s hearing, in his motion for a new trial. “As we have often stated, this court will refrain from reviewing claims on evidentiary rulings in situations in which counsel has failed to make an objection. . . . We are not persuaded that evidentiary claims, not made at trial, can be preserved for appeal by raising them in a motion for a new trial after a guilty verdict. The problems inherent in allowing counsel to wait until after an adverse verdict to raise such objections to evidence are too obvious to warrant discussion.” (Citations omitted.) State v. Paris, 63 Conn. App. 284, 294-95, 775 A.2d 994, cert. denied, 257 Conn. 909, 782 A.2d 135 (2001).

       Practice Book § 60-5 provides in relevant part: “The court 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. . . .”

       The victim refers to her biological father as “Papito.”

       The defendant argued that the victim’s statements on the day of the competency hearing were inconsistent with her statements supporting her allegation of sexual abuse related to the jury through the witnesses that testified at trial.


author: FOTI, J. FLYNN, J.,

text:
    STATE OF CONNECTICUT v. RONALD VUMBACK, JR.
    (AC 21133)
    Poti, Flynn and O’Connell, Js.

      Argued November 29, 2001
    officially released January 25, 2002

      Timothy P. Pothin, with whom, on the brief, was Hugh F. Keefe, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).

       January 25, 2002, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FOTI, J.

The defendant, Ronald Vumback, Jr., appeals from the judgment of conviction, rendered after a trial to the court, of sexual assault in the first degree in violation General Statutes § 53a-70 (a) (1) and (2), attempt to commit to sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1) and (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant challenges the trial court’s denial of his motion for a bill of particulars and the admission of certain evidence. We affirm the judgment of the trial court.

The court found the following facts. The victim lived with her divorced mother in Wallingford. The victim was six years old in 1990 when her mother met the defendant. In July, 1991, the defendant began living with the victim’s mother, the victim and her sister, and the victim’s grandmother. The victim’s mother and the defendant married in 1992 and had a child of their own in 1995.

From approximately June, 1990, through July, 1996, the defendant repeatedly sexually abused and attempted to sexually abuse the victim. The sexual abuse and attempted sexual abuse occurred in the family home. On July 11,1996, the victim’s mother took the victim, who was then twelve years old, to a physician’s office for treatment of a vaginal rash. Mary Peterson, a certified nurse practitioner, saw the victim and preliminarily diagnosed that the rash was likely a manifestation of the herpes virus. On July 17, 1996, the results of a vaginal culture taken from the victim on July 11, 1996, confirmed Peterson’s preliminary diagnosis.

While in the physician’s office on July 17, 1996, the victim’s mother informed Peterson that it was the defendant who had transmitted the herpes virus to the victim. The victim explained to Peterson that the defendant had been sexually abusing her for the last six years. In response, Peterson contacted the department of children and families. The victim now resides with her biological father.

The state filed five separate informations. Each information stated that the defendant was accused of offenses against the victim and that such offenses occurred on “divers dates between approximately June, 1990, through July, 1996 . . . .” They further stated that the offenses occurred at the family home and listed the address of that residence. Subsequent to the state’s filing its last information, the defendant filed a motion for a bill of particulars, which the court denied. The defendant was subsequently found guilty of the charges against him, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion when it denied his motions for a bill of particulars and for a new trial because the charges against him lacked sufficient particularity. The defendant claims that this denial violated his due process right to notice of the charges against him and that such denial prejudiced his defense. Specifically, the defendant asserts that the state’s failure to provide specific dates of the charged offenses violated his constitutional right to a fair trial. We are not persuaded.

“[T]he denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be overturned only upon a clear showing of prejudice to the defendant. ... A defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information.” (Citation omitted; internal quotation marks omitted.) State v. Kyles, 221 Conn. 643, 653, 607 A.2d 355 (1992).

The defendant asks this court to determine whether the trial court’s denial of his motion for a bill of particulars, in the absence of specific dates in the state’s information, denied him his due process right to notice of the nature of the charges against him. In support of this claim, the defendant makes various overlapping assertions, but essentially argues that the state failed to apprise him of the nature of the charges against him because the state failed to provide the defendant with the “dates, times and places” of the offenses charged. The defendant further argues that the inexactness of the state’s allegations precluded him from presenting an alibi defense.

