text:
    STATE OF CONNECTICUT v. GEORGE FIGUEROA
    (AC 22646)
    Lavery, C. J., and Dranginis and Dupont, Js.

      Argued September 19
    officially released December 17, 2002

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Thomas M. DeLillo, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, George Figueroa, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. He was sentenced to a total effective term of sixty years incarceration. On appeal, the defendant claims that the trial court improperly directed the jury to two pages of a witness’ twenty-one page statement in response to a question by the jury during its deliberations. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the summer of 1995, the defendant and the victim, John Corbett, were involved in a physical altercation on Lilac Street in New Haven. During that altercation, Corbett hit the defendant in the face. Thereafter, the defendant retreated to his then residence at 40-42 Lilac Street, retrieved his gun and, from a window of his third floor apartment, began firing at Corbett, who was standing in the street. Corbett was not injured during that incident, which never was reported to the police.

Shortly thereafter, Corbett was incarcerated. He was released from prison sometime in November, 1997. Approximately two weeks later, on December 7, 1997, at about 2:30 p.m., Corbett was standing at the comer of Lilac and Newhall Streets, speaking with Edward Wells. After speaking with Wells for about twenty minutes, Corbett left the area but returned a short time later and resumed his conversation with Wells. The two men were standing in front of 44-46 Lilac Street when the defendant approached, driving his white 1997 Toyota Camry, which he parked in front of a red sports car that also was parked along the side of Lilac Street. The defendant got out of his car and entered the house at 40-42 Lilac Street, where his brother resided.

In the meantime, Ebonie Moore approached, driving her black Laser, which she parked along Lilac Street in back of the red sports car that was parked there. She and her passenger, Takheema Williams, who had dated the defendant, were sitting in Moore’s car listening to music.

Thereafter, the defendant emerged from the 40-42 Lilac Street residence and stood near his car. It was at that time that Corbett told Wells that he wanted to speak with the defendant. Corbett walked to where the defendant was standing. The two talked for a short time, they shook hands and then a shot was fired. As Corbett turned away from the defendant, he fell face down onto the sidewalk. Wells and Moore then watched as the defendant stood over Corbett, with his arm fully extended and a pistol in his hand, and fired several additional shots into Corbett’s body. The defendant then walked to his white Toyota Camry, which was parked a few feet away, got into the driver’s seat and sped along Lilac Street toward Newhall Street.

Wells then ran to Moore’s parked car, banged on the window and yelled for Moore to call for an ambulance because, in his words, “George [the defendant] had just shot John.” Moore and Williams exited the vehicle. Moore attempted to call for an ambulance on her cellular telephone. She and Wells then administered cardiopulmonary resuscitation to Corbett until the police arrived. Williams walked away from the scene. Shortly thereafter, an ambulance arrived and transported Cor-bett to Yale-New Haven Hospital where he was pronounced dead about eight minutes after his arrival. Corbett suffered six gunshot wounds. He was shot once in the stomach, four times in the lower back and once in the back of his left shoulder. Either or both of two of the wounds to Corbett’s lower back were fatal.

Soon thereafter, Wells and Moore arrived at the hospital where they told a New Haven police detective that it was the defendant who had shot Corbett. Within the next few days, both Wells and Moore gave statements to the police impheating the defendant as the shooter and selected the defendant’s photograph from a photographic array, identifying him as the man who shot Corbett. On December 10, 1997, Williams gave the police a tape-recorded statement regarding the December 7, 1997 shooting on Lilac Street.

At trial, the defendant testified that he could not have shot Corbett because he was living in New York at the time. Both WeUs and Moore testified, however, that they saw the defendant shoot Corbett. Williams also testified, but her testimony was inconsistent with the tape-recorded statement that she had given to the police on December 10, 1997, just three days after the shooting. Accordingly, her taped statement and a twenty-one page transcript of that tape were admitted into evidence as full exhibits for substantive and impeachment purposes pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

On April 27,2000, during the fifth day of jury deliberations, the jury submitted the following question to the court: “We would like to hear if Takheema Williams was ever asked and answered the question: ‘[D]id you see [the defendant] at the scene?’ ” Outside the presence of the jury, in discussing the jury’s question with counsel, the court indicated that it could not find a definitive answer to that question in its notes.

Consequently, the court determined that the only way to answer the jury’s question accurately was to listen to the testimony. The court and counsel then listened to Williams’ in-court testimony. After doing so, the court stated that “the literal answer is no, she was never asked that question.” The court went on to state, however, that Williams’ Whelan statement had been admitted for substantive and impeachment purposes, and that on pages eighteen and twenty of the transcript of that statement, she did testily as to what she saw. The court then heard comment from counsel on its proposal to direct the jury to those particular pages of Williams’ Whelan statement. Counsel for the state supported the court’s proposal. Defense counsel did not. He argued that the court should instruct the jury only that the answer to its question is “no,” but that it could consider Williams’ entire Whelan statement as substantive evidence. Defense counsel specifically objected to the court’s “highlighting” the portions of the statement that the court and the state believed answered the jury’s question because defense counsel believed “that would be, in a sense, marshaling the evidence.”

Thereafter, the court had the jury brought back to the courtroom where it explained to the jury that “ [c] ounsel and I have reviewed the taped testimony of the witness, Takheema Williams, presented to you here in court, and the answer to your question: ‘[W]as she asked, [D]id you see [the defendant] at the scene?’ is no. She was not asked during her testimony here in court.” The court then went on to remind the jury that Williams’ prior tape-recorded statement and the transcript of that statement were in evidence. The court referred the jury to its written copy of the court’s instructions regarding the use of the Whelan statement. It then directed the jury to the tape-recorded statement and to pages eighteen and twenty of the transcript of Williams’ Whelan statement, stating: “[B]ut again, it’s up to you as to what weight you accord to any evidence. I just want to remind you of that.” Four days later, on May 1, 2000, the jury returned a verdict of guilty as to both counts. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly referred the jury to two pages of Williams’ twenty-one page Whelan statement in responding to the jury’s question as to whether she had ever said that she saw the defendant at the crime scene. The defendant proffers two arguments in support of his claim. He argues that the court’s response to the jury’s inquiry was improper and violated his right to a fair trial because (1) the court had authority to refer the jury to Williams’ in-court testimony only and lacked authority to direct the jury to Williams’ Whelan statement, and (2) referring to only two pages of the twenty-one page Whelan statement constituted an improper marshaling of the evidence by the court in favor of the state. We address each of those arguments in turn.

A

The defendant first claims that the court acted beyond the scope of the authority accorded to it pursuant to Practice Book § 42-26 when it referred the jury to Williams’ Whelan statement in response to the jury’s question as to whether Williams ever had been asked to answer the question: “[D]id you see [the defendant] at the scene?” which violated his right to a fair trial. Specifically, he claims that because Practice Book § 42-26 authorizes the court only to respond to jury requests for a review of in-court testimony, the court acted without authority and in violation of his fundamental right to a fair trial in referring the jury to Williams’ Whelan statement.

The defendant concedes that he did not preserve his claim at trial. Accordingly, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine. Practice Book § 60-5. Because we conclude that the record is adequate for review and that the claim is of constitutional magnitude alleging the violation of a fundamental right; see State v. Smith, 35 Conn. App. 51, 66, 644 A.2d 923 (1994); we will review the claim. We conclude, however, that the court neither violated Practice Book § 42-26 nor deprived the defendant of his right to a fair trial by directing the jury to Williams’ Whelan statement. The defendant, therefore, fails to satisfy the third prong of Golding. State v. Golding, supra, 240. Furthermore, we are not persuaded that the court’s reference to Williams’ Whelan statement adversely affected the fairness and integrity of the proceedings such that it constituted plain error.

