text:
    State of Connecticut v. Howard Allen
    (9636)
    Foti, Landau and Heiman, Js.
    Argued April 28
    decision released June 30, 1992

      Susan B. Marhoffer, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of the trial court, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). In his appeal, the defendant sets forth two claims. He first claims that the cumulative effect of numerous trial errors, including (1) the trial court’s instruction that the state seeks only the conviction of the guilty, (2) the trial court’s failure to instruct the jury on the defense of intoxication, (3) outbursts by one of the state’s witnesses while testifying, and (4) the admission of autopsy photographs, resulted in the denial of his constitutionally guaranteed right to a fair trial. The defendant also claims that the evidence presented at trial was insufficient as a matter of law to sustain his conviction of manslaughter in the first degree. We disagree with both of the defendant’s claims.

The jury could reasonably have found the following facts. In the afternoon and evening of October 21,1989, the defendant, the victim and several other individuals were drinking and smoking crack cocaine in the Bridgeport apartment of the victim’s brother. During the afternoon, the defendant, the victim and two of the victim’s female cousins were drinking, listening to records and dancing in the victim’s bedroom. At some point during either the afternoon or early evening, the defendant left the apartment to purchase more alcohol and the victim and one of his cousins went to a local bar. All returned to the apartment sometime that evening and continued to consume alcohol in the kitchen of the apartment. At approximately 10 p.m. that evening, a fight ensued between the defendant and the victim over the defendant’s crude conduct toward the victim’s two cousins. The victim repeatedly asked the defendant to leave. The defendant refused.

The defendant lunged at the victim but was intercepted by the victim’s cousins. He shoved the women away, grabbed a pot that was drying on the kitchen counter and threw it at them. He then pulled a knife out of his back pocket and stabbed the victim twice, once in the chest and once in the stomach. The victim fell to the floor between the kitchen and the adjoining hallway and the defendant jumped on top of him and stabbed him a third time. The third stab wound was also to the chest. The defendant then returned to the kitchen, wiped off the knife and put it back in his pocket, grabbed his jacket and fled from the apartment. Two days later, the defendant learned of the victim’s death and surrendered to the police. The defendant was subsequently charged with and convicted of manslaughter in the first degree. He was sentenced to twenty years of incarceration.

The defendant first raises a four part claim pertaining to the constitutionally guaranteed right to a fair trial. U.S. Const., amend. XIV. Part one of this claim involves the trial court’s instruction that the state seeks the conviction of only the guilty. The defendant’s claim regarding this instruction was not raised at trial. The defendant, therefore, seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that this claim must fail because the defendant has failed to meet the third prong of State v. Golding, supra, 240, that the alleged constitutional violation “clearly exists and clearly deprived the defendant of a fair trial” and does not constitute plain error. Practice Book § 4185.

“Where a defendant neither requests a specific instruction nor objects to the instruction that was given, reversal is warranted only if the defendant demonstrates that he was deprived of a fundamental constitutional right or that there is plain error. Practice Book § 4185; State v. Grullon, 212 Conn. 195, 211, 562 A.2d 481 (1989); State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1985).” State v. McFadden, 25 Conn. App. 171, 176, 293 A.2d 979 (1991). “Our review of the defendant’s claim is guided by the established rule that jury instructions are not to be subjected to microscopic examination with an eye toward discovering possible inaccuracies. Rather, we consider whether it was reasonably possible that the charge as a whole misled the jury. State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991).” State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991).

The defendant directs our attention to the following language in the trial court’s charge to the jury: “The state of Connecticut and its people look to you as sworn officers of the court to deal with this case fairly, firmly and honestly as strong minded men and women and with the interest placed in your hands as an arm of the court to aid and uphold the law of the land by rendering a verdict of guilty if the facts and the law require such a verdict. The state does not desire the conviction of innocent people or of any person whose guilt upon the evidence is in the realm of reasonable doubt.” (Emphasis added.) The defendant argues that this statement deprived him of his constitutional right to have the state prove every element of the charged offense beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990); State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1983); in that it shifted to the defendant the burden of proving his innocence. We disagree.

After a review of the court’s charge as a whole, we conclude that the court’s instructions could not possibly have misled the jury. See State v. Tweedy, 219 Conn. 489, 510-11, 594 A.2d 906 (1991); State v. Anderson, supra, 38. The court did not instruct that the state prosecutes only guilty people, but rather that the state requires the conviction of only the guilty. Moreover, the court thoroughly informed the jury of the defendant’s presumed innocence and that the state bore the burden of proving the defendant’s guilt beyond a reasonable doubt. Viewing the charge as a whole, we conclude that there is no reasonable possibility that the jury was misled regarding the burden of proof. Thus, the defendant has failed to satisfy the third Golding condition by demonstrating that any alleged constitutional violation “clearly exists and clearly deprived the defendant of a fair trial . . . State v. Golding, supra. Necessarily, then, this claim must fail.

We decline to review the second and third portions of this first claim, regarding the trial court’s failure to instruct the jury on the defense of intoxication and the outbursts by one of the state’s witnesses during his testimony, because these challenged actions were never raised at trial, the defendant has not sought appellate review pursuant to State v. Evans, supra, and State v. Golding, supra, and these claims do not implicate the plain error doctrine of Practice Book § 4185. It is not this court’s practice or obligation to review an inadequately preserved claim where the challenged action does not constitute plain error. See State v. Johnson, 26 Conn. App. 433, 438-39, 602 A.2d 36 (1992), citing State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986), and State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989).

“The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); see also State v. Jeffrey, 220 Conn. 698, 710-11, 601 A.2d 993 (1991); State v. Ortiz, supra, 659-60; State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). The errors claimed here do not merit such review.

We next turn to the final portion of the defendant’s first claim, that the trial court improperly permitted the state to introduce an autopsy photograph of the victim. At trial the defendant argued that the court should not admit the autopsy photograph of the victim into evidence because “it seems to highlight the location of the wounds and it exacerbates the situation by showing the presence of the wounds.” The state argued that the photograph was material to show the defendant’s intent to cause serious physical injury, which was an element of the state’s burden of proof. See, e.g., State v. McKenna, 11 Conn. App. 122, 138-39, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987).

In State v. DeJesus, 194 Conn. 376, 481 A.2d 1068 (1984), our Supreme Court discussed extensively the rules pertaining to the admissibility of photographic evidence and held that photographic evidence is admissible where the photograph has “a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787.” State v. DeJesus, supra, 381. The court also noted that there is no requirement in this state that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, “the test for determining the admissibility of the challenged evidence is relevancy and not necessity. State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).” State v. Haskins, 188 Conn. 432, 453, 450 A.2d 828 (1982); State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986); State v. Falcon, 196 Conn 557, 565-66, 494 A.2d 1190 (1985); State v. Delgado, 8 Conn. App. 273, 288-89, 513 A.2d 701 (1986); see State v. Walker, 206 Conn. 300, 314-15, 537 A.2d 1021 (1988).

Upon a defendant’s objection, the prosecution must show that the photographic evidence offered is relevant to its case. “The trial court exercises a broad discretion in admitting such evidence, and its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown. State v. Piskorski, supra, 700-701; State v. Smith, 174 Conn. 118, 123, 384 A.2d 347 (1977).

The defendant’s objection was fully argued before the trial court. In exercising its discretion, the trial court found that the photograph was relevant and material to the intent element of the charge of manslaughter, which the state was required to prove beyond a reasonable doubt. See General Statutes § 53a-55 (a) (1). Implicit in the court’s admission of the photograph was a finding that its value as evidence outweighed any prejudicial effect it might have had on the jury. See State v. DeJesus, supra, 383.

