text:
    State of Connecticut v. Carlos Rivera Hernandez
    (10167)
    Dupont, C. J., Lavery and Freedman, Js.

      Argued April 29
    decision released July 7, 1992

      Richard L. Zayas, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, Paul Murray, senior assistant state’s attorney, and Russell L. Case, law student intern, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent in violation of General Statutes §§ 21a-278 (b) and 53a-8, and conspiracy to distribute narcotics in violation of General Statutes §§ 21a-277 (a) and 53a-48. The defendant received a total effective sentence of seventeen years imprisonment. He claims that the trial court improperly (1) admitted into evidence statements of a nontestifying coconspirator, (2) denied his motion for judgment of acquittal, (8) denied his constitutional right to trial by a jury because of the brief duration of the jury deliberations, and (4) admitted into evidence the headrest of his car. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. Officer Wayne Rautenberg is a member of both the Manchester Police Department and the Tri-Town Narcotics Task Force. At approximately 5:15 p.m. on March 21,1989, Rautenberg received a telephone call from Juan “Junior” Manso, who wanted to arrange a sale of cocaine to Rautenberg. Manso had received Rautenberg’s telephone number, a special number at the police station used for undercover narcotics operations, from a police informant working with Rautenberg to arrange undercover drug buys. During the conversation, Manso told Rautenberg that he wanted to meet him at a certain Roy Rogers restaurant in Manchester. The restaurant was located close to Interstate 84 and adjoined a shopping center in which there was a Bonanza Restaurant.

Approximately thirty minutes later, Manso called Rautenberg a second time to advise him that he would be wearing a green and white baseball cap and a blue coat. Manso told Rautenberg that he would be in “the guy’s” car. During this second telephone conversation, Manso repeatedly referred to “the guy” or “my guy.” Rautenberg understood Manso’s references to “the guy” to mean the owner of the cocaine. They finally agreed on a sale of two ounces of cocaine for $2200.

Rautenberg set out with a team of surveillance personnel to meet Manso and “the guy” at the designated location. He had $2200 in bills photographed for identification, and he was equipped with a transmitting device so that surveillance officers were able to hear and to see the drug transaction. Three officers in a van arrived first and parked in the Roy Rogers parking lot. Officer Joseph Morrissey arrived at the scene in a Honda Accord and parked across the street from Roy Rogers. Officer Earl Leighton was at a nearby gas station. Two other officers, Detective Michael Morrissey and Officer Paul Lombardo, watched from another unmarked vehicle beyond the gas station.

At approximately 6:25 p.m., a gray Nissan Maxima driven by the defendant exited the highway and circled the Roy Rogers parking lot. With the defendant were Manso and Sigfredo Diaz, who were looking all around as they drove through the parking lot. The defendant drove around the area, including nearby parking lots, and then returned to the Roy Rogers lot at which Rautenberg had arrived. Manso then got out of the defendant’s car, walked over to Rautenberg and entered his car. Rautenberg showed Manso the cash and asked to see the cocaine. Manso told him that “the guy” did not want to complete the transaction in that lot. Because of the surveillance team, Rautenberg refused to move to another location.

Manso went back to the defendant’s car and, following a brief conversation with the defendant, returned to Rautenberg’s car. When Manso left the defendant’s car, the defendant drove to the adjoining shopping center. He let Diaz out of the car in front of Bonanza, and then proceeded to drive in and out of a few parking spaces in the lot. Diaz walked back toward Manso and Rautenberg, looking intently inside all passing vehicles.

Meanwhile, Manso had reentered Rautenberg’s car and handed him a bag containing a white substance in exchange for $2200. Tests conducted later indicated that the white substance was 90.8 percent cocaine. Rautenberg asked to meet “the guy” in the other car, but Manso told him that “the guy” did not want to meet him. Manso also told Rautenberg that if he wanted to do another transaction, he would have to work through Manso. Manso then left Rautenberg’s car and walked back toward Bonanza. On the way he met Diaz. They appeared pleased, as they were slapping hands and conversing happily.

As soon as Manso and Diaz joined the defendant they were surrounded by the police. During a search of the defendant’s car, the police found that the headrest on the driver’s seat had a secret compartment.

The defendant first claims that the trial court improperly admitted the statements of Manso, who did not testify at trial, under the coconspirator exception to the hearsay rule. Specifically, he claims that there was insufficient evidence of a conspiracy to warrant the admission of Manso’s statements as those of a coconspirator. The defendant, however, failed to object to the court’s finding that the state had established a prima facie case of conspiracy to warrant the statements’ admission. He also failed to object when the state elicited Manso’s hearsay statements from Rautenberg. In order to obtain review of this claim, therefore, the defendant must satisfy the four-prong test for reviewability of unpreserved constitutionally based claims set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant can prevail only if the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id.

The defendant argues that the admission of the non-testifying coconspirator’s statements violated his constitutional right to confront the witnesses against him as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. “[I]t is well established that a coconspirator’s statement, made while the conspiracy is ongoing and in furtherance of the conspiracy, is an exception to the hearsay rule and as such, does not violate the confrontation clause. State v. Spencer, 198 Conn. 506, 513, 503 A.2d 1165 (1986); State v. Vessichio, 197 Conn. 644, 654-55, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).” State v. Pelletier, 209 Conn. 564, 577, 552 A.2d 805 (1989).

Here, the statements in question were those made by Manso to Rautenberg during the two telephone calls preceding the drug transaction and the statements made to Rautenberg during the transaction. As such, it is clear that they were made during and in furtherance of the conspiracy. They were admitted as an exception to the hearsay rule and thus did not violate the defendant’s confrontation rights. State v. Pelletier, supra, 578.

Because no constitutional right of the defendant was violated by the admission of Manso’s statements under the coconspirator exception to the hearsay rule, and because the defendant failed to preserve a claim challenging the evidentiary ruling of the trial court, he is not entitled to review of this claim under State v. Golding, supra. The defendant has merely placed a constitutional tag on a nonconstitutional issue. State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991); State v. Harvey, 27 Conn. App. 171, 183, 605 A.2d 563 (1992).

The defendant next claims that the trial court improperly denied his motion for judgment of acquittal made at the close of the presentation of the evidence. He claims that there was insufficient evidence to send the case to the jury because all the state had proved was that he had driven the car in which Manso arrived at and departed from the scene.

“ ‘It is well established that in reviewing a claim of insufficient evidence, a two-part inquiry is undertaken. “We first review the evidence presented at the 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. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citations omitted.) State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).’ State v. Gray, 221 Conn. 713, 719-20, 607 A.2d 391 (1992).” State v. Booker, 28 Conn. App. 34, 42, 611 A.2d 878 (1992). Applying that standard to this case, we conclude that the jury could reasonably have concluded that the defendant was guilty of the crimes charged.

In the first count, the state charged the defendant with the crime of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), which prohibits the sale or distribution of narcotics by a person who is not drug-dependent. Specifically, the trial court instructed the jury that it could convict the defendant if it found that he intentionally aided Manso in the sale of narcotics. General Statutes § 53a-8.

