text:
    Myrtle C. Mignosa v. Dominick Mignosa
    (9814)
    Spallone, Norcott and Lavery, Js.

      Argued April 26
    decision released July 9, 1991

      Timothy Sheehan, for the appellant (plaintiff).

      Harold J. Geragosian, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the judgment dissolving the parties’ marriage. She claims that the trial court improperly granted the defendant’s petition for dissolution under General Statutes § 46b-65 (b) because the issue of whether the parties had resumed marital relations was in dispute, thereby requiring the dissolution action to proceed under the general dissolution provisions of General Statutes § 46b-40. We affirm the judgment of the trial court in part, and reverse it in part.

The following facts are relevant to this appeal. The parties were married in New Britain on March 28, 1952. On April 1, 1987, the plaintiff commenced an action for the dissolution of the marriage. The plaintiff later amended her prayer for relief and sought a legal separation instead of a dissolution of marriage. By judgment dated October 21, 1988, the court, Hon. Max H. Reicher, state trial referee, granted the legal separation and issued certain orders. On June 11,1990, pursuant to General Statutes § 46b-65 (b), the defendant filed a petition for a decree dissolving the marriage after legal separation. He stated in his petition that “the parties have not resumed marital relations since the entry of the decree, and no written declaration of the resumption of marital relations has been filed pursuant to General Statutes § 46b-65.” The plaintiff did not file any pleading responding to the defendant’s petition either affirming or denying the allegations in the petition. No declaration of resumption of marital relations had been filed.

On October 29, 1990, the trial court, Hon. Julius J. Kremski, state trial referee, held a hearing on the petition. At the hearing, the plaintiff raised the issue of resumption of marital relations for the first time. She denied that marital relations had not been resumed claiming that she and the defendant had engaged in sexual intercourse since the granting of the legal separation. The trial court heard testimony from both sides on the issue and expressly found that (1) “on October 21, 1988, this court, Hon. Max H. Reicher, state trial referee, entered a decree of legal separation as of record does appear; (2) neither party filed a written declaration of resumption of marital relations as provided by § 46b-65 (a) of the Connecticut General Statutes; (3) at various times after said legal separation the parties had social contact but none of these contacts ever reached a level of resumption of marital relations within the purview of General Statutes § 46b-65.” The court then incorporated all of the orders that had previously been entered in the decree of legal separation into the decree of dissolution. This appeal follows.

The plaintiff claims that, merely because she disputed the fact that marital relations had not been resumed at the hearing, the trial court could not proceed summarily under General Statutes § 46b-65 (b) and Practice Book §§ 472 and 473, but was mandated to order that the parties proceed under the general provisions of § 46b-40. General Statutes § 46b-65 (b) establishes an expeditious method by which the parties can convert a legal separation into a dissolution. Practice Book § 472 requires a party seeking to convert the legal separation into a dissolution to state, inter alia, whether the parties had resumed marital relations. If the parties have, in fact, resumed marital relations, they cannot proceed under the summary procedures provided in § 46b-65 (b), but must instead proceed under the general dissolution provision, § 46b-40. Mitchell v. Mitchell, 194 Conn. 312, 326, 481 A.2d 31 (1984).

The plaintiff relies on Mitchell for the proposition that where a party asserts at any time that marital relations have resumed, § 46b-65 (b) is not applicable. Although the court’s opinion in Mitchell contains dicta in support of this position, that is not the holding of that case. In Mitchell, the parties entered into a written separation agreement that was filed with the court. After living separately for over a year, the parties began living together again “as husband and wife.” The husband thereafter directed his attorney to take the necessary steps to dissolve the earlier separation decree. The attorney supplied the parties with a written agreement stating that the parties had resumed living together as husband and wife. The wife signed this agreement, but the husband never did and it was never filed in court.

Both parties thereafter commenced actions for dissolution of the marriage, the wife seeking to dissolve the marriage pursuant to General Statutes § 46b-40 and the husband seeking to convert the legal separation into a dissolution of marriage pursuant to General Statutes § 46b-65 (b). The husband, however, did not state in his petition whether the parties had resumed marital relations as required by Practice Book § 472. The wife filed an answer asserting, inter alia, that the husband had failed to comply with Practice Book § 472.

Our Supreme Court phrased the issue to be decided as “whether a party seeking to convert a legal separation into a dissolution under General Statutes § 46b-65 (b) must comply with Practice Book § 472 which requires the petitioner to state in the petition ‘whether the parties have resumed marital relations.’ ” Mitchell v. Mitchell, supra, 313-14. The Supreme Court held that “the trial court erred in finding that General Statutes § 46b-65 (b) mandated a dissolution even though [the petitioner] did not comply with Practice Book §472 . . . .” Id., 318. The majority interpreted § 472 as requiring a statement in the petition that there was no resumption of marital relations as a condition precedent to converting a separation decree into a dissolution. The court further stated that “because the parties in this case had resumed marital relations, [the petitioner] could not make the required statement in his petition and thus could not seek a dissolution under § 46b-65 (b).” Id., 326.

In this case, the defendant complied in full with the requirements of § 472. The plaintiff never filed a responsive pleading and did not deny the petitioner’s allegation until after the matter was set down for a hearing pursuant to § 473. Upon the plaintiff’s assertion that marital relations had resumed, the trial court held a full evidentiary hearing and determined as a matter of fact that the parties had not resumed marital relations and granted the petition.

In Mitchell, it was undisputed that the parties had resumed living together as husband and wife. In this case, the trial court found that the parties had not, in fact, resumed marital relations. In addition, this fact remained undisputed by the plaintiff throughout the pleading process. There was no declaration of resumption of marital relations signed by the parties, witnessed and acknowledged and filed with the Superior Court. No such declaration was entered on the docket, the decree was not vacated, and the complaint was not dismissed. See General Statutes § 46b-65. Upon ascertaining, after an evidentiary hearing, that the parties had not in fact resumed marital relations, the trial court properly granted the petition.

We agree, however, with Justice Shea’s concurring opinion in Mitchell where he writes: “The effect of the separation agreement [orders] ... is governed by General Statutes § 46b-66, which requires that the court ‘inquire into the financial resources and actual needs of the spouses . . . .’The fact that the agreement was presumably found ‘fair and equitable’ at the time of the legal separation does not excuse the failure of the court to make such a determination in the light of the situation of the parties at the time of dissolution and to afford an opportunity for a hearing on the issues involved.” Id., 330; see Practice Book § 471.

Neither the trial court’s memorandum of decision nor the judgment file contains any finding that the orders entered at the time of the legal separation were “fair and equitable” in light of the circumstances existing at the time of the dissolution. Therefore, although we hold that the trial court properly granted the defendant’s petition converting the parties’ legal separation into a dissolution of marriage, the trial court’s incorporation of the prior orders entered in the decree of legal separation into the decree of dissolution of marriage without a finding that the orders were “fair and equitable” at the time of the dissolution was improper.

The judgment is affirmed as to the dissolution of the marriage. The judgment is reversed as to the distribution of assets and the financial orders, and the case is remanded for a full hearing on the issues related to the financial terms of the dissolution decree.

In this opinion the other judges concurred.

       General Statutes § 46b-65 provides: “filing of declaration of RESUMPTION OF MARITAL RELATIONS; DISSOLUTION OF MARRIAGE AFTER LEGAL SEPARATION DECREE WHEN NO DECLARATION FILED, (a) If the parties to a decree of legal separation at any time resume marital relations and file their written declaration of resumption, signed, acknowledged and witnessed, with the clerk of the superior court for the judicial district in which the separation was decreed, the declaration shall be entered upon the docket, under the entries relating to the complaint, and the decree shall be vacated and the complaint shall be deemed dismissed.
      “(b) If no declaration has been filed under subsection (a) of this section, then at any time after the entry of a decree of legal separation, either party may petition the superior court for the judicial district in which the decree was entered for a decree dissolving the marriage and the court shall enter the decree in the presence of the party seeking the dissolution.”

