author: Spallone, J.

text:
    Helen Cupina v. Robert Bernklau
    (6568)
    Spallone, Daly and Norcott, Js.
    Argued September 20
    decision released December 6, 1988

      Donn A. Swift, for the appellant (defendant).

      William H. Cashman, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment for the plaintiff rendered by the trial court.

The defendant claims that the trial court erred (1) in finding that a $4000 transaction between the plaintiff and the defendant was a loan rather than a gift, (2) in determining that General Statutes § 52-576 was the applicable statute of limitations in this case, and (3) in denying the defendant’s motion to implead.

The record reflects the following facts. The plaintiff, the defendant’s mother-in-law, advanced to the defendant on six occasions monies ranging in amounts from $416.40 to $4000. Five of the payments were made between May, 1970, and December, 1975. The last payment was made by check on October 25,1983, and was in the amount of $4000. There is no dispute that the defendant did in fact receive these funds. On August 22,1986, the plaintiff made a demand upon the defendant for repayment of the funds. The defendant refused to repay.

The plaintiff’s six count revised complaint alleged that the plaintiff had loaned money to the defendant and that the parties agreed the money would be repayable on demand. The defendant’s answer to the complaint denied that the transactions constituted loans. To each count of the revised complaint the defendant raised two special defenses: first, that the plaintiff gave the monies to the defendant as gifts, and second, that the plaintiffs claims were barred by the three year statute of limitations, General Statutes § 52-581. The defendant moved to implead his then wife, the plaintiff’s daughter. The motion was denied.

The case was tried to a state trial referee, who determined that all the transactions were loans, not gifts. The court also held that recovery on all the loans, except the $4000 loan made on October 25,1983, was barred because the plaintiff had delayed making her demand for an unreasonable length of time. As to the $4000 loan made on October 25, 1983, the court held that the plaintiffs right of action accrued on August 22, 1986, when she demanded repayment, that the plaintiff had not delayed an unreasonable length of time in asserting that demand, and that recovery was not barred under General Statutes § 57-576, the applicable statute of limitations. Accordingly, the court rendered judgment for the defendant on the first five counts of the plaintiffs complaint and for the plaintiff on the sixth count. The sole subject of this appeal is the $4000 transaction described in the sixth count of the plaintiffs complaint.

The defendant’s first claim of error is that the evidence does not support the trial court’s finding that the parties mutually agreed the defendant would repay the money transferred to him by the plaintiff and that, therefore, the court erred in finding that the transaction was a loan.

In its memorandum of decision, the trial court concluded that all the payments, including the October, 1983 payment at issue, were made pursuant to an oral contract “with the clear understanding and assurance on the part of the defendant that repayment would be made when [the plaintiff] needed it and asked for it.” On this appeal, the defendant disputes the court’s finding that the parties reached a “clear understanding,” arguing that the evidence shows no agreement was ever reached with respect to repayment or the terms of repayment.

When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We have reviewed the record and conclude that the trial court’s finding that the parties mutually agreed the defendant would repay the money to the plaintiff on demand is sufficiently supported by the evidence. The testimony of the plaintiff and her daughter, if believed, would establish that, at the time of the transaction, both the plaintiff and the defendant understood the transfers to be loans, not gifts, and that the defendant promised to repay the money transferred to him. The testimony is adequate to support the finding that a repayment agreement existed. The defendant, in effect, urges us to evaluate the credibility of the conflicting testimony in this case and reject as unreliable the evidence relied upon by the trial court. This we decline to do. “[Tjhe trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981); see also Leo v. Leo, 197 Conn. 1, 6, 495 A.2d 704 (1985). The trial court’s factual finding that a repayment agreement existed between the parties is sufficiently supported by the evidence. We will not speculate on the credibility of the testimony supporting that finding.

In his second claim of error, the defendant argues that the trial court erred in determining that General Statutes § 52-576, rather than § 52-581, was the applicable statute of limitations in this case. We agree with the trial court that General Statutes § 52-576, the six year statute of limitations, applies. General Statutes § 52-576 limits to six years actions on “simple” contracts, while General Statutes § 52-581 limits to three years actions on oral contracts. These two statutes, each establishing a different period of limitation, can both be interpreted to apply to actions on oral contracts. Our Supreme Court has distinguished the statutes, however, by construing § 52-581, the three year statute of limitations, as applying only to executory contracts. Tierney v. American Urban Corporation, 170 Conn. 243, 247-249, 365 A.2d 1153 (1975); Campbell v. Rockefeller, 134 Conn. 585, 587, 59 A.2d 524 (1948). In this case, the parties agree that the plaintiff transferred money to the defendant and that the defendant accepted the money. The plaintiff performed her part of the contract completely. All that remained was for the defendant to repay the plaintiff. The contract was therefore not executory in character. See Tierney v. American Urban Corporation, supra, 249 (contract was executed when plaintiff had done everything he had contracted to do by procuring, as agreed in oral broker’s contract, a lease on specified property for the defendant); Campbell v. Rockefeller, supra, 587-88 (contract was executed when, under oral contract for goods and services, plaintiff had performed all obligations undertaken). Because the contract was executed, General Statutes § 52-576, not General Statutes § 52-581, applies to the transaction involved in this case. The trial court was correct in its determination on this issue.

Because we conclude that General Statutes § 52-576, the six year statute of limitations, applies in this case, it is clear that the claim arising out of the October 25, 1983 loan is not time barred. Under any possible legal construction of the facts in this case, the plaintiff brought this action within the six year period prescribed in General Statutes § 52-576, the applicable statute of limitations. The oral loan agreement was made on October 25, 1983. The plaintiff demanded repayment, and the defendant refused to repay, on August 22, 1986. The plaintiff filed suit to collect on the loan on January 9, 1987. Even assuming that the plaintiffs cause of action “accrued” as early as the date the loan was made and not, as the trial court held, on the date demand was made, the plaintiff filed her lawsuit within the six year period permitted by General Statutes § 52-576. Review of the trial court’s conclusion on the issue of when the plaintiff’s right of action accrued is therefore unnecessary.

The defendant’s final claim of error is that the trial court erred in denying the defendant’s motion to implead. The defendant moved pursuant to General Statutes § 52-102a to implead the plaintiff’s daughter, Mary Ellen Bernklau, who was then his estranged wife. The court denied the motion. On appeal, the defendant argues that Mary Ellen Bernklau should have been a defendant in this case because she received the direct benefit of the money loaned to the defendant.

General Statutes § 52-102a permits a defendant who believes that a nonparty individual “is or may be liable to him for all or part of the plaintiff’s claim against him” to move the trial court to permit service of a summons and complaint on that individual. The defendant did not have a statutory right to implead a third party; the statute commits the decision of such motions to the sound discretion of the trial court. General Statutes § 52-102a; Salvio v. Salvio, 186 Conn. 311, 324 n.11, 441 A.2d 190 (1982). The defendant has failed to demonstrate that the trial court abused its discretion in denying the motion, and no abuse of discretion is otherwise evident.

We conclude that the trial court properly found that the October, 1983 payment made by the plaintiff to the defendant was a loan, that the court applied the correct statute of limitations, and that the court did not abuse its discretion in denying the defendant’s motion to implead.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-576 provides in pertinent part: “actions for account or on simple or implied contracts, (a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”

       General Statutes § 52-581 provides in pertinent part: “action on oral CONTRACT TO BE BROUGHT WITHIN THREE YEARS, (a) No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.”

       The defendant did not state in his written motion to the trial court the legal grounds for the motion. It is clear, however, from the language employed by the defendant in the motion and from his appellate brief that the motion was made pursuant to General Statutes § 52-102a.
      General Statutes § 52-102a provides in pertinent part: “(a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Farmington River Watershed Association, Inc., et al. v. Stanley J. Pac, Commissioner of Environmental Protection, et al.
    (6486)
    Spallone, Daly and Norcott, Js.
    Argued October 20
    decision released December 13, 1988

      John L. Laudati, with whom, on the brief, was Philip N. Walker, for the appellants (plaintiffs).

