author: DRANGINIS, J.

text:
    KERRY D. WEIGOLD, ADMINISTRATOR (ESTATE OF FRANCES WEIGOLD) v. JAYANTKUMAR C. PATEL ET AL.
    (AC 23289)
    Lavery, C. X, and Dranginis and Hennessy, Js.

      Argued October 21, 2003 —
    officially released February 3, 2004

      Michael J. Walsh, with whom was Ann W. Henderson, for the appellant (plaintiff).

      John B. Farley, with whom, on the brief, were David G. Hill, Laura P. Zaino and Regan OMalley, for the appellee (named defendant).

      Louis B. Blumenfeld, with whom were Lorinda S. Coon and, on the brief, Jeffrey C. Pingpank, for the appellee (defendant Lynne E. Weixel).
   Opinion

DRANGINIS, J.

The issue in this wrongful death action is whether a psychiatrist and a psychologist have a duty to warn their patient not to operate a motor vehicle after ingesting prescribed medication. The plaintiffs decedent was killed in a motor vehicle collision that was caused by the defendants’ patient who had fallen asleep while operating her vehicle. We conclude, as a matter of law, under the facts of this case, that the defendants had no duty to warn the patient not to operate her motor vehicle for the benefit of the decedent and, therefore, affirm the judgment of the trial court.

The plaintiff, Kerry D. Weigold, administrator of the estate of his deceased wife, Frances Weigold (decedent), appeals from the judgment of the trial court rendered after it granted the motions for summary judgment filed by the defendants, Jayantkumar C. Patel (psychiatrist) and Lynne E. Weixel (psychologist). On appeal, the plaintiff claims that it was improper for the court to grant the defendants’ motions for summary judgment by concluding that (1) the defendants did not owe his decedent a duty of care, (2) he could not avail himself of the automatic ninety day extension provided by General Statutes § 52-190a (b), (3) the psychiatrist was entitled to summary judgment despite his failure to comply with certain provisions of our rules of practice, (4) there were no genuine issues of material fact with respect to the psychologist and (5) the law of the case was inapplicable to the motions for summary judgment.

The plaintiff first brought a wrongful death action against the patient, a registered nurse. During her deposition, the patient revealed that she has a history of psychiatric illness and was being treated by the defendants. As a result of taking medicine that had been prescribed for her, the patient suffered sleep disturbances and was prone to fall asleep during the day. Thereafter, in 1999, the plaintiff commenced this wrongful death action against the defendants. When the pleadings were closed, the defendants filed separate motions for summary judgment with regard to the respective allegations of negligence against them. The court granted both motions, and the plaintiff appealed.

A motion for summary judgment shall be granted if the pleadings, affidavits and any other proof submitted demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. A complaint sets forth the material facts at issue with respect to a motion for summary judgment. See New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).

In his revised complaint, the plaintiff alleged in relevant part that his decedent was killed at approximately 2 p.m. on August 22, 1997, when the motor vehicle she was operating was struck head on by the motor vehicle that was operated by the patient, who had fallen asleep at the steering wheel. He also alleged that for a substantial period of time prior to the accident, the patient had suffered from severe psychiatric illness and was being treated by both of the defendants. The medicine that was prescribed for her illness disrupted her sleep and caused her to fall asleep during the day. Prior to the date of the accident, the patient knew that the medicine she was taking affected her behavior, muscle control and coordination. She also knew that as a result of taking her medicine, she was a poor driver, and she had questioned the psychologist about whether she should drive.

Furthermore, the complaint alleged that for a period of time before and including August 22,1997, the psychiatrist had a physician-patient relationship with the patient. The plaintiff alleged that the psychiatrist was negligent and careless in his treatment of the patient and that his treatment deviated from the standard of medical care in a number of ways in that, among other things, he failed to advise the patient that she was unable to operate a motor vehicle safely and failed to advise her that when she was operating a motor vehicle on the highway, she was a danger to herself. The plaintiff alleged that as a result of the psychiatrist’s negligence, the patient was allowed to operate her motor vehicle on the highway, thereby causing the collision and the decedent’s death.

With respect to the psychologist, the complaint made similar allegations about the accident, the patient, the effects of the medicine she was taking, the result of the alleged negligence and the decedent’s death. More specific to the psychologist, however, the complaint alleged that prior to August 22, 1997, the psychologist knew that the patient had fallen asleep while she was operating her motor vehicle. The patient expressed concern to the psychologist about her ability to operate a motor vehicle safely, and on at least one occasion prior to the accident, the psychologist had followed the patient’s motor vehicle in her own vehicle to determine the patient’s ability to drive. The psychologist concluded that the patient could not keep her vehicle within the recognized lane of traffic. The patient also fell asleep during her therapy sessions with the psychologist.

The complaint alleged that the psychologist was negligent and that her treatment of the patient deviated from the standard of care in that she failed to advise the patient that it was not safe to operate her motor vehicle, failed to consult with the patient’s physicians, including the psychiatrist, and failed to advise the patient of the risks of operating a motor vehicle on the highway when she knew or should have known that doing so exposed the patient and others to danger.

