author: BISHOP, J.

text:
    GERALDINE D. LYON v. VIRGINIA JONES ET AL.
    (AC 27510)
    Bishop, McLachlan and Pellegrino, Js.
    Argued October 5
    officially released November 27, 2007

      Norman A. Pattis, with whom, on the brief, was Kimberly Coleman, for the appellant (plaintiff).

      Joseph A. Jordano, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Margaret Q. Chappie, assistant attorney general, for the appellees (defendants).
   Opinion

BISHOP, J.

In this case, we address the extent to which the legislature waived the state’s sovereign immunity to discrimination claims against the state. The plaintiff, Geraldine D. Lyon, appeals from the trial court’s dismissal, on the basis of sovereign immunity, of her claims against the defendants, the office of the attorney general (attorney general’s office), and certain of its employees, Virginia Jones and Edward Reynolds. We affirm the judgment of the trial court.

At the time this case began, the plaintiff was a paralegal specialist 1 at the attorney general’s office and had worked in that capacity since 1987. On April 18, 2000, she filed a complaint with the commission on human rights and opportunities (commission) alleging har assment and a hostile work environment, and that she was denied a promotion to paralegal specialist 2 on the discriminatory bases of her age, sex and disability. The commission found that the plaintiff failed to introduce sufficient evidence to show discrimination and issued a release of jurisdiction.

The plaintiff then filed suit in the United States District Court for the District of Connecticut, claiming that the defendants discriminated against her on the bases of age, sex and disability in violation of 42 U.S.C. § 12111 et seq. (Americans with Disabilities Act of 1990), 29 U.S.C. § 621 et seq. (Age Discrimination in Employment Act of 1967), 42 U.S.C. § 2000e-2 (Title VII), and 42 U.S.C. § 1983, as well as General Statutes §§ 46a-58 (a), 46a-60 (a) (1) and 46a-70(a) of the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. She sought compensatory and punitive damages, attorney’s fees and costs, a temporary and permanent injunction and other fair and equitable relief. The District Court dismissed all of her state law based claims and the majority of her federal claims, leaving only her claims under Title VII and 42 U.S.C. § 1983, which alleged a hostile work environment and failure to promote.

Upon the dismissal by the District Court of her claims based on state law, the plaintiff filed a complaint in the judicial district of Hartford. The plaintiffs amended complaint consisted of four counts alleging age, sex and disability discrimination: one count against the attorney general’s office under § 46a-60 (a) (1) and one count against each of the three defendants under § 46a-70 (a).

While the state claims were pending, the District Court granted the defendants’ motion for summary judgment on the remaining federal claims. In its decision, the District Court found that the Title VII failure to promote claim was time barred, that there were no material issues of fact in support of the plaintiffs claim that she was treated differently from other similarly situated individuals, that her treatment was insufficiently severe to create a hostile environment either under Title VII or § 1983, and that there was no discriminatory intent. Lyon v. Jones, 260 F. Sup. 2d 507 (D. Conn. 2003), aff'd, 91 Fed. Appx. 196 (2d Cir. 2004). Subsequently, the defendants filed a motion for summary judgment with the trial court, claiming, inter alia, that the doctrines of sovereign immunity and collateral estoppel bar the plaintiff from recovery in state court.

On February 28, 2006, the court issued a lengthy memorandum of decision dismissing the § 46a-60 (a) (l) claim against the attorney general’s office for lack of subject matter jurisdiction because the plaintiff failed to obtain the requisite authorization from the claims commissioner before bringing her § 46a-60 (a) (1) claim against the state. The court also found that although General Statutes § 46a-99 provides plaintiffs with a private right of action for injunctive relief for discrimination by the state in violation of § 46a-70 (a), a claim for compensatory and punitive damages and costs cannot be brought under § 46a-70 (a) without permission to sue from the claims commissioner or the General Assembly. This appeal ensued.

I

First, we consider whether the court properly dismissed the plaintiffs § 46a-60 (a) (1) claim against the attorney general’s office for lack of subject matter jurisdiction. The court dismissed this claim suasponte under the doctrine of sovereign immunity, concluding that General Statutes §§ 4-141 through 4-165 require the plaintiff to obtain authorization from the claims commissioner or the General Assembly prior to bringing a claim against the state under § 46a-60 (a) (1). After reviewing the applicable statutes, we agree with the court.

We begin our analysis with the appropriate standard of review as set forth by our Supreme Court. “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ... A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003).

“It is a well-established rule of the common law that a state cannot be sued without its consent. ... A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. . . . The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property.” (Citations omitted; internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 78-79, 818 A.2d 758 (2003).

“We have held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity ... or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.” (Citation omitted.) Miller v. Egan, supra, 265 Conn. 314.

The plaintiff sued the attorney general’s office, alleging discriminatory employment practices under § 46a-60 (a) (1), which broadly prohibits employment discrimination by all employers and their agents in the state of Connecticut. See footnote 4. The plaintiff contends that she properly initiated her complaint with the commission. She further argues that upon release of jurisdiction by the commission, General Statutes § 46a-100 waives the state’s immunity, permitting her to bring her § 46a-60 (a) (1) claim directly in Superior Court. Our examination of the relevant statutes, however, reveals no express or implied waiver of the state’s immunity for claims under § 46a-60 (a) (1).

Chapter 53 of the General Statutes, §§ 4-141 through 4-165, titled “Claims Against the State,” describes the responsibilities and powers of the claims commissioner. From this legislation, it is apparent that the General Assembly intended to make the claims commissioner the gatekeeper through which lawsuits against the state must pass. “[Chapter 53] expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions.” (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 317-18.

Furthermore, chapter 53 evidences the legislature’s clear intent to provide the claims commissioner with the authority to decide whether to waive sovereign immunity for claims against the attorney general’s office. General Statutes § 4-141 provides in relevant part that “ ‘state agency’ includes every department, division, board, office, commission, arm, agency and institution of the state government, whatever its title or function . . . .”

Nevertheless, the plaintiff argues that § 46a-100 waives the state’s immunity. General Statutes § 46a-100 provides: “Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford.” The plaintiff argues that the phrase “any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford” provides a waiver of the state’s immunity to suit. We are not persuaded. In light of the requirement that our state’s sovereign immunity not be diminished without clear intent, we find that the more reasoned interpretation of this clause regards venue and provides for the Hartford judicial district to be the proper venue for a claim against a state actor. Thus, we believe that the provisions of § 46a-100 do not constitute a waiver of the state’s immunity.

Because there is no statute that carves out a specific waiver of sovereign immunity for § 46a-60 (a) (1) claims, the plaintiff was required to apply to the claims commissioner for permission to sue the attorney general’s office. “When a plaintiff brings an action for money damages against the state, he must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, §§ 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity.” Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003). We therefore affirm the court’s dismissal of the plaintiffs § 46a-60 (a) (1) claim.

II

We next consider whether the court properly dismissed the plaintiffs claims under § 46a-70 (a) on the ground that § 46a-99 does not waive sovereign immunity for money damages. We reiterate that this court’s standard of review for a question of subject matter jurisdiction is plenary. Miller v. Egan, supra, 265 Conn. 313.

The question of whether § 46a-99 waives sovereign immunity in an action for money damages is an issue of first impression for this court. It is well settled that “[t]he state’s sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication.” (Internal quotation marks omitted.) Rivers v. New Britain, 99 Conn. App. 492, 497, 913 A.2d 1146, cert. granted on other grounds, 281 Conn. 929, 918 A.2d 278 (2007). When interpreting a statute, “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z.

