author: WEST, J.

text:
    STATE OF CONNECTICUT v. NOEL DAVILA
    (AC 21760) (AC 21900)
    Bishop, West and Hennessy, Js.

      Argued December 2, 2002
    officially released March 11, 2003

      David B. Rozwaski, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Stephen J. Sedensky III, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant in these consolidated appeals, Noel Davila, appeals from the judgments of conviction, rendered following jury trials, of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21, reckless endangerment in the first degree in violation of General Statutes § 53a-63, criminal possession of a firearm in violation of General Statutes § 53a-217, carrying a pistol without a permit in violation of General Statutes § 29-35 and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant challenges (1) the sufficiency of the evidence supporting the conviction for risk of injury to a child, (2) the sufficiency of the evidence supporting the conviction for reckless endangerment in the first degree and (3) the court’s denial of his motion in limine seeking to exclude evidence of crimes for which he had been acquitted previously.

The jury reasonably could have found the following facts. Angela Velez, Julio Alvarez and five minor children resided in a first floor apartment at 203 Calhoun Avenue in Bridgeport. On the afternoon of May 1,1999, the defendant, wearing a black, long sleeved, hooded sweatshirt, appeared at the back door of the victims’ apartment and asked Velez if he could speak to Alvarez. Velez refused the defendant’s request because Alvarez was having lunch at that time. The defendant then brandished a pistol and attempted to force his way into the apartment. Velez called out to Alvarez that somebody was trying to break into the apartment. Unsuccessful in his attempt to gain entry, the defendant fired several gunshots into the apartment through various first floor windows. During the shooting, Velez gathered the five children together and fled the apartment, bringing the children to a nearby liquor store. The owner of the liquor store called the police, who arrived at the scene shortly thereafter.

The defendant, meanwhile, fled on foot to his sister’s apartment, which was not far from the scene of the shooting. Once at the apartment, the defendant changed shirts and hid the pistol under the cushions of the living room sofa. Police apprehended the defendant at the apartment, where they also recovered the weapon and the sweatshirt. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence presented at trial was insufficient to support his conviction of risk of injury to a child. Specifically, he argues that (1) there was no evidence that he was aware that there was more than one child in the home when the gunshots were fired, (2) there was no evidence that any of the children sustained actual injuries and (3) the testimony of the mother establishes that the children already had fled to a neighboring liquor store by the time that the gunshots were fired. Those arguments are unavailing.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 282, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

A

We first address the defendant’s argument that the evidence was insufficient to support his conviction for risk of injury to a child because there was no evidence that any of the children sustained actual injuries.

General Statutes (Rev. to 1999) § 53-21 provides in relevant part that “[a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.” “[T]he charge of risk of injury to a child does not require proof of an actual injury, but only that the actions of the defendant exposed the victim to a situation that potentially could impair his health.” State v. Peters, 40 Conn. App. 805, 828-29, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677 A.2d 949 (1996). The relevant inquiry is whether the defendant committed any act that was likely to endanger the life or limb, or impair the health, of the children, not whether the children actually were injured. “Lack of an actual injury to either the physical health or morals of the victim is irrelevant . . . actual injury is not an element of the offense.” (Citation omitted; internal quotation marks omitted.) State v. Sullivan, 11 Conn. App. 80, 98, 525 A.2d 1353 (1987). “[T]he creation of a prohibited situation is sufficient.” States. Perruccio, 192 Conn. 154, 160, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984).

In the present case, the jury heard sufficient evidence that, if credited, would support its finding that the defendant’s actions created a risk of injury to five children younger than sixteen years of age. Velez testified that all five children were present inside the apartment during the shooting. As the shooting began, the children were gathered in the living room. Police later recovered two bullet fragments from stereo speakers in the living room. The victims’ landlord, Fernando Queiroz, testified that there also were bullet holes in the kitchen and in the bedroom walls. Officer Joseph Hernandez testified that not all of the bullets were recovered because some had lodged in the walls and studs of the apartment, making retrieval difficult. From that evidence, the jury reasonably could have concluded that the defendant’s action in firing the pistol into the apartment created a situation that endangered the children present in the apartment.

B

The defendant also argues that he was unaware of the presence of more than one child in the apartment when the gunshots were fired. That argument is unavailing.

Regardless of whether the defendant knew that the children were in the apartment, the jury reasonably could have found that he violated the statute on the basis of his reckless disregard of the consequences of his actions. It is not necessary, to support a conviction under § 53-21, that the defendant be aware that his conduct is likely to impact a child younger than the age of sixteen years. Specific intent is not a necessary requirement of the statute. Rather, the intent to do some act coupled with a “reckless disregard of the consequences”; State v. Cutro, 37 Conn. App. 534, 540, 657 A.2d 239 (1995); of that act is sufficient to find a violation of the statute. Id., 539-40. Applying that standard, we conclude, on the basis of the evidence presented at trial, that the jury reasonably could have found that the defendant acted wilfully in firing his pistol into the apartment and that his conduct was of such a character that it demonstrated a reckless disregard of the consequences. See id.

II

The defendant also claims that the evidence presented at trial was insufficient to support his conviction of reckless endangerment in the first degree in violation of § 53a-63. We disagree.

The defendant bases his claim on his interpretation of the testimony offered at trial. Specifically, the defendant argues that the testimony establishes that Velez was not in the specific room into which the weapon was fired. Therefore, he argues, Velez never was at risk of injury. We are unpersuaded. The defendant’s argument ignores both the evidence presented in the case and the common sense and logic on which jurors are expected to rely in their deliberations.

General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.” General Statutes § 53a-3 (13) provides: “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. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” Thus, the jury had to consider objectively the nature and degree of the risk and the defendant’s subjective awareness of that risk. “Subjective realization of a risk may be inferred from a person’s words and conduct when viewed in the light of the surrounding circumstances. LaFave and Scott, Criminal Law (2d Ed.) § 30.” State v. Ghiloni, 35 Conn. Sup. 570, 573, 398 A.2d 1204 (1978).

The defendant was aware that Velez was in the apartment when he began firing his pistol through the windows. Thus, the defendant cannot argue that he was unaware of the potential risk inherent in his actions. Analyzing the nature and degree of the risk objectively, we conclude that the jury had sufficient evidence to support a conviction. Bullets were recovered from the apartment’s kitchen and living room, which had been occupied at various moments during the shooting. Bullet holes also were discovered in the kitchen and in the bedroom walls. In addition, Hernandez testified that bullets tend to travel through walls.

In the present case, we conclude that the jury reasonably could have concluded that the defendant was aware that firing a pistol into an occupied apartment could result in serious physical injury to the occupants and, further, that the nature and degree of that risk reflects an extreme indifference to human life and constitutes a gross deviation from a reasonable standard of conduct.

Ill

The defendant’s final claim is that the court improperly denied his motion in limine to exclude evidence in support of the charge of assault in the first degree. We decline to review the claim because it is moot in light of the defendant’s acquittal of that charge.

The defendant argues that the state’s prosecution of the assault charge violated his constitutional right to be free of being placed twice in jeopardy for the same offense. See State v. Butler, 262 Conn. 167, 174, 810 A.2d 791 (2002). Specifically, he argues that because the evidence relied on to prosecute the assault charge was identical to that used to prosecute him on the attempt to commit murder charge, of which he was found not guilty at his first trial, the state should have been precluded from relitigating those facts under a theory of collateral estoppel. See State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990) (collateral estoppel is protection included in fifth amendment guarantee against double jeopardy), cert. denied, 498 U.S. 1089, 111 S. Ct. 968, 112 L. Ed. 2d 1054 (1991).