The parties stipulated that the substance sold by Manso to Rautenberg was cocaine, a narcotic substance. The sole issue for the jury, therefore, was whether the defendant intended to sell cocaine to Rautenberg. There was more than enough direct and circumstantial evidence from which the jury could have concluded that the defendant was guilty. Manso told Rautenberg that he would arrive in “the guy’s car,” and arrived at the scene in the defendant’s car. The surveillance team observed the defendant and his passengers looking about as they arrived in the Roy Rogers parking lot, a fact from which the jury could reasonably have inferred that they were looking for police. When Rautenberg refused Manso’s request to go to another location to complete the transaction, Manso returned to the defendant’s car and then returned to Rautenberg to complete the transaction. From these actions, the jury reasonably could have inferred that Manso received the defendant’s permission to complete the transaction. After Manso left the defendant’s car the second time, the defendant drove across the street and dropped off Diaz at a location from which Diaz could observe the transaction and also be on the lookout for police. The defendant then continued into the parking lot, periodically moving from space to space. From these actions, the jury reasonably could have inferred that the defendant knew Manso was selling cocaine to Rautenberg, and that he and Diaz were on the lookout while Manso completed the transaction. Furthermore, Manso returned to the defendant’s car immediately after completing the transaction with Rautenberg. We conclude that there was more than sufficient evidence from which the jury could have concluded, beyond a reasonable doubt, that the defendant was guilty of a violation of General Statutes § 21a-278 (b).

In the second count, the state charged the defendant with conspiracy to sell narcotics in violation of §§ 21a-277 and 53a-48. “To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992). To prove the offense of conspiracy to sell narcotics, the state must prove two distinct elements of intent: that the conspirators intended to agree; and that they intended to sell narcotics to another person. “While the state must prove an agreement, the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . .” (Internal quotation marks omitted.) Id., 772.

There was sufficient evidence to allow the jury to conclude that the state proved beyond a reasonable doubt that the defendant and Manso conspired to sell narcotics. From their actions, the jury could have concluded beyond a reasonable doubt that the two agreed and intended to sell narcotics to Rautenberg, and that Manso sold the cocaine to Rautenberg in furtherance of that agreement. Manso’s repeated references to “the guy” and “my guy” indicated that Manso was conspiring with someone to sell cocaine, and from the evidence presented, the jury reasonably could have concluded that the defendant was “the guy” to whom Manso referred. Furthermore, Manso told Rautenberg that he would be in “the guy’s car,” and he arrived in the defendant’s car. Manso returned to the defendant’s car and had a conversation with the defendant after Rautenberg refused to go elsewhere to complete the transaction when Manso told him that “the guy” wanted to go elsewhere to complete the sale. After Manso’s conversation with the defendant, he returned to Rautenberg and completed the sale.

The defendant’s third claim is that he was effectively denied his constitutional right to a trial by jury because the jury deliberated only five to seven minutes before returning its guilty verdict. He claims that it was impossible for the jury to have acted on the complicated issues of law and weak evidence presented in this case to reach a result in so short a time. This claim is without merit.

The right to a jury trial is guaranteed by the fifth and sixth amendments to the United States constitution and article first, § 19, of the Connecticut constitution. There is, however, no established rule of law requiring a jury to deliberate for any particular period of time. United States v. Penagaricano-Soler, 911 F.2d 833, 846 (1st Cir. 1990); United States v. Anderson, 561 F.2d 1301, 1303 (9th Cir. 1977) (per curiam), cert. denied, 434 U.S. 943, 98 S. Ct. 438, 54 L. Ed. 2d 304 (1977); United States v. Brotherton, 427 F.2d 1286, 1289 (8th Cir. 1970); Wall v. United States, 384 F.2d 758, 762 (10th Cir. 1967); Kimes v. United States, 242 F.2d 99, 100-101 (5th Cir.), cert. denied, 354 U.S. 912, 77 S. Ct. 1299, 1 L. Ed. 2d 1429 (1957). Ordinarily, in the absence of a claim of external influence or juror misconduct, a court will not inquire into a jury’s deliberative process. United States v. Sblendorio, 830 F.2d 1382, 1389 (7th Cir. 1987). Here, the defendant makes no claim that the jury was influenced by some external influences. His claim is simply that the jury did not deliberate long enough. The length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict. In fact, the length of time of the jury’s deliberations is a double-edged sword. A short deliberation, rather than being indicative of a lack of diligence, may in fact attest to the strength of the state’s case. Absent a claim of external influence or juror misconduct, therefore, we will not interfere with the jury’s verdict.

Finally, the defendant claims that the trial court improperly admitted into evidence the headrest with the secret compartment that had been attached to the driver’s seat in the defendant’s car. The defendant argues that the headrest was irrelevant because nothing was found in the secret compartment, and that its prejudicial effect outweighed its probative value.

“Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in determination of the issue. . . . The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” (Citations omitted; internal quotation marks omitted.) State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). “Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . The aggrieved party, therefore, assumes a heavy burden when seeking to reverse the exercise of judicial discretion.” (Citations omitted; internal quotation marks omitted.) State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984).

The headrest was relevant to the crimes charged because one of the investigating officers testified that it is common for drug dealers to hide narcotics in hidden compartments within a car to avoid their discovery if the occupants of the car are apprehended by law enforcement authorities. The fact that nothing was found in the compartment does not render the headrest irrelevant. “The possession by the defendant of a[n] . . . implement of crime is relevant even though there is no evidence that it was used in the commission of any particular crime, but there must be evidence that some crime was committed.” 1 F. Wharton, Criminal Evidence (14th Ed.) § 151, p. 619.

The defendant also argues that its prejudicial effect outweighed its probative value. “There are situations where the potential prejudicial effect of relevant evidence would suggest its exclusion. These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it. McCormick, Evidence (2d Ed.) § 185, pp. 439-40.” State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). None of these situations exists in this matter. The defendant merely makes a bald assertion that the headrest’s admission was likely to arouse the jury’s emotions of hostility against him by influencing the jury into believing that he is a drug dealer. We disagree. “Evidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging. ... All evidence adverse to a party is, to some degree prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten injustice if the evidence were to be admitted.” (Citations omitted.) Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also asks us, in the alternative, to review this claim under the plain error doctrine. Practice Book § 4185. The plain error doctrine, however, “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 . . . and results in an unreliable verdict or miscarriage of justice.” (Citations omitted; internal quotation marks omitted.) State v. Polanco, 26 Conn. App. 33, 39, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991). Because the defendant’s claim fails to raise such an issue, plain error review is not warranted.

       Because the defendant has provided no separate analysis under his state constitutional claim, we need not consider it. State v. Mooney, 218 Conn. 85, 89 n.5, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). Our “declination, however, does not mean that we are not able to review [a state constitutional claim] if we choose to do so.” State v. Geisler, 25 Conn. App. 282, 284 n.2, 594 A.2d 985 (1991), aff’d, 222 Conn. 672, 610 A.2d 1225 (1992).

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Turner Construction Company v. Eppoliti, Inc.
    (10350)
    Norcott, Landau and Heiman, Js.
    Argued April 6
    decision released July 7, 1992

      Richard L. Abramson, pro hac vice, with whom, on the brief, was Stefan Underhill, for the appellant (plaintiff).

      Allan J. Kleban, with whom, on the brief, was Ronald F. Ochsner, for the appellee (defendant).
   Heiman, J.

Turner Construction Company (Turner), the plaintiff in this commercial dispute, appeals from the trial court’s judgment compelling arbitration. It claims that the trial court improperly (1) determined that the question of whether certain disputes between the parties are arbitrable must be answered by an arbitrator rather than by the court, (2) compelled it to arbitrate certain disputes that have been decided conclusively under the express terms of the contract, and (3) determined that the parties agreed to arbitrate certain disputes in the event that Turner unreasonably delayed issuing a written decision on them. We affirm the trial court’s judgment.