       Practice Book § 472 provides: “petition fob decree finally dissolving MARRIAGE
      “Every petition for a decree finally dissolving and terminating the marriage, after a decree of legal separation, shall state the number of the case in which the separation was granted, the date of the decree of legal separation and whether the parties have resumed marital relations since the entry of the decree, and it shall be accompanied by an application for an order of notice to the adverse party.”

       Practice Book § 473 provides: “Upon presentation of such petition to the court it shall fix a time for hearing the same and make an order of notice, by personal service if the adverse party is within the state and his place of residence is known, otherwise in such manner as it shall deem reasonable.”

       Practice Book § 471 provides: “Upon a petition for legal separation the procedure shall be the same as in actions for dissolution of marriage.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Laura D. Klingeman, Administratrix (Estate of Todd Klingeman) v. William MacKay et al.
    (9053)
    Spallone, Noecott and Laveby, Js.
    Argued May 3
    decision released July 9, 1991

      Thomas J. Weihing, with whom were Joseph E. Sakai and, on the brief, John T. Bochanis, for the appellant (plaintiff).

      Thomas G. Parisot, with whom, on the brief, was Richard R. Talbot, for the appellees (named defendant et al.).

      Paul E. Pollock, for the appellee (defendant J. William Burns).
   Norcott, J.

The plaintiff in this wrongful death action appeals from the judgment in favor of the defendants after a jury trial. On appeal, she principally challenges the trial court’s (1) failure to determine that prejudicial juror misconduct had occurred during the jury deliberations, (2) refusal to allow into evidence a motor vehicle summons issued to one of the defendants, (3) charge to the jury on “sole proximate cause” as it related to the defendant J. William Burns, commissioner of the state department of transportation, and (4) refusal to set aside the verdict. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 12,1984, Todd Klingeman was driving on Route 64 in Middlebury when his car slid on an icy patch in the road. After the car came to rest, it was struck by a logging truck operated by the defendant Clarence Marcotte and owned by the defendant William MacKay. At the time of the accident, the logging truck was 19,520 pounds overweight. Todd Klingeman died from injuries he sustained in the accident.

The plaintiff, the decedent’s mother and administratrix of his estate, commenced a wrongful death action against the defendants, MacKay, Marcotte and Burns. After a trial, the jury returned a verdict in favor of the defendants. The plaintiff moved to set aside the verdict and for a new trial. From the trial court’s denial of these motions, this appeal ensued.

I

The plaintiff’s first claim is based on alleged juror misconduct. The following additional facts are relevant to our discussion of this issue. The jury returned its verdict on May 8,1989. That same day, the courtroom clerk, while retrieving the exhibits from the jury room, discovered a page copied from a dictionary. The page contained a definition of “proximate cause” and was not a piece of evidence in the case. In addition, a note to the court from certain members of the jury during deliberations suggested that one juror had reduced his thoughts to writing and had introduced this writing into the jury deliberation room.

On May 10, 1989, the plaintiff filed a motion for an evidentiary hearing regarding the alleged juror misconduct. She also filed motions to set aside the verdict, for a new trial and in arrest of judgment. At a hearing held on December 19,1989, the court heard testimony from five of the six jurors. The remaining juror was out of state. Although certain jurors could not recall reading the dictionary page, the jurors all testified that they had agreed to follow the trial court’s definition of proximate cause. The jurors who had not been involved in the specific acts of misconduct testified that the author of the writing had shared his transcribed thoughts with the other jurors and that they had voiced concern over that action to the offending juror. The court denied the plaintiff’s motions on March 8,1990.

We begin by noting that there is no claim in this case that the juror misconduct was occasioned by the prevailing party. “[AJbsent misconduct brought about by the prevailing party, the burden is on the complainant to show prejudice.” Williams v. Salamone, 192 Conn. 116, 121, 470 A.2d 694 (1984); Hamill v. Neikind, 171 Conn. 357, 360 n.5, 370 A.2d 959 (1976). The test adhered to by our Supreme Court is “ ‘whether the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror.’ ” Williams v. Salamone, supra, 122. We find that, here, the plaintiff has not met this burden.

It is now axiomatic that not every instance of misconduct requires a new trial. Hamill v. Neikind, supra, 360. While we in no way condone the practices undertaken by one juror in this case, we do not accept the plaintiff’s claim that these events prejudiced the fairness of the trial.

In State v. Asherman, 193 Conn. 695, 737, 478 A.2d 227 (1984), our Supreme Court addressed a similar claim of juror misconduct involving the use of a dictionary during deliberations. There, the court found that the defendant was not prejudiced by the jury’s use of a dictionary definition of the word “inference” because the trial court had given a lengthy and complete charge to the jury on that word which it had repeated at the jury’s request. Id. Similarly, the trial court in this case gave a complete and adequate jury instruction concerning proximate cause, which it repeated when requested to do so by the jury. Jurors are presumed, in the absence of evidence to the contrary, to follow the court’s instructions. State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987); State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985). Thus, in this case, as in Asherman, the jury’s use of the dictionary definition of proximate cause did not prejudice the plaintiff.

The plaintiff’s argument that she was prejudiced by the submission to the jury of a writing that reflected one juror’s thoughts must also fail. When a juror relies on extrinsic evidence in reaching a decision, such deviation is measured by the likelihood that the impropriety influenced the jury’s verdict. State v. Asherman, supra, 739. In a civil proceeding, such misconduct does not by itself infringe on the constitutional right to a fair trial; Williams v. Salamone, supra, 120; but is instead tested by the “probable prejudice” standard. Speed v. DeLibero, 215 Conn. 308, 316, 575 A.2d 1021 (1990).

In Speed, the Supreme Court noted that “[a] reviewing court cannot, on appeal, speculate on what jurors may have discussed and then speculate that the discussion probably prejudiced the plaintiff.” Id., 315. Applying Speed to the present case, we cannot say that the plaintiff has sustained her burden of showing probable prejudice so as to warrant a new trial. To determine the impact of the juror’s transcribed thoughts, this court would be forced to engage in the type of speculation that Speed precludes.

On the basis of the evidentiary hearing, the trial court was satisfied that nothing that had transpired affected the fairness of the trial. It is for the trial court to assess the credibility of the jurors and the weight to be accorded their testimony in resolving matters of potential jury misconduct. McNamee v. Woodbury Congregation of Jehovah’s Witnesses, 194 Conn. 645, 648, 484 A.2d 940 (1984). Where the trial court had the opportunity to observe jurors and to examine them at a post-trial hearing, “[i]t is not for us to question that court’s findings absent a showing of clear error.” Id. Here, there has been no such showing.

II

The plaintiff next claims that the trial court improperly refused to admit into evidence a motor vehicle summons issued to William MacKay, the owner of the logging truck, for violation of General Statutes § 14-267a, the overweight motor vehicle statute. At trial, the plaintiff twice attempted to introduce the summons and its disposition into evidence. The plaintiffs first attempt came in an offer made outside of the presence of the jury immediately before the direct examination of Clarence Marcotte, the driver of the logging truck. The summons, which was marked as an exhibit for identification only, was issued by the Middlebury Police Department to William MacKay on January 12, 1984, at 10:17 a.m. and alleged a violation of § 14-267a. The summons, which was certified by an assistant clerk of records as a true copy of record, further indicated that the driver of the truck was Clarence Marcotte and that the truck was 19,520 pounds overweight. The disposition of the summons was indicated by the letter “G.” The trial court took judicial notice of the fact that the “G” on the summons represented a finding of guilty, but excluded the exhibit because it found that the plaintiff had laid no foundation to connect the defendant MacKay with the William MacKay referenced on the traffic summons.