In the first trial, the state had charged the defendant with, among other counts, attempt to commit murder and assault in the first degree. The jury acquitted the defendant on the charge of attempt to commit murder, but was deadlocked on the assault charge. The defendant argues that the acquittal amounts to a favorable finding of fact on the evidence presented and that the state should have been collaterally estopped from relitigating those facts during its subsequent prosecution for assault in the first degree.

We conclude, however, that that the issue is moot because the defendant was acquitted on the assault count in the second trial. See State v. Rumore, 28 Conn. App. 402, 412, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). Accordingly, we decline to review the claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       In his first trial, the defendant was convicted of possession of narcotics in violation of General Statutes § 21a-279 (a). He has appealed from the judgment of conviction. At that trial, in which he was acquitted of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, the jury was deadlocked as to the remainder of the charges, and the court declared a mistrial. On retrial, the defendant was convicted of the charges that led to the mistrial. He then filed a separate appeal from that judgment of conviction. This court thereafter ordered the appeals consolidated.

       We note that although the defendant’s consolidated appeals purport to challenge, inter alia, the judgments of conviction on the charges of criminal possession of a firearm in violation of General Statutes § 53a-217, carrying a pistol without a permit in violation of General Statutes § 29-35 and possession of narcotics in violation of General Statutes § 21a-279 (a), he has not briefed those claims and, accordingly, we deem them abandoned. See Annunziata v. Commissioner of Correction, 74 Conn. App. 9, 13, 810 A.2d 287 (2002).

       The defendant asked for Alvarez, using his nickname, “Matruki;

       As an initial matter, we reject the defendant’s attempt to characterize Velez’s testimony as establishing that the children had fled the apartment prior to the commencement of the shooting. Although the statement that Velez gave to the police at the time of the incident suggested that she and the children already were at the liquor store when the shooting began, Velez’s testimony at trial indicated that the children were present in the apartment when the shooting began. As the sole arbiters of the credibility of witnesses, it was within the jury’s province to resolve any apparent discrepancy between those statements. State v. Alvarado, 62 Conn. App. 102, 110-11, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). The verdict indicates that the jury chose to credit Velez’s testimony. We conclude that the evidence was sufficient for the jury to have found that all five of the children were in the apartment at the time that the defendant fired the gunshots.

       See footnote 1.

       Although the defendant also claims that the state’s introduction of evidence relevant to the assault charge was prejudicial to his right to a fair trial on the other charges, he has failed to offer any analysis in support of that claim. Accordingly, we decline to address that claim and deem it abandoned. “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Citation omitted; internal quotation marks omitted.) Hill v. Bartels, 73 Conn. App. 588, 589-90, 808 A.2d 1176 (2002).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    SENCO, INC. v. FOX-RICH TEXTILES, INC.
    (AC 22539)
    Schaller, Bishop and Hennessy, Js.
    Argued December 2, 2002
    officially released March 11, 2003

      Bruce G. MacDermid, for the appellant (defendant).

      Joseph DaSilva, Jr., with whom, on the brief, was Martin A. Rader, Jr., for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant, Fox-Rich Textiles, Inc., appeals from the judgment of the trial court, rendered in favor of the plaintiff, Senco, Inc., in this action for breach of contract. On appeal, the defendant claims that the court improperly (1) denied its motion to dismiss, (2) concluded that the controversy between the parties should not have been referred for dispute resolution through arbitration, (3) concluded that the defendant breached its agreement with the plaintiff, (4) concluded that the plaintiff complied with the cure provisions of the Uniform Commercial Code (UCC) and other provisions of the UCC, (5) concluded that the plaintiff was entitled to recover damages even though the plaintiff had failed to conduct itself in accordance with applicable commercial law, (6) disregarded the “Worth Street Rules” as they pertain to textile transactions and (7) awarded interest from January 1, 1997. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the issue on appeal. The plaintiff placed an order by telephone with the defendant for 1800 yards of sixty-inch wide fabric. Following the telephone conversation, on August 20, 1996, the defendant received $2000 as a deposit for the ordered goods. By letter dated August 21, 1996, the defendant confirmed the telephone order placed by the plaintiff and the agreed on terms. The letter described the goods to be shipped and the quantity to be shipped, and included the following terms:

“Deposit to be sent before the goods begin processing, $2,000.00.

“The amount to be paid before shipment is made, $3,000.00.

“Balance of the order approximately $3,000.00 will be billed on net 30 day terms.”

On August 30,1996, the plaintiff received a document from the defendant, entitled “Sales Contract” (document). The document contained, inter alia, an arbitration provision. On September 16,1996, the plaintiff paid the balance of the telephone order, which was $3000.

The goods ordered by the plaintiff via the telephone conversation were received on or about November 25, 1996. Upon inspection, the plaintiff determined that the goods did not conform to the terms of the contract. Specifically, it received 902 yards of fabric, which was fifty-seven inches wide, as opposed to 1800 yards of fabric, which was to be sixty inches wide. As a result, the plaintiff notified the defendant of the breach and requested a refund of the purchase price of the goods.

After numerous failed attempts to resolve the dispute, the plaintiff brought an action in the Superior Court. The defendant filed a motion to dismiss the action on the ground that the parties had entered into an arbitration agreement, which precluded resorting to litigation. The court denied the motion, and the case was tried to the court. Additional facts will be set forth as necessary.

The defendant claims that the court improperly determined that the arbitration clause contained in the document was not part of the contract entered into by the parties. We disagree.

In addressing the defendant’s claim, it is crucial to first determine when the contract between the parties was formed. “The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. . . . Because the . . . claim involves a finding of fact, we must adhere to the long-standing principle that findings of fact are ordinarily left undisturbed upon judicial review.” (Internal quotation marks omitted.) Lussier v. Spinnato, 69 Conn. App. 136, 140, 794 A.2d 1008, cert. denied, 261 Conn. 910, 806 A.2d 49 (2002). A reviewing court may not “substitute its findings for those of the trier of facts. ... In a contract action, findings of fact should be overturned only when they are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Capitol Restorations Corp. v. Construction Services of Bristol, Inc., 25 Conn. App. 681, 684, 596 A.2d 927 (1991).

The court found that the contract between the parties was formed when the defendant memorialized its oral agreement with the plaintiff in the letter dated August 21, 1996. Specifically, in its oral decision, the court stated that the plaintiff “made out the existence of a contract between the plaintiff as a buyer and the defendant as a seller of goods, in this case, there was an agreement to buy and sell 1800 yards of fabric, which was to be sixty inches wide .... [T]he parties had a telephone conversation and they also generated a letter; the defendant wrote a letter to the plaintiff outlining the terms of the contract.”

The defendant concedes that there was a contract, but argues that the document, which contains the arbitration clause, was part of the agreement between the parties because it was created before the goods were shipped. Therefore, the defendant claims that the arbitration clause was a part of the contract between the parties.

On the basis of the evidence before it, the court found that the document, which contains the arbitration clause, was issued after the contract was formed. Consequently, the arbitration clause was not a contract term and therefore did not govern the dispute between the parties. More specifically, the court found that “there was a contract in existence prior [to] the issuance of the [document] . . . and that document specifically references the arbitration rules and the Worth Street Rules, which I find were not part of this contract— which don’t govern this contract.”

There is ample evidence in the record to support the court’s finding. By letter dated August 21, 1996, the defendant confirmed the telephone order placed by the plaintiff and the agreed on terms. The letter identifies the goods to be shipped, the quantity, the price of such goods and the method of payment. The telephone conversation and the subsequent letter evidence a mutual understanding of the terms of the contract between the parties that are definite and certain. The plaintiff received the document, which contains the arbitration clause, on August 30, 1996, nine days after the court determined that the contract was formed. Accordingly, the court’s finding of fact was not clearly erroneous as there is evidence in support thereof.