After the pleadings were closed, the defendants filed their motions for summary judgment. In her motion, the psychologist asserted three grounds for granting the motion for summary judgment: (1) the plaintiffs action sounded in medical malpractice, and there was no physician-patient relationship between the decedent and the psychologist, (2) the action was barred by the applicable statute of limitations, General Statutes § 52-584, and (3) she breached no duty of care owed to the decedent. In his motion for summary judgment, the psychiatrist asserted three similar grounds as to why his motion should be granted.

The court granted the defendants’ motions for summary judgment, stating first that it was reasonable to conclude that the defendants knew or should have known that the patient was at risk of falling asleep while operating her motor vehicle. The court ultimately concluded, however, that because there was no physician-patient relationship between the defendants and the decedent, they did not owe her a duty of care. Citing public policy on which our Supreme Court has relied, the trial court reasoned that the decedent was not a member of an identifiable class of victims at risk due to the patient’s impaired ability to operate a motor vehicle because the class defined by the plaintiff was too broad to be identifiable. The class, the court reasoned, included pedestrians, bicyclists, property owners and operators from other states and beyond who use our public highways. The court, therefore, concluded that the defendants did not have a duty to warn the class because that was analogous to stating that the defendants had a duty to warn the general public about the patient’s impaired ability to operate a motor vehicle.

Before we address the plaintiffs claims, we set forth the well established standard of review regarding motions for summary judgment. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Citation omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d 1266 (2002). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994).

I

The plaintiffs first claim is that the court improperly concluded that the defendants did not owe his decedent a duty of care to warn the patient not to operate a motor vehicle on the highway. See footnote 4. The plaintiffs claim, to put it another way, is that if the defendants had warned the patient not to operate her motor vehicle, the accident would not have happened. The psychiatrist has argued on appeal that the objective of the plaintiffs claim is that the defendants should have controlled the patient’s behavior. We agree. Because the defendants were not in the position to control the patient’s behavior, we conclude, pursuant to our plenary review, that the defendants’ failure to warn the patient not to operate her motor vehicle was not the proximate cause of the decedent’s death. The proximate cause of the decedent’s death was the patient’s operating her motor vehicle on the highway even though she knew that her ability to do so was impaired. The defendants, therefore, owed no duty of care to the decedent.

The plaintiffs argument of law “invokes the well established proposition that a tortfeasor is liable for all damages proximately caused by its negligence.” First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999). “To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . [Ljegal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 24—25, 734 A.2d 85 (1999).

“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions. . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct. ... In negligence cases such as the present one, in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty to the plaintiff.” (Citations omitted.) First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., supra, 247 Conn. 604.

“The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor’s responsibility should not extend to the theoretically endless consequences of the wrong. . . . Even where harm was foreseeable, [our Supreme Court] has found no duty when the nexus between a defendant’s negligence and the particular consequences to the plaintiff was too attenuated.” (Citations omitted; internal quotation marks omitted.) Id., 605.

“[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Citations omitted; emphasis added; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 250 Conn. 25-26. See also Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).

In the trial court and on appeal, the parties relied on failure to warn cases involving mental health or other health care providers. Because many of those cases are factually distinguishable from the one here, we look to a case in which our Supreme Court upheld the summary judgment rendered by the trial court under an analogous factual situation in which the primary actor was well aware of the risks involved in his behavior. See Haesche v. Kissner, supra, 229 Conn. 213.

In Haesche, without deciding whether the defendant manufacturer of an air rifle had a duty to provide an explicit warning, our Supreme Court determined that the nature of the warning was not the proximate cause of the plaintiff teenager’s injury. The Haesche victim suffered a serious injury to his eye when it was struck by a BB pellet from an air rifle while he and his friends were playing games. Id., 215. The plaintiffs brought a products liability action against several defendants, claiming that the warning on the box was inadequate because it did not specifically state that the gun could cause serious injuries to the eye. Id. The trial court concluded that the failure to provide that warning was not the proximate cause of the victim’s injury. Id., 219.

During his deposition, the defendant teenager who had shot the victim testified that he knew that a BB pellet could injure a person’s eye, that he purchased the gun contrary to his parents’ prohibition and that his father had instructed him never to point a gun at anyone. Id., 219-21. The court concluded that no more specific warning on the box would have altered the teenager’s behavior because he disregarded his father’s warnings and disobeyed his parents’ prohibitions. Id., 219.

Here, the patient knew without the benefit of a warning from the defendants that she was prone to falling asleep during the day, even when she was operating her motor vehicle. She knew that her driving was impaired. A registered nurse, she associated her sleep disturbance with the medicine she was taking for her mental illness. She questioned the psychologist about her ability to drive and was told that she had not operated her vehicle within the prescribed lane of travel. Those facts, of which the patient was aware, put her on notice that she was at risk when operating a motor vehicle on the highway. The patient was well aware of the substance of the warning the plaintiff claims the defendants had a duty to give her. We therefore conclude that the proximate cause of the decedent’s injuries was the patient’s operating her motor vehicle despite knowing that she was prone to falling asleep at the steering wheel, not the defendants’ failure to tell her not to drive.

We will not speculate to assume that had the defendants told the patient not to drive, she would have heeded the warning, as she chose to drive despite knowing that she had fallen asleep while driving on prior occasions. The defendants did not control the patient or her activities; see Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 526 n.7, 832 A.2d 1180 (2003); and responsibility for the patient’s poor judgment cannot be attributed to the defendants on the basis of their therapeutic relationship with her.