We have examined the photograph and agree with the trial court that it was relevant to the issue of intent, an essential element of the charge of manslaughter. There is nothing in the record to support an allegation that the trial court abused its discretion in admitting the photograph into evidence.

“Because we find that none of the challenged trial court actions was improper, we conclude that the cumulative impact of those actions did not deny the defendant a fair trial. State v. Harris, 182 Conn. 220, 230-33, 438 A.2d 38 (1980); State v. Hudson, 14 Conn. App. 463, 472, 541 A.2d 534 (1988); State v. Robinson, 14 Conn. App. 146, 149-51, 539 A.2d 1037, cert. denied, 208 Conn. 805, 545 A.2d 1101 (1988).” State v. Harvey, 27 Conn. App. 171, 185-86, 605 A.2d 563 (1992).

The defendant’s second claim is that there was insufficient evidence presented at trial to warrant a conviction of manslaughter in the first degree. Specifically, the defendant maintains that the state failed to prove his intent to cause serious physical injury as required by General Statutes § 53a-55 (a) (1). We disagree.

Our Supreme Court has concisely summed up our scope of review for such claims. “When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. ‘We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986); see also State v. Johnson, 26 Conn. App. 433, 435, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992). “With respect to the type of evidence the jury employs to reach its verdict, it is immaterial to the probative force of that evidence that it be, in whole or part, circumstantial rather than direct.” State v. Jupin, 26 Conn. App. 331, 337, 602 A.2d 12 (1991), quoting State v. Allen, 216 Conn. 367, 381, 579 A.2d 1066 (1990).

In order to convict the defendant of manslaughter in the first degree as charged in the present case, the state was required to prove that (1) the defendant intended to cause serious physical injury to the victim, and (2) with that intent, the defendant caused the victim’s death. See General Statutes § 53a-55 (a) (1). The only issue in contention at trial was whether the defendant intended to cause serious physical injury to the victim. The intent to cause serious physical injury required for a conviction of manslaughter in the first degree under § 53a-55 (a) (1), by definition, required a jury’s finding that the defendant caused a “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of a bodily organ.” General Statutes § 53a-3 (4).

The defendant’s argument that the evidence was insufficient to establish his intent to cause serious physical injury is flawed. “Intent may be inferred from the conduct of the accused. State v. Carpenter, [supra, 82]; State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972). Ordinarily, the intent of the actor is a question for the trier of fact. State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).” State v. Woods, 25 Conn. App. 275, 281, 594 A.2d 481 (1991); In re Keijam T., 221 Conn. 109, 602 A.2d 967 (1992). It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. See In re Edwin N., 215 Conn. 277, 284, 575 A.2d 1016 (1990).

In this case, the circumstantial evidence was more than sufficient to sustain a jury’s finding the requisite intent to cause serious physical injury to the victim. There was evidence that the victim requested that the defendant leave his apartment but that the defendant refused to go, that an argument ensued between the defendant and the victim and that the victim’s cousins attempted to intervene but that each was shoved out of the way by the defendant in his attempt to reach the victim. There was also evidence before the jury that the defendant stabbed the victim, who was unarmed, twice with a knife that he had removed from his back pocket, that the victim fell to the floor and that the defendant then stabbed the victim, who was still unarmed, for the third time. The jury also had before it the autopsy photograph of the victim’s wounds and the testimony of the medical examiner that these three stab wounds, two to the chest and the third to the stomach, were the direct cause of the victim’s death. Additionally, the jury heard testimony that after the defendant stabbed the victim for the third time, he returned to the kitchen, wiped off the blade of his knife, put it back into his pocket, retrieved his coat and ran out of the apartment. On the basis of all the evidence, we conclude that the jury had before it sufficient evidence to permit a finding that the defendant intended to cause serious physical injury to the victim, and therefore to permit a conviction of manslaughter in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 provides in relevant part: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. General Statutes § 53a-3 (11). Accordingly, our Supreme Court has recognized that intent is ordinarily proven through circumstantial evidence: “ ‘Intent is a mental process which ordinarily can be proven only by circumstantial evidence. An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.’ State v. Zdanis, [182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981)]; see, e.g.,
        State v. Holley, [174 Conn. 22, 26, 381 A.2d 539 (1977)].” State v. Bzdyra, 165 Conn. 400, 404-405, 334 A.2d 917 (1973); State v. Litman, 106 Conn. 345, 352-53, 138 A. 132 (1927). These inferences are necessary because the direct evidence of the accused’s state of mind is rarely available. See State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980); State v. Bzdyra, supra, 403.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    State of Connecticut v. Donald Parsons
    (10200)
    O’Connell, Freedman and Cretella, Js.
    Argued April 7
    decision released June 30, 1992

      Paul E. Zagorsky, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Stephen G. Preleski, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), two counts of risk of injury to a child in violation of General Statutes § 53-21, and a single count of promoting a minor in an obscene performance in violation of General Statutes § 53a-196b (a). The trial court imposed a total effective sentence of forty-six years, execution suspended after twenty-nine years with five years of probation and the defendant received an unconditional discharge on the conviction for promoting a minor in an obscene performance.

The defendant claims that the trial court improperly (1) denied his pretrial motion to dismiss three of the eleven counts charged by the state, (2) charged the jury with respect to the date of all charged offenses, (3) denied his motion for judgment of acquittal, (4) charged the jury on promoting a minor in an obscene performance, (5) permitted the state to ask leading questions of the minor victims on direct examination, and permitted one of the minor victims to read from a prior statement on direct examination, (6) permitted eight witnesses to testify for the state under the constancy of accusation exception to the hearsay rule where the cumulative prejudicial effect of their testimony outweighed its probative value, and (7) admitted into evidence twenty-five photographic enlargements of pictures taken by the defendant when the prejudicial effect of such enlargements outweighed their probative value. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The two female victims, Y, born in July, 1978, and C, born in December, 1979, are the defendant’s stepchildren. V and C’s mother, who is the wife of the defendant, also had three other children by the defendant, including a son, D, born in August, 1984. Toward the end of January and beginning of February, 1989, the victims’ mother began attending real estate classes, which met on six successive Saturdays from 9 a.m. to 4 p.m. She would also leave the house at least one night during the week to study. After spending additional time out of the house to take the real estate examination, the victims’ mother began work in a local real estate office. She worked three or four nights a week from 5 p.m. until 8 or 9 p.m., a three hour shift on alternate Saturdays, and an occasional shift on Sunday afternoons. During the mother’s absence from the house, the defendant would stay at home with the children.

Beginning in February, 1989, when their mother attended the real estate classes, the defendant started showing V and C pornographic pictures in magazines, which he told them were normal. He then began having V take her clothes off, and sometimes he took his off too. Finally, one evening in May, 1989, and several times thereafter, the defendant sexually assaulted V and C, and also involved them in other bizarre acts. On one occasion, D walked into the room while the defendant was sexually assaulting V, and the defendant told D to remove his clothes. The defendant then fondled D’s penis. The victims did not tell anyone what the defendant was doing to them because he told them not to tell, and threatened to harm them if they did.

In June or July, 1989, the children’s mother arrived home from work to find V and C “scurrying” from the kitchen or the living room “to get on bathrobes and they were both completely naked underneath.” The defendant was present at this time. When she asked what was going on, they replied, “Oh nothing.” D was also present, but, when he attempted to respond to his mother’s question, the defendant told him to be quiet. The mother continued to work at her job through the summer and fall of 1989.

