author: LAVINE, J.

text:
    IN RE MIA M.

    (AC 32458)
    Lavine, Alvord and Stoughton, Js.
    Argued February 9
    officially released March 15, 2011

      David B. Rozwaski, for the appellant (respondent mother).

      Susmita M. Mansukhani, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights as to her minor child, M, for failure to achieve a sufficient degree of personal rehabilitation within the meaning of General Statutes § 17a-112 (j) (3) (E). On appeal, the respondent claims that the court’s findings that the petitioner, the commissioner of children and families, had proven by clear and convincing evidence that (1) the respondent had failed to achieve such degree of rehabilitation as would encourage the belief that, within a reasonable time considering the age and needs of M, she could assume a position of responsibility in M’s life and (2) it is in the best interest of M that the respondent’s parental rights be terminated were clearly erroneous. We affirm the judgment of the trial court.

The following procedural history is pertinent. The petitioner filed a motion for an order of temporary custody on August 14, 2009, shortly after M was bom. After the court dismissed a prior uncared for petition alleged on different grounds, the petitioner filed a coterminous neglect and termination petition on January 8, 2010. Following a trial to the court on June 7 and 8, 2010, the court terminated the respondent’s parental rights as to M in a memorandum of decision filed June 23, 2010. The court waived fees and costs permitting the respondent to file this appeal.

In its memorandum of decision, the court made the following relevant findings of fact. The department of children and families (department) first became involved in the respondent’s life following the birth of her older daughter, J. Although the respondent was not psychotic at that time of her lying-in, she had stopped taking her medication prior to J’s birth in July, 2008. Members of the hospital staff were concerned with the respondent’s difficulty feeding J, her inability to remain focused and her inability to follow directions. The respondent was uncomfortable applying cream to J’s diaper rash and interpreted the child’s pseudomenstruation to be the result of sexual abuse by the hospital staff. Following consultation with the respondent’s con-servatrix and hospital physicians and staff, the petitioner obtained an order of temporary custody as to J. The court granted a petition to terminate the respondent’s parental rights as to J on January 5, 2010.

The court also found that the respondent was first hospitalized for psychiatric instability when she was nineteen. At the time, she was in a long-term, abusive relationship. She has suffered from pseudocyesis, or false pregnancy, for many years. Since her first hospitalization for mental illness, the respondent has been hospitalized for numerous mental health issues, which manifest themselves in the form of depression, delusional thoughts, extreme anxiety and aggressive behavior.

The respondent is bonded with her own mother, but their relationship is marked by turbulence. The respondent has been arrested twice since J’s birth for incidents of domestic violence involving her own mother. According to the respondent’s mother, the respondent was sexually abused by her father. The respondent did not graduate from high school but has earned a general equivalency diploma. She has held various short-term jobs as a day care assistant, karate instructor and nursing home aide and has volunteered at a multipurpose youth center. The respondent relies on social security disability benefits for support and lives alone in a one bedroom apartment.

Rodolfo Rosado, a clinical psychologist, performed a court-ordered psychological evaluation of the respondent in the fall of 2008. Rosado confirmed a prior axis I diagnosis of schizoaffective disorder with paranoid delusions. Rosado also diagnosed, pursuant to a standardized childhood trauma questionnaire, post-traumatic stress disorder resulting from sexual abuse that the respondent had sustained as an adolescent. According to Rosado, the respondent’s post-traumatic stress disorder manifested itself in the respondent’s irrational reaction to having to apply cream to J’s diaper rash and in accusing the hospital staff of having sexually abused the child. The respondent’s paranoia manifested itself in psychotic delusions, which were evident in her preoccupation with her upstairs neighbor.

Rosado observed the respondent interact with J and noted her greatest strengths to be her affection and commitment to the child. The respondent was confident in her capabilities, certain that she would have no problems maintaining rules at home and ensuring J’s compliance. Rosado’s observations, however, were not dispositive of his conclusions regarding the respondent’s ability to parent, as schizoaffective disorder is a thought disorder involving impairment of logic and sensory experience. Schizophrenia involves impairment of logical reasoning, while affective disorders are manifested in emotional responses that do not rationally correspond to exterior circumstances. Affective disorders involve hallucinations and emotional responses that are inappropriate. The respondent’s paranoid delusions compel her to act in an irrational way, and her experiences of trauma, evident in post-traumatic stress disorder, impact her present functions, as memories are multisensory. Rosado concluded that the respondent loves J, but he had a profound concern that the respondent might pose a risk to J, if she were to act on an irrational or paranoid thought.

As to a prognosis for the respondent, Rosado opined that cases of early onset schizoaffective disorder, such as the respondent’s, are especially difficult to treat. He opined that the respondent’s reunification with J could be considered only if the respondent made significant progress based on recommendations from her mental health service providers and therapists. At trial in the present case, Rosado was asked what the respondent would have had to accomplish, since his 2008 evaluation, to encourage a belief that the respondent’s reunification with a young child was possible. Rosado would have required a record demonstrating that the respondent had (1) consistent and committed attendance and engagement with all therapy and treatment, (2) an established working relationship with a therapist and (3) made sufficient progress addressing her sexual abuse so it would not impair her present functioning.

The respondent’s mental health records reveal that she has been engaged in treatment at Western Connecticut Mental Health Network (mental health network) since April, 2005, but her engagement has been on and off over the years, punctuated by periods of treatment elsewhere. For several months prior to and after M’s birth, the respondent was being monitored by the mental health network, which was bare minimum treatment. In September, 2009, the respondent transferred her treatment to Catholic Charities. Her transition, however, was not smooth. She arrived late for her first appointment and, therefore, was not able to complete the intake assessment form at that time. The respondent was confrontational with staff regarding the difficulty she had completing the intake assessment. Ordinarily, the intake assessment requires one or two sessions; the respondent and her therapist needed six sessions to complete it. Moreover, the respondent’s transition to Catholic Charities was interrupted when her mental health deteriorated, requiring that she be hospitalized.

The Catholic Charities intake assessment revealed that the respondent had psychotic symptomatology, including delusions, and multiple indicia of manic symp-tomatology, including expansive or elevated mood, inflated self-esteem, grandiosity, reduced need for sleep, pressured speech, excessive energy, flight of ideas, racing thoughts, distractibility, impulsivity and risky behaviors. During her six month engagement with Catholic Charities, the respondent had eighteen therapeutic sessions. The respondent attended the sessions consistently but frequently arrived late and left early after becoming angry. Diane Smith, the respondent’s therapist, reported that the respondent was not focused during therapy sessions, as she was preoccupied with thoughts of her upstairs neighbor. In addition, the respondent was noncompliant with her medication, which the respondent complained caused her to gain weight. To ensure that the respondent took her medication, Catholic Charities utilized the services of visiting nurses from Patient Care, who went to the respondent’s home to administer medication. The respondent, however, refused to let the nurses enter her home. Following a meeting in January or February, 2010, the respondent agreed to let a Patient Care nurse administer her medication via injection. That agreement did not last long, as the respondent pulled a syringe out of her arm as the nurse was administering an injection. Catholic Charities thereafter recommended that the respondent receive inpatient treatment, which she refused. Catholic Charities indicated that the respondent needed a higher level of treatment than it was able to provide and recommended that she receive intensive outpatient treatment at the Community Center for Behavioral Health (community center) at a nearby hospital. Catholic Charities discharged the respondent from its treatment program in March, 2010. Smith testified that, during the six months that she treated the respondent, she saw no improvement in the respondent’s mental health. Smith opined that the respondent was motivated to attend therapy sessions to satisfy the department but that she was not willing to engage fully in her treatment.