Our reasoning and conclusion are similar to those of the Supreme Court of Texas in Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998), in which the court concluded that a physician does not have a duty to warn an epileptic patient not to operate his motor vehicle to protect third parties against his having a seizure that results in an accident. The Praesel court determined that an epileptic knows that he is subject to having a seizure, the risk of having a seizure while driving and the potential consequences of that risk. Id.; see also Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 353, 733 A.2d 623 (1999) (patient well aware of her impaired vision). “[T]he relative knowledge of the risk as between a patient and a physician is another factor to consider in deciding the threshold question of whether a physician owes a duty to third parties to warn a patient.” Praesel v. Johnson, supra, 398. It cannot be assumed that a person who is warned not to operate a motor vehicle will heed the warning, as many patients do not follow their physicians’ advice. In balancing the need for and the effectiveness of a warning to an epileptic against the burden of liability to third parties, the primary responsibility for the safe operation of a motor vehicle should remain with the operator. Id.

In coming to our conclusion, we are mindful that the facts of this case are tragic for everyone involved. We keenly are aware of the loss the plaintiff and his children have suffered. We note, however, that the plaintiffs loss has not gone wholly uncompensated. “[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . .” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998). This state has a comprehensive motor vehicle insurance scheme that foresees the risks associated with the operation of a motor vehicle on our public highways. Here, our society’s structure for compensating the victim of a motor vehicle operator’s negligent act has been shifted to the responsible party. The decedent’s estate has been compensated pursuant to the patient’s motor vehicle insurance. Compare id.

For all of the foregoing reasons, the granting of the defendants’ motions for summary judgment was not improper, although it was done on other grounds.

II

The plaintiff also claims that it was improper for the court to grant the psychiatrist’s motion for summary judgment because he had failed to comply with certain of our rules of practice. Specifically, the plaintiff claims that the psychiatrist failed to comply with discovery requests and to file a statement of facts in support of his motion for summary judgment. Although we do not condone the psychiatrist’s failure to respond to discovery requests,* ****** the plaintiff has failed on appeal to demonstrate that he was prejudiced by the court’s rendering of summary judgment in favor of the psychiatrist. The summary judgment was rendered on a matter of law that was not the subject of any factual dispute.

There was no factual dispute that the psychiatrist did not have a physician-patient relationship with the decedent. In part I, we concluded that the psychiatrist’s alleged failure to warn the patient was not the proximate cause of the accident at issue. We therefore conclude that it was not improper for the court to grant the psychiatrist’s motion for summary judgment because he failed to answer discovery requests or to submit a memorandum of law in support of his motion for summary judgment. The plaintiff was aware of the facts and law on which the psychiatrist was relying.

III

The plaintiffs next claim is that the court improperly rendered summary judgment by concluding that there were no genuine issues of material fact with respect to the psychologist. The basis of the plaintiffs claim is that because the psychologist at one time followed the patient in her vehicle, the psychologist assumed a duty to individuals who travel the highways. We disagree.

There appears to be no dispute that the psychologist at one time operated her motor vehicle behind that of the patient and determined that she did not stay within the prescribed lane of travel. There was no dispute that this event did not occur on the date of the accident in which the decedent was killed. There also was no dispute that the psychologist did not control the patient on the day in question or at any time.

The plaintiff relies on the legal principle that if one gratuitously undertakes a service that she has no duty to perform, she must act with reasonable care. See Coville v. Liberty Mutual Ins. Co., 57 Conn. App. 275, 281-82, 748 A.2d 875, cert. granted on other grounds, 253 Conn. 919, 755 A.2d 213 (2000) (appeal withdrawn March 30, 2001). Two sections of the Restatement (Second) of Torts extend liability where a person by her conduct assumes a duty to protect another. “[T]his duty arises particularly in special relationships where the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiffs welfare.” (Internal quotation marks omitted.) Id., 281. Hypothetically speaking, we note that the application of that rule to the psychologist’s observing the patient operate her motor vehicle would result in a duty of care owed to the patient, not to a third party. In reality, however, the rule not only fails to apply to the relationship between the patient and the psychologist, as the patient was not in the psychologist’s control, it also does not apply because there was no relationship between the psychologist and the decedent.

As we concluded in part I, the psychologist’s alleged failure to warn the patient not to operate her motor vehicle was too attenuated from the patient’s falling asleep at the steering wheel, which was the proximate cause of the decedent’s death, to impose a duty on the psychologist for the decedent’s benefit.

On the basis of our conclusion in part I, we need not address the plaintiffs remaining claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint also alleged with respect to both of the defendants the further consequences of the defendants’ negligence, primarily the death of the decedent and the related losses. Those allegations are not relevant to the defendants’ motions for summary judgment.

       In their answers to the complaint, the defendants asserted special defenses, including that (1) the action was barred by the applicable statute of limitations and (2) they owed no duty of care to the decedent.

       The court denied the motions for summary judgment on the basis of the statute of limitations special defense, concluding that there was a genuine issue of material fact as to whether the plaintiff should have discovered the defendants’ alleged negligent conduct sooner, which was for the jury to determine. The court, however, concluded that General Statutes § 52-190a (b) did not apply to extend by ninety days the statute of limitations imposed by General Statutes § 52-584 because there was no physician-patient relationship between the decedent and the defendants.

