author: WEST, J.

text:
    IN RE FRANCISCO R.

    (AC 29397)
    Harper, Robinson and West, Js.

      Argued October 20
    officially released December 9, 2008

      Thomas B. Pursell, for the appellant (respondent father).

      Amor C. Rosario, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Jessica Gauvin, assistant attorneys general, for the appellee (petitioner).

       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.

This appeal concerns an adjudication of neglect of a child under the doctrine of predictive neglect. Specifically, the respondent father appeals from the judgment of the trial court finding the child neglected under General Statutes § 46b-120 (9) (B) and (C). On appeal, the respondent claims that the court improperly found that the child was neglected on the date that the neglect petition was filed. We do not agree and, therefore, affirm the judgment of the trial court.

At the outset, we must consider whether there is an adequate record for review. An adequate record usually includes either a memorandum of decision or a transcript signed by the trial judge. Practice Book § 64-1. Also, the appellant is responsible for providing such to this court. Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); Practice Book § 61-10. The respondent did not provide this court with either a memorandum of decision or a signed transcript. He did provide, however, an unsigned transcript of the proceeding. “On occasion, we will entertain appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions.” In re Anthony E., 96 Conn. App. 414, 417, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006). We have reviewed the transcript of this case and conclude that it provides an adequate record for our review.

The following undisputed facts and procedural history are disclosed in the record and relevant to the respondent’s appeal. The respondent is the father of three daughters, as well as that of the child adjudicated neglected in the present action. On June 12, 2007, Stacey Falk, a department of children and families (department) investigator social worker (investigator), interviewed two of the respondent’s daughters, ages thirteen and fifteen, in response to allegations that they had made to their mother that the respondent sexually assaulted them on several occasions. During the interview, each girl alleged that the respondent repeatedly had sexually assaulted them. Each girl told Falk that the respondent had made full penile penetration with them both vaginally and anally. Falk also learned that the respondent currently was residing with the child, the child’s mother and the mother’s two other children, an eight year old girl and a ten year old boy. Falk telephoned the department hotline, making a referral in which she reported the allegations made by the respondent’s daughters, the current living situation of the respondent and the necessity of immediate department involvement with the children at that residence.

Falk and another department investigator, Angelica Kadenas, later that day made an unannounced home visit at the respondent’s residence to assess the safety of the children and to discuss the allegations the department had received. The respondent was not at home. Falk and Kadenas first met with the child’s mother. After conducting a preliminary inquiry with the mother, Falk disclosed the allegations of sexual assault made by the respondent’s daughters. Falk reported that the mother did not believe that the allegations were true and accused the respondent’s daughters of lying. Falk informed the mother that she would be recommending to the department that the respondent have no contact with the mother’s children until their investigation was completed. Falk further informed the mother that if she allowed the respondent to have contact with her children in light of the mother’s knowledge of the allegations lodged against the respondent of repeated sexual assaults on his daughters, the department would seek legal action that could result in the removal of her children from her home.

The respondent soon after arrived at the residence. Falk informed him of the allegations of sexual assault made by his daughters. Falk reported that the respondent laughed and called the allegations “ridiculous,” accusing his daughters’ mother of concocting them. Falk informed the respondent of the department’s recommendation that he leave the home and have no contact with the children living there. Falk reported that the respondent was reluctant to leave and that he stated that the mother and children should leave the home instead. Due to the respondent’s reluctance to leave the residence, local police were contacted, who, upon arrival, escorted the respondent out of the home. The mother and the respondent signed a service agreement that had as conditions, among others, that the respondent would not reside at the family residence or have contact with the children until they were notified by the department.

The department continued its investigation into the allegations of sexual assault as well as the physical neglect of all the children residing with the respondent at the time the allegations were made. The petitioner, the commissioner of children and families, filed the neglect petition at issue on June 21, 2007. A trial was held on November 20,2007. On the basis of the evidence presented, the court found that the petitioner had met her burden of proving by a preponderance of the evidence that the child was neglected on the date the petition was filed. The court found by a preponderance of the evidence that as a result of the nature of the allegations of repeated sexual assaults of his biological daughters, other children in the respondent’s care and custody were similarly situated as the daughters. Therefore, the court found that the child was neglected on the date the petition was filed because he was denied proper care and attention, physically and emotionally, due to the potential for him to live under conditions, circumstances or associations injurious to his well-being. See General Statutes § 46b-120 (9) (B) and (C).

On appeal, the respondent claims that the court’s finding of predictive neglect was clearly erroneous given the facts and evidence presented at trial.* ** Essentially, the respondent challenges the court’s finding that the child was neglected at the time the petitioner filed the neglect petition. Specifically, he argues that the court’s finding was clearly erroneous because there was no evidence presented that the child actually had been harmed, abused, neglected or uncared for prior to or after the filing of the petition, and, therefore, there was no evidence to support the court’s finding of predictive neglect. We disagree.

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Jessica S., 51 Conn. App. 667, 674-75, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999).

“[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child’s condition of neglect. Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i\t is not directed against them as parents, but rather is a finding that the children are neglected . . . .” (Emphasis in original; internal quotation marks omitted.) In re T.K., 105 Conn. App. 502, 505-506, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The central point of a neglect petition is not a denunciation of the parents but a determination of the status of the child. In re Allison G., 276 Conn. 146, 164, 883 A.2d 1226 (2005).

Here, the respondent does not contest the court’s underlying finding of facts with respect to the allegations of sexual assault lodged against him by his biological daughters that were pending on the date that the neglect petition was filed. Essentially, his argument is that the child was not denied proper care on or after the date of the filing. This is so, he contends, because he fully had complied with the agreed upon service plan by having no contact with the child and absenting himself from the child’s residence. Therefore, the respondent concludes, on the date the neglect petition was filed or after, there was no basis for the finding of potential harm or risk of harm to occur in the future. “We review the application of a statute to a particular set of facts by the plenary standard of review.” In re Anthony A., 106 Conn. App. 389, 394, 942 A.2d 465 (2008).

In this case, the court found that on the date the petition was filed, the respondent had been accused of committing several sexual assaults of his biological daughters, at least one of which occurred in the child’s home. There also was evidence that the mother of the child did not believe those accusations and was reluctant to agree to the department’s service plan that excluded the respondent from the home. Furthermore, the mother, because of her status as an undocumented immigrant, had limited access to public assistance and financially was dependent on the respondent for maintaining the household and providing for the children. The mother, the record discloses, continued her relationship with the respondent despite her knowledge of the accusations lodged against him. The mother had provided bail money for him on June 13, 2007, one day after she learned of the allegations. Both the respondent and the mother had histories of domestic violence. Also, the court found that a criminal court had made a finding of probable cause to charge the respondent with multiple counts of sexual assault against his daughters stemming from the allegations made to the department. Last, there was nothing in place, such as a court order, to prevent the respondent from returning to the child’s home.

“Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected. . . . The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.” (Citation omitted; emphasis in original; internal quotation marks omitted.) In re T.K., supra, 105 Conn. App. 511-12.

On the basis of our review of the record and the trial transcript, we conclude that the court’s finding that the child was neglected on June 21, 2007, was not clearly erroneous. There was nothing to prevent the respondent from returning to the child’s home at any time. See In re Anthony A., supra, 106 Conn. App. 389 (finding of predictive neglect affirmed where child unharmed but nothing prevented respondent mother from returning to child’s home). The fact that the respondent and the child’s mother apparently were in compliance with the service plan that they had agreed upon with the department at that time does not change the analysis. “Just because services are accepted . . . does not mean that a child cannot be deemed neglected under our law. The doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred.” In re T.K., supra, 105 Conn. App. 513; see General Statutes § 17a-101.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected.” (Emphasis added.) In re Michael D., 58 Conn. App. 119, 124, 752 A.2d 1135 (2000), cert. denied, 254 Conn. 911, 759 A.2d 505 (2002); see also In re T.K., 105 Conn. App. 502, 513, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).

       Although the neglect petition included allegations against the child’s mother, only the respondent father is a party to this appeal. We refer to him as the respondent.

       The respondent and child involved in this matter are part of a larger family constellation that includes the respondent, the child, the child’s mother and her two children from a previous relationship, all of whom lived in the same residence at the time the department of children and families became involved with the family. The respondent also has three daughters from a previous relationship who reside with their mother.

       On June 15, 2007, Teresa Montelli of the sexual abuse clinic at Yale-New Haven Hospital conducted a forensic interview with each daughter making the allegations in the presence of Falk and representatives of local law enforcement. During this interview, the fifteen year old daughter alleged that the respondent sexually assaulted her for the first time when she was nine or ten years old. She alleged that he sexually assaulted her at least ten to fifteen times in the intervening years. She also alleged that the respondent raped her at the residence he shared with the child, at times forcing her to watch pornography at that residence as well.
      The thirteen year old daughter alleged in the interview that the respondent had raped her when she was ten years old while her younger sister, another of the respondent’s children, was at home watching television in another room.

       See footnote 4. Also, local law enforcement started a criminal investigation of the allegations of sexual assault made against the respondent.

       The court ordered that there be no contact between the respondent and the child without department approval and supervision and placed the child under protective supervision. “ ‘Protective supervision’ means a status created by court order following adjudication of neglect whereby a child’s place of abode is not changed but assistance directed at correcting the neglect is provided at the request of the court through the Department of Children and Families or such other social agency as the court may specify . . . .” General Statutes § 17a-93 (i).

       General Statutes § 46b-120 (9) provides in relevant part: “[A] child or youth may be found ‘neglected’ who . . . (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth . . . .”

       At oral argument, the respondent, for the first time, claimed that the trial court committed plain error. See Practice Book § 60-5. “Our practice requires an appellant to raise claims of error in his original brief, so that 1he issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument.” (Internal quotation marks omitted.) Calcano v. Calcano, 257 Conn. 230, 244, 777 A.2d 633 (2001). Furthermore, “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) In re Matthew S., 60 Conn. App. 127, 133, 758 A.2d 459 (2000). Here, the respondent failed to brief his claim of plain error at all. We therefore decline to review the respondent’s claim of plain error.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CURTIS EASTON
    (AC 28652)
    Bishop, Robinson and Mihalakos, Js.
    Argued September 22
    officially released December 9, 2008

      Sarah F. Summons, special public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Curtis Easton, appeals from the judgment of the trial court, rendered following a hearing, revoking his probation pursuant to General Statutes § 53a-32 and imposing the remainder of his sentence. On appeal, the defendant claims that the chronology of his proceedings violated his due process rights because he was denied his sixth amendment right to present a defense by having to invoke his fifth amendment right against self-incrimination. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. In December, 2002, the defendant pleaded guilty to assault in the first degree and received a sentence of twelve years incarceration, execution suspended after forty-two months, with five years probation. On May 23, 2005, the defendant signed the conditions of probation, which included a general condition: “Do not violate any criminal law of the United States, this state, or any other state or territory.” The defendant was released from prison and commenced his probation on June 24,2005. On July 19,2005, twenty-five days after his release, the defendant was arrested for driving with a suspended license. A police officer conducted an inventory search of the motor vehicle that the defendant was driving and found 66.2 grams of marijuana in the trunk. The defendant was charged with possession of less than four ounces of marijuana, possession of marijuana within 1500 feet of a school, two counts of possession of marijuana with intent to sell, two counts of possession of marijuana with intent to sell within 1500 feet of a school and multiple motor vehicle infractions.

As a result of this arrest, the judicial branch’s adult probation and bail services unit prepared a warrant for the defendant’s arrest for a violation of probation, pursuant to § 53a-32. On January 12, 2007, the court, Beilis, J., held two hearings, a violation of probation hearing followed by a hearing on a motion for suspension of prosecution and order of treatment for alcohol and drug dependency, referred to as a CADAC hearing. See General Statutes § 17a-695. The CADAC hearing was to determine if the defendant was drug-dependent such that prosecution on the underlying charges should be suspended and treatment ordered. At the probation revocation hearing, the court found that the defendant had violated the general condition of his probation and that he was not amenable to further probation, and ordered him to serve the remaining eight and one-half years of his sentence. Immediately following the probation hearing, the court held the CADAC hearing and found that the defendant was not drug-dependent and, therefore, denied his CADAC motion. This appeal followed.

On appeal, the defendant argues that his constitutional right to due process was violated when he was forced to make an election between his sixth amendment right to present a defense and his fifth amendment right to refrain from compulsory self-incrimination in his other pending matters. Specifically, the defendant claims that by holding the probation and drug dependency hearings before a trial on the pending criminal charges, he was prevented from testifying and presenting a defense of his drug dependency, in violation of his sixth amendment right, and that instead he had to invoke his fifth amendment right to remain silent so as not to incriminate himself in his other pending matters. The defendant argues that his only option was not to testify regarding his drug dependency for fear that it would be used against him in his other pending matters, and, therefore, he was unable to present a defense and to refute the state’s evidence. The defendant, however, did exercise his right of allocution in the sentencing portion of his probation hearing and advised the court that he was using drugs on the day of his arrest.

We first set forth our standard of review. “Whether the defendant was deprived of his due process rights is a question of law, to which we grant plenary review. ” State v. T.R.D., 286 Conn. 191, 210, 942 A.2d 1000 (2008).