The respondent completed a behavioral health assessment at the community center on March 23,2010. The assessment characterized her general appearance, behavior, speech, mood, affect and thought process as abnormal, noting her agitated manner, garish makeup, loud pressured voice, angry mood, disorganized thoughts and preoccupation with the department. The respondent’s assessment revealed an axis I diagnosis of schizophrenic paranoid and an axis II diagnosis of personality disorder, not otherwise specified. At trial, Virginia Cameron, the respondent’s community center therapist, testified that she had seen the respondent five times. Cameron, however, had recommended that the respondent undergo intensive outpatient treatment, which would require three therapy sessions a week. The respondent declined intensive outpatient therapy, opting instead for a more flexible schedule that ranged from one session per month to one per week.

At the time of trial, the respondent was taking Geo-don, an antipsychotic medication, and had been compliant with the medication since transferring her care to the community center. The community center also engaged the services of Patient Care to administer the medication to the respondent in her home. Stina C. Reed, a registered nurse employed by Patient Care, had administered the respondent’s medication to her every afternoon Monday through Friday since March 28,2010, and prepared her bedtime medication. The respondent took her midday medication in Reed’s presence, but Reed did not observe whether the respondent took her medication at bedtime. In addition to administering medication to the respondent, the Patient Care nurses were required to make a quick assessment of the patient during each visit. According to Reed, the respondent’s apartment is well kept and she demonstrates good hygiene and dietary habits. On two occasions, however, Reed observed the respondent angrily confront her upstairs neighbor. The respondent accused the neighbor of stealing her boyfriend or being involved with the department’s removal of her children. The respondent moved to an apartment in a different condominium complex after the landlord refused to renew her lease due to her ongoing conflicts with other residents.

The court found that the department had offered the respondent the following services toward her rehabilitation: (1) supervised visits with both J and M, (2) intensive family preservation services through Catholic Charities, (3) parenting education classes through a regional child advocacy center, (4) anger management services, (5) mental health case management services and monitoring through the mental health network, (6) mental health case management services and monitoring though Catholic Charities, (7) outpatient therapy through a mental health association in her community, (8) mental health treatment through a hospital based community center for behavioral health, (9) prenatal care through a women’s center and (10) crisis intervention and inpatient treatment in a hospital.

As to the child, the court found that at the time of trial, M was approximately ten months old. She had been placed in foster care upon discharge from the hospital following her birth. Although she is in good health and has no chronic medical issues, she began to exhibit minor developmental delays manifested as tightness in her muscles resulting in her having difficulty sitting up. She receives physical therapy from the Birth to Three program. Otherwise, she eats and sleeps well and has adjusted to her foster parents with whom she is bonded. M’s foster parents, however, are not an adoptive resource for her. Her paternal uncle in Mexico has come forward as an adoptive resource for M and her older sister, J. A department study of the uncle’s home was favorable as to M’s needs.

After finding that M was neglected, the court turned its attention to the termination petition. In adjudicating that petition, the court found by clear and convincing evidence that the department, pursuant to § 17a-112 (j) (1), had made reasonable efforts to reunify the respondent with M.

The court noted the standard applicable to terminations under § 17-112 (j) (3) (E): “The critical issue is whether the parent has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Mariah S., 61 Conn. App. 248, 261, 763 A.2d 71 (2000), cert, denied, 255 Conn. 934, 767 A.2d 104 (2001). Before the court may terminate parental rights, it must find “by clear and convincing evidence, that the level of rehabilitation [that the parent has] achieved, if any, falls short of that which would reasonably encourage a belief that at some further date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 149, 962 A.2d 81 (2009). The court should consider all potentially relevant evidence, no matter the time to which it relates. In re Anna Lee M., 104 Conn. App. 121, 128, 931 A.2d 949, cert, denied, 284 Conn. 939, 937 A.2d 696 (2007).

The court found that the respondent loved and was devoted to M but noted that a strong loving bond in and of itself is not sufficient to prevent termination of parental rights. See In re Anthony H., 104 Conn. App. 744, 762-63, 936 A.2d 638 (2007), cert, denied, 285 Conn. 920, 943 A.2d 1100 (2008). Pursuant to Rosado’s testimony, the respondent’s reunification was viable only if she were to demonstrate progress in three respects: (1) consistent and committed attendance and engagement with all therapy and treatment, (2) an established working relationship with a therapist and (3) sufficient progress in addressing the issue of her early sexual abuse so that it did not impair her present functioning. In considering whether the respondent had satisfied those criteria, the court considered critical events that transpired between the time of Rosado’s 2008 evaluation and the time of trial, particularly events that took place during the ten months since M’s birth. In that regard, the court made the following findings.

The respondent’s compliance with mental health treatment faltered after Rosado’s 2008 evaluation was completed. At the time M was bom, the respondent was noncompliant with her medication and was receiving mental health treatment at a monitoring level only. Shortly after M’s birth, while she was attempting to change mental health care service providers, the respondent’s mental health deteriorated, requiring inpatient treatment for the second time within one year. The respondent received treatment from Catholic Charities from October, 2009, until March, 2010, but never fully engaged or committed herself to treatment and was noncompliant with medication. According to Smith, the respondent made no progress within the time she treated with Smith. In March, 2010, the respondent again changed service providers.

Moreover, the court found that, within sixty days of trial, Cameron recommended to the respondent that she enter inpatient treatment or undertake intensive outpatient treatment. The respondent declined both forms of treatment. Although the respondent was compliant with her medication regimen during the six weeks prior to trial, the court found that length of time insufficient to encourage the belief that she would continue to be compliant in view of her record during the two years that the department had been monitoring her. Moreover, the respondent still suffers from the manifestations of her mental illness. Reed witnessed two incidents in which the respondent engaged in an angry confrontation with her upstairs neighbor. In November, 2009, the respondent was arrested for an incident of domestic violence involving her mother. The court concluded that at the time of trial in June, 2010, the respondent was no closer to being able to parent M safely than she was able to parent J safely in October, 2008.

The court ultimately found by clear and convincing evidence that M is younger than seven years of age and was found in a prior proceeding to have been neglected or uncared for. It also found that the respondent has failed or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of M, the respondent could assume a responsible position in M’s life. The court further found that the respondent’s parental rights as to another child previously had been terminated pursuant to a petition filed by the petitioner.

With respect to the dispositional phase of the termination proceeding, the court made the findings required by § 17a-112 (k). Thereafter, the court found by clear and convincing evidence that termination of the respondent’s parental rights as to M was in the best interest of the child. In making this finding, the court considered M’s age, growth, development, need for stability, length of stay in foster care, the nature of her relationship with her foster family and with her biological family, the degree of contact the respondent maintained with M and their biological bond. Compare In re Alexander C., 60 Conn. App. 555, 559, 760 A.2d 532 (2000). The court also balanced M’s intrinsic need for stability and permanency against the remote potential benefit of maintaining a connection with the respondent, her biological mother. See Pamela B. v. Ment, 244 Conn. 296, 313-16, 709 A.2d 1089 (1998).

“The legal framework for deciding termination petitions is well established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in § 17a-112 . . . exists by clear and convincing evidence. ... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. . . . The best interest determination also must be supported by clear and convincing evidence.” (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 487-88, 940 A.2d 733 (2008).