As the defendant correctly points out, the plain language of Practice Book § 42-26 refers only to reading requested portions of in-court testimony to the jury. Our Supreme Court has not, however, interpreted Practice Book § 42-26 that narrowly. See State v. Gould, 241 Conn. 1, 11-14, 695 A.2d 1022 (1997). Practice Book § 42-26 provides: “If the jury after retiring for deliberations request a review of certain testimony, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the judicial authority, after notice to and consultation with the prosecuting authority and counsel for the defense, shall have the requested parts of the testimony read to the jury.” The court’s determinations about “[w]hat portions of the record, if any, will be submitted to the jury for [its] consideration is a matter of sound judicial discretion.” (Internal quotation marks omitted.) State v. Conde, 67 Conn. App. 474, 499, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

In State v. Gould, supra, 241 Conn. 9, the defendants argued that the court violated Practice Book § 863, now § 42-26, when it granted the jury’s request to view the out-of-court videotaped testimony of a particular witness in the jury room during deliberations. The defendants in Gould argued, as does the defendant in this case, that in granting the jury’s request, the court violated Practice Book § 863, now § 42-26, which our Supreme Court stated “generally provides for the rereading of testimony in open court under circumstances ... in which the court reporter must read back trial testimony from stenographic notes or locate and play back a recorded voice tape of such testimony on a tape player.” (Emphasis added.) State v. Gould, supra, 12. In concluding that the court did not abuse its discretion by allowing the jurors to view prerecorded videotaped testimony, the court reasoned that “[i]f jurors are to decide cases, as their oaths require them to, according to the evidence before them, or according to the evidence given them in court, why should they not, when they have forgotten a material part of the evidence, be permitted to make use of an available and generally most reliable means of recalling it? It is the policy of the law that every tribunal for the trial of civil or criminal causes should have open to it the best legitimate means of acquiring such knowledge of the law and the facts as will enable it to decide the cases before it fairly and intelligently.” (Emphasis added; internal quotation marks omitted.) Id., 12-13.

We note that in the present case, the jury’s inquiry was not limited to testimony. The jury requested to know whether Williams “was ever asked to answer the question, ‘[D]id you see [the defendant] at the scene?’ ” (Emphasis added.) Furthermore, because Williams never answered that question during her in-court testimony, the most reliable means for the jury fairly and intelligently to ascertain whether she ever had been asked and had answered that question was for the court to refer the jury to a material part of the evidence, namely, Williams’ Whelan statement, which already was in the jury’s possession. Accordingly, we conclude that directing the jury to Williams’ Whelan statement in response to the jury’s inquiry as to whether she ever was asked if she saw the defendant at the crime scene was not outside the scope of the court’s authority. We conclude that it was a matter entirely within the court’s discretion and that the court did not abuse its discretion in so doing.

Moreover, Practice Book § 1-8 provides for a liberal interpretation of our rules of practice. “Procedural rules are not ends in themselves but only the means of administering justice, and exceptions to them in specific cases may be allowed where no violation of constitutional rights is involved. From time to time the court is confronted with exceptional situations that may not be specifically covered by a specific rule. In the interests of justice, however, it has the inherent power to issue an order that meets the problem if it is satisfied no violation of substantial rights will result.” State v. Anonymous (1976-2), 32 Conn. Sup. 306, 312-13, 353 A.2d 789 (1976); see also State v. Dupree, 56 Conn. App. 631, 645 n.15, 745 A.2d 832, cert. denied, 252 Conn. 952, 749 A.2d 1203 (2000).

In this case, the claimed impropriety was a matter within the court’s discretion. We conclude that the court acted in furtherance of the interests of justice by referring the jury to Williams’ Whelan statement because, if it had not done so, the court would not have been completely responsive to the jury’s request. In addition, we fail to see how the court violated the defendant’s constitutional right to a fair trial by referring the jury to Williams’ Whelan statement because it already had been admitted for substantive purposes and was in the jury’s possession during its deliberations. Accordingly, the defendant cannot prevail on his claim because he has failed to demonstrate that “the alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial” pursuant to the third prong of State v. Golding, supra, 213 Conn. 240.

Likewise, the defendant cannot prevail under the plain error doctrine. “[P]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . The claimed error here is not so egregious or obvious as to merit such review.” (Internal quotation marks omitted.) State v. Beverly, 72 Conn. App. 91, 104-105, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).

B

The defendant next claims that the court unfairly and prejudicially marshaled the evidence in favor of the state in violation of his constitutional right to a fair trial when, in response to the jury’s question, the court referred the jury to two particular pages of Williams’ Whelan statement rather than to the entire twenty-one page statement. Specifically, he claims that the court improperly assumed a position of advocacy in favor of the state when it directed the jury to pages eighteen and twenty of the statement, which seemed to indicate that Williams had witnessed the defendant at the crime scene, thereby highlighting the state’s position, while at the same time the court failed to direct the jury to page eleven of the statement, which seemed to indicate that Williams had not witnessed the defendant at the scene. That claim is without merit.

The court’s reference to particular pages of the Whelan statement in an effort to answer the jury’s inquiry did not constitute a marshaling of evidence in favor of the state but, instead, a simple response to the jury’s request for a review of a portion of the record under Practice Book § 42-26. See, e.g., State v. Harris, 227 Conn. 751, 769-72, 631 A.2d 309 (1993); State v. Rivera, 223 Conn. 41, 47-48, 612 A.2d 749 (1992). As previously stated: “[T]he trial court has discretion to determine what portions of the record, if any, should be submitted to the jury for its review.” State v. Gould, supra, 241 Conn. 11. “In reviewing whether the trial court abused its discretion, the issue is not whether we would reach the same conclusion in the exercise of our own judgment, but only whether the trial court acted reasonably. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Citations omitted; internal quotation marks omitted.) State v. Riddick, 61 Conn. App. 275, 282, 763 A.2d 1062, cert. denied, 255 Conn. 946, 769 A.2d 61 (2001).

In making every reasonable presumption in favor of the court’s action, as we must, we cannot say that the court abused its discretion in referring the jury to pages eighteen and twenty of Williams’ Whelan statement rather than to the entire statement. It was in the court’s discretion to determine that those particular pages, and not the entire twenty-one page statement, were responsive to the jury’s request. See State v. Harris, supra, 227 Conn. 769-72; State v. Rivera, supra, 223 Conn. 47-48. Furthermore, we disagree with the defendant’s characterization of the question that was asked of Williams on page eleven of her Whelan statement. As we read page eleven of Williams’ Whelan statement, she was not asked to answer whether she saw the defendant at the crime scene. Williams, instead, was asked to answer the question: “[D]id you see [the defendant] in the car?” (Emphasis added.) Her response to that question was: “I couldn’t, tints.” Whether Williams saw the defendant drive away in his car after the shooting had occurred is an entirely different question from whether she saw the defendant at the scene at the time of the shooting.

The judgment is affirmed.

In this opinion the other judges concurred.

       It does not appear that the defendant and the occupant of the apartment at 40-42 Lilac Street were actually blood relatives, but the two grew up together and referred to each other as brothers.

       According to Williams’ tape-recorded statement to the police, Corbett “wanted to ice the beef’ with the defendant, meaning he wanted to put an end to any remaining animosity between the two.