On December 10,1989, the children’s mother attended a church service during which a sermon about guilt and hidden feelings was given. Knowing that some of her jewelry was missing at home, she returned home and gave a lecture about guilt and hidden feelings to her children. In response, V hesitantly told her mother that the defendant was sexually assaulting her. When the mother confronted the defendant with V’s accusations, he denied them. V stated that her accusations were true, and C also told her mother that the accusations were true.

The defendant was eventually arrested on December 12,1989. The victims, who told the police about the assaults, were then taken to a local hospital and were interviewed and examined. During a subsequent search of the defendant’s home after his arrest, the police found a photographic contact sheet containing numerous photographs, taken by the defendant, of V. V was clothed only in a T-shirt, and the photographs focused primarily on her buttocks. The police also discovered pornographic magazines, at least one of which was admitted into evidence. Additional facts that are pertinent to a discussion of the issues presented in this appeal will be presented as necessary.

I

The defendant’s first claim can be divided into two parts. He claims that the trial court improperly (1) denied his motion to dismiss the eleventh count, promoting a minor in an obscene performance, because prosecution for that offense was barred by the statute of limitations, and (2) denied his motion to dismiss the eleventh count and two of the risk of injury counts because of a lack of specificity in the state’s bill of particulars regarding the time of occurrence of the alleged offenses.

A

The defendant claims that because the statute of limitations, as set forth in General Statutes § 54-193, barred a prosecution under General Statutes § 53a-196b, the trial court improperly denied his motion to dismiss that count.

The statute of limitations, General Statutes § 54-193 (b) provides in pertinent part: “No person may be prosecuted for any offense ... for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed.” Promoting a minor in an obscene performance is a class B felony. General Statutes § 53a-196b (c). The punishment for that offense may be imprisonment for more than one year; General Statutes § 53a-25; and therefore a prosecution must be commenced within five years from the date of its occurrence to satisfy § 54-193 (b).

On January 15, 1991, the state filed an amended information which for the first time charged the defendant with a violation of § 53a-196b, promoting a minor in an obscene performance. The basis of this charge was the photographs of the partially clad victim. In its bill of particulars, the state alleged that the defendant had committed this offense “on or about 1986 or 1987.” Had the offense occurred in the first two weeks of January, 1986, therefore, the defendant could have precluded prosecution for that offense by affirmatively raising a statute of limitations defense.

The statute of limitations, General Statutes § 54-193,. is not a jurisdictional bar to prosecution, but rather is an affirmative defense which must be proved by the defendant by a preponderance of the evidence. General Statutes § 53a-12 (b); State v. Crawford, 202 Conn. 443, 451, 521 A.2d 1034 (1987); State v. Coleman, 202 Conn. 86, 90, 521 A.2d 1034 (1987); State v. Littlejohn, 199 Conn. 631, 640, 508 A.2d 1376 (1986). “An affirmative defense is presented in the orderly course of a criminal trial after the prosecution has presented its case-in-chief.” State v. Coleman, supra, 91.

Here, the defendant raised the statute of limitations by way of a motion to dismiss. After the trial court denied the motion, however, the defendant failed to raise the defense at trial and he failed to submit a request to charge thereon. “The fact that the trial court, in its discretion, entertained the defendant’s motion to dismiss prior to trial does not automatically convert an affirmative defense into a right to be free of the trial itself. As an affirmative defense, the statute of limitations provides the defendant with a shield, not against prosecution itself, but against successful prosecution.” Id. Because of the overlap between the time of occurrence alleged in the bill of particulars and the statute of limitations, we cannot conclude that the trial court improperly denied the defendant’s motion at that time. The state, through the testimony of the children’s mother, then presented evidence at trial from which the jury could conclude that the pictures were taken in 1986 or 1987. It then became the defendant’s burden to prove his defense, by a preponderance of the evidence at trial; because the defendant failed to meet his burden, he cannot prevail on appeal.

B

The defendant also claims that the trial court improperly failed to dismiss the eleventh count and two risk of injury counts because the time frame referred to in those counts was so broad and indefinite that it deprived him of his state and federal constitutional rights to be informed of the nature and cause of the accusations against him. As previously stated, the state charged that the defendant committed a violation of § 53a-196b “on or about 1986 or 1987.” With respect to the two risk of injury counts, the state alleged that they were committed “between February, 1989 and December 7, 1989.”

“In order to enable the defendant to prepare his defense, the state must inform him, within reasonable time limits, when the offense charged was alleged to have been committed.” (Internal quotation marks omitted.) State v. Mancinone, 15 Conn. App. 251, 257, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988). The sixth amendment to the United States constitution does not require that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise. Id. “In order for a defendant who is convicted on the basis of an imprecise information to prevail on appeal, he must establish ‘a clear and specific showing of prejudice to the defense . . . .’ State v. Hauck, [172 Conn. 140, 150, 374 A.2d 150 (1976)]; see State v. Laracuente, 205 Conn. 515, 518-21, 534 A.2d 882 (1987). Such a showing amounting to a deprivation of his constitutional right to adequate notice of the charges is not made, however, merely by establishing that the ‘presentation of his . . . defense may be more burdensome and difficult.’ State v. Evans, [205 Conn. 528, 536, 534 A.2d 1159 (1987)]; State v. Saraceno, [15 Conn. App. 222, 237, 545 A.2d 1116 (1988)].” State v. Mancinone, supra, 258.

“[W]here time is not of the essence or gist of the offense, the precise time at which it is charged to have been committed is not material.” State v. Laracuente, supra, 519. The defendant admits that time is not of the essence to the crimes of risk of injury or promoting a minor in an obscene performance. At the hearing on his motion to dismiss, as well as in his brief to this court, the defendant has done no more than make mere assertions that the time frames alleged prejudiced his defense, and that the state could have narrowed the time frame. The state, however, indicated that the risk of injury counts encompassed the acts constituting the sexual assault counts, which occurred on various dates between May and August, 1989, plus other, uncharged prior sexual encounters occurring in the early months of 1989. As for the eleventh count, promoting a minor in an obscene performance, the evidence at trial made it clear that the state could not give a more specific date because the best evidence it had was the mother’s testimony, in which she stated that the pictures must have occurred sometime when Y was eight years old, which was in 1986 and 1987.

Because the state could not narrow the time frames, and because the defendant failed to make a clear and specific showing of prejudice, he cannot prevail on this claim.

II

The defendant next claims that the trial court improperly instructed the jury as to the state’s burden of proof concerning the time of occurrence of the offenses. The challenged part of the instructions, which was taken almost verbatim from the state’s request to charge, is as follows: “Now in various counts of the information as particularized by the bill of particulars, the various charges are given — said to have occurred say in May or on a particular date. In our state, the state may allege that a crime or crimes were committed on or about a particular date or a particular period of time. In Connecticut, it is well settled that the crime or crimes charged need not be proven to have occurred on the precise date stated in the information or during the precise period stated in the information. It’s sufficient ordinarily for the prosecution to prove the commission of the crime charged occurred at any time prior to the date of the information that’s when these proceedings started and not have occurred so long ago as to be barred by the statute of limitations.”

The instruction, as given, is an accurate statement of the law in Connecticut and the defendant does not claim otherwise. See State v. Cates, 202 Conn. 615, 626, 50022 A.2d 788 (1987). Rather, he merely restates his earlier claim that he was prejudiced by the lack of specificity contained in the state’s charging documents, a claim that we have already rejected. “A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . .” (Internal quotation marks omitted.) State v. Fernandez, 27 Conn. App. 73, 87, 604 A.2d 1308 (1992), quoting State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990). We conclude that it was not improper for the trial court to give the challenged instruction.