The plaintiff later offered the exhibit as a certified public document pursuant to General Statutes § 52-165. The trial court again found a lack of foundation connecting the defendants MacKay and Marcotte to the summons. We find that the trial court should have allowed the exhibit into evidence as a public document under General Statutes § 52-165. Our review of the record reveals that, at the time of the second offer, there was a foundation laid from which the jury could have reasonably believed that the defendants MacKay and Marcotte were the very same individuals reflected on the traffic summons. As such, the trial court should have let the jury work their will with the public document.

Our analysis of this claim does not end here, however, because we must determine whether the trial court’s ruling was harmful so as to require reversal. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985). The burden of proving that an incorrect evidentiary ruling was harmful rests on the party asserting the error. Id.; Saphir v. Neustadt, 177 Conn. 191, 201, 413 A.2d 843 (1979). The relevant inquiry is whether the court’s action would likely affect the final result. Spiniello Construction Co. v. Manchester, 189 Conn. 539, 545, 456 A.2d 1199 (1983); Saphir v. Neustadt, supra, 201-202. In this case, we find that the plaintiff has not sustained this burden because the summons was merely cumulative to the issue of whether MacKay and Marcotte owned and operated an overweight vehicle. In the defendants’ answers to the plaintiff’s request for disclosure and production, MacKay admitted that he had received a summons for owning a vehicle that was overweight at the time of the accident. He also admitted that he had pleaded guilty, had been convicted and had paid the fíne indicated on the summons. Furthermore, the defendants’ counsel admitted during his opening remarks to the jury that (1) at the time of the collision with the decedent’s car, “Mr. Marcotte was driving the truck owned by Mr. MacKay,” and (2) “the truck on that day was 19,520 pounds over the registered gross vehicle weight for that truck.” Any evidentiary impropriety committed by the trial court was thus rendered harmless by these admissions.

III

The plaintiffs third claim requires little discussion. The plaintiff argues that the trial court improperly charged the jury concerning “sole proximate cause” as that term relates to the defendant J. William Bums, commissioner of the department of transportation. It has been recently settled by our Supreme Court that, with respect to the standard of causation in a highway defect case, General Statutes § 13a-144 requires a plaintiff to prove that the highway defect alleged to have caused the death or injury was the sole proximate cause of such death or injury. White v. Burns, 213 Conn. 307, 318-34, 567 A.2d 1195 (1990). The plaintiff accepts this statement of the law but asserts that the specific facts of the present case, including the state’s knowledge of the hazardous icy road condition and its failure to act thereon in a reasonable manner, warrant our adoption of a lower standard than sole proximate cause. We decline to accept the plaintiff’s argument.

IV

The plaintiff finally claims that the trial court wrongfully denied her motion to set aside the verdict which, she argues, was against the law and evidence. The essence of the plaintiff’s argument is that the court failed to agree with her that the jury (1) engaged in harmful misconduct, and (2) misapplied the law. Because we have already discussed and resolved the first part of this argument, we now discuss only the alleged misapplication of the law by the jury.

The following additional facts are necessary to our discussion of this issue. When the clerk read the verdict forms submitted by the jury, the court realized that the forms were inconsistent as to the defendant Burns. The jury handed in two forms regarding Bums. On one, the jurors found “the issues for the defendant, J. William Burns, Commissioner of Transportation”; on another they found “the issues for the plaintiff, Laura Klingeman, against the defendant J. William Burns, Commissioner of Transportation, in the amount of no dollars.” After discussing the apparent inconsistency with both counsel, the court recharged the jury on the verdict forms, reasoning that “[t]he court should explain to the jury that if they found the issues on liability and proximate cause in favor of Commissioner Burns that should be reflected in one verdict. The other verdict form which finds the issues for the plaintiff against the defendant and awards zero damages is not proper if they found on a question of liability and proximate cause in favor of Commissioner Burns.” In response to the court’s recharge, which precisely followed the above reasoning, the jury immediately returned one form finding the issues in Burns’ favor.

“The decision to set aside a verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. O’Brien v. Seyer, [183 Conn. 199, 208, 439 A.2d 292 (1981)].” Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988). The trial court is guided by two settled principles: (1) a verdict should not be set aside when it is apparent that some evidence exists upon which the jury might have reasonably reached its conclusion; and (2) a verdict should be set aside when it evinces such manifest injustice as clearly to denote that the verdict was the product of such improper influences as mistake in the application of legal principles, prejudice, corruption or partiality. Id.

Our review of the record does not lead us to conclude that the trial court’s handling of the jury’s initial confusion was an abuse of discretion. Both the trial court’s procedural efforts to straighten out an apparent inconsistency and its supplemental instructions were proper and laudable. The fact that the jury returned within minutes with consistent verdict forms cannot be overlooked. We find no abuse of discretion that would warrant a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the trial court improperly allowed one juror to testify at the evidentiary hearing as to her thought process in arriving at her verdict. Aillon v. State, 168 Conn. 541, 553, 363 A.2d 49 (1975). Any error was cured, however, when the trial court, in its memorandum of decision, struck the challenged testimony and accordingly refused to consider it.

       Route 64 is a highway owned by the state of Connecticut. The count against Bums was brought pursuant to General Statutes § 13a-144.

       The plaintiff apparently interprets the trial court’s finding on this issue as a determination that the jury did not engage in any misconduct. The record clearly does not support this conclusion.

       General Statutes § 52-165 provides: “The entries or records of all corporations and all public offices, where entries or records are made of their acts, votes and proceedings, by some officer appointed for that purpose, may be proved by a copy certified under the hand of such officer, and the seal of such corporation or office, if any; and, if any such officer knowingly makes a false certificate, he shall be subject to the penalties provided for false statement.”

       The plaintiff has not claimed that the jury displayed any prejudice, partiality or corruption.


author: Daly, J.

text:
    Yankee Gas Services Company v. Joseph DaSilva, Jr., et al. Connecticut Light and Power Company v. Joseph DaSilva, Jr., et al. Yankee Gas Services Company v. Joseph DaSilva, Jr.
    (9783)
    (9784)
    (9785)
    Daly, Landau and Heiman, Js.

      Argued May 29
    decision released July 9, 1991

      Steven M. Olivo, for the appellants (respondents).

      Patrick J. O’Connell, with whom, on the brief, was Thomas J. Sansone, for the appellees (petitioners).
   Daly, J.

The respondents’ appeal from the trial court’s judgments appointing a receiver to collect rents and payments from the occupants of the respondents’ numerous properties for utility bills owed to the plaintiffs, pursuant to General Statutes § 16-2621 The respondents are owners, agents, lessors or managers of the properties in question. These companion cases involve some common respondents, arise from the same controversy, were heard together and decided by the same trial court, raise the same issues and, therefore, are consolidated for purposes of this appeal. The respondents claim that the trial court improperly rendered judgments appointing receivers because General Statutes § 16-262e (a) first requires evidence showing it was impracticable for occupants to receive utility service in their own names. The respondents also claim that under General Statutes § 16-262Í the trial court cannot impose on them the duty to disclose and to cooperate with the receiver. Finally, the respondents claim that the trial court improperly imposed a lump sum arrearage judgment for multiple accounts on groups of buildings without sufficient specificity. We disagree with the respondents’ first two claims and agree with their final claim.

The respondents’ first claim misapplies a requirement of General Statutes § 16-262e (a) to General Statutes § 16-2621 Section 16-262e (a) prohibits a utility from terminating service to a residential property for nonpayment of a delinquent account when the account is billed to an owner, agent, manager or lessor of the property, rather than to the occupants or tenants of the dwelling. This statute prohibits termination unless the utility meets certain conditions; among them, the utility must show that it is impracticable for the occupants of the property to receive service in their own names. The statute clearly states, however, that if the above conditions cannot be met, a utility “may pursue the remedy provided in Section 16-2621” General Statutes § 16-262e (a) (2). Thus, General Statutes § 16-262e is but one remedy of those provided in §§ 16-262c through 16-262Í which a utility may elect to employ. See Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 518-20, 468 A.2d 574 (1983).