General Statutes § 46a-99 provides: “Any person claiming to be aggrieved by a violation of any provision of sections 46a-70 to 46a-78, inclusive, or sections 46a-81h to 46a-81o, inclusive, may petition the Superior Court for appropriate relief and said court shall have the power to grant such relief, by injunction or otherwise, as it deems just and suitable.” The plain meaning of § 46a-99 provides a right of action for individuals with discrimination claims against the state (§§ 46a-70 to 46a-78 or 46a-81h to 46a-81o) who are seeking injunctive relief. The indefinite language, “by injunction or otherwise,” fails, however, to convey whether the legislature intended to waive the state’s sovereign immunity from liability to pay money damages.

“[Bjecause the state has permitted itself to be sued in certain circumstances, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity. . . . Further, this court has stated that the state’s sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed . . . .” (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, supra, 263 Conn. 82. An examination of § 46a-99, in relation to other statutes that expressly waive the state’s immunity to claims for money damages, reveals that the General Assembly is quite capable of waiving the state’s immunity when it intends to do so. For example, a person injured by a state employee driving a state owned and insured vehicle “shall have a right of action against the state to recover damages for such injury.” General Statutes § 52-556.

Particularly instructive is General Statutes § 46a-98a, which provides a cause of action in the Superior Court for claims of discriminatory housing practices or sexual discrimination in housing. Section 46a-98a is located within the same chapter and part of the General Statutes as § 46a-99 and includes nearly identical language: “The court shall have the power to grant relief, by injunction or otherwise, as it deems just and suitable. . . .” General Statutes § 46a-98a. Unlike § 46a-99, § 46a-98a includes the express statement that the court may provide relief commensurate with that provided in the procedures detailed under §§ 46a-86 and46a-89. Both § 46a-86 and § 46a-89 permit a claim for an award of money damages. If the legislature had intended to permit recovery of money damages in § 46a-99, it clearly knew how to do so.

Accordingly, we hold that the court properly concluded that § 46a-99 does not constitute a waiver of the state’s sovereign immunity with respect to claims for money damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court rendered summary judgment in favor of the defendants as to the plaintiffs requests for injunctive relief under General Statutes § 46a-70 (a), concluding that the plaintiff was estopped from relitigating issues previously decided in federal court. See Lyon v. Jones, 260 F. Sup. 2d 507 (D. Conn. 2003), aff'd, 91 Fed. Appx. 196 (2d Cir. 2004). The plaintiff failed to challenge the court’s findings of collateral estoppel in her principal brief. “[Ojur practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error. ... In accordance with this practice, we have consistently held that [tjhis court will not review claims that are raised for the first time in a reply brief.” (Citation omitted; internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 60-61, 929 A.2d 729 (2007).
      Also, the plaintiff raises no issue concerning the grant of summary judgment in regard to the claim under General Statutes § 46a-70 (a) against Jones.

       Upon completion of a merit assessment review, the executive director of the commission may issue a release, pursuant to General Statutes § 46a-83a, which permits the complainant to bring an action in Superior Court within ninety days.

       Alternatively, the defendants asserted that the failure to promote claim under § 46a-60 (a) (1) was time barred and that the claims under § 46a-70 (a) were pleaded inadequately.

       General Statutes § 46a-60 (a) (1) provides in relevant part: “It shall be a discriminatory practice in violation of this section ... [f] or an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.”

       General Statutes § 46a-70 (a) provides: “State officials and supervisory personnel shall recruit, appoint, assign, train, evaluate and promote state personnel on the basis of merit and qualifications, without regard for race, color, religious creed, sex, marital status, age, national origin, ancestry, mental retardation, mental disability, learning disability or physical disability, including but not limited to, blindness, unless it is shown by such state officials or supervisory personnel that such disability prevents performance of the work involved.”

       In Prigge v. Dept. of Children & Families, Superior Court, judicial district of Waterbury, Docket No. X06-CV-02-181467 (March 26, 2004) (Alander, J.) (36 Conn. L. Rptr. 829), the Superior Court concluded that § 46a-99 does not waive the state’s immunity in respect to money damages. The court’s decision in that case was particularly instructive to this court’s analysis.

       General Statutes § 46a-8G (d) provides: “In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-66 or 46a-81f, the presiding officer shall issue and file with the commission and cause to be served on the respondent an order requiring 1he respondent to pay the complainant the damages resulting from the discriminatory practice.”
      General Statutes § 46a-89 (b) (2) provides in relevant part: “[A]n award of damages based on the remedies available under subsection (c) of section 46a-86 ... an award of punitive damages payable to the complainant, not to exceed fifty thousand dollars ... a civil penalty payable to the state against the respondent to vindicate the public interest ... or two or more of such remedies.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    MITCHELL HENDERSON v. COMMISSIONER OF CORRECTION
    (AC 26954)
    DiPentima, McLachlan and Hennessy, Js.

      Argued September 10
    officially released November 27, 2007

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, James E. Thomas, former state’s attorney, and Victor Carlucci, Jr., former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Mitchell Henderson, appeals from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that (1) the habeas court improperly denied his petition for certification to appeal, (2) the factual findings of the habeas court were erroneous, (3) the trial court’s waiver of counsel canvass of the petitioner was defective and (4) prior habeas and appellate counsel were ineffective for their failure to raise the claim regarding the defective canvass. We affirm the judgment of the habeas court.

The following facts, set forth by this court in State v. Henderson, 37 Conn. App. 733, 736-39, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995), are relevant to the resolution of the issue before us. “On the afternoon of January 17,1992, the victim, Victorene Hazel, and her companion, Codella Webley, crossed Baltimore Street in Hartford after leaving the Shawmut Bank. When the two women reached the comer of Baltimore Street and Homestead Avenue, they were approached by the [petitioner] who demanded that Hazel hand over her purse to him. The [petitioner] was standing in front of Hazel, at a distance of one and one-half to two feet. Her view of the [petitioner] was clear and unobstmcted. After Hazel refused to turn over her purse, the [petitioner] pulled out a knife, grabbed her by the shirt and hit her. When he grabbed Hazel, who had a heart condition, she experienced pain in her chest. The [petitioner] threatened to kill her if she did not give him the purse. When he swung the knife, she freed herself from his grasp and ran in the direction of the Shawmut Bank with the [petitioner] chasing her. Hazel’s purse fell off her shoulder as she was mnning and the [petitioner] picked it up. Hazel entered the bank screaming that she had been robbed and needed help. When Webley reached the bank, she noticed that Hazel was breathing heavily, holding her chest and saying, ‘My heart, my heart.’

