text:
    FRANCES NIKIDES v. TOWN OF WETHERSFIELD ET AL.
    (AC 35194)
    Lavine, Robinson and Sheldon, Js.

      Argued November 12, 2013
    officially released February 11, 2014

      Thomas R. Gerarde, with whom was Alan R. Dembic-zak, for the appellant (named defendant).

      D. Lincoln Woodard, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SHELDON, J.

The defendant town of Wethersfield appeals from the trial court’s denial of its motion for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict following a jury trial resulting in a verdict in favor of the plaintiff, Frances Nikides. The defendant claims that the court erred in concluding that the jury reasonably could have found that the plaintiff was exercising due care as a reasonably prudent person at the time that she encountered the defective condition of the sidewalk on which she fell and suffered injuries. The defendant also claims that the court erred in rendering judgment in favor of the plaintiff and denying the motion for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict. We disagree with the defendant and affirm the judgment of the trial court.

The following facts, as the jury reasonably could have found them, are relevant to our resolution of the defendant’s claim. On October 9,2008, the plaintiff was walking her two dogs on a sidewalk along Wells Road in Wethersfield. The plaintiff testified that her typical daily route to walk her dogs did not involve walking on Wells Road. As she approached a railroad crossing, she saw ahead of her a crack in the last concrete slab of the sidewalk before the railroad crossing. The crack, which was shown to the jury in a photograph taken from the perspective of a pedestrian walking in the same direction as the plaintiff toward the railroad crossing, spanned diagonally across the far right hand comer of the sidewalk slab. There was a gravel ditch to the right of the cracked portion of the slab that was littered with broken glass and trash. The plaintiff made a “mental note” of the crack, and as she approached it, she chose to step over it, testifying that she “walk[s] over cracks all the time. I had to step Over it to avoid it.” At trial, the plaintiff testified that although nothing prevented her from walking around the crack, she had made the conscious decision to step over it.

As the plaintiff was stepping over the crack, she looked to her left and to her right to see if a train was coming before crossing the railroad tracks. After stepping over the crack, the plaintiffs foot landed on a broken piece of sidewalk that had sloped downward, dropping off from the level portion of the sidewalk— a defect that she did not perceive prior to initiating her step over the crack. As a result, she fell and landed in the gravel ditch, suffering serious and permanent personal injuries to her shoulder, wrist, thumb and little finger.

At trial, the plaintiff testified that if she had been looking down while stepping over the crack, she would have seen the sloped portion of the sidewalk. She also testified that she could have stopped before what she perceived to be just a crack to look left and right to make sure a train was not approaching, and then watched as she stepped over the crack.

The plaintiff brought this action against the defendant under General Statutes § 13a-149. At trial, following the close of the plaintiffs evidence, the defendant moved for a directed verdict, arguing that no reasonable jury could conclude, on the basis of the evidence presented, that the alleged defect was the sole proximate cause of the plaintiffs fall and her resulting injuries. The court denied the defendant’s motion, and the jury returned a verdict in favor of the plaintiff. On October 18, 2012, the defendant filed a motion for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict. On November 12, 2012, the court denied the motion, holding that “the jury could reasonably have found that the plaintiff was exercising due care but simply did not see or appreciate the large drop and slant of the broken piece of sidewalk that caused her to fall. Because this evidence supports the jury’s verdict, the court must deny the defendant’s post-verdict motions to set aside the verdict, for a directed verdict, and for judgment notwithstanding the verdict.” This appeal followed. Additional facts will be set forth as necessary.

“The standard for reviewing the denial of motions to set aside the verdict and for judgment notwithstanding the verdict on evidentiary grounds is clear. Our review of the trial court’s [decision to deny the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached [its] conclusion.” (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 102, 837 A.2d 736 (2003). “We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . [and] giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony . . . .” (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 301, 852 A.2d 703 (2004). “A [jury’s] determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Lombardi v. East Haven, 126 Conn. App. 563, 574, 12 A.3d 1032 (2011).

To succeed on a claim under § 13a-149, “the plaintiff must prove, by a fair preponderance of the evidence, (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.” (Internal quotation marks omitted.) DeMatteo v. New Haven, 90 Conn. App. 305, 308, 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005). Once a defect is established, our Supreme Court has held that the standard for determining liability under § 13a-149 is sole proximate cause. See Smith v. New Haven, 258 Conn. 56, 62, 779 A.2d 104 (2001) (noting “that a municipality’s liability under the defective highway statute may be defeated by a showing of negligence on the part of either the plaintiff or some third party”).

“Whether the plaintiff was contributorily negligent is a question of fact subject to the clearly erroneous standard of review. . . . Because a plaintiff seeking recovery under § 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence. ... To do so, a plaintiff must have suffered injury while using the defective highway with due care and skill.” (Citations omitted; internal quotation marks omitted.) Lombardi v. East Haven, supra, 126 Conn. App. 577-78.

The defendant’s argument is that the defective condition of the sidewalk was so obvious that an ordinarily prudent person would have seen it and tried to avoid it, and that the plaintiffs failure to do so contributed to her injuries and constituted a failure to exercise due care. The defendant emphasizes that the plaintiff admitted at trial that if she had been looking down at where her foot was going to land, she would have seen the slope and drop in the sidewalk and that she could have avoided that portion of the sidewalk by walking on the safer, nondefective portion of the sidewalk, thereby preventing her fall and resulting injuries. The defendant also emphasizes that the plaintiff testified that she was aware of the crack and admitted that nothing prevented her from avoiding it. Thus, the defendant asserts, she could have avoided the slope by walking around it to the safer part of the sidewalk. The defendant fails to take into account that there were two defects in the sidewalk—the crack and the slope—only the former of which the plaintiff actually perceived. The defendant argues that because the plaintiff consciously chose to walk over the crack instead of avoiding it, despite the fact that she did not perceive the additional defect, she is nonetheless contributorily negligent for her injuries. We disagree.

The plaintiff testified as to the manner in which she conducted herself when she walked on Wells Road the day of her accident. Specifically, she testified that the weather was “nice” and that the roads were dry; that she was wearing walking sandals that had been recommended to her by her doctor; that she was looking to her left and right to watch for an oncoming train as she approached the railroad tracks; that as she approached the defective portion of the sidewalk, she was paying attention and perceived the crack to be the only defect in the sidewalk and made a “mental note” to step over it; and that she did not perceive the additional defect of the downward slope.

Whether the plaintiff was in the exercise of due care is a question to be answered by the trier of fact. Parker v. Hartford, 122 Conn. 500, 505, 190 A. 866 (1937). As the sole arbiter of credibility, the jury was free to credit the plaintiffs testimony and to find that she exercised due care. Because there was evidence in the record from which the jury could have concluded that the plaintiff was free of contributory negligence, the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants were Joseph F. Marie, commissioner of the Department of Transportation, and the Providence and Worcester Railroad Company. Because the plaintiffs claims against those defendants were resolved prior to the trial of this matter, we refer in this opinion to the town as the defendant.

       The plaintiff testified that she diverged from her regular route to see a scarecrow contest in Old Wethersfield, about one mile from her house.

       General Statutes § 13a-149 provides in relevant part that “[a]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. . . .”


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    IN RE NATALIE J.

    (AC 35785)
    Beach, Alvord and Pellegrino, Js.

      Argued October 23, 2013
    officially released January 29, 2014

      Angela Christine J., self-represented, the appellant (respondent mother).

      Carolyn Signorelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Elizabeth Potts Berman, for the minor child.

      Robert W. Lewonka, for the guardian ad litem.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       January 29, 2014, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BEACH, J.

