author: Hull, J.

text:
    State of Connecticut v. Robert Anderson
    (3093)
    Hull, Daly and Bieluch, Js.

      Argued November 12, 1985
    decision released January 7, 1986

      ElsaM. Calderon, deputy assistant public defender, for the appellant (defendant).

      ErinM. Kallaugher, law student intern, with whom were John M. Massameno, assistant state’s attorney, and, on the brief, ArnoldMarkle, state’s attorney, and Frank DAddabbo, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant was convicted, after a trial to a jury, of sexual assault in the third degree in violation of General Statutes § 53a-72a. He appeals the conviction claiming that the trial court erred in denying, in part, his motion to exclude evidence of prior convictions and in denying his motion to suppress evidence of the victim’s and a witness’ out-of-court identifications of him. We conclude that neither of these claims has merit, and accordingly find no error.

The jury, on the basis of the evidence introduced at trial, could reasonably have found the following facts. The victim, while walking home from work on October 3,1983, at approximately 1:15 a.m., was confronted several times by a man driving a car. After following the victim, the man got out of his car and grabbed her breasts. Another man, who was driving by, saw the struggle, stopped and approached the victim. The assailant then fled.

The victim and the witness gave the police certain information about the assailant’s car. On the basis of this information, the police went to the defendant’s father’s home and asked the defendant to accompany them to headquarters. The witness and the victim, who had gone to the station to give the police a statement concerning the incident, both identified the defendant as the assailant. At trial, the victim and the witness made in-court identifications of the defendant, and the state introduced evidence of their out-of-court identifications.

Prior to the start of evidence, defendant’s counsel made an oral motion in limine to prevent the state from introducing evidence of the defendant’s 1982 felony convictions for sexual assault in the first degree and for kidnapping in the second degree. The court denied the motion without prejudice and the defendant excepted to the ruling. The defendant renewed the motion at trial and the state’s attorney indicated that he would introduce evidence of the convictions only to impeach the defendant. The court postponed ruling on admissibility until the state might attempt to offer the evidence. After the state rested, the defendant again pressed his motion, but the court again postponed ruling. The defendant excepted to the court’s postponement. In response to the defendant’s exception, the court reconsidered and decided the motion at that time, holding that the state could introduce evidence of the kidnapping conviction, but not of the sexual assault conviction. The defendant did not object or take an exception to this ruling. He did not testify and, therefore, evidence of his kidnapping conviction was not introduced.

The defendant first claims error in the trial court’s refusal to prohibit the state from admitting evidence of his conviction for kidnapping. He contends that the court erred in so ruling because the prejudice from admitting the evidence would have far outweighed its probative value. The defendant argues that this error was harmful, even though the evidence was not admitted, because the threat that it would be admitted deterred him from testifying.

The defendant did not, as mentioned above, except to the court’s decision to allow the state to admit the evidence. Under Practice Book § 288 “[ejvidentiary rulings ordinarily must be preserved for appellate review by an exception. State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978). ‘The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial.’ State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984).” State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1985). The defendant’s failure to except or to seek review under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), thus bars consideration of the merits of this claim.

The defendant’s next claim of error is based on the trial court’s decision to admit testimony of the witness’ and the victim’s out-of-court identifications of him. The defendant asserted, in a motion to suppress, that the procedures used to elicit the identifications were unnecessarily suggestive and that the resulting identifications were unreliable. On the basis of these allegations, he argued that admitting evidence of the identifications would violate his fourteenth amendment due process rights. The trial court, finding that the identification procedures used were not suggestive and that each identification was reliable, denied the motion to suppress. In this appeal, the defendant claims that the trial court’s decision was erroneous.

“[T]he use of out-of-court police identification procedures may give rise to a claimed violation of due process of law if the conduct of the procedure in a given instance was ‘unnecessarily suggestive and conducive to irreparable mistaken identification . . . . ’ ” State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975), quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Police procedures are suggestive where the circumstances surrounding the identification indicate “to the victim that she should positively identify the defendant.” State v. Gordon, 185 Conn. 402, 414, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982).

In this case, different methods were used to obtain the victim’s identification and the witness’ identification. The witness gave uncontroverted testimony that he identified the defendant spontaneously as the defendant entered the police station. In a factually similar case, our Supreme Court held that an accidental confrontation between a witness and a defendant did not result in a tainted identification. State v. Villafane, 171 Conn. 644, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled, in part, on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984), reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). In Villafane, the court, in reaching its conclusion, emphasized that the confrontation “was not conducted by the police” and that “[t]here was no evidence that the encounter was in any way prearranged . . . . ” (Emphasis in original.) State v. Villafane, supra, 657. Here, as in Villafane, the police did not ask the witness to make any identification. Nor is there any indication that the confrontation was arranged. Under these circumstances, the court was correct in concluding that the identification was not tainted and that the defendant’s due process rights were not violated by the admission of the evidence.

The trial court did err in ruling that the procedure used to obtain the victim’s identification was not suggestive. The victim testified that she was told by a police officer that she was being taken to view a suspect. She was then shown the defendant, who was the only individual in the room not wearing a policé uniform. Our Supreme Court has held that such one-on-one confrontations are suggestive. State v. Gordon, supra, 414; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976).

The state concedes on appeal that the “show-up” was suggestive, but claims that the defendant has not met his burden of showing that the procedure was also unnecessary. Whether a suggestive procedure is necessary depends on whether “exigent circumstances compel its use; Simmons v. United States, [390 U.S. 377, 384-85, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)] . . . . ” State v. Gordon, supra, 414. The factors to be considered in determining exigency include whether the defendant is or is not in custody, whether the victim will be available to make an identification when alternative procedures can be arranged, and whether there is any other particular need for the police “to determine quickly whether they [are] on the wrong trail. See Simmons v. United States, supra, [384-85].” Id., 415.

The defendant elicited testimony from three officers at the hearing on his motion to suppress. All were questioned extensively as to why no photographic array or lineup was conducted. One officer testified that he had no memory of what procedure was used or why. Another testified that no lineup was attempted because the police already had evidence, independent of the victim’s identification, that could link the defendant to the crime. That same officer testified that he knew of no reason why a lineup could not have been done the next day. The investigating officer testified that neither a photographic array nor a lineup was arranged because the lateness of the hour made the alternative procedures impossible.

Given the nature of the evidence presented at the suppression hearing, we cannot hold that the “show-up” was necessary. While there was testimony that alternatives were not available that night, there is no indication that there was a special need to have an immediate identification made. The investigating officer testified that there was no reason to believe that the victim would not be available to make an identification later. Another officer testified that he knew of no reason why a lineup could not be held the next day. Perhaps most importantly, that officer testified that he felt he already had sufficient evidence to link the defendant to the crime without the victim’s identification. “Although a suggestive procedure may be permitted if exigent circumstances compel its use; Simmons v. United States, supra, 384-85; this case presented no danger that the opportunity for an identification would be lost unless a speedy show-up was held.” State v. Gordon, supra, 414. Accordingly, we conclude that the procedure used to obtain the victim’s identification was unnecessarily suggestive.