       Essentially, Williams testified that she could not recall any of what happened on December 7,1997, or what she had told the police on December 10, 1997.

       “A prior inconsistent statement may be used at trial for substantive as well as impeachment purposes where the statement is signed by a declarant, who has personal knowledge of the facts stated therein, and who testifies at trial and is subject to cross-examination.” State v. Hunter, 62 Conn. App. 767, 770 n.5, 772 A.2d 709, cert. denied, 256 Conn. 925, 776 A.2d 1144 (2001), citing State v. Whelan, supra, 200 Conn. 753.

       On the basis of that reasoning, our Supreme Court also has “concluded that the trial court was not ‘without authority’ to furnish the jury with a typewritten transcript of the testimony it had requested, which the jury could use in the jury room as it saw fit.” State v. Gould, supra, 241 Conn. 13, quoting State v. Rubaka, 82 Conn. 59, 66, 72 A. 566 (1909).

       Practice Book § 1-8 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”

       Page eighteen of Williams’ Whelan statement reveals that the following colloquy took place between Williams and Detective Edwin Rodriguez of the New Haven police department:
      “Q. Okay, when was the last time you seen [the defendant]?
      “A. Two days before.
      “Q. The shooting?
      “A. Yes.
      “Q. And you saw him the day when he took off in the car, too?
      “A. Mm. Hm.”

       Page twenty of the Whelan statement reveals the following colloquy between Williams and Detective Edwin Rodriguez of the New Haven police department:
      “Q. “You stated to me that Ebonie [Moore] told you something after everything was done. What did she tell you again, can you tell . . . ?
      “A. You seen that, you seen that, you know who did it.
      “Q. And she meant saying that if you saw the same thing she did?

        “A. Yeah.
      “Q. And you told her no at the time, is that correct?
      “A. No, I didn’t.
      “Q. What did you tell her?
      “A. I told her, yeah.
      “Q. Okay, you told her you saw the same thing she saw?
      “A. Mm. Hm.”

       The defendant’s white 1997 Toyota Camry had tinted windows.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    DIANE L. D’ALESANDRO v. DAVID E. CLARE, JR., ET AL.
    (AC 21922)
    Foti, Mihalakos and Dranginis, Js.

      Argued September 24
    officially released December 17, 2002

      Samuel B. Feldman, for the appellant (plaintiff).

      Anita M. Varanes, for the appellee (named defendant).
   Opinion

DRANGINIS, J.

In this personal injury action, the plaintiff, Diane L. D’AIesandro, appeals following the trial court’s denial of her motion to set aside the jury verdict in favor of the defendant David E. Clare, Jr. On appeal, the plaintiff claims that she is entitled to a new trial because (1) the verdict was against the weight of the evidence, (2) the verdict was the result of the jury’s misapplication of the law and (3) in its charge to the jury, the court improperly referred to the testifying police officer as an expert. The defendant asserts that the general verdict rule applies, precluding appellate review of the plaintiffs first two claims. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 17, 1995, at approximately 5:20 a.m., the defendant was operating his motor vehicle along East High Street in East Hampton when he struck the plaintiff. As a result of the collision, the plaintiff suffered injuries to her left foot and leg. The defendant testified that at the time of the accident, he was traveling eastbound on East High Street at approximately forty to forty-five miles per hour when he saw the plaintiff in the middle of the road. He further testified that he immediately applied the brakes and swerved to the left, but nevertheless struck the plaintiff with the right front of his automobile. Sergeant Michael Fitzpatrick of the East Hampton police department subsequently arrived and conducted an investigation.

The plaintiff brought a one count complaint against the defendant on the theory of negligent operation of a motor vehicle. The defendant denied the plaintiffs allegation of negligence and asserted as a special defense that the plaintiffs comparative negligence and carelessness contributed to her injuries. No interrogatories were submitted to the jury.

During direct examination, defense counsel asked Fitzpatrick to refresh his memory of the interviews he conducted with the plaintiff and the defendant following the accident from the police report that he had prepared contemporaneously with his investigation. Fitzpatrick then testified that the defendant stated that “he was traveling eastbound on Route 66 in a . . . posted forty-five mile an hour zone and a pedestrian ran into the path of his vehicle. He swerved left to avoid striking the [plaintiff], and he struck . . . the left ankle of the [plaintiff].” Fitzpatrick also testified that the plaintiff told him that “she was running across to check her mailbox ... to get her mail and, then, running back across the street.” The jury returned a general verdict in favor of the defendant, and the court denied the plaintiffs subsequent motion to set aside the verdict. This appeal followed.

Before we examine the merits of the plaintiffs claim, we must first address the defendant’s assertion that the general verdict rule applies and precludes our review. “Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels. . . . On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. . . . Therefore, the general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. . . .

“Our Supreme Court has held that the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Citation omitted; internal quotation marks omitted.) Rivezzi v. Marcucio, 55 Conn. App. 309, 311-12, 738 A.2d 731 (1999). The present case falls under the fourth category, denial of a complaint and the pleading of a special defense.

In his answer, the defendant denied the plaintiffs allegation of negligence as set forth in the complaint and raised the special defense of comparative negligence, either of which could have been the basis for the jury’s verdict because no interrogatories were submitted to the jury. Without interrogatories, we are not able to determine whether the jury found for the defendant because the plaintiff failed to prove the allegations of her complaint or because the defendant prevailed on his special defense. “We, therefore, presume that the jury found every issue in favor of the prevailing party . . . and apply the general verdict rule.” (Citation omitted; internal quotation marks omitted.) Mazuroski v. Hernovich, 42 Conn. App. 574, 578, 680 A.2d 1007, cert. denied, 239 Conn. 922, 682 A.2d 1003 (1996). Applying the general verdict rule to this case precludes our review of the plaintiffs first two claims, which relate only to the jury’s finding that the defendant was not negligent. Those claims do not undermine the presumed finding of comparative negligence.

We turn now to the plaintiffs third claim that the court improperly referred to the testifying police officer as an expert in its jury instructions. We disagree.

Our standard of review for claims of instructional error is well established. “[J]ury instructions must be read as a whole and . . . are not to be judged in artifi-ciai isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Citation omitted; internal quotation marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 156, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002).

The plaintiff challenges the court’s statement in its instructions to the jury that “the police officer testified as an expert. ” She argues that that portion of the instruction misled the jury to believe that the officer’s testimony should be given greater weight. Because we review the jury charge in its entirety, we do not agree that the court’s single comment misled the jury or prejudiced the defendant. Fitzpatrick never was disclosed as an expert witness pursuant to Practice Book § 13-4, nor was there anything expert about his testimony. Furthermore, he did not testify as to his opinion on the ultimate issues of fact of whether the defendant or the plaintiff was negligent. Instead, Fitzpatrick testified as to his personal observations of the accident area, the identity of the parties and the statements they made at the accident scene. Moreover, in its charge, the court adequately informed the jury that it was free to reject all or part of a witness’ testimony. The court also instructed the jury that it should “evaluate the weight of an expert witness just as [it] would any other witness.” Accordingly, after a thorough review of the entire instruction, there is no reasonable probability, given the circumstances here, that in returning its verdict, the jury was misled by the court’s instructions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff commenced her action against Allstate Insurance Company and David E. Clare, Jr. The court rendered summary judgment in favor of Allstate Insurance Company. Consequently, for the purpose of this appeal, Clare is the only remaining defendant, and we refer to him as the defendant in this opinion.


author: HENNESSY, J.

text:
    RICHARD BLITZ v. ARTHUR SUBKLEW
    (AC 22332)
    Flynn, West and Hennessy, Js.
    Argued October 18
    officially released December 17, 2002

      Thomas G. Benneche, for the appellant (plaintiff).