The respondent mother, Angela J., appeals from the judgment of the trial court granting the motion of the petitioner, the Commissioner of Children and Families, to dismiss her motion to revoke the commitment of her minor child, Natalie J. On appeal, Angela J. argues that the trial court: (1) improperly granted the petitioner’s motion to dismiss her motion to revoke commitment on the ground that she failed to establish a prima facie case; (2) abused its discretion by taking judicial notice of the September 15, 2011 social study that was prepared by the Department of Children and Families (department) and entered as a full exhibit during the December 22, 2011 hearing on the neglect petition; (3) abused its discretion by taking judicial notice of, rather than admitting as a full exhibit, Angela J. ⅛ response to the petitioner’s summary of facts substantiating neglect; and (4) abused its discretion by excluding a tape recording of a telephone conversation between Angela J. and Natalie that allegedly took place on May 14, 2012. We disagree and affirm the judgment of the trial court.

The following facts are relevant to this appeal. On August 4, 2011, after receiving a referral suggesting physical and emotional neglect of fourteen year old Natalie from the Connecticut Children’s Medical Center (medical center), the petitioner sought and was granted an order of temporary custody. In support of its motion for that order, the petitioner submitted an affidavit prepared by Dr. Nina Livingston, the medical director of Hartford Regional Child Abuse Services at the medical center. The petitioner also filed a neglect petition and an affidavit seeking out-of-home placement of Natalie. Along with the neglect petition, the petitioner filed a summary of facts substantiating neglect. Angela J. did not file a response to the petitioner’s summary of facts substantiating neglect until eight months after the hearing on the neglect petition.

A preliminary hearing on the order of temporary custody was scheduled for August 12, 2011. At the preliminary hearing, at which Angela J. failed to appear, the court ordered specific steps including, but not limited to, Angela J. and her husband Christopher J., Natalie’s father, accepting in-home support services recommended by the petitioner, participating in individual counseling and separate psychological evaluations, and cooperating with Natalie’s therapy, as recommended by the department.

A full hearing on the petitioner’s neglect petition was scheduled for September 15, 2011. Angela J. was not present at that hearing and the court accordingly entered a default judgment.

On December 22, 2011, the court adjudicated Natalie neglected and found that it was in her best interest to be committed to the care and custody of the petitioner. The court also granted an order of out-of-state placement pursuant to an approved interstate compact study regarding Natalie’s maternal grandmother, Jacqueline S. In making its decision, the court considered: (1) the default judgments entered against Angela J. and Christopher J. for failure to appear; and (2) a social study prepared by the department, dated September 15, 2011, (social study), which was filed with the court as a full exhibit.

According to the social study, Angela J. began experiencing mental health issues, including symptoms of paranoia, when she was terminated from her place of employment. Department social workers reported that Natalie suffered from severe acne, for which Angela J. instructed her not to take prescribed medication, risking permanent scarring. Department social workers noted that Natalie had no history of psychiatric treatment; however, she presented as “very anxious” and suspicious of people in authority and struggled with socializing with her peers and others. The report indicated that Natalie was diagnosed with anxiety disorder as a result of continued exposure to Angela J.’s delusions and insistence that people were following her, watching her, and trying to kill her.

On June 21, 2012, the court approved a permanency plan contemplating the transfer of guardianship of Natalie to Jacqueline S. On June 28, 2012, Angela J. filed an appearance as a self-represented party. On July 19,2012, Angela J. appeared at the New Britain juvenile court. She filed a number of documents, including a motion to open the December 22, 2011 judgment of neglect, a motion to reconsider the denial of her motion to open judgment, and a petition for a new trial, all of which were denied. On August 15, 2012, eight months after the neglect hearing, Angela J. submitted her response to the petitioner’s summary of facts substantiating neglect.

On March 20, 2013, the petitioner filed a required motion for review of permanency plan. The petitioner filed a permanency plan contemplating the transfer of guardianship of Natalie to Jacqueline S., with whom she had been residing since December, 2011.

On May 8, 2013, Angela J. filed a “motion to reinstate guardianship” to her, which is the subject of this appeal. The court and all parties agreed that the motion would be treated as a motion to revoke commitment and the court scheduled an evidentiary hearing for June 10, 2013. On May 23, 2013, the court ordered that the motion be heard in a bifurcated manner: the court would consider first whether the cause for commitment no longer existed, and later, if necessary, whether revocation of commitment was in the best interests of the child.

At the June 10, 2013 evidentiary hearing, the court took judicial notice of all pleadings in the file including, but not limited to, Angela J.’s response to the petitioner’s summary of facts substantiating neglect filed on August 15, 2012, the September 15, 2011 social study entered as an exhibit at the hearing on the neglect petition, and the motion for review of permanency plan and social study filed on May 17, 2012. The court reminded all parties that the subject of the hearing was a motion for revocation of commitment and that the purpose of the hearing was whether the cause for commitment still existed. The court explained to Angela J. that, as a result of the default judgment previously entered following her failure to appear, the facts contained in the neglect petition regarding her mental health and its emotional and physical impact upon her child were taken to be true and could not be challenged. The court explained that all Angela J. could currently do was to show that the circumstances that existed in 2011 no longer existed.

At the outset of the presentation of her case, Angela J., representing herself, attempted to introduce a tape recording of a telephone conversation between herself and Natalie that occurred on May 14, 2012. The court requested an offer of proof. At the close of Angela J.’s description of the content of the tape recording, both counsel for Natalie and counsel for the petitioner objected on the grounds that the evidence proffered was hearsay and not relevant to the issue of whether cause for commitment no longer existed. The court sustained the objection to the introduction of the tape recording.

Angela J. then attempted to introduce her response to the petitioner’s summary of facts substantiating neglect, filed on August 15,2012 (response to summary of facts), as a full exhibit. The court sustained the petitioner’s objection on relevancy grounds but explained that it would “take judicial notice of [it] just like I did all other matters that were filed . . . .”

Angela J. also attempted to introduce a letter written by Natalie in September, 2010, and a math exercise completed by Natalie in October, 2010. The court sustained the petitioner’s objections on relevancy grounds, explaining that the documents did not provide insight into the current status of the parties.

Other evidence offered by Angela J. included her own testimony and that of her husband, Christopher J., regarding their opinion that there was no basis for the initial adjudication of neglect and commitment of Natalie because Angela J. had never been told that she suffered from mental health issues. They further maintained that the adjudicating court improperly had relied upon the pleadings and social study because the parents were not present at the hearings to refute the allegations contained in those documents.

At the close of Angela J.’s presentation of evidence, counsel for the petitioner, joined by counsel for Natalie, moved to dismiss the motion for revocation of commitment based on Angela J.’s failure to make out a prima facie case for the proposition that the cause for commitment no longer existed. In response to the petitioner’s motion to dismiss, Angela J. argued that the holding of Suprenant v. Commissioner of Welfare, 21 Conn. Supp. 154, 148 A.2d 669 (1958), prevented the court from ever having allowed her “child to be taken away from me in the first place.” The court granted the petitioner’s motion to dismiss, ruling: “And so [Angela J.] having not offered any evidence that if true would show that as of this moment the cause for commitment no longer exists, she did not make a prima facie case and the motion is dismissed.” Angela J. thereafter filed amotion for reconsideration, which the court denied on June 20, 2013. This appeal followed. Additional facts will be set forth as necessary.

I

Angela J.’s first claim is that the trial court improperly granted the petitioner’s motion to dismiss for failure to make out a prima facie case for revocation of commitment of Natalie. We disagree.

General Statutes § 46b-129 (m) provides: “The commissioner, a parent or the child’s attorney may file a motion to revoke a commitment, and, upon finding that [1] cause for commitment no longer exists, and [2] that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. No such motion shall be filed more often than once every six months.” This court’s analysis in In re Stacy G., 94 Conn. App. 348, 892 A.2d 1034 (2006), provides guidance on applying § 46b-129 (m). “[A] natural parent, whose child has been committed to the custody of a third party, is entitled to a hearing to demonstrate that no cause for commitment still exists. . . . The initial burden is placed on the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. ... If the party challenging the commitment meets that initial burden, the commitment to the third party may then be modified if such change is in the best interest of the child. . . . The burden falls on the persons vested with guardianship to prove that it would not be in the best interests of the child to be returned to his or her natural parents.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 352 n.4.

Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case.” See Practice Book § 34a-1 (b); see also In re Devon W., 124 Conn. App. 631, 639-41, 6 A.3d 100 (2010) (Practice Book § 15-8 applies in cases involving termination of parental rights).

“The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it. . . . For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15-8], it must be of the opinion that the plaintiff has failed to make out a prima facie case. In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor. . . . Whether the plaintiff has established a prima facie case is a question of law, over which our review is plenary.” (Citation omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Charter Oak Lending Group, LLC v. August, 127 Conn. App. 428, 434-35, 14 A.3d 449, cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011).

Our thorough review of the transcript of the June 10, 2013 hearing indicates that Angela J. failed to introduce any evidence that, if credited, would make out a prima facie case that the cause for commitment no longer exists. Angela J. did not present any new evidence regarding the current state of her mental health issues, as of June, 2013, or whether she was currently able to provide care for Natalie without subjecting her to the emotional, psychological, educational, physical and medical neglect described in the social study. A principal claim Angela J. made at the June 10, 2013 hearing was that she had never been told she had any mental health issues. After a thorough review of the record, we conclude the trial court properly granted the petitioner’s motion to dismiss.

II

Angela J.’s claims regarding evidentiary rulings must be viewed in the context of the proceedings. Evidence that may perhaps have been relevant in a hearing on a motion for a finding of neglect is not necessarily relevant in a hearing on a motion to revoke commitment, where the issue is not whether cause for commitment once existed but rather, as discussed earlier in this opinion, whether the cause previously found no longer exists. Here, the court’s evidentiary rulings recognized and relied upon this distinction. With this principle in mind, we turn to the distinct evidentiary rulings that on appeal are claimed to be erroneous.

A

Angela J.’s first evidentiary claim is that the court improperly took judicial notice of the social study. She claims that the social study was inaccurate and that the court was wrong to rely on it during the revocation of commitment hearing because she was not present at the December 22,2011 hearing on the neglect petition when the social study was admitted into evidence, and therefore was unable to refute the assertions contained in the social study. We disagree.

The following additional facts are relevant. At the June 10, 2013 evidentiary hearing on the motion to revoke commitment, the court took judicial notice of several documents, including the social study. The court provided Angela J. an opportunity to be heard before taking judicial notice of the social study. The court then explained its ruling. It stated that judicial notice of the social study was proper because the social study was admitted as a full exhibit during the neglect adjudication hearing and, in large part, was the factual basis the court relied on in adjudicating Natalie neglected and in determining that commitment was in Natalie’s best interest.

Section 2-1 of the Connecticut Code of Evidence provides in relevant part: “A court may, but is not required to, take judicial notice of matters of fact .... A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration.” In determining whether a matter is the proper type for judicial notice, courts have “attempted to draw a line between matters susceptible of explanation or contradiction, of which notice should not be taken without giving the affected party an opportunity to be heard . . . and matters of established fact, the accuracy of which cannot be questioned, such as court files, which may be judicially noticed without affording a hearing.” (Footnote added; internal quotation marks omitted.) Wasson v. Wasson, 91 Conn. App. 149, 157, 881 A.2d 356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005).

“A trial court’s determination as to whether to take judicial notice is essentially an evidentiary ruling, subject to an abuse of discretion standard of review. . . . In order to establish reversible error, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Citation omitted; internal quotation marks omitted.) Id., 157-58. In reviewing a trial court’s evidentiary ruling, “the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently .... Rather, our inquiry is limited to whether the trial court’s ruling was arbitrary or unreasonable.” (Citation omitted; internal quotation marks omitted.) State v. Cancel, 275 Conn. 1, 18, 878 A.2d 1103 (2005).

Child protection proceedings are civil matters. See Practice Book § 32a-2 (a). In civil matters “[t]he entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint.” DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982). In this case, when Angela J. failed to appear and to contest the neglect petition and the commitment of Natalie to the petitioner’s care, the court was permitted to take the facts contained in the pleadings and the social study to be true and to rely on those facts in making its decision. See, e.g., Commissioner of Social Services v. Smith, 265 Conn. 723, 732-33, 830 A.2d 228 (2003) (respondent in child support proceeding who fails to respond to pleadings “is deemed to have judicially admitted the underlying facts of the support petition”). As a result of Angela J.'s failure to appear and to participate in the neglect proceedings, the allegations in the neglect petition and the facts in support of commitment contained in the social study became the adjudicatory and dispositional facts in the case. Accordingly, these facts formed the basis not only for the court’s decision on the neglect petition and commitment issue, but, once final, also formed the basis for future decisions regarding whether to maintain or revoke that commitment. See In re Allison G., 276 Conn. 146, 160, 883 A.2d 1226 (2005) (when deciding whether to revoke commitment, court is required to consider information upon which earlier adjudication and commitment were based in order to determine whether cause for commitment still exists). At the June 10, 2013 hearing, the court, therefore, acted well within its discretion by taking judicial notice of the social study and considering the facts alleged therein in order to ascertain the previously determined cause for commitment. Only then could the court determine whether the cause for commitment continued to exist. We conclude the court did not abuse its discretion in taking judicial notice of the social study.

B

Angela J. also claims that the court abused its discretion in taking judicial notice of her response to the petitioner’s summary of facts substantiating neglect rather than admitting it as a full exhibit. The petitioner argues that the court properly excluded Angela J.’s response to summary of facts as a full exhibit because it was not relevant to the revocation of commitment proceeding. We agree that the court did not abuse its discretion in taking judicial notice of Angela J.’s response to summary of facts and not admitting it as a full exhibit.

First, it quite clearly was proper for the court to take judicial notice of a prior pleading, at least for the fact of what was filed. Whether information within the document had substantive evidential value is a different question. Relevant evidence is evidence that has “any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” (Emphasis added.) Conn. Code Evid. § 4-1. Relevant evidence is admissible unless otherwise provided. Conn. Code Evid. § 4-2. The trial court has broad discretion in ruling on the admissibility of evidence. The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion and a showing that the ruling resulted in “substantial prejudice or injustice.” (Internal quotation marks omitted.) In re Angellica W., 49 Conn. App. 541, 550, 714 A.2d 1265 (1998).

Practice Book § 34a-14 provides that within thirty days of the filing of a neglect petition, a parent, legal guardian or child may file a response to the summary of facts propounded by the petitioner in order to assert that allegations contained in the summary of facts in support of the petition are “irrelevant, immaterial, false or otherwise improper.”

The following additional facts are relevant. On August 4, 2011, the petitioner filed a neglect petition as well as a summary of facts in support of the neglect petition. On December 22, 2011, the court adjudicated Natalie neglected. On August 15,2012, more than one year after the plea date on the neglect petition and eight months after the finding of neglect, Angela J. submitted her response to summary of facts. Angela J.’s response to summary of facts broadly denied the allegations in the neglect petition as well as the allegations in the petitioner’s summary of facts substantiating neglect. At the June 10, 2013 hearing on the motion to revoke commitment, Angela J. requested the court to take judicial notice of her response to summary of facts.

We conclude that the court did not abuse its discretion in declining to admit Angela J.’s response to summary of facts as a full exhibit. First, there is no clear indication in the record that Angela J. sought to have the document admitted as a full exhibit at the June 10, 2013 revocation of commitment hearing. Second, even if Angela J.’s goal was admission of the document as a full exhibit, the court did not abuse its discretion in failing to admit it as a full exhibit because the document, which addresses factual circumstances in 2011, was not relevant to the issue to be decided in the revocation of commitment hearing—that is, whether the circumstances as they were in June, 2013, warranted a finding that the previously determined and finally established cause for commitment no longer existed. We therefore conclude that the court did not abuse its discretion in taking judicial notice of Angela J.’s response to summary of facts.

C

Angela J. finally claims that the trial court abused its discretion by excluding a tape-recorded telephone conversation between Angela J. and Natalie. We disagree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) In re Harlow P., 146 Conn. App. 664, 681, 78 A.3d 281 (2013).