“Our determination that the pretrial show-up was unnecessarily suggestive does not end our inquiry into whether the victim’s identification of the defendant at the show-up was admissible at trial. The second prong of the . . . test is reliability. . . . [W]e must consider whether the ‘totality of the circumstances’ rendered the identification unreliable. State v. Packard, [184 Conn. 258, 265-66, 439 A.2d 983 (1981)]; State v. Theriault, [182 Conn. 366, 373, 438 A.2d 432 (1980)].” State v. Gordon, supra, 415; State v. Nelson, 4 Conn. App. 514, 517, 495 A.2d 298 (1985). The factors to consider in determining whether an identification is reliable despite the use of a suggestive procedure are as follows: the length of time the witness had to view the individual; the conditions, including distance and lighting, under which the witness viewed the individual; the witness’ degree of attention during the time he viewed the individual; the time between the incident and the identification; the accuracy of the description given to the police by the witness; and the witness’ confidence about his identification. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Jennings, 5 Conn. App. 500, 507, 500 A.2d 571 (1985).

The trial court determined that the identification was, under the totality of the circumstances, reliable. While we recognize that this court must “examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court”; State v. Gordon, supra, 416; we find that the trial court’s conclusion as to reliability was correct. The defendant concedes that the degree of certainty displayed by the victim and the length of time between the crime and the confrontation indicate reliability. The other factors similarly indicate reliability. The victim testified that the areas where she viewed her assailant were main streets and that they were well lit by street lights. She testified that she looked at her assailant twice while he was in his car, once from a distance of approximately one car width and once from a distance of approximately two car widths. She saw him again from approximately an arm’s length when he assaulted her. While she saw him only briefly, she looked directly at him. All these factors, when taken together, show that the court was correct in concluding that, under the totality of the circumstances, the identification was reliable.

There is no error.

In this opinion the other judges concurred.

       Just before trial, the defendant had filed a written motion in limine in which he sought to exclude evidence of prior convictions for sexual assault and for burglary. That motion was denied.

       The defendant’s previous exceptions to the court’s rulings on his motion in limine did not preserve this claim of error. “When the court made its ultimate ruling, ‘the defendant could then have reminded the court of his previous exception . . . and reiterated his exception if he found the court’s [ruling] insufficient’ to protect his rights. State v. Jones, [193 Conn. 70, 88, 475 A.2d 1087 (1984).]” State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1985). His failure to do so renders the claim unreviewable.

       The Supreme Court reached this conclusion even though the witness saw the defendant outside police headquarters, in handcuffs, in the custody of two officers who the witness knew were investigating the incident.

       Our Supreme Court has repeatedly emphasized that “[a] defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Vass, [191 Conn. 604, 608, 469 A.2d 767 (1983)]; State v. McKnight, [191 Conn. 564, 570, 469 A.2d 397 (1983)]; State v. Kinsey, 173 Conn. 344, 345-46, 377 A.2d 1095 (1977).” State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984).

       If the police already had probable cause to arrest the defendant, an issue which we do not address, then the need to obtain an identification immediately was far less compelling.

       See State v. Brown, 187 Conn. 602, 447 A.2d 734 (1982).

       In one line of his brief, the defendant also asserted that the in-court identifications were tainted by the pretrial identifications. We need not consider this claim because “[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned . . . . ” Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982). We note, however, that this claim is disposed of by our decision on the validity of the pretrial identifications. In the absence of a tainted pretrial identification, the state is not required to show an independent basis for the in-court identification. State v. Guertin, 190 Conn. 440, 459, 461 A.2d 963 (1983).


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Joseph L. Grant
    (2211)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 7, 1985
    decision released January 14, 1986

      Joseph G. Bruekmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      MichaelE. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Rosita Creamer and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Borden, J.

The defendant was found guilty by a jury of attempted burglary in the third degree, in violation of General Statutes §§ 53a-49 and 53a-103. The judgment of conviction followed his guilty plea to being a persistent serious felony offender. He appeals, claiming (1) that the evidence was insufficient to support the conviction, (2) that there were several errors in the jury charge, and (3) that he was not afforded effective assistance of trial counsel. The dispositive issue on appeal is whether the failure of the court to define in its jury charge the essential statutory element of an “unlawful” entry was reversible error. We hold that it was, and remand for a new trial.

The jury could reasonably have found the following facts: The premises in question were the apartment of the defendant’s sister, Brenda Fowora, and brother-in-law, John Fowora, who were in the process of separating. His sister no longer lived at the apartment and had, on the morning of the crime, removed the last of her possessions. Earlier, when the defendant learned that his sister was moving, he asked her what property she was taking with her. She told him that she was taking everything but a few of her husband’s belongings including his television set, stereo and video recorder. The defendant had visited the Fowora apartment previously and had seen these items.

At noon of the day in question, the defendant entered the apartment building through the main doors. He was seen by a neighbor and the neighbor’s friend who were standing outside of the building at the time. Fifteen minutes later, the defendant exited the building and asked the neighbor’s friend for a screwdriver. The friend gave a screwdriver to the defendant, who reentered the building. A few minutes later, the neighbor went to the rear of the building to look for her daughter. She saw the defendant standing at the window of the Fowora apartment fidgeting with the bottom part of the window. He did not appear to be repairing the window. The neighbor, by now believing that the defendant was attempting to break into the apartment, returned to her apartment and called the office supervisor of the building complex. The supervisor called the police and dispatched the building superintendent to investigate. The superintendent found the defendant inside the building sitting on the floor next to the door of the Fowora apartment. When asked what he was doing there, the defendant said he was waiting for his sister.

The police officer arrived and found the defendant sitting on the stairs inside the building holding a screwdriver. The officer took the screwdriver from him and asked what he was doing. The defendant replied that his sister had asked him to repair a screen and that she would be returning shortly. The officer and the defendant went to the rear of the building where the defendant pointed out the repair which he claims he had made. There was a tear in the screen, which was tied to the frame with yarn. This repair would not have required a screwdriver and the defendant did not explain his need for one. There were recently made scratches on the lower portion of the metal window frame which appeared to have been made by an attempt to jimmy the window from the frame.

John Forowa testified that the defendant had no right to be in the apartment. Neither Brenda Fowora nor John Fowora had requested him to make any repairs to the apartment. Brenda Fowora had neither asked nor expected the defendant to come to the apartment. He had not told her that he would come to the apartment.

I

Jury Charge on Attempted Burglary

We first consider the defendant’s claim that the court erred by neglecting to define the statutory phrase, “enters ... unlawfully,” as an essential element of the offense of attempted burglary in the third degree. See footnote 1, supra. Because the defendant neither filed any request to charge nor excepted to the charge as given, our inquiry on this claim is circumscribed by the boundaries of the by now all too familiar Evans bypass. State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Lopez, 5 Conn. App. 599, 602-603, 502 A.2d 418 (1985).

“[O]ur Evans inquiry in this case has three prongs: (1) whether the record supports the defendant’s claim that the charge raises a question of fundamental constitutional dimension; (2) if so, whether there was error; and (3) if there was error, whether it requires reversal. ... In cases involving claimed error in the judge’s charge to the jury, the ultimate issue is whether it was reasonably possible that the jury was misled”; State v. Lopez, supra, 603; “into misunderstanding an issue that has fundamental constitutional significance.” State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985).