      Robert B. Teitleman, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellees (named defendant et al.).

      Lawrence J. Golden, for the appellee (defendant Metropolitan District Commission).
   Per Curiam.

This case is controlled by Donis v. Board of Examiners in Podiatry, 207 Conn. 674, 542 A.2d 726 (1988). In Donis, the Supreme Court held that the department of health services was a party of record to the administrative proceeding and was therefore required to be cited and served as a defendant in the appeal. In this case, the only “service” upon the department of health services was personal service to a planning analyst. Moreover, that service was beyond the thirty day statutory period. This is improper service upon the department, who was a party of record within the meaning of General Statutes § 4-183 (b). The appeal provisions of General Statutes § 4-183 are jurisdictional in nature, and, if not complied with, render the appeal subject to dismissal. Donis v. Board of Examiners in Podiatry, supra, 683. The trial court did not err in granting the motion to dismiss the appeal.

There is no error.


author: Borden, J.

text:
    Orange Street Armory Associates, Inc., et al. v. City of New Haven
    (6482)
    Borden, Daly and O’Connell, Js.

      Argued October 11
    decision released December 13, 1988

      Bradley K. Cooney, with whom, on the brief, was Todd R. Bainer, for the appellants (plaintiffs).

      Edward Mattison, deputy corporation counsel, for the appellee (defendant).
   Borden, J.

The plaintiffs appeal from the judgment of the trial court affirming the defendant’s denial of the plaintiffs’ application for a tax assessment deferral. The plaintiffs press three claims of error: (1) the defendant’s denial of the plaintiffs’ application was arbitrary, capricious and a deprivation of constitutional due process; (2) the trial court erroneously refused to admit certain testimony of the plaintiffs’ expert witness; and (3) the trial court erroneously refused to admit testimony on the defendant’s use of differing definitions of “rehabilitation.” We find no error.

The trial court could reasonably have found the fol-. lowing facts. Some time before 1986, the predecessor in interest to the named plaintiff purchased the dilapidated Orange Street Armory building in New Haven from the state with the intention of converting the building into twenty condominium units. The plaintiffs’ plan called for the demolition and removal of the entire building, except for the building’s facade and portions of two side walls. Only two of the twenty condominium units would incorporate any part of the old wall; the eighteen other units would consist wholly of new construction.

In November, 1986, the plaintiffs submitted to the New Haven department of assessment an application for a deferral of the assessment increase. The application was filed pursuant to a program conducted by the city of New Haven under the authority of General Statutes §§ 12-65 through 12-65f. Under the deferral program, property owners who rehabilitate structures on their property for use as housing can secure a deferral of the tax assessment increase that would result from the improvements to the property.

The defendant’s department of assessment (department) denied the application on two grounds: first, that the project contained “more new construction than rehabilitation”; and, second, that the armory building was never declared to be abandoned. The plaintiffs appealed to the defendant’s assessment deferral appeals committee (appeals committee), which heard the matter de novo. The appeals committee rejected the appeal on the sole ground that the building contained more new construction than old. On appeal to the Superior Court, the plaintiffs moved for a trial de novo. In addition to the record developed before the department and the appeals committee, the plaintiffs presented testimonial evidence. The trial court sustained the defendant’s decision denying the application. This appeal followed.

The plaintiffs first claim that the original decision of the defendant’s department was arbitrary, capricious and a violation of the plaintiffs’ constitutional right to due process. This claim is grounded on the department’s use of certain internal, unpublished criteria in denying the plaintiffs’ application. This claim evinces a misunderstanding of the appellate process in property tax assessment cases.

We note at the outset that both the plaintiffs’ appeal from the department to the appeals committee, and their appeal from the appeals committee to the trial court were heard de novo. Thus, the plaintiffs were afforded the opportunity to present their case on the merits anew before both the appeals committee and the trial court. They did in fact present their case on the merits before each of those bodies, even presenting testimony at the trial court hearing.

The defendant concedes that the department arrived at its original decision to deny the plaintiffs’ application by following the guidelines contained in an unpublished, internal memorandum, and that such reliance on criteria that were not known to the public may have resulted in a deprivation of the plaintiffs’ due process rights. See, e.g., Helbig v. Zoning Commission, 185 Conn. 294, 307-10, 440 A.2d 940 (1981) (to pass constitutional muster a zoning ordinance must “be as reasonably precise as the subject matter requires and as reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations”). Both the appeals committee and the trial court, however, were made amply aware of this defect in the department’s decision making procedure, and both found that any reasonable interpretation of the definition of “rehabilitation” found in General Statutes § 12-65c (b) compelled the conclusion that the plaintiffs’ project contained too much new construction to be considered rehabilitation.

Before reviewing the trial court’s judgment on this issue, we consider the appropriate scope of that review. Although General Statutes § 12-65d does not define the type of appellate review the trial court is to provide in tax deferral appeals, the trial referee conducted a trial de novo. Other statutes authorizing appeals to the trial court of municipal tax questions closely related to the issue in the present case have been held to require a trial de novo. See O’Rourke v. Stamford, 179 Conn. 342, 426 A.2d 311 (1979) (General Statutes § 7-250 requires trial de novo of appeal from assessment decision of sewage control authorities); Yale University v. New Haven, 169 Conn. 454, 363 A.2d 1108 (1975) (General Statutes § 12-118 mandates de novo review by the trial court of decisions of city board of tax review); see also Hutensky v. Avon, 163 Conn. 433, 311 A.2d 92 (1972). We conclude similarly that review in the Superior Court of an assessment deferral decision pursuant to General Statutes § 12-65 et seq. is by trial de novo, and that the trial court’s conduct of the appeal as a trial de novo was proper.

Were this case an administrative appeal, the process by which the municipality reached its decision would be more pertinent. The trial court’s review in such an administrative appeal would be limited to an examination of the administrative record to determine whether the decision of the administrative body was reasonably supported by facts in the record; see, e.g., Daughters of St. Paul v. Zoning Board of Appeals, 17 Conn. App. 53, 56, 549 A.2d 1076 (1988); and whether it was arrived at by proper procedure; see Altholtz v. Dental Commission, 4 Conn. App. 307, 313, 493 A.2d 917 (1985); and was free of other significant error of law. See Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 225, 497 A.2d 1005 (1985). In a trial de novo, however, “the court, without reference to an administrative record, receives evidence and acts as a finder of fact.” O’Rourke v. Stamford, supra, 345; Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 56-57, 282 A.2d 890 (1971). It follows that in a trial de novo, the trial court’s decisions of fact and of law are regarded as independent of those determined before the municipal authorities involved.

In the present case, the trial court had before it the record of the municipal administrative proceedings and the testimonial evidence presented at the trial. Upon this record, the court found that “the so-called rehabilitation [was] a trivial portion of a 4 million dollar new development.” Relying upon General Statutes § 12-65c, which defines “rehabilitation” as “the improvement or repair of a structure or facilities appurtenant thereto, exclusive of general maintenance or [minor] repairs”; see footnote 2, supra; the court ruled that the plaintiffs’ project did not come within the statutory definition of “rehabilitation.” We agree with the trial court. The statutory definition clearly implies the preservation of a preexisting structure, albeit in an “improved” or refurbished state. “Improvement or repair” is not the equivalent of “replacement.” The plaintiffs’ project, while returning a dilapidated property to a productive state, cannot be said to be a rehabilitation of the structures that stood upon the property before the plaintiffs’ project began.