Ill

The defendant’s third claim is that the trial court improperly denied his motions for judgment of acquittal on the eleventh count, made at the close of the state’s case-in-chief and at the close of the trial. Specifically, the defendant argues that the trial court should have granted these motions because the state failed to produce evidence of the community standards regarding what is obscene as to minors.

Section 53a-196b (a) provides: “A person is guilty of promoting a minor in an obscene performance when he knowingly promotes any performance or material in which a minor is employed, whether or not such minor receives any consideration, and such performance or material is obscene as to minors notwithstanding that such performance or material is intended for an adult audience.” “Material or a performance is ‘obscene as to minors’ if it depicts a prohibited sexual act and, taken as a whole, it is harmful to minors. For purposes of this subsection: (1) ‘Minor’ means any person . . . less than sixteen years old as used in sections . . . 53a-196b . . . and (2) ‘harmful to minors’ means that quality of any description or representation, in whatever form, of a prohibited sexual act, when (A) it predominantly appeals to the prurient, shameful, or morbid interest of minors, (B) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (C) taken as a whole, it lacks serious literary, artistic, educational, political or scientific value for minors.” General Statutes § 53a-193 (b). “ ‘Prohibited sexual act’ means erotic fondling, nude performance, sexual excitement, sado-masochistic abuse, masturbation or sexual intercourse.” General Statutes § 53a-193 (c). “ ‘Nude performance’ means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering . . . .” General Statutes § 53a-193 (d). “ ‘Promote’ means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, advertise, produce, direct or participate in.” General Statutes § 53a-193 (l).

The language of General Statutes § 53a-193 (b), subdivisions (2) (A), (B) and (C), which define “obscene as to minors,” essentially tracks the three prong test for obscenity as set forth in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). In the companion case to Miller, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), the Supreme Court expressly addressed the issue of the need for expert testimony when the allegedly obscene material has been put into evidence. The Supreme Court concluded that it was not error “to fail to require ‘expert’ affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. . . . The [materials], obviously, are the best evidence of what they represent. ‘In the cases in which this court has decided obscenity questions since Roth [v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)] it has regarded the materials as sufficient in themselves for the determination of the question.’ ” (Citations omitted.) Paris Adult Theatre I v. Slaton, supra, 56.

In State v. Gagliardi, 174 Conn. 46, 381 A.2d 1068 (1977), our Supreme Court made it clear that the state must establish each and every one of the Miller’s essential elements, including the community standards, before a defendant can be found guilty of an obscenity conviction. The court also recognized that when the allegedly obscene materials were brought before the court, as in the present case, the factfinder is able to determine for itself whether the performance or material is obscene without the use of expert affirmative evidence. Id., 49. The court in Gagliardi held, however, that because the allegedly obscene performance in that case was not presented to the court, the state had the burden of offering evidence to show that it was obscene under community standards. Id.

It is clear, therefore, that because in the present case the state introduced the allegedly obscene pictures of the minor child into evidence, no expert testimony concerning whether they are in fact obscene, or what the community standards may be, was necessary. It is for the jury to decide whether the photographs satisfy the requirements of the three pronged Miller obscenity test as adopted and codified in General Statutes § 53a-193 (b) (2). Paris Adult Theatre I v. Slaton, supra. Thus, the defendant’s claim must fail.

IV

The defendant also claims that the trial court improperly instructed the jury on the charge of promoting a minor in an obscene performance. The defendant appears to complain that the trial court gave the definition of “obscene,” as contained in General Statutes § 53a-193 (a), but failed to give the jury the definition of “obscene as to minors,” as contained in General Statutes § 53a-193 (b), which is a necessary element of the crime charged. He also claims that “the jury was left with the impression that if they, as adults in the community of Connecticut feel it’s obscene, there is no obligation on the State to prove the three prongs of section 53a-193 (b) (2), specifically subsections (A), (B) and (C).” These claims are without merit.

The defendant correctly states that the trial court gave the jury the definition of “obscene” as contained in General Statutes § 53a-193 (a). That definition was correct as given, and was given by the trial court in its general description of the elements of the offense charged. The trial court then proceeded, however, to give the precise definition of “obscene as to minors” as contained in § 53a-193 (b). The trial court gave this definition to the jury not once, but twice. The defendant, therefore, is incorrect in arguing that the jury was not given the definition of “obscene as to minors.”

The defendant also claims that the trial court failed to inform the jury that the state has the burden to prove all of the elements of “obscene as to minors” beyond a reasonable doubt. The trial court, however, expressly informed the jury, on at least two separate occasions, that the state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged. “ ‘The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions. State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991).’ State v. Parris, 219 Conn. 283, 294, 592 A.2d 943 (1991).” State v. Booker, 28 Conn. App. 34, 47, 611 A.2d 878 (1992).

V

In his fifth claim, the defendant argues that the trial court improperly permitted the state to ask leading questions of V and C, who were called to the stand during the state’s case-in-chief, and that it improperly permitted V to read from her pretrial statements.

At the time of trial, V was twelve years old and C was eleven years old. Both witnesses were hesitant to testify, and had difficulty testifying in open court regarding the many sexual encounters with the defendant. “It is axiomatic that trial courts have broad discretion to allow leading questions on direct examination depending upon the circumstances of the individual case. Wright v. Blakeslee, 102 Conn. 162, 168, 128 A. 113 (1925).” Fonsworth v. Sudol, 19 Conn. App. 368, 370, 562 A.2d 578 (1989); see also C. Tait & J. LaPlante, Connecticut Evidence § 7.12.2 (d). We cannot conclude, on the basis of the record presented, that the trial court abused its discretion in permitting the state to ask leading questions of these minor witnesses, who were victims of the crimes charged and who evinced fear and hesitancy to testify.

It is also within the trial court’s discretion to decide if a witness’ recollection needs to be refreshed by a document that will stimulate her memory. State v. Boucino, 199 Conn. 207, 230, 506 A.2d 125 (1986). A witness’ memory may be refreshed by any memorandum that can, in fact, stimulate present recollection. State v. Rado, 172 Conn. 74, 79, 372 A.2d 159 (1976), cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977). If a witness is reading a document and cannot testify without it, however, her testimony should be stricken. State v. Perelli, 125 Conn. 321, 327, 5 A.2d 705 (1939).

In his brief, the defendant merely cited a few instances in which he alleges that the witness simply read from a prior statement, as opposed to using that prior statement to refresh her memory. In each of those instances, however, the witness stated that she had an independent memory of the incidents in question, which took place approximately two years prior, and thereafter fully testified about the incident. There is no evidence on the record, other than the defendant’s bald assertion, that the witness was simply reading from her prior statements. We cannot conclude, therefore, that V simply was reading from her statement without any present recollection of the incidents.

VI

The defendant next claims that the state improperly permitted eight witnesses to testify for the state under the constancy of accusation exception to the hearsay rule. Among these witnesses were the victims’ mother, three police officers involved in the investigation of this matter, a nurse and a doctor involved in the examination of the victims at the hospital, and two social workers who also were involved in this matter. The defendant argues that the cumulative prejudicial effect to the defendant of their testimony outweighed its probative value.