The defendant claims specifically that the court, in charging the jury on the elements of the underlying crime of burglary, did not read the statutory definition of the essential element that the defendant enter the premises “unlawfully,” and did not explain, either directly or indirectly, the meaning of that element. A claim that a jury charge omitted an essential element of the crime charged raises an issue of fundamental constitutional dimension. State v. Maltese, 189 Conn. 337, 341-42, 455 A.2d 1343 (1983); State v. Hilliard, 3 Conn. App. 339, 342, 488 A.2d 463 (1985). The record adequately supports the claim, indicating that the court did not read and explain to the jury the statutory definition of the essential element of an unlawful entry. General Statutes § 53a-100 (b). We turn, therefore, to the question of whether it was reasonably possible that the error misled the jury.

The entire portion of the charge on the definition of burglary in the third degree is as follows: “The Burglary Statute reads, — It is a very short Statute. ‘A person is guilty of Burglary in the Third Degree when he enters or remains unlawfully in a building with the intent to commit a crime therein.’ Now, the elements for the commission of a burglary are these. He enters or remains unlawfully in a building. Enters or remains (1) building; (2) with intent to commit a crime therein. That is the Burglary Statute.” Thus, the court did tell the jury twice that an entry must be unlawful. The court failed, however, to read the definition of that term and to explain it further.

We recognize that we must consider the substance rather than the form of the challenged instruction; State v. Zayas, 195 Conn. 611, 617, 490 A.2d 68 (1985); and that the instruction must be examined with reference to the factual issues in the case. State v. Torrence, 1 Conn. App. 697, 705, 476 A.2d 598 (1984), aff d., 196 Conn. 430, 493 A.2d 865 (1985). We conclude nonetheless that, because the court told the jury that unlawfulness was an element but did not explain its meaning, it is reasonably possible that the jurors were misled into believing that they should apply their common understanding of the term and, thus, were misled into misunderstanding an issue which has constitutional significance. See State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985).

“A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.” (Emphasis added.) General Statutes § 53a-100 (b). Although the separate terms, “licensed” and “privileged,” have occasioned some comment in our civil precedents; see, e.g., Miller v. Grossman Shoes, Inc., 186 Conn. 229, 237, 440 A.2d 302 (1982) (license); Hartford v. Powers, 183 Conn. 76, 83 n.2, 438 A.2d 824 (1981) (privilege); their meaning as used in General Statutes § 53a-100 (b) has not been articulated.

When used in the context of an entry on land or premises, the two terms do not have mutually exclusive meanings. Rather, their meanings blend together. “A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.” (Emphasis added.) 25 Am. Jur. 2d, Easements and Licenses § 123. Generally, a license to enter premises is revocable at any time by the licensor. Id., § 128. It is exercisable only within the scope of the consent given. Miller v. Grossman Shoes, Inc., supra. The term, “privilege,” is more general. It is “ ‘a right or immunity granted as a peculiar benefit, advantage, or favor; special enjoyment of a good or exemption from an evil or burden; a peculiar or personal advantage or right esp. when enjoyed in derogation of common right; prerogative.’ ” Hartford v. Powers, supra, quoting Webster, Third New International Dictionary. It is a “right peculiar to an individual or body. . . . An advantage held by way of license, franchise, grant, or permission, not possessed by others. . . . An immunity existing under the law.” (Emphasis added.) Ballentine’s Law Dictionary.

The phrase, “licensed or privileged,” as used in General Statutes § 53a-100 (b) is meant as a unitary phrase, rather than as a reference to two separate concepts. This conclusion is buttressed by reference to the New York Penal Law, on which much of our penal code is based. State v. Privitera, 1 Conn. App. 709, 721 n.8, 476 A.2d 605 (1984). Our statutory definition of the phrase, “enters or remains unlawfully,” is drawn directly from § 140.00 of the New York Penal Law. “For a discussion of what constitutes a license or privilege to enter or remain upon premises,” the commentary to the New York law points to chapter 8 of the Restatement of Torts (Second), entitled “Privileged Entries on Land.” N.Y. Penal Law § 140.00 (McKinney’s 1975); Hechtman, Practice Commentaries § 140.00, p. 15. Thus, the Restatement of Torts supplies an additional although not the exclusive source for the resolution of whether, in any particular case, a person’s entry on premises was unlawful within the meaning of General Statutes § 53a-100 (b).

In general, a license or privilege to enter premises may derive from a transaction between the possessor and the actor, or may arise irrespective of any such transaction. Examples of those that arise from such a transaction involve situations in which there is a present consent, or there was a past consent, creating a license to enter. Examples of those that arise irrespective of previous transactions between the parties involve situations in which the possessor acted tortiously toward the actor, or when public policy creates the license or privilege. See 1 Restatement (Second), Torts, p. 307-308 (chapter 8 scope note).

Whether an entry on premises is “unlawful” within the meaning of General Statutes § 53a-100 (b) is a question of fact for the jury. The jury must, however, be fully and properly instructed on the applicable rules of law governing that question. The trial court is obligated, in discharging its function of instructing the jury on the law, to explain those rules of law which are applicable to the facts of the particular case. See State v. Preyer, 198 Conn. 190, 199-200, 502 A.2d 858 (1985). The court did not do so here.

We agree with the state that, on the evidence presented, the only possible license or privilege of the defendant was that he had consent, express or implied, to enter the apartment. Thus, the state’s burden, in establishing that his attempted entry was unlawful, was to prove that no such consent had been given. The critical flaw in the court’s charge, however, is that it never told the jury, either directly or indirectly, that the state had such a burden. Nowhere in the charge, either in its explanation of the law or in its recitation of the evidence, did the court advert either to this burden on the state or to the testimony of the Foworas that the defendant had no such consent.

At best, therefore, the jurors were left with their own common understanding of the meaning of the term, “unlawful.” That meaning, according to Webster, Third New International Dictionary, is either “contrary to or prohibited by law,” which is too general to be useful, or “contrary to normal or acceptable procedure: irregular . . . not morally right or conventional,” which is simply not the same as the technical meaning of the term as used in General Statutes § 53a-100 (b).

Thus, this case is unlike State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977), relied on by the state, in which the Supreme Court held that a failure to give a statutory definition of an essential element is not error when that definition substantially coincides with its ordinary meaning. See also State v. Hilliard, supra, 341 n.3. In this case, it is reasonably possible that the failure of the court to define the phrase, “enters unlawfully,” misled the jury into misunderstanding the meaning of an essential element of the crime charged.

This conclusion renders it necessary to consider only one other claim of the defendant on appeal, namely, that the evidence was insufficient as a matter of law to support the verdict. It is necessary to consider this claim because, if the evidence was insufficient, the state would be barred by double jeopardy principles from retrying the defendant, and he would be entitled to a judgment of acquittal rather than a new trial. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

II

Sufficiency of Evidence

The defendant claims that the evidence was insufficient for the jury to find that he intended to commit a crime in the apartment, and to find that his attempted entry was unlawful. We disagree.

The defendant knew that his sister was moving from the apartment leaving her husband’s television set, video recorder and stereo, which the defendant had seen and which he knew would be virtually the only items left in the apartment. He was attempting to enter the apartment through a back window, hardly a normal point of entry even for the dwelling of one’s sibling. His lies to the building superintendent and police officer about his sister’s request to repair the screen and about her intent to return shortly evidence a consciousness of guilt. See State v. Fullard, 5 Conn. App. 338, 342, 497 A.2d 1041 (1985). “To any person of ordinary intelligence, the expected by-product of a surreptitious unlawful entry into the home of another is theft. People v. Johnson, 28 Ill. 2nd 441, 443, 192 N.E.2d 864 (1963); Commonwealth v. Eppich, 342 Mass. 487, 493, 174 N.E.2d 31 (1961). The . . . [scratch] marks on the window . . . bespeak criminal purpose.” State v. Zayas, 195 Conn. 611, 617-18, 490 A.2d 68 (1985).