      Steven H. Levy, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Richard Blitz, appeals from the judgment of the trial court rendered in favor of the defendant, Arthur Subklew, after a trial to the court. On appeal, the plaintiff claims that the court improperly (1) found that the zoning board of appeals of the town of Goshen (board) would not grant the defendant’s application for a used car sales license and that the defendant therefore was not liable under a lease in which a condition precedent was the approval of such an application, and (2) awarded the defendant the return of his security deposit.

The following facts are necessary for the resolution of the plaintiffs appeal. The plaintiff owns a piece of commercial property at 4 Old Middle Street, Goshen. On February 2,1998, the defendant entered into a lease with the plaintiff to rent the rear portion of the property. The defendant intended to operate an auto sales and repair business. Paragraph C of the lease was a zoning contingency clause that stated, “Landlord [plaintiff] will use Landlord’s best efforts to obtain a written verification that Tenant [defendant] can operate [an] Auto Sales and Repair Business at the demised premises. If Landlord is unable to obtain such commitment from the municipality, then this agreement shall be deemed null and void and Landlord shall immediately return all deposit monies to Tenant.” The leasing period would commence on or about March 1, 1998, and conclude on or about February 28, 2013. The leasing agreement also stated that the first two months of occupancy would be free of charge to allow the defendant an opportunity to establish the business.

The court found that the evidence presented at trial indicated that the defendant believed that the property was already zoned for automotive sales because a prior business on the property involved both tractor sales and repair. The defendant and a witness testified that the plaintiff stated that only the town zoning officer’s signature was required for the zoning application and it was only a formality. It later was determined that the zoning officer would not sign the application and that approval from the board was required for the defendant’s proposed business. The defendant then filed an application with the board.

The board met on both March 5, 1998, and April 2, 1998, concerning the defendant’s application. On April 3, 1998, the defendant notified the plaintiff that he wanted to rescind the commercial lease because the plaintiff was unable to obtain approval pursuant to paragraph C of the leasing agreement.

The court heard evidence from the parties concerning the board meetings and reviewed the minutes and tapes of the board meetings. The court concluded that the board “would not grant the defendant’s application to allow automobile sales use on the premises.” The court also stated that “the language [of the lease] is clear and unambiguous that the plaintiff as landlord was to obtain written verification that the subject premises were properly zoned so that the defendant could operate an auto sales and repair business. There was no evidence provided by the plaintiff, either through testimony or by way of exhibits, that provided proof to the court that the plaintiff had obtained zoning approval to operate an auto sales and repair business at the subject premises. By the very language in paragraph C, the commercial lease becomes null and void if the plaintiff fails to provide such written verification.” We agree with the court’s reasoning and conclusion.

On appeal, the plaintiff challenges the court’s finding that the board would not grant the defendant’s application to operate an automobile sales business on the property. The plaintiff also argues that the defendant waived the condition precedent in paragraph C when he agreed at the public hearing that preceded the April 2, 1998 board meeting to have a parts and service business with no used automobile sales.

“The standard of review with respect to a court’s findings of fact is the clearly erroneous standard. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 11-12, 807 A.2d 991 (2002).

The mechanically recorded tapes of the public hearing on April 2, 1998, indicate the following facts. The board members believed, on the basis of the defendant’s application, which had been discussed at the March 3, 1998 board meeting, that the defendant would be operating an automotive repair business with a few used car sales. During the April 2, 1998 public hearing, the defendant clarified that a few used car sales would entail ten to fifteen cars on the lot at one time. The board members indicated that they had not inspected the property with the intention of authorizing that many cars on the lot and could not render a decision during the April 2, 1998 meeting.

The board members expressed a desire to visit the property a second time with the intention of inspecting the property for the appropriateness of authorizing such a use. Presumably, following the next site inspection, the board would then be able to render a decision on the application for automobile sales at the next meeting. The defendant then stated to the board that another thirty day delay to give the board an opportunity to view the property would mean that he would be unable to go through with the project because of time limits on the financial funding that he had procured to finance his new business.

The plaintiff claims that the defendant then waived the portion of the application that dealt with used automobile sales and agreed to accept a license for automobile repair only. Several times during that portion of the hearing, the defendant did state that he would consider the option of an automobile parts and repair business only, however, on the condition that he and the plaintiff could renegotiate the lease.

The defendant clearly told the board at the April 2, 1998 public hearing that under the terms of the current lease as stated, he would not be able to operate a viable business if he were granted authorization to operate only a repair business without the used automobile sales. It is clear- from the record that the defendant did not waive paragraph C of the lease.

In addition, the minutes of the April 2, 1998 board meeting indicate that the board’s chairman “stated that [the board] can approve this motor vehicle location as General Repair only. . . . [T]he application for motor vehicle location as General Repair . . . [p]assed unanimously.”

The court was also presented with the minutes from a June 3,1999 board meeting, which occurred one year after the defendant’s application had been submitted. The minutes from that meeting indicate that a prospective applicant, not associated with the defendant, had applied for a used car dealership on the same property. The minutes indicate that the prospective applicant was told “a similar application was previously applied for in April, 1998, and was denied . . . .” That reference to a denial of the defendant’s application during the April 2, 1998 meeting further supports the defendant’s position and the court’s finding that the board would not grant the defendant’s application for a used automobile sales business on the property.

Paragraph C of the commercial lease states that the plaintiff shall obtain written verification that the defendant can operate a used automobile sales business on the property. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Cadle Co. v. Ginsberg, 70 Conn. App. 748, 761, 802 A.2d 137, cert. denied, 262 Conn. 905, 810 A.2d 271 (2002); see also Legg v. Legg, 44 Conn. App. 303, 306, 688 A.2d 1354 (1997). The language of paragraph C is clear, and it was the plaintiff landlord’s responsibility to obtain the proper approval for an automobile sales business. It also is evident from the record that the defendant took all of the necessary and reasonable steps to facilitate approval of the used automobile sales business. The plaintiff, therefore, cannot hold the defendant responsible for the plaintiffs failure to obtain approval.

It is clear that the plaintiffs obligation to obtain written approval was a condition precedent to the leasing agreement. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence. . . . Whether a provision in a contract is a condition the nonfulfilment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.) Lack v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); see also F & W Welding Service, Inc. v. ADL Contracting Corp., 217 Conn. 507, 517, 587 A.2d 92 (1991); Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990); Maloney v. PCRE, LLC, 68 Conn. App. 727, 735, 793 A.2d 1118 (2002).

The event required by the leasing agreement, namely, the plaintiffs obtaining approval of a used automobile sales business for the property, did not occur. The defendant attempted to obtain approval, despite the language that indicated it was the plaintiffs responsibility. Those reasonable efforts proved unsuccessful. The plaintiff, therefore, cannot enforce the leasing agreement. ****8

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff testified that he “thought the property might be grandfathered in as a motor vehicle accepted property because it had been previously occupied by a tractor sales and repair dealership.”

       At the trial, the plaintiff also testified that the defendant stated at the April 2, 1998 hearing that the lease would need to be renegotiated if only an automobile repair license was granted.