         See Jacoby v.Brinckerhoff, 250 Conn. 86, 97, 735 A.2d 347 (1999) (psychotherapist owed undivided loyalty to patient, not to patient’s former spouse); Zamstein v. Marvasti, 240 Conn. 549, 559, 692 A.2d 781 (1997) (mental health professional engaged to evaluate whether sexual abuse occurred owes no duty of care to alleged sexual abuser); Fraser v. United States, 236 Conn. 625, 627, 674 A.2d 811 (1996) (medical center had no duty to control outpatient to avoid injury to unidentifiable third persons); Evon v. Andrews, 211 Conn. 501, 507-508, 559 A.2d 1131 (1989) (municipal employees shielded by governmental immunity unless discrete person-imminent harm exception applies); Shore v. Stonington, 187 Conn. 147, 152, 444 A.2d 1379 (1982) (public versus private duty).

       We agree with the plaintiffs position on appeal that the court mischaracterized the duty he alleged in his revised complaint. He did not allege that the defendants had a duty to wain his decedent or the class. He alleged that the defendants had a duty to warn the patient not to operate a motor vehicle to prevent injury to the members of an identifiable class. Nonetheless, we may uphold the court’s judgment “because it reached the right result, even if it did so for the wrong reason.” Kalas v. Cook, 70 Conn. App. 477, 485, 800 A.2d 553 (2002).

       See footnote 4. See also Garamella v. New York Medical College, 23 F. Sup. 2d 167, 174-75 (D. Conn. 1998) (instructor had duty to protect patients of psychiatric resident who was admitted pedophile); Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 431, 131 Cal. Rptr. 14, 551 P.2d 334 (1976) (mental health provider had duty to wain of patient’s threat of harm to identifiable victim); McKenzie v. Hawaii Permanente Medical Group, Inc., 96 Haw. 296, 297-98, 47 P.3d 1209 (2002) (patient fainted while driving due to new medicine prescribed three days before).

       In Lodge, the plaintiffs were seeking damages from several business entities that negligently caused the transmission of a false fire alarm. As they were responding to the alarm, a number of firefighters were killed or injured when the negligently maintained brakes of their fire truck failed. Lodge v. Arett Sales Corp., supra, 246 Conn. 566. The jury returned a verdict in favor of the plaintiffs, but our Supreme Court reversed the judgment on the basis of foreseeability in the nature of general harm. The victims, however, had been compensated for their loss pursuant to workers’ compensation benefits. Id., 579-80.

       Although the plaintiff cited no rule of practice in his brief, we assume that he is relying on Practice Book § 11-10, which provides in relevant part: “A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions . . . (5) motions for summary judgment. . . .”

       In addressing the plaintiffs claim, we do not imply or decide that the psychologist was qualified to determine the patient’s ability to operate a motor vehicle.

       See 2 Restatement (Second), Torts §§ 314A, 324 (1965).


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CAMERON MOUNDS
    (AC 23679)
    Lavery, C. J., and Schaller and DiPentima, Js.

      Argued December 8, 2003 —
    officially released February 3, 2004

      Robert J. McKay, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were James E. Thomas, state’s attorney, and, on the brief, Terri L. Sonnemann, assistant state’s attorney, and Alexandra Jojin, certified legal intern, for the appellee (state).
   Opinion,

SCHALLER, J.

The defendant, Cameron Mounds, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 2 la-279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d). The defendant claims that the court improperly denied his motion to suppress the evidence obtained during a search of his vehicle because the police detectives lacked probable cause and the search was not contemporaneous to his arrest. We affirm the judgment of the trial court.

The record discloses the following facts. On January 3,2002, Alfred Henderson, a detective with the Hartford police department, received a telephone call from a confidential informant that a black man named “Cameron” was selling drugs out of a green station wagon with tinted windows parked at 53 Elmer Street in Hartford. Henderson, an eight year veteran assigned to the narcotics division, had used that confidential informant in the past, and the informant’s information had led to convictions. Henderson knew the defendant as well.

Henderson and his partner, Detective Sean Spell, proceeded to the area in question and set up surveillance of the vehicle. Henderson observed the vehicle at a distance of approximately fifty feet. He observed a green station wagon with tinted windows. A person was in the driver’s seat and the engine was running. Shortly thereafter, a man approached, entered the vehicle and exited. Henderson then observed a second man approach the driver’s side door and count an amount of money before handing it to the driver in exchange for a small item. A third man, shortly thereafter, approached and entered the vehicle. At that point, Henderson met with Spell, who had been parked nearby in an unmarked cruiser.

Henderson and Spell drove to 53 Elmer Street, blocked the defendant’s vehicle and ordered him to turn the engine off. The defendant complied. Henderson recognized the defendant and ordered him to exit the vehicle. Spell approached to the rear passenger side and removed the male passenger from the vehicle. When escorting the male passenger from the vehicle, Spell observed him drop a small white bag on the ground. The detectives patted down the two men for weapons. Henderson went to the area where Spell had observed the male passenger drop the white bag. He located the bag and suspected that it contained crack cocaine on the basis of his years of training and experience. At that point, Henderson searched the interior of the vehicle. In the glove compartment, he found a bag containing more than $1000 in small denominations. In the center console, he found numerous small packages of crack cocaine. The defendant was then placed under arrest at the scene for possession of narcotics with intent to sell.