In State v. Zayas, supra, 617, the Supreme Court aptly noted: “Common experience tells us that an unlawful entry into a dwelling at night through a window is not without purpose. Nor are people accustomed to enter homes of strangers through a window for innocent purposes.” To be sure, this attempted entry was in the daytime and did not involve the home of strangers. While those two differentiating factors might, under some circumstances, persuade a jury that an attempted entry was with benign or at least noncriminal intent, they do not render the evidence of this attempted entry insufficient as a matter of law, particularly where, as here, “[t]here is no evidence which suggests otherwise.” Id., 618.

The defendant’s claim that the evidence was insufficient to support a finding that his attempted entry was unlawful, is without merit. As we have already indicated, under the facts of this case, the state’s burden on this element of the offense amounted to proving that the defendant had no consent, express or implied, to enter the apartment. There was evidence from which the jury could find that he had no present consent from either his sister or brother-in-law to be in the apartment. The jury could also reasonably conclude that his past visits to the apartment in the presence of his sister and brother-in-law did not carry any implied consent to enter in their absence.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters and remains unlawfully in a building with intent to commit a crime therein.”
      General Statutes § 53a-100 (b) provides: “The following definition is applicable to sections 53a-101 to 53a-106, inclusive: A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.”

       The defendant does not claim, of course, that the Fowora apartment was open to the public. That phrase, therefore, is not involved in this decision.


text:
    Anthony Esposito et al. v. Planning Commission of the Town of Westbrook
    (2983)
    Hull, Daly and Bieluch, Js.
    Argued November 15, 1985
    decision released January 14, 1986

      Roger J. Frechette, for the appellants (plaintiffs).

      Bruce G. MacDermid, for the appellee (defendant).
   Hull, J.

The dispositive issue in this appeal is whether the plaintiffs were entitled to a writ of mandamus ordering automatic approval of their subdivision application under the sixty-five day rule set forth in General Statutes § 8-26d since the defendant planning commission failed to take any action on that application after it had been remanded by the Superior Court to the planning commission for reconsideration. The trial court rendered judgment for the defendant, from which the plaintiffs appeal. In the light of Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 440 A.2d 163 (1981), we conclude that the trial court was in error in denying the plaintiffs’ application for a writ of mandamus to order the issuance of the disputed subdivision approval.

The facts as found by the trial court are not in dispute. On April 4,1977, the plaintiffs applied to the commission for subdivision approval. On September 13, 1977, the application was denied, there being an unresolved problem over access. The plaintiffs appealed this denial to the Superior Court which, on May 29, 1979, sustained the plaintiffs’ appeal because the planning commission had failed to publish notice of its decision as required by statute. See General Statutes § 8-26. The court, Fishman, J., concluded that the plaintiffs’ appeal “is sustained and [the case is] remanded to the defendant Commission for reconsideration rather than reapplication. No subdivision application fees are to be assessed by [the] plaintiffs. It is only fair that [the] plaintiffs receive a second bite of the apple in light of [the] defendant’s statutorily deféctive conduct.” The plaintiffs filed a petition for certification to the Supreme Court claiming that the trial court abused its discretion in not sustaining their appeal on the additional ground that they had complied with the regulations and therefore were entitled, as a matter of law, to have the subdivision approved. This petition was denied on February 7, 1980. On June 19, 1980, the plaintiffs demanded, by certified mail, that the commission issue the requested approval of their subdivision because of its failure to render a decision within the time limitation of General Statutes § 8-26d. Upon the commission’s refusal to grant such approval, the plaintiffs brought this mandamus action.

The defendant filed three special defenses: (1) laches; (2) equitable estoppel; and (3) election of remedy by seeking certification in the Supreme Court rather than requesting reconsideration by the commission in accordance with the Superior Court judgment.

The trial court, in the mandamus action, stated in its memorandum of decision that the issue was whether the sixty-five day rule of General Statutes § 8-26d was applicable and, if so, when the countdown started. The plaintiffs contended in the trial court and also on appeal that the sixty-five day period began running on February 17,1980, ten days after the Supreme Court denied the plaintiffs’ petition for certification. On the basis of this interpretation, the plaintiffs claim that the commission had to act on the reconsideration order before April 25,1980. The defendant claimed in the trial court and on appeal that the sixty-five day period never began to run because General Statutes § 8-26d requires a formal application, request or appeal in order to trigger the time limitation rule. It also argues that the statute does not provide that a Superior Court or Supreme Court order operates to begin the running of the sixty-five day period.

The mandamus trial court ruled as follows: (1) the crux of the matter is whether the term “reconsideration” can properly be construed as placing the burden of going forward on the defendant; (2) it was implicit in the previous court’s order that the plaintiff normally has the burden of reapplying to the agency to have the proper decision rendered; (3) the remand for reconsideration is not provided for in statutory appeals from a planning commission; (4) the sustaining of the plaintiffs’ prior appeal rendered the initial denial of the application null and void so that at the time, without reconsideration, there would no longer be an application before the commission; (5) a party applying for a writ of mandamus must have a clear legal right to have the duty performed; (6) it was not clear whether the defendant had a duty to reconsider the application; (7) equitable considerations would militate against granting mandamus to the plaintiffs; (8) the plaintiffs did not request reconsideration; (9) the plaintiffs were not guilty of laches, there being no indication that the commission was prejudiced because of the delay; (10) Gervasi v. Town Plan & Zoning Commission, supra, is not controlling because: (a) the Gervasi plaintiff won an appeal on the merits while the plaintiffs in this case won their appeal on procedural grounds; (b) in Gervasi, the defendant refused to comply with the court’s orders; (c) in this case, the defendant commission never refused to comply with the court order but was uncertain how to comply; and (d) the commission has stood ready to receive a resubmitted application; (11) the plaintiffs are not entitled to a writ of mandamus as they have not established a clear duty on the part of the defendant to perform; and (12) the plaintiffs have not shown that the sixty-five day period should commence at a point other than that indicated in General Statutes § 8-26d (a).

On appeal, the plaintiffs claim that the principal issue is the court’s refusal to order the defendant to approve the subdivision application. Our analysis of this issue requires close examination of Gervasi v. Town Plan & Zoning Commission, supra. In Gervasi, the plaintiff applied to the defendant plan and zoning commission for approval of a subdivision plan. The commission disapproved the application. The commission’s ruling was appealed to the Court of Common Pleas which sustained the plaintiff’s appeal holding that the “defendant’s rejection of the application was illegal, arbitrary, and in abuse of its assigned authority.” Gervasi v. Town Plan & Zoning Commission, supra, 451, quoting the trial court. The defendant’s petition for certification was denied by the Supreme Court. When the commission thereafter refused to grant the permit, the plaintiff brought a mandamus action to compel its issuance. On January 31,1977, the trial court denied mandamus “but ordered that ‘the application be considered as soon as possible in conformity with the statutes and regulations . . . .’” Id. The court’s order having been disregarded by the commission, a new action of mandamus was brought. On July 11,1977, the court “ordered that the ‘application shall be heard by [the] defendant board, as soon as possible in conformity with law.’ ” Id.