“[T]he constancy of accusation doctrine allows a complainant in a sexual offense case to testify that he or she informed others of the attack. These other individuals are then allowed to testify concerning the complaint made by the victim and are permitted to relate the details of the attack as the victim narrated.” State v. Saraceno, 15 Conn. App. 222, 247 n.6, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988). “A trial court’s broad discretion to exclude evidence more prejudicially cumulative than probative certainly encompasses the power to limit the number of witnesses who may be called for a particular purpose.” State v. Parris, supra, 293. “ ‘In excluding evidence on the ground that it would only be “cumulative,” care must be taken not to exclude merely because of an overlap with the evidence previously received. To the extent that evidence presents new matter, it is obviously not cumulative with evidence previously received.’ (Emphasis in original.) 2 D. Louisell & C. Mueller, Federal Evidence § 128.” Id.

Just as in State v. Parris, supra, we conclude that the constancy of accusation testimony presented in this case was not cumulative. “[E]ach item of the state’s constancy evidence, while overlapping in the sense that it related to the same incident, pertained to a different statement that the victim had made to a different person at a different point in time. Rather than prejudicially cumulative, therefore, the evidence covered new matter by demonstrating, as was its relevant purpose, that the victim previously had reported the incident she described on direct examination in a constant and consistent fashion.” Id.

The defendant also claims that two of the witnesses’ constancy of accusation testimony should have been excluded from evidence because their contact with the victims was too remote in time. This claim merits little discussion. As even the defendant recognizes, “ ‘[i]t has long been the established law of this state that delay of this nature does not affect the admissibility of the evidence, but merely presents a question for the trial court as to the weight to be given it. State v. DeWolf, 8 Conn. 93, 100 [1830]; State v. Byrne, 47 Conn. 465, 466 [1880]; State v. Sebastian, 81 Conn. 1, 6, 69 A. 1054 [1908].’ State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 (1946).” State v. Saraceno, supra, 248.

VII

The defendant’s final claim is that the trial court improperly admitted into evidence twenty-five eight by ten inch photographic enlargements of the pictures he took of one of the victims. The enlargements were made from the pictures on the photographic contact sheet found in the defendant’s house during a search after his arrest. He claims that their introduction was extremely prejudicial to him because they were so much larger than the actual photographs found in his house, which were on a single contact sheet. Both the contact sheet and the photographs were admitted into evidence to prove the defendant’s lustful desire for one of the victims, and to prove the defendant’s guilt in the eleventh count, promoting a minor in an obscene performance.

Whether to admit photographs into evidence is a decision that rests in the sound discretion of the trial court, which must take into consideration whether their value as evidence, either as tending to prove or disprove a material fact or to shed light on a material inquiry, outweighs their possible prejudicial effect. State v. DeJesus, 194 Conn. 376, 385, 481 A.2d 1277 (1984); State v. Piskorski, 177 Conn. 677, 700-701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Scuilla, 26 Conn. App. 165, 170, 599 A.2d 741 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1362 (1992). “Since the trial court exercises its broad discretion in such circumstances, its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown.” State v. Piskorski, supra, 701. Although the contact sheets were admitted into evidence, we conclude that the trial court did not abuse its discretion by admitting into evidence the enlarged photographs as well. The enlargements had added evidentiary value and shed light on a material inquiry because they allowed the jury to see the pictures better. We cannot conclude that the prejudicial effect, if any, outweighed their probative value, or that the trial court abused its discretion in permitting their admission into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of additional charges of sexual assault in the second degree and risk of injury to a child.

       The facts underlying this charge were not contained in the affidavit in support of the arrest warrant application. The issuance of the warrant, therefore, did not toll the running of the statute of limitations with respect to this offense. See State v. Almeda, 211 Conn. 441, 446-47, 560 A.2d 389 (1989).

       Because the defendant failed to present separate and independent analysis of his state constitutional claim, he is not entitled to review on that basis. State v. Steiger, 218 Conn. 349, 358 n.9, 590 A.2d 408 (1991).

       In State v. Gagliardi, 174 Conn. 46, 381 A.2d 1068 (1977), the defendant was convicted of a violation of General Statutes § 53a-194, promoting an obscene performance. Id., 48. The defendant had permitted a woman to perform a striptease dance at a bachelor party held in the rear of his cafe. Id., 47.


text:
    Linda DiNapoli v. Patricia Doudera
    (10264)
    Daly, Lavery and Freedman, Js.
    Argued May 11
    decision released June 30, 1992

      C. Michael Budlong, with whom, on the brief, was Steven R. Dembo, for the appellant (plaintiff).
   Freedman, J.

This is an appeal by the plaintiff from the judgment of the trial court, rendered after a hearing in damages, awarding to the plaintiff the net sum of $800.25 in an action brought to recover for damage to leased premises caused by the defendant. The plaintiff claims that the trial court’s findings and conclusions were contrary to the facts and evidence presented. We agree.

The pertinent undisputed facts are as follows. The plaintiff was the owner of certain residential premises located at 21 Brainard Road in West Hartford. On March 1,1988, the plaintiff and the defendant entered into a written one year lease of the Brainard Road premises for the monthly rental fee of $1500. The rent was paid by the executor of the estate of the defendant’s late husband. Prior to the defendant’s taking occupancy of the premises, the plaintiff had spent approximately $28,000 on a thorough renovation of the premises.

Soon after the defendant took possession, the plaintiff noticed that there were boxes “piled solid to the ceiling” in the garage. She also observed numerous boxes about the entire property, including a trash heap in front of the garage. The plaintiff received complaints from neighbors, as well as the town health and fire departments regarding these conditions. The defendant occupied the premises from March 1, 1988, until May 6, 1989, at which time the defendant vacated as a result of “various legal actions.”

The plaintiff commenced this action in June, 1988, for damage caused by the defendant to the Brainard Road premises. The defendant’s attorney initially appeared and filed an answer to the complaint. Subsequently, the trial court granted the defendant's attorney permission to withdraw, and the defendant thereafter entered a pro se appearance. When the defendant failed to appear at a pretrial conference, the trial court entered a default against her. The trial court ultimately conducted a hearing in damages at which the defendant did not appear.

The plaintiff was the only witness to testify at the hearing in damages. She testified about substantial damage to the premises that occurred during the defendant’s occupancy, and presented numerous photographs, paid bills, canceled checks and written estimates in support of her claim for nearly $40,000 in damages, including attorney’s fees. She indicated that the damage to the premises included broken garage doors, destroyed walls, ceilings, carpeting, kitchen floors, countertops, broken appliances and light fixtures, damaged exterior siding, and an accumulation of trash and debris in and about the premises. The plaintiff also testified about the unsanitary conditions she found inside the home. After a brief hearing, the trial court awarded to the plaintiff the net sum of $800.25 in damages.

The plaintiff appealed the judgment of the trial court and filed a motion for articulation, requesting that the trial court articulate the facts or evidence it relied on in determining its award to the plaintiff. Among the many factual determinations that the trial court articulated was that “the court has drawn the inference that the absent defendant is an emotionally troubled woman, a fact that was probably known to the plaintiff before entering into the lease agreement.” The trial court stated that “the evidence of the defendant’s unsanitary living conditions, the feces, etc., and the attempts of her priest and parishioners to assist her to organize and clean her home, suggest instability,” all of which the trial court found to be known to the plaintiff. The articulation also stated that the trial court believed “that the plaintiff was aware that this troubled defendant is the major beneficiary of an estate administered by Attorney Martin Wolman of Hartford.”

In addition, the trial court found that some of the bills submitted into evidence were “overstated,” or were “mere estimates and not bills at all,” and that as to some of the bills “there was insufficient evidence to show that these items were damages sustained by the plaintiff as a result of actions by the defendant.” As to one bill, the trial court disallowed it because, among other reasons, it believed that the estimator was not an arms length merchant because the estimate contained the following hand written notation: “Linda, Carol and I decided to pass on Mexico this time. Thanks, Ray.” The trial court then went on to enumerate the bills that it found to be “proven damages” and those which it “disallowed” in arriving at its final net figure.