“At approximately the same time, Howard Fraser and his cousin, Earl Forrest, were driving on Homestead Avenue when they stopped to look up a telephone number. As Forrest was looking for the number, Fraser noticed from a distance of five to seven yards the victim struggling with her assailant. As he and Forrest were about to drive off, he saw the [petitioner] grab the purse from Hazel. When the victim began to scream, Fraser realized that she was being robbed. Fraser watched the [petitioner] run up Baltimore Street and enter onto private residential property. Fraser realized that the [petitioner] would have to exit on Kent Street, the street parallel to Baltimore Street. Fraser and Forrest drove to Kent Street in anticipation of seeing the [petitioner]. They saw him running down Kent Street toward Albany Avenue with a purse under one arm. Fraser opened the passenger door as they drove up next to the [petitioner]. Forrest told the [petitioner] that they were the police and ordered him not to move. Fraser then jumped out the passenger door and grabbed the [petitioner]. When the [petitioner] resisted, Forrest joined Fraser in an attempt to subdue the [petitioner]. Both Fraser and Forrest repeatedly called for help as they were struggling with the [petitioner]. The [petitioner] struck Fraser during the struggle, and Fraser suffered a wrist injury from striking the [petitioner],

“Officer Douglas Frederick of the Hartford police department arrived approximately five minutes after the struggle had begun and saw the [petitioner] holding the victim’s purse. While the [petitioner] was struggling with Forrest and Fraser, the victim’s purse fell and its contents scattered onto the street. Frederick’s attempt to handcuff the [petitioner] was unsuccessful because he continued to resist fiercely. Frederick radioed for assistance and, finally, with the help of other police officers, managed to get the [petitioner] into the police cruiser. Frederick then informed the [petitioner] that he was under arrest. . . .

“After Hazel and Webley left the bank, a man in a truck informed them that the robber had been apprehended on Kent Street. The man drove both women to Kent Street. After getting out of the truck, Hazel and Webley saw the [petitioner] sitting in the police cruiser. Frederick had put the victim’s purse on top of the cruiser for safekeeping while he was trying to restrain the [petitioner]. Frederick noticed two women running down Kent Street toward his cruiser and he heard Hazel yelling, ‘That’s him, he robbed me.’ Frederick asked both Hazel and Webley to make sure that the man in the cruiser was indeed the robber. Without any difficulty, both women positively identified the [petitioner] as the robber. The weather was clear and there was adequate sunlight to enable the women to make the identification. Although Frederick was able to recover the purse, his search of the [petitioner] did not produce a knife.

“After telling the [petitioner] that he was under arrest and placing him in the police cruiser, Frederick transported him from the scene. The [petitioner] yelled obscenities and threatened to kill the officer. As Frederick drove down Kent Street toward Albany Avenue, the [petitioner] became increasingly violent. The [petitioner] kicked out the rear window of the cruiser and attempted to climb out while the cruiser was in motion. The [petitioner] was able to get his upper torso out of the rear window. Frederick stopped the car and radioed for assistance and an ambulance. Frederick then pulled the [petitioner] out of the cruiser and sat on him until help arrived. When the ambulance arrived, the [petitioner] was put in a body bag and transported to St. Francis Hospital. The [petitioner] was treated for several cuts he had sustained while attempting to climb out of the rear window of the cruiser.

“The [petitioner] was convicted by a jury of four counts including robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). After the verdict, the [petitioner] moved for a judgment of acquittal and a new trial, which the trial court denied.” Id.

After the resolution of the petitioner’s direct appeal, he filed his first petition for a writ of habeas corpus on May 5, 1997, alleging ineffective assistance of counsel due to appointed trial counsel’s alleged failure to properly prepare his case before trial. The habeas court, Hon. Thomas H. Corrigan, judge trial referee, denied the petition and denied the petition for certification to appeal in August, 1997. The petitioner filed the present habeas petition on September 23,1997. The last amendment to the petition was filed December 15, 1998.

On November 15, 1999, the petitioner filed a writ of error coram nobis, claiming that the waiver of counsel canvass was ineffective. On March 1, 2000, the trial court held a hearing and denied the writ, finding that it was filed untimely and that habeas corpus was an adequate remedy at law for resolution of his claims against counsel. In April, 2000, the petitioner appealed from the judgment of dismissal, which appeal was transferred to the Supreme Court docket, and the trial court’s judgment was upheld in State v. Henderson, 259 Conn. 1, 787 A.2d 514 (2002).

In January, 2001, the habeas court denied the habeas petition at issue in this appeal after hearing three days of testimony. The petitioner filed an appeal through counsel on March 27, 2001. On December 10, 2001, this court dismissed the petitioner’s appeal for failure to file a court reporter acknowledgement form regarding completion of the transcript. The petitioner filed a petition for certification to appeal from the dismissal of his case to the Supreme Court. The Supreme Court denied his petition for certification on March 14, 2002. See Henderson v. Commissioner of Correction, 260 Conn. 904, 793 A.2d 1089 (2002). On August 1, 2005, the petitioner and the respondent, the commissioner of correction, entered into a stipulated habeas judgment seeking the opening of AC 21756 in order to argue the merits of the appeal. This led to the restoration of the petitioner’s right to appeal on August 19, 2005. We will address the petitioner’s claims in turn.

I

The petitioner claims that the habeas court abused its discretion in denying certification to appeal on March 14, 2002. The respondent argues that this claim cannot be addressed because it is contrary to the record. A review of the record reveals that the denial of certification issued on March 14, 2002, was not a ruling of the habeas court; it in fact was a denial for certification to appeal to the Supreme Court from the dismissal of the Appellate Court case. Id. Because the habeas court did in fact grant certification to appeal, this issue need not be addressed.

II

The petitioner next claims that the habeas court made erroneous factual findings that warrant reversal and a finding that appellate counsel was ineffective. Specifically, he claims that there were inconsistencies in the factual findings regarding the canvass, that the habeas court should not have allowed a state’s attorney to be qualified as an expert witness and that the habeas court improperly sustained objections to questions about State v. Wolff, 237 Conn. 633, 678 A.2d 1369 (1996), when the court in its memorandum of decision relied on that case to make legal conclusions. Further, he argues that the combined effect of these claimed errors violated his constitutional due process rights. The respondent makes no specific argument as to the whole of this allegation and argues only that the petitioner’s claims about the expert witness and about Wolff claims are unreviewable. We disagree with the petitioner. We shall examine each specifically claimed error in turn.

A

On appeal, “[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a [petitioner] received . . . was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995).

The habeas court’s factual findings were not erroneous and were not inconsistent. The habeas court found that “the trial court in [this] matter complied with the Wolff standards. In particular, the trial court made it clear to the petitioner that he had a choice between proceeding pro se or with assigned counsel . . . .’’The habeas court goes on to state that “[t]he trial court did not inform the petitioner that he was free to ask for substitute counsel, which request could be granted for cause shown; nor does Practice Book § 44-3 require the trial court so to inform the petitioner." (Emphasis added.) These are not inconsistent findings; the habeas court found that the trial court informed the petitioner of his choice between self-representation and assigned counsel and did not add warnings that were not legally required. We conclude that this finding was not erroneous.

B

The petitioner next claims that the habeas court improperly qualified a state’s attorney as an expert and admitted opinion testimony. “It is well settled that the trial court’s evidentiary rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.” (Citation omitted.) Pestey v. Cushman, 259 Conn. 345, 368-69, 788 A.2d 496 (2002). “[Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Wasko v. Manella, 87 Conn. App. 390, 394, 865 A.2d 1223 (2005).

The assistant state’s attorney who prosecuted the petitioner’s case at the trial level was qualified as an expert in criminal litigation at the habeas trial. The petitioner’s objection to having a biased witness was overruled by the court. The court properly allowed the testimony of the assistant state’s attorney about the petitioner’s apparent knowledge of the court system while properly sustaining objections to questions of law to be determined by the court, specifically, the opinion of the assistant state’s attorney on whether the petitioner’s waiver of counsel was knowing and voluntary. The habeas court did not abuse its discretion by allowing this expert testimony and correctly applied the law.

C

The petitioner next challenges the legal findings of the habeas court. “The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Wilson v. Office of Adult Probation, 67 Conn. App. 142, 145, 786 A.2d 1120 (2001).