That the earlier decision of the department may have been marred by reliance on the unpublished criteria contained in the internal memorandum is of no moment in our review of the trial court’s decision. Unless the procedural or legal error that flawed the earlier decision is repeated in or otherwise taints the trial de novo, the decision arising from the de novo hearing may not be attacked on the basis of errors that occurred at the earlier procedure. Because the appellant is afforded the opportunity to present its case anew, any error occurring in the course of a prior adjudication that is not repeated presents a moot question.

The plaintiffs next claim that the trial court erred in excluding the testimony of the plaintiffs’ witness on the issue of whether the plaintiffs’ project qualified for the deferral. This claim has no merit. The plaintiffs’ witness was an attorney. The plaintiffs asked the witness whether, in his opinion, the plaintiffs qualified for the deferral. The defendant objected, claiming that the question elicited opinion testimony and that the plaintiffs had not presented foundation evidence to qualify the witness as an expert.

The trial court sustained the objection on the basis of the witness’ lack of qualification to testify as a witness on the subject. Although we sustain the ruling of the trial court, we do so on a different ground. The question called for a legal conclusion and was therefore improper. Madison v. Guilford, 85 Conn. 55, 65-66, 81 A. 1046 (1911); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) §§ 7.12.3, 7.17.2. A witness is incompetent to offer a legal opinion; Turner’s Appeal, 72 Conn. 305, 316, 44 A. 310 (1899); except on the issue of foreign law. C. Tait & J. LaPlante, supra.

The plaintiffs’ final claim is that the court erred when it refused to allow the plaintiffs’ witness to testify as to the defendant’s use, in other cases, of certain definitions of “rehabilitation” that were different from the definition contained in General Statutes § 12-65c (b). The plaintiffs contend that the city’s selective use of other definitions was relevant evidence of the arbitrary, capricious and unlawful way in which the defendant decided to deny the plaintiffs’ application in this case. This claim is without merit.

The plaintiffs’ claim erroneously assumes that the trial court reviewed the action of the city as if this were an administrative appeal. That simply is not the case. The trial court determined that the plaintiffs’ project did not fall within the definition of “rehabilitation” found in General Statutes § 12-65c (b). The trial court’s decision, which we review, was properly based on the definition of “rehabilitation” contained in the enabling statute. The plaintiffs’ claim that we should reverse the trial court’s decision because of the possible arbitrary use by the city of other definitions in other cases, therefore, is unavailing.

There is no error.

In this opinion the other judges concurred.

       Large Egg Development Associates is the predecessor in interest to Orange Street Armory Associates, the named plaintiff. Large Egg Development Associates, however, remains a plaintiff in the present action.

       General Statutes § 12-65c provides: “deferral of increased assessments due to rehabilitation: As used in sections 12-65c to 12-65f, inclusive:
      “(a) ‘Rehabilitation area’ means any municipality, or a part thereof, which is deteriorated, deteriorating, substandard or detrimental to the safety, health, welfare or general economic well-being of the community;
      “(b) ‘Rehabilitation’ means the improvement or repair of a structure or facilities appurtenant thereto, exclusive of general maintenance or minor repairs.”
      General Statutes § 12-65e provides in pertinent part: “agreements to fix assessments during, and defer increases following, rehabilitation or construction, required provisions. Any municipality which has adopted a resolution, in accordance with the provisions of section 12-65d, designating such municipality or any part thereof as a rehabilitation area, may, upon application of the owner of any real property located in such area who agrees to rehabilitate such property or construct new multifamily rental housing or cooperative housing on such property, enter into an agreement to fix the assessment of the property, during the period of rehabilitation or construction, as of the date of the agreement, but for not longer than seven years, and upon completion of such rehabilitation or construction, to defer any increase in assessment attributable to such rehabilitation or construction for a period not to exceed eleven years, contingent upon the continued use of the property for the purposes specified in the agreement, provided such property meets the criteria established by such municipality in accordance with section 12-65d . . .


author: Daly, J.

text:
    State of Connecticut v. Robert Pettersen
    (6399)
    Borden, Daly and O’Connell, Js.
    Argued on October 14
    decision released December 13, 1988

      John J. Carta, Jr., with whom, on the brief, was Christopher P. Banks, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Michael Dannehy, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court erred (1) in denying his motion to inspect or permit access to the victim’s psychiatric and medical records, (2) in disallowing reputation evidence of the victim’s character, (3) in allowing the state to cross-examine the defendant’s character witnesses, (4) in instructing the jury on constancy of accusation testimony, and (5) in instructing the jury on the sexual assault charge.

The jury could reasonably have found the following facts. The victim turned sixteen years old on November 19, 1986. The defendant was a close friend of the victim’s family for a number of years. The victim’s father died in 1980. Shortly thereafter, the defendant began sexually fondling the victim. This abuse continued for approximately two years; thereafter, the defendant began to engage in sexual intercourse with the victim. These assaults continued on a regular basis over the next four years.

Sometime in 1982 or 1983, the victim told her friend, Ruth Cummings, that the defendant was touching her in the “wrong places.” Cummings, in turn, told her own mother about the defendant’s conduct. Mrs. Cummings then advised the victim’s mother about the complaints. When confronted by her mother, the victim denied any such conduct. The defendant also denied any illegal conduct when he was confronted with the accusations by the victim’s mother. The victim testified that she did not say anything to her mother about the assaults because she was afraid of the defendant and what he might do to her or her family.

In July, 1986, the victim returned to Connecticut after visiting relatives to find that her mother had moved into the defendant’s home. The sexual assaults continued until November 10,1986. On that date, the victim told her friend, Ella Rollka, that she could not handle the situation with the defendant anymore. Rollka informed a school teacher of the situation and, ultimately, the defendant was arrested. Several witnesses for the state testified that the victim had told them of the assaults. The defendant testified and denied any impropriety.

I

The defendant’s first challenge is to the trial court’s denial of his motion to inspect or permit access to the victim’s psychiatric and medical records. Prior to trial, the defendant subpoenaed psychiatric and medical records of the victim relative to her treatment and hospitalization in three institutions from 1986 until the time of trial. In addition, the defendant requested that the court order a psychiatric evaluation of the victim in the event the records indicated that she was incompetent to testify. After a hearing, at which the victim testified, the trial court denied the motions. The trial court held that the defendant failed to present sufficient evidence to warrant an in camera review of the records. The defendant claims on appeal that the effect of these rulings impaired his constitutional right to confrontation to such an extent that he was denied a fair trial.

“The right to confrontation is fundamental to a fair trial under both the federal and state constitutions. ... It is expressly protected by the sixth and fourteenth amendments to the United States constitution . . . and by article first, § 8, of the Connecticut constitution.” (Citations omitted.) State v. Hufford, 205 Conn. 386, 400-401, 533 A.2d 866 (1987). “The right to confrontation secures to the defendant the opportunity to cross-examine witnesses against him; [Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)]; and ‘to expose to the jury the facts from which the jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Hufford, supra, 401, quoting State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). While the right of cross-examination is not absolute and the trial court may, in its discretion, limit the testimony, the court may not so restrict cross-examination as to impair the defendant’s right to confrontation and deny him a fair trial. State v. Hufford, supra, 401-402; State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1987), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). The question for our review is “whether, in denying the defendant access to the complainant’s psychiatric records, the trial court prevented the defendant from pursuing a relevant line of inquiry reasonably calculated to elicit facts upon which the jury might logically have decided either to disbelieve the complainant or to discount or discredit her testimony.” State v. Hufford, supra.

The defendant does not claim that the trial court rulings prevented him from learning, through the direct examination of any psychiatric personnel, whether the victim had shown any mental abnormality that might have reflected on the credibility of her accusations. See State v. Pierson, 201 Conn. 211, 224-25, 514 A.2d 724 (1986). Rather, he claims only that the court’s denial of access to the psychiatric records impaired his right to confront and cross-examine the victim.