The zoning commission held a public hearing and denied the application “without prejudice.” The plaintiff appealed the commission’s action to the Court of Common Pleas and filed yet a third mandamus action. The two cases were consolidated and the court sustained the appeal because of improper notice, but denied the request for mandamus, ruling “that an action of mandamus seeking the issuance of an approval of the application ‘does not lie.’ ” Id, 452. In his appeal to the Supreme Court, the plaintiff sought an order requiring the commission to issue the permit, as its actions violated the terms of the trial court’s orders of January 31,1977, and July 11,1977, and the provisions of General Statutes (Rev. to 1977) § 8-26.

The Supreme Court held that the trial court’s order of January 31,1977, was the crucial order, merely confirmed later by the July 11, 1977 order. It noted that no action was taken by the commission after January 31, 1977, until the public hearing seven months later and the denial of the application another month after the hearing. The Supreme Court then proceeded to answer the procedural questions central to this case: “The question arises as to the procedure to be followed by the commission on remand after [the January 31, 1977] order. As outlined above, the commission, after much delay and another court action, finally set the matter down for a public hearing which was held on September 6, 1977. We conclude that this procedure was erroneous in that a public hearing had already been held on the initial application on June 11, 1973. General Statutes (Rev. to 1977) § 8-26 does not authorize multiple public hearings in connection with a single subdivision proposal. Nor did the court’s remand order contemplate another public hearing. In its opinion, the court ordered ‘that the application be considered as soon as possible in conformity with the statutes and regulations.’ (Emphasis added.) This directive precluded the commission from treating the matter as a new submission. In effect, the proceedings before the commission were to be taken up where they had been left off: the posthearing or deliberative stage.

“General Statutes (Rev. to 1977) § 8-26 allows sixty-five days after a public hearing for the commission to approve, modify and approve, or disapprove a subdivision application. Under the terms of the court’s January 31, 1977 order, this time period began to run as of that date. When the commission failed to reconsider the application until October 10,1977, the application was approved by operation of law. See General Statutes (Rev. to 1977) § 8-26; Viking Construction Co. v. Town Planning Commission, 181 Conn. 243, 246, 435 A.2d 29 (1980). Because the application had been approved by operation of law long before the commission purported to disapprove the application on October 10, 1977, and because the plaintiff, under the pertinent statute, had a clear legal right to the issuance of a certificate to that effect, the plaintiff was entitled to the order in the nature of mandamus which he sought in the court below. See Viking Construction Co. v. Town Planning Commission, supra, 247-48. The trial court erred in ruling otherwise.” (Footnotes omitted.) Gervasi v. Town Plan & Zoning Commission, supra, 452-55.

The Gervasi court also discussed the proper procedure on remand: “Our conclusion is not altered by the language of the court’s opinion which directs ‘[t]he matter is therefore remanded to the Commission for a new hearing as soon as possible in compliance with the Court’s orders.’ The bare use of the word ‘hearing’ does not necessarily require that a ‘public hearing,’ as those words are used in General Statutes (Rev. to 1977) § 8-26, be held. Considered in context, it is apparent that the only hearing necessary for the commission’s reconsideration of the matter involved additional oral argument by the parties. A ‘hearing’ can be merely for the purpose of presenting arguments and the term embraces any oral proceeding before a tribunal. Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 469-70, 378 A.2d 547 (1977); Colonial Trust Co. v. Austin, 133 Conn. 696, 699, 54 A.2d 503 (1947). Thus, on remand, it is clear that the commission had no authority to treat the plaintiff’s subdivision application as a new submission.” (Emphasis added.) Gervasi v. Town Plan & Zoning Commission, supra, 454 n.2.

Gervasi and the present case make a tight fit. The only difference between the cases lies in two aspects: (1) Judge Fishman in this case ordered “reconsideration” rather than “consideration,” a distinction of no significance; and (2) the trigger date in this case was the date the Supreme Court denied the plaintiffs’ petition for certification from Judge Fishman’s judgment. This is not inconsistent with the Supreme Court’s determination of the trigger date in Gervasi as the day the court initially ordered the commission to consider the application as soon as possible.

The trial court, and the commission in this court, stressed the uncontroverted fact that both parties were uncertain how to proceed after Judge Fishman’s remand and that the plaintiffs did not desire or seek a new hearing. The commission argues that Gervasi should be distinguished because the plaintiff in that case sought a rehearing after the remand. That is a difference, however, without a distinction. It leads us to no different conclusion.

The trial court also found that the plaintiffs did not have a clear right to a mandamus. This appeared to be so at the time of the events involved, since Gervasi had not yet been decided. Gervasi, however, was decided almost nineteen months before the trial court issued its ruling. The plaintiffs then had a clear right to mandamus. “In mandamus, the factual situation existing at the time the writ is to issue governs.” (Citations omitted.) Gormley v. Panuzio, 166 Conn. 1, 2, 347 A.2d 78 (1974); 52 Am. Jur. 2d, Mandamus § 32.

We conclude that Gervasi controls this case. The burden was not on the plaintiff to seek reconsideration. On February 7, 1980, the statutory limitation period began to run. Since the commission failed to act on the application within sixty-five days of that date, the plaintiffs have a clear right to a writ of mandamus directing the commission to issue a certificate in accordance with the provisions of General Statutes § 8-26.

The defendant preserved its three special defenses, under Practice Book § 3012, as alternate grounds on which the judgment may be sustained. The first of these special defenses is laches. The court’s conclusion that laches did not lie is not clearly erroneous. The defendant, in this case, does not claim any prejudice as a result of the delay in bringing the mandamus action. See Berin v. Olson, 183 Conn. 337, 344, 439 A.2d 357 (1981); Nauss v. Pinkes, 2 Conn. App. 400, 411, 480 A.2d 568 (1984).

The defendant also claims that the judgment can be upheld on the basis of the theories of equitable estoppel and election of remedy. The court, however, did not rule on these defenses and the defendant did not move to have the court articulate thereon in its decision. We thus have nothing before us to consider in this regard. “Since the defendant has failed to supply a record presenting the trial court’s rationale, as is [its] burden, we are disinclined to [consider these claims].” Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983). Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984).

There is error, the judgment is set aside and the case is remanded with direction to grant a writ of mandamus in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 8-26d provides in pertinent part: “hearings and decisions, time limits, day of receipt, (a) In all matters wherein a formal application, request or appeal is submitted to a planning commission under this chapter and a hearing is held on such application, request or appeal, such hearing shall commence within sixty-five days after receipt of such application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. . . .
      “(b) A decision on an application for subdivision approval, on which no hearing is held, shall be rendered within sixty-five days after receipt of such application. . . .”

       April 25,1980, is more than sixty-five days from the denial of certification. This discrepancy is immaterial.

       The meaning of this finding is not entirely clear, but this is immaterial in view of the disposition we make of this case.

       In view of our disposition of the case, we do not reach the plaintiffs’ second ground of error arising out of certain rulings on evidence.

       The Supreme Court’s denial of Gervasi’s petition can be found in Gervasi v. Town Plan & Zoning Commission, 168 Conn. 679, 339 A.2d 478 (1975).

       This section is similar to General Statutes § 8-26d in all pertinent respects.

       General Statutes § 8-26 provides in pertinent part: “The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand.”


author: Per Curiam.

text:
    Robert Boris Beachboard v. The Trustees of Columbia University in the City of New York
    (3731)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 3, 1985
    decision released January 14, 1986

      Robert Boris Beachboard, pro se, the appellant (plaintiff), filed a brief.