Relevant evidence is evidence that has “any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” (Emphasis added.) Conn. Code Evid. § 4-1; see also In re Angellica W., supra, 49 Conn. App. 549 (“Relevant evidence is evidence that has a logical tendency to aid the trier of fact in the determination of an issue. . . . All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” [Internal quotation marks omitted.]). Relevant evidence is generally admissible. Conn. Code Evid. § 4-2. “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 59, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

One means of suggesting relevance is an offer of proof. Courts are permitted to base their decisions regarding the relevance and admissibility of evidence on the offer of proof and argument made by the proponent of the evidence. “An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” (Internal quotation marks omitted.) State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986).

The following additional facts are relevant. At the June 10, 2013 evidentiary hearing on her motion to revoke commitment, Angela J. attempted to introduce a tape recording of a telephone conversation between her and Natalie. When the court asked Angela J. to provide a foundation, she insisted that she should be able to play the tape recording without further explanation. The petitioner, through counsel, requested an offer of proof as to the nature of the recording, when it was made, and to whom and to what it referred, and an explanation of how it was relevant to the revocation of commitment proceeding. In response, Angela J. explained that it was a tape recording of a telephone conversation between herself and Natalie on May 14, 2012, during which Natalie told her that her attorney had her sign papers without reading them, that she was repeatedly asked by her attorney, school officials, the petitioner, workers, and others whether she ever ran away from home and that she told them she had not run away, and that when Angela J. appeared in the street outside her residential placement, staff told her to hide.

Subsequently, Natalie’s counsel objected, arguing that the offer of proof was insufficient, that the tape recording of the telephone conversation was irrelevant to the revocation of commitment hearing, and that it was inadmissible hearsay. The petitioner also objected on the same grounds, maintaining that there was no representation that the material contained in the tape-recorded conversation was relevant to the issue before the court at the revocation hearing. Angela J. responded to the relevancy objection by stating that the tape recording tended to show that Natalie had been “brainwashed” into believing that she was not safe with her parents. She then began to testify about facts and allegations outside the contents of the tape recording. When the court asked Angela J. to explain how the contents of the tape recording were relevant to the issue of whether cause for commitment still existed, Angela J. responded by stating that the social workers were untruthful and reiterated her claim that the factual information introduced at the December 22, 2011 neglect adjudication hearing was not reliable and was not truthful. The court sustained the objection on the grounds that the offer of proof did not address how the tape recording was relevant to Angela J.’s burden of establishing that the cause for commitment no longer existed. Angela J. claims the court abused its discretion in excluding the tape recording. We disagree.

After a thorough review of the record, we conclude that there is no indication that the tape recording contained evidence relevant to the issue before the court at the revocation hearing. The court, therefore, did not abuse its discretion in excluding the tape recording of the alleged May 14, 2012 telephone conversation between Angela J. and Natalie. Accordingly, we do not conclude that the court erred in dismissing Angela J.’s motion to revoke commitment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent father, Christopher X, is not a party to this appeal.

       According to Livingston’s affidavit, on August 1, 2011, Natalie presented at the emergency department because of Angela J.’s persistent concerns that Natalie had been poisoned. Medical tests revealed that Natalie had not been poisoned; however, she was admitted for further evaluation. Angela J. and her husband Christopher J., Natalie’s father, attempted to leave with Natalie against medical advice. Livingston attempted to speak with Natalie privately, but Angela J. refused to allow Livingston to speak with Natalie without her being present. Livingston also reported that Angela J. refused to allow her to order a mental health assessment for Natalie.
      On August 3, 2011, Livingston was able to speak with Natalie, separate from Angela J., in the presence of an advanced practice registered nurse. Natalie reported to Livingston that Angela J. tells her that “people are trying to poison them, that schools are putting [Natalie] in the wrong classes, and that teachers are telling the kids in [Natalie’s] school to say negative things to her. Natalie reported] that sometimes she believes that people are watching or following her and it makes her scared and nervous. . . . Sometimes she does not believe the things [Angela X] says and is bothered by [Angela X’s] persistent discussion of the games.” Natalie also reported that Angela X “will not separate from her except for school and occasionally to leave her with [maternal grandmother].” Natalie also told Livingston that she did not participate in any extracurricular activities, had no friends, and no regular contact with anyone aside from her parents. A psychological evaluation on August 3, 2011, revealed that Natalie suffered from social anxiety disorder and pervasive developmental disorder, and that she straggled to separate Angela X’s delusions from reality.

       The affidavit seeking out-of-home placement of Natalie stated: “[C]ontin-uation in the home is contrary to the welfare of the child because . . . [Angela X’s] mental health impacts her ability to care for [Natalie], [Christopher X] has failed to protect [Natalie] from [Angela X’s] mental health problems. [Natalie] has been emotionally and physically impacted by parent’s actions and statements.” The affidavit also stated that the department had made reasonable efforts to keep Natalie in the home prior to seeking an out-of-home placement, including offering safety planning and psychological evaluation services to both parents.

       The summary of facts substantiating neglect alleged, in part: (1) “[f]or at least the past two years, [Angela X] has had paranoid beliefs that have included that the family is being followed and harassed, primarily by [Natalie’s] school systems”; (2) “[Christopher X] has failed to protect [Natalie] from [Angela X’s] paranoid actions and statements in that he continues to allow [Natalie] to be exposed to [Angela X and subject to Angela X’s actions and statements]”; (3) “in the past two years, the family has moved to three different states in part due to [Angela X’s] beliefs [that] they were being targeted and potentially poisoned . . . by various school systems”; (4) “[a]s a result of the parents’ actions and statements, [Natalie] has been subjected to unnecessary medical examinations, and undue stress and anxiety about her participation in school, and social activities”; and (5) “[Angela J.’s] mental health impacts her ability to appropriately care for [Natalie].”

       Angela J. did not appear at the court hearings regarding the order for temporary custody and the neglect petition scheduled during August and September of 2011. The trial court found proper service upon Angela J. and that she had notice of the results of each of those hearings.

       On December 22, 2011, a default was entered against Christopher J. for failure to appear.

       Angela J. and Christopher J. failed to comply with the petitioner’s requests throughout the investigation by refusing to meet with department workers, refusing visitation time with Natalie, and refusing to participate in the social study.

       Angela J. refused to participate in the social study. Department social workers obtained information about Angela J. from her mother, Jacqueline S., who reported that Angela J.’s mental health issues began when she was terminated from her job and continued and remained untreated.

       Pursuant to Practice Book § 35a-14 (f), the petitioner is required to file a permanency plan with the court every twelve months while a child is in foster care. Under Practice Book § 35a-14 (c), a person who objects to the plan that the petitioner has presented has thirty days in which to file a written objection. If a written objection is filed within the thirty day period, the court must schedule an evidentiary hearing to consider the plan. If no written objection is filed within the thirty day time period, the court may consider and approve or disapprove the plan on the basis of the social study and the arguments of the parties on the date of the scheduled hearing on the motion for review.

       Practice Book § 35a-16 requires that “any modification motion to return the child to the custody of the parent without protective supervision shall be treated as a motion for revocation of commitment.”

       Pursuant to General Statutes § 46b-129 (m), a court ruling on a motion for revocation of commitment must consider two issues: (1) whether cause for commitment no longer exists; and (2) whether revocation of commitment is in the best interests of the child.

       The court explained: “As I said to you last week, this does not provide a party a chance to have a retrial on the issues that led to commitment. There was a judicial finding that the child was neglected. There was ajudicial decision to commit the child to the [petitioner]. There was an opportunity to contest that—the petition. And the petition was not contested and defaults were entered.
      “A default is regarded as allowing the petition for the pleading to be presumed as true and the court treated it that way and was based on the neglect petition and the addendum that was incorporated into the original neglect petition was thereby presumed to be true.
      “And you can’t—today you can’t offer evidence or try to challenge that the facts that the judge found back when the child was committed weren’t then trae. What your—the burden of proof you face today is to show that whatever the circumstances were when the child was found neglected and committed, there are difference circumstances today such that today there’s no longer a cause for commitment.”