The following undisputed facts are pertinent to our disposition of this case. In September, 1988, Turner entered into a contract with Yale University by which Turner agreed to construct the Center for Molecular Medicine/Sterling Power Plant. On August 1, 1989, Eppoliti, Inc. (Eppoliti), the defendant, entered into a subcontract with Turner under which Eppoliti agreed to perform masonry work on the project. The subcontract contains a dispute clause that provides a mechanism for resolving disagreements arising out of the subcontract. The dispute clause provides in pertinefit part: “Any dispute arising at any time under this Subcontract which is not disposed of by agreement . . . or by submission of a joint claim by Turner and Subcontractor to Owner under Disputes Procedures set out in the Prime Contract, shall be decided in the first instance by Turner who shall reduce its decision to writing without unreasonable delay and mail or deliver three (3) copies thereof to the Subcontractor. The decision of Turner shall be final and conclusive unless, within thirty (30) days from the date of receipt hereof, the Subcontractor mails or delivers to Turner a written notice of rejection, in which event the decision of Turner shall not have further effect . . . and either party may have the dispute, and the subject matter thereof finally settled by arbitration, per section 7.9 of the General Conditions .... In the event that Turner fails to make a decision as aforesaid on any dispute within thirty (30) days after having been requested to do so by the Subcontractor, then Turner shall no longer have the right to make such decision on the dispute . . . .” Section 7.9 of the general conditions is the section of the contract between Turner and Yale that provides for the arbitration of disputes.

During the course of the construction project, Eppoliti sought change orders from Turner granting Eppoliti additional compensation to cover the costs of winter weather protection, cold weather protection losses, animal room level production losses and wage increases. In January, 1990, Turner issued a change order for Eppoliti’s furnishing winter weather protection. At a May 17, 1990 meeting, the parties agreed that Eppoliti would submit all of its unresolved requests for additional compensation to Turner in writing and that Turner would respond with a written decision on the requests. Eppoliti submitted unresolved claims for cold weather protection losses, animal room level production losses and wage increases by letter dated May 25, 1990. On June 22, 1990, Eppoliti received Turner’s letter denying each claim. Eppoliti informed Turner of its disagreement with Turner’s refusal to provide additional compensation by letter dated August 14, 1990.

Similarly, a dispute arose between the parties regarding Eppoliti’s request for additional compensation for installing thru-wall flashing. The parties exchanged correspondence in which Eppoliti asserted its entitlement to additional compensation, Turner denied the request and Eppoliti expressed its disagreement with Turner’s denial.

Eppoliti filed with the American Arbitration Association (association) a demand for arbitration of the aforementioned claims as well as additional claims not submitted to Turner previously. Turner requested the association to dismiss the arbitration due to Eppoliti’s failure to satisfy the preconditions to arbitration contained in the parties’ subcontract. The association responded that it would continue to administer the arbitration absent a court order staying the arbitration proceedings.

Turner then filed a motion for a preliminary injunction in the Superior Court, seeking to enjoin the arbitration proceedings. Eppoliti responded by filing a motion to compel arbitration, pursuant to General Statutes § 52-410. The trial court, after conducting an evidentiary hearing, rendered judgment temporarily enjoining Eppoliti from arbitrating those claims not submitted to Turner in the first instance. The trial court also rendered judgment granting Eppoliti’s motion to compel arbitration of the remaining claims, finding that the parties clearly agreed to mandatory arbitration and that the arbitrator should determine whether the preconditions to arbitration have been satisfied. Turner appealed from the trial court’s judgment compelling arbitration.

Turner claims that the trial court improperly determined that the question of whether certain disputes between the parties are arbitrable must be answered by an arbitrator rather than the court. We disagree.

The principles that govern our decision are well settled. “Arbitration is a creature of contract. It is the province of the parties to set the limits of the authority of the arbitrators, and the parties will be bound by the limits they have fixed. Pratt, Read & Co. v. United Furniture Workers, 136 Conn. 205, 209, 70 A.2d 120 [1949].” Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646 (1961). “Whether the parties have agreed to submit to arbitration not only the merits of the dispute but the very question of arbitrability, as well, depends upon the intention manifested in the agreement they have made.” Id; Policemen’s & Firemen’s Retirement Board v. Sullivan, 173 Conn. 1, 6, 376 A.2d 399 (1977); Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, 15 Conn. App. 332, 333-34, 544 A.2d 256 (1988). “The intent to submit the question of arbitrability to an arbitrator may be demonstrated in an agreement by an express provision or by the use of broad terms.” Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, supra, 334. “ ‘[T]he agreement between the parties remains the focal point for determining whether timeliness and notice requirements are matters for arbitration. A. Sangivanni & Sons v. F. M. Floryan & Co., [158 Conn. 467, 471, 262 A.2d 159 (1969)].’ [Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 125, 318 A.2d 84 (1972)].” East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656, 539 A.2d 125 (1988). The proper construction of contract language is a question of fact, subject to our review under the “clearly erroneous” standard. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Zivic v. Zivic, 26 Conn. App. 5, 7-8, 596 A.2d 475 (1991); Lavigne v. Lavigne, 3 Conn. App. 423, 427-28, 488 A.2d 1290 (1985).

Turner argues that because the dispute clause in the subcontract does not expressly authorize the arbitrator to decide the threshold question of arbitrability, the issue of arbitrability must be decided by the court. It further argues that because the arbitration clause of the parties’ subcontract is not triggered unless and until there has been a timely demand for payment, a decision by Turner on the demand for payment and a rejection of Turner’s decision, the parties did not agree to arbitrate the question of whether these preconditions to arbitration have been complied with.

The parties’ intent to have the question of arbitrability decided by an arbitrator is reflected not in the express terms but in the broad language of the dispute clause of their subcontract. The clause provides, with exceptions not relevant here, for arbitration of “[a]ny dispute arising at any time out of [the] Subcontract . . . .” The subcontract contains no exclusionary language removing the question of arbitrability from the arbitrator’s domain. See Hartford v. Local 308, 171 Conn. 420, 425, 370 A.2d 996 (1976); Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, supra, 334-35. We cannot say that the trial court’s finding that this language reveals the parties’ intent to have the arbitrator determine whether the prerequisites to arbitration have been satisfied was clearly erroneous.

The remaining issues raised by Turner pertain to the trial court’s alleged finding that certain disputes between the parties are in fact arbitrable. The trial court did not, however, make such a finding. The court merely found that the parties agreed to arbitrate certain disputes between them provided that the preconditions to arbitration, set forth in the subcontract, are complied with. Further, as we noted above, the trial court properly left to the arbitrator the question of whether the preconditions to arbitration have been satisfied. The trial court made no determination that the disputes in this case are in fact arbitrable. Turner’s remaining claims are premised on its misinterpretation of the trial court’s memorandum of decision and, as such, are not meritorious.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Murray, J.

text:
    M. Chandra Sekharra Reddy, Administrator (Estate of Vijaya S. Reddy) v. New Hampshire Insurance Company
    (9808)
    Foti, Norcott and Murray, Js.
    Argued December 9, 1991
    decision released June 16, 1992

      Philip F. Spillane, for the appellant (plaintiff).

      Deborah L. Bradley, with whom, on the brief, were John W. Lemega and Daniel P. Scapellati, for the appellee (defendant).
   Murray, J.

The sole issue presented in this appeal is whether the “umbrella” or “excess” insurance policy issued by the New Hampshire Insurance Company (carrier) is required, under the mandatory provisions of General Statutes (Rev. to 1989) § 38-175c (now § SSa-SSe), to provide uninsured and underinsured motorist coverage to the plaintiff. The trial court, in granting summary judgment in favor of the carrier, concluded that the umbrella policy in this case was not within the scope of § 38-175c, and was therefore not required to provide uninsured motorist coverage. We affirm that judgment.

I

The pertinent facts in this case are not disputed. M. Chandra Sekharra Reddy, the plaintiff, is the administrator of his deceased sixteen year old son’s estate. The young man was killed in an automobile accident on June 29, 1986. William Simonelli was the second automobile operator in this two vehicle accident and, pursuant to a settlement agreement, the estate collected $300,000 from Simonelli’s automobile liability insurance carrier, thereby exhausting coverage under the only applicable liability policy.