      Paul F. Thomas, for the appellee (defendant).
   Per Curiam.

This is an appeal from the dismissal of the plaintiff’s action for lack of personal jurisdiction over the defendant, commonly known as Columbia University. The plaintiff, proceeding pro se, brought an action against the university, a foreign nonprofit corporation, for the alleged misrepresentation of its admission policy after the plaintiff was repeatedly denied admission as a graduate student. The complaint was served on the chairman of the university’s board of trustees at his residence in Connecticut.

Our review of the record in this case indicates that there was no statutory basis for the exercise of personal jurisdiction over the university and, therefore, the trial court was correct in granting its motion to dismiss. The plaintiff is incorrect in his claim that the university is a foreign partnership over which personal jurisdiction was obtained by serving a partner residing in the state pursuant to General Statutes § 52-57. Instead, the issue of personal jurisdiction in this case is governed by General Statutes § 33-519 (c), which sets forth the specific statutory requirements for jurisdiction over a foreign corporation, none of which is satisfied in this case. See Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 253, 460 A.2d 481 (1983). In fact, the only connection alleged in this case between the plaintiff, the university and this state is that the chairman of the university’s board of trustees resides in this state, which alone fails to satisfy any of the statutory requirements for exercising personal jurisdiction over the university. Further, the plaintiff has not alleged that he is a resident of this state or has a usual place of business in this state as required by General Statutes § 33-519 (c).

There is no error.

       General Statutes § 33-519 (c) provides: “Every foreign corporation shall be subject to suit in this state by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is conducting or has conducted affairs in this state on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; (2) out of any solicitation in this state by mail or otherwise if the corporation has repeatedly so solicited; (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or a single act and whether arising out of misfeasance or nonfeasance.”
      See also General Statutes § 33-411 (c) relating to foreign stock corporations.


text:
    Peter Aurora v. Miami Plumbing & Heating, Inc., et al.
    (3822)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 6, 1985
    decision released January 14, 1986

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellant (defendant Second Injury and Compensation Assurance Fund).

      Christopher P. Hankins, with whom, on the brief, was Edward D. O’Brien, Jr., for the appellee (defendant Transamerica Insurance Services).
   Per Curiam.

This appeal is taken from a decision of the compensation review division of the workers’ compensation commission pursuant to General Statutes § 31-30lb. The review division affirmed a decision of the compensation commissioner who had ordered the custodian of the Second Injury and Compensation Assurance Fund (Fund) to assume liability for compensation payments to be made to the claimant, Peter Aurora, pursuant to General Statutes § 31-349. The Fund claims error in the review division’s conclusions (1) that the employer’s insurer sustained its burden of proving that Aurora’s injury had been exacerbated by a pre-existing condition, and (2) that the employer’s insurer had met the standard of “reasonable probability” required for finding that such a pre-existing condition existed. We agree with the review division.

The Fund’s first claim is based on the failure of the sole medical expert, Dr. Franklin C. Wagner, Jr., a neurosurgeon from the Yale University School of Medicine, to state explicitly in his two medical reports that his opinion was “reasonably probable.” Rather, Wagner, in his first report, qualified his opinion with the phrase “likely to have resulted.” (Emphasis added.) In his second report, Wagner stated that “it is my medical opinion that his lumbar stenosis did antedate his injury.” The commissioner, and the review division in affirming his decision, concluded that these two statements were sufficient to elevate Wagner’s conclusion to the level of “reasonable medical probability.” We agree.

“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towns v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158, 62 L. Ed. 372 (1918); DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 594, 501 A.2d 768 (1985). We conclude that the reports submitted by Wagner, although not employing the “magic words,” supported the decision below.

The Fund’s second claim relates to the review division’s failure to overturn the commissioner’s decision because that decision was unsupported by subordinate facts. We will not review the facts as found by the commissioner. Our role is to determine whether the review division’s decision results “from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979); Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196, 497 A.2d 435 (1985). We can find no such flaw in this case.

There is no error.

       Such is the standard of proof enunciated in Madore v. New Departure Mfg. Co., 104 Conn. 709, 714, 134 A. 259 (1926).


text:
    Carlet Denby v. Commissioner, Department of Income Maintenance
    (3737)
    Dupont, C. J., Borden and Spallone, Js.

      Argued November 5, 1985
    decision released January 14, 1986

      Dante R. Gallucci, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Stephen F. Frazzini, for the appellee (plaintiff).
   Borden, J.

The defendant, the commissioner of the department of income maintenance (DIM), appeals from the trial court’s judgment reversing a DIM fair hearing officer’s decision to uphold DIM’s proposal to discontinue the plaintiff’s benefits under the Aid to Families with Dependent Children (AFDC) program. There are three interrelated issues in this appeal. The first issue is whether the trial court erroneously substituted its judgment for that of the fair hearing officer. The second issue is whether the officer’s decision was erroneous on grounds other than those found by the trial court. The third issue involves a determination of the proper remedy when error is found. We find that both the trial court and the officer erred, and we remand for further proceedings.

DIM granted AFDC benefits to the plaintiff effective September 30, 1982. Shortly thereafter, DIM learned that the plaintiff held legal title to a 1978 automobile the value of which exceeded the maximum eligibility limit of $1500. DIM therefore sent a notice of discontinuance of benefits to the plaintiff proposing termination of her benefits due to excess assets. The plaintiff made a timely request for a fair hearing pursuant to General Statutes § 17-2a, and DIM continued her benefits pending the decision.

The DIM officer held a hearing which included presentation of testimonial and documentary evidence. There was evidence that the title to the car was in the plaintiff’s name. The plaintiff, however, did not declare ownership of the car when she applied for benefits, although this asset was worth $6075 as of the date of the hearing, which was approximately three months after the date she was granted benefits. The plaintiff’s mother testified that she purchased the car in 1978. The mother further testified that she paid for the car in full but that the only receipt for this purchase remaining, after a house fire, was the receipt for the down-payment. Both the plaintiff and her mother testified that the car was not a gift to the plaintiff. Both considered the car to be the mother’s property and testified that, if sold, the mother would receive the proceeds from the sale. They also testified that the plaintiff was eighteen years old when the car was purchased, that the plaintiff did not then have a driver’s license and that she did not obtain a license to drive until March 30, 1982, approximately four years later. The mother testified that the plaintiff did not know how to drive when the car was purchased. The officer received into evidence copies of personal checks as receipts for payments made by the mother for auto repairs and insurance. The insurance was purchased in the plaintiff’s name. One of these personal checks bears the memo “Carlet Denby,” and one indicates “Car Insurance.”

According to the mother’s testimony, the reason for placing legal title in the plaintiff’s name was to avoid a potential judgment creditor in a lawsuit then pending against the mother. The officer received into evidence a copy of the complaint filed against the mother and a copy of the satisfaction of judgment dated October 12, 1981. The mother testified that she and the plaintiff had agreed that the plaintiff would transfer title after the judgment was satisfied in 1981. The plaintiff twice attempted to fill out and file the title transfer forms, but misspelled her mother’s name on the first form. On the second form, she listed herself as lien-holder. The plaintiff testified that she submitted the registration plates to the department of motor vehicles and produced a receipt as additional proof. She stated that she had done everything she was told to do in order to transfer title, and that she did not declare ownership of the car in her 1982 AFDC application because she believed that she had effectively transferred title to her mother. The mother testified that because the car was in disrepair, she did not file the title transfer form with the department of motor vehicles.