Our case law on the issue of a defendant’s right of access to the psychiatric records of the complaining witness is abundant, and the standards set forth in those cases are clear. We therefore turn to State v. Hufford, supra, State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), and State v. Storlazzi, 191 Conn. 453, 464 A.2d 829 (1983), for guidance.

When the records sought by the defendant are privileged, the witness’ right to privacy must be weighed against the defendant’s right to bring to the jury’s attention facts affecting the witness’ credibility. State v. Hufford, supra, 402; State v. Storlazzi, supra, 458. In Storlazzi, the Supreme Court approved an in camera inspection by the trial judge of the records of the complaining witness for material relevant to the issue of credibility. After such examination, access to the records will be granted when the material is especially probative of the witness’ ability to comprehend, know and correctly relate the truth. With respect to the admissibility of such records, however, “access to ‘such [records] must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it’; [State v. Piskorski, 177 Conn. 677, 737, 499 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979)]; and to weigh that value against the interest in confidentiality of the records. Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” State v. Storlazzi, supra, 459; State v. Hufford, supra, 403.

In State v. Esposito, supra, the court held that, in order to compel the trial court to inspect psychiatric records for potentially impeaching information, the defendant must make a showing that there is reasonable ground to believe that failure to produce the information is likely to impair the defendant’s right of confrontation. Id., 179. “Upon such a showing the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. If the consent is limited to an in camera inspection and such inspection, in the opinion of the trial judge, does not disclose relevant material then the resealed record is to be made available for appellate review. If the in camera inspection does reveal relevant material then the witness should be given an opportunity to decide whether to consent to the release of such material to the defendant or to face having her testimony stricken in the event of refusal.” Id., 179-80.

In this case, we find that the defendant did make the requisite showing under State v. Esposito, supra. During the hearing on the defendant’s motions, the victim testified as to her use of drugs and alcohol during the period in which she was assaulted by the defendant, as well as to her hospitalization for alcohol abuse, depression and attempted suicide from the date she disclosed the abuse to the authorities through the date of trial. Absent any knowledge of the contents of the psychiatric records, neither we nor the trial court can determine whether they include relevant impeaching evidence that was not cumulative or contrary to her testimony. We therefore conclude that the trial court should have conducted an in camera inspection of the records to ascertain whether they contained information about the mental condition of the victim that would have been admissible to impeach her testimony, thus affording the defendant the full right of confrontation.

The case must be remanded to the trial judge for the purpose of conducting an in camera inspection of the psychiatric records of the victim. In the event that the victim refuses to consent to waive her statutory privilege against disclosure for the purpose of such inquiry, her testimony at trial must be wholly stricken, and, since she was the only witness to the crimes, the defendant must be acquitted due to the insufficiency of the evidence. If, however, the victim consents to the in camera inspection of the records, a new trial must be granted if the trial court finds relevant evidence that would be admissible for impeachment purposes. On the other hand, if no such evidence is found, the judgment of conviction must stand.

Although we remand this case for proceedings consistent with this opinion, our review of the case does not end here. Because the trial court may determine that the records may not be disclosed to the defendant, we must address the remaining issues on appeal.

II

The defendant’s second claim is that the trial court erred when it prevented the defendant’s witness, Gail Bacon, from testifying as to her opinion of the victim’s reputation for truth and veracity.

Bacon knew the victim through Bacon’s employment as a librarian at the elementary school that the victim attended. She was also a Girl Scout leader and knew the victim when she was a scout in Bacon’s troop from 1977 to 1980. Bacon did not have any contact, however, with the victim or any of the victim’s friends during the three year period prior to trial. The trial court ruled that Bacon could testify as to her personal opinion, but that she could not testify concerning the victim’s reputation for truth and veracity since she was not familiar with the victim’s reputation in the community and could only testify as to remote events.

In Connecticut, evidence relating to the truth and veracity of a witness may be elicited in one of two ways. First, the veracity of a witness may be attacked by evidence of the witness’ general reputation in the community for veracity. State v. Gelinas, 160 Conn. 366, 367, 279 A.2d 552 (1971). A witness’ character for veracity may also be proven by opinion evidence of those who have had an opportunity to form, and who have formed, an opinion as to the character of the witness with respect to truth and veracity. State v. Gelinas, supra, 368; State v. Cox, 7 Conn. App. 377, 385, 509 A.2d 36 (1986).

“Whether a witness has had sufficient contact with a person to be qualified to testify as to a particular character trait is a matter peculiarly within the discretion of the trial court and ‘its ruling will be disturbed only in a clear case of abuse or of some error in law.’ ” State v. Egan, 9 Conn. App. 59, 64, 514 A.2d 493, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986), quoting State v. George, 194 Conn. 361, 368-69, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). A review of the record indicates that the trial court did not abuse its discretion. The evidence presented showed that Bacon had no personal contact with the victim in the three years prior to trial. The only grounds for the witness’ knowledge of the victim’s reputation were events that occurred at least six years prior to trial and stories that she had heard from her nieces. It was clearly within the trial judge’s discretion to exclude character evidence that was too remote in time to be significant. See State v. George, supra, 368; McCormick, Evidence (3d Ed.) § 44. Moreover, we cannot conclude that the trial court abused its discretion in disallowing the evidence for lack of a sufficient foundation.

Ill

The defendant’s third claim is that the trial court erred when it permitted the state to cross-examine two character witnesses by asking whether their favorable testimony would change if they were to assume that the defendant had committed the acts for'which he was on trial. The defendant argues that the use of such questions constitutes prejudicial error because they tend to usurp the jury’s function to determine guilt or innocence. We agree that the questions were improper.

If a defendant offers evidence of a trait of character as circumstantial evidence to prove that he acted in conformance with that trait and that it is unlikely he committed the crime charged, then the state may offer evidence to disprove the existence of the trait. State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). The state may not, however, use specific acts of misconduct to disprove the trait; id.; or to prove the guilt of the defendant as to the crime charged. State v. DeFreitas, 179 Conn. 431, 461, 426 A.2d 799 (1980). Nonetheless, the state is allowed to test the basis for the witness’ opinion. See State v. DeAngelis, 200 Conn. 224, 511 A.2d 310 (1986). “When a character witness has given his opinion as to a particular trait, the state may cross-examine that witness concerning specific acts, not to disprove the truth of such facts, but to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy.” State v. Martin, supra, 165.

It is clear that the state, in its cross-examination, attempted to test the credibility of the defendant’s character witnesses. The questions posed, however, sought speculative responses resting upon an assumption of guilt. That issue is ultimately for the jury to decide.

Although we hold that the trial court abused its discretion in allowing the improper questions, the question remains whether such error was prejudicial or harmless.

Because the error here does not involve a constitutional violation, the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). “The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” Id. The defendant has not met this burden. In the absence of any showing of prejudice, any discussion of harmfulness is speculative at best. Moreover, a review of the record and transcripts demonstrates that the evidence offered by the state, even without the state’s improper questions on cross-examination, was sufficient to prove the defendant’s guilt beyond a reasonable doubt. See State v. Flinter, 16 Conn. App. 402, 410, 548 A.2d 1 (1988). We find the error to be harmless because it could not have reasonably affected the jury’s verdict.

IV

The defendant next claims error in the court’s charge regarding the effect to be given to constancy of accusation testimony. Specifically, he claims that the charge fell short of the standards set for such a charge by this court and our Supreme Court.

“ ‘ “To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. ... In considering the charge as a whole we eschew critical dissection . . . thereby not passing upon the instructions attacked in ‘artificial isolation’from the whole charge. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” ’ ” (Citations omitted.) State v. Reddick, 15 Conn. App. 342, 351-52, 545 A.2d 1109 (1988), quoting State v. Marshall, 3 Conn. App. 126, 129, 485 A.2d 930 (1985).