Reddy then made a claim for underinsured motorist benefits under his own automobile liability insurance policy (underlying policy). Pursuant to an arbitration proceeding, he recovered $600,000, the full amount of coverage available under the underinsured motorist provision of that underlying policy.

Reddy thereafter made a claim for additional underinsured motorist benefits under his personal catastrophe liability policy (umbrella policy). The umbrella policy provided automobile liability coverage in the amount of $1,000,000 in excess of the retained limit provided by the underlying policy, which was issued by the same carrier. This umbrella policy provided: “The company agrees to pay on behalf of the insured ultimate net loss in excess of the retained limit, subject to the limit of liability which the insured shall become legally obligated to pay as damages because of personal injury or property damage.” It also stated in its conditions section, with respect to payment of loss, that “[t]he insured may pay the amount of ultimate net loss to the claimant to effect settlement and upon submission of due proof thereof, the company shall indemnify the insured for that part of such payment which is in excess of the retained limit, or the company will, upon request of the insured, make such payment to the claimant on behalf of the insured.” This policy, commonly known as an excess or umbrella policy, specifically excluded uninsured motorist coverage. In addition, the umbrella policy also specified that any section of the policy in conflict with the Connecticut General Statutes at the time of the policy’s effective date is automatically amended to conform to the mandates of such statutes.

When the carrier denied coverage under the umbrella policy, Reddy commenced this action to recover underinsured motorist benefits. Reddy alleged that the umbrella policy is an automobile liability insurance policy under § 38-175c, and, therefore, the carrier, he complained, is required to provide underinsured motorist coverage to Reddy pursuant to § 38-175c, in conjunction with the conformity to state law provision of the umbrella policy. Reddy also alleged that such coverage is required despite the contrary exclusion provision in this policy. The carrier denied that the umbrella policy was an automobile liability insurance policy for purposes of § 38-175c, and also responded by way of special defense that the policy itself expressly excludes uninsured motorist coverage. After Reddy denied the special defense, both parties moved for summary judgment. On December 7,1990, the trial court granted summary judgment in favor of the carrier. It ruled that the umbrella policy was not within the scope of § 38-175c. This appeal followed.

II

General Statutes (Rev. to 1989) § 38-175c (now § 38a-336) contains this state’s mandatory uninsured motorist coverage provisions. It requires every automobile liability insurance policy to provide uninsured motorist coverage in accordance with the regulations adopted pursuant to § 38-175a (now § 38a-334). General Statutes (Rev. to 1989) § 38-175c (a) (1). Originally, this section required uninsured motorist coverage in minimum limits, and there was no provision for underinsured, as opposed to uninsured, motorist coverage.

In 1979, however, the statute was amended by No. 79-235 of the 1979 Public Acts to require underinsured motorist coverage. General Statutes § 38-175c (a) (1). “The purpose of this amendment was to remedy the ‘anomalous situation’ which was noted in Roy v. Centennial Ins. Co., 171 Conn. 463, 475, 370 A.2d 1011 (1976), and Simonette v. Great American Ins. Co., 165 Conn. 466, 471, 338 A.2d 453 (1973), where an injured party could find himself in a better position if the tortfeasor had no liability insurance than if he had only the statutory minimum amount.” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 390-91, 446 A.2d 1059 (1982). The statute was further amended by No. 461 of the 1983 Public Acts to require every automobile liability insurance policy issued or renewed on and after July 1, 1984, to provide uninsured motorist coverage “with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount.” General Statutes § 38-175c (a) (2). The purpose of this amendment was to permit the injured party to recover the amount he would have received had the tortfeasor been insured to the same extent as the injured party unless and until the insured had requested in writing to have the insurance policy provide a lesser amount of uninsured motorist coverage. American Motorists Ins. Co. v. Gould, 213 Conn. 625, 631, 569 A.2d 1105 (1990).

Pursuant to § 38-175a, the insurance commissioner has adopted regulations with respect to minimum provisions to be included in automobile liability insurance policies issued after the effective date of such regulations and covering, inter alia, private passenger motor vehicles. Specifically, the commissioner adopted § 38-175a-4 of the Regulations of Connecticut State Agencies. It provides: “These regulations do not apply to the insurance afforded under any policy: (1) to the extent that the insurance afforded exceeds the limits specified in subsection (a) of § 14-112 of the general statutes and, where applicable, § 38-320 of the general statutes or (2) if the policy contains an underlying insurance requirement or provides for a retained limit of self insurance equal to or greater than the limits specified in said subsection (a) of § 14-112, and, where applicable, § 38-320.”

The term “automobile liability insurance policy” is not defined in our statutes or regulations. Our Supreme Court, in Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 569 A.2d 544 (1990), was presented with an issue similar to the one here, namely, whether an excess or umbrella insurance policy must provide uninsured motorist coverage. The Cohn court held that the umbrella policy there was not required to provide uninsured motorist coverage to the plaintiff. Id., 547-48. The court reasoned that the defendant’s umbrella policy was an indemnity policy, not a liability policy. The court distinguished the two as follows: “ ‘Whether an insurance contract is a liability policy or an indemnity policy depends upon the intention of the parties, as evidenced by the phraseology of their agreement .... The chief difference between a liability policy and an indemnity policy is that under the former a cause of action accrues when the liability attaches, while under the latter there is no cause of action until the liability has been discharged, as by payment of the judgment by the insured.’ 6A J. Appleman, Insurance § 4261, and see cases cited therein.” Cohn v. Pacific Employers Ins. Co., supra, 546-47. The Cohn court then concluded that the term “automobile liability insurance policy” as referenced in § 38-175c of our statutes “includes only those policies that extend underlying coverage before the operation of any indemnity policy that might otherwise exist.” Id., 547-48.

Ill

Reddy argues that his umbrella policy is a liability, not an indemnity, policy. Thus, he contends, Cohn requires his umbrella policy to provide uninsured motorist coverage. We note, however, that the Cohn court’s holding was limited to the fact that excess indemnity policies are not subject to the requirements of § 38-175c. Additionally, Cohn did not address the precise issue presented to us by Reddy, namely, whether the provisions of § 38-175c require his excess “liability” policy, which has an underlying insurance requirement, to provide uninsured motorist coverage.

The trial court, in its memorandum of decision, rejected Reddy’s argument that Cohn necessarily holds all excess nonindemnity policies to the requirements of § 38-175c, and concluded, on the basis of Cohn and case law from other jurisdictions cited with approval in Cohn, that this umbrella policy was not within the scope of § 38-175c. It further concluded that because the umbrella policy expressly excluded uninsured motorist coverage the carrier was not obligated to provide such coverage to Reddy. The trial court based its decision on the distinction between primary and excess liability policies, and decided, consistent with the case law from other jurisdictions, that excess or umbrella insurance policies like this umbrella policy, whether they are indemnity or liability policies, are not within the scope of § 38-175c, and thus are not required to provide uninsured motorist coverage.

IV

We agree with the trial court that the distinction between primary and excess insurance policies is the key to determining whether a policy is an automobile liability insurance policy and thus is required to provide uninsured motorist coverage pursuant to § 38-175c. Although our Supreme Court in Cohn focused on the distinction between liability and indemnity policies, General Statutes (Rev. to 1989) § 38-175 (now § 38a-321), which was not discussed in Cohn, blurs such a distinction by depriving an insurance carrier of the protection from liability usually afforded by an indemnity policy. Additionally, notwithstanding the approach taken by the trial court in reaching its conclusion, we think that the express language of § 38-175a-4 of the Regulations of Connecticut State Agencies, which was not presented to the trial court, makes clear that policies that contain underlying insurance requirements are excluded from the mandatory provisions of § 38-175c.