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of the [trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) In re Katia M., 124 Conn. App. 650, 660, 6 A.3d 86, cert, denied, 299 Conn. 920, 10 A.3d 1051 (2010).

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

On the basis of our review of the record and the court’s thorough and well reasoned memorandum of decision, we conclude that the court’s findings were not clearly erroneous. The unfortunate facts of this case make clear that the respondent, due to her serious and long-standing mental illness, has not been able to achieve the degree of rehabilitation that would encourage the belief that she could assume a responsible position in M’s life within a reasonable time, considering the child’s age and needs. The facts here present a clear example of a case in which termination of parental rights is appropriate. Moreover, the court’s finding that it was in M’s best interest to terminate the respondent’s parental rights is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... (3) ... (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent’s parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families . . . .”

       The attorney and guardian ad litem for M has adopted the position stated in the brief of the petitioner.

       The court also terminated the parental rights of M’s biological father, who has not appealed from that judgment. In this opinion, the term respondent refers to the respondent mother.

       The court also adjudicated M to be neglected. The respondent has not appealed from that adjudication.

       In January, 2008, the Probate Court appointed a successor conservatrix of the estate and person of the respondent due to her mental illness.

       The respondent believed that her upstairs neighbor was trying to steal her boyfriend and assisting the department, and had made a hole in the apartment in order to spy on the respondent, among other things.

       Another Patient Care employee arrives at the respondent’s home in the morning to administer the medication that the respondent takes at that time.

       With respect to the neglect petition, the court found that at the time the operative neglect petition was filed, it was established conclusively, on the basis of the respondent’s mental health, that she was unsuitable for the care and custody of a young child and a danger to such child’s safety and welfare. By January, 2010, the respondent had made little to no progress in her treatment, was noncompliant with medication and had not met any of the benchmarks set by Rosado to consider reunification. Pursuant to General Statutes § 46b-120 (8) (c), the court found that M has been neglected in that she has been permitted to live under conditions, circumstances or associations injurious to her well-being.

       Compare In re Anthony H., supra, 104 Conn. App. 761-62 (preconditions for considering return of children).

       The court found the following facts pursuant to § 17a-112 (k): the respondent was offered weekly supervised visits with M in conjunction with parenting skills training, anger management, mental health treatment and monitoring in a timely and appropriate fashion; the department made reasonable and appropriate efforts to reunite the respondent with M; the respondent failed to avail herself of all of the services that were offered and ordered as preliminary steps in the neglect proceeding; M, at the time of trial, was approximately ten months old and had been in the petitioner’s care since she was one day old and living with a foster family with whom she has developed a bond; M interacts well with the respondent; the respondent consistently exercised her rights of visitation and she has participated in and completed parenting education, but she has failed to achieve such degree of personal rehabilitation with respect to her mental health issues as would encourage the belief that, within a reasonable time, considering the age and needs of M, she could assume a responsible position in the child’s life; nothing has prevented the respondent from maintaining a meaningful relationship with M; there has been no unreasonable conduct on the part of department personnel; the department and service providers have offered the respondent extensive support.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MELVIN FRANK SHERMAN
    (AC 29931)
    Robinson, Bear and West, Js.

      Argued October 27, 2010
    officially released March 22, 2011

      Roy S. Ward, special public defender, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony SpineUa, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Melvin Frank Sherman, appeals from the trial court’s judgments of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, larceny in the third degree in violation of General Statutes (Rev. to 2005) § 53a-124, carrying a pistol without a permit in violation of General Statutes § 29-35 (a), theft of a firearm in violation of General Statutes § 53a-212 and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of all of the charges, and (2) several of the prosecutor’s statements during his closing and rebuttal arguments constituted prosecutorial impropriety that deprived him of his due process right to a fair trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The victim, Erica May Pagliuco, resided at 24 Pearl Street in Manchester. On August 12, 2006, the victim returned to her residence at approximately 3 p.m. and found the front door ajar. After walking through the residence, the victim discovered that several drawers had been opened, her bedroom mattress had been shifted and a pair of electric clippers and two handguns were missing. She contacted the Manchester police department (department) and reported the disturbance.

Several minutes later, Jamie Taylor, an officer with the department, responded to the call. After speaking with the victim, Taylor and another officer entered the residence to investigate. They found that a screen covering a window in the living room had been damaged and removed. They also talked to a neighbor, who reported seeing a black male in his late teens wearing a green shirt standing in front of the residence during the time frame that the incident had occurred. The officers did not recover any fingerprints or other physical evidence.

On August 14, 2006, David Ellsworth, an officer with the department, responded to a complaint alleging that an individual had been threatened by a female with a gun at 107 Spruce Street in Manchester. After locating the suspect’s vehicle traveling westbound on Interstate 384, Ellsworth made a felony motor vehicle stop of the vehicle and arrested the driver, Aretha Thomas. Thomas informed Ellsworth that an unloaded handgun was located in the vehicle. Ellsworth searched the vehicle and discovered a .380 caliber handgun along with the handgun’s magazine underneath the front seat. The police later found .380 caliber ammunition on Thomas during a subsequent search of her person.

Jason Wagner, an officer with the department, ran a national database search on the handgun and learned that it had been reported missing after the burglary at the victim’s residence. Bruce Tyler, a sergeant and firearms instructor with the department, subsequently tested the handgun. Although he had received the ammunition that the police recovered from Thomas, Tyler did not use this ammunition during his testing; instead, he used .380 caliber ammunition that was almost identical. He was able to fire six rounds from the handgun successfully.

Jeffrey Lampson, a detective with the department, was assigned to investigate the burglary at 24 Pearl Street. Lampson spoke with Thomas regarding the stolen handgun, and Thomas identified the defendant as the individual from whom she had purchased the gun. Lampson also spoke with several other individuals, including Betzaida Torres, Stacey Rubelmann and Heather Peterson, all of whom claimed to have information regarding the burglary. On the basis of Thomas’ identification and the witnesses’ statements, Lampson arrested the defendant in connection with the burglary at 24 Pearl Street.

The defendant was charged with burglary in the third degree in violation of § 53a-103, larceny in the third degree in violation of § 53a-124, theft of a firearm in violation of § 53a-212, carrying a pistol without a permit in violation of § 29-35 (a) and criminal possession of a firearm in violation of § 53a-217 (a) (1). A jury trial was held on January 9 and 15, 2008. On January 15, 2008, at oral argument, the defendant moved for a judgment of acquittal on all counts, which was denied by the court. On January 17, 2008, the jury returned verdicts of guilty on all counts, and the defendant was sentenced on February 28, 2008. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support his conviction of all of the charges. In reviewing a sufficiency of the evidence claim, we utilize a two part analysis. “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.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

In reviewing the sufficiency of the evidence, “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. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Sinclair, supra, 197 Conn. 576-77. Furthermore, “[t]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original; internal quotation marks omitted). State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert, denied, 223 Conn. 905, 610 A.2d 179 (1992).

“We must also acknowledge in our review of the evidence that it is the right and the duty of the jury to draw reasonable and logical inferences from the evidence. . . . Moreover, the jury may draw inferences on the basis of facts that it finds as a result of other inferences. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 761, 653 A.2d 216, cert, denied, 233 Conn. 904, 657 A.2d 644 (1995).

A

The defendant first claims that there was insufficient evidence to support his conviction of burglary in the third degree because the state failed to adduce sufficient evidence to establish that he had entered the victim’s residence unlawfully. We disagree.