The petitioner specifically challenges the court’s use of State v. Wolff supra, 237 Conn. 633, in its memorandum of decision, after it sustained an objection to questioning a witness using a hypothetical scenario about what the witness would do today with this case because Wolff was decided after the petitioner’s trial. The court, in its memorandum of decision, concluded that the Wolff standards were adhered to in this case but went further to make specific findings that the canvass as to the petitioner’s waiver of counsel was not improper because the trial court had made it clear that the petitioner had the choice between continuing with assigned counsel or proceeding pro se. Moreover, where possible, courts should, as a matter of common-law adjudication, “assure that the body of the law—both common and statutory—remains coherent and consistent.” State v. Guess, 244 Conn. 761, 780, 715 A.2d 643 (1998); Fahy v. Fahy, 227 Conn. 505, 513-14, 630 A.2d 1328 (1993). The habeas court made findings consistent with the current law but also made specific findings that were not inconsistent with the law at the time of the petitioner’s trial.

D

The petitioner also claims that the combined effect of these errors should be considered and should justify granting a new trial. Our Supreme Court rejected a similar argument in State v. Robinson, 227 Conn. 711, 746-47, 631 A.2d 288 (1993), and, therefore, we reject the petitioner’s claim in the present case. As explained in Robinson, “[w]e decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” (Internal quotation marks omitted.) Id., 747. Thus, because we have found no factual, evidentiary or legal errors, the combined claims cannot give rise to a constitutional violation.

III

The petitioner next claims that his sentence is illegal because the waiver of counsel canvass was defective and deprived him of his constitutional rights. Specifically, the petitioner attacks the canvass because there was no discussion that the individual sentences could run consecutively or that the persistent felony offender charges could add additional years to the minimum sentences and because there was no inquiry into the conflict between him and his assigned counsel. The respondent claims that the petitioner has procedurally defaulted on his claim of a defective canvass and that the specific claims as to the canvass were not preserved and are therefore unreviewable. We agree with the respondent.

The following additional facts are important to the resolution of the petitioner’s claim. The petitioner filed his petition for a writ of habeas corpus on May 5, 1997. He amended the petition through counsel for the first time on November 20, 1998, and a second time on December 15, 1998. The return was filed December 31, 1998, and the respondent alleged the special defense of procedural default pursuant to Practice Book § 23-30. The petitioner failed to file a reply to the special defense in accordance with Practice Book § 23-31 and never made specific claims of cause and prejudice in order to overcome the default.

As the United States Supreme Court has noted in specifically adopting the cause and prejudice standard to analyze procedural defaults on direct appeal: “A State’s procedural rules serve vital purposes at trial, on appeal, and on state collateral attack. . . . [Such rules] [afford] . . . the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant’s claim and to retry the defendant effectively if he prevails in his appeal. . . . This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.” (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124, 134, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 490-91, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986).

“[T]his court strongly disfavorfs] collateral attacks upon judgments because such belated litigation undermines the important principle of finality .... Therefore, we will review the claims only where the petitioner demonstrates good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .

“Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . Because [c]ause and prejudice must be established conjunctively, we may dispose of this claim if the petitioner fails to meet either prong.” (Citations omitted; internal quotation marks omitted.) Guadalupes. Commissioner of Correction, 68 Conn. App. 376, 385, 791 A.2d 640, cert. denied, 260 Conn. 913, 796 A.2d 557 (2002).

Our review of the record before the habeas court reveals that the petitioner did not raise his constitutional claims on direct appeal or in his first petition for a writ of habeas corpus. Those claims, therefore, would be subject to the defense of procedural default in the habeas proceedings. See Fernandez v. Commissioner of Correction, 96 Conn. App. 251, 266, 900 A.2d 54, cert. denied, 280 Conn. 908, 907 A.2d 89 (2006). The habeas court did not address the issue of procedural default in its memorandum of decision. “Where no evidence [of cause and prejudice] has been provided, this court can independently conclude that the petitioner has failed to meet the cause and prejudice test.” Daniels v. Warden, 28 Conn. App. 64, 72, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992).

From a review of the record, the petitioner has not overcome his burden to show cause and prejudice in order to overcome a claim of procedural default. For this reason, we will not reach the merits of the petitioner’s defective canvass claim. Further, because the petitioner did not raise in the habeas court his specific claims regarding the canvass, they are unreviewable.

IV

We finally turn to the petitioner’s claim of ineffective assistance of counsel. The petitioner asserts that the habeas court improperly found that prior habeas and appellate counsel had not rendered ineffective legal assistance during their representation of the petitioner. Specifically, the petitioner argues that his counsel were ineffective for failing to raise the claim of a defective canvass in the petitioner’s prior postconviction actions. The respondent asserts that the petitioner has failed to meet his burden in order to establish that his appellate and habeas counsel were ineffective. We agree with the respondent.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Hill v. Commissioner of Correction, 103 Conn. App. 641, 645-46, 932 A.2d 413, cert. denied, 284 Conn. 925, 933 A.2d 726 (2007).

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Braham v. Commissioner of Correction, 72 Conn. App. 1, 5-6, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002).

At the habeas trial, prior counsel was asked about whether they considered the canvass as an appellate issue. One of the petitioner’s appellate counsel testified that the matter of the canvass was one of the issues that he had considered in preparing the petitioner’s appeal but that he did not consider it of great merit and that there were better issues to raise on appeal. Prior habeas counsel testified that he began work on the case after the petitioner had filed his first habeas petition and, in writing the amended petition, focused mainly on the petitioner’s claims and did not recall any egregious mistakes or errors regarding the canvass. The petitioner later offered the testimony of attorney Lori Welch-Rubin as an expert in appellate matters. She testified that in failing to raise the issue of the canvass on appeal, appellate counsel’s actions fell below a reasonable standard.

The habeas court found that the petitioner “failed to establish, by a fair preponderance of the evidence, that appellate counsel’s failure to raise the issue of [a] deficient [canvass pursuant to Practice Book § 44-3] on appeal constituted ineffective assistance of counsel. Rather, such failure was a reasonable exercise of counsel’s judgment in determining which issues offered the best prospect of success on appeal. Similarly, the petitioner has failed to establish that habeas counsel’s . . . failure to raise said issue constituted ineffective assistance of counsel.”

As we stated in Vivo v. Commissioner of Correction, 90 Conn. App. 167, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005), “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible . . . . ” (Citation omitted; internal quotation marks omitted.) Id., 172. The habeas court found that appellate counsel did just that. Further, the court appropriately found that the petitioner failed to meet his burden in regard to the prior habeas counsel. Therefore, under Strickland, the petitioner failed to show how his post-conviction counsel’s actions were unreasonable. See Strickland v. Washington, supra, 466 U.S. 687.

The judgment is affirmed.

In this opinion the other judges concurred.

       On direct appeal, the petitioner claimed that (1) the trial court improperly denied his motion to suppress out-of-court identification testimony, (2) the state presented insufficient evidence of physical injury to the victim to support the conviction of assault in the third degree, (3) the state failed to prove that he was in custody for purposes of a charge of attempt to escape, (4) he was denied a fair trial as a result of having been charged with assault in the third degree without a good faith basis for the charge, thereby giving the jury an opportunity to reach a compromise verdict, and (5) the trial court improperly denied his motion for a new trial that was based on his claim of ineffective assistance of counsel. State v. Henderson, supra, 37 Conn. App. 735-36.