The judgment is affirmed.

In this opinion the other judges concurred.

      As well, the plaintiff alleged in its complaint that the defendant was unjustly enriched (count two) and violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (count three). The court found in favor of the defendant as to counts two and three.

       In its brief, the defendant addresses only issues two, three and seven, but provides no legal analysis of claim seven. “[WJhere a claim is asserted in the statement of issues but thereafter receives [no attention or] only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Moulton Bros., Inc. v. Lemieux, 74 Conn. App. 357, 363, 812 A.2d 129 (2002).
      Moreover, the defendant concedes in its brief that the court made no “express finding” as to issue three, but the defendant did not seek an articulation of the court’s decision as to that issue. “An appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found. . . . The duty of providing us with a record adequate to review claims, including those of afactual nature, rests with the appellant.” (Citation omitted; internal quotation marks omitted.) Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995). Accordingly, we will review only issue two.


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. VICTOR WEBB
    (AC 21834)
    Lavery, C. J., and West and Peters, Js.

      Argued December'9, 2002
    officially released March 11, 2003

      David V. DeRosa, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Victor Webb, appeals from the judgment of conviction, rendered after a jury trial, of one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of attempt to commit sexual assault in the first degree, (2) the trial court improperly failed to disclose exculpatory and relevant material for cross-examination of the victim after performing an in camera review of the victim’s confidential records, (3) the court improperly denied his motion for his appellate counsel to review the sealed, confidential records of the victim for purposes of preparing his appeal and (4) the court improperly failed to order a psychiatric examination of the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant had been residing with the victim in her apartment in New Haven, and paid her a weekly rent of $40, in the form of either money or drugs. The victim slept alone in her bedroom while the defendant slept on a couch in the living room. There was a door that separated the two rooms. On July 23, 1999, the victim, the defendant and Calvin Bromell collectively smoked between twenty to thirty bags of cocaine at the victim’s apartment beginning at approximately 6 p.m. and continuing for several horas. Bromell eventually left the victim’s apartment.

Sometime after 2 p.m. on July 24,1999, the defendant entered the victim’s bedroom and asked her to have sex. The victim told the defendant “no” and walked the defendant to the door. She closed the door and laid back down on her bed. Shortly thereafter, the defendant entered the bedroom again in a rage, brandishing a switchblade knife, and yelled, “You ain’t gonna do it?” The defendant then grabbed the victim’s pants and attempted to take them off. A struggle ensued and both fell to the floor. While on the floor, the defendant began choking the victim. The victim eventually passed out, and the defendant left. The victim was transported to the Hospital of Saint Raphael for her injuries, which included abrasions on the front part of her neck and red marks on her face.

I

The defendant’s first claim is that there was insufficient evidence to support his conviction of attempt to commit sexual assault in the first degree in violation of §§ 53a-49 (a) (2) and 53a-70 (a) (l). Specifically, the defendant argues that there was insufficient evidence to prove beyond a reasonable doubt that he had the intent to assault the victim sexually or that his conduct constituted a substantial step toward the commission of sexual assault in the first degree. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Padua, 73 Conn. App. 386, 392, 808 A.2d 361 (2002), cert. granted on other grounds, 262 Conn. 941, 815 A.2d 672 (2003). “In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Smith, 73 Conn. App. 173, 179, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002).

“To convict the defendant of attempt to commit sexual assault in the first degree in violation of §§ 53a-70 and 53a-49 (a) (2), the state must prove beyond a reasonable doubt that the defendant acted with the specific intent to commit sexual assault in the first degree, which, in turn, included the intent to have sexual intercourse and that the defendant took a substantial step in a course of conduct planned to culminate in his commission of the crime. Intent may be inferred from the conduct of the accused and is a determination for the trier of fact. . . . Likewise, [w]hat constitutes a substantial step in any given case is a matter of degree and a question of fact for the [trier].” (Citations omitted; internal quotation marks omitted.) State v. Lavigne, 57 Conn. App. 463, 469, 749 A.2d 83 (2000).

The jury’s determination that the defendant possessed the intent to commit sexual assault in the first degree is supported by substantial evidence. We note that “the actor’s intent can be inferred from his or her verbal or physical conduct and the surrounding circumstances.” (Internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 468, 758 A.2d 824 (2000). Here, the defendant had entered the victim’s bedroom and asked for sex, which the victim refused. Moments later, the defendant entered the bedroom again in a rage, while brandishing a knife, and demanded, “You ain’t gonna do it?” A struggle ensued during which the defendant grabbed the victim’s pants and tried to remove them. On the basis of that evidence, the jury reasonably could have concluded that the defendant intended to force the victim to have sexual intercourse with him due to his initial request for sex, his angry demand again for sex after she refused and his attempt to pull down her pants. The jury also reasonably could have concluded that the defendant intended to compel sexual intercourse by the use of force or the threat of the use of force based on the struggle between the victim and the defendant and his having been armed with a switchblade knife when he made his second demand for sex.

There also was sufficient evidence for the jury to reasonably conclude that the defendant’s conduct constituted a substantial step in the commission of sexual assault in the first degree. “The act or acts must be something more than mere preparation for committing the intended crime; they must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted.” (Internal quotation marks omitted.) Id. The defendant entered the victim’s bedroom in a rage with a knife and then proceeded to engage in a struggle with the victim in an attempt to remove her pants. The jury reasonably could have concluded that the defendant’s grabbing the victim’s pants in an attempt to remove them while wielding a knife and demanding sex was a substantial step in forcing her to have sexual intercourse with him.

II

The defendant’s second claim is that the court improperly failed to disclose relevant material for cross-examination after performing an in camera review of the victim’s confidential records. The defendant argues that the failure to disclose those materials violated his rights under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We are not persuaded.

The following additional facts are necessary for the resolution of the defendant’s claim. The defendant subpoenaed numerous confidential records of the victim from various organizations prior to trial. Each organization’s file was made into a court exhibit as follows: (1) department of children and families, (2) Connections, (3) Hospital of Saint Raphael records concerning the events of July 24,1999, (4) American Medical Response, (5) Yale-New Haven Hospital, (6) office of adult probation, (7) the APT Foundation, (8) the Connecticut Mental Health Center, (9) Connecticut Valley Hospital, (10) Hospital of Saint Raphael records concerning the victim, (11) New Haven police department records concerning a fire at 1476 Chapel Street from October through December, 1999, (12) United States Department of Veterans Affairs, (13) New Haven police department records concerning the victim, (14) American Medical Response records concerning the victim on January 20, 1997, (15) New Haven fire department records for the attack at 1476 Chapel Street on July 24, 1999, (16) Gaylord Hospital, (17) New Haven police department dispatch tapes, recordings and calls concerning the attack on the victim on July 24, 1999, and (18) New Haven police department records concerning the victim on January 20, 1997.

Pursuant to the procedure set forth in State v. D’Ambrosio, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990), the court conducted an in camera inspection of all the subpoenaed records. The defendant informed the court that he was seeking “anything dealing with prostitution, drugs, alcohol, lying and any psychiatric matters.” After the court’s in camera review of all the subpoenaed records, several documents were deemed to be material to the credibility of the victim as a witness. The victim consented to the disclosure of those records to the defendant and they were given to him on December 1 and 5, 2000. Records from the Connecticut Mental Health Center, the Dutcher Treatment Center and the APT Foundation revealed that the victim has been a consistent drag user for more than a decade, has demonstrated paranoid and psychotic symptoms, has been diagnosed pursuant to the Diagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994) (DSM-IV) as being “cocaine dependent” and having a “recurrent major depressive disorder with psychotic features,” and has a history of visual and auditory hallucinations stemming from her cocaine use.