       The plaintiffs second claim warrants little discussion because it is based on the return of the defendant’s security deposit pursuant to paragraph C of the leasing agreement. The language of that portion of the contract is clear and states that the leasing agreement is void, and the plaintiff shall immediately return the security deposit to the defendant if the plaintiff is unable to obtain approval for a used automobile sales and repair business. For the reasons stated in this opinion, the court correctly ruled that the plaintiff was obligated to return the defendant’s security deposit.


author: FOTI, J.

text:
    COMMISSIONER OF SOCIAL SERVICES v. MOHAMMED SYED
    (AC 22464)
    Foti, Mihalakos and Peters, Js.
    Argued October 22
    officially released December 17, 2002

      Kenneth A. Graham, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (plaintiff).
   Opinion

FOTI, J.

The plaintiff commissioner of the department of social services appeals from the judgment rendered by the trial court affirming the family support magistrate’s dismissal of the plaintiffs petition seeking child support from the defendant, Mohammed Syed. We reverse the judgment of the trial court.

The record discloses the following facts. On May 8, 2001, the plaintiff, on behalf of Shazia Bukhari and pursuant to General Statutes § 46b-215 et seq., filed a petition before the family support magistrate seeking an order requiring the defendant to pay support payments for his minor child, Feryal Syed. The plaintiff alleged therein that the child had received temporary assistance to needy families benefits from the department of social services (department). The plaintiff further alleged that the defendant was responsible for the support of the child, who was the issue of the marriage between the defendant and Bukhari.

The defendant, having been served properly in the action, failed to file either an appearance or an answer. He did not attend the hearing on the petition. The plaintiff, in support of her allegation that the child was the issue of the marriage between the defendant and Bukh-ari, and hence that the defendant had a legal obligation to support the child, offered into evidence at the hearing copies of the marriage certificate for the defendant and Bukhari, as well as the child’s birth certificate. Department officials testified that those documents originated from other state agencies and that they were kept in the department’s files. The plaintiff claimed that because the department kept those documents in its files, department officials could certify them pursuant to General Statutes § 1-210 (a). The plaintiff further claimed that the department was not required to demonstrate that the documents had been certified by the agencies from which they had originated.

The plaintiff argued that the documents were admissible under § 1-210 (a), a provision of the Freedom of Information Act. Section 1-210 (a) provides in relevant part: “Any certified record [maintained or kept on file by any public agency] attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. . . .” The family support magistrate refused to admit the copies of the marriage and birth certificates and dismissed the support petition. The magistrate reasoned that the plaintiff needed to do more than rely on § 1-210 to authenticate the documents in the proceeding. Pursuant to General Statutes § 46b-231 (n), the plaintiff appealed to the court from the magistrate’s dismissal of the petition.

The court rejected the plaintiff’s claim that the department, pursuant to § 1-210 (a), could certify the copies of the marriage and birth certificates even though it was not the agency that issued those documents. The court concluded that for a record to be admissible under § 1-210 (a), it had to be certified by the agency from which it originated. Although this is a civil case, the court noted that the interpretation of § 1-210 (a) espoused by the plaintiff would create a hearsay exception of unlimited scope and ultimately would violate due process.

The court next addressed the issue of whether the copies of the marriage and birth certificates were admissible under some other authority. The court concluded that the copy of the birth certificate offered into evidence by the plaintiff was admissible under General Statutes § 7-55 because, despite the fact that it was a copy, it was issued by the department of public health and had been certified by the registrar of vital statistics. The court concluded, however, that because there was no raised seal on the copy of the marriage certificate, which stated on its face, “NOT GOOD WITHOUT SEAL OF THE CERTIFYING OFFICIAL,” it had been properly excluded as evidence of the parties’ marriage. The court affirmed the magistrate’s dismissal of the petition because the copy of the marriage certificate, properly excluded from the evidence, was the only evidence submitted by the plaintiff to demonstrate that the defendant and Bukhari were married.

On appeal to this court, the plaintiff argues that § 1-210 (a) is clear and unambiguous and that the copy of the marriage certificate, having been certified by the department itself, was admissible. The plaintiff also argues that the defendant’s legal obligation to support the child already had been established, prior to the offer of the marriage and birth certificates, by operation of Practice Book § 10-19. We agree with the plaintiffs latter argument and, accordingly, reverse the court’s judgment.

Practice Book § 10-19 provides: “Every material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless such party avers that he or she has not any knowledge or information thereof sufficient to form a belief.” See also Phinney v. Rosgen, 162 Conn. 36, 37, 291 A.2d 218 (1971) (failure to plead to allegation deems that allegation admitted); Second Exeter Corp. v. Epstein, 5 Conn. App. 427, 429, 499 A.2d 429 (1985), cert. denied, 198 Conn. 802, 502 A.2d 932 (1986).

In the present case, the defendant, by virtue of having failed to appear and plead, admitted every material allegation contained in the support petition. Those allegations included the verified statement of facts that alleged the child’s name, date of birth and status as an “issue of marriage.” Those implied admissions under the rule expressed in Practice Book § 10-19 were, as a matter of law, sufficient to allow the plaintiff to prevail on her petition.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal and for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The attorney general tiled the petition on behalf of the commissioner. See General Statutes § 46b-231 (t), which provides in relevant part: “The Attorney General shall ... (1) Represent the interest of the state in all actions for child or spousal support, in all cases in which the state is furnishing or has furnished aid or care to one of the parties to the action or a child of one of the parties . . .

       The court ruled that the marriage certificate was inadmissible because “attestation by a public agency, in this case the department of social services, of records maintained by another state agency, does not fall within the plain ordinary meaning of [General Statutes § 1-210 (a)].”

       The defendant failed to file a brief in this court, and we have considered the appeal solely on the basis of the plaintiffs brief and the record.

       Despite the fact that the plaintiff did not raise that argument before the trial court, we conclude that the operation of Practice Book § 10-19 is obvious from the face of the record itself, and we allow the plaintiffs argument.

       We note that the defendant is listed as the child’s father on the birth certificate.


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. JOSE JIMENEZ
    (AC 23065)
    Lavery, C. J., and West and Dupont, Js.
    Argued October 15
    officially released December 17, 2002

      Carlos E. Candal, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

This criminal appeal concerns the judgments of conviction rendered against the defendant pursuant to two separate sets of charges that were consolidated for trial before a jury. The first set of charges concerns allegations of sexual assault, kidnapping and risk of injury to a child (referred to herein as the assault charges); the second set concerns charges of tampering with a witness as an accessory and hindering prosecution. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal, due to insufficient evidence, on the charges of accessory to tampering with a witness and hindering prosecution, and (2) charged the jury that it could consider the tampering and hindering prosecution charges as consciousness of guilt evidence as to the first set of charges. We affirm the judgments of conviction as to all charges.

The jury reasonably could have found the following facts. In 1998, prior to the events giving rise to the assault charges, the defendant had a brief romantic relationship with the victim’s mother, of which the victim was aware. The victim’s mother terminated the relationship when she discovered that the defendant was married. In June, 1998, when the victim was eleven years old, the defendant called for the victim at her school. He told the victim that her mother had sent him. The victim got into the backseat of the defendant’s motor vehicle. Instead of taking the victim home, the defendant drove to a deserted location and sexually assaulted the victim in the backseat of his vehicle. After forcing her to have sexual intercourse with him, the defendant warned the victim not to tell anyone what had happened or she and her mother would be in trouble. The victim previously had witnessed the defendant physically and verbally threaten to harm her mother. The defendant told the victim that he was going to take her to the home of one of her mother’s friends because he claimed that the victim’s mother was not at home.