       The court explained to Angela J. that “it’s too late to challenge whether [the facts in the neglect petition, taken to be true because there was a default judgment] were true back in 2011. All you can try to do now is show that whatever the circumstances were in 2011, those circumstances no longer exist.”
      That decision, of course, had become final and the appeal period had expired.

       Angela J.'s reliance on this nonbinding Superior Court case is unavailing. In Suprenant v. Commissioner of Welfare, supra, 21 Conn. Supp. 154, the court found there was no evidence presented at trial that the parents’ issues were affecting the child. Whereas, in the present case, at trial, there was ample evidence in the pleadings and social study of the negative effects that Angela J.’s mental health issues had on Natalie.

       The petitioner’s appellate brief states: “Angela J. indicated in her [n]otice of [a]ppeal that she was appealing the June 20, 2013 denial of her [m]otion for [reconsideration .... However, her preliminary statement of issues and brief claim[ed] errors in the court’s evidentiary rulings and its decision to grant the [m]otion to [dismiss . . . This procedural information appears to be provided for the purpose of clarification only and does not affect our ability to consider Angela J.’s appeal.

       Ordinarily we would see no reason to consider other claims when we have found that there was insufficient evidence to survive a motion to dismiss. In this case, however, because the disposition of both the sufficiency issue and of the evidentiary issues are interrelated and governed by the same controlling principle, we consider it useful to discuss all issues.

       The petitioner argues that the court properly took judicial notice of the social study because Angela J. was given an opportunity to be heard at the revocation hearing and the social study contained information from which the court could assess whether or not the cause for commitment still existed. We agree that the court properly took judicial notice of the social study.

       See also In re Jeisean M., 270 Conn. 382, 402, 852 A.2d 643 (2004) (so long as parties are offered opportunity to be heard, court may notice any fact concerning parties and events of case appropriate for judicial notice).

       See also Misthopoulos v. Misthopoulos, 297 Conn. 358, 383, 999 A.2d 721 (2010) (“ [b] efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful” [internal quotation marks omitted]).

       Practice Book § 35a-9 provides: “The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing, but no disposition may be made by the judicial authority until any mandated social study has been submitted to the judicial authority. Said study shall be marked as an exhibit subject to the right of any party to be heard on a motion in limine requesting redactions and to require that the author, if available, appear for cross-examination.” (Emphasis added.)

       See Practice Book § 35a-14A (“[wjhether to revoke the commitment is a dispositional question, based on the prior adjudication, and the judicial authority shall determine whether it is in the best interest of the child to maintain or revoke upon a fair preponderance of the evidence”). “The court, in determining whether cause for commitment no longer exists, would obviously look to the original cause for commitment to see whether the conduct or circumstances that resulted in commitment continue to exist. In re Cesar G., 56 Conn. App. 289, 294, 742 A.2d 428 (2000). Accordingly, the trial court considers not only the adjudication, but also the attendant facts. See id., 294-95 (concluding that trial court, when deciding whether to revoke commitment, properly considered facts set forth in trial court’s memorandum of decision ordering original commitment of child).” (Internal quotation marks omitted.) In re Allison G., 276 Conn. 146, 160, 883 A.2d 1226 (2005).

       Additionally, by taking judicial notice of Angela J.’s response to summary of facts, the court was able to consider the document’s contents. Nothing additional would have been accomplished if the document had been admitted as a full exhibit.

       The following colloquy occurred among counsel, the court, and Angela J.
      “[The Petitioner’s Counsel]: Your Honor, I object to—I would ask for an offer of proof . . . [and] how it is relevant to this proceeding.
      “[The Court]: All right. Would you state that, please, [Angela J.].
      * * *
      “[Angela J.]: It’s a recording of me and my daughter, [Natalie] ....
      “[Angela J.]: . . . And the only reason why I even made this recording . . . was because she was just telling me too many things that got me concerned. She is heard on this recording multiple times stating that her lawyer . . . had her sign paperwork and told her not to bother reading what she signed. . . . [She said] that the Connecticut [department] workers . . . her lawyer . . . and Winifred House employees kept asking her repeatedly if she ever ran away from me when her and I lived . . . [in] Florida. She’s heard repeatedly on this recording stating no, no, I told them ... I never ran way. . . .
      “She also states on this recording that her lawyer . . . her social worker . . . they all told her that she was going—flying to . . . Florida just for a visit. They all told her it was just for a visit, never told her it was going to be permanent .... She says that [her social worker] finally told her five minutes before the plane lands in... . Florida that it’s not just a visit, she’s going to be there permanently [living with her grandmother.] . . .
      “[Natalie’s Counsel]: Your Honor, at this point I’m going to object.

      “[Angela J.]: She’s also on this recording talking about the time when I showed up at the Winifred House. . . .
      “I showed up there twice and Natalie is talking on this recording telling me how people at Winifred House were telling her to hide. They told her to hide in the basement. They told her to hide again the second time I showed up ... . They locked all the doors and windows on the first floor and she—and she’s heard just—I say well, why—why do you think they did that? I don’t understand. And she says, well, they thought you were going to take a picture of me.
      “That’s her thought process because Natalie is not thinking I’m like going to hurt her in any way or—she knows that I’m not a neglectful parent. She in her mind, she processes my question and it can be heard on [the tape recording] that she thinks that they locked the windows and doors and told her to hide because I might take a picture of her. And that’s the thought processing going on with [Natalie]. It’s not a thought process . . . that states she was in fear ... of anything.”

       The following colloquy occurred among counsel, the court, and Angela J.
      “[The Court]: Okay. Now there’s an objection from the child’s attorney.
      “[Natalie’s Counsel]: Well, Your Honor, it doesn’t appear to be relevant to this proceeding. The court had indicated the purpose of this hearing is for a motion to revoke commitment. And pursuant to the facts as alleged in the petition for an adjudication of neglect, there is nothing there regarding Natalie, an assertion that Natalie ran away as a basis for the neglect atjjudication. I don’t think it’s relevant to this proceeding.
      “Additionally, I would object to it being hearsay as an out-of-court statement offered ... to prove the truth of the matter asserted.

      “[The Petitioner’s Counsel]: The state would object, Your Honor, for the same reasons. There’s nothing in [Angela J.’s] offer of proof as to what is on the recording that would be beneficial to the court that speaks to . . . that speaks to her burden that the cause for commitment no longer exists.
      “[The Court]: So what’s your response to the objection?
      “[Angela J.]: I have definitely responses. A lot of times when I speak to Natalie on the telephone she keeps saying things like Winifred House workers said I’m safe now. . . . She recently told me . . . my lawyer said that it’s not a good home environment for me to live in. So why am I bringing all this up because I feel that our child has been brainwashed into thinking she’s not safe with my husband and I. . . . And this goes even further. My mother, Jacqueline [S.] . . . started to put fear in our daughter’s head ....
      “[The Petitioner’s Counsel]: Your Honor, I would object that this response is not responsive—

      “[The Court]: We’re just talking that this particular tape, why do you maintain this particular tape is relevant here and contains information that’s relevant to the issue about whether the cause for commitment no longer exists?
      “[Angela J.]: Because anything . . . [department] social worker[s] would have sworn to in court that day was not the truth, Your Honor. . . . And I have proof that other social workers are fudging the facts ....
      “[The Petitioner’s Counsel]: Your Honor, this does not go to the ....
      “[Angela J.]: And . . . exactly what he fudged was put into the case plan and it’s those case plans that [the department] . . . rely on . . . [and] that help them -write up their permanency plans. And so it does have a direct impact on everything. . . .
      “[The Petitioner’s Counsel]: Your Honor, I would object to this ....