Section 16-262f provides the utility with the option of applying for a receiver of rents or payments to settle arrears on a delinquent account. This section does not require any showing that it is impracticable to provide service to the occupants in their own names. The section provides a summary procedure whereby utilities may seek expedited judgments to collect sums legitimately owed by customers. See id.; Hartford Electric Light Co. v. Tucker, 35 Conn. Sup. 609, 613-15, 401 A.2d 454 (App. Sess. 1978). We conclude that the conditions of General Statutes § 16-262e are not applicable to § 16-262f and, therefore, that the respondents’ first claim is without merit.

The respondents’ second claim is equally without merit. A statute should be construed in an efficacious and constitutional manner to achieve its purposes. Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). General Statutes § 16-262Í imposes various duties on the court-appointed receiver that could not be performed without the cooperation and disclosure of certain information by the owner, agent, manager, or lessor of the premises under receivership. Section 16-262Í (d) imposes the threat of contempt on an owner, agent, lessor or manager who attempts to interfere with the receiver by attempting to collect rent. This duty of noninterference with the receiver implies a corresponding duty to cooperate and disclose information to the receiver to enable him to perform his statutory duties. We conclude that General Statutes § 16-262Í imposes a duty on any owner, agent, lessor or manager whose property is under court-ordered receivership reasonably to cooperate and disclose information to the receiver. This construction enables an effective receivership.

Finally, the respondents claim that the lump sum judgment rendered in each case against a conglomeration of properties would result in injustice, and we agree. General Statutes § 16-262Í permits a receivership only for a “dwelling for which the owner, agent, lessor or manager is in default” on his utility bills. Section 16-262Í (b) farther provides that “any receivership established . . . should be terminated by the court upon its finding that the arrearage which was the subject of the original petition has been satisfied . . . .” As the judgments presently stand, one property, the arrearage for which is less than another’s, could be forced to remain in receivership and pay an amount sufficient to satisfy the total judgment. It would be a bizarre result to construe the statute to allow one property owner to pay for another’s debt merely because both properties happen to be mismanaged by a common agent. We conclude, therefore, that the trial court should reform its judgment to reflect the arrearage and statutory expenses allocated for each property. With each property’s amount correctly calculated, the trial court should then order that each property should in turn be released from receivership as its arrearage and statutory fees are satisfied.

The judgments are affirmed as to the appointment of a receiver and reversed as to the finding of a lump sum arrearage, and the matter is remanded to the trial court for a hearing to determine the proper arrearage and statutory amounts owed by each property in each case and to order that each property be released from receivership when such judgment has been satisfied.

In this opinion the other judges concurred.

       In Appellate Court case 9783 the named respondent is joined by DaSilva & Sons; in Appellate Court case 9784 the named respondent is joined by DaSilva & Sons, DaSilva and Sons, Inc., and Mrs. E. DaSilva, a/k/a Maria DaSilva.

       General Statutes § 16-262Í (a) provides in pertinent part: “Upon default of the owner, agent, lessor or manager of a residential dwelling who is billed directly by an electric, gas, telephone or water company or by a municipal utility for utility service furnished to such building, such company or municipal utility may petition the superior court or a judge thereof, for appointment of a receiver of the rents or payments for use and occupancy for any dwelling for which the owner, agent, lessor or manager is in default. The court or judge shall forthwith issue an order to show cause why a receiver should not be appointed, which shall be served upon the owner, agent, lessor or manager or his agent in a manner most reasonably calculated to give notice to such owner, agent, lessor or manager as determined by such court or judge, including, but not limited to, posting of such order on the premises in question. A hearing shall be had on such order no later than seventy-two hours after its issuance or the first court day thereafter. The sole purpose of such a hearing shall be to determine whether there is a sum due and owing between the owner, agent, lessor, or manager and the company or municipal utility." (Emphasis added.)


text:
    Donna Simms v. Robert Simms
    (9024)
    Dupont, G. J., Spallone and Norcott, Js.
    Argued January 8
    decision released July 9, 1991

      Daniel W. Moger, Jr., for the appellant (plaintiff).

      Michael A. Meyers, with whom was Patricia C. Reath, for the appellee (defendant).
   Norcott, J.

The plaintiff in this action appeals from the trial court’s denial of her motion for modification of alimony. She claims that the court improperly determined that the defendant’s receipt of certain moneys in exchange for United States treasury bonds was not income and therefore did not warrant modification of her alimony award. We affirm the trial court’s judgment.

The following facts are necessary to our resolution of this appeal. The marriage of the parties was dissolved on September 24, 1979. The judgment of dissolution incorporated the terms and provisions of a settlement agreement entered into by the parties on August 24, 1979. That agreement provides, inter alia, for unallocated alimony and child support to be paid to the plaintiff, with alimony payments to increase automatically beginning in August, 1982, by the lesser of 33V3 percent of the defendant’s net income over $52,000 or 5 percent of the alimony payments to which the plaintiff was entitled for the previous calendar year. For purposes of this calculation, the agreement defines “net income” as “the gross income of the Husband from all sources, excluding capital gains, capital losses or S corporation losses, including that income to which he shall be entitled as a partner, sole proprietor or employee, less the federal, state and local income taxes for which the Husband is obligated on the same, less the amount contributed to the capital account of the Husband and which he shall not be entitled to physically receive.” The agreement also stipulates that the unallocated alimony and child support payments were nonmodifiable by the plaintiff until August, 1982.

At the time of the dissolution, the defendant had just become a partner at Bear, Sterns and Company, a brokerage firm in New York. On his September 18, 1979 financial affidavit, the defendant disclosed a gross balance of $102,400 in his capital account with Bear, Sterns and Company. That amount represented the defendant’s capital contribution to the partnership. When the defendant left Bear, Sterns and Company in April, 1984, his capital account had risen to between $3 and $4 million. He received slightly over $1 million in cash and the remaining $2 million was distributed to him in the form of United States treasury bonds. Although the defendant received the bonds in 1984, he was permitted under an arrangement with the Internal Revenue Service to defer the tax consequences of the 1984 distribution until he redeemed the bonds for cash. The defendant redeemed $647,000 of the bonds for cash in 1989; at the time of the hearing on the plaintiffs motion for modification of alimony, he anticipated receiving $670,000 in 1990 and $683,000 in 1991 when he redeemed the remainder of the bonds.

In 1982, the plaintiff and the defendant entered into the first in a series of yearly agreements increasing the alimony payments to $48,000 a year, double the amount that the defendant was required to pay under the separation agreement. These yearly increases, which were not the subject of any court ordered modification, continued until the spring of 1989, when the defendant unilaterally chose to revert to the schedule of payments provided in the separation agreement.

The plaintiff moved to modify the alimony award on April 17, 1989. She claimed that the moneys received by the defendant from the treasury bonds were income and represented an uncontemplated substantial change in circumstances warranting a modification of alimony under General Statutes § 46b-86 (a). The defendant argued that the exchange of bonds for cash was merely an exchange of assets, and that any increase in the value of his capital account was received in 1984, when he withdrew his share of the capital assets of Bear, Sterns and Company, which he had acquired by virtue of his partnership interest in the company. On March 20, 1990, the trial court denied the plaintiffs motion, finding that she had failed to sustain her burden of proof. In an articulation dated April 24, 1990, the court further found that the plaintiff had failed to show an uncontemplated substantial change in circumstances because “by redeeming that amount of government bonds, the defendant was merely exchanging assets, money for the bonds, and his total value of his assets remained unchanged.”

On appeal, the plaintiff argues that the trial court improperly determined that the defendant’s redemption of the treasury bonds was not income but instead constituted an exchange of assets. We disagree.