       The petitioner states in his brief that the decision from his first habeas matter is not the subject of this appeal.

       The petitioner specifically raises the sustained objection to the direct examination of one of the attorneys who handled the petitioner’s direct appeal when he was asked, “[G]iven the state of the law today, and if you had to look at this case again and you’re reviewing a transcript where a pro se party represented themselves, there was a canvass, would you change your mind at this point . . .

        Wolff held that “[t]he right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel.” (Internal quotation marks omitted.) State v. Wolff, supra, 237 Conn. 654.

       The state of the law during the petitioner’s 1993 trial was and still is that the petitioner “does not possess a constitutional right to a specifically formulated canvass. His constitutional right is not violated as long as the court’s canvass, whatever its form, is sufficient to establish that the . . . waiver was voluntary and knowing.” State v. Webb, 238 Conn. 389, 429, 680 A.2d 147 (1996), aff'd after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed 2d 53 (2000); State v. Gethers, 193 Conn. 526, 539-40, 480 A.2d 435 (1984).

       Practice Book § 23-30 provides: “(a) The respondent shall file a return to the petition setting forth the facts claimed to justify the detention and attaching any commitment order upon which custody is based.
      “(b) The return shall respond to the allegations of the petition and shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief.”

       Practice Book § 23-31 provides: “(a) If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply.
      “(b) The reply shall admit or deny any allegations that the petitioner is not entitled to relief.
      “(c) The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition.”

       In the petitioner’s brief, he asserts that prior habeas counsel did not testify at the present habeas trial but that if appellate counsel was found to be ineffective, “logically” prior habeas counsel should also be found ineffective. The respondent, however, brought to this court’s attention the transcript of prior habeas counsel’s testimony, and, therefore, we can review the testimony.

       Welch-Rubin did not testify in regard to prior habeas counsel’s involvement in the case.


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. ROBERT L. HYDE
    (AC 27345)
    McLachlan, Graendel and Lavine, Js.
    Argued September 17
    officially released November 27, 2007

      Matthew J. Collins, for the appellant (defendant).

      Lauren E. James, certified legal intern, with whom were Bruce R. Lockwood, assistant state’s attorney, and, on the brief, Michael L. Regan, state’s attorney, and Stephen M. Carney, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

This appeal concerns the judgment of conviction, rendered after a jury trial, of the defendant, Robert L. Hyde, for breaking into a basement and a shed and for stealing a sump pump and a toolbox. Convicted of two counts each of larceny in the sixth degree in violation of General Statutes § 53a-125b and burglary in the third degree in violation of General Statutes § 53a-103, the defendant claims that the state produced insufficient evidence from which the jury could find beyond a reasonable doubt that he had committed the crimes of (1) larceny in the sixth degree for his appropriation of the toolbox and (2) burglary in the third degree for his entry into the shed. We disagree and affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. At approximately 12:30 p.m. on December 12, 2002, the defendant arrived at 17V2 Pitcher Street in Norwich, the residence of Donna Durand. From another building on the same property, Tiffany Broding, Dur- and’s daughter, observed the defendant remove a screwdriver from Durand’s van and use it to attempt to break into Durand’s house. Broding approached the defendant and asked him what he was doing on the property. The defendant, appearing intoxicated, replied that she should mind her business. The defendant proceeded to pull the grate off the crawl space under Dur- and’s house, remove the sump pump from the basement and place the sump pump in his car. The defendant then entered Durand’s tool shed and removed a toolbox.

Having received notice from Broding that the defendant was taking items from her property, Durand immediately returned to her home, called the police and filed a complaint against the defendant. Shortly after 9 p.m. on December 12, 2002, Officers James Curtis and Mark Pilcher of the Norwich police department visited the defendant at his home and asked him about his activities at 17V2 Pitcher Street that day. When questioned about Durand’s missing property, the defendant admitted he had taken the toolbox but stated that he had permission to do so. After first denying that he had taken the sump pump, the defendant eventually admitted that he had taken that as well.

On May 18, 2003, the defendant was arrested and charged with two counts of larceny in the sixth degree in violation of § 53&-125& for his theft of the sump pump and the toolbox, and two counts of burglary in the third degree in violation of § 53a-103 for his illegal entry into the crawl space and the shed. Following the state’s case, the court denied the defendant’s motion for a judgment of acquittal as to the counts related to the larceny of the toolbox and the burglary of the shed. On February 4, 2004, the defendant was convicted on all charges, and, on February 16, 2004, he was given a total effective sentence of five years imprisonment, execution suspended after three years, and three years of probation. Though the defendant’s trial counsel did not appeal from the judgment, the defendant’s appellate rights were restored pursuant to a stipulated judgment in an action for a petition for a writ of habeas corpus. On January 25, 2006, this appeal was filed.

The defendant claims on appeal that the evidence was insufficient to form the basis of a conviction for (1) larceny in the sixth degree for his appropriation of Durand’s toolbox and (2) burglary in the third degree for his entry into Durand’s shed. Specifically, the defendant argues that the state failed to prove beyond a reasonable doubt that Durand owned the toolbox or that he lacked the owner’s permission to take the toolbox.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Straub, 90 Conn. App. 147, 153-54, 877 A.2d 866, cert. denied, 275 Conn. 927, 883 A.2d 1252 (2005).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Leon-Zazueta, 80 Conn. App. 678, 682, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004). With this standard of review in mind, we review the defendant’s sufficiency claims.

I

The defendant claims that the state produced insufficient evidence from which the jury could find beyond a reasonable doubt that he had committed the crime of larceny in the sixth degree with respect to the toolbox. “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” General Statutes § 53a-119. “Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” (Internal quotation marks omitted.) State v. Flowers, 69 Conn. App. 57, 69, 797 A.2d 1122, cert. denied, 260 Conn. 929, 798 A.2d 972 (2002). “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.” General Statutes § 53a-125b (a).

A

According to the defendant, the state failed to prove beyond a reasonable doubt that he committed larceny in the sixth degree because there was only speculative evidence that Durand owned the toolbox. The defendant claims that the testimony of his wife, Bernadette Hyde, that Durand’s husband, Peter Durand, lived at 17V2 Pitcher Street and gave the defendant permission to remove certain items from 17V2 Pitcher Street implies that Peter Durand, not Donna Durand, owned the toolbox. We do not agree.

General Statutes § 53a-118 (a) (5) defines an owner as “any person who has a right to possession superior to that of a taker, obtainer or withholder.” “[A] showing that the victim had custody or control over the appropriated property is sufficient to support a charge of larceny.”State v. Crosswell, 223 Conn. 243, 254, 612 A.2d 1174 (1992). In the case before us, the state presented evidence that on December 12, 2002, Donna Durand was the tenant in lawful possession of 17V2 Pitcher Street and that the shed there contained property belonging to her.

“[ I]t is well established that the jury . . . may accept or reject, in whole or in part, the truth of any witness’ testimony.” State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007). Because Donna Durand had custody and control over the toolbox in the shed on her property, the jury reasonably could have found that she owned the toolbox.

B

The defendant next claims that the state did not prove beyond a reasonable doubt that he lacked permission to take the toolbox. Specifically, the defendant asserts that Bernadette Hyde’s testimony that Peter Durand gave the defendant permission to remove items from 17V2 Pitcher Street barred the jury from reasonably finding that the defendant lacked the owner’s consent to remove the toolbox. We are not persuaded.