“When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Cupina v. Bernklau, 17 Conn. App. 159, 161, 551 A.2d 37 (1989). “On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. . . . This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could have legally, logically and reasonably been found by the trier . . . .” Robertson v. Nationwide Ins. Co., 20 Conn. App. 635, 637, 569 A.2d 565 (1990). Where, however, some of the facts found are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. O’Bymachow v. O’Bymachow, 12 Conn. App. 113, 117, 529 A.2d 747, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987). If, when taken as a whole, “they undermine appellate confidence in the court’s fact finding process,” a new hearing is required. Id.

We have thoroughly reviewed the record in this matter, including the transcript of the hearing in damages and all of the exhibits presented to the trial court.

We find that there is no evidence from which the trial court could have found (1) that the plaintiff, before entering into the lease agreement, was aware that the defendant was an emotionally troubled woman, (2) that there were attempts by the defendant’s priest and parishioners to assist her to organize and to clean her house or, if such was the case, that it was known to the plaintiff, (3) that the plaintiff was aware that the defendant was the major beneficiary of an estate, or (4) that the bill containing the notation regarding Mexico was not an arms length transaction. These findings were substantial factors in the trial court’s articulation. Because, however, there is no evidence in the record that can reasonably be said to support them, they are clearly erroneous.

As to some of the bills submitted to the court by the plaintiff, the trial court found that they “were mere estimates” and did not allow them as items of damage because the work had not yet been performed. The plaintiff, however, only bore the burden of affording the factfinder “a sufficient basis for estimating [monetary damages] with reasonable certainty.” Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 218 Conn. 474, 477, 590 A.2d 431 (1991). Damages may be based on reasonable and probable estimates. Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553 (1973). The trial court, therefore, improperly excluded the estimates from its determination of damages.

At least some of the factual findings made by the trial court upon which its award of damages was substantially based were clearly erroneous. Moreover, contrary to the conclusion of the trial court, damages may be based on reasonable and probable estimates.

The judgment is reversed and the case is remanded for a new hearing in damages.

In this opinion the other judges concurred.

       The judgment file shows the net amount of damages to be $50.25. The original memorandum of decision filed by the trial court arrived at this net figure as follows:

        Money spent to rectify damage $3463.25
      15 percent Attorney’s fee 520.00
      Sheriff’s fee 1317.00
      TOTAL $5300.25
      Security deposit credit $5250.00
      Net to plaintiff $50.25
      The articulation filed by the trial court states, however, that “[a]fter reviewing the bills, claims and the lease, the court finds it erroneously omitted an item concerning gardening costs. They [sic] did not at first realize that the defendant’s lease required her to also pay for gardening costs. Therefore, the judgment is corrected to show further damages of $750 or, $4213.25.” We, therefore, use the amount of $800.25 as the net damages awarded to the plaintiff.

       The plaintiff’s brief states that she obtained possession of the premises by virtue of an order of the Superior Court, Housing Session. In the hearing in damages, this was referred to as “various legal actions.” The manner in which the plaintiff obtained possession is, however, of no importance to our resolution of this matter.

       See footnote 1, supra.


author: Dupont, C. J.

text:
    Angelina Imbrogno v. Stamford Hospital et al.
    (10550)
    Dupont, C. J., Foti and Lavery, Js.

      Argued April 2
    decision released June 30, 1992

      Philip M. French, for the appellant (plaintiff).

      Jason M. Dodge, for the appellees (defendants).
   Dupont, C. J.

The plaintiff appeals from a decision of the compensation review division affirming a January 5, 1990 finding and award by the workers’ compensation commissioner. We affirm the decision of the compensation review division on all issues except the failure to award interest on the medical bills for which payment was ordered by the commissioner.

On September 15,1979, the plaintiff and the defendant employer had a contract of employment. Their employment relationship was subject to the Connecticut Workers’ Compensation Act, as amended. General Statutes §§ 31-275 through 31-355a. The defendant employer insured its full compensation liability with the defendant insurer, Aetna Life and Casualty Company. On September 15, 1979, the plaintiff sustained an accidental injury to her left, nonmaster forearm, which injury arose out of and in the course of her employment. Following the accident, the plaintiff received workers’ compensation payments until approximately sometime in December, 1982, at which time the payments were stopped by the defendants.

The cessation of the workers’ compensation payments in 1982 prompted formal hearings and argument before the commissioner that concluded in 1987 with a finding and award dated May 11, 1987. The central focus of those hearings and the 1987 decision was the interplay between the plaintiff’s deteriorating mental status brought about by the 1979 injury and certain unrelated surgery performed on her in February, 1982. The plaintiff argued that her psychiatric disability was a direct and proximate result of her September, 1979 compensable injury. The defendants contended that they are not obligated to pay for any psychiatric treatment or total disability benefits after February, 1982, due to the intervening and unrelated surgery. In his 1987 finding and award, the commissioner concluded that the plaintiff is totally disabled due to posttraumatic stress disorder. The commissioner further found that, although the plaintiff developed a conversion hysteria disorder as a result of her 1979 compensable injury, this condition did not render her totally disabled. Rather, the commissioner concluded, “the basis for the claimant’s total disability [the posttraumatic stress disorder] is the cervical surgery [an anterior cervical fusion at C4-C5 and excision of the C4-C5 disc] performed upon her by Dr. [Allen] Chamberlin on February 24, 1982,” which surgery “was unrelated to her September 15,1979 left arm injury, and that such surgery was unjustified insofar as it may relate to said compensable left arm injury.” The 1987 finding and award made the defendants liable for all psychiatric care for the plaintiff made necessary as a result of the conversion hysteria disorder, “the full extent of which is limited to such care as will restore her to the point where her mental status was prior to her cervical surgery on February 24, 1982.” Accordingly, the finding and award did not provide for any additional temporary total disability benefits. The commissioner made no findings on the issue of the plaintiff’s eligibility for permanent partial (specific) benefits for the injury to her left arm, leaving the matter undecided. The commissioner also left undecided the issues of liability for outstanding medical bills, interest and attorney’s fees, and the acceptance or denial of Form 36.

The plaintiff attempted to obtain review of the commissioner’s May 1987 finding and award. Her appeal to the compensation review division, however, was determined to be untimely. The review division did review the commissioner’s denial of her timely filed request for modification and reopening, concluding that there was no basis to overrule the commissioner’s action. The review division also granted the plaintiff’s motion to compel the defendants to comply with that portion of the commissioner’s award that requires the defendants to provide psychiatric care to the plaintiff sufficient to restore her to her mental status before the 1982 cervical surgery. See Imbrogno v. Stamford Hospital, 5 Conn. Workers’ Comp. Rev. Op. 99 (1988). No further appeal was taken.

Further formal hearings and argument before the commissioner took place in 1989. On January 5,1990, the commissioner issued a second finding and award which addressed the issue of the defendants’ liability for the payment of various outstanding bills pertaining to medical and psychiatric treatment provided to the plaintiff by a number of medical providers between 1979 and 1988. The commissioner ordered the defendants to pay certain bills that were not disputed by them and to pay the undisputed portion of certain other bills. For the most part these bills were incurred prior to February 24,1982, with the exception of bills for ongoing psychiatric treatment. With regard to those bills that were totally contested by the defendants, the commissioner concluded that “the claimant has not sustained her burden of proof in showing that such bills were by authorized medical providers and/or being reasonable and necessary,” and denied liability. The commissioner further ordered that the defendants pay a reasonable attorney’s fee of $1000 to the plaintiff’s counsel for their undue delay in the payment of the undisputed bills for which payment was ordered. No interest was awarded to the plaintiff arising out of the defendants’ undue delay in the payment of the bills.