The trial court charged the jury on the effect to be given to constancy of accusation testimony as follows: “To corroborate [the victim’s] testimony the state is permitted to prove that outside of court she had earlier complained of the injury done to her. This evidence is admitted solely to corroborate her testimony in court . . . . It is to be considered by you only in determining that to the extent you find corroboration in her out-of-court statements that you should carefully consider all of the circumstances under which they were made. The fact that she made them out of court is not being offered to prove that it happened but merely that she claimed it happened, to corroborate her testimony in this courtroom that these things happened. ” (Emphasis added.) It is clear that the charge given complied with our standards on the admissibility of constancy of accusation testimony. See State v. Ouellette, 190 Conn. 84, 459 A.2d 1005 (1983). We find that the charge, taken as a whole, could not have misled the jury as to the weight and effect to be given to such testimony.

Y

The defendant’s final claim of error concerns the court’s charge on the sexual assault count. Specifically, he claims that the court’s charge improperly marshaled evidence in favor of the state. The defendant’s exception to the charge, however, referred only to the number of assaults the state was required to prove under the information. The ground claimed on appeal was not distinctly presented to the trial court as required by Practice Book § 288. We are not bound to consider it here. State v. Bradley, 12 Conn. App. 163, 167-68, 529 A.2d 1343, cert. denied, 205 Conn. 810, 532 A.2d 76 (1987).

There is error and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       General Statutes § 53-21 provides in part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child . . . .”

       General Statutes § 52-146e protects psychiatric records from disclosure.

       We find it persuasive that the federal courts that have addressed this issue have held that questions of character witnesses on cross-examination that are framed so as to assume that the defendant is guilty as charged, are improper. See, e.g., United States v. Williams, 738 F.2d 172, 177 (7th Cir. 1984); United States v. Polsinelli, 649 F.2d 793, 797 (10th Cir. 1981); United States v. Candelaria-Gonzalez, 547 F.2d 291, 294 (5th Cir. 1977).

       The defendant also claims error in the court’s supplemental charge on constancy of accusation testimony. A review of the transcript indicates that he did not except to the supplemental charge. This failure sends a powerful signal that he did not perceive the charge as erroneous. See State v. Mancinone, 15 Conn. 251, 277, 545 A.2d 1131 (1988). Moreover, we are not bound to consider claims of law not distinctly raised in the trial court. Practice Book § 288; State v. Bradley, 12 Conn. App. 163, 167-68, 529 A.2d 1343, cert. denied, 205 Conn. 810, 532 A.2d 76 (1987).

       The defendant’s exception reads as follows: “I would except to the portion of the charge where your Honor emphasized that it only had to happen once under the sexual assault statute because the — they’re going to have the information with them and it becomes — when the information says on diverse days between 1980 and 1986, the information seems to imply more than once, and, I think the state is stuck with this information and I would argue that it’s got to be a more than once situation here.”


text:
    State of Connecticut v. William Velez
    (6667)
    Borden, Daly and O’Connell, Js.
    Argued October 13
    decision released December 13, 1988

      John R. Williams, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judg-

ment of conviction, after a jury trial, of two counts of risk of injury to a minor in violation of General Statutes § 53-21, and one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l). He claims that the judgment of conviction must be reversed on the following grounds: (1) the trial court erred in admitting certain constancy of accusation testimony; (2) the trial court erred by prohibiting the defendant from presenting certain evidence to impeach the credibility of the witnesses against him; (3) certain comments made by the assistant state’s attorney during final argument undermined the requirement of proof beyond a reasonable doubt; and (4) the court’s jury instructions permitted a verdict that was not unanimous. We find no error.

The jury could reasonably have found the following facts. The two female victims were E, age nine, and her sister, A, age seven. In the summer of 1986, their mother occasionally left them with the defendant while she went shopping with the defendant’s wife. On one occasion, E was watching a movie entitled “Mother’s Day” on a video cassette recorder in the defendant’s bedroom, while A was playing in the living room. The defendant was wearing shorts but no shirt. E got under the bed covers with the defendant. The defendant unzipped E’s pants, put his hand inside her pants and touched her genital area. He did not remove his shorts but he did expose his penis. On another occasion, the defendant took A into his bedroom, where he pulled down her pants and put his penis into her vagina.

I

The defendant first claims that the trial erred by admitting certain constancy of accusation testimony (1) because the testimony was not consistent with that of the victim, and (2) because the court did not make an “express finding” that the statements made by the victims to the witnesses were made at times when it was natural for the victims to make them. We disagree.

The facts relevant to this claim are as follows. E told her younger sister, A, about the incident involving the defendant when it happened, but she did not tell anyone else until near Christmastime, when she told her babysitter, Brunilda Mercado. Both E and A testified that they had told their mother, a doctor, a police officer and a counselor about what the defendant had done to them. Over the defendant’s objection and exception, these witnesses testified as constancy of accusation witnesses. Mercado testified that on December 29, 1986, E and A described to her what the defendant had done to them. Evelyn Vega, the mother of the victims, testified that near Christmastime, 1986, and later, when the victims were in counseling, they had told her what the defendant had done to them. Rosemary Klenk, a pediatrician, testified that she had examined the vietims on January 5, 1987. Sergeant Robert S. Braccia of the Stamford police department testified that he had interviewed the victims on December 30, 1986. Similarly, Anna Badini, a psychologist, testified that between February and June, 1987, when she was treating the victims, they had described to her what the defendant had done to them. Each of these witnesses related the victims’ descriptions of the defendant’s conduct.

We first consider the defendant’s argument that the testimony of the witnesses should have been excluded because in certain particulars it was inconsistent with the testimony of the victims. Although our Supreme Court has analyzed constancy of accusation testimony as “a subcategory of prior consistent statement evidence”; State v. Ouellette, 190 Conn. 84, 98, 459 A.2d 1005 (1983); neither the Supreme Court nor this court has required as a condition of its admissibility that there be no inconsistencies between the victim’s testimony and that of the constancy of accusation witness. The witness may recount the details of the statement made to him by the victim, provided that the victim first testifies “concerning the offense” and “identifies the persons to whom she made the statement.” Id., 97. Any inconsistencies between the victim’s testimony and the testimony of the witness are left to the jury for a determination of whether the victim was constant and consistent in relating what had happened to her. State v. Brigandi, 186 Conn. 521, 531, 442 A.2d 927 (1982).

The defendant also argues that the evidence was inadmissible because the court did not make an “express finding” that the statements by the victims to the witnesses were made at a time when it was natural for the victims to make them. The defendant does not argue that there was no evidence from which the court could make such an express finding. Rather, he contends that State v. Ouellette, supra, 99-100, requires such an express finding as a precondition to admissibility. This contention is based on language in State v. Ouellette, supra, 99, that before constancy of accusation testimony can be admitted, “the trial court must find, under the circumstances in each case . . . that the statement was made at a time when it was natural to make it . . . . ” See also id., 100; Bodak v. Masotti, 14 Conn. App. 347, 354, 540 A.2d 719 (1988) (finding of impeachment by recent fabrication must be made before prior consistent statement can be admitted). The state argues that such an express finding is not a precondition of admissibility, and that any delay between the time of the offense and when the victim told the witness is a matter of the weight of the testimony rather than its admissibility. State v. Brigandi, supra, 529. We need not resolve this dispute, however, because in this case the trial court did find, in effect, that the statements were made at the requisite time.

Mercado was the first constancy of accusation witness. In the trial court, the defendant, citing State v. Ouellette, supra, objected on the ground that the statements to Mercado were not made when it was natural for the victims to make them. The court overruled the objection noting the date of the victims’ conversation with Mercado, and noting also that it must “[t]ake into consideration . . . that these are children under the age of sixteen who are making the complaint.” It also noted that “our statutes . . . recognize that there may be a delay between the alleged act performed upon a child and the initial complaint.” We read this as the functional equivalent of a finding by the court that the statements were made to Mercado when it was natural for the victims to make them. Even if State v. Ouellette, supra, requires an appropriate finding by the court as a precondition to the admissibility of constancy of accusation testimony, we do not read it as requiring the talismanic use of the word “find” in its ruling. Whatever the contours of Ouellette, they are satisfied where, as here, it is clear that the court considered the issue of the timing of the victim’s statement and articulated on the record its determination that the timing of the statement was natural.