Under General Statutes § 46b-86 (a) as it existed at the time of the dissolution of the parties’ marriage, the plaintiff, to obtain a court ordered modification of alimony, must show a substantial change in circumstances that “must not have been contemplated by the parties” at the time the decree was entered. Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976); see also Darak v. Darak, 210 Conn. 462, 463, 556 A.2d 145 (1989). Although a dramatic increase in the income of one of the parties may constitute a substantial change in circumstances, an increase in the value of assets ordinarily will not. See Hardisty v. Hardisty, 183 Conn. 253, 256-57, 439 A.2d 307 (1981). Only in cases of fraud can a modification be based on an increase in the value of assets. See, e.g., Theonnes v. Theonnes, 181 Conn. 111, 114, 434 A.2d 343 (1980); Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974).

The defendant in this case declared his capital account as an asset on his 1979 financial affidavit. Therefore, if the capital account is an asset, the defendant’s redemption of the treasury bonds, which he received as a distribution of his capital account, could not be a substantial change in circumstances and could not support a modification of alimony.

It is clear in this case that the defendant’s capital account was an asset. It represented not his partnership income but his interest in the company. As such, the defendant’s redemption of the treasury bonds, which he received when he withdrew his share of the capital assets of Bear, Sterns and Company, was, as the defendant contends, merely an exchange of assets.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the trial court improperly allowed the defendant to discontinue the yearly agreements increasing alimony payments without first finding a substantial change in circumstances. This claim is without merit, however, because the agreements, although written, were never incorporated into the court’s judgment. “Decrees in a dissolution action cannot be modified by acts of the parties without further decree or order of the court.” Albrecht v. Albrecht, 19 Conn. App. 146, 151, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989).


author: Heiman, J.

text:
    State of Connecticut v. Antone Angelo
    (9813)
    Foti, Landau and Heiman, Js.
    Argued April 22
    decision released July 9, 1991

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and R. Patrick McGinley, assistant state’s attorney, for the appellant (state).

      Mark D. Malley, with whom were Wesley W. Horton and, on the brief, Richard D. Gilland, for the appellee (defendant).
   Heiman, J.

The state appeals from the judgment dismissing the criminal charges against the defendant after a successful completion of a period of accelerated rehabilitation. The state claims that the trial court abused its discretion in granting accelerated rehabilitation to this defendant (1) because he was charged with more than one crime and (2) because the offenses were serious in nature. The defendant asserts that because the state failed to appeal at the time of the granting of the application for accelerated rehabilitation we lack subject matter jurisdiction. We disagree with the defendant’s claim of lack of subject matter jurisdiction and agree with the state’s position that the defendant was charged with more than “a crime.” Accordingly, we reverse the judgment of the trial court.

The facts necessary to a resolution of this appeal may be briefly summarized as follows. The defendant was charged with crimes against three different minor victims in a single information supplemented by a bill of particulars containing six counts. In the first count, he was charged with a violation of General Statutes § 53-21, risk of injury to a child, and in the second count with a violation of General Statutes § 53a-71 (a) (l), sexual assault in the second degree. Both counts one and two relate to allegations involving the defendant’s alleged actions against the first juvenile victim. Counts three and four charge the defendant with the same crimes as counts one and two, but relate to his claimed involvement with a second juvenile victim. Counts five and six charge the defendant with risk of injury to a child and sexual assault in the second degree, in violation of General Statutes § 53a-71 (a) (4), against a third juvenile victim. Thus, although the defendant is charged with three counts of risk of injury to a child and three counts of sexual assault in the second degree, each pair of charges relates to a different victim.

On July 19,1988, an application for accelerated rehabilitation made pursuant to General Statutes § 54-56e was denied by the trial court. A new application for accelerated rehabilitation was filed and was granted by the trial court on November 22, 1988. On November 20, 1990, the trial court was advised that the defendant had satisfactorily completed his period of probation and the trial court accordingly dismissed the case. This appeal then followed with the permission of the trial court.

I

As a preliminary matter, the defendant asserts that this court lacks subject matter jurisdiction. He posits that the decision of the trial court granting the defendant’s application for accelerated rehabilitation was a final judgment from which an appeal should have been taken, and, as a consequence, the state’s appeal is untimely. We disagree.

Interlocutory orders and rulings of the Superior Court may be final judgments for purposes of appeal in two circumstances: “(1) [W]here the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

“The second test for finality, where the order on appeal so concludes the rights of the parties that further proceedings cannot affect them, focuses not on the proceeding involved, but on the potential harm to the appellant’s rights. A presentence order will be deemed final for purposes of appeal 'only if it involves a claimed right “the legal and practical value of which would be destroyed if it were not vindicated before trial.” ’ ” Id., 33-34. The granting of a motion for accelerated rehabilitation satisfies neither prong of Curdo.

Clearly, an application for accelerated rehabilitation is not a separate and distinct proceeding. See State v. Spendolini, 189 Conn. 92, 95, 454 A.2d 720 (1983). General Statutes § 54-56e has been described as having as its main thrust suspension of prosecution, and such motions, like motions to stay proceedings, are interlocutory in character and are not appealable whether granted or denied. State v. Spendolini, supra, 96 (holding that the denial of an application for accelerated rehabilitation is not a final judgment for purposes of appeal); see also State v. Parker, 194 Conn. 650, 485 A.2d 139 (1984); compare General Statutes § 54-56e (permitting an appeal from an order denying the defendant’s motion to dismiss after completion of the program).

We conclude that the right of the state to appeal did not ripen until the dismissal of the charges and that we do have subject matter jurisdiction. See State v. Southard, 191 Conn. 506, 512, 467 A.2d 920 (1983).

II

The state asserts that the trial court improperly granted the defendant’s motion for accelerated rehabilitation because (1) the defendant was charged with the commission of a number of crimes alleged to have been committed against three separate victims, and (2) the crimes charged were of a serious nature. We agree with the state that the trial court improperly concluded that these charges constituted “a crime” within the meaning of General Statutes § 54-56e, and thus acted improvidently in granting the defendant’s application for accelerated rehabilitation.

The granting or denial of an application for accelerated rehabilitation implicates the exercise of discretion by the trial court. State v. Satti, 2 Conn. App. 219, 224, 477 A.2d 144 (1984). The exercise of legal discretion imparts something more than the granting to the trial court of the right to have leeway in decision making. State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). Rather, the exercise of legal discretion requires that it be exercised “ ‘ “ ‘in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” ’ ” State v. Corchado, 200 Conn. 453, 464, 512 A.2d 183 (1986).

Our review of the trial court’s exercise of its discretion is limited to the questions of whether the court correctly applied the law and whether it could reasonably conclude as it did. See Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). It is only where an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 192, 510 A.2d 972 (1986); State v. Devanney, 12 Conn. App. 288, 292, 530 A.2d 650 (1987). Every reasonable presumption will be given in favor of the trial court’s ruling. State v. Rodriguez, 10 Conn. App. 176, 179, 522 A.2d 299 (1987).

The trial court abused its discretion in granting the defendant’s application for accelerated rehabilitation. Obviously, the term “abuse of discretion” does not imply a bad motive or wrong purpose but simply means that the ruling made by the trial court appears to us to have been made on untenable legal grounds. State v. Schroff, 198 Conn. 405, 413, 503 A.2d 167 (1986).

As we have previously noted, General Statutes § 54-56e provides for a pretrial program for accelerated rehabilitation “of persons accused of a crime.” The phrase, “a crime,” “means a single criminal act or transaction, out of which one or more criminal charges might arise.” State v. Tyler, 6 Conn. App. 505, 510, 506 A.2d 562 (1986). In the context of the accelerated rehabilitation statute, the question of whether multiple charges describe “a crime” must begin with an analysis of the facts and circumstances underlying the charges against the defendant. Id. The criteria to determine whether multiple charges constitute “a crime” is whether the charges arose out of the same act or transaction. Id.