The plaintiff appealed the 1990 finding and award to the compensation review division. On August 2, 1991, the review division concluded that the commissioner’s factual conclusions regarding the disputed claims for payment of medical expenses were reasonable. The review division also concluded that the amount of attorney’s fees awarded by the commissioner was a proper exercise of discretion and, therefore, affirmed the January 5, 1990 finding and award. See Imbrogno v. Stamford Hospital, 9 Conn. Workers’ Comp. Rev. Op. 174 (1991). This appeal followed.

On appeal, the plaintiff contends that the commissioner and the compensation review division did not properly analyze the underlying facts and the prior decisions in the case. She argues that she is entitled to disability payments and full payment for treatment for both the physical and psychiatric injuries. Specifically, she claims that (1) temporary total disability benefits should be paid by the defendants subsequent to the December, 1982 cutoff date, with permanent awards to follow when shown to be due, (2) bills for all medical treatment (except those for the unauthorized cervical fusion of February 24,1982) should be paid by the defendants, (3) attorney’s fees for all work in this case by plaintiff’s counsel should be paid by the defendants, and (4) interest should be paid on all of the foregoing.

Our standard of review in workers’ compensation appeals is well settled. “The commissioner has the power and duty to determine the facts and his conclusions must stand unless incorrectly drawn from the subordinate facts, illegal or unreasonable. . . . The compensation review division must review the appeal on the record and must not retry facts.” (Citations omitted.) Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466, 573 A.2d 770, cert. denied, 216 Conn. 804, 577 A.2d 716 (1990). Affording the plaintiff’s claims the appropriate standard of review, we conclude that the compensation review division properly affirmed the determination of the commissioner on all issues except the failure to award interest on the medical bills for which payment was ordered by the commissioner.

Temporary Total Benefits

Although the issue of temporary total disability benefits is not discussed in the commissioner’s 1990 finding and award, the commissioner addressed the subject of the claim for temporary total benefits during the course of the formal hearings. He concluded that further contest of that issue by the plaintiff was precluded by his 1987 finding and award. See footnote 2, supra. We agree that the commissioner’s 1987 decision, which became final in 1988, precluded further contest of the issue of temporary total benefits in the subsequent proceeding that is the basis of this appeal.

“The adjudications and awards of compensation boards or commissions, as well as the judgments of courts, in proceedings for the recovery of compensation, are generally held to be conclusive upon the parties and their privies, as to the matters and issues involved or justiciable therein, so as to preclude, under the doctrine of res judicata, the relitigation thereof in subsequent proceedings.” 82 Am. Jur. 2d, Workmen’s Compensation § 583, p. 304. In 1987, the commissioner determined that the plaintiffs disability was psychiatric in nature and was caused by the cervical surgery performed upon her on February 24,1982, which surgery was unrelated to her 1979 compensable injury. Consequently, temporary total disability benefits were denied on the basis of an intervening event, unrelated to the compensable injury, which broke the chain of causation linked to the original, compensable injury. See Dehron v. Clark, 122 Conn. 592, 191 A. 526 (1937); Lemieux v. Highland Dairy Co., Inc., 121 Conn. 483, 185 A. 433 (1936); J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985), p. 45; 1 A. Larson, Law of Workmen’s Compensation (1985) § 13.11 (a).

The plaintiff attempts to avoid the preclusive effect of the prior determination by arguing that, when the review division affirmed the 1987 decision of the commissioner in 1988, there remained several unresolved issues in the case, namely, her entitlement to specific benefits and her entitlement to payment of outstanding medical bills. In fact, in its 1988 opinion, the review division specifically noted that the commissioner “left undecided the other issues, i.e. permanent partial disability, attorney’s fees and interest due to unreasonable contest, and acceptance or denial of Form 36.” The claimant asserts that because these issues remained to be decided, the denial of temporary benefits was not final for purposes of appeal.

The plaintiffs appeal to the compensation review division from the 1987 decision of the commissioner, and the review division’s decision in 1988 pertained to the commissioner’s decision that concluded that she was not entitled to ongoing temporary total disability benefits. Any further proceedings after the 1988 decision of the compensation review division would not alter the prior determination that the plaintiff’s total psychiatric disability was causally related to a noncompensable event and that she was not entitled to temporary total disability benefits after February, 1982. Unlike in Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 578 A.2d 129 (1990), relied on by the plaintiff, the compensation review division did not remand the case to the commissioner for further proceedings. Also, the issues involved in the additional proceedings before the commissioner in 1989 and the appeal therefrom to the review division in 1990 were conceptually distinct from those involved in the initial appeal.

This case is also unlike Pokorny v. Getta’s Garage, 219 Conn. 439, 594 A.2d 446 (1991). There, a prior decision of the compensation review division upholding a workers’ compensation commissioner was not deemed to be a final judgment because additional hearings on the issue, which was the subject of the later appeal, were contemplated by the commissioner’s original determination. Here, the upholding by the compensation review division of the denial by the commissioner of temporary benefits was final for purposes of appeal because no further hearings on that subject were envisaged.

Accordingly, the plaintiffs failure to appeal from the 1988 decision of the compensation review division pursuant to General Statutes § 31-301b or to reserve her right to appeal from that decision pursuant to Practice Book § 4002 precludes her from now challenging the basis for the 1988 decision. New Haven v. New Haven Police Union Local 530, 210 Conn. 597, 606-607, 557 A.2d 506 (1989). “Any decision of the compensation review division, in the absence of an appeal therefrom, shall become final after a period of twenty days has expired from the issuance of notice of the rendition of judgment or decision.” General Statutes § 31-301a.

Because the issue of the plaintiffs entitlement to temporary total disability benefits was finally and fully resolved in the prior proceedings in 1988, further contest of the issue was precluded in the subsequent proceedings in 1989 and 1990 that are the subject of this appeal. The compensation review division, therefore, properly affirmed the commissioner’s refusal to address the issue of the claim for temporary total benefits.

Outstanding Medical Bills, Attorney’s Fees and Interest

The plaintiff next argues that the compensation review division’s review of the commissioner’s decision regarding payment of medical bills, attorney’s fees and interest was fundamentally flawed in that it rested on a misunderstanding of the 1987 findings and award. The review division’s 1991 decision which is the subject of this appeal contains the following background discussion: “The May 11,1987 ruling concluded claimant developed a conversion hysteria due to her left arm injury, and she was granted payment for treatment of that condition until February 24, 1982. On that date, cervical surgery unrelated to the arm injury occurred. This caused worsening of claimant’s medical state. The May 11,1987 decision did not order payment for treatment of that condition after February 24, 1982.” (Emphasis added.) The plaintiff argues that this last sentence refers to her psychiatric condition and is directly contrary to the conclusion reached by the commissioner in 1987.

We conclude that the challenged sentence is ambiguous. The “condition” referred to therein could be either the further deteriorated and disabling psychiatric condition that resulted from the cervical surgery or the earlier conversion hysteria that was found to be causally related to the compensable injury. Only the latter condition was compensable. Because a public official is presumed to have performed his duty properly unless the contrary appears; Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985); Miller v. Miller, 22 Conn. App. 310, 314, 577 A.2d 297 (1990); we will interpret the sentence to exclude payment for treatment of only the former condition, and not the latter condition as is suggested by the plaintiff. Furthermore, the plaintiff has failed to show that the challenged sentence affected the compensation review division’s review of the commissioner’s decision or otherwise requires that we remand the matter to the review division for further consideration. See Boulay v. Waterbury, 27 Conn. App. 483, 486-87, 607 A.2d 450 (1992).