The following additional facts are relevant to the defendant’s claim. During August, 2006, Torres lived in an apartment at 2-4 Pearl Street in Manchester, which is located two buildings west of the victim’s residence. At trial, Torres testified that the defendant and Yvonne Brown, the defendant’s girlfriend at the time, had stayed at her apartment for a weekend in August, 2006. Although she could not remember the exact date, she did recall the defendant leaving the apartment sometime between 1 and 3 p.m. on Saturday and then returning approximately two hours later with a plastic shopping bag.

According to Torres, when the defendant returned, he and Brown went into the bathroom with the bag. After ten to twenty minutes had elapsed and the couple had not returned, Torres decided to check on them. Upon looking into the bathroom, Torres noticed Brown wearing an assortment of rings, bracelets, watches and necklaces that she had not been wearing previously. The couple then attempted to hide once more, this time moving into the bedroom, but Torres was able to observe the couple as they continued sorting through the contents of the bag, which included various items of jewelry and a pair of electric hair clippers. Shortly thereafter, Torres looked out of the apartment window and saw the police responding to a call at a nearby location.

While at Torres’ apartment, the defendant gave Torres several pieces of jewelry, including a ring. Torres testified that she sold the ring to Connecticut Valley Coin, a pawnshop located in Manchester, approximately three or four days later. The defendant also set aside a small portion of jewelry, and then he contacted Thomas and Peterson to see if either would be interested in purchasing some of the jewelry or exchanging it for drugs.

Thomas testified that one or two days before she was arrested, she had met with the defendant twice, including once at Rubelmann’s house, and purchased jewelry from him on both occasions. Thomas stated that she had given some of the jewelry to Peterson, who then sold the items at a pawnshop. Thomas also testified that she had inquired about purchasing a weapon from the defendant during both of the meetings. On August 13, 2006, the defendant informed Thomas that he had procured a gun, and the two agreed to meet at Peterson’s house. Outside of Peterson’s house, Thomas exchanged $100 for the handgun that subsequently was found in her car on August 14, 2006.

Rubelmann testified that the defendant came to her house in mid-August, 2006. While he was there, the defendant attempted to sell to Rubelmann and her boyfriend an assortment of jewelry and three handguns, including the .380 caliber handgun that he eventually sold to Thomas. Rubelmann further testified that the defendant said he had stolen the jewelry and guns.

During his investigation, Lampson was able to recover a number of items that had been taken from the victim’s residence. He recovered the ring that Torres had sold to Connecticut Valley Coin along with a receipt showing that Torres had sold it on August 16, 2006. The victim subsequently identified the ring as her high school graduation ring that had been missing since the burglary. Lampson also recovered an assortment of jewelry from Torres’ apartment and Thomas’ car, items that the victim identified as her belongings that had been missing since the date of the burglary. Finally, Lampson recovered four pawn slips that contained pictures of jewelry that Peterson had sold to a pawnshop, and the victim identified one or two pieces of jewelry in the slips as her jewelry.

To convict a defendant of burglary in the third degree, the state is required to prove beyond a reasonable doubt that the defendant “enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein.” General Statutes § 53a-103 (a). “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.” General Statutes § 53a-100 (b).

The defendant claims that the state did not adduce sufficient evidence that he entered the victim’s residence unlawfully because it did not introduce any physical evidence or produce any witness testimony that placed the defendant inside the residence or walking away from it. The state, on the other hand, argues that it introduced sufficient evidence because the jury reasonably could have inferred unlawful entry from the defendant’s close proximity to the victim’s residence and his possession of items missing from the residence after the burglary. We agree with the state.

As we stated previously, the state may rely on either direct or circumstantial evidence to establish that a defendant entered upon a premises unlawfully. See State v. Spikes, 111 Conn. App. 543, 554, 961 A.2d 426 (2008) , cert, denied, 291 Conn. 901, 967 A.2d 114, cert, denied, 558 U.S. 898, 130 S. Ct. 249, 175 L. Ed. 2d 170 (2009) . “[I]t 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. ” State v. Sinclair, supra, 197 Conn. 576. Therefore, although the state had the burden of proving beyond a reasonable doubt that the defendant entered the victim’s residence unlawfully, it was not required to introduce physical evidence or eyewitness testimony to satisfy this burden.

Furthermore, this court has rejected similar arguments advanced by defendants in previous cases. For instance, in State v. Correa, 57 Conn. App. 98, 108-11, 748 A.2d 307, cert, denied, 253 Conn. 908, 753 A.2d 941 (2000), the defendant appealed from his conviction of burglary in the third degree, claiming that the state had presented insufficient evidence that he had entered the victim’s residence. At trial, the state had presented evidence that tended to establish that (1) a car belonging to the defendant’s girlfriend was parked in a lot adjacent to the victim’s house prior to the burglary; (2) the defendant had used the car on the day of the burglary; (3) the defendant matched a witness’ description of an individual observed standing in the victim’s driveway about the time of the burglary; and (4) on the day after the burglary, some of the victim’s missing jewelry was found in the apartment where the defendant was staying. Id., 100-101. On the cumulative basis of this evidence, this court concluded that the state had presented sufficient evidence of unlawful entry and affirmed the defendant’s conviction. Id., 110-11. Similarly, in State v. Spikes, supra, 111 Conn. App. 554, the defendant claimed that the evidence was insufficient to support his conviction of burglary in the third degree. In rejecting his claim, this court concluded that “on the basis of evidence that the defendant was seen at or near [the location of the burglary] at about the time of the burglary and that he had on his person at the time he was arrested [four days after the burglary] some of the jewelry stolen from the premises . . . the jury reasonably could have found that he illegally entered [the location of the burglary] . . . and stole [the] jewelry.” Id., 555-56. As Correa and Spikes demonstrate, in sustaining convictions based entirely on circumstantial evidence, this court has relied on evidence that the defendant was at or near the residence at about the time of the burglary and that the defendant was in possession of items stolen from the residence thereafter.

In the present case, construing the evidence in the light most favorable to sustaining the jury verdict, we conclude that the jury reasonably could have found that the defendant entered the victim’s residence unlawfully. First, the evidence established that the defendant stayed at Torres’ apartment for a weekend in August, 2006, he left the apartment on Saturday between 1 and 3 p.m. and he returned approximately two hours later. Although Torres could not recall the exact date of the August, 2006 weekend, the jury could have inferred, on the basis of her testimony and the pawnshop receipt from Connecticut Valley Coin dated August 16, 2006, that it was the weekend of August 11 to 13, 2006. Furthermore, on the basis of this same evidence, the jury could have inferred that the Saturday referred to by Torres was Saturday, August 12, 2006. Additionally, on the basis of the times that Torres testified that the defendant left and returned to the apartment, the jury could have inferred that the defendant left the apartment before the burglary and returned afterward. Considered altogether, along with the proximity of the apartment to the victim’s residence, the jury reasonably could have concluded that the defendant was near the victim’s residence around the time of the burglary.