“As we have often stated, [i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence. ... In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citation omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn. App. 658, 666-67, 897 A.2d 710 (2006).

At trial, Bernadette Hyde testified that she heard Peter Durand tell the defendant that he could take certain items from 17V2 Pitcher Street. In addition to Hyde’s testimony, the jury heard evidence that on the day in question, the defendant went to Donna Durand’s premises when no one was home, attempted to break into her home, broke into her van and crawl space, and ripped the sump pump from its place under her house. When Broding asked the defendant what he was doing on the property, he told her to mind her business. When the police questioned the defendant later that night, he was not immediately forthcoming.

Although the defendant asserts that Hyde’s testimony verifies his theory that he had permission to remove the toolbox, the jury, as the sole arbiter of witness credibility, was free to decide what weight, if any, to give to the testimony of the defendant’s wife. See State v. Russell, supra, 101 Conn. App. 316. The discrepancy between Hyde’s testimony that the defendant believed he had permission to take the toolbox and Broding’s testimony that the defendant’s conduct manifested illicit motives required a credibility finding by the jury. Whatever credibility determinations the jury made, this court may not revisit them. Id.

II

The defendant’s second claim is that the state failed to prove beyond a reasonable doubt that he committed burglary in the third degree for his entry into the shed because there was insufficient evidence offered at trial to support the larceny conviction on which the burglary conviction depends. We disagree.

“Burglary in the third degree is defined in ... § 53a-103 as entering] or remain[ing] unlawfully in a building with intent to commit a crime therein.” (Internal quotation marks omitted.) State v. Henning, 220 Conn. 417, 429, 599 A.2d 1065 (1991). “A person enters or remains unlawfully in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so. General Statutes § 53a-100 (b).” (Internal quotation marks omitted.) State v. Hampton, 66 Conn. App. 357, 362, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001). On the basis of the evidence it heard, the jury reasonably could have determined that the defendant unlawfully entered Durand’s shed with the intent to steal a toolbox. Accordingly, we conclude that the jury reasonably could have found that the evidence was sufficient to support the defendant’s conviction of larceny in the sixth degree and burglary in the third degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in Section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       On or shortly before December 12, 2002, Donna Durand’s husband, Peter Durand, moved out of the premises.


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. JEFFREY SWEENEY
    (AC 27449)
    DiPentima, McLachlan and Peters, Js.

      Argued September 6
    officially released November 27, 2007

      Thomas G. Wolff, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Nancy Dolinsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Jeffrey Sweeney, appeals from the judgment of conviction, rendered after a jury trial, of criminal trespass in the third degree in violation of General Statutes § 53a-109 (a) (1). On appeal, the defendant claims that the court improperly (1) admitted testimony and physical evidence concerning a box cutter, (2) admitted evidence of his prior, uncharged misconduct, (3) excluded evidence that he sought to admit to impeach a witness’ credibility, (4) charged the jury and (5) allowed the state to comment on a missing witness during final argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant met Jill Romer at the company where they both worked, and the two dated off and on from 2000 to 2004. During that period, the defendant visited Romer on several occasions at her condominium apartment at 99 Prospect Street in Stamford. Romer’s apartment building has a front entrance that opens into a vestibule where there is an intercom system. Because the doors leading from the vestibule into the lobby are locked, a person who does not have a key to the doors can use the intercom system to call a resident’s apartment in order to gain entry. The resident can speak to the person through the system’s speaker and remotely trigger the doors to unlock.

On December 17, 2004, the defendant telephoned Romer and said he wanted to bring her a gift. There were several calls back and forth between Romer and the defendant, during which Romer told the defendant not to come over and that she did not want anything from him. Disregarding Romer’s request, the defendant went to the building and used the intercom system to call Romer to be let into the building. Romer picked up the telephone and, without triggering the door to unlock, loudly stated that she was calling the police.

While the defendant was in the vestibule, a woman in the lobby recognized him and let him into the building. The defendant proceeded up to the seventh floor where Romer’s apartment was located and knocked on the door more than once. When Romer did not respond, the defendant used his cellular telephone to call Romer, but the line was busy. After hearing the defendant knocking on the door, Romer called the police.

The police came up to the seventh floor where they saw the defendant standing outside the apartment. Because they had received information from the police dispatcher concerning a prior incident involving a box cutter, the police patted down the defendant for weapons. They found a box cutter in the breast pocket of the defendant’s jacket. The police then spoke with Romer, whom they described as visibly shaken. The police arrested the defendant.

The defendant was charged with one count of criminal trespass in the third degree and one count of disorderly conduct in violation of General Statutes § 53a-182 (a) (2). The jury found the defendant guilty of criminal trespass in the third degree and not guilty of disorderly conduct. The defendant was sentenced to ninety days incarceration, execution suspended, and one year of probation. The conditions of probation were that the defendant could not have contact with, threaten or be violent toward Romer and that he had to stay away from 99 Prospect Street. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court abused its discretion by admitting testimony and physical evidence concerning the box cutter. Specifically, the defendant claims that (1) the testimony was inadmissible hearsay, (2) both the testimony and physical evidence were irrelevant and (3) both the testimony and physical evidence were more prejudicial than probative. We disagree.

The following additional facts are necessary for the resolution of the defendant’s claims. During the trial, Todd J. Lobraico, a Stamford police officer, testified that on December 17,2004, he responded to a complaint about a former boyfriend who would not leave the outside of an apartment at 99 Prospect Street. Over the objections of the defendant on the grounds of hearsay and relevance, the court allowed the state to elicit testimony from Lobraico that the police dispatcher told him that there had been a prior incident between Romer and the- defendant involving a box cutter. Lobraico testified that as a result of this information, he handcuffed the defendant and patted him down for weapons in the hallway outside Romer’s apartment and that during the patdown, he found a box cutter in the defendant’s left breast jacket pocket. Later in the trial, the state offered the box cutter into evidence, to which the defendant objected as irrelevant and prejudicial. The court overruled the objection.

As an initial matter, we set forth the applicable standard of review. As our Supreme Court recently clarified, the standard of review for an evidentiary ruling is predicated on the nature of the ruling at issue within the context of the case: “To the extent a trial court’s admission of evidence is based on an inteipretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. . . . We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion. ... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought.” (Citations omitted.) State v. Saucier, 283 Conn. 207, 218-19, 926 A.2d 633 (2007).

A

The defendant claims that Lobraico’s testimony about what the dispatcher told him was hearsay and thus inadmissible. The state argues that the testimony regarding the dispatcher’s statements was not hearsay because it was offered not for its truth but to show the effect of the statement on Lobraico. We agree with the state.

“An out-of-court statement used to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception applies.” (Internal quotation marks omitted.) State v. Owen, 101 Conn. App. 40, 42, 919 A.2d 1049, cert. denied, 283 Conn. 902, 926 A.2d 671 (2007). “Statements of declarants offered to show their effect on the listener, not for the truth of the contents of the statements, are not hearsay and are admissible. See State v. Hull, 210 Conn. 481, 499, 556 A.2d 154 (1989) (exclusion from hearsay includes utterances admitted to show their effect on the hearer); see also State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989) (An out-of-court statement is hearsay when it is offered to establish the truth of the matters contained therein. ... A statement offered solely to show its effect upon the hearer [however] is not hearsay. . . .) . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Dinan v. Marchand, 279 Conn. 558, 572, 903 A.2d 201 (2006).