Our Supreme Court has held numerous times that “[t]he state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8, of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise.” (Internal quotation marks omitted.) State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988).

In State v. Blasius, 211 Conn. 455, 559 A.2d 1116 (1989), the state charged the defendant with sexual abuse that it alleged occurred over approximately a six month period. Our Supreme Court held that the state did not breach its duty to inform the defendant of the nature of the charges against him because the state did not know to a “reasonable certainty that the [offenses were] committed within a narrower time frame than that provided in the [information] . . . .” (Internal quotation marks omitted.) Id., 461.

In State v. Saraceno, 15 Conn. App. 222, 234—35, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988), the state, “to the best of its ability,” identified in a substitute information the time and date of when the charged offenses of sexual assault occurred. We held that “[t]he general rule in Connecticut is that [t]ime is not an essential ingredient of the crime of [sexual assault].” (Internal quotation marks omitted.) Id., 236. Furthermore, we noted that there was no evidence that the state knew the precise dates of the offenses and deliberately withheld them from the defendant. Id. Had that been the case, “the defendant’s claim . . . would [have been] more convincing.” (Internal quotation marks omitted.) Id.

In State v. Spigarolo, 210 Conn. 359, 363, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989), the information alleged that the defendant committed the crimes of sexual assault and risk of injury to a child between October, 1984, and January 3, 1985. Our Supreme Court noted that “[i]t would have been virtually impossible to provide the many specific dates upon which the acts constituting the offenses occurred. . . . The reluctance of the court to force the state to furnish the exact dates of the many continuing acts of the defendant during the . . . period covered by the information and which were claimed, in toto, to have constituted [the charged offenses] was shown to be clearly reasonable by the testimony of the trial.” (Citation omitted; internal quotation marks omitted.) Id., 386-87.

In this case, the record shows that the state was merely aware of possible dates on which the offenses might have occurred, but that it chose not to plead them in its final information because those dates were unsubstantiated by the evidence. For example, the information filed on March 7, 2000, pinpointed a ten day window, from July 5 to 15, 1996, during which some of the offenses might have occurred. The final information, however, did not include those dates because, as the record demonstrates, the information was imprecise. Before ruling on the defendant’s motion for a bill of particulars, the court asked the assistant state’s attorney about his knowledge of specific dates. The assistant state’s attorney responded, “I cannot give the defendant anything I don’t have.” The record supports the assertion that the state did not have knowledge of the specific dates.

At trial, the victim’s testimony was inconsistent in various respects. The victim testified that she told Peterson that the defendant sexually assaulted her on July 3, 1996. Just moments later, she testified that she did not tell Peterson that she had been sexually assaulted on that date. The victim was otherwise unable to pinpoint any specific dates throughout the six year time period ranging from June, 1990, to July, 1996. It is reasonable to conclude, on the basis of the record, that the state had imprecise information regarding the exact timing, or a narrower time frame, of the sexual assaults and necessarily omitted such dates from its final information.

The record reveals that the state’s best information regarding the exact times of the charged offenses was imprecise. On the basis of the information available to it, the state reasonably and to the best of its ability set forth the time period of the charged offenses. The state did not breach its duty to disclose information to the defendant because it did not have such information. The court acted within its sound discretion when it denied the defendant’s motion for a bill of particulars. Because we reach this conclusion, we likewise conclude that the court’s ruling did not cause the defendant to suffer harm and that he is not entitled to a new trial.

In addition, the defendant asserts that he was impermissibly precluded from presenting an alibi defense by the state’s inability to provide exact dates of the offenses. Our Supreme Court has rejected this precise claim several times. See State v. Evans, 205 Conn. 528, 535, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988). “That a defendant may offer an alibi defense is a factor to be considered by the court in deciding whether to grant a motion [for a bill of particulars], but an alibi defense does not create a per se requirement that the state limit the times in the information more narrowly than the evidence available warrants.” (Internal quotation marks omitted.) State v. Spigarolo, supra, 210 Conn. 387. On the basis of Evans and our previous discussion in this opinion, we conclude that the defendant was not impermissibly precluded from presenting an alibi defense by the state’s inability to provide exact dates of the offenses.