Additionally, the evidence established that the defendant returned to Torres’ apartment with a bag of jewelry, he gave Torres the victim’s high school graduation ring, and he set aside an assortment of jewelry in Torres’ apartment, some of which the victim identified as her missing jewelry. Considering this evidence, together with the earlier inference that the defendant returned to Torres’ apartment after the burglary, the jury reasonably could have found that after the burglary the defendant was in possession of the victim’s graduation ring and the assortment of jewelry Lampson later recovered from Torres’ apartment. Furthermore, the evidence established that the defendant sold jewelry and a handgun to Thomas, jewelry and a handgun were found in Thomas’ car on August 14, 2006, and the jewelry and handgun found in Thomas’ car were identified as items stolen from the victim’s residence. On the basis of the testimony provided by Brown, Thomas and Torres, the jury reasonably could have found that the defendant sold the jewelry to Thomas on August 12, 2006, and sold the gun to her on August 13, 2006. Furthermore, although Thomas did not identify the jewelry found in her car as the items sold to her by the defendant, we conclude that on the basis of the cumulative testimony provided, the jury reasonably could have found that these were the items that the defendant sold to her on August 12,2006. Considered altogether, the jury reasonably could have found that after the burglary occurred, the defendant was in possession of the jewelry and handgun later found in Thomas’ car.

On the basis of this evidence and the inferences reasonably drawn therefrom, along with Rubelmann’s testimony that the defendant stated that he had stolen jewelry and handguns, the jury could have found that the defendant entered the victim’s residence unlawfully. The jury could have reasoned that the defendant left Torres’ apartment on August 12, 2006, walked to the victim’s residence located two buildings away and broke into the home by forcefully removing a screen in a living room window. While in the victim’s home, the defendant took, among other items, an assortment of jewelry and a .380 caliber handgun. The defendant then exited the front door of the residence and returned to Torres’ apartment with these items. Thereafter, he gave some of the jewelry to Torres, set some of the jewelry aside and sold some of the jewelry along with the handgun to Thomas. Accordingly, we conclude that there was sufficient evidence to support the defendant’s conviction of burglary in the third degree.

B

The defendant also claims that there was insufficient evidence to support his conviction of larceny in the third degree. To convict a defendant of larceny in the third degree, the state has to establish beyond a reasonable doubt that the defendant committed a larceny and that the value of the property exceeded $1000. See General Statutes (Rev. to 2005) § 53a-124 (a). The defendant argues that the state failed to adduce sufficient evidence to establish that (1) he committed a larceny or (2) the value of the jewelry exceeded $1000. We disagree.

The following additional facts are relevant to the defendant’s claim. At trial, the victim identified twelve pieces of jewelry, including five earrings, two watches, two bracelets, two rings and one necklace, as items that had been missing from her residence since the date of the burglary. All of the identified items were admitted as full exhibits and displayed to the jury. The victim also testified that the value of all items of jewelry taken from her residence totaled approximately $2000.

The defendant first argues that the state failed to adduce sufficient evidence that he committed a larceny because the evidence did not support a finding that he possessed stolen property. We conclude that the defendant’s argument is based on a flawed reading of General Statutes § 53a-119 and, furthermore, that the evidence was sufficient to establish that the defendant committed a larceny under the broad definition set forth in § 53a-119.

Section 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” “Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” (Internal quotation marks omitted.) State v. Flowers, 69 Conn. App. 57, 69, 797 A.2d 1122, cert, denied, 260 Conn. 929, 798 A.2d 972 (2002).

In addition to the broad definition of larceny, § 53a-119 also “enumerates eighteen separate examples that constitute larceny, including . . . possession of stolen goods. See General Statutes § 53a-119 (8) (‘[a] person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner’).” State v. Edwards, 100 Conn. App. 565, 594, 918 A.2d 1008, cert, denied, 282 Conn. 928, 929, 926 A.2d 666, 667 (2007). These enumerated examples, however, “are not meant to limit the broad definition set out in the first paragraph of [§ 53a-119], but are meant as certain specific ways of committing the offense.” (Emphasis added; internal quotation marks omitted.) Id., 595. Therefore, receiving stolen property is but one theory the state may elect to pursue to establish that a defendant has committed a larceny; the state nevertheless remains free to introduce evidence that establishes larceny under the broad definition of larceny.

Construing the evidence in the light most favorable to sustaining the jury verdict, we conclude that the state introduced sufficient evidence to establish that the defendant committed a larceny of the twelve items of jewelry identified by the victim and the .380 caliber handgun recovered from Thomas’ car. In part I A of this opinion, we considered the evidence and concluded that the jury reasonably could have found that the defendant entered the victim’s residence unlawfully, he removed items of jewelry and a .380 caliber gun, and he later sold some of the jewelry and the .380 caliber handgun. On the basis of this same evidence, the jury reasonably could have found that the defendant wrongfully took the victim’s jewelry and the .380 caliber handgun with the intent to deprive the owner of such property permanently.

The defendant additionally argues that the state failed to adduce sufficient evidence that the value of the stolen jewelry exceeded $1000 because the state did not support the victim’s testimony regarding the approximate value of the jewelry with any factual underpinning, such as sales prices, appraisals, purchase prices or any other evidence. In effect, the defendant argues that, in the absence of a factual foundation that establishes the type of value and the relevant time frame, a victim’s testimony regarding the value of stolen property is not competent evidence. We disagree.

General Statutes § 53a-121 (a) (1) provides in relevant part that “value means the market value of the property ... at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property . . . within a reasonable time after the crime.” “The determination of value is a question for the trier of fact.” State v. Collette, 199 Conn. 308, 314, 507 A.2d 99 (1986).

Under the law in Connecticut, it is well settled that an owner may testify as to the value of his or her property. State v. Davis, 3 Conn. App. 359, 367, 488 A.2d 837 (1985). “An owner may estimate the worth of his or her property, and the jury must consider the weight of the owner’s testimony. . . . The state does not need to prove the value of property with exactitude. . . . The state is required only to lay a foundation which will enable the trier [of fact] to make a fair and reasonable estimate.” (Citations omitted; internal quotation marks omitted.) State v. Spikes, supra, 111 Conn. App. 551. “Whether an owner’s testimony as to the . . . value provides sufficient information to support a jmy verdict depends on the circumstances of each case.” State v. Baker, 182 Conn. 52, 63, 437 A.2d 843 (1980).

The defendant cites State v. Browne, 84 Conn. App. 351, 388-89, 854 A.2d 13, cert, denied, 271 Conn. 931, 859 A.2d 930 (2004), in support of his general contention that any testimony provided by the owner regarding the value of his or her property is incompetent unless the state also provides some sort of factual foundation in support of the testimony. After a thorough review of Browne, we conclude that this case does not support the defendant’s contention. Furthermore, we can find no law that imposes on the state the requirements advanced by the defendant.

After reviewing the evidence in the light most favorable to sustaining the jury’s verdict, we conclude that the jury could have found beyond a reasonable doubt that the value of the stolen jewelry exceeded $1000. The jury heard testimony from the victim that the estimated value of the stolen jewelry exceeded $2000. The state also introduced twelve items of jewelry into evidence that the victim had identified as items stolen from her residence on August 12, 2006. The testimony combined with the twelve items of jeweliy provided the jury with an evidentiary foundation on which to “make a fair and reasonable estimate” regarding the jewelry’s value. (Internal quotation marks omitted.) State v. Spikes, supra, 111 Conn. App. 551. Accordingly, we conclude that there was sufficient evidence to support the defendant’s conviction of larceny in the third degree.

C

The defendant further claims that the evidence was insufficient to support his conviction of carrying a pistol without a permit because the state failed to adduce sufficient evidence to establish that he possessed a pistol. We disagree.

Pursuant to § 29-35 (a): “No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .” General Statutes § 29-35 (a). The term pistol, as used in § 29-35 (a), means “any firearm having a barrel less than twelve inches in length.” General Statutes § 29-27.