Lobraico’s testimony regarding what the dispatcher told him about the box cutter when he was responding to the dispatch was offered to show its effect on Lobraico because it tended to explain why he took the precautions he did when he encountered the defendant in the hallway outside the apartment. Lobraico testified that it was because of this information that he handcuffed the defendant and patted him down for weapons, which was when he discovered the box cutter in the defendant’s pocket. Because we conclude the statement was not hearsay, the claim fails.

B

The defendant further objects to Lobraico’s testimony and the admission of the physical evidence, the box cutter, on the basis of lack of relevance. The defendant claims that the testimony and the box cutter were irrelevant to both of the crimes with which he was charged. The state argues that the testimony regarding the box cutter was relevant to proving the mens rea element of the disorderly conduct charge. We agree with the state.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. “The determination of whether a matter is relevant or collateral . . . generally rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Reyes, 81 Conn. App. 612, 619, 841 A.2d 237 (2004).

“A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ... (2) by offensive or disorderly conduct, annoys or interferes with another person . . . .” General Statutes § 53a-182 (a). According to the amended long form information, the state charged the defendant with the mens rea of recklessness. “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. . . .” General Statutes § 53a-3 (13). The state’s theory of the case for this charge was that by bringing a box cutter to Romer’s apartment, the defendant recklessly created a risk of causing her alarm or annoyance. Because the testimony and physical evidence were relevant to the charge of disorderly conduct, we conclude that it was within the court’s discretion to admit the testimony and evidence on this basis.

C

Finally, with regard to the testimony and physical evidence concerning the box cutter, we address the defendant’s claim that the evidence was more prejudicial than probative. “Our Supreme Court has outlined four situations in which prejudice to the defendant could outweigh the probative value of evidence. These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Harvey, 77 Conn. App. 225, 233, 822 A.2d 360, cert. denied, 265 Conn. 906, 831 A.2d 252 (2003). The defendant argues that the evidence regarding the box cutter created a side issue that confused the main issues in the case and that this evidence unfairly portrayed him as a violent person. We disagree.

As discussed, the evidence regarding the box cutter was not a side issue because the state was offering the evidence to prove one of the elements of the crime of disorderly conduct. The evidence also was not unduly prejudicial to the defendant. “Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Citation omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 329-30, 746 A.2d 761 (2000). “The trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . We note that [b]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993). We have reviewed the record, and we conclude that the court’s determination that the evidence was more probative than prejudicial was not an abuse of discretion. Furthermore, we note that the jury found the defendant not guilty of the charge of disorderly conduct, the charge for which the evidence was introduced. Thus, it does not appear that the evidence improperly aroused the jury’s emotions or hostility.

II

The defendant’s second claim is that the court abused its discretion in permitting Romer to testify during rebuttal that the defendant had threatened her with a box cutter several days before the charged crimes occurred. The defendant argues that this was an impermissible use of extrinsic evidence to impeach his credibility on a matter of uncharged misconduct. We disagree.

Prior to the start of the trial, the state filed a notice of uncharged misconduct regarding an incident about six days prior to December 17, 2004, during which, Romer claimed, the defendant threatened her with a box cutter. Initially, the court disallowed this prior uncharged misconduct evidence. During its case-in-chief, the state introduced evidence through Lobraico’s testimony that a box cutter was found on the defendant’s person when the police arrived in the hallway outside Romer’s apartment. The defendant testified that he used the box cutter for renovations he was doing at his home on the day of the incident and did not realize he had it with him when he went to Romer’s building. When asked if he had ever brought the box cutter to Romer’s apartment before December 17,2004, he testified that he had brought it there to install a lighting fixture. On cross-examination, the defendant denied ever threatening Romer with a box cutter.

The state then sought to introduce rebuttal evidence, through Romer’s testimony, that several days before the incident at issue in this case, the defendant had brought a box cutter to Romer’s apartment and threatened her with it. The state argued that the defendant had opened the door to questioning about that event because he had testified that he had used the box cutter for lawful purposes. The court allowed Romer to testify that the defendant had threatened her with a box cutter during the prior incident.

“The admission of rebuttal evidence ordinarily is within the sound discretion of the trial court. In considering whether a trial court has abused its discretion, appellate courts view such a trial court ruling by making every reasonable presumption in favor of the decision of the trial court.” Outdoor Development Corp. v. Mihalov, 59 Conn. App. 175, 183, 756 A.2d 293 (2000). “Ideally, rebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the state’s case .... When a defendant offers evidence in his defense, it is probative to offer evidence that contradicts his testimony.” (Citation omitted; internal quotation marks omitted.) State v. Williamson, 206 Conn. 685, 698, 539 A.2d 561 (1988).

The defendant is correct that extrinsic evidence cannot be used to impeach the credibility of a witness. That was not the case in this situation, however. As discussed, the state argues that the defendant’s possession of a box cutter was relevant to the mens rea element of the disorderly conduct charge; the state also argues that the testimony regarding the prior incident involving the box cutter pertains to that element because it explains the significance of the box cutter. Romer’s testimony was not offered to impeach the defendant’s credibility generally, but rather to directly refute his testimony: he said that he did not do something, and she said that he did. Certainly, credibility was an issue in this case, but the court, in overruling the defendant’s objection to the testimony, correctly differentiated the situation in this case from situations involving extrinsic evidence by noting that the other situations involved evidence regarding collateral matters. See State v. Chance, 236 Conn. 31, 59-61, 671 A.2d 323 (1996). As Romer’s testimony pertained to an element of the charged conduct that the state was trying to prove, it was not a collateral matter. Therefore, the court did not abuse its discretion in permitting Romer to testify about the prior incident involving a box cutter on rebuttal.

Ill

The defendant’s third claim is that the court improperly sustained the state’s objection to evidence that the defendant sought to admit for the purpose of impeaching Romer’s credibility. We disagree.

“A witness may be asked, in good faith, about specific instances of conduct of the witness, if probative of the witness’ character for untruthfulness.” Conn. Code Evid. § 6-6 (b) (1). “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” State v. Beliveau, 237 Conn. 576, 586, 678 A.2d 924 (1996). “Whether an adequate foundation has been laid is a matter within the discretion of the court.” Conn. Code Evid. § 6-6, comment (a); see, e.g., State v. Gould, 241 Conn. 1, 19, 695 A.2d 1022 (1997).

Twice during the trial, the defendant attempted to impeach Romer’s credibility by questioning her about a letter she had received from a management company of the building in which her mother used to live; the letter was a request for her to return a key that she allegedly was using improperly to enter the building in order to use its exercise room. The defendant argues that Romer’s use of the key under the false pretenses of being a guest pertained to Romer’s truthfulness. The defendant, however, failed to lay a foundation for this evidence at trial. Thus, without a foundation, the evidence was irrelevant, and “[e]vidence that is not relevant is inadmissible.” Conn. Code Evid. § 4-2. We conclude that the court did not abuse its discretion.

IV

The defendant’s fourth claim is that the court improperly charged the jury regarding the authorized methods of entry into the building. Specifically, the defendant claims that when the court gave its instructions on the charge of criminal trespass, it, in effect, eliminated his affirmative defense that he reasonably believed he was licensed to enter the building and, therefore, the court misled the jury. We disagree.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but 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. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the juiy ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Howard, 88 Conn. App. 404, 411-12, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005).