      “[Angela J.]: . . . [And] anything that was introduced into court by [department] employees at any given time, namely December 22, 2011, can’t be possibly relied upon as . . . being the truth, Your Honor.
      “[The Court]: All right. I’m going to read the exhibit that was introduced at the commitment hearing. . . . Okay. The objection is sustained.
      “[The Petitioner’s Counsel]: I would ask that the record be stricken as to that.
      “[Angela J.]: I’m sorry?
      “[The Court]: No. That was her argument of why—denied. [T]he objection [to the tape-recorded phone conversation] is sustained because the causes for commitment as evidenced by the neglect petition and the social study were the mother’s mental health issues, the father’s failure to protect the child from the mother’s mental health issues and the impact of both of these on the child.”


author: WEST, J.

text:
    STATE OF CONNECTICUT v. JESSIE L. C.

    (AC 35388)
    DiPentima, C. J., and Graendel and West, Js.

      Argued October 17, 2013
    officially released February 18, 2014

      Katherine C. Essington, assigned counsel, for the appellant (defendant).

      Adam E. Mattei, deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

WEST, J.

The defendant, Jessie L. C., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (E), and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that the trial court (1) violated his sixth amendment right to confrontation by improperly restricting his cross-examination of the complaining witness, and (2) violated his constitutional right to notice and a unanimous verdict by using a duplicitous amended information. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant is the uncle of the victim, N, and her older brother, K. The defendant is also the adoptive father of S, who is N and K’s younger half sister. N, K, and S lived with the defendant and his wife, B, on the second and third floors of a two-family home. On the second floor, N and S shared a bedroom, and the defendant and B slept in the dining room, which they had converted into a bedroom. K’s room was on the third floor.

At some point, the defendant and B separated and B moved into the apartment located on the first floor of the house. Accordingly, N, K, and S were living solely with the defendant. The first incident of sexual abuse occurred when N was ten years old. One day, the defendant awoke N from a nap and told her to go sleep in his bed. After falling asleep in the defendant’s bed, N woke up with the defendant’s penis inside of her vagina. The defendant apologized and told N that he was dreaming and thought that she was B. He instructed N not to tell anyone about the incident.

When N was eleven and twelve years old, the defendant sexually assaulted her about two to three times per week, although he did not penetrate her again until she was thirteen years old. The majority of incidents occurred at nighttime; however, the abuse sometimes occurred during the daytime prior to the defendant’s leaving to work the night shift. Generally, the defendant would make sure that S and K were distracted by television or video games, and would then tell N that he needed help relieving his stress. N would pull down her pants and underwear and lie down on the defendant’s bed. The defendant would rub his penis against the outside of her vagina until he ejaculated.

When N was approximately twelve or thirteen years old, she began sleeping in the defendant’s room every night—the defendant had told her that she could no longer share a bed with S because the bed squeaked and disturbed the downstairs neighbors. When N was between the ages of thirteen and sixteen years old, the defendant sexually assaulted her every day, and sometimes multiple times a day. During this three year time period, the assault largely consisted of vaginal penetration, but in some instances, the defendant would also put his mouth on N’s breasts and nipples. In an effort to escape the sexual abuse, N frequently ran away from home. The last instance of sexual assault occurred when N was sixteen years old, the day before she and K left for a Christian summer camp in Pennsylvania.

N disclosed the sexual abuse on two occasions. Her first disclosure was made in June, 2009, to a childhood friend, J, with whom she recently had reconnected. N called J on the telephone and told him about the sexual assault. He advised her to stand up for herself. The second disclosure occurred in August, 2009, while N was attending a Christian summer camp. During a group session pertaining to physical and sexual abuse, N stood before a group of approximately thirty girls and counselors and disclosed that the defendant physically, mentally, and sexually abuses her. She subsequently discussed the abuse with a camp counselor and other camp leaders. Also, on the final day of camp, she disclosed the abuse to the entire camp, including K, in her closing “testimonial.” When N returned from camp, members of the Department of Children and Families (department) intervened and placed her and her siblings in the temporary custody of a family friend. Thereafter, N was interviewed by a police officer, and ultimately placed in the custody of B, along with S. K lived with another family before returning to live with the defendant.

The defendant was arrested on January 14, 2010, and charged with one count of sexual assault in the first degree, three counts of sexual assault in the second degree, two counts of sexual assault in the fourth degree, and one count of risk of injury to a child. Following a five day trial, the jury returned a verdict of guilty on all counts. The court accepted the verdict and sentenced the defendant to a total effective term of twenty-five years imprisonment, execution suspended after eighteen years, followed by twenty years of special probation. This appeal followed. Additional facts will be set forth as they pertain to each claim.

I

The defendant first claims that the court violated his sixth amendment right to confrontation by improperly restricting his cross-examination of N with respect to her relationship with J, and her truthfulness toward various parties following her allegations of sexual assault. Specifically, the defendant argues that he was unlawfully restricted from cross-examining N about the lies she purportedly told to her department caseworker with respect to her school grades, relationship with J, and computer usage. He also claims that N lied to B with respect to J, and to the police regarding an incident wherein N was locked out of B’s house. Consequently, the defendant contends that he was deprived of his constitutional right to impeach N’s credibility and to expose her alleged motive to fabricate the sexual assault allegations—namely, revenge for the defendant’s refusal to allow her to date J. We disagree with the defendant.

The following additional procedural history and facts, as the jury reasonably could have found them, are relevant to our disposition of this claim. On direct examination, N testified that J, who is four years older than her, was a childhood friend who lived across the street from her when she was about five years old. When J’s mother was at work, the defendant would often baby-sit J along with N and K. Although they lost touch over the years, N and J reconnected when N was sixteen years old. In June, 2009, N called J and told him that the defendant “has sex with me all the time.” J advised N to stand up for herself.

At approximately that time, N asked the defendant for permission to date J, and the defendant said no. On one occasion in July, 2009, N saw J at a parade she was attending with her siblings, and he inquired as to whether the defendant continued to sexually abuse her. When N and her siblings returned home, N’s brother, K, told the defendant that N was conversing with J at the parade. Consequently, the defendant forced N to take off her belt and he beat her with it. Near the conclusion of her direct examination, N testified that she and J were romantically involved and living together, and that they had had a child together. N further testified that she was arrested on April 5, 2011, due to a fight she had had with J, and that charges against her were pending.

On cross-examination, the defendant asked N several questions pertaining to her truthfulness and her relationship with J. For example, the defendant asked N whether she was angry that the defendant would not allow her to date J, and whether she asked the department to place her with J’s mother following her disclosure of sexual abuse. Additionally, the defendant asked N whether she snuck out of the defendant’s house to party with friends. The defendant also asked N about several promises that she made to the defendant and had broken, including a promise not to disclose the sexual abuse, not to sneak out at night, and not to use the computer at night. Furthermore, the defendant asked N whether she was concerned that her sexual assault allegations would be disbelieved because she had a history of lying.

In addition to these and other questions intended to impeach N’s credibility, the defendant asked N whether, during the time she was living with B, following her disclosure of sexual assault, she broke B’s house rules. The state objected and the jury was excused for argument on the objection. The state argued that the question was neither relevant nor probative of whether the defendant committed the crimes charged. Conversely, the defendant argued that N’s anticipated answer would reveal a pattern of breaking promises, which was relevant to her credibility. The court sustained the objection, stating, “[Y]ou’ve elicited that [N] promised to tell the defendant that she wouldn’t tell anybody about what she says was the sexual abuse. . . . You’ve elicited that she promised not to use the computer . . . she said, yeah, I broke that promise, too. . . . So . . . you’ve demonstrate[d] that she made several promises to the defendant about these things and that she didn’t keep a couple of these promises. I think that’s fine. I let it go in. But . . . we’re not going to ... try a case within a case about what promises she kept or didn’t keep in some other household. I don’t think it has any probative value. So, I’m going to sustain the objection. I think you’ve made your point with your initial round, but I think that once we get outside the household, I think, it becomes much less probative and collateral.”