The sixth amendment right to present a defense is not at odds with the fifth amendment right against self-incrimination. State v. Crawford, 38 Conn. Sup. 472, 475, 451 A.2d 583 (1982). So long as the defendant is neither forced to exercise nor prevented from exercising his right to testify, the right to present a defense is not burdened by the strategic choice or resulting adverse consequences. State v. Perkins, 271 Conn. 218, 236, 856 A.2d 917 (2004). “The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that are essential to due process of law in a fair adversary process. . . . Although a defendant in a probation revocation hearing is not entitled to the full panoply of due process rights afforded to defendants in criminal prosecutions, due process, nonetheless, mandates that a defendant in a probation revocation hearing possesses the right to be heard in person and thus to testify on one’s behalf.” (Citations omitted; internal quotation marks omitted.) State v. Hobson, 68 Conn. App. 40, 44, 789 A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557 (2002).

“The criminal process, [however] like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow.” (Internal quotation marks omitted.) McGautha v. California, 402 U.S. 183, 213, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971), vacated on other grounds and remanded for further proceedings sub nom. Crampton v. Ohio, 408 U.S. 941, 92 S. Ct. 2873, 33 L. Ed. 2d 765 (1972). “While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.” (Internal quotation marks omitted.) State v. Hobson, supra, 68 Conn. App. 45. “[I]t is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.” McGautha v. California, supra, 215.

Furthermore, the defendant has presented no authority to show that the court is legally required to schedule its proceedings in a specific order. In fact, the law holds contrary to the defendant’s argument because there is no requirement that entitles the defendant to choose the order of his proceedings. See Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974) (revocation proceeding stayed until other charges tried solely to protect probationer but riot required by law); Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987) (petitioner urged probation proceeding be stayed until disposition in other matter, but law does not require court to do so), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

Accordingly, the defendant was not deprived of his due process rights. “The fact that an accused is confronted with the prospective waiver of one constitutional right in order to preserve the integrity of another constitutional right does not necessarily create a conflict that is in itself unconstitutional. ” State v. Crawford, supra, 38 Conn. Sup. 475. In the present matter, the defendant simply was informed of his fifth amendment right against self-incrimination, and after conferring with his attorney and weighing his options, he chose not to present a defense as to his drug dependency but rather to exercise his right of allocution. The fact that the defendant had to make a difficult choice between two constitutional rights does not deprive him of due process.

The judgment is affirmed.

       The Connecticut alcohol and drug abuse commission (CADAC) was replaced by the department of mental health and addiction services in 1993.


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. MILTON SPIKES
    (AC 27547)
    McLachlan, Lavine and McDonald, Js.

      Argued May 29
    officially released December 16, 2008

      Ruth Daniella Weissman, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Mary Rose Pálmese, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Milton Spikes, appeals from the judgments of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a), and larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (2) and 53a-119 based on a February 19, 2005 incident, and of attempt to commit burglary in the second degree in violation of General Statutes §§ 53a-102 (a) (2) and 53a-49 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a) (2), and criminal mischief in the second degree in violation of General Statutes § 53a-116 (a) (1) based on a February 23, 2005 incident. The charges against the defendant were for crimes that occurred at 291 Church Street, Wethersfield. On appeal, the defendant claims that (1) the evidence presented at trial was insufficient to support the convictions of larceny in the second degree, burglary in the third degree, burglary in the second degree and attempt to commit burglary in the second degree, (2) the trial court instructed the jury improperly on the definition of “value,” (3) General Statutes § 53a-121, which defines the word “value” for purposes of Connecticut’s larceny offenses, is unconstitutionally vague, (4) the court improperly granted the state’s motion to consolidate multiple claims against him and (5) his right to a fair trial was violated because the prosecutor improperly attempted to shift the burden of proof to the defendant. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On February 19, 2005, shortly after 2:30 p.m., the police responded to a call to a residence at 291 Church Street. The owners of the residence, Sean Stearley and Kristen Stearley, reported as missing from their home more than $5000 worth of jewelry and $1100 in cash. The Stearleys had left their home about 11:30 a.m., locked their door and returned home about 2:30 p.m. to find their property missing.

At about the time of the theft, between 11:30 a.m. and 2:30 p.m., the defendant had been seen several times in the immediate vicinity of 291 Church Street. Approximately one hour before being dispatched to the scene, Officer Thomas Mitney of the Wethersfield police department observed a man walking on Church Street, whom he later identified as the defendant. The defendant was wearing a hooded sweatshirt and dirty, light tan work pants. Mitney also observed the defendant a second time when Mitney was driving to 291 Church Street. Then the defendant was walking near the intersection of the Silas Deane Highway and Church Street. Gary Buyak, a United States Postal Service carrier, also had observed the defendant that day standing outside 291 Church Street sometime between 2 p.m. and 2:30 p.m.

Four days later, on the morning of February 23, 2005, Sean Stearley again called the police to report suspicious footprints in his backyard. Snow had fallen the night before, and the prints led to several possible points of entry to his house. After arriving at 291 Church Street, Officer Tammy Austin of the Wethersfield police department observed that the footprints in the snow contained the brand name “Lugz.” She also observed that one of the outside windows that led to the Stearleys’ basement had been removed and that the left windowpane was smashed. The footprints also led to a screened in porch. The screen had been pushed in from the outside, and there were similar footwear impressions on the floor inside the screened in area.

At approximately the same time, Officer Anthony DeMonte of the Wethersfield police department observed the defendant stumbling in the road near the intersection of Morrison Avenue and Tifton Road, about two blocks from 291 Church Street. DeMonte stopped to speak to the defendant. The defendant provided conflicting stories regarding the location from which he was coming. While DeMonte was speaking with the defendant, he heard a radio transmission regarding suspicious footprints. DeMonte then observed that the defendant was wearing a pair of black boots, which displayed the “Lugz” brand logo in the middle of the sole. During his discussion with the defendant, DeMonte learned that the defendant had on his person several pieces of jewelry. Called to the scene, Sergeant Delroy Warmington of the Wethersfield police department observed that the defendant’s clothing matched that of a description of a suspect in the February 19 burglary. Warmington then transported the jewelry found on the defendant’s person to 291 Church Street where the Stearleys identified it as some of the items that were taken from their home on February 19. Four pieces of the Stearleys’jewelry were not recovered from the defendant. At this time, the defendant was arrested.

Before trial, the court granted the state’s motion to consolidate for trial the charges arising from the February 19 and February 23 incidents. Thereafter, the jury found the defendant guilty on all five counts. At sentencing, the court merged the charges of burglary in the second degree and attempt to commit burglary in the second degree, as to the February 23 incident, and sentenced the defendant to a total effective term of seventeen years imprisonment, followed by three years of special parole. This appeal followed.