At trial, the defendant filed a motion to suppress the evidence found in his vehicle as the fruit of an illegal search and seizure. The court denied his motion. On October 18, 2002, the defendant was convicted of possession of narcotics and possession of narcotics within 1500 feet of a school. This appeal followed.

The defendant claims that the court improperly denied his motion to suppress. Specifically, the defendant argues that evidence seized from his vehicle should have been suppressed because the detectives lacked probable cause and the search was not contemporaneous with his arrest. We disagree.

The standard of review for a motion to suppress “involves a two part function: where the legal conclusions of the count are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 694, 817 A.2d 76 (2003).

I

The defendant first challenges the court’s legal conclusion that the search of the vehicle was supported by probable cause. “Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Internal quotation marks omitted.) State v. Smith, 257 Conn. 216, 223, 777 A.2d 182 (2001). “The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a totality of circumstances test. Illinois v. Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Smith, supra, 223.

The court’s memorandum of decision states that “[i]t is clear- that Detective Henderson had probable cause to believe that there was a drug selling operation being operated out of a green station wagon parked in front of 53 Elmer Street. He had received a telephone call from a concerned citizen reporting those facts to him. When Detective Henderson and his partner went to the particular location, they observed a green station wagon parked out in front of 53 Elmer Street. During the course of the surveillance, Detective Henderson observed at least three persons approach the car and stay for a short period of time. In one case, the detective observed the exchange of money for a small package. All of this activity, coupled with the call from the concerned citizen, clearly satisfies the probable cause standard.”

We agree with that conclusion. Further, although the court did not rely on it, the evidence that Spell observed in plain view, the small white bag of crack cocaine that had been dropped by the passenger when exiting the defendant’s vehicle, satisfies the probable cause test. Probable cause to search or arrest existed because of the corroborated information from an informant, the detective’s independent observations of three drug transactions and the crack cocaine that was found in plain view.

II

The defendant next argues that the search was not contemporaneous with his arrest because there was no lawful arrest of him prior to the search. We disagree.

“Under both the federal and the state constitutions, a warrantless search and seizure is per se unreasonable, subject to a few well defined exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) .... One of those exceptions is a search incident to a lawful arrest. It is an established rule that a properly conducted warrantless search incident to a lawful arrest is itself lawful. . . . Thus, if the defendant’s arrest was lawful, the subsequent warrantless search of his person also was lawful. . . . Moreover, when police make a lawful custodial arrest of an occupant of an automobile, and the arrestee is detained at the scene, police may contemporaneously search without a warrant the interior passenger compartment of the automobile. . . . The passenger compartment encompasses all space reachable without exiting the vehicle.” (Citations omitted; internal quotation marks omitted.) State v. Nowell, supra, 262 Conn. 696-97.

In the present case, the defendant was not placed under arrest until after the detectives searched his vehicle. It is clear that “ [e] ven if a search and seizure chronologically precede a formal arrest, the search and seizure may be constitutionally valid as long as the arrest and the search and seizure are substantially contemporaneous and are integral parts of the same incident.” State v. Trine, 236 Conn. 216, 236, 673 A.2d 1098 (1996). Here, the defendant was immediately placed under arrest after the detectives searched his vehicle and seized the contraband from it. The search and seizure were constitutionally valid because the detectives had probable cause to search the vehicle, and the “formal arrest followed quickly on the heels of the challenged search . . . .” Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980). Accordingly, we conclude that the court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. JOHN GLASPER
    (AC 23214)
    Bishop, McLachlan and Mihalakos, Js.

      Argued October 23, 2003 —
    officially released February 3, 2004

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Herbert E. Carlson, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, John Glasper, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and (4), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2) and burglary in the second degree in violation of General Statutes (Rev. to 1999) § 53a-102 (a). The defendant claims that (1) as there was insufficient evidence in the record to support his conviction, the trial court improperly charged the jury in violation of his right to due process under article first, § 8, of our state constitution and (2) the court improperly instructed the jury on the state’s burden of proof beyond a reasonable doubt. We affirm the judgment of the trial court.

The relevant facts are as follows. On December 18, 2000, the victim was in his room at the Madison Motel in East Hartford. At approximately 11 p.m., he answered a knock on his door. He opened the door slightly, and a man later identified as the defendant asked if “Bob lived here.” Answering no, the victim opened the door and pointed to the door number. As he did so, he saw the defendant’s hand move and felt a hard object strike his head. The victim was unsure whether the defendant had struck him with a knife, a hand or another object. The victim began to bleed profusely from a scalp wound, which eventually left a visible scar.

As the victim staggered backward, the defendant entered the room, closed the door and ordered him to “give me what you’ve got.” The victim saw what he perceived to be the end of a folding knife in the defendant’s right hand, although he never saw a blade. He based that conclusion on forty years of experience with knives, including ownership of a knife company. The victim retreated into his bedroom, pursued by the defendant. After the defendant again stated, “Give me what you’ve got,” the victim gave him his money clip, which contained about $200. Seeing a telephone, the defendant warned the victim not to call the police and stated, “I have a gun in my pocket; I don’t want to use it because it will bum a hole in my pocket.” The defendant then left the room, taking the telephone with him. The victim called the police on his cellular telephone, and they arrived shortly thereafter. Officer Anthony Piacenta of the East Hartford police department observed both the victim bleeding from the head and blood on the carpeted floor.