Prior to the jury’s return following this ruling, the defendant proffered several questions to the court regarding N’s truthfulness and her relationship with J. The court determined that several of these questions were permissible. Accordingly, the defendant was permitted to ask whether: (1) N ran away from B’s house on two occasions, and whether she was with J during those times; (2) pursuant to S’s complaint to the department about being spanked by the defendant, N told a department caseworker that she had not been physically abused by the defendant; (3) N told the defendant she lost a camera he had lent her for summer camp, and whether a department caseworker later found the camera in N’s backpack.

The court determined, however, that several proffered questions were impermissible because they were irrelevant and their prejudicial effect outweighed their probative value. The precluded questions included whether: (1) N lied to B and the department about taking the bus to and from work, when in fact, J was transporting her; (2) J would pick N up from school shortly after the start of the school day and drop her off before a department worker would arrive to pick her up; (3) N lied to a department worker about calling her caseworker, when in fact she was calling J; (4) N lied to a department caseworker about getting good grades when she was failing the majority of her classes; (5) N told her foster family that a friend gave her twenty dollars, when in fact, her friend gave her three hundred dollars; and (6) N lied to the police about an incident that occurred six weeks after her disclosure of sexual assault, when she told them that she was locked out of B’s house because she was with a girlfriend, when in fact, she was with J.

The court stated that because this line of questioning pertained to events that purportedly occurred following N’s displacement from the defendant’s household, they did not have any probative value and were likely to confuse the jury in its determination of whether the defendant committed the crimes charged. The court did, however, allow the defendant to question N about whether, following her disclosure of sexual assault, she was always truthful to people in other households and the police, but stated that the defendant would not be allowed further inquiry into N’s responses because the questions pertained to “very remote collateral, nonpro-bative events.”

As previously indicated, the defendant contends on appeal that the court violated his sixth amendment right to confrontation by deeming irrelevant several proffered questions intended to impeach N’s credibility and expose her purported motive to fabricate the sexual assault allegations against him. The following legal principles guide our analysis of the defendant’s claim. “The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . The right of confrontation is preserved if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . Although it is within the trial court’s discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements [of the confrontation clause] of the sixth amendment. . . .

“[T]he confrontation clause does not [however] suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination . . . [or] to present every piece of evidence he wishes. . . . To the contrary, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Thus, [i]f the proffered evidence is not relevant . . . the defendant’s right to confrontation is not affected, and the evidence was properly excluded. . . . [W]e first review the trial corut’s evidentiary rulings ... if premised on a correct view of the law . . . for an abuse of discretion. . . .

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. . . . Thus, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling [s] [on these bases] .... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] conclude [d] as it did. . . . If, after reviewing the trial court’s evidentiary rulings, we conclude that the trial court properly excluded the proffered evidence, then the defendant’s constitutional claims necessarily fail.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 8-11, 1 A.3d 76 (2010); see State v. David N.J., 301 Conn. 122, 132-33, 19 A.3d 646 (2011).

We conclude that the court’s limitation of the defendant’s cross-examination of N did not constitute an abuse of discretion. The court engaged in a discerning analysis of the defendant’s proffered line of questioning, disallowing only those questions pertaining to events allegedly occurring after N’s disclosure of sexual abuse and her consequent removal from the defendant’s home. The court reasonably could have determined that, given the temporal nature of the precluded questions with respect to the crimes charged, such questions were collateral, nonprobative, and likely to confuse the jury. Moreover, contrary to the defendant’s contentions, he was afforded the opportunity to conduct a comprehensive cross-examination of N’s credibility and alleged motive. The court permitted the defendant to inquire into whether N was angry that the defendant would not allow her to date J, whether she asked the department to be placed in the custody of J’s mother, and whether she ran away from B’s house, where she was not being abused, to be with J. Additionally, the court allowed the defendant to conduct a limited cross-examination into N’s truthfulness with respect to whether, following her disclosure of sexual assault, she ever lied to B, members of other households, or the police.

Once again, “[t]he confrontation clause does not. . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Internal quotation marks omitted.) State v. Davis, supra, 298 Conn. 9. Because the proffered evidence was reasonably excluded in accordance with the rules of evidence, the court neither abused its discretion nor violated the defendant’s right to confrontation.

II

The defendant next claims that the court violated his fifth amendment right to due process and his sixth amendment right to notice by improperly permitting the state to charge him on the basis of a duplicitous amended information. In particular, the defendant contends that the court should have required the state to set forth the specific facts underlying the identical counts of sexual assault in the second and fourth degree in order to apprise the defendant of the charges against him. Additionally, the defendant claims that the court violated his fifth amendment right to a unanimous verdict by failing to instruct the jury that its verdict must be unanimous with respect to the specific facts supporting each count for which it returned a guilty verdict.

As a preliminary matter, the defendant concedes that he did not preserve these claims on appeal. The defendant did not file a motion for a bill of particulars or a written request asking the state to specify the facts underlying the contested counts. See Practice Book §§ 41-5, 41-20 and 36-19. The defendant accordingly seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will review these claims because the record is adequate for review and they are of constitutional magnitude. See State v. Marcelino S., 118 Conn. App. 589, 594, 984 A.2d 1148 (2009) (applying Golding review to unpreserved duplicity claim), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010). We conclude, however, that the defendant’s claims fail under the third prong of Golding. The following procedural history and facts, as the jury reasonably could have found them, are relevant to our review of this claim.

The state’s amended information charged the defendant, in pertinent part, with three identical counts of sexual assault in the second degree, alleging that the assault occurred “on diverse dates between 2002 and prior to July of 2009 . . . .’’It additionally charged the defendant with two identical counts of sexual assault in the fourth degree, alleging that the assault occurred “on diverse dates between 2002 and July of 2009 . . . .”

At trial, N gave a detailed account of several specific incidents of sexual assault. She testified that the defendant often required N to return home early from playing in the park with her siblings, at which time he would sexually assault her. Additionally, she testified about an instance when she was sexually assaulted in S’s bed and the defendant broke the bed frame. Further, N testified as to a few instances where S had cracked open the defendant’s bedroom door while he was sexually assaulting N. On those occasions, the defendant responded by covering himself and N with blankets, or by running to close the door before S could enter the room or witness the assault. N also testified that the sexual assault often occurred when the defendant sent K to run errands at Walgreens, Burger King, or a nearby comer store.

On cross-examination, the defendant questioned N regarding an incident of alleged anal sexual assault. The defendant elicited testimony that, pursuant to her interview with a police officer, N disclosed that she had a scar on her anus due to an instance of anal sexual assault by the defendant. Thereafter, during the defendant’s cross-examination of Janet Murphy, a pediatric nurse practitioner who conducted a physical examination of N, the defendant elicited that Murphy did not detect any anal scarring. During closing argument, the defendant argued that this lack of physical evidence impugned N’s credibility.

In its charge to the jury, the court gave only one instruction with respect to the three identical counts of sexual assault in the second degree, but stated that the jury must consider each count separately. The court stated that the state “must prove beyond a reasonable doubt, first, sexual intercourse took place between the defendant and [N] and, second [N] was less than eighteen years old and the defendant was her guardian or was otherwise responsible for the general supervision of her welfare. If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of sexual assault in the second degree as to count two, three, or four, then you should find the defendant guilty as to that particular count. On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements as to count two, three, or four, then you shall find the defendant not guilty as to that particular count.”

Similarly, with respect to the two identical counts of sexual assault in the fourth degree, the court delivered only one jury instruction but told the jury that it must consider each count separately. It stated that the state “must prove beyond a reasonable doubt, first, the defendant intentionally subjected the complainant to sexual contact; second, he specifically intended to obtain sexual gratification; and, third, the complainant was less than eighteen years old at the time the offense was committed and the defendant was her guardian or was otherwise responsible for the general supervision of her welfare.”