The plaintiff argued that this evidence supports the conclusion that the plaintiff held title to the car in a resulting trust for her mother. In his memorandum of decision, the fair hearing officer rejected this argument because “[ljegal title rests with the [plaintiff], the value of the automobile is clearly in excess of departmental policy and the policy and law do not provide for disregard of the [plaintiff’s] ownership of an automobile except after a transfer.” He concluded that “[without such conclusive proof as evidence of the mother’s purchase and without the option in [DIM] policy to disregard legal title of an automobile in favor of a claim of non-ownership, the [DIM’s] action . . . is upheld.” With regard to the evidence of the plaintiff’s attempts to transfer title, the officer found the documents to be “suspect, incorrectly completed and not filed with the [department of motor vehicles].” He added the observation that “[e]ven if the documents were considered to have accomplished a transfer of ownership, the [plaintiff] is listed as lien holder on the vehicle.”

Aggrieved by this decision, the plaintiff appealed to the Superior Court pursuant to General Statutes § 4-183. The trial court concluded that “[i]n view of the totality of the evidence presented, the court does not consider this automobile to have been intended as a gift to the [plaintiff], and accordingly the appeal is sustained.” The court then remanded the case to DIM, indicating that further proceedings were not mandated but directing DIM to continue the plaintiffs AFDC benefits.

Our disposition of the parties’ claims in this appeal requires a three-tiered inquiry. We must first decide whether the trial court erred in its determination that the officer’s decision was erroneous. Next, assuming that the trial court erred, we must decide whether the officer’s decision is erroneous on other grounds. If we find error in the officer’s decision, we must then decide whether the trial court erred in remanding the matter to DIM with direction to continue the plaintiff’s AFDC benefits, rather than remanding the matter to the officer for further proceedings.

I

General Statutes § 4-183 (g) prohibits the trial court from substituting its judgment for that of the agency. This general principle of limited review of administrative agency findings is well established but, nevertheless, often litigated. See, e.g., Poll v. Administrator, 5 Conn. App. 391, 498 A.2d 142 (1985); Todd v. Administrator, 5 Conn. App. 309, 497 A.2d 1035 (1985); Ruhl v. Fairfield, 5 Conn. App. 104, 496 A.2d 994 (1985); Rivera v. Administrator, 4 Conn. App. 617, 495 A.2d 1125 (1985). The trial court found that “the mother was in fact the equitable owner” and that the automobile was not “intended as a gift” to the plaintiff. (Emphasis added.) Accordingly, the court concluded that “a resulting trust may be inferred” from those findings.

“ ‘ “[T]he Superior Court does not try the matter de novo; it is not its function to adjudicate questions of fact, nor may it substitute its own conclusions for those of the [officer].” ’ Johnson v. Administrator, 3 Conn. App. 264, 267, 487 A.2d 565 (1985).” Kaplan v. Administrator, 4 Conn. App. 152, 153, 493 A.2d 248, cert. denied, 197 Conn. 802, 495 A.2d 281 (1985); see also Fellin v. Administrator, 196 Conn. 440, 444-45, 493 A.2d 174 (1985). It is immaterial whether a resulting trust could properly be inferred from these findings as the plaintiff argues. The trial court erred when it applied its own judgment de novo to the evidence and made findings of the underlying facts upon which its conclusion was ultimately based. See Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49-50, 484 A.2d 483 (1984).

II

Having determined that the trial court impermissibly substituted its judgment for that of the officer, we must decide whether the court’s judgment should nevertheless be upheld on the alternate ground raised by the plaintiff, namely, that the officer’s decision was “affected by other error of law.” See footnote 1, supra. For purposes of our analysis, the officer’s decision can be subdivided into two related parts: (1) the officer’s interpretation of applicable law and department policy as prohibiting his consideration of the plaintiff’s claim that a resulting trust existed; and (2) the officer’s requirement of documentary evidence either of the mother’s purchase of the car or of a valid transfer of title.

The officer erred by interpreting the law and DIM policy as precluding the plaintiff’s claim that a resulting trust existed under these circumstances. The pertinent DIM regulations governing an AFDC applicant’s eligibility for benefits merely specify that “[ojwnership of an automobile . . . may not exceed $1,500.” DIM Manual Volume I, Chapter III, Index No. 321.1. These provisions, however, do not further define the concept of “ownership.” In a related context, namely, ownership of property transferred by the applicant within two years prior to the application for benefits, the DIM regulations provide that “[i]f an applicant who had legal title to the transferred [property] can prove that someone else, in fact, was the actual owner of the property, then the transfer will not be held against such applicant.” (Emphasis added.) DIM Departmental Bulletin No. 3431 (1). Thus, in this related context, by allowing an applicant who previously held legal title to transferred property to prove that another person was in fact the actual owner, the regulations recognize that the concept of ownership is “sufficiently elastic to incorporate correct legal principles . . . .” Morgan v. White, 168 Conn. 336, 349, 362 A.2d 505 (1975). The specific legal principle that these regulations incorporate is otherwise known as a resulting trust. “A resulting trust arises ‘by operation of law at the time of a conveyance when the purchase money for property is paid by one party and the legal title is taken in the name of another.’ Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982).” Spatola v. Spatola, 4 Conn. App. 79, 82, 492 A.2d 518 (1985). By construing the departmental policy to prohibit the plaintiff from proving, or the officer from considering, the plaintiff s claim of a resulting trust, the officer, in effect, did not apply “correct legal principles and [did not] recognize the realities of the varying practical situations of [the applicant].” Morgan v. White, supra. In doing so, he erred.

With regard to the evidentiary requirements necessary to establish the plaintiffs claim of nonownership of the car, the officer erroneously applied too strict a standard. He was correct to presume that the mother gave the car to the plaintiff; Farrah v. Farrah, supra; and to require the plaintiff to rebut that presumption. Id. He went too far, however, in requiring documentary proof as the only viable basis upon which to find that presumption rebutted. “Extrinsic evidence, either written or [oral], is admissible on behalf of the . . . parent paying the price to rebut the presumption of an advancement or gift, and to show that a trust results . . . .” (Citation omitted.) Fox v. Shanley, 94 Conn. 350, 357-58, 109 A. 249 (1920). The officer’s memorandum of decision does not expressly disclose his reliance upon DIM regulations for this strict documentary requirement. As the plaintiff points out, however, it is apparent that the officer applied those regulations which govern ownership of transferred property. Before discussing the officer’s application and interpretation of those regulations, it is useful to clarify the sources of legal authority referred to in this discussion.

General Statutes § 17-2 (a) directs the commissioner of income maintenance to “issue regulations . . . and ... to include therein all written statements of general applicability which implement or interpret all laws under which he operates . . . .” In addition, General Statutes § 17-3f requires the commissioner to maintain a policy manual. That section further provides that “[a]ll policy manuals of the department . . . including the supporting bulletins . . . shall be construed to have been adopted as regulations in accordance with the provisions of [Title 4,] chapter 54.” Periodically, this policy manual is updated and the new provisions are transmitted to regional DIM offices via department bulletins which are attached as cover sheets to the new material. The commissioner’s regulations include, therefore, the statements in the policy manual and the bulletins which implement that manual.