Here, the defendant was charged in the information as supplemented by the bill of particulars with three counts of sexual assault in the second degree, each such count involving a different victim. In two of the sexual assault counts, the state claims that the defendant engaged in sexual intercourse with each victim while each of the victims was under the age of fifteen years. In the third sexual assault count, the state claims that the defendant engaged in sexual intercourse with a person who was less than eighteen years of age and that the defendant, at the time of the offense, was such child’s guardian or was otherwise responsible for the general supervision of said child’s welfare. In addition, each of the three counts charging risk of injury alleges a different victim.

The charges involve three separate victims of separate crimes without any temporal continuity or clear connection among them other than each separate sexual assault or risk of injury alleged involved claims of sexual misconduct with the -victims. Multiple acts of sexual assault, even against the same victim, constitute separate crimes for each such act. State v. Frazier, 185 Conn. 211, 229, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). Each assault against each victim constituted a discrete offense, separately punishable under our law. The same rationale applies with equal force to the crime of risk of injury, that is, each claim of risk of injury against each victim constituted a separate and distinct crime. State v. Snook, 210 Conn. 244, 261-62, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).

“ ‘A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. . . .’ ” State v. Madera, 198 Conn. 92, 110, 503 A.2d 136 (1985); State v. Couture, 194 Conn. 530, 565-66, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

We conclude that, because there is neither a temporal continuity nor a clear connection among the acts claimed to have been committed, and, because each such claimed act of misconduct against each victim constitutes a separate crime, the defendant was charged with more than one single criminal act or transaction as defined by State v. Tyler, supra. Thus, the defendant was ineligible for the accelerated rehabilitation program. The trial court, therefore, abused its discretion by granting the defendant’s application.

Because of our resolution of the multiple crimes issue, we need not address the state’s claim that the crimes charged are crimes of a serious nature under the accelerated rehabilitation statute.

The judgment dismissing the information is set aside and the case is remanded for further proceedings in accordance with the law.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       General Statutes § 54-56e provides in pertinent part: “There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed, which crime or violation is not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend in the future and who has no previous record of conviction of a crime or of a violation of section 14-196, subsection (c) of section 14-215, section 14-222a, subsection (a) of section 14-224 or section 14-227a and who states under oath in open court under the penalties of perjury that he has never had such program invoked in his behalf, provided the defendant shall agree thereto and provided notice has been given by the accused, on a form approved by rule of court, to the victim or victims of such crime or motor vehicle violation, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. . . . Unless good cause is shown, this section shall not be applicable to persons accused of a class A, class B, or class C felony or to any youth who has previously been adjudged a youthful offender under the provisions of sections 54-76b to 54-76n, inclusive. . . . Any defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of his right to a speedy trial. Any such defendant shall appear in court and shall be released to the custody of the office of adult probation for such period, not exceeding two years, and under such conditions as the court shall order. ... If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the charges against him and the court, on finding such satisfactory completion, shall dismiss such charges. If the defendant does not apply for dismissal of the charges against him after satisfactorily completing his period of probation, the court, upon receipt of a report submitted by the office of adult probation that the defendant satisfactorily completed his period of probation, may on its own motion make a finding of such satisfactory completion and dismiss such charges. Upon dismissal, all records of such charges shall be erased pursuant to section 54-142a. An order of the court denying a motion to dismiss the charges against a defendant who has completed his period of probation or terminating the participation of a defendant in such program shall be a final judgment for purposes of appeal.”

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

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

       General Statutes § 53a-71 provides in pertinent part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is . . . (4) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare


text:
    State of Connecticut v. Eugene Russell
    (8540)
    (8541)
    Foti, Lavery and Heiman, Js.

      Argued May 1
    decision released July 16, 1991

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, were Elpedio Vitale, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Heiman, J.

The above cases were consolidated for trial and tried to the jury. The defendant appeals from the judgment of conviction of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), three counts of risk of injury to a child in violation of General Statutes § 53-21, one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l). The defendant claims that (1) his convictions for the crimes of sexual assault in the first degree and sexual assault in the second degree of the same victim violate his federal and state constitutional right against double jeopardy, (2) his conviction of three counts of risk of injury to a child as charged in the informations violates his federal and state constitutional right against double jeopardy, and (3) the prosecutor’s remarks made during closing argument were prejudicial, thereby violating his right to a fair trial. Although the defendant filed two separate appeals, they were consolidated by order dated July 13, 1990. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant is married to the mother of the victim. The defendant, his wife, the victim, and another child from the wife’s previous marriage lived together. At the time of the incidents in question, the victim was four years of age.

On March 2, 1987, at about noon, emergency medical technicians (EMTs) responded to a call for assistance at the defendant’s apartment. When they arrived, they were met by the defendant who advised them that the four year old victim had fallen from a table. One of the EMTs observed the child lying on a bed staring into space. She was initially unresponsive to questions, but finally said that she had fallen. The defendant was present when the EMTs spoke with the victim. At this point, the technicians observed bruises on the victim’s eyes, torso, arms and legs. The EMTs asked the defendant about the cause of the victim’s injuries and he said that the child had fallen from a chair and hit the table. The defendant’s demeanor was calm.

The victim was transported to Yale-New Haven Hospital by ambulance. At the hospital emergency room, she initially drifted in and out of consciousness. When asked if she had been beaten she did not respond. When asked if someone had threatened to hurt her if she told anyone about what had occurred, she nodded yes.

The following observations were made by examining physicians. The victim was three feet four inches tall and weighed thirty-five pounds. She was covered with multiple bruises on her head, cheek, lip, chin, right ear, both eyes, chest, right forearm, back and shins. The condition of the bruises indicated that they had been present over varying periods of time. The victim had a concussion, a burn scar below her navel, and an injury to her left third toe that had been caused by forceful manipulation. She had a fresh bruise on her left eye, which was swollen shut. When the eye was pried open, it revealed bleeding into the white of the eye. She also displayed fresh bruises on her scalp, her cheek and her ear. A CAT scan revealed a subdural hematoma and swelling in the victim’s brain, and disclosed that the victim had sustained three blows to her head. The physicians concluded that the victim’s multiple physical injuries were caused by repeated blows inflicted with tremendous force from different directions at different times, and that the injuries inflicted on the victim on March 2,1987, caused serious impairment of her health and a substantial risk of death. The injuries observed were not consistent with those that would have been inflicted by a single blow or a fall from a table or chair.

A vaginal examination of the victim revealed that she had an enlarged introitus, about twice the normal size for a child of her age, and that her hymenal ring was thickened and showed scarring consistent with its having been ripped and then healed. A vaginal examination of the victim in January, 1987, had shown no abnormality.

The victim, who was six years old at the time of the trial, testified that on various occasions the defendant had touched her with his penis, and had inserted it into her vagina and mouth. He also had inserted his fingers into her vagina.

The victim also testified that the defendant had struck and kicked her on a number of different occasions causing bruises. She stated that he had put her into very hot bathwater and had hung her upside down on doorknobs. She also testified that he had stuck needles into her legs and toes. She stated that on the day that she was hospitalized the defendant had hit her, had pushed her off of a chair and had told her that he would punish her if she told anyone how she had been injured.

During the period from September, 1986, to March 2, 1987, the defendant was unemployed and was often entrusted with the supervision of the victim. On March 2, 1987, the day that she was hospitalized, the defendant was home alone with the victim.

I

The defendant first asserts that his convictions of sexual assault in the first degree and sexual assault in the second degree for crimes against the same victim violate his rights against double jeopardy as guaranteed to him by the fifth amendment to the constitution of the United States and by the Connecticut constitution. We disagree.

The defendant concedes, as he must, that this issue was not raised at trial. He claims, nonetheless, that this issue is reviewable pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as expanded upon and reformulated in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

In order to prevail on an unpreserved constitutional claim, a defendant must demonstrate his compliance with all of the following conditions: “(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.” State v. Golding, supra, 239-40. Here, the defendant asserts that the genesis of his double jeopardy claim involves the alleged multiple punishments imposed on him for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985). Because the defendant’s claim falls within the ambit of the Devino line of cases, his claim is properly reviewable. State v. Snook, 210 Conn. 244, 263-64, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).