Also known as the direct action statute, the purpose of § 38-175 is to “remedy [t]he unfairness to the assured of contracts of insurance with provisions that the insurer should be liable only in cases where the assured had actually paid a judgment obtained against him. . . .’’(Internal quotation marks omitted.) Brown v. Employer’s Reinsurance Corporation, 206 Conn. 668, 672, 539 A.2d 138 (1988). In other words, where a plaintiff obtains a judgment in its favor against an insured tortfeasor and the tortfeasor does not satisfy the judgment within thirty days therefrom, the plaintiff is subrogated to the rights of the tortfeasor as against the insurer to the same extent as if the insured had satisfied the judgment. Thus, the plaintiff is permitted by law to proceed directly against such insurer whether the policy at issue is one of indemnity or liability. This statute, then, obscures the distinction between indemnity and liability policies as set forth in Cohn, because even an insurer that issues an indemnity policy is not shielded from an obligation to pay a party merely because the insured has not paid the judgment. Thus, we think that § 38-175 is relevant to the resolution of the issue before us. '

Our analysis in determining whether Reddy’s umbrella policy is an automobile liability policy, therefore, is based on determining whether the insurance policy is a primary policy, which provides underlying coverage, or an excess policy with an underlying insurance requirement. Such a determination is supported in Connecticut by § 38-175a-4 of the Regulations of Connecticut State Agencies, which interprets § 38-175c to exclude from the mandatory uninsured motorist coverage requirements of that statute any insurance policy that “contains an underlying insurance requirement.” Here, the umbrella policy contained an “underlying insurance requirement,” which required exhaustion of the underlying policy’s coverage. By operation of § 38-175a-4 of the regulations, which has the effect of law in this state; see Travelers Ins. Co. v. Kulla, 216 Conn. 390, 399, 579 A.2d 525 (1990); the umbrella policy is not required to provide uninsured motorist coverage. Furthermore, because the language of the policy expressly excludes uninsured motorist coverage, there is no other basis on which we can conclude that the carrier must provide uninsured motorist coverage to Reddy under the umbrella policy.

The trial court was not presented with the effect of the Connecticut Insurance Commissioner’s Regulation § 38-175a-4 on this umbrella policy. The relationship of that regulation to this umbrella policy appeared in these proceedings for the first time before us. We think, however, that the regulation makes clear that § 38-175c is not applicable to policies with underlying insurance requirements. Although we base our decision on grounds different from the trial court, we affirm the judgment because the result is required by law. A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Cummings & Lockwood v. Gray, 26 Conn. App. 293, 299, 600 A.2d 1040 (1991).

V

Reddy argues that § 38-175a-4 of the regulations does not apply because it has been implicitly repealed by subsequent statutory enactments by the legislature. Specifically, he argues that § 38-175a-4 (2) of the regulations is inconsistent with General Statutes § 38-175c (a) (2) insofar as the regulation permits minimal amounts of uninsured motorist coverage. Reddy suggests that § 38-175c (a) (2) requires parity between liability and uninsured motorist coverages in all automobile liability insurance policies. We disagree.

“[A]n administrative agency’s regulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute. ... A person claiming the invalidity of a regulation has the burden of proving that it is inconsistent with or beyond the legislative grant. . . . The insurance commissioner has a ‘very broad grant of regulatory authority’ in filling in the interstices of the uninsured and underinsured motorist coverage legislation, and in doing so his regulation is entitled to ‘great deference.’ ” (Citations omitted.) Travelers Ins. Co. v. Kulla, supra. “Therefore, the rule disfavoring the implied repeal of a statute by the subsequent enactment of another statute also applies to the implied repeal of a regulation by statute, especially where, as in the present case, the regulation at issue has been approved by the legislative regulation review committee.” Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641, 587 A.2d 415 (1991). “[W]e presume that [the regulation is] ‘an accurate reflection of the legislative intent in the statute’s more general language.’ AFSCME v. New Britain, 206 Conn. 465, 470, 538 A.2d 1022 (1988).” General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 211, 603 A.2d 385 (1992). “The regulations, however, must carry into effect the purpose and intent of the statute pursuant to which they are enacted.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 196, 530 A.2d 171 (1987).

Reddy suggests that certain amendments to General Statutes § 38-175c implicitly repealed § 38-175a-4 of the regulations, which became effective February 1,1975. As was previously discussed, in 1975 § 38-175c required no provision for underinsured motorist coverage, and did not permit the injured party to recover the amount he would have received had the tortfeasor been insured to the same extent as the injured party himself. Reddy argues that the regulation is no longer consistent with the provisions of the statute, which now provides for both, because the regulation requires only minimal limits of uninsured motorist coverage, which, according to Reddy, the statutes no longer permit. Additionally, the plaintiff argues that the regulation is not consistent with public policy, which he says requires parity between liability and uninsured motorist coverages in automobile liability insurance policies.

Reddy correctly states that § 38-175a-4 became effective in 1975. It has not been modified in any way since that time. “The fact that the insurance commissioner has never proposed an amendment to the regulation . . . especially in 1986 when other provisions of the regulation [involving uninsured motorist coverage] were amended, is an indication that the commissioner does not share the view of the [plaintiff] that the regulation was repealed by implication in [1979 or 1983].” Dugas v. Lumbermens Mutual Casualty Co., supra, 643. Additionally, § 38-175a-2 of the regulations, as amended in 1986, provides in pertinent part: “All references in these regulations [§§ 38-175a-l to 38-175a-8 inclusive,] to sections of the general statutes of Connecticut shall mean and include the statutory provision in effect on the date these regulations become effective and as statutory provision may be thereafter amended from time to time. ” (Emphasis added.) Moreover, § 38-175a-9 of the regulations, which took effect on June 1, 1986, provides: “Sections 38-175a-l to 38-175a-8, inclusive, shall take effect as amended on June 1,1986.” The language of these two regulations indicates that the insurance commissioner and the legislative regulation review committee reviewed and approved all of the regulations, including § 38-175a-4, in 1986.

“If a regulation has been in existence for a substantial period of time and the legislature has not sought to override the regulation, this fact, although not determinative, provides persuasive evidence of the continued validity of the regulation. . . . The approval of revisions to [the regulations contained in § 38-175a] by the legislative regulation review committee in 1986 provides additional support for the defendant’s contention that the regulation was not repealed by implication [by any amendment to the statue prior thereto]. . . . ‘The fact that the commissioner’s regulation has been approved by the standing legislative regulation review committee, although not dispositive of the issue before us, is an important consideration in our determination of whether the commissioner’s regulation comports with the legislative intent . . . .’” (Citations omitted; emphasis in original.) Id., 642-43; see also General Accident Ins. Co. v. Wheeler, supra, 211 (presumption in favor of accuracy of a regulation is underscored by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., which provides for legislative oversight through the legislative review committee prior to the approval of the regulations).

Reddy fails to recognize that the requirement to which he refers in § 38-175c (a) (2) is not absolutely mandatory. The express language of the statute permits the insured to opt for a lesser amount of uninsured motorist coverage, but he may not opt for an amount that is less than the absolute mandatory minimal amounts permitted in General Statutes § 14-112. Therefore, § 38-175a-4 (2) of the regulations is not inconsistent with the purpose and effect of the general statutes.

As in Dugas, we think that the legislature, the legislative regulation review committee, and the insurance commissioner do not share the plaintiff’s view that the amendment of § 38-175c in 1983 impliedly repealed § 38-175a-4. Section 38-175a-4 is not inconsistent with General Statutes § 38-175c (a) (2), which requires uninsured motorist coverage in amounts equal to the amount contained in the liability portion of the policy, unless the insured requests otherwise. Nothing in § 38-175c, even as amended, suggests that insurance policies with underlying insurance requirements are, or at anytime were, required to provide uninsured motorist coverage. The regulation also is not contrary to the purpose and intent of General Statutes § 38-175c. Such policies to which the statute applies are still required to provide more than the minimum amount of uninsured motorist protection unless and until the insured requests otherwise, subject only to the limitation that the uninsured motorist coverage not be less that the minimal amounts required in § 14-112. We are of the opinion that the statutes and the regulations as they exist are an accurate reflection of the state’s public policy with respect to uninsured motorist coverage.