Prior to meeting the victim at her school, the defendant had placed a telephone call to a friend of the victim’s mother. He explained that the victim’s mother was not at home and he wanted to bring the victim to the friend’s home after school. The friend agreed to care for the victim until her mother returned from work. The defendant took the victim to the friend’s home after his assault of the victim. Before the child got out of his vehicle, the defendant gave her $7.

The victim did not tell anyone what the defendant had done to her until several months later. In September, 1998, the victim lived with her aunt temporarily. When the time approached for the victim to return to her mother’s home, the victim asked her aunt to permit her to stay. The aunt questioned the victim, who revealed that she was fearful that her mother would resume a relationship with the defendant. She told her aunt that she was afraid of the defendant and why. When the victim returned to her home, the victim and aunt told the victim’s mother of the defendant’s assault. The victim’s mother took the victim to the New Haven police department to report the incident.

On February 3,1999, the defendant was due in court to respond to charges alleged in the assault information. On that date, while the victim was waiting to go into school, a man she knew as Cubano approached her. The victim recognized Cubano as the man who, in the past, had accompanied the defendant when he came to her home while the defendant was involved with the victim’s mother. The mother of the victim described Cubano as the defendant’s right-hand man, and the victim described Cubano as “like a brother” to the defendant. Cubano told the victim that if she said something when she went to court, he would kill her and her mother. He also gave her $25. During the school day, the victim was too afraid to tell anyone about the encounter; but when she got home, she reported the incident to her mother. The victim’s mother contacted the police.

Robert Williams, a New Haven police officer, responded to the complaint by going to the victim’s home. The victim explained her encounter with Cubano and described his clothing and appearance to Williams. The victim’s mother suggested that Cubano could be found at the defendant’s apartment. Williams then went to the address provided by the victim’s mother to look for a male known to the victim and to her mother as Cubano. Williams knocked on the door of the defendant’s apartment. The defendant opened the door and invited Williams inside. When he entered, Williams observed two men watching television. One of the men matched the description the victim had given of Cubano, including the clothes he was wearing. Williams asked the defendant if Cubano was present. The defendant said no and that he had never heard of Cubano. The defendant also told Williams that he had been in court that day and everything was settled. Until that moment, Williams had not known of any court appearance concerning the defendant. Williams inquired about the other two men in the apartment; the defendant replied that they were his friends who came to visit regularly. Williams pointed to the man who fit the victim’s description of Cubano and asked if he was Cubano. The defendant shook his head no and gestured to the two men not to speak to Williams.

Williams had conducted his interview in English, but at no time did the defendant indicate that he did not understand Williams. Another New Haven police officer, who is bilingual, joined Williams and repeated in Spanish what Williams had asked. Again, the defendant indicated that Cubano was not in the apartment. Because one of the two men fit the description of Cubano and the defendant denied that either of the men was Cubano, the officers obtained permission to bring the victim and her mother to the apartment for an identification. When the victim and her mother arrived, the officers escorted the three men, one by one, outside. The victim identified one of the men as Cubano, the man who had threatened her that day. The victim’s mother also identified Cubano. The victim and her mother also identified the defendant.

Cubano was charged with tampering with a witness and pleaded guilty to the charge. At the defendant’s trial, the defendant and the state stipulated that Cubano had pleaded guilty, and the stipulation was read to the jury.

I

The defendant’s first set of claims concerns the court’s denying his motion for a judgment of acquittal on the charges of tampering with a witness as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-151, and hindering prosecution in the second degree in violation of General Statutes § 53a-167. The defendant claims that the court improperly denied his motion because there was insufficient evidence to convict him of those crimes. We affirm the conviction of the defendant as to both charges, holding that the court correctly denied his motion for a judgment of acquittal.

The following facts are relevant to the defendant’s claim. At the conclusion of the state’s case-in-chief, the defendant orally moved for a judgment of acquittal on all counts against him. With respect to the charge of tampering with a witness on the theory of accessory liability, the defendant argued that the state had failed to produce any evidence that the defendant solicited, requested, commanded, importuned or intentionally aided Cubano in threatening the victim. As to the charge of hindering prosecution, the defendant claimed that there was insufficient evidence that he had rendered criminal assistance to Cubano. The court denied the defendant’s motion.

“In reviewing the sufficiency of the evidence to support a criminal conviction we 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. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, 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. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may 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. Meehan, 260 Conn. 372, 377-78, 796 A.2d 1191 (2002). “Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994).

“It is axiomatic that the state, in a criminal case, has the burden of proving every essential element of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cobbs, 203 Conn. 4, 11, 522 A.2d 1229 (1987). “Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. . . . But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition. . . . Emphasis needs to be placed on the distinction between the word reasonable and the word possible. . . . Proof of guilt must exclude every reasonable supposition of innocence . . . [while a] mere possible hypothesis of innocence will not suffice.” (Citations omitted; internal quotation marks omitted.) State v. Ford, supra, 230 Conn. 693.

“Moreover, [i]n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) Id.

A

We first consider the defendant’s claim that there was insufficient evidence to convict him beyond a reasonable doubt of tampering with a witness on a theory of accessory liability and, therefore, that the court improperly denied his motion for a judgment of acquittal. Our Supreme Court addressed a similar claim in State v. Ford, supra, 230 Conn. 686. The state relies on Ford for its argument that the court properly denied the defendant’s motion for a judgment of acquittal on the tampering charge, whereas the defendant relies on the same case to argue that its facts are inapposite and do not support the court’s denial of the motion.

“Sections 53a-151 and 53a-8 make it a crime for a person, believing that an official proceeding is pending or about to be instituted, to solicit, request, command, impórteme or intentionally aid another to induce a witness to withhold testimony from that official proceeding.” Id., 694. The issue in the present case, therefore, can be restated as whether the jury could have drawn reasonable inferences from the evidence to enable it to conclude beyond a reasonable doubt that it was the defendant who had caused Cubano to approach the victim and threaten her not to say “something” when she went to court. See id.

“To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime. . . . Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the [principal] must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.” (Internal quotation marks omitted.) State v. McClendon, 56 Conn. App. 500, 505, 743 A.2d 1154 (2000).

On the basis of our review of the evidence presented at trial, we conclude that there was sufficient evidence before the jury to prove beyond a reasonable doubt that it was the defendant who had caused Cubano to threaten the victim. The jury heard evidence that Cubano was the defendant’s right-hand man. It also heard evidence that the defendant thought of Cubano as a brother. Cubano frequently was in the company of the defendant and often visited his apartment. Because he spent a good deal of time with the defendant, the jury reasonably could have inferred that Cubano knew about the defendant’s pending court date. On the very day of the defendant’s scheduled court appearance, Cubano went to the victim’s school to threaten her and on that very day, after speaking to the victim, Cubano went to the defendant’s home, still wearing the same clothing. Cubano had knowledge of where the victim’s school was located and the time at which the victim could be found there, facts not likely known independently by Cubano. Both the defendant and Cubano gave the victim money after concluding their illegal acts. On the basis of the colloquy during the visit to the defendant’s home as reported by the police, the jury reasonably could have concluded that the defendant knew that Cubano had threatened the victim.