I

The defendant asserts that the evidence presented at trial was insufficient to support his convictions of larceny in the second degree, burglary in the third degree, burglary in the second degree and attempt to commit burglary in the second degree.

“The standard of review we apply to a claim of insufficient evidence is well established. . . . [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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ramirez, 107 Conn. App. 51, 62, 943 A.2d 1138, cert. granted on other grounds, 287 Conn. 915, 950 A.2d 1290 (2008). “In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference.” (Internal quotation marks omitted.) State v. Leggett, 94 Conn. App. 392, 398, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006).

A

The defendant claims that there was insufficient evidence to support his conviction of larceny in the second degree as to the incident on February 19, 2005. The defendant argues that there was insufficient evidence from which the jury could have found that the value of the property that was stolen from 291 Church Street on February 19, 2005, was more than $5000. We disagree.

“A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property . . . exceeds five thousand dollars . . . .” General Statutes § 53a-123 (a). General Statutes § 53a-121 (a) (1) provides in relevant part that “value means the market value of the property ... at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property . . . within a reasonable time after the crime.”

In support of his claim, the defendant argues that both Kristen Stearley and a representative of the Stearleys’ insurance carrier testified only as to the replacement cost of the unrecovered jewelry. The defendant argues further that the relevant value to use in determining the value of jewelry is the fair market value. The defendant therefore concludes that the state failed to meet its burden of proof because it failed to elicit sufficient information as to the market value of used jewelry. We disagree.

In this case, the state put into evidence a list of all the stolen items with a figure for each piece of stolen jewelry, which the Stearleys gave to the police on February 19. The figures listed represented to the best of the Stearleys’ recollection the original purchase price of the stolen jewelry at a total of $5250.

The state also put in evidence a written claim filed by the Stearleys with their insurance carrier for the unrecovered jewelry. A representative of the Stearleys’ insurance company testified that the company valued the four items that were not recovered from the defendant at $3689.85. See State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985). The Stearleys also testified they had purchased those items for approximately $1850 in 1987, 1991, 1992 and 1994. As instructed by their insurance company, the Stearleys testified that they searched the Internet to find similar jewelry and its price as comparable sales. The Stearleys concluded, on the basis of their research, that both the actual cash value and the replacement cost of the four nonrecovered items was $3689.85.

It is well established that an owner of property is competent to testify as to the value of his or her property. State v. Baker, 182 Conn. 52, 60, 437 A.2d 843 (1980). This rule reflects the common experience that owners are familiar with their property and know what it is worth. Id. Whether an owner’s testimony as to the market value provides sufficient information to support a jury verdict depends on the circumstances of each case. Id., 63. “An owner must of necessity rely on other sources for his knowledge of value.” State v. Davis, 3 Conn. App. 359, 367, 488 A.2d 837 (1985). An owner may estimate the worth of his or her property, and the jury must consider the weight of the owner’s testimony. Id. The state does not need to prove the value of property with exactitude. Id., 368. The state is required only to “lay a foundation which will enable the trier to make a fair and reasonable estimate.” (Internal quotation marks omitted.) Id.

Our Supreme Court has stated that “[t]he expressions actual value, market value, or market price, when applied to any article, mean the same thing. They mean the price or value of the article established or shown by sales public or private in the way of ordinary course.” (Internal quotation marks omitted.) State v. Frilando, 182 Conn. 397, 400, 438 A.2d 413 (1980). It also is recognized that the replacement cost of jewelry may not differ from its fair market value. See State v. Paoletto, 181 Conn. 172, 183-84, 434 A.2d 954 (1980).

The list given to police reflected that the Stearleys had paid $3400 for the items found with the defendant, and the Stearleys testified that the purchase figures on the list were accurate. The state also put into evidence photographs of the recovered jewelry that showed no damage to the items. The jury also was able to apply its experience in the affairs of life particularly as to inflation. See State v. Browne, 84 Conn. App. 351, 389, 854 A.2d 13 (affirming verdict when jury able to view some stolen jewelry, owner testified as to its value and state presented several types of valuation methods), cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). We also conclude that the jury had a sufficient basis from the Stearleys’ testimony to find that the jewelry had appreciated in the time since the Stearleys had purchased it. See id.; 388. Unlike the situation with electronic equipment, which is generally subject to prompt depreciation, we have recognized that jewelry may appreciate in value. See id., citing State v. Paoletto, supra, 181 Conn. 182.

Accordingly, we conclude that the jury reasonably could have found that the defendant removed jewelry from the Stearleys’ residence with a value of more than $5000 at the time of the crime

The defendant claims on appeal that the court should not have instructed the jury to consider the $1100 in cash that was stolen during the Februaiy 19 burglary. In support of this claim, the defendant argues that the state’s amended long form information alleged that the stolen property consisted of “assorted jewelry . . . .” This, according to the defendant, deprived him of notice of the fact that the jury would consider the $1100 toward the monetary threshold for larceny in the second degree, and it was therefore unfairly prejudicial.

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Internal quotation marks omitted.) State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). When the nature of the crime as charged in the information and the content of the instruction to the jury differ only to the extent that they describe two different methods of committing the same offense, the defendant is able to establish an infringement of constitutional rights only if he can demonstrate unfair surprise or prejudice. Id. A defendant cannot establish unfair surprise when the state presents evidence that is consistent with the uncharged theory of the crime and the defendant, as here, fails to object to it. Id., 490-91. To show prejudice, a defendant must show that he would have changed his defense in some way if the state had included in the information the uncharged theory. Id., 491.

In this case, the court’s instruction to the jury that it could consider the stolen cash did not change any of the elements of the crime with which the defendant was charged. The nature of the stolen property is not an element of larceny in the second degree. See General Statutes § 53a-123 (a) (2). We conclude that the defendant cannot show unfair surprise, as the state offered, and the court admitted, evidence of the stolen $1100, and the defendant did not object to this evidence. The money was included in the owners’ February 19 list of stolen property. The Stearleys testified that the money was stolen. The Stearleys’ insurance adjuster testified as to the Stearleys’ claim for stolen money.

The defendant also does not suggest that he would have changed his defense if he had known that the state proposed to use the evidence of the stolen cash against him. The defendant argues that he might have testified and been believed by the jury because the cash was stolen on February 19 and when arrested days later, he was still wearing the same thin windbreaker. This scenario ignores the fact that the theft of the cash was presented in the state’s case and that his decision to testify would be made during his case, which followed the state’s case. We see no prejudice in this respect as a result of the court’s instruction to the jury. Accordingly, we conclude that the defendant has failed to show any unfair surprise or prejudice caused by the language of the substitute information.

We conclude that there was therefore sufficient evidence to support the verdict against the defendant for larceny in the second degree.

B

The defendant next claims that there was insufficient evidence to support his conviction of burglary in the third degree at 291 Church Street on February 19, 2005. We disagree.