Accordingly, we conclude that General Statutes § 38-175c does not require the umbrella policy to provide uninsured motorist coverage to Reddy’s decedent, and because the umbrella policy by its own terms expressly excluded uninsured motorist coverage, summary judgment was properly granted in favor of the carrier.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 38-175c (now § 38a-336) provides: “uninsured motorist coverage, (a) (1) Every [automobile liability insurance policy] shall provide insurance, herein called uninsured motorist coverage, in accordance with [the] regulations [adopted pursuant to section 38-175a], with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”

       In this opinion, the term uninsured motorist encompasses the term underinsured motorist as well.

       The umbrella policy stated, under the exclusions section: “This policy does not apply with respect to . . . any claim for Uninsured/Underinsured Motorists Coverage(s) or No-Fault benefits as defined in any primary policy described on Part B - Declarations.”

       The umbrella policy provided: “Conformity with State Statutes. Any provision of this policy which, on its effective date, is in conflict with the statutes of the state in which the named insured maintains his principal residence on such date is hereby amended to conform to the requirements of such statutes.”

       The plaintiff’s decedent was riding in a private passenger automobile at the time of his death.

       See O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1027 (3d Cir. 1981) (Delaware mandatory uninsured motorist statute does not apply to excess liability insurance policies); Trinity Universal Ins. Co., v. Metzger, 360 So. 2d 960, 962 (Ala. 1978) (excess liability policy not within the scope of Alabama’s mandatory uninsured motorist statute); Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 396, 437 N.E.2d 691 (1982) (excess liability policy limited to excess liability coverage, which does not include uninsured motorist coverage); Matarasso v. Continental Casualty Co., 82 App. Div. 2d 861, 862, 440 N.Y.S.2d 40 (1981), aff’d, 56 N.Y.2d 264, 451 N.Y.S.2d 703, 436 N.E.2d 1305 (1982) (New York uninsured motorist statute applied to claimant’s underlying policy only, and not to an excess liability policy); Moser v. Liberty Mutual Ins. Co., 731 P.2d 406, 410 n.16 (Okla. 1986) (purpose of excess liability policy is at most tangentially related to automobile liability, and thus not subject to Oklahoma’s mandatory uninsured motorist statute); Thompson v. Grange Ins. Assn., 34 Wash. App. 151, 156-57, 660 P.2d 307 (1983) (excess liability policy really a continuation of the primary policies and thus did not need to supply any uninsured motorist coverage under Washington’s mandatory statute). These cases were also cited with approval in Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 548, 569 A.2d 544 (1990).

       “Umbrella policies serve an important function in the industry. In this day of uncommon, but possible, enormous verdicts, they pick up this exceptional hazard at a small premium. Assuming one’s automobile and homeowner’s policies have liability limits of $100,000 or even $500,000, the umbrella policy may pick up at that point and cover for an additional million, five million, or ten million. It may assume as a primary carrier certain coverages not included elsewhere, such as invasion of privacy, false arrest etc., but there is no intention to supplant the basic carriers on the homeowners or automobile coverages. Therefore, these should not even enter into our current consideration.
      “However, because of the misunderstanding of the courts as to the nature of such coverages, they have been held to fall within the definition of automobile liability insurance. ... It should be recognized that the generosity of the courts confers no favor upon the insuring public. Such decisions result either in such coverage being withdrawn from potential insureds or in premium rates being raised so substantially that they will become priced out of the range of most buyers. For every such extension there is a price to be paid.” 8C J. Appleman, Insurance Law and Practice § 5071.65, pp. 107-108.

       General Statutes (Rev. to 1989) § 38-175 provides: “Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against any person, firm or corporation by any person,including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       Section 38-175a-4 of the Regulations of Connecticut State Agencies provides: “These regulations do not apply to the insurance afforded under any policy: (1) to the extent that the insurance afforded exceeds the limits specified in subsection (a) of § 14-112 of the general statutes and, where applicable, § 38-320 of the general statutes, or (2) if the policy contains an underlying insurance requirement or provides for a retained limit of self-insurance equal to or greater than the limits specified in said subsection (a) of § 14-112 and, where applicable, § 38-320.”

       We note that there is nothing in our statutes or regulations that would prohibit an insurer from offering to an insured uninsured motorist coverage in an excess insurance policy. An insured is entitled to that coverage in an excess policy, however, only when the insurance agreement expressly provides it.

       We also note that it appears from the record in Cohn that that court was not presented with the question of the effect of § 38-175a-4.

       The amendments to the regulation approved in 1986 did not directly affect the regulation at issue in this case. “The action taken by the legislative regulation review committee in 1986, however, is still pertinent because it provides evidence on whether the committee found the amended regulation^] to be consistent with the overall statutory scheme that the regulations] seek to implement.” Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 642 n.12, 587 A.2d 415 (1991).

       General Statutes § 4-170 provides in pertinent part: “(b) No adoption, amendment or repeal of any regulation . . . shall be effective until the original of the proposed regulation approved by the attorney general . . . ha[s] been submitted to the standing legislative regulation review committee . . . and the regulation has been approved by the committee . . . .”
      Article II of our state constitution, as amended by article XVIII of the amendments, further supports this proposition. It provides in pertinent part: “The legislative department may delegate regulatory authority to the executive department; except that any administrative regulation of any agency of the executive department may be disapproved by the general assembly or a committee thereof in such manner as shall by law be prescribed.”

         Even if we concluded that the regulation is inconsistent with the statute, or contrary to the statute’s purpose and intent, we would not be required to imply that the regulation is repealed in full. Subsequent enactments of statutes are presumed to repeal earlier inconsistent statutes or regulations only to the extent necessary to remove the conflict. Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641, 587 A.2d 415 (1991). If § 38-175a-4 is inconsistent with the statutes at all, it is only insofar as it requires minimal uninsured motorist coverage, whereas the statute now requires uninsured motorist coverage equal to the amount of direct liability coverage contained in the automobile liability insurance policy unless the insured requests otherwise. The possible conflict can be remedied, if necessary, by an implicit repeal of the regulation only to the extent that it permits less than the full uninsured motorist coverage now required by statute. Again, we find no evidence that any amendment to the statute since 1975, when the regulation was promulgated, in any way intended to require excess policies with underlying insurance requirements to provide uninsured motorist coverage.


author: Norcott, J.

text:
    State of Connecticut v. Clifton Channer
    (10233)
    Dupont, C. J., Norcott and Lavery, Js.

      Argued April 28
    decision released July 7, 1992

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

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Paul Murray, assistant state’s attorney, for the appellee (state).
   Norcott, 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) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4). He was sentenced to twenty years imprisonment on each charge, to be served consecutively to a sentence he currently is serving in federal prison.

On appeal, the defendant claims that the trial court (1) improperly denied his motions for judgment of acquittal because of evidentiary insufficiency, (2) improperly instructed the jury on an essential element of the crime of robbery in the first degree, and (3) improperly instructed the jury on an essential element of the crime of conspiracy to commit robbery in the first degree. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. Delroy Lewis was driving his car on Sigourney Street in Hartford accompanied by his fiancee, Dawn Jones, on June 12,1988. At a traffic light, a car pulled up on the passenger side of Lewis’ vehicle. The defendant was a passenger in the second car. When the light changed, the defendant’s car swerved in front of Lewis’ and for the next few blocks continued swerving near Lewis’ car. The driver of the second car was never identified.