As a preliminary matter, we note that although the defendant claims that this double jeopardy claim is grounded in both the Connecticut and the federal constitutions, he has failed to provide us with an independent analysis of his Connecticut constitutional claim. This court, as well as our Supreme Court, has consistently declined to consider criminal state constitutional claims when we have not been provided with an independent analysis of the particular state constitutional provision raised. State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991); State v. Turner, 24 Conn. App. 264, 271 n.4, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991). We will not depart from this well established policy in the present case.

Connecticut courts have consistently followed the double jeopardy analysis used in the federal jurisdictions. See State v. Thompson, 197 Conn. 67, 71-73, 495 A.2d 1034 (1985); State v. Rothenberg, 195 Conn. 253, 264-65, 487 A.2d 545 (1985); State v. Blackwell, 20 Conn. App. 193, 195, 565 A.2d 549 (1989). That strand of the double jeopardy provision that prohibits multiple punishments for the same offense; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); State v. Delgado, 19 Conn. App. 245, 250, 562 A.2d 539 (1989); is compromised only if the charges arise out of the same act or transaction and if the charged crimes are in reality the same offense. State v. Snook, supra, 264; State v. Blackwell, supra, 196. Multiple punishments are forbidden only if both conditions are met. State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988). “ ‘[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” State v. Blackwell, supra. If each statute involved requires proof of a fact that the other does not, the cases are not the same under Blockburger. State v. Blackwell, supra; State v. Lonergan, 16 Conn. App. 358, 365-66, 548 A.2d 718 (1988), aff’d, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).

The defendant concedes that, under the Blockburger test, sexual assault in the second degree is not a lesser included offense of sexual assault in the first degree. As the defendant properly recognizes, one can commit sexual assault in the first degree without first having committed sexual assault in the second degree. State v. Franko, 199 Conn. 481, 494, 508 A.2d 22 (1986). For a conviction under General Statutes § 53a-71 (a) (1), sexual assault in the second degree, it must be proven that the defendant engaged in sexual intercourse with another person who is under the age of sixteen years. In order to prove a violation of General Statutes § 53a-70 (a), sexual assault in the first degree, it must be established that the defendant compelled another person to engage in sexual intercourse by the use or the threat of the use of force. Thus, each statute requires proof of a fact that the other did not. Applying the Bbckburger test clearly demonstrates that these are two separate crimes for which the defendant could be prosecuted and punished without violating the constitutional prohibition against double jeopardy.

Our analysis does not end here, however. The Bbckburger test is a rule of statutory construction and its application does not result in a conclusive presumption. Thus, a presumption under Bbckburger that there are two crimes which may warrant two punishments may be rebutted “ ‘by showing a clear legislative intent that the two statutes be treated as one for double jeopardy purposes.’ ” State v. Gilchrist, 24 Conn. App. 624, 628, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991); State v. Blackwell, supra, 197.

We are not persuaded that the legislature intended that sexual assault in the first degree and sexual assault in the second degree be classified as two nominally distinct crimes for which only one punishment could be imposed. It is possible for a defendant to be convicted of one of these crimes and not the other because each requires proof of facts that the other does not. See State v. Blackwell, supra. In addition, the statute proscribing sexual assault in the first degree is designed to protect all persons, regardless of age, from being compelled to engage in sexual intercourse by the use of force, or the threat of the use of force. The statute proscribing sexual assault in the second degree has its origins in the desire of the state to prohibit persons from engaging in sexual intercourse with individuals who are deemed legally incapable of consent. State v. Blackwell, supra, 197-98.

We conclude, therefore, that the defendant’s claim is without merit.

II

The defendant next posits that his conviction of three counts of risk of injury to a child, and the punishment imposed on each separate count, violated his right against double jeopardy under both the state and federal constitutions. Again, the defendant concedes that this claim was not raised in the trial court, but asserts that it is reviewable under State v. Evans, supra, and State v. Golding, supra. We agree that the issue raised may properly be reviewed.

The defendant has again failed to provide a separate and distinct analysis of an independent claim under the Connecticut constitution. We decline to engage in a separate state constitutional analysis when the parties do not provide us with such analysis. See State v. Perez, supra; and State v. Turner, supra.

The defendant was convicted of two counts of risk of injury that were contained in a single information that also contained charges of first degree assault. The third risk of injury charge was contained in a separate information along with charges of sexual assault in the first degree and sexual assault in the second degree. Thus, the two informations divided the charges against the defendant into two categories, one involving physical assaults and beatings, and the other involving acts of sexual misconduct.

In determining whether the prohibition against double jeopardy has been violated, we must first determine whether the crimes arose out of the same act or transaction. State v. Flynn, 14 Conn. App. 10, 16, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). Only if we answer this question in the affirmative are we obligated to address the second issue of whether the crimes charged constitute the same offense. State v. Devino, supra, 74; State v. Flynn, supra.

General Statutes § 53-21 as charged does not proscribe a continuing course of criminal conduct, but it does proscribe “acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.” State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). Each separate act of conduct injurious to the moral or physical well-being of the minor constitutes a separate, discrete offense. State v. Snook, supra, 262.

In this instance, the state produced substantial evidence that on numerous separate occasions the defendant beat or physically tortured the victim. The state also produced substantial evidence that individual acts of forcible sexual intercourse occurred between the defendant and the victim on a number of occasions. The trial court in its charge clearly pointed out to the jury the claimed factual predicate on which each separate count rested. Thus, our examination of the record and the court’s charge to the jury leads us to conclude that these separate counts of risk of injury did not arise out of the same act or transaction. See State v. Flynn, supra, 17.

On appeal, the defendant bears the burden of proving that the prosecutions are for the same offense in fact and in law. State v. Snook, supra, 264; State v. Torrice, 20 Conn. App. 75, 95, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989). Our conclusion that the three risk of injury offenses charged in the informations constitute distinct and separate crimes for the purposes of double jeopardy leads us to further conclude that the defendant has failed to sustain his burden, and, therefore, his double jeopardy claim must fail.

Ill

Finally, the defendant asserts that his conviction is fatally flawed because of prejudicial remarks that were made by the prosecutor during final argument, thereby denying him of his right to a fair trial. The defendant concedes that no objections were raised during closing argument but claims reviewability under the doctrine of State v. Evans, supra, and State v. Golding, supra. We disagree.

Our review of the record discloses that the remarks now challenged represented isolated instances of alleged misconduct, and do not represent a pattern of conduct that was repeated throughout the trial. We, therefore, decline to review their propriety. State v. Castonguay, 218 Conn. 486, 507-508, 590 A.2d 901 (1991); State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990); State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); State v. Peruta, 24 Conn. App. 598, 609, 591 A.2d 140 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) (3) provides: “A person is guilty of assault in the first degree when . . . under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

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

       General Statutes § 53a-70 (a) provides: “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, or (2) engages in sexual intercourse with a persons under thirteen years of age.”

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

       The fifth amendment of the United States constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

       “There is no specific provision against double jeopardy in the constitution of Connecticut. It is nonetheless true that we have in large part adopted the common-law rule against it as necessary to the due process guaranteed by article first § 9, of our constitution.” Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 85 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

       We reiterate with respect to unpreserved due process claims that “ ‘[d]ue process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record.’ ” State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991); State v. Peruta, 24 Conn. App. 598, 602 n.2, 591 A.2d 140 (1991).


text:
    State of Connecticut v. Wayne Sanford
    (9141)
    Daly, Foti and Heiman, Js.
    Argued May 30
    decision released July 16, 1991

      Brian S. Carlow, assistant public defender, for the appellant (defendant).