On direct examination, the victim admitted to being a drag addict for eleven years. She also stated that she engages in prostitution to obtain drags or money to purchase drags. The victim also described her hallucinations. According to the victim, she would have visual and auditory hallucinations after smoking ten to fifteen bags of cocaine. She indicated, however, that she can differentiate between reality and a hallucination. The defendant extensively cross-examined the victim concerning her engaging in prostitution for drugs, and also made use of the disclosed records relating to her hallucinations and treatment for drag use in 1992, 1994 and 2000. Several of the disclosed documents were entered into evidence as full exhibits. Finally, in closing argument, the defendant drew the jury’s attention to the victim’s hallucinations and how those hallucinations affected her credibility as a witness.

“A criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. . . . Thus, in some instances, otherwise privileged records . . . must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility.” (Citations omitted.) State v. Slimskey, 257 Conn. 842, 853-54, 779 A.2d 723 (2001). “The defendant’s right of cross-examination does not, however, allow him to discredit and impeach in whatever way, and to whatever extent, the defendant might wish.” (Internal quotation marks omitted.) State v. Rosado, 52 Conn. App. 408, 415, 726 A.2d 1177 (1999). “[T]he right to cross-examine witnesses does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.” (Emphasis in original; internal quotation marks omitted.) State v. Slimskey, supra, 854.

Our Supreme Court has set forth a specific procedure to accommodate the tension between the defendant’s constitutional right of cross-examination and the privacy interest of a witness in her confidential records. “If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. ... If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. . . .

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. ... If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review.” (Citations omitted; internal quotation marks omitted.) State v. D’Ambrosio, supra, 212 Conn. 58.

Our standard of review of a challenge to a court’s refusal to disclose privileged records is whether there was an abuse of discretion. State v. Olah, 60 Conn. App. 350, 354, 759 A.2d 548 (2000). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subseive and not to impede or defeat the ends of substantial justice. . . . It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Id. “Access to confidential records should 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 . . . and to weigh that value against the interest in confidentiality of the records.” (Internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn. 856. “On appeal, this court has the responsibility of conducting its own in camera inspection of the sealed records to determine if the trial court abused its discretion in refusing to release those records to the defendant.” State v. Walsh, 52 Conn. App. 708, 722, 728 A.2d 15, cert denied, 249 Conn. 911, 733 A.2d 233 (1999).

Our in camera review of the confidential records demonstrates that the court did abuse its discretion. We will not reveal specific details of the result of our in camera review because the victim may withhold her consent to the disclosure of that additional material. See State v. Olah, supra, 60 Conn. App. 355. We need only to identify sufficiently the documents in case of further review by our Supreme Court. Id. Succinctly stated, our review reveals several documents that are “especially probative of the [victim’s] ability to comprehend, know and correctly relate the truth . . . .” (Internal quotation marks omitted.) State v. Delgado, 261 Conn. 708, 718-19, 805 A.2d 705 (2002). The documents pertain to the victim’s extensive drug use and psychiatric conditions, including the presence of auditory and visual hallucinations.

“The capacity of a witness to observe, recollect and narrate an occurrence is a proper subject of inquiry on cross-examination. If as a result of a mental condition such capacity has been substantially diminished, evidence of that condition before, at and after the occurrence and at the time of the trial, is ordinarily admissible for use by the trier in passing of the credibility of the witness.” State v. Esposito, 192 Conn. 166, 176, 471 A.2d 949 (1984). Here, the victim’s testimony at trial and the disclosed records from the court’s D Ambrosio review demonstrate that the victim suffers from hallucinations when she smokes cocaine. Material that documents that condition of the victim, therefore, would be relevant to cross-examination of her concerning her ability to observe and to recall the attack on July 24, 1999. The fact that the court found extremely similar documents especially probative of the victim’s credibility and disclosed those documents to the defendant after receiving the victim’s consent further supports our conclusion that it was an abuse of discretion not to disclose those additional documents we have found from our in camera review of the sealed records.

We must next determine whether the court’s decision in failing to disclose all probative documents affecting the victim’s credibility was harmless beyond a reasonable doubt. State v. Slimskey, supra, 257 Conn. 859. “The correct inquiry for identifying harmless constitutional error is to ask whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. . . . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Internal quotation marks omitted.) Id.

Upon review of the entire record, we conclude that the court’s impropriety was harmless beyond a reasonable doubt. In this case, the court disclosed to the defendant several documents from the victim’s confidential files concerning her drug use, DSM-IV diagnoses and her extensive history of hallucinations dating from 1992 until 2000. The undisclosed documents would be merely cumulative of the documents in the defendant’s possession. In addition, the defendant performed an extensive cross-examination of the victim concerning her hallucinations and drug use. The undisclosed documents would not have added substantively to the cross-examination of the victim relating to her ability to recall, recollect or narrate the events of July 24, 1999, due to her drug use and possible hallucinations. Furthermore, the court did not limit in any way the defendant’s inquiry into the victim’s hallucinations and drug use on cross-examination. There also was corroborating evidence to support the victim’s testimony on material points, including the victim identifying the defendant in a photographic array on July 27,1999, her in-court identification of the defendant as her assailant, and photographs of injuries to her neck and face that were consistent with being strangled. There also was testimony and exhibits noting that the victim was alert and oriented, as opposed to high on cocaine, when she was treated for her injuries immediately after the attack. Upon review of the entire record, we conclude that the court’s abuse of discretion in failing to disclose additional, cumulative material was harmless beyond a reasonable doubt.

Ill

The defendant’s third claim is that the trial court improperly denied his request for his appellate counsel to review the sealed, confidential records of the victim for purposes of preparing his appeal. The defendant argues that both his federal and state constitutional rights to compulsory process, confrontation and due process require that records sealed pursuant to the D Ambrosio procedure be unsealed for appellate counsel to review in preparation of the defendant’s appeal. We decline to review the claim.

On October 9,2001, the defendant’s appellate counsel filed a motion with the court seeking an order unsealing all court exhibits reviewed in camera and sealed by the court. The court denied the motion on October 17,2001. The defendant then filed a timely motion for review of the court’s decision on October 29, 2001, pursuant to Practice Book § 66-6. In his motion to this court, the defendant puts forward the same argument included in his appellate brief on the issue. We granted review, but denied the relief requested on January 23, 2002.

The defendant’s claim, in which he essentially is requesting that we again review his motion to unseal the confidential records for appellate counsel’s review, is dismissed as having been presented to us improperly. See Weber’s Nursery, Inc. v. Prior, 71 Corm. App. 433, 438, 802 A.2d 206 (2002). Permitting the defendant to raise the issue again on appeal would be to provide two appellate reviews of the same issue and, therefore, we will not review the claim. See Andrews v. Commissioner of Correction, 45 Conn. App. 242, 246, 695 A.2d 20, cert. denied, 242 Conn. 910, 697 A.2d 364 (1997).

IV

The defendant’s final claim is that the court improperly failed to order a psychiatric examination of the victim. Specifically, the defendant argues that a psychiatric examination would aid the court in determining whether the victim was competent to testify. In addition, the defendant argues that the failure to order a psychiatric examination impaired his constitutional right to confront and to cross-examine the victim. We disagree.