During this time, Jones saw a gun pointed at her from the defendant’s car, although she was uncertain whether it was the driver or the defendant who pointed it at her. Lewis did not see the gun during the time the defendant’s car was swerving close to his. At a traffic light farther along the road, the driver of the second car left his vehicle and told Lewis that he was going to shoot him. Lewis then turned his car onto another street. At this point, the driver of the other car returned to his vehicle and again swerved in front of Lewis’ car, blocking it. Jones got out of Lewis’ car to ask the defendant and the other driver why they were behaving as they did.

The other driver got out of his vehicle again, armed with a gun, and said that he was going to shoot Lewis. He approached Lewis’ car and kicked the door. Lewis saw the gun and maneuvered his vehicle around the other car and drove away, leaving Jones at the scene. Lewis stopped his car a short distance away. He was followed by the defendant and the unidentified driver in the other car. Jones screamed and began running toward Lewis. The defendant and the driver both got out of their vehicle and approached Lewis. Lewis got out of his car. The driver of the other vehicle, who at this point did not have a gun, then punched Lewis in the face. During a scuffle that ensued, a ring Lewis was wearing was either pulled off by the other driver or fell off. Lewis was unable to find it later.

During the scuffle, Lewis heard the other driver order the defendant to “bring the gun” from the car. The defendant then approached with the gun and asked the driver to move because he was between the defendant and Lewis. When Lewis saw the weapon, he fled toward a parking lot. Moments later, he looked back and saw both men driving away. The defendant was driving Lewis’ car. Lewis then ran to Jones saying, “They stole my car.”

At the conclusion of the state’s case-in-chief, the defendant moved for judgment of acquittal. He also moved for judgment of acquittal after all of the evidence had been presented and again at his sentencing. The trial court denied all three motions. This appeal followed.

I

Sufficiency of the Evidence

The defendant first claims that the trial court improperly denied his motions for acquittal because there was insufficient evidence to support his convictions. We disagree.

When reviewing a claim of evidentiary insufficiency, we employ a two part test. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. Next, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1330 (1991); State v. Jupin, 26 Conn. App. 331, 337, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). In determining if the jury reasonably could have found the defendant guilty, we ask if any rational factfinder could have done so. State v. Montanez, 219 Conn. 16, 20, 592 A.2d 149 (1991); State v. Jupin, supra, 338.

A

The defendant first attacks the sufficiency of the evidence that resulted in his conviction of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). He argues, in essence, that the state failed to prove beyond a reasonable doubt that he used or threatened immediately to use physical force to prevent Lewis from resisting the taking of his car. In the defendant’s view, the force or the threat of force he exhibited had nothing to do with the loss of Lewis’ ring or the taking of his car. Thus, there was no robbery.

“Robbery is an offense against the person, the distinguishing characteristic of which is the intimidation of the victim.” State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978); State v. Childree, 189 Conn. 114, 123, 454 A.2d 1274 (1983). Under the plain language of General Statutes § 53a-133, a criminal defendant “commits robbery when, in the course of committing a larceny,” he engages in forcible conduct with a proscribed purpose. State v. Tweedy, 219 Conn. 489, 498, 594 A.2d 906 (1991). A larceny does not constitute a robbery unless the force or threat of force is for the purpose of coercing the victim in the manner described in § 53a-133. State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). The term “purpose” is synonymous with the terms “object” and “intent.” State v. Kurvin, 186 Conn. 555, 567, 442 A.2d 1327 (1982). Intent may be determined from the inferences drawn from the defendant’s conduct; State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984); because “ ‘[ijntent is a mental process which ordinarily can be proven only by circumstantial evidence.’” State v. Tweedy, supra, 501, quoting State v. Just, 185 Conn. 339, 355, 441 A.2d 98 (1981).

With respect to the defendant’s assertion that his robbery conviction cannot be based on the larceny of the ring, this is not in dispute because the jury was not’ instructed as to accessory liability. Rather, it was instructed that it had to find that it was the defendant who, in the course of committing a larceny, threatened the immediate use of physical force against Lewis so as to prevent him from resisting the taking of his personal property. See State v. Tweedy, supra. Thus, the jury had to consider the theft of the car as the larceny giving rise to the robbery charge.

The evidence clearly demonstrates that the defendant and his companion engaged in a continuing course of conduct that included swerving their automobile to impede Lewis’ car, cutting him off, and threatening him by brandishing a gun as the cars proceeded along Sigourney Street. When the defendant finally got out of the car to bring his companion a gun, the defendant further threatened Lewis with the use of force by requesting the unidentified driver to move so there would be a clear path between Lewis and the gun the defendant was carrying. At this point, Lewis fled and looked back to see the defendant driving away in his car.

Viewing the evidence in the light most favorable to sustaining the jury’s verdict, as we must, we conclude that sufficient evidence existed to find beyond a reasonable doubt that the defendant’s display of the gun and his request that his companion move were intended to prevent Lewis from resisting the taking of his car. State v. Gordon, supra, 411. Although the defendant argues that the taking of the car was only a larceny because the threat of force ended when Lewis fled, such is not the case. Inherent in the defendant’s reasoning is the mistaken assumption that the use of force or the threatened use of force must occur simultaneously with the taking of the property for the force or threat of force to be for the purpose of preventing resistance. The time frame for committing the offense of robbery, however, is “ ‘the course of committing a larceny,’ ” rather than the course of forcible conduct. State v. Tweedy, supra, 498-99; State v. Gordon, supra, 410-11. “An offender . . . may commit robbery although he does not use or threaten to use force at the precise time he takes the property . . . .” (Emphasis added.) State v. Gordon, supra; State v. Tweedy, supra, 499 n.10. With the facts here, it was entirely reasonable for the jury to conclude that the defendant threatened Lewis for the purpose of preventing resistance to the taking of the car.

B

The defendant next challenges the sufficiency of the evidence that led to his conviction of conspiracy to commit robbery in the first degree in violation of §§ 53a-48 (a) and 53a-134 (a) (4). He argues that the state lacked the evidence necessary to prove that he entered into a plan to commit the crime of robbery in the first degree, or that he intended to use force to commit the underlying larceny of Lewis’ car.

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . .” (Internal quotation marks omitted.) State v. Lewis, supra, 606-607, quoting State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). Further, the state also must show that the conspirators intended to agree and that they intended to commit the elements of the underlying offense. State v. Beccia, supra, 4. Thus, to convict the defendant, the jury had to find (1) that the defendant agreed with his companion to take Lewis’ car, (2) that, at the time of the agreement, the defendant and his companion intended to take the car, and (3) that the defendant or his companion committed an overt act in furtherance of the conspiracy. To prove that there was an agreement, it is well established that circumstantial evidence is sufficient because conspiracies, by their very nature, are formed in secret and only rarely can be proved otherwise than by circumstantial evidence. State v. Holmes, 160 Conn. 140, 150, 274 A.2d 153 (1970); see also State v. Ghere, 201 Conn. 289, 299, 513 A.2d 1226 (1986) (“existence of a formal agreement between the conspirators need not be proved” because only in rare instances can a conspiracy be established by proof of an express agreement).

Here, the evidence clearly demonstrates that the entire chain of events, including the swerving of the car, the blocking of Lewis’ car, and the use of a gun by the defendant and his request to his companion to move out of the way so that he was not between Lewis and the gun, could be seen as intentional conduct supporting the existence of a plan to take Lewis’ car. Further, the defendant’s overt acts of bringing the gun to his companion and driving away with Lewis’ car constitute acts in furtherance of the conspiracy to take the car. Although the defendant at oral argument suggested that “the taking of the vehicle was a larcenous and fortuitous afterthought to what went before,” we cannot agree. Under the circumstances here, it was reasonable and logical for the jury to infer that the defendant and his companion agreed to take Lewis’ car, that they intended to do so and that they committed overt acts to that end.