As to the testimony of the other constancy of accusation witnesses, there was no comparable colloquy between the court and counsel, because in each instance the defendant’s objection consisted of a shorthand reference to his earlier objection, and the court’s ruling, in similar fashion, referred to its earlier ruling. Under these circumstances, we regard the court’s rulings as having incorporated the finding it made earlier in overruling the defendant’s objection to Mercado’s testimony. This is particularly true because the evidence indicated that the victims told their mother immediately after telling Mercado, that they told Braccia the next day when their mother brought them to the police department, that their statements to Klenk were made only five days later, when she examined the victims, and that their statements to Badini were made over the next five months while she was treating them.

II

The defendant next claims that the court erred in two evidentiary rulings that he claims impaired his right of cross-examination and his right to present a defense. These claims are without merit.

The first claim concerns the defendant’s cross-examination of Vega, the mother of the victims. She had testified that she and the defendant’s wife, Nilda Velez, had had an argument two months before she found out about the defendant’s conduct with her daughters, and that thereafter she did not bring her daughters to the defendant’s house. The defendant asked what the fight was about. The court sustained the state’s objection on the ground that the question concerned an issue that was “too peripheral” and irrelevant to the case.

The defendant claims that the court’s ruling curtailed his right to cross-examine Vega for bias. He argues that his offer of proof at trial was that he would show that Nilda Velez had accused Vega of corrupting the victims by her own behavior, and that Vega fabricated her accusations against the defendant and influenced her daughters to do the same in retaliation against Nilda Velez. The defendant’s argument, however, misdescribes the offer of proof at trial. The defendant’s offer of proof was that the argument concerned the way that Vega was raising the children, and that “there is influence a child feels towards its parents when they see that the parent is being attacked by an outside party — that they will retaliate.” Thus, the claim at trial was not that Vega had retaliated or influenced the victims to do so, but that the victims did so on their own in order to avenge the false accusation against their mother.

Thus, the defendant presents on appeal a theory of admissibility that was not presented to or ruled upon by the trial court. He is not entitled to review of such a claim, and we decline to do so. DiSorbo v. Grand Associates One Limited Partnership, 8 Conn. App. 203, 208-209, 512 A.2d 940 (1986). The defendant does not challenge the propriety of the ruling made in response to the actual offer of proof. Furthermore, Vega testified that the argument did not take place in front of the victims, and neither the testimony of Nilda Velez nor that of the defendant supported the defendant’s theory of admissibility as stated in the trial court. Thus, there is simply no basis on which to find error in the court’s ruling.

The defendant’s second evidentiary claim is that the court erred by excluding from evidence a certain video cassette recorder film entitled “Mother’s Day,” and the defendant’s testimony regarding it. He argues (1) that the film would have impeached the credibility of E by contradicting her testimony regarding the film, and (2) that the film and his testimony would have supported his defense, namely, that the victims had fabricated their stories, by establishing an independent source from which they could have imagined the activities they described in their testimony. We disagree.

E testified that she had watched the film at the defendant’s house both on the day of the incident and on other occasions. She also testified that there was nothing in the film like what had happened to her. The defendant testified on direct examination that both victims had watched the film at his house. He then sought to introduce the film and to testify that the film portrayed a sexual assault on a woman dressed as a young girl. The court, after viewing the relevant portion of the film, found that it contained scenes of women bound and gagged, and of a woman, dressed in children’s clothes, who was grabbed in a park, beaten, and had her blouse removed. The court found that it did not show a vaginal area, a penis, or a man on a bed with a young child. It also found that there was nothing in the film that was similar to what E had described in her testimony, and nothing that an eight or ten year old child would view as similar to the defendant’s conduct with the victims as described by them. The court thus concluded that the film provided no foundation for the defendant’s claim of contradiction and fabrication, and sustained the state’s objection. The court’s factual findings are fatal to both the defendant’s arguments.

Whether extrinsic evidence contradicts testimony of a witness so as to require its introduction into evidence for impeachment purposes is within the trial court’s discretion, subject to review only for abuse of that discretion. See, e.g., L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 50-51, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). The trial court did not abuse its discretion in finding that the film and the defendant’s description of it would not contradict E’s testimony. Similarly, although a defendant has a due process right to present a defense; State v. Bryant, 202 Conn. 676, 704, 523 A.2d 451 (1987); that does not permit him to present evidence that is irrelevant or otherwise inadmissible. State v. Rogers, 9 Conn. App. 208, 214, 518 A.2d 399 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1288 (1987). The trial court acted well within its discretion when it found, after viewing the film, that there was no similarity between the film and the victims’ testimony. This finding is amply supported by the court’s factual description of the film. Thus, the court was justified in rejecting the offer of the film and of the defendant’s testimony as a basis for the defendant’s claim of fabrication by the victims.

Ill

The defendant next claims that the assistant state’s attorney undermined the requirement of proof beyond a reasonable doubt by arguing to the jury that the issue before it was whether to believe the defendant or the victims. The defendant seeks review of this claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because he did not object to the argument at the trial. Under our formulation for Evans review, we decline to review the claim fully because, although the defendant places a constitutional label on the claim, a limited review of the record clearly discloses that the claim is not truly of constitutional proportions and “is simply characterized as such by the defendant.” State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

We first note that the defendant does not claim that the assistant state’s attorney’s argument constituted prosecutorial misconduct. Compare, e.g., State v. Williams, 204 Conn. 523, 535-36, 529 A.2d 653 (1987). His brief does not mention, and he specifically disavowed at oral argument in this court, any such claim. Nor does he claim that the court gave a “comparative credibility” charge. Compare, e.g., State v. Orsini, 187 Conn. 264, 276, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982). His claim is that the assistant state’s attorney’s remarks during final argument should be viewed like jury instructions delivered by the court, and that the remarks so viewed undermined the state’s burden of proof.

The functions of final argument by the attorneys and jury instructions by the court are obviously quite different. We know of no authority, reason or policy to equate the two in the context of this case. Even comparative credibility instructions by the court must be viewed in the context of the entire charge. Id., 277. Moreover, the jury was instructed that it was the court’s duty to state the law, and that the arguments of counsel were not evidence and could be accepted or rejected by the jury. Furthermore, in this case the defendant testified that he never babysat for the victims and did not engage in the conduct that the victims described, and there was no circumstantial evidence, so that the remarks in question did not misstate the jury’s ultimate task. In fact, the defendant’s counsel argued essentially the same way to the jury. This record simply does not support the defendant’s claim.

IV

The defendant’s final claim is that the court’s instructions permitted a verdict on the two risk of injury counts that was not unanimous. Although the defendant did not properly preserve this claim at trial, it is reviewable under State v. Evans, supra. State v. Mancinone, 15 Conn. App. 251, 273, 545 A.2d 1131 (1988). We reject the defendant’s claim.

With respect to each victim, the information charged the defendant with violating General Statutes § 53-21 under both statutory theories, namely, placing a victim in such a situation that her morals were likely to be impaired, and doing an act likely to impair her health and morals. The court instructed the jury that proof beyond a reasonable doubt that the defendant violated either or both parts of the statute would suffice for a guilty verdict on that count. The court did not give a specific unanimity instruction focused on each part of the statute.

With respect to E, the court charged that the state’s evidence supporting the harmful situation theory was that the defendant partially undressed himself while alone with the victim in his bedroom, displayed his penis to her, pulled her pants down and had contact with her vagina. The court charged that the evidence supporting the harmful act theory was that the defendant touched the victim’s vagina.