On March 25, 2002, the defendant was charged by substitute information with burglary in the first degree, burglary in the second degree and robbery in the first degree. After a trial by jury, the defendant was convicted on all charges and sentenced to eighteen years imprisonment, execution suspended after eleven years, and five years probation. At sentencing, the defendant acknowledged that he had committed the charged offenses. This appeal followed.

I

The defendant first claims that as there was insufficient evidence in the record to support his conviction, the court improperly charged the jury in violation of his right to due process under article first, § 8, of our state constitution. The defendant failed to preserve his claim and now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the claim under Golding because it is of constitutional magnitude and the record is adequate for review. As the defendant acknowledges, whether the evidence supporting the conviction was sufficient is a threshold issue to the resolution of his state constitutional claim. We must therefore consider first that threshold issue.

The standard of review for a sufficiency of the evidence claim employs a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Nie-meyer, 258 Conn. 510, 517, 782 A.2d 658 (2001).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offensels], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 617, 682 A.2d 972 (1996). “[I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . [A]n inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Internal quotation marks omitted.) State v. Niemeyer, supra, 258 Conn. 519. Moreover, “[i]n evaluating evidence that could yield contrary inferences, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996).

Finally, we must remember that it is the jurors who are the arbiters of fact. “[W]e do not sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict of guilt beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Cansler, 54 Conn. App. 819, 838, 738 A.2d 1095 (1999).

A

The defendant first claims that there was insufficient evidence in the record to support the jury’s verdict that he was guilty of robbery in the first degree in violation of § 53a-134 (a) (3). We disagree.

Section 53a-134 (a) (3) requires the use or the threatened use of a dangerous instrument. A dangerous instrument as defined in General Statutes § 53a-3 (7) is “any instrument, article or substance which, under the circumstances in which it is used ... or threatened to be used, is capable of causing death or serious physical injury . . . .” We must therefore determine whether, under the facts of this case, there is a reasonable view of the evidence that supports the jury’s finding that the defendant used or threatened the use of such an instrument.

The following evidence was before the jury. On December 18, 2000, the victim, answering a knock on his door, was struck violently over the head by the defendant. The skin of the victim’s scalp was broken, and there was immediate and profuse bleeding. The defendant then entered the victim’s room and closed the door, leaving the victim no means of escape. Facing his attacker, the victim saw what he perceived to be the end of a folding knife in the defendant’s right hand.

From that evidence, viewed in the light most favorable to sustaining the verdict, the jury reasonably could have inferred that a dangerous instrument, whether the end of a folding knife or some other object, was used in the attack. At the moment of the attack, the victim was facing the defendant. The victim saw the defendant’s hand move and was then struck on the left side of the head. The location of the injury, when combined with the victim’s testimony that the defendant was holding in his right hand an instrument resembling the end of a knife, reinforces the inference that the defendant hit the victim in the head with the instrument in his hand. For that reason, we conclude that there was sufficient evidence for the jury to find that the defendant used a dangerous instrument in the course of committing the robbery.

Furthermore, we conclude that there is a reasonable view of the evidence that supports the jury’s finding that the defendant threatened the use of a dangerous instrument. Although there is no definition of the word “threaten” in our statutes, General Statutes § 1-1 (a) provides that the commonly approved usage of the language should control. State v. Newton, 8 Conn. App. 528, 541, 513 A.2d 1261 (1986). To threaten is “to charge under pain of punishment.” Webster’s Third New International Dictionary. Similarly, a threat is “[a] person or thing that might well cause harm.” Black’s Law Dictionary (7th Ed. 1999).

' We have concluded that the jury reasonably could have inferred that the defendant used a knife or other object to strike the victim on the head. After striking the victim, the defendant entered the room and closed the door, leaving the victim no means of escape. With an object resembling the end of a folding knife in his hand, the defendant repeatedly ordered the victim to “give me what you’ve got.”

“Jurors do not live in a fishbowl.” State v. Torrence, 37 Conn. App. 482, 486, 657 A.2d 654 (1995). “In considering the evidence . . . [j]uries are not required to leave common sense at the courtroom door . . . .” (Internal quotation marks omitted.) State v. Sparks, 39 Conn. App. 502, 517, 664 A.2d 1185 (1995). A threat need not be explicitly uttered. State v. Torrence, supra, 486; State v. Littles, 31 Conn. App. 47, 54, 623 A.2d 500, cert. denied, 227 Conn. 902, 630 A.2d 72 (1993). Because the defendant had once inflicted severe punishment in the form of a blow to the victim’s head, the jury had evidence from which it could infer that the defendant’s subsequent orders to “give me what you’ve got” were made under pain of punishment. We conclude that the cumulative effect of the evidence, including reasonable inferences drawn therefrom, viewed in the light most favorable to sustaining the verdict, was sufficient to justify the jury’s verdict that the defendant was guilty of robbery in the first degree in violation of § 53a-134 (a) (3).

B

The defendant next claims that there was insufficient evidence in the record to support the jury’s verdict that he was guilty of burglary in the first degree in violation of § 53a-101 (a) (2) and burglary in the second degree in violation of § 53a-102 (a). Specifically, the defendant argues that there was no evidence to support a finding that the defendant intended to commit the crime of threatening while in the dwelling, as was alleged in the information. Because we have concluded that the juiy’s finding that the defendant threatened the victim was supported by ample evidence, those claims, too, must fail.