II

Challenge to Jury Instructions

A

The defendant next contends that the court, in its instructions to the jury, improperly defined an essential element of the crime of robbery in the first degree. Specifically, he argues that, in response to the jury’s requests for clarifications of the court’s charge, the court improperly defined the phrase in § 53a-134 (a) (4) “in the course of the commission of the crime,” thereby violating his state and federal constitutional rights not to be convicted except upon proof beyond a reasonable doubt of each element of the offense charged. We are unpersuaded.

During deliberations, the jury twice sought clarifications of the court’s instructions. First, the jury asked whether it had to believe that the defendant himself threatened Lewis with a gun or whether the earlier display of a gun would be sufficient to sustain a charge of robbery in the first degree. In response, the court reread the charge it had given earlier on the crime of robbery in the first degree. Thereafter, the jury requested the court to further define the word “course” in the definition of the offense of robbery in the first degree so as to learn when “in the course” of the commission of the crime begins.

The court then told the jury, “There is no legal, specifically legal, definition of ‘the course of,’ but I can tell you where it would fit into the statutory scheme. ‘In the course of’ would mean after the intent to commit the larceny has arisen and the defendant or a participant with him has taken some step in fulfillment of this intent to commit the crime. Now, if you are focusing on the time, as you put it in your question, does the course begin with the [swerving of the car] — that’s [a] question of fact for you to decide, whether it fits within the intent to commit the crime at that time. Did they intend to do it and did they take some step in fulfillment of this intent to commit the crime? ... So, obviously, you’re going to have — you heard all of the evidence about when the weapon was allegedly displayed and you’ll have to fit that in your own mind, taking into consideration the entire factual situation and see whether or not you feel that that display — or the evidence that you heard about the display of the gun and the different times was in the course of the commission of the crime of robbery in the first degree.”

At the outset, we note that the defendant concedes this claim was not properly preserved at trial and now seeks review under the plain error doctrine embodied in Practice Book § 4185, State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). First, the defendant’s claim does not rise to the level of plain error. “Plain error 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 . . . and results in an unreliable verdict or miscarriage of justice.” (Citations omitted; internal quotation marks omitted.) State v. Polanco, 26 Conn. App. 33, 39, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991); Commissioner v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 671, 594 A.2d 958 (1991). This claim does not raise such an issue. Thus, plain error review is unwarranted.

This court and our state Supreme Court, however, have permitted Evans-Golding review of similar claims that certain language used in the charge in a criminal case had the effect of diluting the state’s constitutional burden to prove a defendant guilty beyond a reasonable doubt. State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990); State v. Harvey, 27 Conn. App. 171, 605 A.2d 563 (1992); State v. Smith, 26 Conn. App. 279, 600 A.2d 1036 (1991). Accordingly, we review this claim to determine if the defendant has been deprived of his fundamental constitutional right not to be convicted except upon proof beyond a reasonable doubt of each element of the offense charged. State v. Golding, supra; State v. Evans, supra.

Where an alleged improper instruction is of constitutional dimension, “the test is whether it is reasonably possible that the jury was misled.” State v. Quintana, 209 Conn. 34, 50, 547 A.2d 534 (1988). We do not evaluate a contested portion of an instruction in artificial isolation from the overall charge. Id. Instead, we examine the charge in its entirety. State v. Hopkins, 222 Conn. 117, 130, 609 A.2d 236 (1992); State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989). While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Hopkins, supra; Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991). Reversal is warranted only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Fleming, 198 Conn. 255, 269, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

Our Supreme Court has determined that “if the use of force occurs during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after, it is considered to be ‘in the course of the robbery or the attempted robbery within the meaning of the statute.” State v. Ghere, supra, 297. Here, the court’s first response to the jury’s inquiry was a correct statement of the law. Its second response to the jury’s request properly stated that “in the course of” commission of the crime would occur after “the defendant or a participant with him has taken some step in fulfillment of this intent to commit the crime.” What constituted such “steps” were, as the court stated, factual issues within the jury’s domain. Here, the jury reasonably and logically could have inferred that both the brandishing of the gun in the car, and the defendant’s act of bringing it to his companion and asking that he step aside so that nothing would be between the gun and Lewis were acts directly connected with committing the crime of robbery in the first degree. See, e.g., id., 298 (“use of force was within the sequence of events directly connected to the attempted robbery”). On the basis of our independent review, we conclude that the challenged aspect of the court’s instructions, taken in the context of the entire charge, was correct in law, adapted to the issues and sufficient to guide the jury. See Preston v. Keith, supra.

B

Finally, the defendant argues that the court improperly instructed the jury on the element of intent necessary to sustain a conviction for the crime of conspiracy to commit robbery in the first degree. Specifically, he claims that because the court’s charge amounted to a “general intent” instruction, his state and federal constitutional rights were violated because he was convicted in the absence of proof beyond a reasonable doubt of one of the necessary elements of the offense charged. We disagree.

Here again, we note that the defendant concedes that this claim has not been properly preserved for review. He seeks review under the plain error doctrine embodied in Practice Book § 4185, and under State v. Evans, supra, and State v. Golding, supra. Although, the defendant’s claim does not rise to the level of plain error; State v. Polanco, supra; we nevertheless afford it Evans-Golding review, since other, similar jury instruction claims alleging error of constitutional magnitude have been granted such review. See State v. Johnson, supra; State v. Harvey, supra; State v. Smith, supra.

When the court initially instructed the jury on the conspiracy charge, it read the information and stated, inter alia, that “[t]o constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt. One, there was an agreement between two or more persons to engage in conduct constituting a crime; two, there was an overt act in furtherance of the subject of the agreement; and three, there was the intent on the part of the defendant that conduct constituting a crime be performed.” The court also told the jury that a conspiracy conviction would have to be based “on the charge contained in the information,” and that in order to convict the defendant, it would have to be found that the defendant “had a specific intent to violate the law” that was the object of the conspiracy. Thereafter, the jurors asked to hear the three elements of the crime again. The court repeated the elements of conspiracy, stating, inter alia, that the state had to prove beyond a reasonable doubt that there was “the intent on the part of the defendant that conduct constituting a crime be performed.”

The defendant argues that since conspiracy is a specific intent crime; State v. Beccia, supra, 4; the court’s instruction was improper because it permitted the jury to find him guilty of some crime, rather than the crime that was the object of the conspiracy. Id. Again, we note that our role in reviewing jury instructions is not to dissect them critically in a microscopic search for possible error. State v. Hopkins, supra, 129. We examine them in their entirety; id., 130; State v. Grullon, supra; to determine if they are correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Hopkins, supra; Preston v. Keith, supra.

Our review of the record discloses that the jury was well informed as to what offense was the object of the conspiracy. In charging the jury, the court said that the information used to charge the defendant would be with the jurors in the deliberation room. The court read the information during its charge. It recited the three elements necessary to prove conspiracy and further told the jury that it could not find the defendant guilty unless the state proved beyond a reasonable doubt that he “had a specific intent to violate the law” that was the object of the conspiracy. The court then reiterated that to convict the defendant, the jury had to find that there was proof beyond a reasonable doubt of the crimes alleged in the information. We therefore conclude that the court’s instruction on the conspiracy charge was proper in that it stated the law correctly, adapted the issues to the case at hand and gave the jury sufficient guidance to reach a verdict. State v. Hopkins, supra; Preston v. Keith, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       General Statutes § 53a-133 provides: “robbery defined. A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The court told the jurors, inter alia, that “[a] person is guilty of robbery in the first degree when in the course of the commission of the crime or the immediate flight therefrom, he or another participant in the crime displays or threatens what he represents by his words or conduct to be a pistol, revolver or other firearm.”