      Mitchell Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Robert J. O’Brien, supervisory assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the trial court improperly admitted a witness’ testimony because of the destruction of a 911 telephone taped statement reporting the crime. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 12, 1988, at approximately 5:15 p.m., the defendant entered the Hit or Miss clothing store located at 2300 Dixwell Avenue in Hamden. He approached the manager of the store, Wendy Blake, and told her to go to the register and give him all the money. He also warned Blake that he had a gun and if necessary he would use it. As Blake gave the defendant the money in the register, she noticed that he opened his jacket and placed his left hand over what appeared to be a gun. During the course of these events, another employee, Lynn Seinsheimer, was standing near the cash register. Seinsheimer clearly witnessed these events and thereafter was able to identify the defendant. After the defendant fled with the money, Blake called 911 to report the robbery to the Hamden police. The defendant was subsequently arrested, charged with robbery in the first degree and convicted.

The defendant claims that the trial court should have granted his motion to strike the testimony of one of the victims because the state failed to produce the 911 tape recording of Blake’s call to the Hamden police, pursuant to Practice Book § 752 and General Statutes § 54-86b. The following facts are pertinent to this claim.

The defendant filed a motion for discovery on February 28, 1989, seeking copies of the prosecution witnesses’ statements in the possession of the state, which was granted on March 13, 1989. The defendant also filed a motion for the preservation and production of any taped statements made by the state’s witnesses including any call originally reporting the incident on February 28, 1989, pursuant to State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988) (Williamson I), aff’d, 212 Conn. 6, 562 A.2d 470 (1989) (Williamson II). On February 15,1989, the state notified the Ham-den police department to preserve the statements made on the 911 tape. During the trial, the state revealed that the 911 tape of the original report of the incident was erased according to Hamden police department policy. The 911 tape was erased approximately thirty days after the date of use, indicating that Blake’s statement was destroyed on or about December 12, 1988.

Subsequently, the defendant’s motion to strike the testimony of Blake was denied. On the basis of several facts, the trial court found that the destruction of the 911 tape was not done in bad faith. First, the trial court found that Blake did not provide a description of the defendant when Blake reported the robbery, but that the actual source of the description on the dispatch card, acknowledging the 911 call from Blake, was Officer John Cappiello of the Hamden police department during his initial investigation. The court also noted that the description on the dispatch card was similar to the description given by Blake when testifying at trial. Thus, the trial court held that the nonproduction was harmless. The defendant took exception to the trial court’s ruling.

Under this court’s decision in Williamson I, supra, 911 tape recordings of witnesses’ statements must be preserved and given to the defendant upon appropriate request. In this appeal, the state asks this court to establish a public policy exception for 911 statements from the requirements of Practice Book § 752 et seq. and General Statutes § 54-86b. We reject the state’s request and continue to follow our precedent.

The record discloses that this case involves an intentional destruction of the 911 tape in accordance with the Hamden police department’s policy. This was done in clear violation of our decision in Williamson I, supra, which requires the preservation of 911 statements and was released on April 12, 1988, some eight months before the destruction of the 911 tape in this case. The defendant requests that we find this intentional destruction constituted “constructive bad faith” due to the Hamden police department’s failure to establish standards in accordance with Williamson I to preserve a witness’ 911 statement. Although this court does not approve of the disregard of our decision in Williamson I, the destruction by the Hamden police department of the 911 statement in this case has not risen to a level that would warrant a constructive finding of bad faith. The Connecticut Supreme Court has established that bad faith “[i]n the context of [Practice Book] § 752 violation . . . connotes a deliberate act done with intent to deprive the defense of information.” Williamson II, supra, 16. Absent this, there may not be a finding of bad faith; State v. Belle, 215 Conn. 257, 265 n.8, 576 A.2d 139 (1990) (citing Williamson II, supra); and we find no evidence in the record to support such a conclusion.

Because the state did not act with bad faith, the court must next weigh “ ‘ “ ‘the culpability of the state for its failure to make disclosable material available . . . against any resulting prejudice to the defendant . . . .’ ” ’ ” (Citations omitted.) State v. Belle, supra, 268. The intentional destruction of the 911 statement in this case properly places the burden on the state to establish the harmlessness of its violation. Id.; State v. Johnson, 214 Conn. 161, 172, 571 A.2d 79 (1990). Whether the state must establish harmlessness beyond a reasonable doubt or by the lesser “more probable than not” standard, depends on the extent to which the missing 911 tape impaired the defendant’s constitutional right to confront and cross-examine witnesses. State v. Belle, supra, 269-70; State v. Johnson, supra, 173-74.

In evaluating whether the state’s failure to produce the victim’s 911 statements reporting the robbery infringed on the defendant’s confrontation rights, we look to several factors developed by our Supreme Court. See State v. Belle, supra, 269-70; State v. Johnson, supra, 174-75; Williamson II, supra, 22-23. First, it must be determined whether “the trial court or a reviewing court had access to the unproduced material.” WilliamsonII, supra, 22. As in Williamson II, the trial court in this case did not have access to the 911 tape that was destroyed by the police. Id., 23. The dispatch card is not a transcript of what Blake actually said during the 911 call. As in Williamson II, the declarant in this case did not “read and [adopt] a counterpart transcript within a short time after making the statement.” Id.

The critical factor distinguishing this case from Williamson II is that this defendant’s conviction did not rest solely on the testimony of the witness whose pretrial statement had been destroyed. See State v. Johnson, supra, 174; Williamson II, supra, 22-23. In the present case, two witnesses were present during the robbery and positively identified the defendant as the person who committed the robbery. In addition to Blake, whose statement on the 911 tape was destroyed, Seinsheimer saw the defendant take the money from the cash register. Seinsheimer saw the defendant’s face and gave a description similar to the description given by Blake. Both witnesses selected the defendant’s picture from a police photograph board and were also able to identify the defendant during the trial. This case, therefore, is factually closer to State v. Johnson, supra, in which the defendant’s conviction did not rest solely on the testimony of the witness whose taped statement was destroyed. In Johnson, the defendant’s conviction was also based on circumstantial evidence unrelated to the destroyed statement. State v. Johnson, supra.

Even if Blake’s testimony should have been stricken, there was substantial evidence based on the testimony of Seinsheimer implicating the defendant as the person responsible for this robbery. The defendant had sufficient opportunity to confront Seinsheimer as to her recollection of the circumstances surrounding the robbery. Thus, the results of the trial would have been the same regardless of Blake’s testimony. See id., 172; State v. Dedrick, 24 Conn. App. 518, 521-23, 589 A.2d 1241 (1991). Although the trial court did not articulate which test of harmlessness it applied; State v. Belle, supra, 269; we find that the state proved that the non-production of the 911 tape was harmless beyond a reasonable doubt. Because we find that the nonproduction of the 911 statement was harmless beyond a reasonable doubt, we need not decide which standard should have been applied in this case. See Williamson II, supra, 23.

Finally, the trial court found, and we agree, that Blake’s testimony identifying the defendant would remain in evidence because it was not part of her 911 statement reporting the crime. The trial court, therefore, did not abuse its discretion in refusing to strike the testimony of Blake.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[Practice Book] Sec. 752.--production following testimony
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       “[General Statutes] Sec. 54-86b. right of accused to examine statements. (a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.
      “(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”

       There are four requirements that a defendant must meet for the mandates of General Statutes § 54-86b and Practice Book § 752 to apply and thereby to compel discovery: “First, the witness whose prior statements are sought, must have been a witness for the prosecution and must have testified under direct examination. This condition is clearly met in this case. Second, the defendant must make a motion to the trial court for production of the witness’ statement. The defendant has satisfied this condition. Third, the statements must relate to the subject matter about which the witness has testified. There is no dispute that this condition is also satisfied. Finally, the statements sought to be produced must be in the possession of the state or its agents.” State v. Williamson, 14 Conn. App. 108, 113, 552 A.2d 815 (1988) (Williamson I), aff’d, 212 Conn. 6, 562 A.2d 470 (1989). It is uncontested that the defendant in this case fulfilled these requirements regarding the 911 taped statement.

       Unless there is showing of bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process under the federal constitution. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).