As we discussed in part I A of this opinion, Rubel-mann testified that the defendant came to her house in mid-August, 2006, with three guns, including a .380 caliber handgun. Thomas also testified that the defendant had sold her a .380 caliber handgun outside of Peterson’s house on August 13, 2006. Rubelmann and Thomas both identified the .380 caliber handgun introduced into evidence as the same handgun that the defendant had in his possession. On the basis of this evidence, there was ample evidence from which the jury reasonably could have concluded that the defendant possessed a pistol. Accordingly, we conclude that there was sufficient evidence to support the defendant’s conviction of carrying a pistol without a permit.

D

The defendant next claims that the evidence was insufficient to support his conviction of theft of a firearm because the state failed to adduce evidence sufficient to establish that the .380 caliber handgun was operable. In essence, the defendant claims that the state did not prove beyond a reasonable doubt that the handgun was a firearm within the meaning of General Statutes § 53a-3 (19). We disagree.

To convict a defendant of stealing a firearm, the state must prove that the stolen instrumentality is a firearm. General Statutes § 53a-212. A firearm is defined as “any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .” (Emphasis added.) General Statutes § 53a-3 (19). “Whether a firearm is one from which a shot may be discharged can be inferred from all of the facts . . . .” (Emphasis added.) State v. Carpenter, 19 Conn. App. 48, 59, 562 A.2d 35, cert, denied, 213 Conn. 804, 567 A.2d 834 (1989).

The defendant does not contest that the handgun functioned properly when Officer Tyler fired six test shots from it with substituted ammunition. He claims instead that this evidence was insufficient because Tyler did not use the ammunition that the police recovered from Thomas during his testing and, therefore, it was not unreasonable to surmise that the original bullets were defective and incapable of being discharged. The defendant’s argument, however, misconstrues what § 53a-3 (19) requires the state to prove. To establish that the .380 caliber handgun was a firearm, the state had to prove that the handgun was a “weapon . . . from which a shot may be discharged . . . .” General Statutes § 53a-3 (19). The statute does not require the state to establish that the ammunition recovered with the handgun was capable of being discharged from the instrumentality with which it was recovered. Thus, even assuming that the ammunition that the police recovered was defective, this would establish only that the ammunition was defective. It would provide no relevant evidence on the key issue before the jury, which was whether the handgun was a “weapon . . . from which a shot may be discharged . . . .” Therefore, the fact that Tyler used different ammunition is irrelevant in determining whether the state established that the handgun was a “weapon . . . from which a shot may be discharged . . . .” Accordingly, we conclude that there was sufficient evidence to support the defendant’s conviction of theft of a firearm.

E

Finally, the defendant claims that there was insufficient evidence to support his conviction of criminal possession of afirearm. Section 53a-217 (a) (1) provides in relevant part that “[a] person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and . . . has been convicted of a felony . . . .’’As with the dime of theft of a firearm, operability is an essential element of criminal possession of a firearm. See, e.g., State v. Miles, 97 Conn. App. 236, 240-41, 903 A.2d 675 (2006). The defendant argues that the evidence failed to establish that he possessed the .380 caliber handgun and that it was operable. As we discussed previously, however, on the basis of the evidence presented at trial, the jury reasonably could have found that the defendant possessed the .380 caliber handgun and that it was operable. Accordingly, we conclude that there was sufficient evidence to support the defendant’s conviction of criminal possession of a firearm.

II

The defendant also claims that several of the prosecutor’s statements during his closing and rebuttal arguments constituted prosecutorial impropriety that deprived him of his due process right to a fair trial. We disagree.

The defendant concedes that his claim is unpre-served, and he now seeks review pursuant to State v. Stevenson, 269 Conn. 563, 849 A.2d 626 (2004). The decision in Stevenson clarified that when a defendant raises an unpreserved claim of prosecutorial impropriety, “it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test. The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).” State v. Stevenson, supra, 572-73; see State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009) (“a claim of prose-cutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, [supra, 535-40]”). Therefore, notwithstanding the defendant’s failure to preserve this claim, we may still consider it.

The applicable standard of review for unpreserved claims of prosecutorial impropriety is well established. State v. Tomas D., 296 Conn. 476, 511, 995 A.2d 583 (2010). “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry. . . .

“Prosecutorial impropriety can occur ... in the course of closing or rebuttal argument. ... In the event that such impropriety does occur, it warrants the remedy of a new trial only when the defendant can show that the impropriety was so egregious that it served to deny him his constitutional right to a fair trial. ... To prove prosecutorial [impropriety], the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process. ... In weighing the significance of an instance of prosecu-torial impropriety, a reviewing court must consider the entire context of the trial, and [t]he question of whether the defendant has been prejudiced by prosecutorial [impropriety] . . . depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Citations omitted; internal quotation marks omitted.) State v. Long, 293 Conn. 31, 36-37, 975 A.2d 660 (2009).

The defendant’s claims of prosecutorial impropriety may be divided into two categories. The defendant argues that the prosecutor (1) commented on or suggested that the jurors draw inferences from facts that were not in evidence and (2) improperly appealed to the emotions of the jurors. We address each category in turn.

A

We first address the defendant’s claim that the prosecutor commented on or suggested that the jurors draw inferences from facts that were not in evidence. In reviewing the defendant’s claim, we are mindful that “[w]hen making closing arguments to the jury . . . [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 237, 864 A.2d 666 (2004), cert, denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence . . . .” State v. Ferrone, 96 Conn. 160, 169, 113 A. 452 (1921). “Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Colon, supra, 237; cf. State v. McKiernan, 78 Conn. App. 182, 201, 826 A.2d 1210 (“a prosecutor must not comment on evidence that is not part of the record, nor is he to comment unfairly on the evidence adduced at trial so as to mislead the jury”), cert, denied, 266 Conn. 902, 832 A.2d 66 (2003).

In his brief, the defendant has identified eight statements made by the prosecutor during his closing and rebuttal arguments that he claims either improperly commented on facts that were not in evidence or asked the jury to draw an inference from facts that were not in evidence. After an extensive review of the record, we conclude that all of the statements either were supported by the evidence or simply asked the jury to draw reasonable inferences from the evidence. Therefore, we conclude that the prosecutor’s statements were not improper.

B

We next consider the defendant’s claim that the prosecutor improperly appealed to the emotions of the jurors during his closing and rebuttal arguments. As our Supreme Court has recognized: “A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the jury’s attention from [its] duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irr elevant factors which are likely to skew that appraisal.” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 204 Conn. 545-46.

The defendant argues that the following statement improperly appealed to the emotions of the jury because it had no basis in fact and was not a proper summation of established facts: “Well, the evidence is clear, there were two guns stolen. One was given to . . . Thomas. We still have another one out there trying to be sold.”

After a careful review of the record, we conclude that the statement was not improper. Despite the defendant’s argument to the contrary, the prosecutor’s comments were supported generally by evidence introduced at trial and the inferences reasonably drawn therefrom. The testimony of Officer Taylor revealed that the victim’s boyfriend had reported two guns missing from the residence after the August 12, 2006 burglary. Thomas’ testimony, along with that of Officer Ellsworth, revealed that on August 14, 2006, Thomas had been found in possession of one of the handguns taken during the burglary. Furthermore, Thomas testified that the day after he sold her the .380 caliber handgun, the defendant sold a second gun to another individual, which was never recovered. Although the state should not ask the jury to draw inferences that are not supported by the evidence, we cannot say that the prosecutor’s comments in the present case “impermissibly strayed beyond the evidence or the inferences the jury reasonably could have drawn from it.” State v. Kendall, 123 Conn. App. 625, 636, 2 A.3d 990, cert, denied, 299 Conn. 902, 10 A.3d 521 (2010).