II

The defendant next claims that the court improperly allowed into evidence detailed constancy of accusation testimony in violation of State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), and that such testimony caused him substantial prejudice. The defendant claims that the court improperly allowed constancy of accusation witnesses to testily as to the “specifics” of the victim’s complaint. We do not agree.

Because constancy of accusation testimony is evidentiary in nature, a trial court’s admission of such testimony will be reversed on appeal only where there has been an abuse of discretion and a showing by the defendant that such abuse has caused him substantial prejudice or injustice. See State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996).

The defendant has asked this court to determine whether the testimony of the state’s constancy of accusation witnesses exceeded the boundaries of admissibility established by our Supreme Court in Troupe. He alleges that the court allowed into evidence the testimony of Peterson, the certified nurse practioner who had examined the victim; Christina King, the arresting officer from the Wallingford police department; Shelly Glaser, a social worker for the department of children and families; and the victim’s grandmother concerning the substantive details of the offenses charged, rather than for any permissible corroborative purpose.

Constancy of accusation testimony is deeply rooted in Connecticut common law. See State v. Rolon, 257 Conn. 156, 187, 777 A.2d 604 (2001); State v. Troupe, supra, 237 Conn. 294-97. In Troupe, our Supreme Court limited the common-law rule, holding that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. In all other respects, our current rules remain in effect. Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes.” State v. Troupe, supra, 304.

Furthermore, “[i]n determining whether to permit [constancy of accusation] testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant. . . . [Constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and the identity of the person or persons to whom the victim has reported the crime . . . .” (Citation omitted; internal quotation marks omitted.) State v. Torres, 60 Conn. App. 562, 573, 761 A.2d 766 (2000), cert. denied, 255 Conn. 925, 767 A.2d 100 (2001). Our Supreme Court has reaffirmed Troupe’s limitation on the admissibility of constancy of accusation testimony on several occasions. See State v. Rolon, supra, 257 Conn. 187; State v. Sullivan, 244 Conn. 640, 645, 712 A.2d 919 (1998); see also State v. Troupe, supra, 237 Conn. 297-98, 303-304; State v. Kelley, 229 Conn. 557, 565, 643 A.2d 854 (1994).

This court, as well, has reviewed numerous trial court decisions in light of Troupe. In State v. Orhan, 52 Conn. App. 231, 243, 726 A.2d 629 (1999), we held that “[t]he controlling language from Troupe does not limit the identifying information that may be provided. It limits only the extent of the information provided. Our Supreme Court merely gave examples of how a sexual assault might be identified; it did not hold that that was the only testimony that could be provided.” See State v. Barile, 54 Conn. App. 866, 872-73, 738 A.2d 709 (1999). In State v. Lisevick, 65 Conn. App. 493, 508, 783 A.2d 73, cert. denied, 258 Conn. 933, 785 A.2d 230 (2001), we recognized that “[o]ur Supreme Court did not limit the exact terms a constancy of accusation witness could use in her testimony.” Most recently, in State v. Williams, 65 Conn. App. 449, 465, 783 A.2d 53, cert. denied, 258 Conn. 927, 783 A.2d 1032 (2001), we were confronted with a defendant charged with various counts of sexual abuse based on various actions taken by the defendant against the victim. We held that “[u]nder Troupe, the state is allowed to introduce any constancy of accusation testimony found necessary to associate the victim’s complaint with the pending charges.” Id. 464-65.

The defendant in this case was charged with various counts of sexual assault. The victim testified as to the details of those sexual assaults and as to the identities of those to whom she reported such incidents. The state, thereafter, corroborated the victim’s testimony with the testimony of four additional witnesses.

Peterson’s testimony corroborated the victim’s testimony that the defendant tried to put his penis inside of her vagina after she came out of the shower. Peterson testified, over the defendant’s objection, that the victim told her that “two weeks prior to the [victim’s] visit [to her] office . . . [the victim] was getting out of the shower and . . . her stepfather approached her and attempted to put his penis in her and tried to kiss her.” Peterson’s testimony, therefore, supported the victim’s direct testimony and was permissible to corroborate that testimony.