C

Because we conclude that sufficient evidence existed to support the defendant’s conviction, his claim fails to satisfy the third prong of Golding. Accordingly, we do not reach the merits of the defendant’s state constitutional claim.

II

The defendant’s final claim is that the court improperly instructed the jury on the state’s burden of proof beyond a reasonable doubt. The defendant acknowledges that his claim is controlled by our Supreme Court’s precedent, but raises it to preserve it for future review. The state argues, and the defendant concurs, that the instructions provided in this case have been held not to constitute reversible error. In light of that precedent, we conclude that the court’s instructions were proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver . . . or other firearm . . . .”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course ol' committing the offense, he intentionally, knowingly or recklessly inflicts or attempls to inflict bodily injury on anyone.”

       General Statutes (Rev. to 1999) § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001).

       The defendant concedes that sufficient evidence existed to sustain a conviction under subdivision (4) of § 53a-134 (a).

         The defendant emphasizes that the victim at trial could not conclusively say whether it was the end of a folding knife or the defendant’s hand that struck the victim and insists that a fist is not a dangerous instrument. Cf. State v. McColl, 74 Conn. App. 545, 553-54, 813 A.2d 107 (defendant contends “dangerous instrument, as defined by General Statutes § 53a-3 (7), cannot include a body part .... [W]e conclude that an ordinary object may be a dangerous instrument. Therefore, [e]ach case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury. . . . The question of whether in the given circumstances a particular object was used as a dangerous instrument is a question of fact for the jury” [citations omitted; internal quotation marks omitted]), cert. denied, 262 Conn. 953, 818 A.2d 782 (2003); State v. Osman, 21 Conn. App. 299, 306, 573 A.2d 743 (1990) (concept of dangerous instrument focuses on manner in which object used or attempted or threatened to be used and its capabilities under those circumstances), rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991); Krasovich v. State, 731 P.2d 598, 600 (Alaska App. 1987) (even bare hand can qualify as dangerous instrument when used to cause death or serious physical ipjury); People v. Hayes, 923 P.2d 221, 227 (Colo. App. 1995) (any object, including fist, can be deadly weapon if used or intended to be used in manner capable of producing death or serious bodily injury); Thomas v. State, 237 Ga. 690, 690-91, 229 S.E.2d 458 (1976) (jury may find use of fists to be deadly weapon in circumstances of particular case); see also Johnson v. Commonwealth, 926 S.W.2d 463, 465 (Ky. App. 1996) (inclusion of parts of human body as dangerous instruments depends on facts of case and capability of body part to cause death or serious physical injury); State v. Born, 280 Minn. 306, 308, 159 N.W.2d 283 (1968) (fists, when used to strike, and feet, when used to stomp another person, may or may not be dangerous weapons depending on circumstances of case); but see Ex parte Cobb, 703 So. 2d 871, 875 (Ala. 1996) (use of fists cannot constitute use of dangerous instrument); Commonwealth v. Davis, 10 Mass. App. 190, 193, 406 N.E.2d 417 (1980) (human teeth, other parts of human body should be removed from consideration as dangerous weapons, even on case-by-case basis); People v. VanDiver, 80 Mich. App. 352, 357, 263 N.W.2d 370 (1977) (if court were to rule bare hands could be dangerous weapon, it would lead to anomalous results, for practically every assault also would be capable of prosecution as assault with dangerous weapon); People v. Owusu, 93 N.Y.2d 398, 712 N.E.2d 1228, 690 N.Y.S.2d 863 (1999) (body part does not constitute instrument under criminal statute); see generally annot., 8 A.L.R.4th 1268 (1981).

       The defendant concedes that sufficient evidence existed to support the conclusion that he entered the victim’s room at night with the intent to commit both robbery and larceny.

       In Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), the United States Supreme Court held that “when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” (Internal quotation marks omitted.) Id., 56-57. The defendant asks us to hold that in such situations, the additional protections of article first, § 8, of our state constitution require the evidence to be sufficient for each act so charged. Because we conclude that the evidence in this case was sufficient as to all charges, the defendant has not met his burden of establishing that the claimed constitutional violation clearly exists.

       See State v. Reynolds, 264 Conn. 1, 106-107, 836 A.2d 224 (2003); State v. Whipper, 258 Conn. 229, 293-98, 780 A.2d 53 (2001); State v. Montgomery, 254 Conn. 694, 729-31, 759 A.2d 995 (2000); State v. Griffin, 253 Conn. 195, 203-10, 749 A.2d 1192 (2000); State v. Hines, 243 Conn. 796, 816-20, 709 A.2d 522 (1998).


text:
    STATE OF CONNECTICUT v. PHILLIP HIGHTOWER
    (AC 23294)
    Dranginis, Bishop and DiPentima, Js.
    Argued October 28, 2003 —
    officially released February 3, 2004

      Robert E. Byron, special public defender, for the appellant (defendant).