The commissioner denied liability for various medical bills not because of the dates of treatment but because the plaintiff had not shown that the treatment involved was provided by authorized medical providers and was reasonable and necessary in light of her compensable injuries. This is a fact bound determination that we will not disturb on appeal. Hicks v. Department of Administrative Services, supra. The commissioner further limited the recovery of attorney’s fees to those issues on which the plaintiff had prevailed. It is within the commissioner’s discretion whether to award a fee and how much to award. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179-80 n.8, 355 A.2d 227 (1974); Menzies v. Fisher, 165 Conn. 338, 349, 334 A.2d 452 (1973).

With regard to the issues of medical bills and attorney’s fees, the plaintiff does little more than attack the commissioner’s findings of fact. The compensation review division properly reviewed the appeal on the record and did not retry the facts. Hicks v. Department of Administrative Services, supra. Our review of the record indicates that the review division properly con-eluded that the commissioner made a reasonable finding and award regarding the medical bills and the attorney’s fees based on the evidence presented.

The plaintiff’s claim to interest on the medical bills that the commissioner ordered the defendants to pay presents a different matter, however. The commissioner determined that there had been an undue delay by the defendants in the payment of the undisputed bills and in the payments of the undisputed portions of other bills for which they were made liable. This was the basis of the commissioner’s discretionary award of attorney’s fees pursuant to General Statutes § 31-300. The commissioner failed to award interest on these amounts also after making a finding of delay due to the fault or neglect of the defendants sufficient to justify an award of attorney’s fees. Cf. Pokorny v. Getta’s Garage, 22 Conn. App. 539, 542-44, 579 A.2d 98 (1990), rev’d on other grounds, 219 Conn. 439, 594 A.2d 446 (1991). Because the commissioner found that there was a delay due to the fault or neglect of the defendants that warranted a discretionary award of attorney’s fees, an award of interest should also have been made. We read the words of § 31-300, “may include in his award interest .. . and a reasonable attorney’s fee,” to allow a discretionary award of both interest and attorney’s fees or neither, but not to allow an award of one and not the other. Accordingly, we must remand the case for a further award of interest pursuant to § 31-300, on those medical bills for which the commissioner found payment by the defendants to have been unduly delayed.

Permanent Partial (Specific) Benefits

Both parties correctly recognize that the commissioner has yet to make any findings and award with respect to the plaintiff’s entitlement to permanent partial benefits, pursuant to General Statutes § 31-308, for the compensable injury to the plaintiffs left arm. Decision on that issue was specifically reserved in the 1987 findings and award. The subject was not addressed in the 1990 findings and award. Consequently, final administrative determination of claimant’s entitlement to these benefits must await further proceedings before the workers’ compensation commissioner.

The decision is reversed only as to the failure to award interest and the case is remanded to the compensation review division with direction to calculate the appropriate amount of interest due the plaintiff on the medical bills for which the commissioner found payment by the defendants to have been unduly delayed.

In this opinion the other judges concurred.

       See footnote 4, infra.

       In addition to the matter of outstanding medical bills and attorney’s fees, the workers’ compensation commissioner addressed other issues orally during the course of the 1989 formal hearings. At the hearings, the workers’ compensation commissioner noted that his 1987 finding and award had determined that “[t]he Aetna is not liable for the total disability. They are liable, rather, for the payment of reasonable psychiatric bills to, in effect, take care of [the plaintiff] the way she was prior to the [1982] surgery.” The commissioner determined that his prior decision had resolved the issue of the plaintiff’s eligibility for temporary total disability benefits based on her psychological condition, precluding further contest of the issue. The commissioner also noted that the issue of any specific or permanent disability award for the injury to the plaintiff’s left arm was not yet ripe for review as the plaintiff had not yet responded to the defendants’ tender of a voluntary agreement for a 100 percent injury to the arm with a December, 1982 date of maximum medical improvement because the plaintiff had believed that the issue of temporary total benefits was still part of the case.

       The relevant portions of the May 11, 1987 finding and award are as follows:
      “6. The claimant is presently totally disabled due to Post Traumatic Stress Disorder, however both the claimant and the respondents attribute different reasons for her disability.
      “7. The claimant contends that her current psychiatric disability is a direct proximate cause of her compensable injury of September 15, 1979, that she has not yet reached maximum medical improvement, that she has outstanding medical bills in excess of $40,000.00 and that she will require ongoing future medical and psychiatric care as a result of said accident; and that she is entitled to all payments retroactive to the time they ceased being paid in late 1982.
      “8. The respondents claim that the claimant injured her left arm in 1979, and they paid benefits to the claimant in connection with said injury; that certain treatment rendered to the claimant was unrelated to the left arm injury of September 15, 1979, which treatment includes, inter alia, cervical surgery; that they are not responsible for any psychiatric treatment or total disability benefits.
      “9. Testimony offered by the claimant’s daughter and niece indicates that the claimant’s mental status changed significantly following the accident.
      “10. It is found that the claimant developed a conversion hysteria as a result of said accident, but she was still able to function.
      “11. As a result of the cervical surgery, the claimant’s personality changed further, she continued to deteriorate, become sadder, do less work around the house than prior to said surgery, and ultimately was diagnosed as suffering from a Post Traumatic Stress Disorder by Dr. J.A. Camacho-Pantoja, a psychiatrist.
      “12. It is found that the basis for the claimant’s total disability is the cervical surgery performed upon her by Dr. Chamberlin on February 24, 1982.
      “13. It is further found that the cervical surgery performed upon the claimant was unrelated to her September 15,1979 left arm injury, and that such surgery was unjustified insofar as it may relate to said compensable left arm injury.”

       Form 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes §§ 31-296, 31-296a, 31-300.
      At the subsequent proceedings, which are the subject of this appeal, the defendants argued that because they had filed a Form 36 before the commissioner’s initial decision and the commissioner concluded that their liability for temporary total disability benefits had ceased, any Form 36 issue had become moot. The plaintiff did not dispute this, and the commissioner agreed that his prior decision had resolved the issue of the approval of the Form 36.

       General Statutes § 31-30 lb provides: “Any party aggrieved by the decision of the compensation review division upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review division to the appellate court.”

       Practice Book § 4002 (a) provides in pertinent part: “A judgment disposing of certain of the issues between the parties ... in such a manner as to be final but not terminating the litigation . . . may be treated as a final judgment for the purpose of an appeal by the party or parties against whom the judgment is rendered, notwithstanding that the cause remains undisposed of on other issues .... but the party or parties may, at their option, reserve their appeal until the final judgment is rendered which disposes of the cause for all purposes . . . provided, in such a case, that notice of such reserving of appeal shall be filed in the trial court . . . within twenty days after issuance of notice of the rendition of the judgment disposing of part of the issues.”

       In paragraph fourteen of the 1987 findings and award, the commissioner “found that [the claimant’s] conversion hysteria is a condition for which Workers’ Compensation benefits may be available, and although not specifically addressed in this matter, there is sufficient evidence for me to conclude that the respondents are liable to provide psychiatric care to the claimant, the full extent of which is limited to such care as will restore her to the point where her mental status was prior to her cervical surgery on February 24, 1982.”
      In its 1988 decision, the compensation review division made specific mention of paragraph fourteen and required the defendants “to provide psychiatric care sufficient to restore claimant to her mental status before the 1982 cervical surgery.”

       General Statutes § 31-300 provides in pertinent part: “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.”