In support of his claim, the defendant argues that the only evidence connecting him to the burglary was that the police found him in possession of some of the property that was stolen on February 19 and that he was seen at about the time of the February 19 burglary standing in front of 291 Church Street. The defendant also argues that there was no forensic evidence linking him to the burglary and no sign of forceful entry into 291 Church Street on February 19.

“A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.” General Statutes § 53a-103 (a). A defendant’s conviction may rest on circumstantial evidence. State v. Cates, 202 Conn. 615, 627, 522 A.2d 788 (1987). There is no legal distinction between direct and circumstantial evidence, although the inferences drawn from circumstantial evidence must be rationally based on something more than mere speculation and conjecture. Id.

In the present case, the defendant was seen in close proximity to 291 Church Street by a Wethersfield police officer, both shortly before and shortly after the February 19 burglary. Shortly before the Stearleys discovered that their property had been stolen from their home that day, a United States Postal Service worker observed a man standing in front of 291 Church Street. That man was wearing the same clothes that the defendant wore at the time of his arrest on February 23. The defendant also later had in his possession all but four of the jewelry items that were stolen during the February 19 burglary. Although the defendant argues that there was nothing in the record to indicate unlawful entry into 291 Church Street on February 19, there was evidence that the doors to the attached garage had deteriorated and that entry could be made without force. Furthermore, “[forcible entry, with or without damage, is not an element of burglary.” State v. Garrett, 42 Conn. App. 507, 513, 681 A.2d 362, cert. denied, 239 Conn. 928, 683 A.2d 398 (1996).

This court has found sufficient evidence under similar circumstances to sustain a verdict of guilty of burglary in the third degree. In State v. Correa, 57 Conn. App. 98, 106, 110, 748 A.2d 307, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000), the court affirmed the conviction of a defendant for burglary in the third degree on the basis of the following evidence: (1) on the day of the burglary, a car belonging to the defendant’s girlfriend was seen parked outside the victim’s home; (2) the defendant matched a witness’ description of a man who was standing in the victim’s driveway at about the time of the burglary; and (3) the police found some of the victim’s stolen jewelry in the apartment where they found the defendant. In the present case, on the basis of evidence that the defendant was seen at or near 291 Church Street at about the time of the burglary and that he had on his person at the time he was arrested some of the jewelry stolen from the premises, we conclude that the jury reasonably could have found that he illegally entered 291 Church Street on February 19, 2005, and stole that jewelry. We conclude that there was, therefore, sufficient evidence to sustain the verdict against the defendant for burglary in the third degree on February 19.

C

The defendant next claims that there was insufficient evidence to support his conviction of burglary in the second degree and attempt to commit burglary in the second degree as to the incident on February 23. The defendant argues that there was insufficient evidence from which the jury could have found that on February 23, 2005, he entered the dwelling at 291 Church Street. The defendant also argues that even if the jury reasonably could have found that he illegally entered the dwelling, there was insufficient evidence from which it could have found that he did so with the intent to commit a crime therein. We disagree.

“A person is guilty of burglary in the second degree when such person ... (2) enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such a dwelling, with intent to commit a crime therein.” General Statutes § 53a-102 (a). “Any penetration, however slight, of a space within the . . . [building] by the defendant, or by any part of his body ... is a sufficient entry. Accordingly, it is a sufficient entry when the defendant reaches his finger, hand, or arm inside . . . the [building].” (Internal quotation marks omitted.) State v. Smith, 156 Conn. 378, 382, 242 A.2d 763 (1968). Photographs of the damaged condition of a door support the inference that a defendant entered at least minimally into a victim’s dwelling. See State v. Adorno, 45 Conn. App. 187, 195-96, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).

As to intent, in many cases, intent can be proved only by circumstantial evidence. State v. Hampton, 66 Conn. App. 357, 364, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001). It is proved by a defendant’s conduct. Id. “It is a basic principle of law that common sense is not to be left at the courtroom door.” (Internal quotation marks omitted.) Id., 365. Evidence that a defendant attempted to enter a dwelling forcibly provides a reasonable basis for the jury to infer the intent to commit theft. Id.

In the present case, the state introduced testimony that there were footprints in the Stearleys’ yard that matched the defendant’s boots. The police had observed only one type of footprint in the snow. The prints led directly to the screened in porch area. The police also found similar prints inside the screened in porch. The state also introduced photographs that showed the screen to the door had been partially removed and a window damaged. Because the state may prove entry with circumstantial evidence; State v. Smith, supra 156 Conn. 382; we conclude that the jury reasonably could have found that the defendant entered the dwelling at 291 Church Street. The law in Connecticut also allows a jury to infer the defendant’s intent to commit a crime from the fact that he forcibly entered the home of another. See State v. Hampton, supra, 66 Conn. App. 365. In the present case, moreover, the police also found jewelry on the defendant’s person that was taken during the February 19 robbery of the same dwelling. “Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than [to prove bad character], such as to prove intent . . . .” Conn. Code Evid. § 4-5 (b). Accordingly, we conclude that the jury reasonably could have found that the defendant entered the dwelling at 291 Church Street with the intent to commit larceny. We conclude that there was, therefore, sufficient evidence to sustain the verdict against the defendant for burglary in the second degree and attempt to commit burglary in the second degree.

II

The defendant next claims that the court failed to instruct the jury adequately on the definition of the word “value” as to the charge of larceny in the second degree.*

The defendant requests review of his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because he failed to preserve this claim at trial. He did not take exception to the charge or submit a contrary request to charge.

“[U]nder . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, [i]t is reasonably possible that the jury was misled.” (Internal quotation marks omitted.) State v. Serrano, 91 Conn. App. 227, 244, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). In determining whether the jury was misled, “[i]t is well established that [a] 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 [it] 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.” (Internal quotation marks omitted.) State v. White, 97 Conn. App. 763, 773, 906 A.2d 728, cert. denied, 280 Conn. 939, 912 A.2d 476 (2006).

The defendant argues that the court was required to “instruct the jury that it needed to ascertain the ‘fair market value’ ... of used jewelry, as something legally quite different than ‘replacement [cost]’ . . . .” The defendant claims that the state offered testimony only as to the jewelry’s replacement cost. We disagree because, as previously pointed out, the state presented evidence as to the present actual cash value as well as the replacement cost of the unrecovered jewelry.

General Statutes § 53a-121 (a) (1) provides in relevant part that “value means the market value of the property ... at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property . . . within a reasonable time after the crime.”