In the present case, the court instructed the jury on the essential elements of criminal trespass in the third degree and the affirmative defense to the charge. The defendant did not challenge the court’s charge with respect to the recitation of the elements of criminal trespass or the explanation of the affirmative defense. Rather, the defendant took exception to the court’s discussion of the evidence regarding the means of entering the building. Although the defendant agreed with the two means described by the court, he disagreed that those were the only two means by which he legally could enter the building. In an effort to address the concern raised by the defendant, the court brought the jury back into the courtroom after it had been excused and described a third way that a person could enter the building without violating the criminal trespass statute. The defendant did not disagree with the court’s description of the additional means to enter the building legally, but he was concerned that the instructions still excluded the possibility that there was another way to enter the building legally and thus eliminated his affirmative defense. The defendant argues that the jury possibly could have been misled to conclude that he could not prevail on his affirmative defense under any circumstances because his method of entry was not one of the three legal methods described in the court’s jury instructions. The court’s charge, however, when read as a whole, did not mislead the jury; the instructions were legally correct, adapted to the issues of this case and sufficient for the guidance of the jury. We conclude that the court properly instructed the jury.

V

The defendant’s final claim is that the court improperly allowed the state to comment on a missing witness during final argument. We disagree.

“In general, the scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations.” (Internal quotation marks omitted.) State v. Rios, 1A Conn. App. 110, 119, 810 A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003).

During the trial, the defendant testified that on December 17, 2004, a female resident let him into the building. The defendant described this person in detail and stated that he had seen her before at the building on several occasions, but he only knew her first name. On cross-examination, the state questioned him about whether he ever had been able to locate this woman. The defendant stated that he had not tried to locate her, but he believed that his attorney had made some attempts to locate her. In closing argument, the state did not mention the fact that the defendant did not produce the woman who let him into the building as a witness or introduce evidence that this woman was unavailable to testify. During final argument, however, the state did discuss this aspect of the defendant’s case by referring to this woman as a “mystery woman who supposedly let the defendant in” and by questioning where she was.

The defendant argues, citing State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), that the court improperly allowed the state’s discussion of the missing witness because the state failed to provide a factual or evidentiary foundation from which to infer a weakness in the defendant’s case. “In Malave, our Supreme Court abandoned, in criminal cases, the [rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (I960)], also known as the missing witness rule, which sanctioned, under certain circumstances, a jury instruction that an adverse inference

may be drawn from the failure of a party to produce a witness. Although our Supreme Court abandoned the Secondino rule, it did not intend to ‘prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case.’ [State v. Malave, supra], 739. Comments in closing argument that do ‘not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence’ do not necessarily fall under the ambit of Secondino-, id.; and accordingly are not forbidden by Malave. Our Supreme Court further provided that ‘[o]f course, the trial court retains wide latitude to permit or preclude such a comment, and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue.’ ” State v. Graham, 67 Conn. App. 45, 48-49, 787 A.2d 11 (2001), cert. denied, 259 Conn. 911, 789 A.2d 996 (2002). Furthermore, “[c]ounsel may comment [in closing argument] upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest [in closing argument] an inference from facts not in evidence. . . . Similarly, a party cannot merely comment on the failure of the opposing party to present a witness without first providing a factual or evidentiary foundation from which to infer a weakness in the opposing party’s case.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 49-50.

The state provided an evidentiary foundation from which to infer a weakness in the opposing party’s case by questioning the defendant on cross-examination about whether any attempt was made to find the resident who he stated had let him into the building. The facts concerning the resident were in evidence properly, and the state was permitted to comment on the facts and any reasonable inferences that could be drawn from them. Furthermore, the defendant acknowledges that the state provided proper advanced notice that it sought to comment on the missing witness, as required under Malave. See State v. Malave, supra, 250 Conn. 740. Thus, we conclude that it was within the court’s discretion to allow the state to comment on the missing witness during closing argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state referred to the item, a knife, as a “box cutter,” but the defense referred to the item as a “utility knife.” We refer to the item as a box cutter for purposes of our discussion.

       The following colloquy took place regarding this matter when Lobraico testified:
      “[The Prosecutor]: And how were you brought into the case?
      “[The Witness]: We were dispatched by our dispatch center to 99 Prospect Street, apartment 7 H, on a disturbance call for [an] ex-boyfriend who would not leave an apartment—the outside of the apartment. And the dispatch relayed to us that there were prior—
      “[Defense Counsel]: I am going to object to whatever else the dispatcher related. He has already said what the call was and what he responded to. That’s hearsay.
      “The Court: It’s preliminary. I overrule the objection.
      “[The Prosecutor]: Did the dispatch tell you anything for your safety?
      “[The Witness]: Yes, they did.
      “[Defense Counsel]: Objection, Your Honor. It’s irrelevant.
      “[The Prosecutor]: It’s not irrelevant.
      “The Court: He was acting pursuant to—he was acting following the dispatcher’s advice. I’ll overrule the objection.”

       The following colloquy took place concerning the introduction of the box cutter into evidence:
      “[The Prosecutor]: I’d like to offer it into evidence, Your Honor.

        “[Defense Counsel]: I object to it, Your Honor. It’s irrelevant. There is no charge here of possession of a weapon or any other crime besides the one that the state has charged. I think it’s prejudicial.

        “The Court: Well, there was testimony that apparently he was searched, and they found it in the upper pocket. I’ll overrule the objection.”

       The state argues that we should not review this claim because the defendant is not aggrieved. “[PJroof of aggrievement is ... an essential prerequisite to the court’s jurisdiction of the subject matter of the appeal. . . . Ordinarily, a party that prevails in the trial court is not aggrieved.” (Internal quotation marks omitted.) State v. Sanders, 86 Conn. App. 757, 763-64, 862 A.2d 857 (2005). The state contends that because the defendant was acquitted of the disorderly conduct charge, he is not aggrieved. “The test of aggrievement is whether a party claiming aggrievement can demonstrate a specific personal and legal interest in the subject matter of the court’s decision and whether that interest has been specially and injuriously affected by the decision.” State v. Talton, 209 Conn. 133, 137, 547 A.2d 543 (1988). The defendant did not prevail on both charges, however, and thus is still aggrieved on the charge of criminal trespass. Because there was no limiting instruction to the jury regarding the use of this testimony only for the charge of disorderly conduct, we do not find the state’s argument persuasive on the issue of aggrievement. Therefore, we conclude that we have jurisdiction over this claim.

       The defendant bases his claim on § 6-6 (b) (2) of the Code of Evidence, which states that “[sjpecific instances of the conduct of a witness, for the purpose of impeaching the witness’ credibility under subdivision (1), may not be proved by extrinsic evidence.”

       The court charged the jury: “[TJhere are three methods of entry. Either you have a key or you are allowed in by the occupant in the apartment or you’re going in in the company of someone who was authorized to let you in. ”

       “It shall be an affirmative defense to prosecution for criminal trespass that ... (3) the actor reasonably believed that the owner of the premises, or a person empowered to license access thereto, would have licensed him to enter or remain, or that he was licensed to do so.” General Statutes § 53a-110. The defendant testified that he entered the building when a resident of the building who recognized him opened the door for him; he argues that he reasonably believed, on the basis of his prior visits to the building and the resident’s allowing him to enter, that he was licensed to enter the building by the resident who let him in.

       See Practice Book § 42-35 (4).

       The state maintains that this was in response to the defendant’s closing argument in which the defendant emphasized that the defendant was let into the building by an unidentified person as part of his affirmative defense to criminal trespass; however, although we were provided with transcripts of the state’s closing arguments, we do not have the transcript of the defendant’s closing argument and, thus, cannot comment on what was stated by the defense.