“The competency of a witness 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 some error in law. . . . [I]n determining the competency of a proposed witness the trial court should consider the capacity of the witness to receive correct sense impressions, to comprehend the facts to be developed, to recollect and narrate facts intelligently, and to appreciate the moral duty to tell the truth.” (Citations omitted; internal quotation marks omitted.) State v. Morant, 242 Conn. 666, 677, 701 A.2d 1 (1997). “[W]here the competency of a witness is challenged, the threshold question to be answered by the court is whether the testimony of that witness is minimally credible. If the testimony of a witness passes the test of minimum credibility, and is otherwise relevant, the testimony is admissible and the weight to be accorded it, in light of the witness’ incapacity, is a question for the trier of fact.” State v. Weinberg, 215 Conn. 231, 243-44, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

“Our case law demonstrates that the drastic measure of ordering a psychiatric examination . . . should be taken only upon compelling reasons. . . . Such an examination should not be ordered if the trial court, after hearing the testimony of the witness, has no doubt of [the witness’] mental soundness. ... In making such a determination, the trial court may make use of its own observations of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Morant, supra, 242 Conn. 679.

Here, the court performed an extensive in camera review of the victim’s confidential records, including a review of documents pertaining to the victim’s drug addiction and mental problems, specifically with regard to her hallucinations. The court also had an opportunity to observe the victim’s demeanor and ability to testify, as well as to hear the substance of her testimony, all against the backdrop of the court’s review of her mental health records. There is nothing in the record to indicate that the court abused its discretion in declining to order a psychiatric examination. The victim was able to understand the questions asked of her, to respond in a coherent manner and was able to clearly recollect the events of July 24, 1999. The court stated, after ruling on the pretrial motion for a psychiatric examination, that “[n]othing in the records that I have reviewed . . . nothing in those records suggests that the [victim] does not possess the sufficient mental capacity and sufficient testimonial capacity to make her competent in this case.” Upon the defendant’s renewal of his motion for a psychiatric examination of the victim, the court stated that after observing the victim testify, there was “even less basis now” for a psychiatric examination to be ordered. On the basis of our own review of the confidential records of the victim and the testimony and evidence produced at trial, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a psychiatric examination of the victim to determine whether she was competent to testify.

The defendant further argues that the court improperly refused to order the victim to undergo a psychiatric examination to provide material for his cross-examination of her. “The defendant does have a right under the confrontation clause to expose to the jury the facts from which jurors, as the sole triers of [fact] and credibility, [can] appropriately draw inferences relating to the [reliability of the [state’s witness]. . . . The confrontation clause requires that [if] the testimony of such a witness is to remain in the case as a basis for conviction, the defendant must be afforded a reasonable opportunity to discover any infirmities that may cast serious doubt upon its truthfulness. . . .

“While the competency of a witness is for the trial court to evaluate, the credibility of a witness is for the jury to determine. . . . The trial court may, in its discretion, limit the cross-examination of a witness so long as the defendant’s right to confrontation is not impaired. . . . This discretion includes matter[s] of discovery [concerning mental capacity] where material is sought for impeachment purposes. . . . We have held that the trial court has broad discretion in deciding whether to order the psychiatric examination of a witness for the purposes of impeachment. . . .

“Again, it has been emphasized that the discretion to condition a witness’ testimony on the witness’ submission to a psychiatric examination should be exercised sparingly. . . . The [trial] court [is] entitled to be leery of both psychiatric examinations of witnesses and psychiatric testimony about witnesses, because the jury can observe for itself . . . the witness’s behavior. Criminal trials are complex enough without turning them into collateral investigations of the witnesses— investigations that would not only drag out trials and confuse jurors but also discourage people from serving as witnesses.” (Citations omitted; internal quotation marks omitted.) Id., 682-83.

Here, the court disclosed to the defendant several documents concerning the victim’s drug addiction and mental health issues, including her hallucinations. The defendant extensively cross-examined the victim on her drug habit and her hallucinations while utilizing those documents, and the court did not limit this area of inquiry in any way. When ruling on the pretrial motion for a psychiatric examination, the court stated that the defendant has “already indicated to the court that [he] is in the process of arranging to have a medical expert look at [the disclosed documents].” The defendant, however, failed to procure his own expert to analyze the records of the victim that were disclosed to present his own opinion. “[A] defendant’s right [of cross-examination] is not infringed if the defendant fails to pursue a line of inquiry open to him. . . . The test is whether the opportunity to cross-examine existed, not whether full use of such opportunity was made.” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 533, 673 A.2d 1117 (1996). Because a compelled psychiatric examination of a witness can be a tool of harassment and the discretion to order such an examination should be exercised sparingly, the court did not abuse its discretion in denying the defendant’s request. See State v. Morant, supra, 242 Conn. 685. The defendant has failed to demonstrate a constitutional violation that deprived him of a fair trial, given that several of the victim’s confidential records were disclosed and he had an opportunity to cross-examine the victim extensively on both the effects cocaine had on her ability to recollect and her past history of hallucinations.

The judgment is affirmed.

In this opinion the other judges concurred.

       The identity of the victim remains confidential pursuant to General Statutes § 54-86e, which provides in relevant part: “The name and address of the victim of a sexual assault under section 53a-70 . . . or of an attempt thereof, shall be confidential and shall be disclosed only upon order of the Superior Court . . .

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the land of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       Citizens oi' Connecticut are afforded confidentiality in certain records and communications. See General Statutes §§ 52-146c (communications between psychologist, patient); 52-146d et seq. (communications between psychiatrist, patient); 52-146o (communications or information by physician, surgeon, health care provider); 17a-28 (department of children and families records); 17a.-688 (records concerning drag abuse, treatment).
      It should be noted that although some of the records that were sealed by the court and subject to in camera review were not privileged communications of the victim, the defendant does not claim on appeal that failure to disclose those records was improper.

       Those materials included: (1) Hospital of Saint Raphael admission report of the victim on July 24, 1999, (2) American Medical Response reports the for victim on July 24, 1999, and January 20, 1997, (3) the victim’s violation of probation file, (4) portions of the APT Foundation evaluation of the victim dated September 20, 2000, (5) portions of the Connecticut Mental Health Center clinical assessment of the victim dated December 30, 1992, (6) a portion of the Connecticut Valley Hospital admission psychiatric evaluation dated March 2, 2000, (7) Hospital of Saint Raphael report of the victim on January 20, 1997, (8) New Haven police department records of (a) 1998 complaint concerning the misuse of an automated teller machine card by the victim, (b) December 15, 1998 report concerning a possible arrest for reporting an incident falsely, (c) report of alleged shoplifting by the victim and (d) report concerning an attack on the victim on January 20, 1997, (9) New Haven lire department records of the January 20,1997 incident involving the victim and (10) portions of the Connecticut Valley Hospital Dutcher Treatment Center admission note dated September 20, 1994.

       Those documents included: (1) portions of the Connecticut Mental Health Center clinical assessment form dated December 30, 1992, (2) portions of the Connecticut Valley Hospital Dutcher Treatment Center admission note dated September 20, 1994, (3) a portion of the Connecticut Valley Hospital admission psychiatric evaluation dated March 2, 2000, (4) a portion of the APT Foundation evaluation of the victim dated September 20, 2000, (5) Hospital of Saint Raphael records of the victim’s treatment on July 24,1999, and January 20, 1997, (6) New Haven police department report of January 20, 1997, the victim’s signed statement concerning January 20, 1997 statement, arrest warrant and supporting affidavit for January 20, 1997, (7) New Haven police department report of the December 15, 1998 incident and (8) New Haven police department report of April 2, 1998, involving the victim’s alleged misuse of an automated teller machine card.

       Those documents consist of: (1) United States Department of Veterans Affairs psychiatric evaluation dated March 23, 2000, (2) Connecticut Mental Health Center discharge summary dated December 29,1999, (3) Connecticut Mental Health Center service transfer note dated December 30, 1997, (4) Connecticut Mental Health Center progress notes of January 18, 1998, December 30,1997, December 22,1997, September 17,1997, September 10, 1997, September 3, 1997, and September 24, 1992, (5) Connecticut Mental Health Center master treatment plans of June 2, 1999, December 2, 1998, and August 22, 1992, (6) Connecticut Mental Health Center access referral sheet dated August 18, 1997, (7) Connecticut Mental Health Center clinical intake form dated August 27, 1992, (8) Connecticut Mental Health Center clinical assessment form dated December 30, 1992, and (9) Connecticut Valley Hospital Dutcher Treatment Center admission note dated September 24, 1994.
      Although some portions of the Connecticut Mental Health Center clinical assessment form and the Connecticut Valley Hospital Dutcher Treatment Center admission note were disclosed to the defendant, other relevant portions were not disclosed.