The court also heard Glaser’s testimony. Glaser testified, over the defendant’s objection, that the victim told her “she had been sexually molested in her vaginal area and her breasts by the defendant. [The victim] also explained oral sex performed by the defendant on her. [The victim] also explained that [the defendant] attempted to put his penis inside of her.” Like Peterson’s testimony, Glaser’s testimony supported the victim’s direct testimony and was permissible to corroborate the victim’s testimony on direct and cross-examination.

Additionally, King’s testimony further corroborated the victim’s direct testimony. King testified, over the defendant’s objection, that the victim complained that the defendant “had asked her to touch his penis . . . [and] had attempted to . . . perform oral sex on her and touch her breasts . . . [and that the defendant also] attemptfed] to put his penis between her legs.” King stated further that the victim told her that the sexual assaults usually “occurred when [the victim] was leaving the shower to go get her clothes.” King’s testimony, like that of Peterson and Glaser, was corroborative of the victim’s testimony on direct and cross-examination.

Finally, the court had the benefit of testimony from the victim’s grandmother. The grandmother testified, over the defendant’s objection, as to what she overheard the victim say to one of the victim’s friends while they were seated in the back of the grandmother’s car. She testified that she heard the victim say, “[The defendant] asked me to put his penis in [my] mouth . . . .”

The defendant argues that the court improperly admitted the testimony of the victim’s grandmother because it cannot be classified as constancy of accusation testimony. He argues that testimony can qualify as constancy of accusation testimony only if it was elicited from a person to whom the victim intentionally and directly reported an alleged sexual assault. We recognize that our case law discusses such testimony in that context; see State v. Rolon, supra, 257 Conn. 187; State v. Troupe, supra, 237 Conn. 304; but we do not, however, read Troupe as creating such a defined limitation. On the basis of our reading of Troupe and its progeny, we conclude that the distinction that the defendant attempts to draw in this regard is of no consequence. The import of such constancy of accusation testimony is that the victim made prior allegations of abuse, not the identity of the person or persons to whom such statements were made. We decline, therefore, under the present circumstances, to hold that the court improperly admitted the testimony of the victim’s grandmother and we hold that it falls within the purview of constancy of accusation testimony. The court properly admitted the grandmother’s testimony because the grandmother heard from the victim’s mouth her statement of abuse and, thus, her testimony was constancy of accusation testimony, which served to corroborate the victim’s direct testimony.

After a careful review of the evidence, we conclude that the court properly admitted all of the challenged constancy of accusation testimony because such testimony corroborated the victim’s accusations and associated the defendant with the pending charges. The defendant has shown neither that the court abused its discretion in admitting the constancy of accusation testimony nor that he has been substantially prejudiced by the admission of such testimony. The court, therefore, acted within its sound discretion and did not exceed the limitations set forth in Troupe.

Ill

The defendant next claims that the court improperly permitted the state to elicit expert testimony without requiring the state to make an adequate showing of reliability. The defendant argues that the court improperly concluded that the evidence satisfied the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), as adopted by our Supreme Court in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), and codified in the Connecticut Code of Evidence § 7-2, which requires a trial court to make a threshold inquiry into the admissibility of scientific evidence.

Underlying the defendant’s claim is the presumption that the testimony of John Leventhal, professor of pediatrics at the Yale Medical School and attending pediatric physician at Yale-New Haven Hospital, constitutes “scientific evidence.” Specifically, the defendant argues that the state offered, and the court improperly admitted, Leventhal’s testimony to explain that victims of sexual abuse often lack precision in their allegations and to show the common factors regarding a victim’s delay in reporting sexual abuse. We are not persuaded.

We first note our standard of review. “[T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 326, 746 A.2d 761 (2000).

The defendant has asked this court to determine whether the trial court properly concluded that Leventhal’s reasoning or methodology was scientifically valid. The defendant contends that Leventhal’s testimony was based on “nothing more than mere speculation” and, as such, fails to comport with the Daubert standard.