We now analyze those facts in contrast to the facts found in State v. Ford, supra, 230 Conn. 686, and conclude that there is even more compelling reason on the facts of the present case to uphold the jury’s verdict as to accessorial culpability than was present in Ford. That case involved the crime of tampering, whereas the present case involves the additional crime of hindering prosecution. The two charges are intertwined in the present case. In Ford, some of the threatening telephone calls to a witness to a robbeiy came from the cell block where the accused was being held. It was not known which person out of all those persons in the defendant’s cell block had made the threat. The evidence demonstrated that the caller, who was not the accused, had more than casual knowledge of the accused’s case. Our Supreme Court in Ford concluded that the jury reasonably could have inferred that the accused intentionally gave information to other inmates to solicit their assistance. Id., 694.

Here, we know about the close relationship between the defendant and Cubano, and that Cubano had pleaded guilty to the crime as a principal. In Ford, as in this case, the defendant had a motive to threaten, and the principal in the crime had knowledge most probably learned from the defendant. Cubano knew of the schedule of the defendant’s case and knew how to communicate with the victim, not otherwise likely to be known by him. In Ford, the victim’s telephone number to which a threatening call had been made, was not generally known. In the present case, Cubano was not likely to know the location of the victim’s school and the time at which she could be found. Additionally, in the present case, the defendant knew, shortly after Cubano had threatened the victim, of the threat.

On the basis of that evidence and the reasonable and logical inferences to be drawn therefrom, we determine that the jury could have concluded beyond a reasonable doubt that the defendant intentionally solicited, requested, commanded, importuned or aided Cubano to threaten the victim. We therefore hold that the motion for a judgment of acquittal on the accessory charge of tampering with a witness properly was denied.

B

The defendant’s second sufficiency of the evidence claim is that the court improperly denied his motion for a judgment of acquittal on the charge of hindering prosecution in the second degree in violation of General Statutes § 53a-167. The defendant claims specifically that there was insufficient evidence that he attempted to obstruct or to deceive Williams. We disagree.

The term hindering prosecution is defined in General Statutes § 53a-165, which provides in relevant part: “As used in sections . . . 53a-167, a person ‘renders criminal assistance’ when, with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person whom he knows or believes has committed a felony or is being sought by law enforcement officials for the commission of a felony ... he: (1) Harbors or conceals such person ... or (3) provides such person with . . . means of avoiding discovery or apprehension; or (4) prevents or obstructs, by means of . . . deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him ... or (6) aids such person to protect or expeditiously profit from an advantage derived from such crime.”

“A person’s intent is to be inferred from his conduct and the surrounding circumstances and is an issue for the [trier of fact] to decide.” (Internal quotation marks omitted.) State v. Smith, 73 Conn. App. 173, 181, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002). “Because direct evidence of the accused’s state of mind is rarely available, intent is often inferred from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) Id. Furthermore, as we previously stated, members of a jury are not expected to lay aside matters of common knowledge and their life’s experience when they evaluate the evidence before them. State v. Ford, supra, 230 Conn. 693.

In this case, there was substantial evidence before the jury from which it reasonably could infer beyond a reasonable doubt that the defendant knew that Cubano had threatened the victim and intended to hide or to protect Cubano by deceiving Williams. When the defendant responded to Williams’ knock on his apartment door, he invited the officer to step inside. Williams recognized Cubano in the apartment from the description provided by the victim. The defendant spontaneously told Williams that he had been to court that day, that everything was okay and that there was no need for Williams to be there. Williams asked the defendant if Cubano was in the apartment. The defendant replied that Cubano was not there and that he had never heard of Cubano. Williams specifically asked the defendant if one of the men watching television was Cubano. The defendant denied Cubano’s presence in his home. There was no indication that the defendant did not understand Williams’ questions. Furthermore, when the second police officer asked the defendant in Spanish whether he knew Cubano, the defendant denied that he knew Cubano. The jury also knew that Cubano had pleaded guilty to the crime of tampering with a witness.

Because there was sufficient evidence before the jury from which it reasonably could have concluded that the defendant hindered prosecution, the court properly denied the motion for a judgment of acquittal.

II

The defendant also claims that his right to due process was violated when the court instructed the jury that it could consider the allegations of accessory to tampering with a witness and hindering prosecution as consciousness of guilt evidence that the assault charges had been committed. The defendant specifically argues that the instruction violated his constitutional right to due process because (1) the judge invaded the province of the jury, (2) the charge permitted the state to argue an unsupported inference of consciousness of guilt and (3) if the evidence was insufficient to support the jury’s conviction on the tampering charge, the court abused its discretion by admitting the evidence because its prejudicial effect outweighed its probative value where the jury considered the evidence as consciousness of guilt. We disagree.

When it charged the jury, the court gave an instruction on evidence as consciousness of guilt. We set forth the court’s charge on that subject in its entirety: “All right. I want to talk to you about a concept in law called consciousness of guilt. In any criminal trial, it’s permissible for the state to show that conduct or statements by a defendant after the time of the alleged offense may fairly have an influence by the criminal act. That is, the conduct or statements would tend to show that the defendant was conscious of his own guilt, and his actions were in accordance with that guilty mind.

“In this regard, you have heard evidence that on January 21, 1999, the defendant had been arrested for the sexual abuse claims made by [the victim]. You also heard evidence that on February 3,1999, the defendant’s first scheduled court date — that on that day [Cubano] attempted to induce the alleged victim not to testily in the sexual assault case against the defendant in exchange for the safety of her and her mother and by giving [the victim] money.

“If you find by either direct or circumstantial evidence that the defendant either attempted to influence or to deter a witness from testifying through [Cubano], you may fairly infer guilty knowledge of the underlying charges in counts one through four, (the first set of charges, the assault charges) but not counts five through six (tampering and hindering).

“What I’m laying out for you is consciousness of guilt. Some evidence of consciousness of guilt, if you think it is such, applies to some of the counts and not some of the other counts. And I’m just breaking that down for you now.

“With respect to the state’s claim that through [Cubano] — that on February 3, 1999, the defendant attempted to influence the testimony of [the victim], that evidence applies only through counts one through four. These counts, one through four, are the original sexual assault and kidnapping counts against [the defendant],

“The consideration of this evidence is confined to counts one through four, to the extent, if at all, that the state has proven that the defendant attempted to influence [the victim] through [Cubano]. If you find that the state has proven such conduct to you on the part of the defendant, this does not raise a presumption of guilt. It is circumstantial evidence, and you may and may not infer consciousness of guilt from it. It is to be given the weight to which you think it is entitled under the circumstances, and again, with respect to that claim, that applies only to counts one through four.

“You have also heard testimony that on February 3, 1999, the defendant, while at home, told a police officer he did not know anyone by the name of [Cubano] and that he attempted to conceal the identity of [Cubano]. Whether or not he did so is for you to determine. If you find that the defendant concealed [Cubano] or gave false information to the police on February 3, 1999, concerning [Cubano], then in accordance with these instructions, you may decide whether or not such actions show consciousness of guilt with respect to counts one through five (the charges of assault and tampering with a witness).

“So, concerning those allegations, they apply through counts one through five. They do not apply, at all, to count six. Consciousness of guilt does not apply at all, in this case, to count six. The first evidence I told you about applies to counts one through four, and the second evidence I just commented on applies to counts one through five.

“Again, my commenting on this does not, in any way, give this any extra, special weight. It’s my obligation to explain all the law to you, including consciousness of guilt. So, please don’t think that I’m trying to highlight it in any way. I’ve got to deliver all of the law to you.

“Okay. Let me make this clear to you. It is up to you as judges of the facts to decide whether the state has proved any alleged conduct or statements and, if so, whether or not whatever has been proven reflects a consciousness of guilt and to consider the same in your deliberations in conformity with these instructions.