The defendant also argues that the prosecutor sought to appeal to the emotions of the jurors by impermissibly using his criminal record as character and propensity evidence. The defendant refers to the following portion of the prosecutor’s closing argument in support of his claim:

“You viewed several witnesses, lay witnesses, not police officers in this case. Most, if not all of the witnesses who testified before you, had some baggage accompanying them to the witness stand, meaning their prior history or some involvement in these criminal cases. And I want you to keep in mind the circumstances of this case and the circumstances in many crimes. We’re talking about a situation where someone has burglarized the house, took off with thousands of dollars worth of jewelry and guns. This is not the type of circumstances that most of us are involved in. Most of us have never had the experience of being approached by someone trying to unload $2000 worth of stolen jewelry or two stolen weapons. This is the type of people this does happen to, the type of people that you’ve seen over the last couple of days. Those are the type of people who were involved in either buying stolen jewelry or buying stolen guns. So, I want you to take that into consideration when you judge their credibility and when you look at this case as a whole.”

We conclude that the defendant’s contention is not a reasonable reading of the prosecutor’s remarks. At no time throughout the remarks did the prosecutor reference the defendant, his criminal record or his character. A plain reading of these remarks reveals that they were aimed at addressing credibility concerns that the jurors may have developed regarding certain witnesses for the state. As we have recognized: “It is not improper for a prosecutor to ask the jury to draw inferences and to exercise common sense. ... A prosecutor may urge the jury to find for stated reasons that a witness was truthful or untruthful. ... A prosecutor may also remark on the motives that a witness may have to lie, or not to lie, as the case may be. . . . The distinguishing characteristic of impropriety in this circumstance is whether the prosecutor asks the jury to believe the testimony of the state’s witnesses because the state thinks it is true, on the one hand, or whether the prosecutor asks the jury to believe it because logic reasonably thus dictates.” (Citations omitted; internal quotation marks omitted.) State v. Felix, 111 Conn. App. 801, 811-12, 961 A.2d 458 (2008). The defendant does not contend that the prosecutor overstepped the permissible boundaries in the present case, and we have no reason to conclude otherwise.

Recognizing the weakness of his argument, the defendant attempts to bolster it by claiming that the previously mentioned remarks should be considered in conjunction with other remarks made by the prosecutor throughout his closing and rebuttal arguments, in which he states that “these people” and the defendant engaged in various activities, such as smoking crack. These other activities referred to by the prosecutor, however, are supported by testimony provided at trial. Therefore, because a prosecutor may generally use any evidence properly admitted at trial during his closing argument; State v. Camacho, 282 Conn. 328, 377, 924 A.2d 99, cert, denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007); we are unable to discern how the prosecutor’s reference to testimony adduced at trial improperly commented on the defendant’s character or propensity to commit crimes. Accordingly, we conclude that the prosecutor’s remarks were not improper.

The judgments are affirmed.

In this opinion the other judges concurred.

       According to the testimony provided at trial, the two handguns belonged to Paul Gitsis, the victim’s boyfriend. Gitsis told the police that the missing guns were a nine millimeter Sig Sauer pistol and a Colt .380 caliber pistol. The Sig Sauer pistol was never recovered.

       The defendant was sentenced to a total effective term of twenty years imprisonment.

       In his brief on appeal, the defendant also makes a number of arguments addressed at the credibility of various witnesses. “In reviewing allegations of insufficient evidence, we will not. . . resolve questions of the credibility of witnesses.” State v. Hendrickson, 12 Conn. App. 662, 670, 533 A.2d 894 (1987). Therefore, we do not consider these arguments in reviewing the sufficiency of the evidence.

       At oral argument before this court, defense counsel also argued that the defendant’s conviction of burglary could not stand if this court determined that the evidence was insufficient to support his conviction of larceny. Counsel misinterprets the law. “[B]urglary and larceny are two separate and distinct crimes. . . . The fact that no actual larceny was committed does not bar a conviction of the defendant for the crime of burglary even where the crime alleged to have been intended was larceny. . . . The crime proscribed by the provisions of ... § 53a-103, is committed completely once a person enters or remains unlawfully in a building with the intent to commit a crime therein.” (Citations omitted; emphasis added.) State v. Patterson, 35 Conn. App. 405, 412, 646 A.2d 258, cert, denied, 231 Conn. 930, 649 A.2d 254 (1994). Therefore, the state need not prove that a completed crime occurred to convict a defendant of burglary.

       We do note one distinction between Spikes and Correa and the present case. In both Spikes and Correa, the state presented evidence from which the jury reasonably could have inferred that the defendant was the individual witnesses had observed outside of the victim’s residence at about the time of the burglary. State v. Spikes, supra, 111 Conn. App. 555; State v. Correa, supra, 57 Conn. App. 110. In the present case, the state did not adduce such evidence. The state’s evidence consisted of only a general description of a black male wearing a green shirt. As this court previously has recognized, without any further description or testimony, “[t]his general description alone, totally devoid of any additional identifying characteristics or traits, did not provide sufficient information for the jury reasonably to have concluded that the defendant was the individual observed . . . .” State v. Billie, 123 Conn. App. 690, 698, 2 A.3d 1034 (2010). Notwithstanding this distinction, on the basis of Rubelmann’s testimony that the defendant stated that he had stolen the jewelry and guns he was attempting to sell, along with the other cumulative evidence presented by the state, we do not believe that the distinction is significant enough to require us to depart from the reasoning of Spikes and Correa.

       The defendant, also claims that the state did not adduce sufficient evidence to establish that he wrongfully took the handgun. Having already concluded in part I B of this opinion that the jury reasonably could have found that the defendant wrongfully took the handgun, we do not reconsider that claim here.

       The defendant also claims that the prosecutor’s statements violated his right to remain silent pursuant to the fifth amendment to the United States constitution. Because the defendant does not cite any legal authority or provide any analysis of this claim, we decline to afford it consideration. See, e.g., O’Connell, Flaherty & Attmore, LLC v. Doody, 124 Conn. App. 1, 8, 3 A.3d 969 (2010) (“[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]).

       The defendant requests that we exercise our supervisory authority to reverse his convictions and order a new trial due to prosecutorial impropriety. “[An appellate court] may invoke [its] inherent supervisory authority in cases in which prosecutorial [impropriety] is not so egregious as to implicate the defendant’s . . . right to a fair trial . . . [but] when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . [S]uch a sanction generally is appropriate . . . only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal. . . . Accordingly, in cases in which prosecutorial [impropriety] does not rise to the level of a constitutional violation, we will exercise our supervisory authority to reverse an otherwise lawful conviction only when the drastic remedy of a new trial is clearly necessary to deter the alleged prosecutorial [impropriety] in the future.” (Citations omitted; internal quotation marks omitted.) State v. James G., 268 Conn. 382, 422-23, 844 A.2d 810 (2004). In the present case, because we conclude that none of the prosecutor’s statements were improper, we decline the defendant’s request.


author: BEACH, J.

text:
    WILLIAM P. MARA, JR., ET AL. v. KAREN OTTO
    (AC 31833)
    Lavine, Beach and Alvord, Js.
    Argued January 5
    officially released March 22, 2011

      Suzan M. Mara, pro se, with whom, on the brief, was William P. Mara, Jr., pro se, the appellants (plaintiffs).