It is first necessary to determine whether such evidence is of the kind contemplated by Porter before subjecting it to the Daubert standard for admissibility. Stated differently, we must determine whether Leventhal’s challenged expert testimony qualifies as “ ‘scientific evidence.’ ” See State v. Reid, 254 Conn. 540, 546, 757 A.2d 482 (2000).

In Porter, our Supreme Court “explicitly adopted the Daubert test to determine the admissibility of scientific evidence . . . [but it] did not explicitly overrule Connecticut precedent regarding the evidence to which such a test should apply.” (Citation omitted.) Id.; see State v. Porter, supra, 241 Conn. 68; see also State v. Borrelli, 227 Conn. 153, 163, 629 A.2d 1105 (1993); State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877 (1987). Courts apply the Daubert standard only when such testimony involves “innovative scientific techniques . . . .” (Internal quotation marks omitted.) State v. Reid, supra, 254 Conn. 546. To determine if such a technique exists, we look to see whether the trier of fact is “in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge.” (Internal quotation marks omitted.) Id., 547, quoting State v. Hasan, supra, 491. Furthermore, we determine if the testimony is based on obscure scientific theories that have the “potential to mislead [the trier of fact] awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed.” (Internal quotation marks omitted.) State v. Hasan, supra, 490. If an expert’s testimony concerns a method, “the understanding of which is accessible to the [trier of fact] . . . and the value of the expertise lay in its assistance to the [trier of fact] in viewing and evaluating the evidence,” the testimony is not scientific even though an expert’s skill and training are based on science. (Citation omitted; internal quotation marks omitted.) State v. Reid, supra, 547; see State v. Hasan supra, 491.

On the basis of our review of relevant case law, Leventhai’s testimony did not rise to the level of scientific evidence. We recognize that no appellate court in this state has held that the technique for evaluating the behavior of sexually abused children is not “scientific evidence.” In Borrelli, however, our Supreme Court held that expert testimony concerning battered woman’s syndrome was not scientific because it was based on the expert’s “observations of a large number of battered women through the lens of his educational background and experience” and that the purpose of the testimony was “to provide an interpretation of the facts.” State v. Borrelli, 227 Conn. 165.

Further examination of Leventhal’s testimony reveals that it was very similar to the nonscientific expert testimony admitted in Borrelli. Like the expert in Borrelli, Leventhal did not personally examine the victim. Although he formed a personal opinion as to the defendant’s ultimate guilt and testified that there were signs that the victim had herpes before she was diagnosed, he did not offer any opinion as to whether the victim in fact had been sexually abused. Leventhal “did not apply any scientific instrument or test to specific evidence in the case” and he “did not apply any scientific test to a hypothetical question posed by the state.” Id., 164-65.

Leventhal merely explained, on the basis of his experience and education, how children subjected to sexual abuse might act under certain circumstances. Additionally, his method of studying and comparing the allegations of numerous child victims of sexual abuse based on his education and experience was accessible to the court, and the value of his testimony was rooted in its assistance to the court in viewing and evaluating the evidence.

We find, on the basis of the circumstances of this case, that the court was in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge, and that this evidence was not based on obscure scientific theories that were potentially misleading to the trier of fact. We conclude, therefore, that, like the testimony in Borrelli, Leventhal’s testimony was not scientific. As a result, the court was not required to determine whether his testimony satisfied the Daubert standard for admissibility. Because we conclude that Leventhal’s testimony was not scientific, the court acted within its sound discretion in admitting his testimony.

IV

The defendant’s final claim is that the court’s evidentiary errors deprived him of a fair trial. The defendant claims that the court’s admission of constancy of accusation testimony, coupled with Leventhal’s expert testimony, constituted reversible, cumulative evidentiary error. Specifically, he argues that the court allowed the state’s constancy of accusation witnesses to testify “mechanically” and “repeatedly” as to the details of the victim’s allegations, and that Leventhal’s testimony was speculative. We do not agree.

Because we have concluded that the trial court properly admitted the challenged constancy of accusation testimony, along with Leventhal’s expert testimony, no error exists.

The judgment is affirmed.

In this opinion O’CONNELL, J., concurred.