With respect to A, the court charged that the evidence supporting the harmful situation theory was that the defendant partially undressed himself while alone with the victim in his bedroom, displayed his penis to her and pulled her pants down so as to reveal her vagina. The court charged that the evidence to support the harmful act theory was that the defendant engaged in sexual intercourse with the victim, and had contact with the victim’s vagina with his penis or hands.

The defendant argues that under the principles stated in State v. Benite, 6 Conn. App. 667, 507 A.2d 478 (1986), and its progeny; see, e.g., State v. Jackson, 13 Conn. App. 288, 535 A.2d 1327 (1988); the court was required to instruct the jury that its verdict must be unanimous with respect to each of the statutory theories, because the theories are conceptually distinct from each other. We conclude, however, that no such specific unanimity instruction was required in this case.

The specific unanimity instruction that the defendant seeks here “is required only where a trial court charges a jury that the commission of any one of several alternative actions would subject a defendant to criminal liability, and those actions are conceptually distinct from each other, and the state has presented some evidence supporting each alternative.” State v. Benite, supra, 674-75. The Benite rule “does not apply . . . where the multiple factual allegations do not amount to multiple statutory subsections or to multiple statutory elements of the offense.” State v. Mancinone, supra, 274. “Where, however, the jury is presented with alternative, conceptually distinct statutory subsections, or with alternative, conceptually distinct elements of the same statute, as possible bases for guilt, the principles of Benite come into play, because it is in those situations that ‘the possibility that the jurors may actually disagree on which alternative, if either, the defendant violated is the highest.’ ” Id., 276, quoting State v. Benite, supra, 674. Application of these principles to General Statutes § 53-21, the risk of injury statute, as it was presented to the jury under the facts of this case, leads us to conclude that no such specific unanimity instruction was required.

It is true that “General Statutes § 53-21 proscribes ‘two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare; see State v. Smith, 149 Conn. 487, 181 A.2d 446 [1962]; and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. See State v. Coulombe, 143 Conn. 604, 124 A.2d 518 [1956]; State v. Silver, 139 Conn. 234, 93 A.2d 154 [1952].’ ” State v. Newton, 8 Conn. App. 528, 532, 513 A.2d 1261 (1986), quoting State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). It is also true that these two general types of behavior have been viewed for purposes other than the unanimity requirement as separate and distinct. See, e.g., State v. Dennis, supra (specific intent not required for second part of the statute); State v. Newton, supra (impermissible enlargement of crime charged to instruct jury on both parts of statute when only one charged in information). We do not doubt that in an appropriate case the facts alleged by the state under one part of the statute could be conceptually distinct from the facts alleged under the other part.

Whether a specific unanimity instruction is required in any case turns, not only on the language of the two statutory subsections or elements, but also on the evidence in the case and how the case is presented to the jury in the court’s instructions. See State v. Jackson, 13 Conn. App. 288, 294, 297, 535 A.2d 1327 (1988). Where the evidence indicates that varying actions of the defendant are not conceptually distinct from each other; see State v. Mancinone, supra, 277; or where the court’s instructions eliminate any conceptual distinction; see State v. Jackson, supra, 296; a specific unanimity instruction is not required.

In this case, the two categories of the defendant’s conduct, although stated by the court to fall within the two different statutory theories, were not conceptually distinct from each other. With respect to E, the defendant’s conduct as presented to the jury under the first part of the statute was undressing both himself and the victim so as to reveal their genitals, and having contact with her vagina; under the second part, it was touching her vagina. With respect to A, the defendant’s conduct under the first part of the statute was undressing both himself and the victim so as to reveal their genitals; under the second part, it was engaging in sexual intercourse and having contact with her vagina by use of his penis or hands. These are not conceptually distinct actions. They both involve sexual activity by the adult defendant with the very young female victims, likely to be harmful to their physical, emotional and moral well-being. Cf. State v. Mancinone, supra (giving teenage girls liquor and marihuana not conceptually distinct activities).

Thus, this is not a case in which the jury, in order to determine whether the defendant was guilty under either or both of the two separate statutory subsections, was required to determine whether he engaged in two separate sets of conduct that were conceptually distinct. This is a case in which the jury was required to determine only whether the defendant engaged in one course of conduct, namely, sexual activity with each victim, which could then, under the instructions of the court, be allocated by the jury to either or both statutory subsections. Under these circumstances, the unanimity principles articulated in Benite do not apply.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-71 (a) (1) provides: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       The court was referring to General Statutes § 53a-69, which provides, inter alia, that where the victim of a sex-related offense is less than sixteen years of age, the time limitation for a complaint is extended to “within one year after a parent, guardian, or other competent person specially interested in the alleged victim learns of the offense.”

       For example, the following colloquy took place when Braccia testified:
      “Mr. Feinstein [counsel for the defendant]: Well, I will make the same objection that I made to the previous witnesses, please, Your Honor.
      “The Court: All right. Same ruling.
      “Mr. Feinstein: Thank you. Exception.”

       Although the defendant in his brief refers to impeachment of both victims by contradiction of their testimony, he points only to the testimony of E regarding the film. We therefore consider the claim as limited to her credibility.

       The specific remarks in question are as follows: “This case boils down basically to credibility. [E] said that in the summer of 1986, William Velez touched her private parts with his hand in a certain way in a certain location in a certain manner under certain circumstances and she said he did. He says he didn’t.
      “[A] says that William Velez put his thing in her thing. She said on many occasions what she meant by that — she said it hurt. Mr. Feinstein asked if it hurt on the inside or the outside. She said that it hurt both on the inside and on the outside. William Velez says it never happened. The rest is very— you have to try and decide taking the other evidence into consideration, applying your common sense in your judgment about people, your judgment about character who to believe. You don’t have to be an expert to do that.
      “And then consider some of the things that I’ve said and decide today or whenever whether or not you can choose to believe Willie Velez and disbelieve [E] and [A], I don’t think that’s a choice you have. But it’s for you to decide, not me. Thank you.”


author: Stoughton, J.

text:
    State of Connecticut v. Annette Webley
    (6006)
    O’Connell, Stoughton and Norcott, Js.
    Argued October 18
    decision released December 20, 1988

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant elected to be tried to a jury on a charge of assault in the first degree in violation of General Statutes § 53a-59. She was convicted of the lesser included offense of assault in the second degree, General Statutes § 53a-60, and appeals from the judgment rendered on the conviction. She claims that the trial court erred when it (1) refused to instruct the jury on the issue of self-defense, (2) excluded evidence of the victim’s character and reputation for violence, (3) excluded certain out-of-court statements as hearsay, (4) made improper remarks that substantially impaired the defendant’s right to a fair trial, (5) instructed the jury in a manner that deprived the defendant of a unanimous jury verdict, (6) instructed the jury on the definition of use of a deadly weapon, and (7) allowed the state to impeach two defense witnesses by questioning their pretrial silence. We find error.

There was evidence at the trial from which the jury might reasonably have found the following facts. On April 30,1986, the defendant, Annette Webley, visited her boyfriend, Ray Moses, at a halfway house at which he was living. Upon arriving there, the defendant found Patrice Nevers seated on Moses’s lap. The defendant became upset, started yelling, and grabbed some gold chains from Moses’s neck. The defendant and Nevers started to struggle but were pulled apart. The defendant left, and about one-half hour later Nevers and two friends went to the defendant’s apartment in an attempt to get the chains back. In front of the defendant’s apartment, the defendant and her sister were confronted by Nevers who told the defendant that Nevers and Moses were going to get an apartment together. The defendant tried to get away but Nevers pursued her until she was backed up against a parked car. The defendant slapped Nevers’s face and they started to fight. Nevers grabbed the defendant’s neck and started to choke her. They both fell to the ground with Nevers on top of the defendant and still choking her. Nevers first became aware that the defendant had a knife when Nevers’s face was cut. She then yelled that the defendant had a knife and her two friends stopped the fight. One of them grabbed the defendant’s knife and threw it down the street. Once Nevers and the defendant were separated, Nevers went to her car and grabbed a baseball bat and chased the defendant until the defendant jumped into her sister’s car.