“Again, if you find any consciousness of guilt, it does not raise any presumption at all. You consider it just like any other evidence in the case. Okay.”

At the end of the charge, defense counsel stated several objections. During its deliberations, the jury sent two notes to the court, essentially asking whether consciousness of guilt applied to the fifth count and for the court to restate the portion of the charge that explained the concept of consciousness of guilt.

In response to the jury’s requests, the court instructed the jury: “With respect to the first question, does consciousness of guilt apply to the fifth count. The answer is as follows: Yes, but only insofar as you find, if at all, that on February 3, 1999, when the police came to the defendant’s home, he either concealed the identity and presence of [Cubano] or gave the police false information about his knowledge of [Cubano], Again, whether or not he did either must be proven by the state.” As to the second part of the note requesting a restatement of the charge on consciousness of guilt, the court repeated the instruction it had given previously.

The defendant claims that if the jury could not find him guilty of tampering with a witness as an accessory and hindering prosecution, the evidence as to those two crimes could not be considered as consciousness of guilt in the assault crimes. In essence, his claim is that the state used those two alleged crimes to bootstrap the state’s evidence of the assault charges to allow the jury to convict the defendant on the assault charges.

“A trial court may admit [ejvidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . The trial court, however, should admit only that evidence where its probative value outweighs its prejudicial effect. ... In seeking to introduce evidence of a defendant’s consciousness of guilt, [i]t is relevant to show the conduct of an accused ... as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act. . . . [M]isstatements of an accused, which a jury could reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime or were influenced by the commission of the criminal act, are admissible as evidence reflecting a consciousness of guilt.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Riser, 70 Conn. App. 543, 547-48, 800 A.2d 564 (2002).

Our Supreme Court addressed a claim of instructional error with respect to consciousness of guilt evidence in State v. Bell, 188 Conn. 406, 450 A.2d 356 (1982). In Bell, the accused was charged with two separate robberies and escape from custody; the charges were tried together. Our Supreme Court concluded that the evidence of escape from custody properly was admitted “to show consciousness of guilt.” Id., 412. “It is well established that flight of a person accused of a crime is an element which, when considered with other facts of the case, is relevant to the accused’s guilt.” Id. The court concluded that no manifest injustice or abuse of discretion occurred when the evidence was admitted. The court stated that the evidence was not being offered to prove a crime but to demonstrate consciousness of guilt and charged “that guilt of one offense did not necessarily prove guilt of other offenses.” Id.

In this case, the evidence concerning the events of February 3,1999, was relevant to the charges of tampering with a witness as an accessory and hindering prosecution. “Once the evidence is admitted, if it is sufficient for a juiy to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity . . . .” (Internal quotation marks omitted.) State v. Middlebrook, 51 Conn. App. 711, 720-21, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999).

As we determined in part I, the evidence regarding the manner in which Cubano threatened the victim and the defendant’s behavior in his apartment on February 3, 1999, was sufficient for the juiy to conclude that he sought to conceal Cubano because he knew that Cubano had threatened the victim. The jury also knew that the parties had stipulated to the fact that Cubano had pleaded guilty to the charge of tampering with a witness. The court also made it clear that the consciousness of guilt evidence of tampering as an accessory applied to the assault charges, but not to the charge of tampering itself or to the hindering the prosecution charge. Likewise, the court made it clear that the consciousness of guilt evidence of hindering prosecution applied to the assault and tampering charges, but not to the charge of hindering prosecution. The court’s charge, therefore, did not permit the state to argue or the jury to conclude that the consciousness of guilt evidence as to tampering proved the crime of tampering or that the consciousness of guilt evidence of hindering prosecution proved the crime of hindering prosecution.

The defendant also claims that the court invaded the province of the jury by giving a charge of consciousness of guilt. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 668, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002). “As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) Id., 669. “It is to be presumed that the jury followed the court’s . . . instructions unless the contrary appears.” (Internal quotation marks omitted.) Id., 660.

When the court instructed the jury on consciousness of guilt, it included the following instruction: “Again, my commenting on this does not, in any way, give this any extra, special weight. It’s my obligation to explain all the law to you, including consciousness of guilt. So, please don’t think that I’m trying to highlight it in any way. I’ve got to deliver all of the law to you.

“Okay. Let me make this clear to you. It is up to you as judges of the facts to decide whether the state has proved any alleged conduct or statements and, if so, whether or not whatever has been proven reflects a consciousness of guilt and to consider the same in your deliberations in conformity "with these instructions. Again, if you find any consciousness of guilt, it does not raise any presumption at all. You consider it just like any other evidence in the case.”

The court’s instruction did not usurp the jury’s fact-finding role. The instruction explained how the evidence of consciousness of guilt may be used and pointedly explained that the jury alone was to determine the facts. There is nothing to suggest that the jury did not follow the court’s instruction.

The judgments are affirmed.

In this opinion the other judges concurred.

       The jury convicted the defendant of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2), tampering with a witness on the theory of accessory liability in violation of General Statutes §§ 53a-8 (a) and 53a-151 (a), and hindering prosecution in the second degree in violation of General Statutes § 53a-167.

       In accord with court policy to protect the privacy rights of victims in matters concerning sexual abuse, we decline to use the names of individuals involved in this appeal. See General Statutes § 54-86e.

       “C” is an alias or street name.

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

       General Statutes § 53a-151 provides: “(a) A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.
      “(b) Tampering with a witness is a class D felony.”

       General Statutes § 53a-167 (a) provides in relevant part: “A person is guilty of hindering prosecution in the second degree when he renders criminal assistance to a person who has committed a class C or class D felony or an unclassified offense for which the maximum penalty is imprisonment for ten years or less but more than one year.”

       Thereafter, the defendant presented evidence to the jury. The defendant, therefore, waived his right to appellate review of the sufficiency of the evidence on the basis of the state’s case alone. State v. Burrus, 60 Conn. App. 369, 370 n.2, 759 A.2d 149 (2000), cert. denied, 255 Conn. 936, 767 A.2d 1214 (2001). At the time of sentencing, the defendant filed a motion for a judgment of acquittal and a motion for a new trial. The court denied the defendant’s motions.

       In his brief to this court, the defendant states in his instructional claim that the court charged the jury that it could consider the allegations of accessory to tampering with a witness and hindering prosecution. In its charge, the court refers to the evidence of those charges that the jury heard, not the allegations themselves. We assume that the defendant intended to use the word “evidence” rather than “allegations.”

       We need not review the third claim because we have concluded that the evidence was sufficient to support the conclusion of guilt as to the charge of tampering with a witness on an accessory theory of liability.

       Defense counsel stated: “I just want to put on the record that I object to the consciousness of guilt charge because I think facts are insufficient to warrant a consciousness of guilt instruction, especially, as to the sexual assault charges. . . .
      “And second, the consciousness of guilt is a form of circumstantial evidence. I thought it was fairly covered in Your Honor’s charge regarding circumstantial evidence. There’s no reason why extra attention should be called to it. This type of evidence and its relevance should be left to argument to the jury. And I posit that the consciousness of guilt instruction gives undue influence to only one aspect of the evidence. . . .
      “There’s just one other matter, Your Honor. In regard to the hindering prosecution ... I believe that the charge when the court said that you heard testimony that on February 3, 1999, the defendant while at home told police he did not know anyone by the name of [C] and attempted to conceal the identity of [C]. That could have been in your consciousness of guilt charge, 1oo. I thought that was an unfair marshaling of the evidence and thereby [an] invasion of the province of the jury . . . .”