       We note that the victim did not testify at trial that she hallucinated on the day of the attack.

       Although we do not review the claim, we note our previous statements that the '“proper procedure is to seal any records that are privileged and not discoverable after ruling on the defendant’s motion for disclosure. Those records should remain sealed through the completion of the appettateprocess for the purpose of review by an appellate court.” (Emphasis added.) In re Christopher G., 20 Conn. App. 101, 110 n.6, 564 A.2d 619 (1989), cert. denied, 213 Conn. 814, 569 A.2d 549 (1990). Sealing the privileged records throughout the appeal preserves the confidentiality interests embodied in the statutes imposing a privilege in certain records. See State v. Beliveau, 237 Conn. 576, 596 n.11, 678 A.2d 924 (1996).

       On December 1, 2000, the defendant filed a pleading titled “Motion for Psychiatric Exam of State’s Key Witness Regarding Her Drug Addiction and Mental Disorders as They Relate to Her Competency and Credibility as a Witness.” The records released pursuant to the D’Ambrosio review as of that date were attached to that motion. The court denied the motion on the same day. After the victim testified as to her drug use and mental problems, the defendant orally renewed his motion for a psychiatric examination on December 6, 2000, which the court denied the same day.


text:
    IN RE BREA B.

    (AC 22790)
    Foti, Dranginis and West, Js.
    Argued November 18, 2002
    officially released March 11, 2003

      David J. Reich, for the appellant (respondent mother).

      Maureen D. Regula, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Eliot D. Prescott, assistant attorney general, for the appellee (petitioner).

      Geraldine M. Menu, for the minor child.

         In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

WEST, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child. On appeal, the respondent claims that (1) the evidence was not clear and convincing that there is no ongoing parent-child relationship, (2) the court improperly found that she did an act of commission or omission within the meaning of General Statutes § 17a-112 (j) (3) (C) and (3) the evidence was not clear and convincing that the physical injury she inflicted on the child was not accidental. We affirm the judgment of the trial court.

The following facts and procedural history underlie the respondent’s appeal. The child was bom on April 13,1990. At the time of the child’s birth, the respondent was a twenty-one year old single mother who had just left active duty with the United States Marine Corps. She lived with her great aunt and relied heavily on relatives to help her raise the child during the first five years of her daughter’s life.

On January 18, 2000, when the child was nine years old, the respondent attacked the child with a large hunting knife, planning to kill her. During the attack, the respondent stabbed the child at least seven times. The child suffered deep puncture wounds and lost a considerable amount of blood. She struggled with her mother and succeeded in calling 911 for help. At the urging of the police officer who answered the child’s telephone call, she fled the house and subsequently was brought by ambulance to a hospital. While undergoing treatment at the hospital, the child repeatedly expressed her fear that her mother would attempt to kill her again.

The respondent was charged with attempt to commit minder, assault in the first degree and risk of injury to a child. The respondent claimed that her actions were the result of a drug induced psychosis. She was acquitted by reason of mental disease or defect.

The petitioner, the commissioner of the department of children and families, secured an order of temporary custody and, on January 21, 2000, filed a petition to terminate the parental rights of the child’s parents. The petition subsequently was amended to include several grounds for termination that inadvertently had been left unchecked on the standard petition form. The amended petition alleged that it was in the child’s best interest to terminate the respondent’s parental rights because “[t]he child has been denied, by reason of an act or acts of commission or omission ... by the [respondent], the care, guidance or control necessary for her physical, educational, moral or emotional well being,” and because [t]here is no ongoing parent/child relationship with respect to the [respondent] that ordinarily develops as a result of the [respondent] having met on a continuing, day to day basis, the physical, emotional, moral or educational needs of the child and to allow further time for the establishment or re-establishment of the parent-child relationship would be detrimental to the best interests of the child.”

During the termination proceedings, the respondent again claimed that her actions were the result of a drug induced psychosis. The court found that there was considerable support for that position in the opinions of the court-appointed psychiatrist who examined the respondent in connection with the criminal proceedings and who subsequently testified during the termination hearing. Nevertheless, the court also found that the petitioner had proved by clear and convincing evidence each of the grounds relied on in the petition for the termination of the respondent’s parental rights. The respondent’s parental rights were terminated on September 10, 2001. This appeal followed.

I

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to deteimine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under General Statutes § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. ” (Citations omitted; internal quotation marks omitted.) In re Gary B., 66 Conn. App. 286, 289-90, 784 A.2d 412 (2001).

General Statutes § 17a-112 (j) (3) (D) provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child

“This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child’s best interest to allow time for such a relationship to develop. ... In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. . . . The ultimate question is whether the child has no present memories or feelings for the natural parent. . . . Feelings for the natural parent connotes feelings of a positive nature only.” (Citations omitted; internal quotation marks omitted.) In re Jonathon G., 63 Conn. App. 516, 525, 777 A.2d 695 (2001). Where the child’s feelings toward the parent are ambivalent, there must be a finding that “no positive emotional aspects of the relationship survive.” In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991).

The respondent claims that the court’s finding that there was no ongoing parent-child relationship is not supported by clear and convincing evidence. The respondent argues that the evidence shows, to the contrary, that she met the child’s physical, emotional, moral and education needs during, at a minimum, the three years immediately preceding the assault. In support of her argument, the respondent cites testimony that she was actively involved in the child’s activities and that she appeared to have a healthy relationship with the child. Such history, the respondent argues, belies any serious possibility that the child has no positive memories or feelings for her mother.

Regardless of the quality and nature of the respondent’s relationship with her daughter prior to the assault, it is the character of that relationship at the time of the filing of the termination petition that is relevant to the court’s inquiry. See In re Shane P., 58 Conn. App. 234, 241, 753 A.2d 409 (2000). The court heard sufficient evidence to find that the relationship between the respondent and her child had been irrevocably damaged by the trauma that the child suffered as a result of the assault. The testimony presented at the termination hearing supports a finding that whatever the respondent’s degree of culpability for the attack, the trauma that the child suffered was no less real to her and no less destructive to whatever parent-child relationship may have existed at one time.

The child was evaluated by a child and adolescence psychiatrist who stated that the child is uncertain about how to feel about her mother and that she cannot feel safe in her presence. The psychiatrist noted the child’s lack of affect when discussing her mother. When referring to her mother, the child adopted a blank expression and monotonous tone; her affect would flatten and she would withdraw. During the course of three interviews, she never shared any positive memories of experiences that she had had with her mother. The psychiatrist stated that where there was an enduring positive relationship, he would expect the child to share some positive memories of her mother during sessions, despite the attack.

The psychiatrist also stated his professional opinion that the trauma of the assault is irreversible, that the child would never feel safe and that she would always be anxious about what might happen next if she were to live with her mother. He stated that the respondent’s rehabilitation would have no impact on how the child perceives her. If reexposed to her mother, the trauma would be reactivated. The psychiatrist testified that in the case of posttraumatic stress disorders, the symptoms correlate to the nature of the trauma. A trauma of the severity as that involved in this case would likely lead to lasting consequences.