Nevers was taken to Bridgeport Hospital where she remained for six days; she was treated for stab wounds to the neck, face, and abdomen. The stomach wound was six to eight inches deep and resulted in a lacerated spleen. Michael Daiuto, a physician, testified that these injuries created a serious impairment to Nevers’s health.

The defendant’s first claim is that she was entitled to a charge on self-defense, and that the trial court erred in refusing to give such a charge. We note that a charge on self-defense was requested. The state claims that the trial court did not err because there was insufficient evidence presented at trial to warrant a self-defense charge.

Self-defense, pursuant to General Statutes §§ 53a-19 and 53a-16, raises a defense that the charged offense was justified under the circumstances. Consequently, the state has “the burden of disproving such defense beyond a reasonable doubt.” General Statutes § 53a-12 (a). “[W]hen there is evidence indicating the availability of a recognized defense, a defendant is entitled as a matter of law to a theory of defense instruction.” State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983). In reviewing the defendant’s claim that she was entitled to this instruction, we look at the evidence in the light most favorable to the defendant’s claim. State v. Fuller, 199 Conn. 273, 279, 506 A.2d 556 (1986); State v. Folson, 10 Conn. App. 643, 647, 525 A.2d 126 (1987).

In reviewing the evidence presented, we conclude that the defendant’s testimony provided a sufficient basis for a claim of self-defense. At trial, the defendant testified that the victim, Nevers, hit her in the face and grabbed her by the throat. The defendant testified that she was afraid of Nevers and concerned that Nevers would hurt her. She claimed that she had taken the knife out of her pocketbook to protect herself. The state claims that an accused is entitled to a self-defense instruction only after the accused admits committing the offense charged, and that in this case the accused never admitted stabbing the victim. In support of this claim, the state interprets the cases of State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979), and State v. Cassino, 188 Conn. 237, 242, 449 A.2d 154 (1982), to mean that the defendant must admit the crime in order to be entitled to a self-defense charge. The holdings in Cassino and Rosado were clarified, however, in the case of State v. Harris, supra, 274 n.4, in which the Supreme Court noted that the Cassino decision was based upon the total lack of evidence concerning self-defense, and not upon the fact that the defendant had failed to admit committing the crime. We have rejected the claim that State v. Rosado means that a defendant must admit the crime in order to receive a self-defense charge. See State v. Folson, supra, 649.

If there is any foundation in the evidence for any theory of defense, the defendant is entitled to an instruction relating to it. United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956), cited in State v. Fuller, supra, 278; see also State v. Folson, supra, 646. Accordingly, here, the defendant’s testimony that Nevers hit her and grabbed her by the throat, and that she was frightened and was attempting to defend herself against assault by Nevers, was sufficient to entitle her to an instruction on self-defense. Whether this evidence was sufficient to find that the defendant was justified pursuant to General Statutes § 53a-19 was a question for the jury. The trial court erred in refusing to instruct the jury on the issue of self-defense and a new trial is necessary.

The defendant’s second and related claim is that the trial court erred in excluding evidence of the victim’s reputation and character for violence. At trial, the defendant sought to testify as to Nevers’s reputation and character for violence. The state objected, and the defendant argued that such testimony was necessary in order to show the reasonableness of her belief that the victim was armed and would harm her. The trial court refused to allow the testimony on the ground that there was no foundation for it because the defendant had not shown that it was reasonable for her to believe that she was in danger of serious physical harm. The trial court concluded that the evidence was inadmissible because it was a collateral matter. The trial court did note that if it later determined that the defendant had put forth sufficient evidence of self-defense it would reconsider its rulings as to testimony concerning the victim’s character and reputation for violence.

“Ordinarily, upon a showing of a proper foundation for a claim of self-defense, the ‘defendant may introduce evidence of the violent character of the victim. . . . State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978).’ State v. Delgado, 8 Conn. App. 273, 286, 513 A.2d 701 (1986).” State v. Delgado, 13 Conn. App. 139, 149, 535 A.2d 371 (1987). “A victim’s violent character may be proven by reputation or opinion evidence or by showing convictions for crimes of violence. [State v. Miranda, supra]. It may not however be proven by evidence of other specific acts. Id., 112-13.” State v. Knighton, 7 Conn. App. 223, 229, 508 A.2d 772 (1986). Accordingly, the trial court erred insofar as it refused to allow the defendant to give testimony concerning the victim’s reputation and character for violence, but it did not err in refusing to allow her to prove this by evidence of other specific acts of violence. See State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982); State v. Martin, 170 Conn. 161, 164-65, 365 A.2d 104 (1976); State v. Knighton, supra, 229.

Our determination to order a new trial makes it unnecessary to address the defendant’s remaining claims because it is unlikely that the same issues will arise at another trial.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-19 provides: “use of physical force in DEFENSE of PERSON, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The defendant also raises myriad claims and arguments by way of footnotes in her brief. This practice violates Practice Book § 4065 (d). See State v. Reddick, 15 Conn. App. 342, 343, 545 A.2d 1109 (1988). Moreover, we will not allow the use of extended footnotes to defeat the limitations imposed by Practice Book §§ 4071 and 2006. Consequently, we will not review claims and arguments thus raised.

       General Statutes § 53a-16 provides: “justification as a defense. In any prosecution for an offense, justification as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense.”

       General Statutes § 53a-12 provides in pertinent part: “defenses; burden of PROOF, (a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.”


text:
    Morgan Scott Peck et al. v. S. Benedict Levin et al.
    (6257)
    Borden, O’Connell and Stoughton, Js.
    Argued November 2
    decision released December 27, 1988

      Jacob Wieselman, with whom, on the brief, was Christopher C. Sheehan, for the appellants (defendants).

      William C. Franklin, for the appellees (plaintiffs).
   Per Curiam.

The defendants appeal from a judgment granting injunctive relief to the plaintiffs. We find no error.

The parties own adjoining parcels of land and the defendants, for the last fifteen years, have disputed the right of the plaintiffs to use an old dirt road to reach a garage and barn. In 1983, the parties instituted lawsuits against each other, which were settled and withdrawn in 1985. Under the terms of the settlement, the plaintiffs conveyed by quit claim deed all such interest as they had in the disputed area, and the defendants executed a roadway easement granting the plaintiffs, their survivors and their heirs and assigns the right to use the old road as a driveway and to maintain it for that purpose.

The plaintiffs instituted this action alleging that the defendants had erected a fence and planted shrubbery in the easement and sought to have the obstructions removed and to enjoin the defendants from constructing any other obstructions on any portion of the easement. The defendants alleged that the settlement agreement had been procured by fraud, and that the plaintiffs had breached the terms of the settlement agreement.

The trial court found in favor of the plaintiffs, enjoined the defendants from placing any obstruction within the twenty-four foot wide strip of land and ordered them to remove a fence and a juniper bush from it.

The defendants claim that the court erred (1) in determining that the easement is twenty-four feet in width, and (2) in determining that the defendants materially interfered with the plaintiffs’ use of the easement.

It is well established that we will neither retry facts nor pass upon credibility of witnesses and the weight to be accorded evidence. We are limited in our review to determining whether the judgment of the trial court was clearly erroneous or contrary to law. Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., 15 Conn. App. 804, 543 A.2d 287 (1988). After review of the record and briefs, we conclude that the trial court’s findings of fact were supported by the evidence and that those findings support its conclusions.

There is no error.