      Russell C. Zentner, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Cecilia B. Wiederhold, senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Phillip Hightower, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), larceny in the first degree in violation of General Statutes § 53a-122 (a) (3) and robbery of an occupied motor vehicle in violation of General Statutes § 53a-136a. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of larceny in the first degree and robbery of an occupied motor vehicle, and (2) the court should have instructed the jury on robbery in the second degree in violation of General Statutes § 53a-135 (a) (2). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 14, 2000, just before sunrise, Brian Hulkill was sitting in his car at the Harbor Park in Middletown when the defendant knocked on his window and showed him a bloody left arm. The defendant said that he had been attacked by a rottweiler and needed a ride home. Hulkill agreed to drive the defendant home. En route, Hulkill stopped at a gasoline station and purchased cigarettes. He continued driving along River Road following the defendant’s directions. Some time later, the defendant, put his hand in his sweatpants, pointed something at Hulkill and ordered him to stop. Hulkill, believing that the defendant had a gun or another type of weapon, drove to the side of the road.

The defendant told Hulkill that if he cooperated, he would not get hurt. He then told Hulkill to empty his wallet and took Hulkill’s money, approximately $50. The defendant next told Hulkill to switch places with him, and they both exited the car. Once the defendant was at the driver’s side of the car, Hulkill turned and ran away. The defendant briefly pursued Hulkill before driving off with the car. Shortly thereafter, Hulkill reported the incident to the police. The defendant subsequently was arrested. After the jury returned a guilty verdict, the court sentenced the defendant to a total effective term of nine years imprisonment. This appeal followed.

I

The defendant first claims that there was insufficient evidence to support his conviction of larceny in the first degree and robbery of an occupied motor vehicle. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) State v. James, 237 Conn. 390, 435-36, 678 A.2d 1338 (1996).

A

With respect to the conviction of larceny in the first degree, the defendant argues that there was insufficient evidence produced at trial on which the jury reasonably could have determined that the value of the car exceeded $10,000 pursuant to § 53a-122 (a) (3). The defendant further asserts that the court improperly allowed Hulkill to give opinion testimony regarding the value of the car at the time of the crime.

On direct examination, Hulkill testified that he had purchased the car, a two door, 2000 Chevrolet Cavalier in February, 2000. He further testified that the car had “approximately 10,000 miles on it at the time” and that he could not “remember exactly how much [he had] paid for it, but it was around $11,000, $12,000, maybe a little bit more.” The state did not produce any other evidence as to the value of the car.

“The law in this state is well settled as to the competency of the owner of property to testify as to its value. [Supreme Court] cases have ruled that the competence of the witness to testify to the value of property may be established by demonstrating that the witness owns the property in question.” (Internal quotation marks omitted.) State v. McCarthy, 197 Conn. 166, 172, 496 A.2d 190 (1985); see also State v. Gabriel, 192 Conn. 405, 424, 473 A.2d 300 (1984) (victim’s opinion as to value of stolen property properly put before jury). Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded that the state presented sufficient evidence to support the defendant’s conviction of larceny in the first degree.

B

With respect to the conviction of robbery of an occupied motor vehicle, the defendant argues that the evidence was insufficient to prove that the vehicle was “occupied” for purposes of § 53a-136a. The record reflects, and the defendant acknowledges, that he did not file a motion for a judgment of acquittal regarding his claim. The defendant failed to preserve his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s insufficiency of the evidence claim is reviewable. See State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993).

The jury reasonably could have found, from the evidence, that the defendant took the vehicle from the occupant, Hulkill. The defendant represented, by his words and body language, that he was armed and ordered Hulkill to drive to the side of the road. The defendant then put the transmission in park and removed the keys from the ignition before ordering Hulkill to get out of the car to switch places with him. The jury is entitled to draw reasonable inferences from the evidence before it and, in performing its function, brings to bear its common sense and life experiences. On the basis of the cumulative effect of the evidence, the jury reasonably could have found beyond a reasonable doubt that the defendant had “compelled [Hulkill] to relinquish possession and control of his vehicle, and to deliver it to the defendant.” State v. Toro, 62 Conn. App. 635, 643, 772 A.2d 648 (jury reasonably concluded that cumulative effect of evidence sufficient to sustain conviction of robbeiy of occupied motor vehicle), cert. denied, 256 Conn. 923, 774 A.2d 141 (2001). We therefore conclude that the state presented sufficient evidence to support the defendant’s conviction.

II

The defendant’s final claim is that the court should have instructed the jury on robbery in the second degree. See General Statutes § 53a-135 (a) (2). The gravamen of his claim, however, is that the court did not include in its charge on robbeiy in the first degree the text of the affirmative defense of inoperability of the displayed pistol or firearm, which, if proved, would reduce the degree of robbery. We disagree.

The defendant seeks review of his unpreserved claim under the plain error doctrine. See Practice Book § 60-5. The defendant’s claim fails because he did not assert the affirmative defense of inoperability and there was no evidence presented to support such a defense had it been asserted. “When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.” General Statutes § 53a-12 (b). Accordingly, the defendant’s claim does not merit consideration under the plain error doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... he ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol ... or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol ... or other firearm was not a weapon from which a shot could be discharged. . . .” (Emphasis added.)

       The defendant’s reliance on State v. Ortiz, 71 Conn. App. 865, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002), is misplaced. Ortiz is distinguishable insofar as there was uncontroverted evidence in that case that the firearm displayed was inoperable. See id., 868.