In this case, the court instructed the jury that value meant “the market value of the property at the time and place of the crime,” but it did not expressly inform the juiy that it should consider the cost to replace the jewelry if it could not satisfactorily ascertain its market value at the time and place of the crime. Our Supreme Court has held that it does not deprive the defendant of a fundamental right when the court fails to provide this instruction to the jury. State v. Frilando, supra, 182 Conn. 400. We conclude that there is no fundamental right to a jury instruction that includes the statutory definition of value, especially when the jury has heard testimony at trial of the owner’s valuation in terms of the actual cash value at the time and place of the crime. As pointed out previously, our Supreme Court has stated that “actual value, market value, or market price . . . mean the same thing.” (Internal quotation marks omitted.) Id. Accordingly, the court’s instruction did not deprive the defendant of a fundamental right.

In this case, the state presented evidence of the unrecovered jewelry’s present cash value and the original purchase price of all the stolen jewelry. The state also presented evidence that the unrecovered jewelry’s present replacement cost and its present actual cash value were identical. See State v. Paoletto, supra, 181 Conn. 183-84. Accordingly, the deficiency, if any, in the court’s instruction was harmless beyond a reasonable doubt. See State v. Golding, supra, 213 Conn. 240; see also State v. Taylor, supra, 196 Conn. 230-31. We conclude that the instruction did not violate the defendant’s fundamental right to a fair trial.

Ill

The defendant next claims that § 53a-121, which defines the word “value” for purposes of Connecticut’s larceny offenses, is unconstitutionallyvague. The defendant argues that § 53a-121 “fails to specify how [fair market value] can or cannot be ‘satisfactorily ascertained’ . . . .” We disagree.

The defendant did not preserve his claim, but we will review it because the record is adequate and the alleged error is of constitutional magnitude, thus satisfying the first two prongs of the Golding test. See State v. Burton, 258 Conn. 153, 158, 778 A.2d 955 (2001).

“[T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning. . . . The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue.” (Citation omitted; internal quotation marks omitted.) Rocque v. Farricielli, 269 Conn. 187, 204-205, 848 A.2d 1206 (2004).

General Statutes § 53a-121 (a) (1) provides in relevant part that “value means the market value of the property ... at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property . . . within a reasonable time after the crime.” (Emphasis added.) Our Supreme Court has held that market value is the “price that would in all probability—the probability being based upon the evidence in the case—result from fair negotiations, where the seller is willing to sell and the buyer desires to buy.” (Internal quotation marks omitted.) O'Brien v. Board of Tax Review, 169 Conn. 129, 138, 362 A.2d 914 (1975). In this case, the court instructed the jury to determine the value of the property on the basis of its market value at the time of the crime. The court instructed the jury further that it was to ascertain this value on the basis of “all the evidence . . . .” The court did not instruct the jury to consider any valuation methods other than market value. Common experience tells us that a valuation method is not arbitrary if it is based on the cumulative effect of all of the evidence admitted at trial. The absence of expert testimony also does not render arbitrary the jury’s determination. Lay testimony on the issue of value enables a jury to make a reasonable and fair estimate of value. State v. Davis, supra, 3 Conn. App. 368. It is well established that an owner of property is, as was the case here, competent to testify as to the value of his or her property, and the weight of that testimony is left to the jury. Id., 367.

We conclude that the definition of value in § 53a-121 that was read to the jury provided clear direction for applying market value in this case. We conclude therefore that § 53a-121 is not unconstitutionally vague as it applies to the facts of this case.

IV

The defendant next contends that the court abused its discretion when it granted, in part, the state’s motion to consolidate for trial the charges arising from the February 19 and February 23 incidents. The defendant argues that the charges arose from events that took place on different days and that the state failed to provide sufficient evidence concerning his modus operandi.

General Statutes § 54-57 provides that “[wjhenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.” “In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Internal quotation marks omitted.) State v. Fauci, 87 Conn. App. 150, 156, 865 A.2d 1191 (2005), aff'd, 282 Conn. 23, 917 A.2d 978 (2007).

Our Supreme Court has held that a trial court has discretion generally to admit evidence of one crime in the trial of another to establish a common scheme or plan. See State v. McKenzie-Adams, 281 Conn. 486, 527, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). Evidence of a common plan is relevant because it bears on the defendant’s motive, identity and intent. State v. Randolph, 284 Conn. 328, 342, 933 A.2d 1158 (2007). We recognize that in cases that do not involve sex crimes, the law requires a more stringent standard to determine whether evidence of other crimes is admissible to establish a common scheme or plan. Id., 341.

In the present case, when the court granted the state’s motion to consolidate the charges against the defendant, it took note of the fact that the evidence with respect to each charge was cross admissible. Although the court did not specify what evidence was cross admissible, the record provides ample evidence to support its decision.

We conclude that the court was within its discretion to admit evidence that the defendant had in his possession the jewelry that was taken from 291 Church Street on February 19, in order to show that he intended to commit larceny when he entered the same residence on February 23. The court was equally within its discretion to admit the evidence of the fact that the defendant had forced his way into 291 Church Street on February 23, in order to show that he was involved in the February 19 burglary.

To challenge successfully the court’s decision to consolidate the February 19 and February 23 charges for one trial, the defendant must prove that the court’s decision resulted in substantial injustice. See State v. Fauci, supra, 87 Conn. App. 156. In circumstances such as this, in which evidence of separate crimes is cross admissible, a defendant is not ordinarily prejudiced by a single trial. See State v. McKenzie-Adams, supra, 281 Conn. 527. The defendant has not referred to any extraordinary circumstances present in this case. Accordingly, we conclude that the court acted properly and within its discretion when it consolidated the charges against the defendant for a single trial. The defendant’s claim therefore fails.

V

The defendant argues next that the judgments must be reversed because the prosecutor improperly shifted the burden of proof to the defendant. The defendant argues that the prosecutor was barred from reminding the jury at the beginning of her argument that “[tjhere was no evidence or alternative suggestion as to how [the defendant] came into possession of [the stolen] jewelry.” We disagree.

A claim of prosecutorial impropriety warrants review even if the defendant fails to preserve it at trial. State v. D’Haity, 99 Conn. App. 375, 382, 914 A.2d 570, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007). A claim of prosecutorial impropriety requires a two step process on appellate review. Id., 383. “The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether the [impropriety] deprived a defendant of his due process right to a fair trial. . . . [P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.” (Citation omitted; internal quotation marks omitted.) Id., 383-84.

Our first consideration is whether the prosecutor’s statement during closing arguments was improper. See generally State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987).