Since the assault, the child also has been seeing a therapist who was an expert in the areas of childhood, adolescent and developmental psychology. At the time that she began counseling, the child was experiencing “night terrors.” During the counseling sessions, she stated that many of her memories of her mother included irrational rages, bizarre behavior and physical abuse. She related instances of physical abuse preceding the latest assault, including an incident in which the respondent hit her with a hanger. During her sessions, the child also recounted episodes in which her mother would tell her that she hated her.

In a December, 2000 report, the therapist noted the child’s terror of being reexposed to her mother, her apparent depth of feelings against seeing her mother and her frightened emotional response to the possibility of seeing her mother. Thus, the child was still expressing the same fear and exhibiting the same trauma as she had seven months earlier when interviewed by the psychiatrist. The therapist’s report also indicates that the child possessed a minimal sense of attachment to her mother and a striking absence of any sense of loss regarding the prospect of not being returned to the custody of her mother. The child experienced her great aunt, rather than her mother, as her psychological parent and expressed a clear preference to have no further contact with her mother.

On the basis of the foregoing, we conclude that the court’s finding that there was no ongoing parent-child relationship was not clearly erroneous.

II

The respondent also claims that the evidence was not clear and convincing that the physical injury to the child was not accidental and that the court improperly found that she did an act of commission or omission within the meaning of § 17a-112 (j) (3) (c). We decline to review those claims.

Because the statutory grounds necessary to grant a petition for termination of parental rights are expressed in the disjunctive, the court need find only one ground to grant the petition. Thus, we may affirm the court’s decision if we find that it properly concluded that any one of the statutory circumstances existed. See In re Alexander C., 67 Conn. App. 417, 427, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003). Having concluded that the court properly found that there was clear and convincing evidence that no parent-child relationship exists, we need not address the petitioner’s remaining claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent mother was unable to identify the child’s father with any degree of certainty. The court identified the likely father, and notice by publication was provided to him at his last known area of residence. The court terminated the putative father’s parental rights on August 28, 2001, and he is not a party to this appeal. We therefore refer in this opinion to the respondent mother as the respondent.

       The psychiatrist also met with the respondent. He concluded that her responses indicated a lack of capacity to parent effectively and to set appropriate limits for the child. Specifically, he saw in her responses indications of a coequal relationship with the child, characterized by bargaining and compromise, rather than an appropriate parent-child relationship. That conclusion is consistent with the testimony of a child therapist who described the child as “parentified,” a situation that results when a child is induced to take on parental responsibilities.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOSEPH PARE
    (AC 23066)
    Foti, Dranginis and Flynn, Js.
    Argued January 7
    officially released March 11, 2003

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, was Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Joseph Pare, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § SSa-bJa. On appeal, the defendant claims that the trial court improperly (1) allowed evidence of a prior statement by the defendant, which was contained in his medical records, for purposes of impeachment, (2) instructed the jury on reasonable doubt and (3) instructed the jury on the presumption of innocence. We affirm the judgment of the trial court

The jury reasonably could have found the following facts. The defendant, who had a history of psychiatric problems that included depression and drug addiction, lived with the victim, Michelle Devine, at an apartment on Legion Avenue in New Haven. Devine, an alcoholic, upset the defendant with her drinking problems, and they argued frequently about her actions. On September 9, 1996, around 10 p.m., the defendant hid a bottle of vodka in the apartment, which caused a fight between the two. Devine pulled the defendant’s hair and punched him; he, in tum, started choking her. At some point, the defendant pulled a bathrobe belt tightly around her neck for several minutes until she fell to the floor. He then picked her up and placed her on a bed.

The defendant left the apartment about 2 a.m. on September 10,1996, and returned at approximately 3:15 a.m. after having consumed some beer and having used cocaine and marijuana. When he received no response from the victim, he turned on the night-light and shook her. He then noticed marks on her neck and discovered that she was dead. At around 5:30 a.m., he went to the police station and told the police that he had “choked the shit out of’ his girlfriend. He also stated that he had “never hit a woman before.” The defendant, after being advised of his rights, later gave a formal statement admitting that he had strangled Devine.

The police found no signs of a struggle in the apartment. They observed and photographed a maroon bathrobe belt lying at the foot of the bed where the victim was found. It later was determined that the victim’s death was caused by ligature strangulation and that the item used was a soft instrument like the belt observed at the crime scene. Additional facts will be set forth as necessary.

I

The defendant claims that the court abused its discretion in allowing as evidence Ms admission in Ms medical record that he had assaulted Ms Mece.

The facts relevant to that claim are as follows. The defendant in 1997 imtially was convicted of murdering Devine, but our Supreme Court reversed Ms conviction and remanded the matter for a new trial. State v. Pare, 253 Conn. 611, 755 A.2d 180 (2000). The defendant elected to testify during his first trial, at which time he again claimed that he “had never put [his] hands on a female in [his] life, never.” He also had testified that after killing Devine, he was so emotionally upset by his actions that he sat in the apartment “rocking [and] crying” for almost one and one-half hours before going to the police.

In the defendant’s second trial, during the state’s case-in-chief, and after testimony by a police officer as to the defendant’s statements at the police station that he had “choked the shit out of’ his girlfriend and that he had “never hit a woman before,” the state sought to introduce a page from the defendant’s medical record from the Connecticut Mental Health Center. The medical record indicated that the defendant had stated that he “went to [his] niece looking for money she was holding for [him] and assaulted her when she would not give him [the] money.”

After overruling the defendant’s objection to the admission of that evidence, the court immediately instructed the juiy that it was to be considered “only on the issue of the credibility of the defendant in terms of your evaluation of his statements that have been received into evidence in this case. The evidence in the statement that’s going to be read here is not to be considered for the truth of the matter asserted in the statement itself. This evidence may only be used for the limited purpose of evaluating the credibility of the defendant’s statements and for no other purpose.”

At the outset, we set forth our standard of review of a challenge to a trial court’s determination of evidentiary matters. “Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Russo, 62 Conn. App. 129, 133, 773 A.2d 965 (2001). “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Lomax, 60 Conn. App. 602, 607-608, 760 A.2d 957, cert. denied, 255 Conn. 920, 763 A.2d 1042 (2000).

In claiming that the court abused its discretion by allowing him to be impeached with his prior inconsistent statement, the defendant again raises the three arguments previously rejected by the court. Specifically, the defendant argues that (1) the state did not lay a proper foundation for the redacted medical record as a prior inconsistent statement because he was not confronted with it, (2) there was no corroboration that the statement was true and (3) the probative value of the statement was outweighed by its prejudicial effect. We disagree with all three assertions.

A

The defendant first argues that because he did not testify at the second trial, he was not “confronted” with the statement as is required by § 6-10 (b) of the Connecticut Code of Evidence. He ignores § 8-8 of the Connecticut Code of Evidence, however, which provides in relevant part that “[e]vidence of a statement of the declarant made at any time, inconsistent with the declarant’s hearsay statement, need not be shown to or the contents of the statement disclosed to the declarant.” Section 8-8 specifically allows that “[w]hen hearsay has been admitted in evidence, the credibility of the declarant may be impeached, and if impeached may be supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.” We see no conflict between the two sections, nor did the drafters of the code of evidence. Section 6-10 (b) applies to a hearsay declarant who is a witness, whereas § 8-8 applies to a hearsay declarant who is not a witness or who is not testifying. Clearly, under § 8-8 the fact that the defendant did not testify at the second trial did not preclude the court from allowing the state to impeach the defendant’s hearsay statements, both to the police and in his prior testimony, without first confronting him with his admission in his medical record.

B

The defendant next argues that the court should not have allowed as evidence the redacted medical record because the state failed to demonstrate that the statement therein was true. We do not agree that the state had such a burden.