      James C. Riley, with whom, on the brief, was James A. Fulton, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiffs, William P. Mara, Jr., and Suzan M. Mara, appeal from the summary judgment rendered by the trial court in favor of the defendant, Karen Otto, as to William Mara’s claim and the resulting dismissal of Suzan Mara’s derivative claim. See footnote 1 of this opinion. On appeal, the plaintiffs claim that the court erred in concluding that no genuine issue of material fact existed as to whether the defendant’s allegedly defamatory statements regarding William Mara were made with malice. We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiffs; see Heyse v. Case, 114 Conn. App. 640, 645, 971 A.2d 699, cert, denied, 293 Conn. 905, 976 A.2d 705 (2009); reveals the following facts and procedural history. William Mara is a dentist with a specialty in periodontics. Prior to September, 2004, the defendant was a regular patient of William Mara and had been treated by him frequently for a number of years. On September 26, 2004, the defendant requested an emergency appointment with William Mara to repair a dental bridge that had broken and had become detached. Later that same day, William Mara employed a procedure to correct the defendant’s dental bridge that required the administration of nitrous oxide.

Later that week, the defendant went to the Greenwich police department and told a detective that on September 26, 2004, she underwent a dental procedure that required the administering of nitrous oxide and that when the effects of the nitrous oxide began to wear off, she realized that William Mara was sexually assaulting her. The defendant also gave a written statement to this effect. The police then conducted an investigation regarding the defendant’s accusation. The police questioned William Mara and administered a polygraph test to him, which he passed. On January 22, 2005, the Greenwich police advised the defendant that there would be no criminal charges brought against William Mara.

The plaintiffs commenced this action against the ' defendant in April, 2006. On August 24, 2006, the plaintiffs filed a revised complaint, alleging, inter alia, that the defendant’s allegations of sexual assault made to the Greenwich police were false and defamatory and that Suzan Mara suffered loss of consortium with William Mara as a result. On September 18,2009, the defendant filed a motion for summary judgment, alleging that there was no genuine issue of material fact and that she was entitled to judgment as a matter of law. Specifically, the defendant contended that her statement to the Greenwich police was protected by a qualified privilege that could be overcome only by proof of actual malice and that there was no evidence before the court that she made the statements with a malicious intent. In support of the motion, the defendant submitted an affidavit in which she stated that her “written and oral statements made to the Greenwich [pjolice [department were truthful in all respects and were not made with malice.” The defendant also submitted deposition testimony of William Mara. In response to a question posed by the defendant’s counsel as to why William Mara believed that the defendant would falsely accuse him of sexual assault, he responded: “I don’t know if it’s . . . related to the [medication] that [the defendant] takes because they do have . . . consequences ... as does the nitrous oxide . . . it’s been documented that stuff like this can happen with [nitrous oxide]. But that’s . . . the only thing that I could . . . think of. . . . [Nitrous oxide] can make you . . . hallucinate. It can make you . . . get out of a little bit of touch of reality and supposedly for some women they can have sexual fantasies under it.”

On October 29, 2009, the plaintiffs filed an opposition to the defendant’s motion for summary judgment. In support of the plaintiffs’ opposition, William Mara submitted an affidavit in which he stated that the defendant’s affidavit was “patently false in crucial respects,” that her statement to the Greenwich police was a “complete fabrication” and that he had passed a polygraph test during a police investigation. William Mara later submitted a second affidavit that again asserted that the defendant’s allegations were false, but he did not provide any information regarding malice. The plaintiffs also submitted a second memorandum of law in support of their opposition, arguing that “the very nature of [the defendant’s] accusations and the uncontradicted fact that she made them to the police” is sufficient evidence for a jury reasonably to infer malicious intent.

On December 8, 2009, the court issued a memorandum of decision granting the defendant’s motion for summary judgment. In its decision, the court stated that the plaintiffs’ two memoranda of law in support of their opposition to summary judgment “simply state [d] that because [the defendant’s] statements were false and potentially injurious, there must be an inference of malice. No authority is cited for this proposition.” The court further reasoned that “[njothing in either of [William Mara’s] affidavits is evidence of malice, and no sworn deposition testimony supporting a finding of malice has been presented.” Therefore, the court granted the defendant’s motion, concluding that “[n]o admissible evidence has been presented or disclosed in opposing the summary judgment motion that [the defendant] acted with actual malice, unjustifiably or improperly.” This appeal followed.

On appeal, the plaintiffs claim that the court erred in determining that they did not present sufficient evidence to create a genuine issue of material fact as to whether the defendant’s comments to the Greenwich police were made with malice. Specifically, the plaintiffs argue that the evidence that they presented to the court, in addition to the nature of the defendant’s comments, was sufficient for a jury reasonably to infer that the defendant’s statement was made with malice. We are not persuaded.

We begin by setting forth our standard of review. “Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue. . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

Our Supreme Court has held that statements made to the police in connection with a criminal investigation, such as the defendant’s statements in the present case, are entitled to protection by a qualified privilege. Gallo v. Barile, 284 Conn. 459, 467-68, 935 A.2d 103 (2007). Therefore, for the plaintiffs to prevail on their defamation claim, they must prove that the defendant made her statement with malice. Hassett v. Carroll, 85 Conn. 23, 35-36, 81 A. 1013 (1911) (“[o]ne publishing defamatory words under a qualified or conditional privilege is only liable upon proof of express malice”). “[T]he malice required to overcome a qualified privilege in defamation cases is malice in fact or actual malice.” Chadha v. Shimelman, 75 Conn. App. 819, 826, 818 A.2d 789, cert, denied, 264 Conn. 909, 826 A.2d 180 (2003). “Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false. ... A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth. . . . Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives.” (Citation omitted; internal quotation marks omitted.) Id., 827.

The court properly concluded that the plaintiffs did not provide sufficient evidence to show that a genuine issue of material fact existed as to whether the defendant made her statement to the Greenwich police with malice. William Mara’s affidavits simply stated that the defendant’s statement to the Greenwich police was a “complete fabrication” and that her affidavit was “patently false in crucial respects.” The plaintiffs offered no admissible evidence from which the court reasonably could have concluded that a genuine issue of material fact existed as to whether the defendant had acted with malice. In fact, William Mara himself suggested at one point that perhaps the defendant may have accused him of sexual assault as a result of the side effects of the nitrous oxide. The only suggestions of malice that the plaintiffs provided were conclusory statements regarding the mental state of the defendant and assertions that her statement to the Greenwich police was false. As this court previously has stated: “The plaintiffs opinions and assertions about the motives of the defendants . . . are not sufficient to establish facts as would be admissible in evidence, as required by Practice Book § 17-46. Once the defendants offered evidence of the absence of malice, it was incumbent on the plaintiff to refute that evidence.” (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn. App. 527, 540, 906 A.2d 14 (2006). The plaintiffs failed to present evidence sufficient to avoid summary judgment. On this record, we are not willing to infer malice as the plaintiffs urge. Accordingly, we conclude that the court did not err in granting the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Regarding the loss of consortium claim, the court stated that such a claim “is derivative in nature, and the right to pursue it depends on the viability of the predicate claim — in this case, the defamation claim by [William Mara].” Having granted the defendant’s motion for summary judgment, the court dismissed the loss of consortium claim. The plaintiffs do not challenge this determination on appeal, and, thus, we need not address it.

       The plaintiffs argued before this court that the trial court should have considered copies of dental records that were not properly authenticated. We conclude that the court did not err in declining to consider the records.