It is not improper for a prosecutor to refer to the fact that a defendant has failed to explain the state’s physical evidence. State v. D’Haity, supra, 99 Conn. App. 385 (holding that it was not improper during closing argument for prosecutor to address fact that defendant did not explain abrasions found on victim’s shoulder and presence of semen on victim’s underwear). When viewed in the context of a closing argument in which the prosecutor repeatedly has referred to the state’s burden of proof, “the prosecutor’s questioning of the defendant’s failure to explain [the state’s evidence] merely appeal[s] to the jury’s common sense.” Id. The prosecutor is entitled to comment on the lack of support for the defendant’s theory of innocence. Id. Such a statement reasonably may be considered to refer to the fact that the defense never offered any evidence to contradict the prosecution’s evidence. State v. Hicks, 56 Conn. App. 384, 394, 743 A.2d 640 (2000). In contrast to a prosecutor’s argument that refers to the defendant’s personal failure to testify, a prosecutor may make general comments that concern the quality of the defendant’s evidence or the lack of evidence. Id.

In the present case, the prosecutor stated several times in her closing argument that the state had the burden of proving every element of the crimes charged. She was within her discretion to comment in her closing argument on defense counsel’s failure to provide during the trial any evidence or alternative suggestion as to why the defendant possessed the stolen jewelry at the time he was arrested. See State v. Hicks, supra, 56 Conn. App. 394; see also State v. D’Haity, supra, 99 Conn. App. 384. The defendant’s allegation of impropriety in this case is based on a single comment made by the prosecutor that was not repeated. See State v. D’Haity, supra, 385.

The prosecutor also made clear to the jury in her rebuttal argument that the state faced the burden of proving the defendant’s guilt beyond a reasonable doubt. She responded to the defendant’s closing argument as follows: “I have to agree with [defense counsel] on at least one point—that it’s the state’s burden in any case to prove each and every element beyond a reasonable doubt. He accused me of trying to shift the burden onto the defendant. If you feel that in any of my comments that I did try to do that, that is certainly— is not my intent. The burden cannot shift to the defendant. It is my burden to prove this case. ” We accordingly conclude that the defendant’s argument is without merit.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court instructed the jury as follows: “If you find that the defendant is guilty of larceny, you must go on to consider the value of the property involved. For you to find the defendant guilty of larceny in the second degree under General Statutes § 53a-123 (a) (2), the state must prove beyond a reasonable doubt that the value of the property taken exceeded $5000. The statute sets forth the standard to be used in determining the value of property. Value means the market value of the property at the time and place of the crime. Property also includes cash. While the law provides that an owner of property is competent to testify as to its value, it is for you to determine, however, based upon your evaluation of all the evidence before you, the value of the property in question.”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant also claims that General Statutes § 53a-121 fails to specify adequately the appropriate circumstances for applying replacement cost or for applying the statutory default value of “less than fifty dollars . . . .” The defendant argues further that § 53a-121 is unconstitutionally vague as it applies to the facts of this case because the state failed to establish the jewelry’s fair market value via an expert. These arguments are without merit.


author: FLYNN, C. J.

text:
    DARTMOOR CONDOMINIUM ASSOCIATION, INC. v. MICHAEL B. GUARCO ET AL.
    (AC 29011)
    Flynn, C. J., and Bishop and Harper, Js.

      Argued October 16
    officially released December 16, 2008

      J. Xavier Pryor, for the appellant (named defendant).

      J. Christopher Kervick, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

In this case, we are called on to determine whether a rule of practice requiring a “review of the finding of facts and hearing on any objections” to a fact finder’s report requires that the trial court listen to the arguments of counsel. We conclude that it does. Following the rule of construction that specific provisions prevail over more general provisions, we conclude that a hearing was required even where oral argument was not requested specifically by the objecting party.

The defendant Michael B. Guarco appeals from the judgment of the trial court in favor of the plaintiff, Dartmoor Condominium Association, Inc., rendered in accordance with the report of an attorney fact finder. The defendant claims that (1) the court improperly rendered judgment without holding a hearing on his objection to the fact finder’s report, (2) the fact finder improperly relied on evidence not before it and (3) certain findings of the fact finder were clearly erroneous. We agree with the defendant’s first claim and determine it to be dispositive of the matter. We, therefore, reverse the judgment of the trial court.

The facts and procedural history necessary to our resolution of this appeal are as follows. In 1998, the defendant and Theodor Perez acquired title to certain property on Mayfield Drive, a private drive in Enfield. The property was subject to the terms and conditions of a private road maintenance agreement. Under the agreement, the defendant and Perez were obligated to pay six eighths of the maintenance costs of Mayfield Drive and its related improvements to the plaintiff, which the agreement designated as the managing party.

On April 19, 2005, the plaintiff filed an amended complaint against the defendant and Perez, alleging breach of the agreement. The plaintiff alleged that the defendant and Perez had failed to make payments required by the agreement since December, 2003. The matter was referred to an attorney fact finder, who took evidence on February 13, April 30 and May 7, 2007. On May 23, 2007, the fact finder filed with the court his findings of fact in which he recommended judgment in favor of the plaintiff in the amount of $23,362.50 plus court costs.

Pursuant to Practice Book § 23-57, the defendant filed an objection to the findings of fact on June 6, 2007. The objection did not contain a request for oral argument. On June 13, 2007, Perez filed an objection joining in the defendant’s objection. Thereafter, without holding a hearing on the objections, the court issued two notices. The first, filed June 21, 2007, stated: “The foregoing objection having been heard by this court, it is hereby ordered: overruled. Judgment may enter in the amount of $23,362.50 plus court costs.” The second notice, filed June 27, 2007, stated: “Objections to acceptance of findings of facts dated June 6, 2007, has the following order: overruled, judgment may enter in the amount of $23,362.50 plus court costs.” This appeal followed.

Resolution of the defendant’s appeal requires interpretation of our rules of practice and, therefore, presents a question of law over which our review is plenary. Zirinsky v. Zirinsky, 87 Conn. App. 257, 269, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). In interpreting our rules of practice, we are guided by the principles governing statutory interpretation. Pitched. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999) (“[t]he rules of statutory construction apply with equal force to Practice Book rules”). Our fundamental objective in interpreting a rule of practice is to ascertain and give effect to the intent of the drafters. Chase Manhattan Mortgage Corp. v. Burton, 81 Conn. App. 662, 667, 841 A.2d 248, cert. denied, 268 Conn. 919, 847 A.2d 313 (2004). “In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005).

The defendant argues that, pursuant to Practice Book § 23-58 (a), and this court’s holding in Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 92 Conn. App. 394, 885 A.2d 204 (2005), aff'd after remand, 102 Conn. App. 231, 926 A.2d 1 (2007), the court was required to hold a hearing on his objection to the fact finder’s report. Practice Book § 23-58 (a) provides that “[after review of the finding of facts and hearing on any objections thereto, the judicial authority may take the following action: (1) render judgment in accordance with the finding of facts; (2) reject the finding of facts and remand the case to the fact finder who originally heard the matter for a rehearing on all or part of the finding of facts; (3) reject the finding of facts and remand the matter to another fact finder for rehearing; (4) reject the finding of facts and revoke the reference; (5) remand the case to the fact finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts; or (6) take any other action the judicial authority may deem appropriate.” (Emphasis added.)

In Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, supra, 92 Conn. App. 396, the court rendered judgment in accordance with the attorney fact finder’s report without holding a hearing, despite the defendant’s having objected and having requested argument. In reversing the judgment, we held that “[Practice Book § 23-58 (a)] gives the reviewing court a number of discretionary options for disposition of a referred matter following the filing of a fact finder’s report, including the rendering of judgment in accordance with the finding of facts. Practice Book § 23-58 (a) (1). Nevertheless, the plain language of the rule indicates that if any objections to the report have been raised, the court, before deciding on one of the available courses of action, must take the mandatory prerequisite step of holding a hearing on the objections. Compare Gordon Hoyt Associates, Inc. v. Statewide Ins. Corp., 7 Conn. App. 115, 117, 507 A.2d 528 (1986) (‘[absent such a timely objection, the court is warranted in rendering judgment on the finding of facts’ . . .). Because the court here declined to do so, its ultimate judgment was rendered improperly.” (Emphasis in original.) Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, supra, 398-99. In the present case, we agree with the defendant’s claim that Practice Book § 23-58 and the holding of Banks Building Co., LLC, required the court to hold a hearing on his objection to the findings of fact.

The plaintiffs arguments in opposition may be summarized as follows. The plaintiff first maintains that although § 23-58 (a) requires the court to hear any objections prior to accepting the fact finder’s report, there is no requirement that the court hear oral argument on the objections. Because the court’s initial notice stated that the defendant’s objection had “been heard,” the plaintiff contends that the court fulfilled the requirements of § 23-58 (a). The plaintiff further argues that Banks Building Co., LLC, is distinguishable from the present case because here, the defendant did not request a hearing. Under Practice Book § 11-18 (a), oral argument is at the discretion of the court, except in matters where argument is a matter of right. Practice Book § 11-18 (a) provides in relevant part: “Oral argument is at the discretion of the judicial authority except as to motions to dismiss, motions to strike, motions for summary judgment, motions for judgment of foreclosure, and motions for judgment on the report of an attorney trial referee and/or hearing on any objections thereto. For those motions, oral argument shall be a matter of right, provided: (1) the motion has been marked ready for adjudication in accordance with the procedure indicated in the notice that accompanies the short calendar on which the motion appears, and (2) the movant indicates at the bottom of the first page of the motion or on a reclaim slip that oral argument or testimony is desired . . . The plaintiff points out that a hearing on an objection to a fact finder’s report is not listed in Practice Book § 11-18 (a) as a matter where oral argument is as of right. It further argues that, even if the defendant were entitled to argument, he failed to request it as required by § 11-18 (a) (2). We are not persuaded by these arguments, which we address in turn.

First, regardless of the language employed in the court’s notice, the defendant’s objection was not given a sufficient hearing for the purposes of Practice Book § 23-58 (a). In Banks Building Co., LLC, the court’s memorandum of decision made it clear that the court had reviewed the defendant’s objection prior to its ruling. Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, supra, 92 Conn. App. 396-97. Despite this review, we held that the hearing requirement of § 23-58 (a) had not been satisfied. Id., 399. Under the plaintiffs reasoning here, the court in Banks Building Co., LLC, “heard” the defendant’s objections. Although the present appeal does not require us to delineate exhaustively the contours of a “hearing” for the purposes of § 23-58 (a), it is clear that under Banks Building Co., LLC, in camera review of a party’s objection is not sufficient.

The plaintiffs second argument is essentially that, notwithstanding Practice Book § 23-58 (a), the factual scenario in this case is governed by Practice Book § Ills. The rules of practice concerning attorney fact finding are contained in Practice Book §§ 23-52 through 23-59. These sections, and § 23-58 in particular, make no reference to § 11-18 or its requirements with regard to oral argument in civil matters. “It is a well-settled principle of [statutory] construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) State v. State Employees’ Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997). In these circumstances, the specific terms of Practice Book § 23-58 (a), requiring the court to hold a “hearing on any objections” to the findings of fact, prevail over the general language of § 11-18, which would otherwise control in this civil matter. Further, we find significant the fact that hearings on objections to attorney fact finder reports are not included in the enumerated motions and hearings of § 11-18 (a) where argument is a matter of right but must be claimed for oral argument. In contrast, the drafters of our rules included hearings on objections to the reports of attorney trial referees under § 11-18 (a). As drafted, § 23-58 is a stand-alone provision with no indication that it is to be read in conjunction with, nor subject to, the provisions of § 11-18 (a).

In Banks Building Co., LLC, we indirectly emphasized the specificity of § 23-58 in holding that the “plain language of the rule indicates that if any objections to the report have been raised, the court, before deciding on one of the available courses of action, must take the mandatory prerequisite step of holding a hearing on the objections.” Banks Building Co., LLC, v. Malanga Family Real Estate Holding, LLC, supra, 92 Conn. App. 398-99. The plain language of § 23-58 (a) does not contain a requirement that a party objecting to a fact finder’s report make a request for a hearing. Although the defendant in Banks Building Co., LLC, had requested oral argument, this fact was not crucial to our holding. Similarly here, the fact that the defendant did not request a hearing on his objection should not have precluded him from such a hearing pursuant to § 23-58 (a).

Under the plain language of Practice Book § 23-58 (a) and our holding in Banks Building Co., LLC, a trial court, upon receiving an objection to an attorney fact finder’s report must hold a hearing prior to taking further action. Because the court did not hold such a hearing in the present case, its judgment overruling the defendant’s objection and accepting the findings of fact was improper.

The judgment is reversed and the case is remanded for a hearing on the defendant’s objection, after which the court may take further action in accordance with Practice Book § 23-58.

In this opinion the other judges concurred.

       Although Guarco and Theodor Perez were named as defendants, Perez did not appeal. We refer in this opinion to Guarco as the defendant.

       Having so determined, we do not reach the defendant’s second and third claims.

       The provisions of § 23-58 stand alone in their requirement for a hearing on objections to a fact finder’s report. Practice Book § 11-18 (a) lists five other categories of motions in which argument may be had as of right but does not mention objections under § 23-58. A party seeking to enforce such a § 11-18 right nonetheless must claim it for oral argument or the matter will be decided on the papers. Some modification of the existing rule of § 11-18 would be salutary because the existing scheme may not sufficiently alert the busy trial judge to § 23-58’s stand-alone mandatory hearing requirement.

       Our rules of practice treat trial court review of the reports of attorney trial referees differently from review of fact finder’s reports. See W. Horton & K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2008) § 23-57, authors’ comments, p. 984.