Additionally, the court instructed the jury that if it returned a verdict of guilty as to any or all of the counts of sexual assault in the second and fourth degree, it must complete an interrogatory regarding whether N was under the age of sixteen at the time of the offenses charged. It instructed that “[t]he interrogatory would be answered yes or no, and any answer must be unanimous.” Before excusing the jury to conduct its deliberations, the court emphasized, “[w] hen you reach a verdict as to any count, it must be unanimous. All of you must agree to it whether that verdict is guilty or not guilty.” Subsequently, when the jury returned its verdict, the court clerk questioned the panel as to whether its verdict was unanimous on each count and interrogatory for which it returned a guilty verdict. The panel responded, “[y]es,” with respect to each count.

Our analysis begins with an examination of the duplicity doctrine. “Duplicity occurs when two or more offenses are charged in a single count of the accusatory instrument.” (Internal quotation marks omitted.) State v. Marcelino S., supra, 118 Conn. App. 594. In this case, the defendant contends that the identical counts of sexual assault in the second and fourth degree within the amended information contained two or more offenses because each count could have been supported by various factual scenarios. See State v. Bazemore, 107 Conn. App. 441, 454-55, 945 A.2d 987 (defendant argued that long form information was duplicitous where it set forth two counts of robbery without identifying robbery victims and defendant allegedly robbed various individuals), cert. denied, 287 Conn. 923, 951 A.2d 573 (2008). However, “[i]t is now generally recognized that [a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses. . . . Rather, such a count is only duplicitous where the policy considerations underlying the doctrine are implicated.” (Internal quotation marks omitted.) State v. Marcelino S., supra, 594-95. Here, the defendant claims that the two policy considerations implicated are the policies of assuring his right to adequate notice and avoiding the risk of a nonunanimous verdict. See id. (setting forth policy considerations underlying duplicity doctrine).

In particular, the defendant argues that the amended information did not set forth the factual basis underlying each count of sexual assault in the second and fourth degree. By the defendant’s account, N’s testimony that the defendant assaulted her every day and sometimes multiple times a day for a period of six years amounts to approximately 7575 instances of alleged sexual assault. Moreover, the defendant asserts that there were at least eleven factual scenarios that could have supported the charges of sexual assault in the second degree. He argues that, because the state did not set forth the specific factual underpinnings of each count of sexual assault, he was unable to narrowly tailor his defense “to challenge [N’s] veracity with respect to [the alleged] incidents.” Specifically, the defendant argues that some of the jurors may have “disbelieved [N’s] claim of anal penetration based on a complete lack of physical evidence supporting this claim, while others may have used it as a factual basis for convicting the defendant of counts two, three, or four,” which alleged sexual assault in the second degree. Consequently, the defendant argues, the jury may have returned a nonunani-mous verdict by agreeing that the defendant was guilty of each count, but disagreeing about which acts supported that verdict.

We first conclude that the defendant’s claim that he was deprived of his constitutional right to notice fails under the third prong of Golding. If the defendant desired greater specificity with respect to the facts underlying each claim, then he should have filed a motion for a bill of particulars or a written request for the facts underlying each count. See Practice Book §§ 41-5, 41-20 and 36-19. His failure to avail himself of these procedural protections constituted waiver, and thus, this claim fails under the third prong of Golding. See State v. Holness, 289 Conn. 535, 543, 958 A.2d 754 (2008) (“a constitutional claim that has been waived does not satisfy the third prong of the Golding test” [emphasis omitted]); State v. Young, 191 Conn. 636, 646, 469 A.2d 1189 (1983); State v. Bazemore, supra, 107 Conn. App. 454-55 (defendant waived claim that duplicitous information deprived him of constitutional right to notice where he failed to file motion for bill of particulars). We thus conclude that the defendant was not deprived of his constitutional right to notice.

We further conclude that the defendant’s right to a unanimous verdict was not violated when the court failed to instruct the jury that its verdict must be unanimous as to the facts underlying each count for which it returned a guilty verdict. “Regarding a court’s instruction to a jury prior to its deliberations, we have not required a specific unanimity charge to be given in every case . . . .” (Internal quotation marks omitted.) State v. Senquiz, 68 Conn. App. 571, 589, 793 A.2d 1095, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002). “In State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991), we set forth a multipartite test to determine whether a trial court’s omission of a specific unanimity charge warrants a new trial. We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter. Even if the instructions at trial can be read to have sanctioned such a nonunanimous verdict, however, we will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which the defendant has been charged, and (2) the state has presented evidence to support each alternative act with which the defendant has been charged.” (Internal quotation marks omitted.) State v. Dyson, 238 Conn. 784, 792, 680 A.2d 1306 (1996).

“This court is required to conclude, when reviewing a court’s instruction to the jury, that [t]he absence of language expressly sanctioning a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test.” (Internal quotation marks omitted.) State v. Senquiz, supra, 68 Conn. App. 589; see State v. Reddick, 224 Conn. 445, 454, 619 A.2d 453 (1993); State v. Cramer, 57 Conn. App. 452, 461, 749 A.2d 60, cert. denied, 253 Conn. 924, 754 A.2d 797 (2000). Here, there is no express language in the court’s jury charge sanctioning a nonunanimous verdict. Cf. United States v. Gipson, 553 F.2d 453, 458-59 (5th Cir. 1977), discussed in State v. Anderson, 211 Conn. 18, 34-35, 557 A.2d 917 (1989) (court instructed jurors that they could disagree as to particular acts constituting violation of crimes charged and still return guilty verdict). To the contrary, the court instructed the jury that each count of sexual assault must be considered separately and independently of the other counts; that the jury must unanimously agree that each element of the crimes charged was proven beyond a reasonable doubt; and that the interrogatories for each count must be answered unanimously. Before releasing the jury into deliberations, the court emphasized that its verdict must be unanimous. Moreover, following the jury’s verdict, the panel affirmed that its verdict was unanimous on each count.

Therefore, “[g]iven the court’s admonitions concerning unanimity, we must presume that the jury, in the absence of a fair indication to the contrary . . . followed the court’s instruction as to the law.” (Internal quotation marks omitted.) State v. Senquiz, supra, 68 Conn. App. 590. Thus, we conclude that the defendant’s claim fails under the third prong of Golding because the court did not expressly sanction a nonunanimous verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Under the familiar principle established in Golding, a defendant can prevail on an unpreserved claim of constitutional error only if each of four conditions is 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.” (Internal quotation marks omitted.) State v. Marcelino S., 118 Conn. App. 589, 594, 984 A.2d 1148 (2009), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010).

       In another portion of the jury charge on the crime of sexual assault in the second degree, the court defined sexual intercourse as “vaginal or anal intercourse.”

       In a separate portion of the jury charge on the crime of sexual assault in the fourth degree, the court defined sexual contact as “any contact by the defendant with the intimate parts of the complainant or contact of the intimate parts of the defendant with the complainant. Intimate parts means the genital area, groin, inner thighs, buttocks, or breasts.”

       Even if the defendant had satisfied the threshold requirement of the Famiglietti test, his claim nevertheless fails under the test’s first prong because case law provides that alternative means of performing unlawful sexual intercourse and sexual contact are not conceptually distinct. See State v. Anderson, supra, 211 Conn. 35 (“[t]he several ways in which sexual intercourse may be committed under General Statutes § 53a-65 [2] are only one conceptual offense”); State v. Hufford, 205 Conn. 386, 397, 533 A.2d 866 (1987) (no specific unanimity instruction required for charge of sexual assault in fourth degree); State v. Griffin, 97 Conn. App. 169, 184 n.7, 903 A.2d 253 (“alternative means of performing sexual intercourse are not conceptually distinct”), cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006);
        State v. William C., 71 Conn. App. 47, 79, 801 A.2d 823 (2002) (“[t]here is no conceptually alternative theory as to how [§ 53a-73a] could be violated notwithstanding the state’s presentation of evidence of two different occasions on which the defendant unlawfully touched the victim’s breasts”), rev'd on other grounds, 267 Conn. 686, 841 A.2d 1144 (2004). Therefore, the court’s jury instructions did not violate the defendant’s right to a unanimous verdict.