FLYNN, J.,

dissenting. I respectfully dissent and would reverse the conviction and order a new trial because I believe that a person accused of a crime is entitled under our state and federal constitutions to the date or approximate dates within which the accused is said to have committed a crime if that information is known to the child victim and thus available to the state. U.S. Const., amend. VI, amend. XIV; Conn. Const., art. I, § 8. While we recognized in State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988), that child victims may have difficulty recalling dates of sexual assaults, we did not relieve the prosecution of the duty of asking such a victim what she recalls. It is clear from this victim’s testimony that she was never asked to pinpoint the dates of her assaults until her cross-examination and when asked was able to pinpoint the month and year in which she said they began. The prejudice to this defendant was obvious. He was required to defend against an unparticularized information, which would permit a conviction for occurrences within a six year time period, when a narrower time frame than that provided in the information was available. See State v. Blasius, 211 Conn. 455, 461, 559 A.2d 1116 (1989); State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

If the state did not possess the information, as it claims, it is because it never asked the child victim for it. It is one thing to hold, as did our Supreme Court in State v. Stepney, supra, 191 Conn. 241-42, that a seven hour time frame as to when the murder victim died was reasonable where a more limited and precise time frame could not be determined by the state. It is quite another to burden a defendant with defending against a six year time period, as has happened here, when a more particular and limited time frame could have been alleged. If a six year time frame is not a burden of “sufficient magnitude” prejudicing the defendant’s ability to present a defense, it is unlikely that there will ever be one.

       At trial, however, the victim’s mother asserted that the defendant was innocent and that the victim had lied about the entire six year period during which she was repeatedly sexually abused.

       The court in the present case held that while the victim’s testimony “contained inconsistencies in various respects, [it found] her basic story of sexual abuse by the defendant to be credible.”

       Because we conclude that the state neither possessed reasonably precise information regarding more specific dates nor breached its duty to provide such dates, we likewise conclude that the defendant has not suffered any harm. Alternatively, were we to assume that the state had access to reasonably certain information or that the court abused its discretion when it denied the defendant’s motion for a bill of particulars, we nevertheless would conclude that the defendant has failed to show any prejudice that resulted from the court’s denial of his motion. “To establish prejudice, the defendant must show that the information was necessary to his defense, and not merely that the preparation of his defense was made more burdensome or difficult by the failure to provide the information. . . . [T]his court has on numerous occasions adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged.” (Citations omitted; internal quotation marks omitted.) State v. Kyles, supra, 221 Conn. 654.
      In the present case, before the trial began, the defendant had access to the same information concerning the alleged dates of the charged offenses as did the state. The defendant cannot now claim that he was unaware of the specific dates omitted from the state’s final information because he had access to such information through discovery. See State v. Madagoski, 59 Conn. App. 394, 404-405, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 100 (2001).
      Additionally, the defendant has not demonstrated that such information was necessary to his defense. The focus of his theory of defense was that the victim lied about the entire six year period in which she claimed that he had sexually abused her. We are not persuaded by the defendant’s assertion that information regarding specific dates within a two week period that occurred in the last month of a six year time frame was “necessary” to his defense. State v. Kyles, supra, 221 Conn. 654.

       Both the defendant and the state refer to King by her former last name, Hill.

       See State v. Troupe, supra, 237 Conn. 297; State v. Kinney, 44 Conn. 153 (1876); State v. De Wolf, 8 Conn. 93, 100 (1830).

       The victim testified on direct examination in relevant part as follows:
      “[Assistant State’s Attorney]: Can you tell us specifically what you told [Peterson] about [an incident of sexual abuse]?
      “[Victim]: I told her that [the defendant] had . . . thrown me down on the bed. ... I told her that I was getting out of the shower and I was— and [the defendant] threw me down on his bed and tried to have intercourse with me.
      * **
      “[Assistant State’s Attorney]: What do you mean that he tried to have intercourse with you?
      “[Victim]: He tried to put his penis inside of me.
      “[Assistant State’s Attorney]: Where inside of you?
      * * *
      “[Victim]: In my vagina.
      * * *
      “[Assistant State’s Attorney]: Did he touch you in any other way on that occasion?
      “[Victim]: He tried to touch my breasts.
      * * *
      “[Assistant State’s Attorney]: And did he touch your—did he touch his penis to any part of your body?
      “[Victim]: Yes.
      “[Assistant State’s Attorney]: What part of your body?
      “[Victim]: My vagina.”
      The victim further testified as to the kind of sexual abuse she suffered over the six year period in relevant part as follows:
      “[Assistant State’s Attorney]: In what manner did the defendant touch you?
      “[Victim]: In a sexual way?
      “[Assistant State’s Attorney]: Yes.
      “[Victim]: Yes. He would try to touch my breasts and try to make me . . . [p]ut my mouth on his penis, and try to have intercourse with me.
      “[Assistant State’s Attorney]: Using what?
      “[Victim]: Has penis.
      “[Assistant State’s Attorney]: Did he ever have intercourse with you using his penis?
      “[Victim]: No.