The purpose of impeaching the credibility of a hearsay declarant is merely to show that he or she talked one way at one point in time and a different way on a previous occasion, which could give rise to a doubt as to the truthfulness of both statements. See State v. Saia, 172 Conn. 37, 45, 372 A.2d 144 (1976) (witness talking one way on witness stand and another way previously raises doubt as to truthfulness of both statements); see also State v. Moales, 41 Conn. App. 817, 822, 678 A.2d 500, cert. denied, 239 Conn. 908, 682 A.2d 1011 (1996). We view the purpose of impeachment to be identical for either a witness on the witness stand or, as here, a hearsay declarant. We therefore conclude that it matters not whether either of the declarant’s statements is true; having given two different statements at two different times allows the first statement to be admissible as impeachment evidence regardless of truthfulness.

C

The defendant also argues that the statement’s probative value was minimal and that the corut failed to conduct the proper balancing test before admitting that evidence. He argues that because there were so many other areas in which he was impeached in “much more relevant” fashion, the probative value of his prior statement regarding the niece was minimal. The defendant also opines that the court failed to consider the prejudicial impact that evidence would have on the jury, that is, that it would cause the jurors to believe that he was in fact a violent man.

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a] 11 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. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value. . . . Finally, [t]he 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. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 329-30, 746 A.2d 761 (2000).

We agree with the state that under the particular facts and circumstances of this case, the court did not abuse its discretion in concluding that the probative value of the statement contained in the defendant’s redacted medical record outweighed any prejudicial effect that it may have had.

In admitting the redacted medical record, the court ruled that “the defendant articulated both to the police, in his statement to the police officers, and in his testimony, a reason for his conduct immediately after the incident, and this evidence is inconsistent with that for the jury to consider in terms of whether the defendant’s statement that he was shocked by getting involved in a — in a physical altercation with a woman and that shock affected him immediately after the incident with Ms. Devine, whether the jury is entitled to consider other evidence that bears on — on the veracity of that assertion. Originally, when this document came to my attention, there was evidence that the — the manner of his interaction with his niece was some sort of choking incident. As to that, I did feel that the prejudicial value did outweigh its probative nature, and — and indicated that it would- — the document could only be admitted in a form which did not specifically indicate how it was that he had a physical assault with his niece, but on the full record of this case, I think it’s admissible evidence. I’ve — I’ve instructed the state to redact it, and I do intend to give the jury a limiting instruction that it only comes in on the question of — of the defendant’s credibility. It is not to be used to prove the truth of the matter asserted and should be used for no other purpose. So, the defense can have an exception to my ruling, and the state should read the appropriate portion and then fashion an exhibit that corresponds with that.”

The court minimized any possible prejudice by its instruction to the jury that the statement should be used solely for the limited purpose of assessing credibility. We must conclude, therefore, that the court did not abuse its discretion in allowing the state to introduce as impeachment evidence the defendant’s statement in his medical record that he assaulted his niece.

II

The defendant next claims that the court’s instructions to the jury on reasonable doubt were flawed. Specifically, he argues that the state’s burden of proof was unconstitutionally diluted when the court gave four instructions that he had requested not be given. The court instructed the jurors, in effect, that (1) they could arrive at the real meaning of reasonable doubt by emphasizing the word “reasonable,” (2) a reasonable doubt is a real doubt, an honest doubt, (3) a reasonable doubt is the kind of doubt on which persons such as the jurors, in the more serious and important affairs of their lives, would hesitate to act, and (4) if they could, in reason, reconcile all of the facts proved within a reasonable theory consistent with the innocence of the accused, then they could not find him guilty.

During oral argument, the defendant acknowledged that our Supreme Court precedent binds us; in other words, we must apply the existing law of this state as dictated by our Supreme Court. Our Supreme Court has upheld each of the four challenged sections of the court’s reasonable doubt instruction. It would serve no purpose to list again a litany of citations for each of the challenged portions of that instruction. Suffice it to say, they all have been considered, resulting in the same conclusion, i.e., that they do not reduce or dilute the state’s burden of proof. See, e.g., State v. Whipper, 258 Conn. 229, 293-98, 780 A.2d 53 (2001).

III

The defendant finally claims that the court’s instruction on the presumption of innocence misled the jury. He argues that he requested a specific charge that the court did not give. We disagree.

The defendant requested that the court charge as follows: “Any conclusion, reasonably to be drawn from the evidence, consistent with the innocence of [the defendant] concerning the murder charge must prevail.” The court charged as follows: “Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt, is consistent with guilt and is inconsistent with any other reasonable conclusion. You must, however, distinguish between a reasonable hypothesis and a possible hypothesis. Proof of guilt must exclude every reasonable supposition of innocence. A mere hypothesis of innocence will not suffice. However, if you can, in reason, reconcile all of the facts proved within a reasonable theory consistent with the innocence of the accused, then you cannot find him guilty.”

“In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Delvalle, 250 Conn. 466, 470, 736 A.2d 125 (1999).

Our review of the entire charge, which necessarily includes both the instructions on the presumption of innocence and reasonable doubt, reveals that the instructions given by the court were more than adequate to convey the legal concept that any reasonable conclusion consistent with the defendant’s innocence must prevail and that if the jury so determined, it could not find him guilty. We conclude that it was not reasonably possible that the jury was misled by the court’s instructions and, therefore, no injustice resulted.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The defendant chose not to testify at his second trial.

       The defendant’s testimony from his first trial was read in full to the jury during his second trial. There is no issue on appeal relative to that procedure.

       That particular document was not introduced at the first trial; the state noted that it was not aware of that evidence until it subpoenaed and received the defendant’s medical record for the second trial.

      Section 6-10 (b) of the Connecticut Code of Evidence provides: “In examining a witness concerning a prior inconsistent statement, whether written or not, made by the witness, the statement should be shown to or the contents of the statement disclosed to the witness at that lime.”

       The commentary to § 8-8 of the Connecticut Code of Evidence provides in relevant part: “Treating the hearsay declarant the same as an in-court witness would seem to pose a problem when impeachment by inconsistent statements is employed. Section 6-10 (b) provides that when examining a witness about a prior inconsistent statement, ‘the statement should be shown ... or [its] contents . . . disclosed to the witness at that time.’ The hearsay declarant often will not be a witness, or at least, not on the stand when the hearsay statement is offered and thus showing or disclosing the contents of the inconsistent statement to the declarant will be infeasible, if not impossible. Thus, the second sentence in Section 8-8 relieves the examiner from complying with the common-law rule; see Section 6-10; that gives the court discretion to exclude the inconsistent statement when the examiner fails to lay a foundation by failing to first show the statement or disclose its contents to the witness. E.g., State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988). The effect is to remove that discretion in the Section 8-8 context.
      “By using the terminology ‘[ejvidence of a statement . . . made at any time’ ...[§] 8-8 recognizes the possibility that impeachment of a hearsay declarant may involve the use of subsequent inconsistent statements — when the inconsistent statement is made after the hearsay declaration — rather than the more common use of prior inconsistent statements. See generally State v. Torres, [210 Conn. 631, 635-40, 556 A.2d 1013 (1989)] (statements made subsequent to and inconsistent with probable cause hearing testimony, which was admitted at trial, were used to impeach hearsay declarant).” (Emphasis in original.)

       The defendant claims that the court violated his rights under the fifth, sixth and fourteenth amendments to the United States constitution, and article first, §§ 8 and 19, of the Connecticut constitution. The defendant offers no separate analysis for his state constitutional claims and, thus, we deem them abandoned. See State v. Valinski, 61 Conn. App. 576, 589 n.11, 767 A.2d 746 (2001).

       The court agreed with other aspects of the defendant’s request and refrained from instructing that a reasonable doubt is not one that is suggested by the “ingenuity of counsel,” and that the law is intended to protect innocent persons and not guilty ones.