We now turn to the specific set of regulations relied on by the DIM officer in this case. DIM Policy Manual Volume I, Chapter III, Index 326, deals generally with the subject of “Property Transfers.” Departmental Bulletin No. 3431, effective February 8, 1982, deals with the subject of “Transfer of Assets,” and supplements Index 326. That bulletin provides in pertinent part: “(1) If an applicant who had legal title to the transferred resource can prove that someone else, in fact, was the actual owner of the property, then the transfer will not be held against such applicant; (2) . . . regarding the subject of rebuttal . . . the individual will be given the opportunity to present any evidence he wishes in order to rebut the presumption that he made the transfer in order to establish eligibility for benefits.” This bulletin therefore indicates that, in a case where the applicant for benefits had previously held legal title to subsequently transferred property, she would be permitted to prove that she was, nevertheless, in fact not the actual owner. Thus, as discussed above, such an applicant would be permitted to prove that a resulting trust existed. This bulletin also indicates that she would be permitted to prove her claim by “any evidence.” Id.

The reference in these regulations to documentary evidence appears in Index 326 (G) (1) of the policy manual, which deals with “Determining Ownership of the Disposed of Resource . . . .” That regulation contemplates the situation in which, prior to her application for benefits, the applicant had made a transfer of property to which she had legal title. It provides in pertinent part as follows: “(1) Legal Ownership. The individual who has legal title to . . . property is the one to whom any resulting income must be charged, unless such individual can prove that such property was another person’s. Such proof would consist of documentary evidence that the purchase price of the property was paid by another person and that such person had not made a gift to the legal owner.”

The DIM officer, in applying this provision to the plaintiff in this case, apparently read it to mean that only documentary proof would suffice to establish actual nonownership of the automobile to which the applicant held legal title. In doing so, he read the provision too narrowly, because it must be read in connection with the bulletin which supplemented it. That bulletin, when read in conjunction with the provisions of the manual, clearly provides that the factual issue is whether the legal title holder, namely the applicant, is in fact the true owner, and that the determination of that issue must be made in light of all the evidence presented, testimonial as well as documentary. Departmental Bulletin No. 3431 (2), supra. Thus, the officer, as a trier of fact, is “bound to consider all the evidence which has been admitted, as far as admissible, for all the purposes for which it was offered and claimed. Not to do so is an error of law no less than it would be to exclude the evidence when offered.” (Emphasis added.) State v. Suffield & Thompsonville Bridge Co., 82 Conn. 460, 465, 74 A. 775 (1909).

In the present case, this plaintiff is not a transferor who wishes to establish that someone else was in fact the actual owner of transferred property and to rebut the presumption that she made the property transfer in order to establish eligibility for benefits. She is now, and has always been, the legal title holder of the property, but she now wishes to prove that the property in her name is in fact owned by her mother. As discussed above, under these circumstances, she is presumed to be the donee of a gift and, therefore, must rebut that presumption. Farrah v. Farrah, supra. Nevertheless, just as a presumed transferor of property is permitted to present any evidence she wishes in order to prove that she was not in fact the actual owner of the property she transferred, and thus to rebut the presumption that she made the transfer in order to establish eligibility for benefits, so, too, must this plaintiff be given the same opportunity to have her factfinder consider any evidence she wishes to present in order to establish that her mother is in fact the owner of the car and to rebut the presumption that the plaintiff is the donee of a gift. See State v. Suffield & Thompsonville Bridge Co., supra.

III

Having determined that the officer’s decision is “affected by [an] error of law”; General Statutes § 4-183 (g) (4); we consider the remaining question, namely, whether the trial court properly directed DIM to reinstate the plaintiff’s benefits without affording the officer the opportunity to evaluate the facts in light of proper legal principles. This question pivots upon the narrow issue of whether “[t]he totality of the evidence before the fair hearing officer [can] be said to constitute ‘substantial evidence’ as a matter of law, supporting the . . . finding that only one conclusion [denying] the plaintiff’s [petition] could be reached, thereby compelling a modification of the administrative decision and directed order to the defendant.” Persico v. Maher, 191 Conn. 384, 409-410, 465 A.2d 308 (1983). Our review of the record indicates that the evidence cannot be said to support only one conclusion and the proper remedy was, therefore, to remand to the officer for further proceedings rather than to direct the continuation of the plaintiff’s benefits. Cf. Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 230, 497 A.2d 1005 (1985) (judgment directed where agency could only reach one conclusion as a matter of law).

There was evidence that the plaintiff inserted her name on the second title transfer form as a lienholder. Although the circumstances tend to suggest that this was but one mistake among many in filling out those forms, this is not the only conclusion that the officer could have reached. This is a matter of credibility which is within the legitimate province of the officer’s discretion. See Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 327 A.2d 588 (1973). Likewise, the mother’s testimony that she did not file the title transfer form because the car was in a state of disrepair is subject to the officer’s evaluation of her credibility. “A fact is not proven merely because a claimant testifies to it and no one denies it, for it is the province of the [officer] as trier of fact to determine the credibility of the witnesses and the weight of the evidence. General Statutes § 4-183 (g). . . .” Howell v. Administrator, 174 Conn. 529, 532, 391 A.2d 165 (1978).

In her brief, the plaintiff readily concedes the propriety of the officer’s finding that legal title to the car was placed in her name. She argues, however, that, in view of this record, a finding that no resulting trust existed would have been “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” General Statutes § 4-183 (g) (5); see footnote 1, supra.

We are not prepared to usurp the legitimate function of this administrative hearing officer on the basis of such speculation. “ ‘It is well established that where a trial court has found that an administrative agency has made invalid or insufficient findings, such court must remand the matter to the agency for further proceedings. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 345 A.2d 9 [1974]; Watson v. Howard, 138 Conn. 464, 86 A.2d 67 [1952].’ Hartford v. Hartford Electric Light Co., 172 Conn. 71, 73, 372 A.2d 131 (1976).” Persico v. Maher, supra, 410. The officer’s findings were insufficient to the extent that he refused to consider the evidence in its entirety, adhering instead to a strict requirement of documentary proof of the mother’s purchase. In addition, his findings were invalid to the extent that he believed himself constrained by law to disregard the plaintiff’s claims of nonownership and the existence of a resulting trust. Whether the officer’s ultimate findings will be clearly erroneous, as the plaintiff asserts, once he considers the evidence in the light of the proper legal standards, is a matter that must await those findings. To hold otherwise at this time on this record would be premature and wholly speculative.

There is error in part, the judgment is set aside and the case is remanded to the trial court with direction to remand to the officer for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff has filed a preliminary statement of issues pursuant to Practice Book § 3012 (a) setting forth as “alternate grounds upon which the judgment may be affirmed”; id; the claims that the officer’s decision was “affected by other error of law”; General Statutes § 4-183 (g) (4); and that the officer’s decision was “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” General Statutes § 4-183 (g) (5).

       Although we find error in the officer’s interpretation of departmental policy, we also note that we are not dealing here with the opinion of a judge or other judicial magistrate who, by training and experience, is accustomed to interpreting legal policy and regulations when necessary by analogy to other related sources. Administrative hearing officers, deluged with large caseloads, must rely in the first instance for the accuracy of their daily decisions upon the clarity and completeness of the language of the regulations they are called upon to enforce.

       In view of our holding, we do not reach the issue, raised by both parties, of whether the trial court erred in finding that sufficient evidence existed to rebut the presumption of a gift.