        “[Assistant State’s Attorney]: Did he ever put his penis in your mouth?
      “[Victim]: No.
      “[Assistant, State’s Attorney]: Did he try?
      “[Victim]: Yes.
      “[Assistant State’s Attorney]: Did there ever come a time when he put anything inside of your vagina?
      “[Victim]: Yes.
      “[Assistant State’s Attorney]: How often between 1990 and 1996 did these incidents happen?
      “[Victim]: About three or four times a week.
      “[Assistant State’s Attorney]: What did he put inside your vagina?
      “[Victim]: His fingers.
      * ** :|:
      “[Assistant State’s Attorney]: What would you be doing when the incidents happened, or just before the incidents happened?
      “[Victim]: Most of the time I was getting out of the shower.”
      On cross-examination, defense counsel elicited information about acts of cunnilingus:
      “[Defense Counsel]: Did [the defendant] ever put his mouth on your vagina?
      “[Victim]: He tried to, yes.
      “[Defense Counsel]: I didn’t ask you if he tried to. I asked you if he did.
      “[Victim]: Yes.
      “[Defense Counsel]: He did. Is that your answer?
      “[Victim]: Yes.”

       Prior to the grandmother’s testimony, the victim testified as to the facts of the sexual assaults and attempted sexual assaults, and identified her friend as the person to whom she reported the incident.

       Subsequent to Porter, the United States Supreme Court extended a trial court’s “gatekeeping” function under the Daubert standard to testimony involving “ ‘technical’ ” or “ ‘other specialized’ knowledge” of the witness. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). We note that the Connecticut Code of Evidence “takes no position” on the United States Supreme Court’s extension of the Daubert standard. See Conn. Code Evid. § 7-2, commentary. Although we do not apply such an extension in this case, we note that the trial court held that Leventhal’s testimony satisfied the threshold inquiry of Daubert. On the basis of the court’s own experience and the witness’ testimony, the court was satisfied with the scientific validity of Leventhal’s position and found his testimony to be helpful. See State v. Porter, supra, 241 Conn. 89-90. On the basis of our decision in part III of this opinion, we do not reach the question of whether the trial court properly made such a conclusion.

       Prior to Porter, Connecticut used the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), forthe admissibility of scientific evidence. Subsequent to Porter, the Frye standard was replaced with the Daubert standard.

       Additionally, although State v. Spigarolo, supra, 210 Conn. 359, is not conclusive on the issue of what constitutes scientific evidence, we note that where the defendant has sought to impeach the testimony of the minor victim based on inconsistencies, partial disclosures, or recantations relating to the alleged incidents, the state may present expert opinion evidence that such behavior by minor sexual abuse victims is common. See id., 380. Thus, satisfaction of the Daubert standard for admissibility is not necessary under such circumstance as long as the testimony “[meets] the prerequisite of being ‘helpful’ to the [court].” State v. Borrelli, supra, 227 Conn. 164.
      In the present case, defense counsel sought to impeach the victim based on various inconsistencies. Because our determination of this issue hinges on whether Leventhal’s testimony was scientific, Spigarolo is not fully dis-positive of the issue.

       The Stepney court held that even if the state could have narrowed the seven hour time frame during which the Stepney victim’s murder occurred, the burden of defending against an information alleging that the murder occurred within a seven hour time frame was not of “sufficient magnitude to prejudice his ability to present an adequate defense.” State v. Stepney, supra, 191 Conn. 242.